State v. Drown

170 N.H. 788

187 A.3d 820

The STATE of New Hampshire

v.Kevin DROWN

No. 2017–0030

Supreme Court of New Hampshire.

Argued: December 6, 2017

Opinion Issued: June 5, 2018

Gordon J. MacDonald, attorney general (Sean R. Locke, assistant attorney general, on the brief and orally), for the State.

Thomas Barnard, senior assistant appellate defender, of Concord, on the brief and orally, for the defendant.

HICKS, J.

Following a jury trial, the defendant, Kevin Drown, was convicted on three counts of aggravated felonious sexual assault, see RSA 632–A:2 (1988), and one count of felonious sexual assault, see RSA 632–A:3 (1988). On appeal, he argues that the Trial Court (Bornstein, J.) erred by permitting the prosecutor to: (1) argue that it was difficult for the victim to testify, and because she did so, she must be credible; (2) ask the defendant for his opinion about the victim's credibility; and (3) argue that the defendant's opinions about the victim's credibility were inculpatory and contradicted his counsel's argument. He requests that, to the extent that we conclude that his arguments have not been preserved for appellate review, we consider them under our plain error rule. See Sup. Ct. R. 16–A. We affirm.

The jury heard the following evidence. The defendant was charged with sexually assaulting the victim on multiple occasions between August 1988 and August 1990 when she was under the age of thirteen. At the time of the alleged assaults, the defendant's family and the victim's family lived in the same apartment building.

Detective Fiske testified that she contacted the victim in 2014 after learning information that led her to suspect that the victim might have been sexually assaulted by the defendant. When asked, the victim confirmed Fiske's suspicion. Fiske asked her whether she would be willing to be interviewed. Although she did not initially agree to an interview, the victim eventually did when Fiske telephoned again a week later. Following Fiske's testimony, the trial judge instructed the jury that her testimony could be considered "only for the purpose of providing background of the investigation. You may consider the fact that the conversation occurred, but the content of that conversation should not be considered by you for the truth of the words spoken during the conversation."

The victim was the next witness. She testified that, when she was seven years old, the defendant engaged in an escalating series of sexual assaults against her over the course of several visits to his apartment, culminating with him inserting the handle of a hairbrush into her vagina on two separate occasions. Each assault occurred when they were alone inside one of the apartment's bedrooms. The victim notified her mother of the assaults at one point, but her mother took no action and told her not to tell anyone.

A few months after the defendant assaulted her for the final time, the victim and her family moved to a new residence. When she was a teenager, the victim told her sister that she had been sexually assaulted. Several years later, she also disclosed to her future spouse that she had been sexually assaulted by the defendant. The victim's sister and husband also testified at trial. They each confirmed that the victim had disclosed to them years earlier that she had been sexually assaulted.

After the State rested, the defendant took the stand and denied that he had sexually assaulted the victim. He explained that he had asked to meet with Lieutenant Mitchell, one of the investigating officers, "[b]ecause I heard these allegations through members of my family." Mitchell conducted two interviews with the defendant approximately one month apart; both interviews were recorded. The State played redacted video recordings of the interviews at trial and provided the jury with the associated transcript. During both interviews, the defendant denied sexually assaulting the victim and asserted that he did not know why she would make these allegations against him.

The jury found the defendant guilty on all four sexual assault charges. This appeal followed.

The defendant first argues that several statements made by the prosecutor during her closing argument were not supported by the record. He identifies the following statements: (1) that the victim "didn't want to come into this courtroom and tell strangers about" the assaults; (2) that it was "really, really, hard [for the victim] to come and tell 14 strangers about what [the defendant] did to her"; (3) that the victim knew prior to trial that "it was going to be really, really hard"; (4) that the victim was "embarrass[ed]" about testifying and that she "didn't want to say it"; and (5) that, as a result of the trial, the victim's husband and her sister learned the details of the assaults.

Having reviewed the record of the State's closing argument, we have found no objection made by defense counsel that can be construed to alert the trial court that the cited statements were allegedly not supported by the record. See, e.g., State v. Whittaker, 158 N.H. 762, 767, 973 A.2d 299 (2009) (concluding that alternative arguments supporting claim of error are not preserved if not first raised in trial court). Accordingly, we consider this argument under our plain error rule. See, e.g., State v. Pinault, 168 N.H. 28, 33, 120 A.3d 913 (2015) (failure to raise claim of error in timely fashion does not preclude all appellate review, but rather confines review to plain error).

The plain error rule allows us to exercise our discretion to correct errors not raised before the trial court. State v. Euliano, 161 N.H. 601, 605, 20 A.3d 223 (2011) ; see Sup. Ct. R. 16–A. The rule, however, should be used sparingly, its use limited to those circumstances in which a miscarriage of justice would otherwise result. State v. Guay, 164 N.H. 696, 704, 62 A.3d 831 (2013). For us to find plain error: (1) there must be an error; (2) the error must be plain; (3) the error must affect substantial rights; and (4) the error must seriously affect the fairness, integrity or public reputation of judicial proceedings. State v. Pennock, 168 N.H. 294, 310, 127 A.3d 672 (2015). For the following reasons, we conclude that the defendant has failed to establish that the challenged statements constituted error.

A prosecutor may draw reasonable inferences from the evidence presented and has great latitude in closing argument to both summarize and discuss the evidence and to urge the jury to draw inferences of guilt from the evidence. State v. Cable, 168 N.H. 673, 688, 136 A.3d 919 (2016). The victim testified that, although she had told her husband and sister about the assaults years earlier, she had not disclosed the details. She also testified that, until she was contacted by Fiske, she had not disclosed the details to anyone and had not intended to report them to the police: "I was trying to be happy and I just put it away." She testified that she felt sick when first contacted by Fiske, and that she was crying and emotional during her subsequent interview. At one point during the victim's testimony, the prosecutor asked permission from the court to approach and told the victim: "There's tissues up there if you need a break or some tissues."

Based upon the evidence in the record, we conclude that the prosecutor's remarks were not improper. Rather, the prosecutor was drawing inferences from the evidence presented and the demeanor of the victim during trial, which would have been readily apparent to the jury. See id. Accordingly, the defendant has failed to establish that the cited statements were not supported by the evidence.

The defendant also argues that the prosecutor's argument was improper because, according to the defendant, the prosecutor argued that the victim was credible "because she chose to testify despite the difficulty and embarrassment of doing so." The State contends that the defendant did not make this specific argument before the trial court and has, therefore, failed to preserve it.

During her closing, the prosecutor argued: "Why would [the victim] come here and tell you that if it wasn't true?" The defendant objected:

I'm going to object to the argument that she must be telling the truth otherwise why would she have made the decision to testify and prosecute this case? I think that that is an inappropriate argument to make to say that she must be truthful because she's made the decision to do these things and I rely on the case of Commonwealth versus [Dirgo]. It's a Massachusetts case. It was decided in June of this year.

See Commonwealth v. Dirgo, 474 Mass. 1012, 52 N.E.3d 160 (2016). When the trial court asked for clarification, defense counsel stated: "[T]he prosecutor repeatedly argued that the alleged victim must be telling the truth because she would not have otherwise chosen to prosecute, testify, and be cross-examined. [The Dirgo Court] found that such statements were inappropriate." The trial court overruled the objection, stating:

At least, the way it's worded, I'm going to overrule the objection. It's posed in the form of a question. It's not an affirmative—a statement of opinion by the prosecutor as to the credibility of the witness or that she said telling the truth. It's not an expression of a personal opinion. It's posed as the form of a rhetorical question for the jury to draw their own inferences; saying that it does—I mean, ultimately, it's the alleged victim's credibility is the center point of this case.

The Defense is arguing that she's not credible and that's a lie. The State can carefully, albeit, but at least so far it isn't—the State can address that contention and ask the jury to conclude and make rational inferences about whether the alleged victim's testimony is truthful based on the evidence presented and the circumstances presented overall. So the—at least the objection to this one statement is overruled.

Although the defendant provides additional support on appeal for his argument, the basis for...