State of New Hampshire v. Matthew Guilmette ( 2016 )


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  •                     THE STATE OF NEW HAMPSHIRE
    SUPREME COURT
    In Case No. 2016-0161, State of New Hampshire v. Matthew
    Guilmette, the court on October 17, 2016, issued the following
    order:
    Having considered the briefs and record submitted on appeal, we conclude
    that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1). We affirm.
    The defendant, Matthew Guilmette, appeals his conviction, following a jury
    trial in Superior Court (Wageling, J.), on charges of second degree assault, see
    RSA 631:2, I (2016), simple assault, see RSA 631:2-a (2016), felony criminal
    mischief, see RSA 634:2, I, II (2016), and criminal threatening, see RSA 631:4,
    I(c) (2016). He contends that: (1) the trial court erred, after allowing him to
    impeach a witness with four prior felony convictions, see N.H. R. Ev. 609, by
    precluding him from naming one of the felonies to the jury; and (2) the State
    engaged in prosecutorial misconduct in its closing argument and, thus, violated
    his right to due process under the New Hampshire Constitution.
    We first address whether the trial court erred by precluding the defendant
    from naming one of the felonies of which the witness had been convicted. We
    assume, without deciding, that this argument is preserved. We review a trial
    court’s decision to admit evidence of prior convictions under an unsustainable
    exercise of discretion standard. State v. Mayo, 
    167 N.H. 443
    , 457 (2015). To
    show an unsustainable exercise of discretion, the defendant must demonstrate
    that the court’s ruling was clearly untenable or unreasonable to the prejudice of
    his case. 
    Id.
    New Hampshire Rule of Evidence 609 provides, in pertinent part, that
    evidence that a witness, who is not the accused, has been convicted of a crime
    shall be admitted, subject to Rule 403, to impeach the witness’s credibility if: (1)
    the crime was punishable by more than one year’s incarceration; and (2) the
    witness was convicted or released from incarceration within ten years of
    testifying. N.H. R. Ev. 609(a)(1) & (b).
    In this case, the trial court allowed the defendant, over the State’s
    objection, to impeach the witness with his felony convictions for breaking and
    entering with intent to commit a felony, larceny, destruction of property in excess
    of $250, and knowingly receiving stolen property in excess of $250. The State
    represents, and the defendant does not contest, that the witness was released
    from incarceration approximately nine years and eleven months prior to his
    testimony. The witness testified that he had not been convicted of anything
    similar since his release.
    In addition to allowing the defendant to impeach the witness with all four
    felony convictions, the trial court allowed him to name three of the convictions,
    precluding him only from “referenc[ing] the name of or subject or details of the
    breaking and entering with intent to commit a felony.” We assume that, in
    reaching this compromise, the trial court weighed the probative value of naming
    this crime against the potential prejudice that might arise from its similarity to
    the defendant’s accusation that the witness broke into his abode to rob him. See
    N.H. R. Ev. 403; State v. Palermo, 
    168 N.H. 387
    , 394 (2015) (stating that we
    assume trial court made subsidiary findings necessary to support its general
    ruling).
    We conclude that the defendant has failed to establish that he was
    prejudiced by this ruling. See State v. Blackmer, 
    149 N.H. 47
    , 49 (2003). In his
    closing, the defendant emphasized that the witness was “a convicted felon” and
    urged the jury to “use that information to assess his credibility.” He does not
    explain how being prevented from naming the witness’s fourth felony affected his
    case. Accordingly, we cannot conclude that the trial court unsustainably
    exercised its discretion. See Mayo, 
    167 N.H. at 457
    .
    We next address whether the State’s closing argument entitled the
    defendant to a mistrial. On appeal, the defendant complains of three statements
    in the State’s closing argument. However, at trial, he did not object to two of the
    statements. Thus, his arguments regarding these statements are not preserved
    for our review. See State v. Hearns, 
    151 N.H. 226
    , 232 (2004) (stating objection
    to closing argument not preserved unless raised when alleged improper
    statement is made, or within reasonable time thereafter). To the extent that the
    defendant argues that the State’s closing violated his right to due process under
    Part I, Article 15 of the New Hampshire Constitution, this argument is not
    preserved because the record does not reflect that he made it to the trial court.
    See State v. Kuchman, 
    168 N.H. 779
    , 794 (2016). Furthermore, the record does
    not reflect that the defendant requested that the trial court grant a mistrial with
    respect to the statement to which he objected. Thus, his argument that the trial
    court erred by not declaring a mistrial as to that statement is not preserved. See
    State v. Russo, 
    140 N.H. 751
    , 753 (1996) (stating general objection not sufficient
    to preserve claim of mistrial for review).
    The prosecutor’s statement to which the defendant did object was that “[i]f
    the incident had occurred the way [the defendant] told you it occurred, nobody
    would be here right now because the State believes that people should be able to
    use self-defense if they are being attacked.” Even if the defendant had requested,
    and been denied, a mistrial as to this statement, we would have to determine
    whether the prosecutor’s argument requires reversal of the verdict. In doing so,
    we balance the following factors: (1) whether the prosecutor’s improper
    2
    argument was deliberate; (2) whether the trial court gave a strong and explicit
    cautionary instruction; and (3) whether any prejudice surviving the court’s
    instruction likely could have affected the outcome of the case. State v. Demond-
    Surace, 
    162 N.H. 17
    , 24 (2011). The trial court is in the best position to gauge
    any prejudicial effect that the prosecutor’s conduct had on the jury and has
    broad discretion to decide whether a mistrial is warranted. 
    Id. at 23
    .
    When the defendant objected, the trial court immediately instructed the
    jury to disregard the prosecutor’s statement. The defendant concedes that this
    instruction was “prompt and effective.” See State v. Cooper, 
    168 N.H. 161
    , 171
    (2015) (stating juries are presumed to follow instructions). Furthermore, the
    defendant did not object to the trial court’s curative instruction. See State v.
    Boetti, 
    142 N.H. 255
    , 258 (1997) (stating defendant waived any objection to
    curative instruction because he did not timely object to its content).
    Moreover, we have reviewed the record and conclude that the defendant
    cannot show that any prejudice surviving the court’s instruction likely could have
    affected the outcome of the case. The witness and the other victim testified
    consistently and in detail. Their account was corroborated by the defendant’s
    sister, who testified under subpoena. It was also supported by a police officer
    who arrived at the scene, an auto repair shop owner who described the damage
    to the witness’s car, and an emergency department nurse who treated the
    witness’s injury. Only the defendant testified to a different story. Accordingly,
    we cannot conclude that the trial court unsustainably exercised its discretion by
    failing to declare a mistrial sua sponte. See Demond-Surace, 
    162 N.H. at 23-24
    .
    Affirmed.
    Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.
    Eileen Fox,
    Clerk
    3
    

Document Info

Docket Number: 2016-0161

Filed Date: 10/17/2016

Precedential Status: Non-Precedential

Modified Date: 11/12/2024