State of New Hampshire v. Michael Regan

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2017-0023, State of New Hampshire v. Michael
Regan, the court on October 17, 2017, issued the following
order:

Having considered the parties’ briefs and the record submitted on appeal,
we conclude that oral argument is unnecessary in this case. See Sup. Ct. R.
18(1). The defendant, Michael Regan, appeals his conviction by a jury of
burglary. See RSA 635:1 (2016). On appeal, he argues that the Superior Court
(O’Neill, J.) erred by denying his motion to set aside the verdict for insufficient
evidence that he entered the victim’s home. He also argues that the trial court
erred by failing to reverse his conviction based upon the prosecutor’s allegedly
improper closing argument. We affirm.

In considering the defendant’s challenge to the trial court’s denial of his
motion to set aside the verdict, we review the entire trial record because the
defendant chose to present a case after the trial court denied his motion to
dismiss. See State v. Littlefield, 152 N.H. 331, 350 (2005). To prevail upon his
challenge to the sufficiency of the evidence, the defendant must show that no
rational trier of fact, viewing all of the evidence and all reasonable inferences
from it in the light most favorable to the State, could have found guilt beyond a
reasonable doubt. State v. Belleville, 166 N.H. 58, 61 (2014).

When the evidence as to one or more of the elements of the charged
offense is solely circumstantial, it must exclude all reasonable conclusions
except guilt. Id. at 62. In reviewing the sufficiency of circumstantial evidence,
we do not determine whether another possible hypothesis that has been
suggested by the defendant could explain the events in an exculpatory fashion.
State v. Zubhuza, 166 N.H. 125, 130 (2014). Rather, we evaluate the evidence
in the light most favorable to the State and determine whether the alternative
hypothesis is sufficiently reasonable that a rational juror could not have found
proof of guilt beyond a reasonable doubt. Id. Moreover, when the evidence is
solely circumstantial, we still consider it in the light most favorable to the State
and examine each evidentiary item in context, not in isolation. Belleville, 166
N.H. at 62.

To convict the defendant of burglary, the State had to prove, beyond a
reasonable doubt, that he entered the victim’s home unlawfully at night with
the intent to commit a crime therein. See Zubhuza, 166 N.H. at 129-30; see
also RSA 635:1, I (“A person is guilty of burglary if he . . . enters . . . unlawfully
. . . [an] occupied structure with purpose to commit a crime therein, unless the
premises are at the time open to the public or the actor is licensed or privileged
to enter.”), II (“Burglary is a class B felony unless it is perpetrated in the
dwelling of another at night.”), III (“‘Night’ shall mean the period between 30
minutes past sunset and 30 minutes before sunrise.”). The defendant argues
that the evidence was insufficient to prove, beyond a reasonable doubt, that he
entered the victim’s home. We disagree.

Viewing the evidence and all reasonable inferences therefrom in the light
most favorable to the State, we conclude that a rational trier of fact could have
found, beyond a reasonable doubt, that the defendant entered the victim’s
home. The victim testified that, on the night of the burglary, she saw two men
in her home, rifling through her things. The men had entered her home by
breaking the window in the home’s downstairs bathroom. Responding officers
found a footprint with the same “zigzag” pattern as appeared on the soles of the
defendant’s sneakers “just outside” the broken window. They also found one of
the defendant’s sneakers and his backpack right next to a wooded area, which
was approximately 200-300 feet from the victim’s residence. Police found the
defendant in the wooded area. He was missing a sneaker. Kevin Gobeil, who
later pleaded guilty to the burglary, was in the same wooded area. From this
evidence, viewed in the light most favorable to the State, a rational trier of fact
could have reasonably inferred that the defendant entered the victim’s home
through the broken window below which his footprint was found.

The defendant argues that the evidence was insufficient to exclude the
reasonable, alternative hypothesis that he was an innocent bystander to the
burglary committed by Gobeil and a man whom the defendant identified as
“Marcus.” Viewing the evidence in the light most favorable to the State, we
conclude that a rational trier of fact could have found that this alternative
hypothesis was not reasonable. See Zubhuza, 166 N.H. at 131.

The defendant next asserts that the trial court erred by not reversing his
conviction based upon the prosecutor’s allegedly improper closing argument.
During closing argument, the prosecutor said the following to the jury: “Now,
the Defendant testified in this case. He shared a story of him, and Mr. Gobeil,
and Marcus. Now, if you were surprised to all of a sudden hear about this man
named Marcus, I don’t blame you. I’d never heard of him before that moment,
either.” Defense counsel objected to the statement, arguing that it intimated
that the defendant was required “to come forward with some story, which he
has no obligation” to do. Defense counsel further stated that the defendant
“doesn’t have to share anything at any point. And constitutionally, he doesn’t
have to share, so — .”

The trial court overruled the objection, and the prosecutor continued:
“So this man, Marcus — his name never came up in the officer[s’] investigation
that they conducted in this case.” Subsequently, the prosecutor told the jury,
“I want to remind you — so Defense counsel correctly stated it’s my job to
prove this case beyond a reasonable doubt.”

2
 Thereafter, the trial court instructed the jury:

The Defendant enters this Court as an innocent person and
you must consider him to be an innocent person until the State
convinces you beyond a reasonable doubt that he is guilty of every
element of the alleged offense. If after all the evidence and
arguments you have a reasonable doubt as to Defendant’s having
committed any one or more of the elements of the offense, then you
must find him not guilty.

....

If you have a reasonable doubt as to whether the State has
proved any one or more of the elements of the crime charged, you
must find the Defendant not guilty.

The trial court also instructed the jury that the arguments by the lawyers in
the case “are not evidence.”

During their deliberations, the jury submitted the following question to
the court: “In New Hampshire law, what legal obligation is the defense team
under in disclosing relevant facts, i.e., Marcus at the last minute?” After
consulting with counsel, the trial court responded, “[T]he jury is to utilize the
law as provided by the court in deliberations. As instructed, the burden is on
the State to prove the defendant guilty beyond a reasonable doubt. The
Defendant has no legal obligation.” Defense counsel indicated that he
approved of the court’s answer.

After the jury convicted him, the defendant moved to set aside the verdict
and for a new trial based upon the prosecutor’s allegedly improper “burden-
shifting” statement. The trial court denied the motion, stating that it did “not
find any evidence that the burden of proof was improperly shifted to the
defendant.” The court concluded that in light of its jury instructions and its
response to the jury’s question, which the court formulated “[w]ith the review
and approval of counsel,” the jury “was clearly informed that the burden of
proof rested solely on the State.”

On appeal, the defendant argues that the prosecutor’s comment
“improperly shifted the burden of proof” and “essentially implied that [his] story
was not believable because it only came to light at trial.” He contends that the
trial court erred by failing to issue a curative instruction after the prosecutor’s
closing and that “[b]ecause the trial court did not properly instruct the jury,
[he] was penalized for exercising his constitutional right to be free from self-
incrimination thus affecting the fundamental fairness of the proceeding.” We
interpret the defendant’s argument to be that the trial court’s failure to issue a
curative instruction following the prosecutor’s closing argument and,
subsequently, to grant the defendant’s motion to set aside the verdict and order
3
a new trial violated the due process guarantees of the State and Federal
Constitutions. See N.H. CONST. pt. I, art. 15; U.S. CONST. amends. V, XIV.

We first address the defendant’s argument under the State Constitution
and rely upon federal law only to aid our analysis. State v. Ball, 124 N.H. 226,
231-33 (1983). “Under New Hampshire law, a prosecutor has great latitude in
closing argument to both summarize and discuss the evidence presented to the
jury and to urge the jury to draw inferences of guilt from the evidence.” State
v. Addison, 165 N.H. 381, 547 (2013) (quotation and brackets omitted). We
first must determine whether the challenged remarks amounted to improper
advocacy. Id. If the statements were improper, we then determine whether the
error requires reversal of the verdict. Id. The latter determination involves
balancing three factors: (1) whether the prosecutor’s misconduct was isolated
and/or 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. Id. at 547-48.

To assess whether the State advanced an improper argument, we
consider the challenged remarks in the context of the case. Id. at 548. Here,
viewed in context, we conclude that the prosecutor’s challenged statement
constitutes “a fair response to a position advanced by defense counsel.” Id.
The prosecutor’s statement was offered in response to the suggestion by
defense counsel that the State neglected to pursue important investigative
avenues. See State v. Fowler, 132 N.H. 540, 546 (1989). During his closing,
defense counsel stated:

[I]t seems to me that, if they had heard what [the victim] said
about the two men who were in her house, they would have looked
a little further, you know. Police do a good job most of the time
and I don’t have any problem with that, you know.

I mean, that’s good for all of us. But it seems to me that,
based on what they learned from [the victim], they might have kept
looking.

So they found two guys irrespective of what [the victim’s]
representations as to what the two guys looked like. They found
two guys and were done. Right?

....

It’s kind of hard to figure out what they were thinking. If
they had paid attention to her description, why would they think
that they got two guys? . . . They didn’t finish the job.

And that’s no recrimination against them. That’s just the
reality. So none of these officers kept looking.
4
Because defense counsel’s closing argument suggested that the police
investigating the case should have discovered that someone other than Gobeil
and the defendant were involved in the burglary, it was a fair response for the
State to point out in its closing that, before the defendant testified, the police
had no basis for believing that a person named Marcus played any role in it.
See State v. Cote, 143 N.H. 368, 375 (1999) (challenged prosecutorial remarks
were akin to a legal argument and were a permissible response to the defense
counsel’s closing argument); State v. Boetti, 142 N.H. 255, 262 (1997) (trial
court has latitude to permit counsel to respond to opposing counsel’s closing
argument); see also United States v. Robinson, 485 U.S. 25, 31-33 (1988) (no
constitutional violation where prosecutor’s reference in closing argument to
defendant’s opportunity to testify is fair response to claim made by defendant
or his counsel).

To the extent that the defendant argues that his state and federal
constitutional rights to be free from compelled self-incrimination were violated
in this case, we disagree. Such rights “were not implicated in this case
because the defendant chose to testify in his own defense.” United States v.
Cabrera, 201 F.3d 1243, 1250 (9th Cir. 2000). Because the defendant testified
in his own defense, the prosecutor was entitled to express doubt about his
veracity. See id. Doing so does not shift the burden of proof or persuasion. Id.

Thus, we conclude that the defendant has failed to establish that the
prosecutor’s statement during closing argument amounted to improper
advocacy in violation of the defendant’s due process rights under the State
Constitution. See Addison, 165 N.H. at 563; see also N.H. CONST. pt. I, art.
15. The defendant makes identical arguments under the Federal Due Process
Clause, without engaging in a separate analysis. See Addison, 165 N.H. at
563; see also U.S. CONST. amends. V, XIV. Nor does he argue that the due
process protections under the State and Federal Constitutions differ in this
context. We conclude that the Federal Constitution affords the defendant no
greater protection than does the State Constitution under these circumstances,
and, accordingly, we reach the same conclusion under the Federal
Constitution. See Addison, 165 N.H. at 563.

Affirmed.

Dalianis, C.J., and Hicks, Lynn, Bassett, and Hantz Marconi, JJ.,
concurred.

Eileen Fox,
Clerk

5