Cited by

Relying principally upon State v. Bujnowski, 130 N.H. 1 (1987) and State v. Yates, 137 N.H. 495 (1993), the defendant further argues that the State had duties to (1) 3 learn during its witness preparation that the witness had in fact deleted the text message, and (2) tell the jury that the witness had engaged in the crime of falsif

ether an error did not affect the verdict include, but are not limited to: (1) the strength of the State’s case, see State v. Vandebogart, 139 N.H. 145, 158 (1994); (2) whether the admitted or excluded evidence is cumulative or inconsequential in relation to the strength of the State’s case, see State v. Lemieux, 136 N.H. 329, 331-32 (1992); (3) the frequency of the error, see State v. Bujnowski, 130 N.H. 1, 5-6 (1987); (4) the presence or absence of evidence corroborating or contradicting the e

The statements at issue fall into two categories: one set of statements, the defendant contends, constituted an impermissible personal attack on defense counsel, see State v. Dowdle, 148 N.H. 345, 348 (2002), and the other set, he argues, were improper because they impermissibly conveyed to the jury the prosecutor’s personal opinions about the defendant’s credibility and guilt.

State v. Bujnowski, 130 N.H. 1, 6 (1987) (concluding that prosecutor’s intentional, repetitive misconduct in closing argument did not constitute harmless error).

At the same time, prosecutors may not “profess to the jury their personal opinions as to the credibility of a witness or the guilt of the accused,” State v. Bujnowski, 130 N.H. 1, 4 (1987), and “there must be limits to pleas of pure passion and there must be restraints against blatant appeals to bias and prejudice.” LeBlanc v. American Honda Motor Co., 141 N.H. 579, 582 (1997) (quotation omitted).

As we have previously noted, it is the prosecutor’s duty to seek justice, not merely to convict.

See, e.g., State v. Boetti, 142 N.H. 255, 261 (1997); State v. Bujnowski, 130 N.H. 1, 4-5 (1987); State v. Bureau, 134 N.H. 220, 224 (1991).

“An improper comment made by the State during closing argument may, under certain circumstances, constitute prosecutorial overreaching requiring a new trial.” State v. Bujnowski, 130 N.H. 1, 4 (1987).

The prosecutor may commit misconduct, however, when he or she professes a personal opinion, State v. Bujnowski, 130 N.H. 1, 4 (1987), or uses language calculated to inflame the jury’s passions or prejudices, State v. Dowdle, 148 N.H. 345, 348 (2002).

The “prosecutor’s duty is to seek justice, not merely to convict.” State v. Bujnowski, 130 N.H. 1, 5 (1987) (quotation omitted).

State v. Bujnowski, 130 N.H. 1, 4, 532 A.2d 1385, 1386 (1987) (impropriety of statement part of prosecutorial misconduct claim).

State v. Boetti, 142 N.H. 255, 261, 699 A.2d 585, 589 (1997); State v. Bujnowski, 130 N.H. 1, 4, 532 A.2d 1385, 1386 (1987).

Improper argument, while objectionable in any case, is especially troublesome when made by a prosecutor, as the “prosecutor is likely to be seen by the jury as an authority figure whose opinion carries considerable weight.” State v. Bujnowski, 130 N.H. 1, 4, 532 A.2d 1385, 1387 (1987).

Because we find that the defendant was not unduly prejudiced when the State asked the improper question, it is not necessary to review the defendant’s argument that there was gross negligence on the part of the State in asking the offensive question.

In the instant case, where the trial court not only did not give such an immediate curative instruction but overruled the plaintiff’s objection, “we cannot determine the extent to which the jury may have been influenced by the [impermissible] comments,” State v. Bujnowski, 130 N.H. 1, 6, 532 A.2d 1385, 1388 (1987), and therefore remand for a new trial.

See, e.g., State v. Skidmore, 138 N.H. 201, 203, 636 A.2d 64, 66 (1993) (erroneous admission of evidence); State v. Bujnowski, 130 N.H. 1, 6, 532 A.2d 1385, 1388 (1987) (prosecutorial overreaching).

Prosecutors have great latitude during closing argument to summarize and discuss the evidence and to urge the jury to draw reasonable inferences therefrom, State v. Sylvia, 136 N.H. 428, 431, 616 A.2d 507, 509 (1992), but may not profess their personal opinions as to the credibility of witnesses or the guilt of the accused.

While we have recognized that “intentional, repetitive misconduct” by a prosecutor may require reversal, see State v. Bujnowski, 130 N.H. 1, 5-6, 532 A.2d 1385, 1387-88 (1987) (prosecutor’s continued misconduct rendered trial court’s curative instruction meaningless), such is not the case here.

On the other hand, we have reversed the denial of a motion for mistrial where counsel offered his or her personal opinion on a material issue, see State v. Bujnowski, 130 N.H. 1, 4, 532 A.2d 1385, 1387-88 (1987) (curative instructions held insufficient); see also N.H. R. Prof.

See, e.g., State v. Bujnowski, 130 N.H. 1, 532 A.2d 1385 (1987) (prosecutor professed to jury his personal opinion of the guilt of the defendant); State v. Preston, 121 N.H. 147, 427 A.2d 21 (1981) (prosecutor argued to jury facts not in evidence); State v. LaBranche, 118 N.H. 176, 385 A.2d 108 (1978) (State testified about untried indictment pending again

The burden to establish the harmlessness of this error lies with the State.

State v. Bujnowski, 130 N.H. 1, 5-6, 532 A.2d 1385, 1387-88 (1987) (conviction reversed because the prosecutor repeatedly professed his personal opinion as to the credibility of a witness by the use of the phrase, “I think”).

In support of his position, the defendant relies on State v. Bujnowski, 130 N.H. 1, 532 A.2d 1385 (1987), which states: “[I]n order for the court to find ‘prosecutorial overreaching, the government must have, through gross negligence or intentional misconduct, caused aggravated circumstances to develop which seriously prejudiced a defendant, causing [the defendant] reasonably to conclude that conti

“In order for the court to find ‘prosecutorial overreaching, the government must have, through gross negligence or intentional misconduct, caused aggravated circumstances to develop which seriously prejudiced a defendant, causing [the defendant] reasonably to conclude that continuation of the tainted proceeding would result in his conviction.’” State v. Bujnowski, 130 N.H. 1, 4, 532 A.2d 1385, 1386 (1987) (quoting State v. Lake, 125 N.H. 820, 823, 485 A.2d 1048, 1051 (1984)).

Although not cited in either party’s brief, this court addressed prosecutorial overreaching in State v. Bujnowski, 130 N.H. 1, 532 A.2d 1385 (1987).