State of New Hampshire v. Frank Kervin

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0706, State of New Hampshire v. Frank
Kervin, the court on January 21, 2021, 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, Frank Kervin, appeals his convictions, following a jury
trial, of three counts of reckless conduct, see RSA 631:3 (2016), one count of
criminal threatening, see RSA 631:4, I(a) (2016), and one count of conduct after
an accident, see RSA 264:25 (Supp. 2020). He argues that it was plain error
for the Superior Court (St. Hilaire, J.) not to sua sponte strike portions of the
prosecutor’s closing argument.

The record shows that the defendant was charged with crimes arising
from separate motor vehicle driving incidents involving his truck and two other
vehicles. At trial, the investigating police officer testified that, during a
conversation with the defendant the morning after the incidents, “at no point in
time did he profess his innocence or adamantly deny that he had any
involvement” in the incidents. Rather, the officer testified, the defendant made
comments to the effect of, “if you said I did it, I must have done it,” and
“[c]learly I did it, I just don’t remember doing it.” The officer testified that only
later in the conversation, after being confronted with specific facts relating to
the incidents, did the defendant deny being involved in the incidents.

During his closing argument, the prosecutor stated the following:

[The defendant] didn’t deny that his truck was involved in the
accident. He told you he did, but [the police officer] explained to
you word-for-word the conversation that he had that night and at
no point did [the defendant] say, that wasn't me. The closest thing
that he got to that was that he just didn't remember. That there
were just parts of that night, of that drive home, that [the
defendant] didn’t remember.

The defendant argues that the prosecutor’s argument mischaracterized
the evidence at trial, and that it was plain error for the trial court not to sua
sponte strike the prosecutor’s statements.
 The plain error rule allows us to exercise our discretion to correct errors
not raised before the trial court. State v. Euliano, 161 N.H. 601, 605 (2011);
see Sup. Ct. R. 16-A. The rule, however, should be used sparingly, its use
limited to those circumstances in which a miscarriage of justice would
otherwise result. State v. Guay, 164 N.H. 696, 704 (2013). For us to find plain
error: (1) there must be an error; (2) the error must be plain; (3) the error must
affect substantial rights; and (4) the error must seriously affect the fairness,
integrity or public reputation of judicial proceedings. State v. Pennock, 168
N.H. 294, 310 (2015).

“A prosecutor may draw reasonable inferences from the evidence
presented and has great latitude in closing argument to both summarize and
discuss the evidence and to urge the jury to draw inferences of guilt from the
evidence.” State v. Drown, 170 N.H. 788, 793 (2018). The State argues that
the prosecutor’s argument was not improper because it fairly summarized the
defendant’s inconsistent statements to the police officer. The issue is whether
the trial court erred in failing to sua sponte strike the argument. See State v.
Stillwell, 172 N.H. 591, 609 (2019).

“[W]e have never held that a trial court must interrupt a party’s closing
argument; rather, we have often discouraged trial courts from acting sua
sponte.” Id. at 610 (quotation omitted). “Defense counsel may have good
reasons for not objecting during a prosecutor’s closing argument.” Id. In this
case, defense counsel may have decided not to object to the argument in order
to avoid drawing additional attention to the defendant’s inconsistent
statements to the police officer. “A decision not to object may be a trial
strategy that should not be intruded upon by the trial court in the absence of
patently egregious circumstances.” State v. Labrie, 171 N.H. 475, 789 (2018).

We note that, at the start of the trial, the court instructed the jury that
“[i]f the lawyers or I state the facts differently from the way you recollect them
to be, then you should disregard what the lawyers or I have said about the
facts and follow your own recollection.” “The jury is presumed to follow the
instructions given by the trial court.” State v. Littlefield, 152 N.H. 331, 348
(2005). Based upon this record, we cannot conclude that it was plain error for
the trial court not to sua sponte strike the prosecutor’s closing argument. See
Labrie, 171 N.H. at 789.

Affirmed.

Hicks, Bassett, Hantz Marconi, and Donovan, JJ., concurred.

Timothy A. Gudas,
Clerk

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