THE STATE OF NEW HAMPSHIRE SUPREME COURT

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1 THE STATE OF NEW HAMPSHIRE SUPREME COURT In Case No , State of New Hampshire v. Jeffrey Gray, the court on December 7, 2017, issued the following order: The defendant, Jeffrey Gray, appeals his convictions for aggravated felonious sexual assault (AFSA) and simple assault. He argues that the Trial Court (Wageling, J.) erred in denying his motion for a mistrial. He also contends that the court erred by permitting the prosecutor to ask the jurors to imagine themselves in the complainant s shoes during closing argument. Because he did not object to the cited statement at trial, he asks that we review this claim of error under our plain error rule. See Sup. Ct. R. 16-A. We affirm. The following evidence was adduced at trial. In March 2011, the victim placed an advertisement on Craigslist seeking a place to live. She stated that she was seven-and-one-half months pregnant and looking for a room to rent to share with someone who doesn t mind that a baby will be joining us in two months. The defendant responded. After two days of extended online conversations, he invited her to move in with him and purchased a plane ticket for her. She arrived on March 5 and they returned to his home. On March 8, the defendant told her that the living arrangement was not going to be successful and that he would drop her off at a hotel. He then sexually assaulted her. On March 9, the defendant drove the victim to Logan Airport, where she reported the assaults to a security guard. Both the victim and the defendant testified at trial. The victim described in graphic detail the assaults that took place between March 8 and 9. The defendant testified that, although he had intercourse with the victim several times during the time that she spent in his house, the acts were consensual. The defendant was originally charged with nine counts of AFSA, and one count each of kidnapping, sexual assault, and simple assault. During trial, the State nol-prossed one AFSA charge. At the conclusion of the State s case, the trial court dismissed two other AFSA charges. The jury subsequently found the defendant guilty of one count of AFSA and the simple assault charge and acquitted him of five AFSA charges, and the kidnapping and sexual assault charges. The defendant then filed this appeal. The defendant first argues that the trial court erred by denying his motion for a mistrial. The victim s child died at two months of age. Prior to trial, the defendant filed a motion in limine seeking to preclude any reference to the infant s death. At the hearing on the motion, the State indicated that it would

2 not try to elicit any testimony about the death and that it would instruct the victim not to mention it. The trial court stated that it did not think the death was relevant and further opined: I m not reaching the conclusion that it is so prejudicial.... I guess the bottom line is, I m not necessarily going to declare a mistrial if she talks about it. But it s not relevant, so, unless it s made relevant by the some aspect of the case as it proceeds. At trial, as the State was attempting to elicit testimony to support the kidnapping charge, the following exchange took place. See RSA 633:1 (2016); State v. Goodwin, 118 N.H. 862 (1978) (jury in kidnapping prosecution may consider mental anguish of victim to determine whether victim suffered serious bodily injury). Q [State] Ma am, if you could describe to this jury how you were feeling mentally and psychologically? A [Victim] I was depressed. Q [State] This very next day after all this had been done to you by this man? A [Victim] I was depressed. I felt disgusted. I felt violated. I felt dirty. I felt used. Disgraced. Everything in the book. Q [State] Is that related to what had happened to you? A [Victim] Yes. Q [State] And did those feelings stay with you for more than just that moment, did they stay with you for awhile? A Yes. They stayed with me until my baby died. Following a bench conference, the trial court addressed the jury: Ladies and gentlemen of the jury, testimony was just provided to you from [the victim] indicating that her baby died and I m providing you with information now that you must accept as true. There is absolutely no evidence, no suggestion, no inference that [the victim s] baby died as a result of any actions on the part of Mr. Gray. [The victim] s baby died at approximately two months of age. The baby was born and you are not to infer, in any way, that it had anything to do with the allegations that are before you as it relates to Mr. Gray. You are not to use that testimony in any way in your 2

3 deliberation in this case. That is, you re not to use the testimony of [the victim] as to the fact that her baby died in any way during your deliberation as it relates to Mr. Gray. And ladies and gentlemen, what I d ask you to do is if you can show me by a raise of hands right now whether or not you believe you can follow that instruction by me. Do you believe that you can follow the instruction that you will not use that evidence in any way during your deliberation? Let the record reflect that all of the jurors have affirmed that they can follow that direction. Thank you. See State v. Kuchman, 168 N.H. 779, 788 (2016) (jury is presumed to follow instructions). The victim subsequently testified that she remained in the hospital for 24 hours after the assault because they had to monitor the baby. The defendant moved for a mistrial, arguing that testimony that the infant had died, combined with evidence that medical professionals were concerned about the health of the fetus following the assaults, created such prejudice that no limiting instruction could unring the bell. The trial court denied the motion, stating in part: THE COURT:... I watched the jury. I watched the witness, and it s my obligation under the rules of evidence and the court rules to make a ruling on this. I -- as I told counsel during the motion in limine hearing, notwithstanding counsel -- defense counsel s argument that it would be inflammatory evidence and so outrageous for the jury to hear that the baby died, I made a finding then and I continue to make a finding that I don t agree with you. And that is under 403, I don t believe that the prejudicial nature of that fact is so abhorrent and will go to the emotion of the jury under the context of this situation; particularly, when the additional information is that Mr. Gray had nothing to do with it. And I don t think that it s prejudicial in terms of the probative prejudicial balancing, so prejudicial that it warrants a mistrial or that any further curative instruction needs to be given. The witness spoke repeatedly about her concern for her baby, and when she arrived at the hospital she continued to have concern for her baby she testified to. And I -- it s -- I think there s a logical nexus between her repeated voicing of that concern and the fact that in her perception she needed to stay at the hospital for 24 hours while they monitored her baby. 3

4 There wasn t a hearsay objection in front of me, you know, the evidence -- the statement isn t offered for the truth of the matter asserted. It s offered to show that that was her understanding of what happened there, and it goes hand in hand with her repeated voicing of concern for the welfare of her baby. It s for the jury to decide credibility, and I think it was relevant for a whole number of factors for the State to elicit testimony from this witness relative to that issue once she arrived at the hospital, not only to determine her credibility, but as well because of the elements of the offense of kidnapping. Absent an unsustainable exercise of discretion, we will affirm a trial court s decision on whether a mistrial or other remedial action is necessary. Id. at 787. A mistrial is appropriate only if the challenged statement was not merely improper, but also so prejudicial that it constituted an irreparable injustice that cannot be cured by jury instructions. Id. To warrant a mistrial, the prejudicial effects of the inadmissible evidence must be such that the trial court cannot unring a bell once it has been rung. Id. When we review a trial court s ruling on a motion for a mistrial, we recognize that the trial court is in the best position to gauge the prejudicial nature of the conduct at issue and has broad discretion to decide whether a mistrial is appropriate. Id. The defendant cites cases from other jurisdictions to support his contention that evidence of the infant s death was too prejudicial to be cured by any instruction. In each of those cases, however, the death of the infant or fetus was contemporaneous with, or immediately followed, commission of the charged offense. Moreover, whether testimony is so prejudicial that it requires a mistrial is a discretionary decision because trial courts are in the best position to assess prejudice. We decline to adopt a blanket rule that would require a mistrial whenever irrelevant testimony is adduced at trial about an infant death that occurred months after the charged offense, and was unrelated thereto. We also reject the defendant s hypothesis that testimony about the death of the infant may have produced a sympathy guilty verdict. The jury was asked to consider six indictments when it retired to deliberate. The indictments differed in describing the assaults in terms of location, date or the use or threat of use of physical force. The jury was instructed that it could accept or reject all or part of each witness s testimony and it had the opportunity to observe both the victim and the defendant as each testified with respect to each of the indictments. See State v. Carr, 167 N.H. 264 (2015). Given the specific instructions provided by the trial court in this case and its immediate polling of the jury after the victim testified about her infant s death, we conclude that the court s decision to deny the requested mistrial is sustainable. Kuchman, 168 N.H. at

5 The defendant also argues that the trial court erred by permitting the prosecutor to ask jurors in his closing argument to imagine enduring what the complainant alleged. Because the defendant did not object at trial, he asks that we consider under our plain error rule whether the trial court erred in failing to interrupt the State s closing argument. See Sup. Ct. R. 16-A. The State s closing argument covers approximately nineteen pages in the trial transcript. The defendant contends that the following four paragraphs constituted improper argument and that the trial court committed plain error by failing to take any remedial action. Now imagine -- you looked at all the evidence in the case and you re coming up with how you might testify and how you want to explain certain things away and whether or not you think you can keep that straight. Imagine, you re terrified. Terrified. Over hours..... And right after getting free, right after being discarded at the curb with you re desperate, no one s going to believe you anyway because I m an official in town and I ll just say it was your idea; just for advice, go back to your mom. And if you re thinking for a second that it s so unbelievable, how could he possibly do this and think he s going to get away with it, that s the answer to your question. The State concedes that the cited excerpt in which it asked the jurors to imagine themselves as the victim was an improper golden rule argument. See Walton v. City of Manchester, 140 N.H. 403, 406 (1995) (golden rule argument is made when counsel urges jurors to put themselves in a particular party s position). We note that, given the lack of an objection, the trial court was not asked to consider whether curative instructions or a mistrial might be required. We have previously observed that, in the absence of an objection, it is often difficult to conclude that the admission of evidence is error. State v. Rawnsley, 167 N.H. 8, 13 (2014). It is possible that defense counsel will waive an objection for strategic purposes. Id. In this case, defense counsel emphasized in his closing argument the lack of evidence of any physical injury, and argued that the victim s report of sexual assault was motivated by her anger at being rejected by the defendant after less than a week together. Defense counsel also noted that the victim placed another online posting seeking a new living arrangement only a few months after her alleged assault by the defendant. Counsel may have thought that the State s golden rule argument supported his contention that the victim s version of the events was implausible. 5

6 Although we have never addressed the propriety of a golden rule argument, we will assume without deciding that the prosecutor s cited remarks were improper. However, even if we also assume that the trial court erred in failing to sua sponte interrupt the State s closing argument, we cannot conclude that its error was plain because the court was not on notice that this argument was prohibited. See, e.g., State v. Lopez, 156 N.H. 416, 424 (2007) (at a minimum an appellate court cannot correct an error under plain error application unless error is clear under current law). The defendant s motion for leave to file a pro se brief memorandum of law is denied. Affirmed. LYNN, BASSETT, and HANTZ MARCONI, JJ., concurred. Eileen Fox, Clerk 6