The defendant, Elbert Wheat, appeals his convictions of aggravated felonious sexual assault. See RSA 632-A:2 (Supp. 2013). He argues that: (1) it was plain error for the Superior Court (O'Neill, J.) not to correct certain statements by the prosecutor; (2) the trial court erred in not inquiring further to determine whether he wished to proceed pro se at sentencing; and (3) the trial court erred in failing to order a competency evaluation prior to sentencing. We affirm.
The defendant first argues that the trial court should have corrected certain statements by the prosecutor that, he argues, "had the effect of diminishing the State's burden of proof, which violated due process." The defendant concedes that he failed to object to the prosecutor's statements at trial and seeks review under our plain error rule. "A plain error that affects substantial rights may be considered even though it was not brought to the attention of the trial court or the supreme court." Sup. Ct. R. 16-A. "However, the rule should be used sparingly, its use limited to those circumstances in which a miscarriage of justice would otherwise result." State v. Russell, 159 N.H. 475, 489 (2009) (quotation omitted). "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." Id. (quotation omitted).
The defendant identifies three statements by the prosecutor to support his plain error claim. First, while discussing the concept of reasonable doubt during her opening statement, the prosecutor told the jury that reasonable doubt "certainly does not mean giving the Defendant the benefit of the doubt." Second, during her closing argument, the prosecutor urged the jury to "[t]ell [the victim] that you believe her." Third, the prosecutor finished her closing argument by stating, "Speak the truth and find the defendant guilty."
The State concedes that the prosecutor's "benefit of the doubt" statement was improper. The State argues, however, that the remaining two statements were not improper. Assuming, without deciding, that all three of the prosecutor's statements were improper, and that the trial court's failure to correct them was plainly erroneous, we conclude that the defendant has failed to demonstrate that the error affected substantial rights. "[T]o satisfy the burden of demonstrating that an error affected substantial rights, the defendant must demonstrate that the error was prejudicial, i.e., that it affected the outcome of the proceeding." State v. Cassavaugh, 161 N.H. 90, 101 (2010) (quotation omitted). In concluding that the error in this case was not prejudicial, we first note that the prosecutor did not repeat the "benefit of the doubt" statement in her opening statement or closing argument. The jury heard the statement eight days before starting its deliberations. Moreover, in its final instructions to the jury, the trial court correctly explained the State's burden of proof and instructed the jurors that: "If the lawyers have stated a law different from the law as I explain it to you in these instructions, then you must follow my instructions and ignore the statements of the lawyers." We assume the jurors followed the trial court's instructions. See State v. Guay, 162 N.H. 375, 379 (2011).
The prosecutor's second statement, "Tell [the victim] that you believe her, " referred to the victim's testimony that she did not leave the defendant's apartment sooner because she did not think anyone would believe her. The third statement, in which the prosecutor urged the jurors to "speak the truth, " was made in connection with the statement that the jurors must "weigh the testimony and assess all of the credibility of all of the witnesses." In these statements to the jury, we note that the prosecutor did not express her personal opinion as to the credibility of the victim or the guilt of the defendant. See State v. Bisbee, 165 N.H. 61, 68 (2013) (noting limits to prosecutor's "broad license to fashion argument"). Nor did she appeal to the jurors' sympathies or emotions. See id.
We further note that the jury acquitted the defendant of six of the thirteen counts of aggravated felonious sexual assault against him, which strongly suggests that the jurors gave the defendant the benefit of the doubt. Based upon this record, we cannot conclude that the assumed error by the trial court – failing to correct the prosecutor's statements – affected the outcome of the proceeding. See Cassavaugh, 161 N.H. at 101. Accordingly, we conclude that the defendant has not satisfied our plain error rule.
The defendant next argues that the trial court erred in not inquiring further to determine whether he wished to proceed pro se at sentencing. We have held that the right to self-representation at trial requires that "[o]nce the defendant makes a sufficiently clear request to indicate an intention to switch representational gears, further judicial inquiry is necessary to clarify the nature of those changed intentions." State v. Sweeney, 151 N.H. 666, 671 (2005) (quotation omitted). The record shows that on the date of the sentencing hearing, the defendant filed a pro se motion to dismiss his sentencing counsel for ineffective assistance. The defendant concedes that his motion was unclear as to how he wished to proceed, and that he never requested that he be allowed to represent himself at sentencing. He asserts, however, that the trial court failed to meet its obligation under Sweeney to sufficiently inquire as to his intentions.
Assuming, without deciding, that the defendant had a constitutional right to self-representation at sentencing, and that the trial court had an obligation to clarify what relief the defendant was seeking, we find no error in this case because the trial court's inquiry was sufficient to clarify that the defendant was not seeking to represent himself at sentencing.
At the sentencing hearing, the trial court asked the defendant to explain the relief he was seeking in his motion. The defendant explained that although he brought a number of important appellate issues to his sentencing counsel's attention, she failed to address them. The defendant explained, "I don't want to go to a sentencing because I feel I'm entitled to a direct appeal." As a result of the court's inquiry, it became clear that the basis for the defendant's motion was his mistaken belief that he could appeal his conviction prior to sentencing. After explaining to the defendant that he could raise his issues with appellate counsel after sentencing, the trial court denied his motion. We conclude that the court's inquiry was sufficient to clarify that the defendant was not seeking to represent himself at sentencing.
Finally, the defendant argues that the trial court erred in failing to order a competency evaluation prior to sentencing. "The test for competency, as formulated by the United States Supreme Court in Dusky v. United States, 362 U.S. 402, 402 (1960), and adopted by this court, is two-pronged." State v. Kincaid, 158 N.H. 90, 93 (2008). "First, the defendant must have a sufficient present ability to consult with and assist his lawyer with a reasonable degree of rational understanding." Id. (quotation omitted). "Second, the defendant must have a factual as well as rational understanding of the proceedings against him." Id. (quotation omitted). "As the trial court is in the best position to evaluate [a] criminal defendant's behavior, we grant deference to its decision regarding the need for a competency hearing." Id. "[A] trial record void of any indication that the defendant could not assist in his defense, or rationally comprehend the nature of the proceedings, provides substantial evidence of the defendant's competence." Id. (quotation omitted).
Assuming, without deciding, that due process requires a defendant to be competent for sentencing and that the Dusky standard applies, we conclude that the record supports the trial court's decision to deny the request for a competency evaluation. The record shows that six days before the September 26, 2012 sentencing hearing, the defendant's sentencing counsel filed a motion to determine his competency. In the motion, counsel stated that the defendant "has refused to provide information that could assist in mitigation preparation for his sentencing hearing" and that he "has expressed some paranoid thoughts" as to counsel's role "in relation to the justice system." At the hearing, defense counsel asserted that she had a "legitimate doubt" as to the defendant's competency. In denying the motion, the trial judge noted that he had presided over the six-day trial in July 2011, during which the defendant was "represented by competent counsel, " and over the three subsequent hearings on October 14, 2011, January 4, 2012, and May 4, 2012, during which the defendant, "for the most part, for purposes of those hearings represented himself, " and that "at no time did [the court] make any observations that indeed [the defendant] was not competent." The court added that "it seemed absolutely clear to me the Defendant was competent under the applicable standards of New Hampshire and federal law." Based upon these observations, and the discussion at the sentencing hearing, the trial court denied the defendant's motion. Upon this record, we cannot conclude that the trial court erred in its decision. See Kincaid, 158 N.H. at 95.
HICKS, CONBOY, and BASSETT, JJ., ...