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___________________________
Strafford
No. 2008-834
v.
JAY NEEPER
The jury could have found the following facts. The defendant’s daughter
and the victim were friends on the same cheerleading squad. The daughter, a
diabetic, was required to test her blood sugar several times a day with a
diabetes monitor.
On February 16, 2007, the victim slept over at the defendant’s two-
bedroom apartment in Barrington, where the daughter was living at the time.
The daughter and the victim practiced their cheerleading routines in the
daughter’s bedroom, and then went to sleep. The defendant and his nine-year-
old son slept in the living room. The victim testified that she woke up at
around 2:00 a.m. because she felt the defendant’s hand “rubbing and patting”
her vagina. The victim woke the daughter and the defendant left the girls’
room.
Q. Okay. And what did he say in response to you reading the charge
involving [the victim]?
A. He said he did not understand.
Q. Okay.
A. And that . . .
Q. And at that point, you – there were no further questions asked,
correct?
A. Right. He said he did not understand, he would like to talk with an
attorney, so there were no further questions.
2
Counsel for the defendant objected, and moved for a mistrial. The court
held a hearing outside of the presence of the jury. During the hearing, the
defendant introduced a copy of Lieutenant Banaian’s police report, which
stated that the defendant was arrested on February 18 and subsequently met
with Lieutenant Banaian at the Barrington Police Department. Lieutenant
Banaian introduced himself to the defendant, who stated that he did not
understand what was happening. Lieutenant Banaian read the charges to the
defendant and “informed him if he would like to talk to me I would like to go
over his rights.” The report also indicated that, although Lieutenant Banaian
apparently did not read the defendant his Miranda rights, he showed the
defendant “the rights form.” In response, the defendant stated, “I don’t
understand what is going on, so I would like an attorney.”
The court found that the testimony at issue was “Doyle-like” and that the
prosecutor did not engage in any misconduct. See Doyle v. Ohio, 426 U.S. 610
(1976). The court also found that there was “a little bit of a trail within the
records that lead up to [Lieutenant Banaian’s comment].” The court denied the
defendant’s motion for a mistrial. The court issued a curative instruction to
the jury to “disregard the . . . last two questions from the State and the
lieutenant’s answers to them,” and, in particular, the references to the
defendant’s exercise of his constitutional rights. The court instructed the jury
that it could not “draw an inference as to guilt or innocence” based upon the
fact that the defendant exercised his rights, and emphasized the importance of
compliance with the instruction. The court then asked the jurors to indicate
“by a show of hands” whether they could disregard Lieutenant Banaian’s
answer. The court asked the jurors whether they could “appreciate . . . the
principles of constitutional law,” and they responded affirmatively.
3
At the conclusion of the State’s closing argument, the defendant renewed
his request for a mistrial, contending that the State’s argument encompassed
his post-arrest silence. The court implicitly denied the defendant’s motion.
4
Ellsworth, 151 N.H. at 154. “A mere reference by a witness to a defendant’s
silence, without more, however, does not necessarily require a mistrial.” State
v. Spaulding, 147 N.H. 583, 587 (2002); see Remick, 149 N.H. at 747. “An
instruction to disregard the reference to silence is generally sufficient in the
absence of prosecutorial misconduct or comment that cannot be cured by a
cautionary jury instruction.” Spaulding, 147 N.H. at 587; see Remick, 149
N.H. at 747. We presume that jurors follow the court’s instructions. Remick,
149 N.H. at 747.
We cannot find that the trial court unsustainably exercised its discretion
when it denied the defendant’s motion for a mistrial. While we agree that some
of the prosecutor’s questions preceding Lieutenant Banaian’s remark were
troublesome, the prosecutor’s last question called for a yes or no response and
thus did not seek to elicit testimony about the defendant’s post-arrest, post-
Miranda silence. After establishing that Lieutenant Banaian read the charges
to the defendant and that the defendant stated that he did not understand
them, the prosecutor asked, “there were no further questions asked, correct?”
Lieutenant Banaian’s statement that the defendant said “he would like to talk
with an attorney, so there were no further questions” was not responsive. We
thus agree with the trial court that the prosecutor did not engage in
misconduct.
As for the argument that any prejudice was heightened because the jury
was unaware that the defendant had been shown Miranda warnings, the
defendant simply fails to explain why this is so. We find that any prejudice
resulting from Lieutenant Banaian’s testimony was alleviated by the trial
court’s curative instruction and affirmative response from the jurors that they
5
could comply with the court’s instructions. See Remick, 149 N.H. at 747;
Spaulding, 147 N.H. at 587.
The State also argues that any error by the trial court was harmless.
However, we need not address this argument because the trial court did not
erroneously admit Lieutenant Banaian’s testimony. See Spaulding, 147 N.H. at
588; Demeritt, 148 N.H. at 440.
During his closing argument, counsel for the defendant referred explicitly
to the defendant’s statement to Officer Plummer on February 17 that “They
accused me of . . . ”, and argued that the fact that the defendant stopped
speaking was “consistent with innocence.” The prosecutor, in response,
repeatedly discussed the defendant’s actions and words on February 17, the
night of the assault, and commented on his interaction with Officer Plummer
the next morning, disputing the defendant’s account of that conversation. In
that context, the prosecutor stated that the defendant “never told anyone” that
he went into his daughter’s bedroom to check her diabetes monitor.
Specifically, he asserted that:
The idea that somehow the police have prevented Mr. Neeper from giving
his version of events, his complete version of events, a version of events
which has a very innocent explanation for why he went into the room in
the first place, which is this diabetes monitor, is not true. Telling you
that [the victim’s] story has changed is actually quite humorous because,
in fact, it is Mr. Neeper’s version of events that has changed dramatically,
because on February 17th, 2007, this diabetes monitor thing is never
put into play. You don’t hear a word about it. And he is given an
opportunity, folks, to say what he needs to say.
The State also argued that the defendant “never told anyone there was a
perfectly legitimate and innocent reason why he would have gone into the room
that evening,” and that the defendant’s explanation “comes a little too lately
[sic] and is a little too different from what was said on the night in question by
the defendant.”
6
Following the State’s closing argument, the defendant again moved for a
mistrial, contending that the State’s argument “broadly asserting . . . he never
told anyone . . . was not focused to the contact with the police on the night in
question” and included “his post-arrest silence.” After hearing arguments from
the parties, the court stated, “Okay,” and immediately began instructing the
jury. The court did not issue a curative instruction.
Affirmed.