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State v. Lavallee

Supreme Court of New Hampshire

November 26, 2008

State of New Hampshire
v.
Gregory Lavallee

UNPUBLISHED OPINION

The defendant, Gregory Lavallee, appeals his convictions for aggravated felonious sexual assault, second-degree assault and simple assault. He argues that the trial court erred in: (1) instructing the jury on corroboration; and (2) ruling that the State did not unfairly comment in its closing argument upon the defendant's silence. We affirm.

The scope and wording of jury instructions is generally within the sound discretion of the trial court; any allegations of error will be evaluated by interpreting the disputed instructions in their entirety, as a reasonable juror would have understood them, and in light of all the evidence in the case. State v. Lamprey, 149 N.H. 364, 366 (2003). Reversal of a jury verdict is unwarranted when a jury charge fairly covers the issues and law of a case. Id.

The defendant cites the following jury instruction to support his claim of error:

[U]nder the law, with respect to all of these charges, the testimony of the alleged victim is not required to be corroborated in order for a jury to find a defendant guilty beyond a reasonable doubt. That is, the State is not required to give support to the testimony of a victim with any other type of evidence.

The defendant does not argue that this instruction does not accurately describe the applicable law, see RSA 632-A:6, I (2007); rather, he contends that it had a "tendency to mislead the jury into thinking that an absence or deficiency of corroboration has no proper bearing on the case." We disagree.

The trial court also instructed the jury on the definition of reasonable doubt, the elements of each charged offense, the requirement that each element of each offense be proved beyond a reasonable doubt, and its responsibility to determine the credibility of the witnesses. Viewed in their entirety, the jury instructions fairly covered the issues and law in this case. See State v. Cook, 148 N.H. 735, 742 (2002) (citing trial court's instruction that jury should consider credibility of each witness and weight to be given to testimony as factor to consider in whether corroboration instructions adequately and accurately addressed applicable law).

The defendant also argues that the trial court erred in ruling that the State did not comment unfairly in its closing argument upon his silence. Because the trial court is in the best position to gauge any prejudicial effect that the prosecutor's closing remarks may have had upon the jury, we review the court's decision for an unsustainable exercise of discretion. State v. Mussey, 153 N.H. 272, 277 (2006). "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." Id. at 280. If we find that a prosecutor's remark was impermissible, we must then determine whether the error requires reversal of the verdict. Id.

Even if we assume without deciding that the prosecutor's remark could be construed to refer to the defendant's silence and was thus impermissible, we conclude that any error was harmless. Cf. State v. Remick, 149 N.H. 745, 748 (2003) (erroneous admission of evidence of defendant's silence subject to harmless error analysis; error may be harmless beyond reasonable doubt when alternative evidence of defendant's guilt is of overwhelming nature, quantity or weight and if inadmissible evidence is merely cumulative or inconsequential in relation to strength of State's evidence of guilt).

In this case, the evidence included testimony by the victim of the assault, physical evidence, and corroboration by other witnesses at the scene of the assault and at the hospital where the victim was treated. The investigating police officers also described their investigation and the evidence they found that corroborated the victim's account.

Affirmed.

DUGGAN, GALWAY and HICKS, JJ., ...


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