State of New Hampshire v. Donald J. Freese

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2013-0257, State of New Hampshire v. Donald
J. Freese, the court on August 12, 2015, 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, Donald Freese, appeals his convictions on one count of
accomplice to simple assault, see RSA 631:2-a (2007); RSA 626:8 (2007), and
one count of criminal threatening with a deadly weapon, see RSA 631:4 (2007);
RSA 625:11 (2007). Because the jury found that the defendant was motivated
to commit the crime of simple assault because of hostility toward the victim’s
race, the charge was subject to enhanced penalties. See RSA 651:6, I(f) (2007).
The defendant argues that the Superior Court (Smukler, J.) erred in: (1)
denying his motions for a mistrial; and (2) admitting eyewitness testimony that
the defendant’s conduct was motivated by racism.

The defendant first argues that the trial court erred in denying his
motions for a mistrial. “A mistrial should be granted only with the greatest
caution, under urgent circumstances, and for very plain and obvious causes.”
Petition of Brosseau, 146 N.H. 339, 341 (2001) (quotation omitted). “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). “The trial court is in the best position to determine what
remedy will adequately correct the prejudice created by a prosecutor’s remarks,
and absent an unsustainable exercise of discretion, we will not overturn its
decision.” Id.

The defendant first moved for a mistrial at the conclusion of the State’s
opening statement. “The standard for reversible error in a prosecutor’s opening
statement is that the prosecutor must be shown to have acted in bad faith, the
opening statement must be completely unsupported by the evidence, and the
defendant must be prejudiced thereby.” State v. Gaudet, 166 N.H. 390, 397-98
(2014). The trial occurred the week before the Martin Luther King, Jr., holiday,
and the prosecutor started his opening statement by stating:

Next Monday you do not report for jury duty. You report on
Tuesday instead. You don’t report on Monday because it’s a
 holiday. It’s a holiday in which we honor a man who once had a
dream. Almost 50 years ago Martin Luther King stood in front of
the Lincoln Memorial and spoke of his dream of the world without
racial prejudice, without racial bias, without racial hatred. Dr.
King would be sad if he were alive and here today. Because what
I’m going to have to talk to you about and what the witnesses are
going to be telling you about is racial hatred, bias, and animus at
its most ugly form.

The prosecutor returned to this theme at the end of his opening statement by
stating:

Fifty years ago Dr. King talked about his dream and he would be
sad if he were here today to know that blind hate still exists based
on the color of a person’s skin. Perhaps we can’t change that.

Immediately after the prosecutor’s opening statement, the defense moved for a
mistrial, stating:

I won’t say I’m speechless, but to the extent that [the prosecutor]
was doing his best to whip up inflammatory feelings toward my
client, I’m going to ask for a mistrial at this point. I don’t think
this jury’s going to be able to make a decision after what the State
has presented here.

The trial court denied the request for a mistrial, but agreed that the remarks
were improper, noting that, “It is beyond the scope of an opening to talk about
the holiday that is coming up.” The court gave the following curative
instruction:

Now, members of the jury, before you hear the opening statement
of the Defense, I just want to instruct you that of course your task,
as I’ve told you before, is to determine based on the evidence in the
courtroom and the reasonable inferences you can draw from that
evidence whether the State has or has not met its burden of
proving the elements of the crime charged. How somebody, even
such as Martin Luther King, would or would not feel about a
particular case has no bearing on whether or not the State can
meet its burden with respect to the elements.

We conclude that the prosecutor’s opening statement was improper because it
was plainly argumentative. See 6 W. LaFave et al., Criminal Procedure,
§ 24.7(a), at 453 (3d ed. 2007) (noting that opening statements “are not
supposed to be argumentative”). However, there is no evidence that the
prosecutor acted in bad faith. Moreover, we conclude that any possible
prejudice was negated by the court’s curative instruction. The court’s

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instruction directly followed the prosecutor’s opening statement, specifically
identified the improper comment, instructed the jury not to consider how
Martin Luther King would feel about the case, and reminded the jury that the
State bore the burden of proving the elements of the crime charged. See
Hearns, 151 N.H. at 234 (discussing effectiveness of curative instruction). We
presume that the jurors followed the trial court’s instructions. See State v.
Boetti, 142 N.H. 255, 259 (1997). Accordingly, we conclude that the trial court
did not unsustainably exercise its discretion when it denied the defendant’s
motion for a mistrial based upon the challenged comments in the prosecutor’s
opening statement. See Hearns, 151 N.H. at 232.

We next address the defendant’s motion for mistrial based upon the
prosecutor’s closing argument. “In examining claims of prosecutorial
misconduct during closing argument, 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 in the process.” State v. Bisbee, 165
N.H. 61, 68 (2013). In his closing argument, the prosecutor stated:

Ladies and gentlemen, the facts and circumstances of right now is
that this is New Hampshire and that this is 2013. This is not 1963
in Alabama.

The prosecutor also stated:

You know, the fact of the matter is, you heard from multiple eye-
witnesses who told you about a terrible thing, not something that
we would expect to happen in this day and age, but it did.

The prosecutor added:

You could talk at great length about just what a terrible thing this
was, and the shocking fact that something like this could happen
in our State, in this day and age. It’s a sad thing. It’s a tragic
thing. But the fact of the matter is that it happened.

The prosecutor concluded his closing argument as follows:

I can’t ask you to cure hate. I can’t do it. It’s not within our
power. I can’t do anything about that. You may want to. But
what you can do is something about what he did that day, and you
can hold him accountable for what he did. You can’t fix all the
injustices of the world, you can’t make guys like [the defendant]
think differently. You just can’t do it.

What you can tell him, though, is he was wrong for what he did.
And what you can tell him is that he’s guilty, and I would ask you

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 to do just that, because that’s the right thing to do, and that’s the
just thing to do. And it’s just as just and right today as it was 50
years ago or 100 years ago. Find him guilty, please.

Immediately following the prosecutor’s closing argument, the defense requested
a mistrial, stating:

I’m going to ask for a mistrial again. What we’ve got here is the
State arguing, I would say through the back door, with back-
handed commentary that well, you can’t make up for all the things
– bad things that have been done to . . . black people over the
centuries, but let[’s] do it to this guy.

The trial court did not find the prosecutor’s comments improper or declare a
mistrial. Instead, it added the following curative instruction to its standard
instruction:

You are not here to right all the wrongs in society, you are here to
decide whether the State has proved – whether or not the State has
proved the elements of the crime charged beyond a reasonable
doubt.

Assuming, without deciding, that the prosecutor’s comments were improper,
we conclude that the court’s curative instruction negated any possible
prejudice. See Gaudet, 166 N.H. at 404. First, we note that it was not
improper for the prosecutor to comment on evidence that the defendant’s
conduct was motivated by racial hostility, because that was one of the issues
for the jury’s determination. See RSA 651:6, I(f). Moreover, the prosecutor’s
closing argument was responsive to the defense counsel’s closing argument
suggesting that although the defendant used a racial epithet to refer to the
victim, the defendant’s conduct was “more about testosterone, than it was
about race.” See State v. Demond-Surace, 162 N.H. 17, 24 (2011) (prosecutor
may use closing argument to respond to defense counsel’s closing argument).
Accordingly, we reject the defendant’s assertion that we should reverse the
conviction to deter future prosecutorial misconduct. Nevertheless, to the
extent that the prosecutor improperly suggested that the jurors should
consider issues beyond the context of the case, the court’s curative instruction
reminded them that they were “not here to right all the wrongs in society” and
that their task was to decide whether the State had proven “the elements of the
crime charged beyond a reasonable doubt.” Accordingly, we conclude that the
trial court did not unsustainably exercise its discretion when it denied the
defendant’s motion for a mistrial after the prosecutor’s closing argument. See
Hearns, 151 N.H. at 232.

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 The defendant next argues that the trial court erred in admitting
eyewitness testimony that the defendant’s conduct was motivated by racism.
Over the defendant’s objection, the prosecutor asked an eyewitness: “What
stands out the most in your mind about what you saw that afternoon?” The
witness answered, “The sheer hate that was involved with the crime. It was
extremely racist, it was derogatory.” The defendant again objected, and the
court again overruled the objection, allowing the witness to continue:

Again, to me it was extremely racist, derogatory, it’s not a place
where I want my life to go. And the slashing at the gentleman’s
face and throat and saying [“]I’m going to kill you n-----,[”] it was
enough to make my stomach crawl.

The defendant argues the witness’s personal opinion as to whether the
defendant’s conduct was motivated by racism was irrelevant and that his
testimony was prejudicial because it “invited the jury to abdicate its role” in
determining whether the State had met its burden of proof on that issue.
The State counters that the testimony was admissible, and that even if the
court erred in admitting it, the error was harmless beyond a reasonable doubt.
We need not determine whether the trial court erred in admitting the witness’s
testimony because, even assuming error, we conclude that the error was
harmless beyond a reasonable doubt.

“The State bears the burden of proving that an error is harmless, a
burden satisfied by proof, beyond a reasonable doubt, that the erroneously
admitted evidence did not affect the verdict.” State v. Sprague, 166 N.H. 29, 38
(2014). “In deciding whether the State has met its burden, we consider the
strength of the alternative evidence presented at trial.” Id. “We also consider
the character of the inadmissible evidence, including whether the evidence was
cumulative or inconsequential in relation to the strength of the State’s
evidence.” Id.

Here, the State’s alternative evidence of the defendant’s guilt was
overwhelming. Three eyewitnesses to the event testified for the State in
addition to the victim, and their testimony was consistent in all material
respects. The witnesses testified that the defendant and his companions
repeatedly shouted “n-----” or “f---ing n-----” at the victim, that the defendant
and one of his male companions emerged from their vehicle to assault the
victim, and that the defendant obtained a knife and started swinging it at the
victim’s head and neck area. The defense did not dispute that the fight
occurred or that the racial epithets were shouted. Instead, the defense was
that the victim was the instigator and that the defendant acted in self-defense
or defense of another.

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 In light of the State’s alternative evidence of the defendant’s guilt, we
conclude, beyond a reasonable doubt, that the challenged testimony did not
affect the jury’s verdict. See Sprague, 166 N.H. at 39. We therefore hold that,
even if there was error, the admission of the testimony was harmless. See id.

Affirmed.

Dalianis, C.J., and Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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