State v. Willey, No. 2010–578.

CourtSupreme Court of New Hampshire
Writing for the CourtCONBOY
Citation163 N.H. 532,44 A.3d 431
PartiesThe STATE of New Hampshire v. Thomas WILLEY.
Docket NumberNo. 2010–578.
Decision Date01 May 2012

163 N.H. 532
44 A.3d 431

The STATE of New Hampshire
v.
Thomas WILLEY.

No. 2010–578.

Supreme Court of New Hampshire.

Argued: Oct. 13, 2011.
Opinion Issued: May 1, 2012.


[44 A.3d 434]


Michael A. Delaney, attorney general (Elizabeth C. Woodcock, assistant attorney general, on the brief and orally), for the State.

Pamela E. Phelan, assistant appellate defender, of Concord, on the brief and orally, for the defendant.


CONBOY, J.

[163 N.H. 535]After a jury trial, the defendant, Thomas Willey, was convicted of one count of pattern aggravated felonious sexual assault. SeeRSA 632–A:2, III (2007). On appeal, he contends that the Trial Court ( Wageling, J.) erred in denying his motion for a mistrial or, in the alternative, for further curative instructions to the jury. He also argues that the trial court sentenced him based upon improper considerations. We affirm the conviction, but vacate the sentence and remand.

The jury could have found the following facts. The defendant was awarded custody of his daughter, J.H., when she was three years old. As J.H. grew older, she and the defendant developed a close bond. Their relationship deteriorated, however, after the defendant married his wife, Lori.

In 1999, the defendant, Lori, the couple's two daughters, and J.H. moved to Lempster, where the defendant began molesting J.H., who at the time was fifteen years old. The sexual assaults occurred two to three times a week between July 1999 and July 2000.

J.H. testified that she told Lori about the assaults on numerous occasions, but Lori did not believe her. She also testified that she confided in friends at school, but she believed they were too young to help her. Believing “[n]obody was listening to [her],” J.H. attempted suicide by taking prescription pills. Following this incident, she was sent to live with her paternal grandfather.

While living with her grandfather, J.H. was interviewed by a state trooper and a social worker from the New Hampshire Division for Children, Youth and Families (DCYF) about her allegations concerning the defendant. During the interview, she recanted her accusations of sexual assault.

[44 A.3d 435]

At trial, she testified that she did so because she was “fed up” with [163 N.H. 536]“everybody” accusing her of lying, and because her grandfather was present in the room. J.H. testified that, after this meeting, her grandfather began sexually assaulting her.

Sometime later, J.H.'s grandfather gave J.H. her mother's telephone number. J.H. contacted her mother, Irene, whom she had not seen since she was six years old. When J.H. and Irene subsequently met, J.H. “told her everything.” Eventually, J.H. left her grandfather's house and moved in with Irene.

Irene helped J.H. obtain a restraining order against the defendant and her grandfather. J.H. was then interviewed by an officer from the Warner Police Department about her accusations against her father and grandfather. Later, however, the restraining order was vacated because J.H. again recanted her allegations of assault. Soon after moving in with her mother, J.H. and Irene began arguing, and Irene accused J.H. of lying about the assaults. J.H. testified that because her mother kept insisting she was lying, she “agreed with her.” Subsequently, J.H. moved out.

Several years later, J.H. agreed to visit the defendant at her cousin's home. Following this meeting, J.H. and her family regularly visited the defendant, Lori, and their daughters. Eventually, J.H.'s and Lori's association evolved into “almost ... a mother/daughter relationship,” such that J.H. provided Lori “moral support” as she separated from and ultimately divorced the defendant.

In 2008, J.H. met with State Trooper Eric Berube. Berube questioned J.H. about her earlier allegations against the defendant, and asked her to participate in one-party telephone interceptions of conversations with the defendant, to which she agreed. During the recorded telephone conversations, the defendant made “some statements,” but did not fully address the assaults.

Based on the results of his investigation, Berube arrested the defendant and took him to the Claremont police station, where Berube and another trooper interviewed him. Berube advised the defendant of his Miranda rights, see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which the defendant acknowledged and waived. At the defendant's request, the interview was not recorded. During the interview, the defendant initially denied the allegations, but later, after the troopers informed him that they had the recorded telephone conversations between him and J.H. and offered to play them, the defendant admitted to sexually assaulting her. At trial, however, the defendant maintained his innocence, explaining he stopped “denying” the accusations to the police because he was “[f]rustrated” and “just didn't want to be confronted ... [and he] didn't want to fight about it.” Ultimately, the defendant was convicted and sentenced to eight to twenty years in the New Hampshire State Prison.

[163 N.H. 537]I. Trooper Berube's Testimony

The defendant argues that the trial court erred in refusing to grant a mistrial or, in the alternative, to provide further curative instructions to the jury after the State elicited allegedly “highly prejudicial and emotionally charged” testimony from Berube. Specifically, the defendant argues that “[v]iewed collectively, the disputed testimony and the court's instruction unambiguously conveyed to the jury that [he] had engaged in [other] conduct closely related to the conduct at issue in the trial.”

During the State's direct examination of Berube, counsel inquired about his initial

[44 A.3d 436]

contact with J.H., and the following colloquy ensued:

[State]: All right. The—I want to direct your attention to the spring, specifically to March of 2008, and ask if you had occasion to become aware of and to have contact with a [J.H.]?

[Trooper]: Yeah, I was investigating an unrelated matter for her sisters and then I became aware of it.

Defense counsel objected and immediately moved for a mistrial. After a bench conference, the trial court denied the defendant's motion and issued the following instruction:


Ladies and gentlemen of the jury, I'm striking the last answer that was just provided by Trooper Berube and I'm instructing you to not consider his answer. The only matter that is before you today, and the only matter in existence in this case involves the allegations of [J.H.] against this defendant.

Later, defense counsel renewed his motion for a mistrial, or in the alternative, for “stronger” curative instructions that would make clear to the “jury that there [were] no other investigations, that no other daughters made any allegations against [the defendant], [and] that there [were] no other charges out there against [the defendant] involving other daughters.” Defense counsel maintained that without such instructions, the jury was “left with the impression that there may be other investigations out there.” Again, the trial court denied the defendant's motion for a mistrial, finding that “[t]here's no inference in this case, nor has there been any suggested by Trooper Berube or anybody else, that there's any other allegation against [the defendant] other than the matter before this jury.” The court also declined to provide further curative instructions to the jury, noting that its “curative instruction did exactly what defense counsel [had] suggested need[ed] to be done.”

Subsequently, during cross-examination of Trooper Berube, defense counsel asked:

[163 N.H. 538][Defense]: I just want to clear one thing up first. You testified yesterday, when asked about how you first became aware of [J.H.], that you had been involved in an unrelated investigation concerning her sisters?

[Trooper]: Yes, I did.

[Defense]: That investigation did not result in any allegations of misconduct against [the defendant], correct?

[Trooper]: No, there were no allegations of any criminal conduct against [the defendant] in that investigation at all.

The defendant argues that the trial court's rulings were erroneous because: (1) “contrary to the court's recollection, it had not given the jury the instruction the defense requested”; (2) “the evidence, together with the limited instruction ... conveyed that [the defendant] had committed acts similar to the conduct at issue against his other daughters”; and (3) although Trooper Berube's testimony on cross-examination lessened the prejudice, it was insufficient to cure the harm.

Mistrial is the proper remedy only if the evidence or comment complained of is not merely improper, but is so prejudicial that it constitutes an irreparable injustice that cannot be cured by jury instructions. State v. Ellsworth, 151 N.H. 152, 154, 855 A.2d 474 (2004). Because the trial court is in the best position to gauge the prejudicial nature of the conduct at issue, it has broad discretion to decide whether a mistrial is warranted. State v. Kerwin, 144 N.H. 357, 359, 742 A.2d 527 (1999). “It is well-settled that an incurable prejudice may result ‘when the testimony of a witness conveys to a jury the fact of a defendant's prior criminal offense.

[44 A.3d 437]

The infusion of such evidence into a trial is probably only equaled by a confession in its prejudicial impact upon a jury.’ ” Id. at 360, 742 A.2d 527 (quoting State v. Woodbury, 124 N.H. 218, 221, 469 A.2d 1302 (1983) (citations and quotation omitted)). Thus, “[t]he proper inquiry in this case, for determining whether the defendant was so substantially prejudiced that the remedy of mistrial was required, is whether the fact that the alleged prior acts were criminal in nature was unambiguously revealed to the jury.” State v. Carbo, 151 N.H. 550, 554, 864 A.2d 344 (2004).

Here, Berube's testimony did not unambiguously reveal evidence of prior criminal acts by the defendant. Rather, Berube testified that he had been “investigating an unrelated matter ” involving...

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9 practice notes
  • State v. Perry, No. 2012–561
    • United States
    • Supreme Court of New Hampshire
    • May 22, 2014
    ...may result when the testimony of a witness conveys to a jury the fact of a defendant's prior criminal offense.’’ State v. Willey, 163 N.H. 532, 538, 44 A.3d 431 (2012) (quotations omitted). "The infusion of such evidence into a trial is probably only equaled by a confession in its prejudici......
  • State v. Bisbee, No. 2012–047.
    • United States
    • Supreme Court of New Hampshire
    • May 14, 2013
    ...improper, but is so prejudicial that it constitutes an irreparable injustice that cannot be cured by jury instructions." State v. Willey, 163 N.H. 532, 538, 44 A.3d 431 (2012). "We will not overturn the trial court's decision on whether a mistrial or other remedial action is necessary absen......
  • State v. Russo, No. 2011–624.
    • United States
    • New Hampshire Supreme Court
    • February 25, 2013
    ...prejudice may result when the testimony of a witness conveys to a jury the fact of a defendant's prior criminal offense." State v. Willey, 163 N.H. 532, 538, 44 A.3d 431 (2012) (quotation omitted). "The infusion of such evidence into a trial is probably only equaled by a confession in its p......
  • State v. Fitzgerald, 2020-0595
    • United States
    • Supreme Court of New Hampshire
    • January 11, 2022
    ...the defendant argues that the sentencing decision violated his constitutional rights, we review that claim de novo. See State v. Willey, 163 N.H. 532, 541, 44 A.3d 431 (2012).A. Decision to Re-Impose Same Sentence On appeal, the defendant first argues that the trial court unsustainably exer......
  • Request a trial to view additional results
9 cases
  • State v. Perry, No. 2012–561
    • United States
    • Supreme Court of New Hampshire
    • May 22, 2014
    ...may result when the testimony of a witness conveys to a jury the fact of a defendant's prior criminal offense.’’ State v. Willey, 163 N.H. 532, 538, 44 A.3d 431 (2012) (quotations omitted). "The infusion of such evidence into a trial is probably only equaled by a confession in its prejudici......
  • State v. Bisbee, No. 2012–047.
    • United States
    • Supreme Court of New Hampshire
    • May 14, 2013
    ...improper, but is so prejudicial that it constitutes an irreparable injustice that cannot be cured by jury instructions." State v. Willey, 163 N.H. 532, 538, 44 A.3d 431 (2012). "We will not overturn the trial court's decision on whether a mistrial or other remedial action is necessary absen......
  • State v. Russo, No. 2011–624.
    • United States
    • New Hampshire Supreme Court
    • February 25, 2013
    ...prejudice may result when the testimony of a witness conveys to a jury the fact of a defendant's prior criminal offense." State v. Willey, 163 N.H. 532, 538, 44 A.3d 431 (2012) (quotation omitted). "The infusion of such evidence into a trial is probably only equaled by a confession in its p......
  • State v. Fitzgerald, 2020-0595
    • United States
    • Supreme Court of New Hampshire
    • January 11, 2022
    ...the defendant argues that the sentencing decision violated his constitutional rights, we review that claim de novo. See State v. Willey, 163 N.H. 532, 541, 44 A.3d 431 (2012).A. Decision to Re-Impose Same Sentence On appeal, the defendant first argues that the trial court unsustainably exer......
  • Request a trial to view additional results

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