State v. Boetti

BROCK, C.J.,

concurring specially: I agree with the majority’s conclusion that, although certain of the county attorney’s statements during closing argument constituted prosecutorial misconduct, the defendant’s convictions ought to be affirmed. Cf. State v. Bujnowski, 130 N.H. 1, 4-6, 532 A.2d 1385, 1386-88 (1987). I write separately because (1) I believe the majority opinion does not adequately state or clearly apply the controlling law, and (2) I believe that the majority opinion does not make sufficiently clear how related the county attorney’s remarks were to the prior remarks of defense counsel in his closing argument.

Our standard for finding prosecutorial misconduct is well established:

*263A prosecutor may draw reasonable inferences from the facts proven, and has great latitude in closing argument to both summarize and discuss the evidence presented to the jury and to urge the jury to draw inferences of guilt from the evidence. To constitute prosecutorial misconduct, the government must, either intentionally or through gross negligence, have caused aggravated circumstances to develop which seriously prejudiced a defendant, causing him reasonably to conclude that continuation of the tainted proceeding would result in his conviction.

State v. Vandebogart, 139 N.H. 145, 160, 652 A.2d 671, 680 (1994) (citation and quotations omitted). The majority opinion omits reference to the requirement that the aggravated circumstances resulting from the prosecutor’s conduct seriously prejudice the defendant. See, e.g., id. The majority opinion also misstates the balance that this court seeks to strike when determining whether “[a] prosecutor’s impermissible comment may require a new trial.” State v. Turgeon, 137 N.H. 544, 546, 630 A.2d 276, 277 (1993). We do not balance the “prosecutor’s broad license to fashion argument [against] the need to ensure that a defendant’s rights are not compromised in the process.” Rather, as we stated in the context of a prosecutor’s impermissible comment on a defendant’s failure to testify at trial,

we look at the prosecutor’s alleged misconduct and balance several factors: the severity of the misconduct, whether it was deliberate or accidental, the context in which it occurred, the likely curative effect of the judge’s admonitions and the strength of the evidence against the defendant.

Id. at 547, 630 A.2d at 277-78 (quotation omitted); cf. Bujnowski, 130 N.H. at 5-6, 532 A.2d at 1387-88 (considering some of these factors).

In a single paragraph, the majority opinion concludes “that some of the prosecutor’s statements were, in fact, improper.” It does not clearly articulate which of the statements constituted misconduct, however, stating only that one statement was “apparently at odds with” an acknowledged principle, and that another was “disturbing”; the opinion also observes that “personal attacks directed to the ethics and integrity of opposing counsel are unquestionably inappropriate.” The opinion does not tell me, and I cannot discern from these observations, which comments constituted misconduct.

Finally, I am concerned with the majority opinion’s conclusory determination that the prosecutorial misconduct in the instant case *264was not seriously prejudicial, and thus does not necessitate a new trial. The opinion does not, in my view, make sufficiently clear the context in which the county attorney’s remarks were made.. Cf. Turgeon, 137 N.H. at 547, 630 A.2d at 278 (concluding that “defendant ‘opened the door’ to the prosecutor’s subsequent remarks”).

With the exception of the county attorney’s ill-advised decision to attempt to define cunnilingus for the jury after the court had ruled that her definition would not be included in jury instructions, each of the remarks to which defense counsel objected during closing was directly linked to a claim made by defense counsel in his own closing argument. See State v. Fowler, 132 N.H. 540, 546, 567 A.2d 557, 560 (1989). As only one example, the county attorney’s comment that she thought the evidence was not “innuendo” responded to two remarks made by defense counsel in his closing. First, defense counsel stated, “I mean, this is trial by innuendo.” Second, he urged the jurors not to “allow the prosecution to overwhelm [them] with innuendo and speculation when [the prosecution] should have [come] through that door with evidence and credibility.”

I am disappointed to see the sour rhetoric employed by each side in closing argument in this case. I am, in fact, reluctant to conclude that the defendant is not entitled to a new trial as a result of the county attorney’s improper remarks. See, e.g., Bujnowski, 130 N.H. at 5-6, 532 A.2d at 1387-88; Walton v. City of Manchester, 140 N.H. 403, 408, 666 A.2d 978, 982 (1995). Our standard of review, however, is deferential: we will not reverse “the superior court’s denial of a motion for a mistrial absent an abuse of discretion.” State v. Sanchez, 140 N.H. 162, 165, 663 A.2d 629, 631 (1995); see also Walton, 140 N.H. at 408, 666 A.2d at 981-82 (“The decision to sustain an objection, to offer a curative instruction, or to grant a mistrial in circumstances like this one generally rests in the trial court’s discretion.”). Although I do not believe that the county attorney’s remarks were unintentional, and I do believe that they constituted misconduct, I agree with the majority that — under the unique circumstances of this case — the trial court did not abuse its discretion in denying the defendant’s motions for a mistrial and to set aside the verdicts.