State of New Hampshire v. Daniel Turcotte

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough-northern judicial district
No. 2017-0336
No. 2019-0071

THE STATE OF NEW HAMPSHIRE

v.

DANIEL TURCOTTE

Argued: October 23, 2019
Opinion Issued: July 1, 2020

Gordon J. MacDonald, attorney general (Elizabeth A. Lahey, assistant
attorney general, on the brief, and Bryan J. Townsend, II, assistant attorney
general, orally), for the State.

Stephanie Hausman, deputy chief appellate defender, of Concord, on the
brief and orally, for the defendant.

HANTZ MARCONI, J. The defendant, Daniel Turcotte, was convicted
following a jury trial in Superior Court (Kissinger, J.) on four counts of
aggravated felonious sexual assault and five counts of felonious sexual assault,
all involving a minor. See RSA 632-A:2, I (2007) (amended 2012 & 2018); RSA
632-A:3, II, III (2007 & Supp. 2012). The defendant directly appeals his
convictions, arguing that the trial court erred by denying his motions for a
mistrial based on (1) testimony about similar, uncharged acts and (2)
prosecutorial misconduct during closing arguments. In a discretionary appeal
which we have joined with his direct appeal, the defendant asserts that the
Superior Court (Abramson, J.) erred by denying his motion for a new trial
based on the trial court’s closure of the courtroom during closing arguments.
We affirm.

I. Motions for Mistrial

We first address the defendant’s arguments that the trial court erred in
denying his motions for a mistrial. A mistrial is appropriate when the
circumstances indicate that justice may not be done if the trial continues to a
verdict. State v. Wells, 166 N.H. 73, 76 (2014). To justify a mistrial, the
conduct must be more than merely prejudicial; it must constitute an
irreparable injustice that cannot be cured by jury instructions. Id.; see State v.
Ayotte, 146 N.H. 544, 548 (2001) (explaining that “[t]he prejudicial effects of the
inadmissible evidence must be such that the trial court cannot unring a bell
once it has been rung” (quotation omitted)). When reviewing 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. Wells, 166 N.H. at 76-
77. We will not overturn the trial court’s decision on whether a mistrial or
other remedial action is necessary absent an unsustainable exercise of
discretion. Id. at 77.

A. First Motion for Mistrial

The defendant first argues that the trial court erred by denying his
motion for a mistrial based on testimony of a detective who investigated the
underlying charges against the defendant. At trial, the court ruled that the
defendant’s discussion with the detective about an incident involving the victim
that occurred outside of Hillsborough County — the location of the underlying
charges — was not admissible because it constituted “prior bad acts conduct.”
In accordance with the court’s ruling, the State instructed the detective that
she could not discuss a specific portion of her report about a prior bad act that
took place in Salem.

The detective testified on direct examination that in her first interview
with the defendant he admitted that he touched the victim’s breasts and
vagina, licked her vagina on more than one occasion, engaged in fellatio on
more than one occasion, and had intercourse with her. The detective testified
that in her second interview with the defendant he related specific information
about acts involving the victim in Hillsborough including fellatio, and that the
defendant stated that “during this time, he was giving her oral sex as well.”
She testified that the defendant also described having intercourse with the
victim in Manchester.

On cross-examination, defense counsel sought to clarify whether the
detective said that the defendant described performing oral sex on the victim in

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Hillsborough. The detective testified that the defendant “said he performed oral
sex . . . he was vague on different accounts, but . . . I believe he said it was
during that time as well. . . . I don’t know specific dates, or times, or incidents,
but in general --.” Defense counsel asked, “So it wasn’t in Hillsborough?” and
the detective answered, “I believe it was in Hillsborough.” Defense counsel
then challenged that the detective’s report did not include the defendant’s
admission that he performed oral sex on the victim in Hillsborough. Defense
counsel asked, “You don’t report that [the defendant] said he had performed,
himself, cunnilingus on [the victim] in Hillsborough?” The detective replied, “It
was discussed and I believe I’m not supposed to mention other locations? So I
don’t know --.” Defense counsel asked to approach the bench, and before
counsel did, the detective added, “It’s kind of hard to address that without
saying that.” The trial court immediately told the detective to stop talking.
Defense counsel moved for a mistrial and, before excusing the jury to discuss
the motion with counsel, the court instructed the jury to disregard the
detective’s “last statement,” saying, “It’s to form no part of your deliberations in
the case whatsoever. I’m striking it in its entirety . . . .”

In support of the motion, defense counsel argued that the jury now knew
that “this officer’s not allowed to talk about other places, that there were other
places, and for some reason she’s not allowed to talk about it. There’s no way
you can unring that bell with a curative instruction.” The court acknowledged
the challenges of navigating testimony when the defendant had admitted to
acts “that took place in multiple different counties over a long period of time.”
The court noted that the question on cross-examination “was very specific
about Hillsborough and then the answer was . . . in fairness to the witness . . .
the uncertainty was whether or not the cunnilingus admission related to
Hillsborough or some other place.” The court stated, “I think to ask the
witness to have in mind every single location at every single admission . . .
suggests to me that the witness was not trying to intentionally avoid the court’s
order.” The trial court denied the motion.

The parties then also discussed with the court the detective’s testimony
on direct that the defendant said cunnilingus occurred in Hillsborough,
considering that the investigative reports did not specifically reflect that the
defendant discussed cunnilingus happening there, but instead reflected that he
said it happened multiple times in multiple places. Therefore, defense counsel
requested that the court strike the detective’s more specific testimony and
instruct the jury to disregard it. Accordingly, once the jury returned, the trial
court gave the following instruction:

[T]here was some testimony from the detective about -- she
specifically testified that the Defendant made an admission
regarding the act of cunnilingus taking place in Hillsborough. I am
striking that testimony. It’s to form no part of your deliberations in
this case whatsoever. So just that portion of her testimony.

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 The defendant asserts on appeal that the detective’s testimony “clearly
conveyed that [the defendant] admitted to committing acts of cunnilingus in
other locations that were not part of the evidence heard by the jury,” thereby
creating a high risk of prejudice due to “the similarity of the other acts” that
could not be cured by the jury instruction given. We disagree.

“A mistrial based on the introduction of inadmissible evidence is
warranted only when the challenged evidence causes irreparable injustice that
cannot be cured by jury instructions.” State v. Pandolfi, 145 N.H. 508, 512
(2000) (quotation omitted). “In this context, when deciding whether a
defendant suffered irreparable injustice, we examine whether the inadmissible
testimony unambiguously conveyed to the jury that the defendant had
committed an act which was criminal in nature.” Id. “The justification for a
mistrial increases when the prior act identified is similar to the charged crime.”
Id.

Even assuming the detective’s statements unambiguously conveyed
evidence of the commission of prior bad acts in uncharged locations, prior to
the detective’s answer to defense counsel’s question on cross-examination the
jury had heard her uncontroverted testimony about the defendant’s admissions
that, on more than one occasion, he engaged in sexual conduct with the victim
including fellatio, cunnilingus, and intercourse. In light of this uncontroverted
evidence, we are not persuaded that the detective’s subsequent testimony
constituted an “irreparable injustice” that could not be cured by the court’s
immediate instruction to the jury that the statement was stricken and was to
form no part of its deliberations, and its subsequent detailed instruction. See
State v. Boetti, 142 N.H. 255, 259 (1997) (we presume that jurors follow the
trial court’s instructions). The trial court was in the best position to gauge the
prejudicial effect of the detective’s testimony implying that the defendant also
admitted engaging in cunnilingus with the victim in an unnamed location. See
State v. Kerwin, 144 N.H. 357, 359 (1999). Given our analysis, we deem the
defendant’s criticism of the sufficiency of the court’s instructions to be without
merit, and conclude that the trial court did not commit an unsustainable
exercise of discretion in denying the defendant’s first motion for a mistrial. See
State v. Gaudet, 166 N.H. 390, 397-98 (2014).

B. Second Motion for Mistrial

The defendant next argues that the trial court erred in denying his
motion for a mistrial based upon statements made by the prosecutor in his
closing arguments. First, the prosecutor said, “So let’s talk a little about the
Defendant. Obviously, [defense counsel] has no choice but to say, you know, if
you believe the detectives --.” Defense counsel objected and, in a sidebar,
argued that it was “an improper statement . . . to say that I have no choice but
to,” and he requested that the jury be “contemporaneously instructed that the
fact there is no burden of proof whatsoever, that I don’t have to concede

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anything in this case.” The prosecutor disagreed with defense counsel’s
characterization of his statement, explaining that he did not mean “that
[defense counsel is] conceding anything” and that it was “a comment on the
Defense, not a comment on his burden.” The trial court did not disagree with
the prosecutor as to his intent, but acknowledged that the statement did
“suggest that [the defendant] has some burden” and, therefore, the court
decided “to strike that comment and tell [the jury] to disregard it.” Defense
counsel requested “a contemporaneous instruction” and, accordingly, the trial
court instructed the jury “to disregard the [s]tatement from the State regarding
the Defense having no choice. . . . [T]he Defendant is under no obligation
whatsoever, the State has the burden of proof, the charge is beyond a
reasonable doubt, the Defendant is under no obligation whatsoever.”

The prosecutor continued with his closing statement, telling the jury that
he didn’t want “in any way to suggest that the Defense has a burden. . . .
[Defense counsel] is asking you to take a specific interpretation of [the]
evidence and he has to, right?” Defense counsel again objected, and the trial
court instructed the jury that “the Defense is under no obligation. I’m going to
strike that last comment by the State. It’s to form no part of your
deliberations.”

Second, defense counsel objected when the prosecutor said, “I think [the
victim’s] testimony, while difficult to follow and difficult for her to provide is
reliable.” The trial court sustained defense counsel’s objection and, in a
sidebar, the court told counsel that it was going to tell the jury “to disregard
that” and it cautioned the prosecutor not to “inject [his] personal opinion.”
Defense counsel stated that he “would just like to make a record now, this is
the second objection that would amount to prosecutorial misconduct in a
closing argument,” and he moved for a mistrial. The court denied the motion,
saying that “[i]n the context of things, . . . it was . . . not intentional” on the
part of the prosecutor, but that the court was going to strike it and also “go
further in terms of a curative instruction.” The trial court then told the jury
that it was “going to strike the last comment by the State regarding . . . what
an individual prosecutor thinks or believes. That’s really not relevant, that’s
not part of any of your consideration in the case and it was improper for the
Prosecutor to say that.”

On appeal, the defendant argues that the prosecutor’s “multiple
improper arguments” were not isolated, suggest “deliberate misconduct,” and
were so prejudicial that they constituted an irreparable injustice that could not
be cured by the jury instructions given. In addition, the defendant asserts that
given the cumulative effect of the detective’s testimony and the improper
statements during closing argument, the trial court erred in denying his
request for a mistrial. However, the defendant did not make this latter
argument to the trial court and thus we deem it unpreserved for appellate
review. See State v. Szczerbiak, 148 N.H. 352, 355 (2002).

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 “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.” Gaudet, 166 N.H. at 398 (quotation omitted). “A
prosecutor may draw reasonable inferences from the facts proven and has
great latitude in closing argument to both summarize and discuss the evidence
presented to the jury and to urge them to draw inferences of guilt from the
evidence.” Id. at 399 (quotation omitted). “Mistrial is the proper remedy only if
the evidence or comment complained of is not merely improper, but is so
prejudicial that it constitutes an irreparable injustice that cannot be cured by
jury instructions.” Id.

Regarding the first set of challenged statements, the record supports the
trial court’s finding that the prosecutor did not intend to say that the defendant
bore a burden of proof. 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). Regarding the second statement, although observing
that it was improper, the court again expressly found that the statement “was
. . . not intentional.” The trial court’s curative instruction focused on the
language that prompted the objection and directly corrected the prosecutor’s
misstatement. Although, as the defendant contends, the court could have used
stronger language, when reviewing the sufficiency of a curative jury instruction
in the context of a prosecutor’s improper remark we give deference to the trial
court’s ruling, and we presume that jurors follow the trial court’s instructions.
Boetti, 142 N.H. at 259. Accordingly, we cannot say that the trial court
unsustainably exercised its discretion when it denied the defendant’s motions
for a mistrial. See Gaudet, 166 N.H. at 404.

II. Motion for New Trial

The defendant next argues that the trial court erred by denying his
motion for a new trial. He asserts that the fact that the trial court locked the
courtroom for approximately 15 or 20 minutes during closing arguments
violated his right to a public trial under the Sixth and Fourteenth Amendments
to the Federal Constitution and Part I, Article 15 of the New Hampshire
Constitution. The State counters that the trial court properly found that the
courtroom closure was trivial and thus did not implicate the guarantees of the
Sixth Amendment or Part I, Article 15. We first address the defendant’s claim
under the State Constitution and rely upon federal law only to aid in our
analysis. State v. Ball, 124 N.H. 226, 231-33 (1983).

Although the defendant requests that we adopt a new standard of review
governing courtroom closures, we must first decide whether the courtroom
“closure” here was sufficient to trigger the protections of the constitution. We

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review the trial court’s determination that the “closure” at issue was too trivial
to so do in the context of the court’s denial of the defendant’s motion for a new
trial. “A new trial may be granted in any case when through accident, mistake
or misfortune justice has not been done and a further hearing would be
equitable.” RSA 526:1 (2007). Granting a motion for a new trial is within the
discretion of the trial court, see Armstrong v. Armstrong, 123 N.H. 291, 293
(1983), and thus we review the court’s decision for an unsustainable exercise of
discretion, see State v. Lambert, 147 N.H. 295, 296 (2001).

At the defendant’s sentencing hearing, defense counsel informed the trial
court that he had learned after the trial that, unbeknownst to either defense
counsel or the State, the courtroom was locked during a portion of the closing
arguments. In response, the Trial Court (Kissinger, J.) explained:

[T[here is a lot of case law that gives the Court the authority to how
it manages the courtroom. The courtroom was open for the
closings provided that people were here at the time that the closing
started. At no time, did the Court shut the doors or lock the doors
until after the closings had started and were underway. At that
point, it is my view that it was critical that the jury -- jurors be
able to see and watch counsel and their attention be focused on
the arguments of counsel. And I have -- that is my practice. And
I’ve done it for years. And there is authority supporting my ability
to manage how I conduct the trials.

The defendant subsequently moved for a new trial based on the
courtroom closure. In its order denying the motion, the trial court (Abramson,
J.) found that

[i]mmediately prior to closing arguments, the trial court . . . closed
the courtroom to additional members of the public. Nobody
already present in the courtroom was asked to leave, but the doors
were locked to any additional viewers. At the time, the trial court
did not notify either the State or defendant that it closed the
courtroom. A friend of defendant who attended all three-days of
the trial was briefly locked out of the courtroom when he tried
entering after closing arguments had begun. After approximately
15-20 minutes, he was able to enter mid-way through closing
arguments and observe the remainder of the trial.

(Record citations omitted.) Noting that “[m]any of the federal appellate courts
. . . apply a ‘triviality’ exception, which recognizes that some closures are too
trivial to amount to a violation of the Sixth Amendment,” the court reasoned
that such an exception applied to the circumstances of this case. (Quotation
and brackets omitted.)

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 The Sixth Amendment provides in part that “[i]n all criminal
prosecutions, the accused shall enjoy the right to a . . . public trial.” U.S.
CONST. amend VI. Our State Constitution does not contain a similar clause,
but Part I, Article 15 has been held to guarantee a defendant’s right to a public
trial. State v. Weber, 137 N.H. 193, 196 (1993); see Martineau v. Helgemoe, 117 N.H. 841, 842 (1977). The values furthered by the public trial guarantee
include ensuring that the defendant “is fairly dealt with and not unjustly
condemned,” reminding the judge and prosecutor of their responsibility to the
accused and the importance of their functions, encouraging witnesses to come
forward, and discouraging perjury. See Waller v. Georgia, 467 U.S. 39, 46-47
(1984).

Under Waller, a trial court may close the courtroom without violating a
defendant’s public trial right when: (1) the party seeking to close the courtroom
advances “an overriding interest that is likely to be prejudiced”; (2) the closure
is “no broader than necessary to protect that interest”; (3) the trial court
considers “reasonable alternatives to closing the proceeding”; and (4) the trial
court makes adequate findings supporting the closure. Id. at 48; accord State
v. Cote, 143 N.H. 368, 379 (1999). The defendant contends that these
considerations were not met in this case because “no party sought closure of
the courtroom”; rather, the trial court acted sua sponte and “nothing in the
record supported an overriding or particularized concern that . . . this segment
of trial would experience disruptions.” Moreover, the defendant argues, the
trial court “could have achieved its goal without violating [his] right to a public
trial, by discussing a proposed limited closure with the parties,” thereby
“ensuring that all interested attendees were in the courtroom before closing
arguments began.” The defendant asserts that, given that the trial court “did
not have a constitutionally sufficient reason for the closure,” and because the
violation of his right to a public trial constitutes a structural error, he must be
granted a new trial.1 See Weaver v. Massachusetts, 137 S. Ct. 1899, 1908,
1910 (2017) (explaining that “a violation of the right to a public trial is a
structural error” and thus, “where there is an objection at trial and the issue is
raised on direct appeal, the defendant is generally entitled to automatic
reversal regardless of the error’s actual effect on the outcome” (quotations
omitted)).

The four-prong test set forth in Waller applies, however, “only if closing
the courtroom implicates the defendant’s Sixth Amendment right.” United
States v. Perry, 479 F.3d 885, 889 (D.C. Cir. 2007). There is a “uniform line of
authority holding that a courtroom closure that is determined to be trivial does
not meaningfully infringe upon the values protected by the right to a public
trial.” State v. Telles, 446 P.3d 1194, 1199 (N.M. Ct. App. 2019). This line of

1 Because we conclude that the courtroom closure in this case did not implicate the defendant’s
constitutional right to a public trial, we need not address his argument that the closure was a
structural error thereby requiring automatic reversal and a new trial.

8
authority “looks . . . to whether the actions of the court and the effect that they
had on the conduct of the trial deprived the defendant—whether otherwise
innocent or guilty—of the protections conferred by the Sixth Amendment.”
Peterson v. Williams, 85 F.3d 39, 42 (2d Cir. 1996); see, e.g., Carson v. Fischer,
421 F.3d 83, 85, 93 (2d Cir. 2005) (determining that the trial court’s decision
to exclude the defendant’s ex-mother-in-law from a limited portion of the trial
despite the court’s failure to make particularized findings did not implicate the
values underlying the Sixth Amendment); United States v. Ivester, 316 F.3d
955, 958 (9th Cir. 2003) (explaining that before applying the Waller test, the
court must first determine whether the Sixth Amendment public trial right
attaches); Snyder v. Coiner, 510 F.2d 224, 230 (4th Cir. 1975) (concluding that
a brief, temporary closure of the courtroom to additional spectators during
closing arguments was too trivial to amount to denial of the public trial right);
State v. Lindsey, 632 N.W.2d 652, 660-61 (Minn. 2001) (explaining that not all
courtroom restrictions implicate a defendant’s right to a public trial).

As the trial court found under the facts of this case: (1) “[t]here does not
appear to have been any intention by the trial court to purposely exclude the
public from defendant’s trial”; (2) the court’s “reasoning for closing the
courtroom was to minimize distraction while counsel for both parties presented
their final arguments to the jury”; (3) “members of the public were actually
present during closing arguments and the courtroom was otherwise open to the
public at every stage of the proceeding”; (4) although “one of defendant’s
supporters was briefly excluded from closing arguments, this [did] not alter the
overall public nature of the proceedings as they were actually conducted”; and
(5) “the presence of the public during all portions of defendant’s trial
sufficiently safeguarded the core protections intended by the Sixth
Amendment.” See Snyder, 510 F.2d at 230 (where a bailiff temporarily refused
to allow persons to enter or exit the courtroom during closing arguments in
order to minimize disturbances but allowed previously admitted spectators to
remain, court deemed the closure “entirely too trivial to amount to a
constitutional deprivation”); People v. Woodward, 841 P.2d 954, 959 (Cal.
1992) (en banc) (employing a “de minimis rationale” to courtroom closure
during counsels’ closing arguments that permitted existing spectators to
remain, “did not include any of the evidentiary phase of the trial and lasted
only one and one-half hours”); cf. Gibbons v. Savage, 555 F.3d 112, 117 (2d
Cir. 2009) (explaining that “when the trial judge ordered the courtroom closed
to all spectators, the courtroom was closed within the meaning of the Sixth
Amendment,” thereby requiring a Waller analysis to evaluate whether the
closure was justified).

We are persuaded by the reasoning of courts in other jurisdictions that
certain temporary closures of the courtroom during closing arguments are too
trivial to amount to a denial of the defendant’s public trial rights and, thus, we
adopt a triviality analysis under Part I, Article 15 of the State Constitution.
Accordingly, we conclude that the trial court did not unsustainably exercise its

9
discretion in denying the defendant’s motion for a new trial because “the brief
closure of the courtroom during closing arguments was too trivial to undermine
the public nature of defendant’s trial.” In this area, the Federal Constitution
provides no greater protection than the State Constitution. See Cote, 143 N.H.
at 378. Therefore, we reach the same conclusion under the Federal
Constitution.

We observe, however, that the practice of locking the courtroom doors
may create the appearance that our courtrooms are not open to the public, see
State v. Brown, 815 N.W.2d 609, 618 (Minn. 2012), and “runs the risk of
violating the Sixth Amendment and, accordingly, of requiring a new trial.”
Braun v. Powell, 227 F.3d 908, 920 (7th Cir. 2000). Trial courts should,
therefore, lock courtroom doors only on rare occasions, preferably with the
court expressly stating on the record the reasons for doing so. See Brown, 815
N.W.2d at 618.
Affirmed.

HICKS, BASSETT, and DONOVAN, JJ., concurred.

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