Cited by

State engaged in prosecutorial misconduct by vouching for the witness’s credibility when the prosecutor stated, during closing argument, that the witness was “not lying,” see Bujnowski, 130 N.H. at 4, we note that at no time during the closing argument after the prosecutor made this statement did the defendant object on the basis that it constituted improper witness vouching, see State v. Hearns, 151 N.H. 226, 232 (2004) (stating that to preserve objection to closing argument, counsel must raise

(concluding that the prosecutor’s improper statements about the defendant’s guilt or credibility, when considered “within the context of the case,” were not “sufficiently egregious so as to require the trial court to intervene,” and that the prosecutor’s presumably improper attack on defense counsel was not prejudicial given the “overwhelming evidence of the defendant’s guilt”); State v. Hearns, 151 N.H. 226, 233-34 (2004) (concluding that although the prosecutor’s statement improperly shifted t

observation about defense counsel’s “failure to impeach [the victim] with prior inconsistent statements” “improperly shifted the burden of proof onto the defendant.” To determine whether the trial court erred in denying the defendant’s motion to strike, we consider whether the prosecutor’s statements were impermissible comments and, if so, whether the error requires reversal of the verdict.

To the extent the statements implied as much, the trial court struck the statements and immediately gave a curative instruction that “specifically identified the improper comment[s], clarified that the defendant bore no burden, and re-explained the State’s burden.” State v. Hearns, 151 N.H. 226, 234 (2004).

“In determining whether the prosecutor’s comments were improper, we face the delicate task of balancing a prosecutor’s broad license to fashion argument with the need to ensure that a defendant’s rights are not compromised.” State v. Hearns, 151 N.H. 226, 233 (2004).

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).

“Mistrial is the proper remedy only if the evidence or comment complained of was not merely improper, but also so prejudicial that it constitutes an irreparable injustice that cannot be cured by jury instructions.” State v. Hearns, 151 N.H. 226, 232 (2004).

Moreover, any possible prejudice produced by the statement was negated by the court’s curative instruction to the jury.

State v. Hearns, 151 N.H. 226, 238 (2004) (finding no violation of defendant’s constitutional due process rights where trial court conditioned the defendant’s use of alternative source DNA evidence disclosed to State beyond discovery deadlines upon defendant agreeing to a continuance).

State v. Hearns, 151 N.H. 226 (2004); State v. Paglierani, 139 N.H. 37 (1994).

State v. Hearns, 151 N.H. 226, 238 (2004); see N.H. CONST., pt.

State v. Hearns, 151 N.H. 226, 238 (2004) (noting that “[n]ot every government-imposed choice in the criminal process that discourages the exercise of constitutional rights...

“To require a person to surrender one constitutional right in order to gain the benefit of another is simply intolerable____There are some choices which the State cannot require a defendant to make, and a choice *88 between constitutional rights is one of them.” State v. Hearns, 151 N.H. 226, 238 (2004) (quotations omitted).

After the State tiled its brief, we issued an opinion holding that objections made immediately following an opponent’s closing argument are made within a reasonable time and are thus preserved for appellate review.