State of New Hampshire v. Shogo HanamuraState of New Hampshire v. Shogo Hanamura
The court has reviewed the written arguments and the record submitted on appeal, has considered the oral arguments of the parties, and has determined to resolve the case by way of this order. See
The charges stemmed from allegations that the defendant scalded the victim‘s skin with hot water. The source of the child-victim‘s injuries — whether a burn or a skin disorder — comprised a central issue at trial. The defendant called Dr. Bryan Kurtz, an emergency room physician, as his expert on that issue. By way of qualifications, Dr. Kurtz explained that he “evaluate[s] patients on their initial presentation . . . to the emergency department for the purpose[s] of initial stabilization of their medical condition[] and then determining the most likely causes or diagnoses that they present with and their disposition based on those judgments.” Dr. Kurtz defined this latter function (determining the most likely causes of a patient‘s presentation) as “differential diagnosis.” The defendant moved “to qualify Dr. Kurtz as an expert witness in the field of emergency medicine and in the process of differential diagnosis,” and the trial court instructed the jury that “the doctor may testify in the area of emergency room medicine and the process of arriving at a differential diagnosis, and he is an expert in those two areas.”
Dr. Kurtz then opined, to “a reasonable degree of medical certainty,” “that [the child] presented with the manifestations of an organic dermatologic process such as a bullous skin disorder.” During cross-examination, Dr. Kurtz acknowledged his lack of expertise in dermatology, burn care, genetics, and child abuse pediatrics. He admitted that he had never encountered epidermal bullosa in his career and he agreed that the condition is “exceedingly rare.”
In his closing argument, the prosecutor began to say that “[Dr. Kurtz] was not qualified by the court to diagnose — ” (emphasis added), but he did not
[DEFENSE]: He‘s qualified as an expert.
[STATE]: Yeah. But —
[COURT]: What were you going to say?
[STATE]: I was —
[COURT]: Not qualified as what?
[STATE]: To diagnose bullous skin disorders.
[COURT]: It‘s okay. You may proceed.
[STATE]: Okay.
[COURT]: But that‘s a fair argument.
Upon resuming his argument, instead of completing the prior sentence, the prosecutor began anew with a different statement: “So he was not qualified to diagnose bullous skin disorders.” The defendant claims prejudicial error flowing from the prosecutor‘s interrupted argument urging the jury to disregard Dr. Kurtz‘s opinion because the trial judge did not “qualify” him to give it.
We review a trial court‘s ruling on the propriety of closing argument for an unsustainable exercise of discretion. See State v. Collins, 168 N.H. 1, 6 (2015). “To show that the trial court‘s decision is not sustainable, the defendant must demonstrate that it was clearly untenable or unreasonable to the prejudice of his case.” Id. (quotation omitted). Whether or not untenable or unreasonable, we conclude that the defendant failed to demonstrate that the trial court‘s disposition of his objection prejudiced his defense. See id.
The prosecutor never uttered — and the jury never heard — the statement the defendant challenges as objectionable. In its first iteration, the defendant‘s objection interrupted the sentence before the prosecutor finished it. In its second iteration, the prosecutor did not pick up where he left off pre-objection, but tacked away from the trial court‘s qualification of Dr. Kurtz to a more general argument concerning Dr. Kurtz‘s specific qualification “to diagnose bullous skin disorders.” Even though the trial court signaled that it would allow the prosecutor to complete the sentence that triggered the objection, the prosecutor chose to move his argument away from it.
Several of the trial court‘s jury instructions buttress our conclusion. First, the trial court emphasized that the jurors alone assess, weigh, and evaluate testimony, and reminded them that they could assign to all witness testimony — expert or lay — “the weight you think it deserves.” Second, the trial court stressed the distinction between argument and evidence, stating “[y]ou will hear the lawyers discuss the facts and the law in their opening statements and closing arguments . . . . These statements and arguments are not evidence.” The instructions grounded the jury in its role and in the distinction between evidence and argument. We assume that juries follow the instructions the trial court gives them, and we conclude that these particular instructions countered any prejudice that could have arisen from the trial court‘s disposition of the objection. See State v. Cooper, 168 N.H. 161, 170-71 (2015). The absence of prejudice compels our conclusion that the trial court did not unsustainably exercise its discretion in overruling the objection. See Collins, 168 N.H. at 7 (concluding that due to lack of prejudice “the defendant . . . failed to demonstrate that the trial court‘s decision to overrule the defendant‘s objection . . . was an unsustainable exercise of discretion“). We deem waived any other issues raised in the defendant‘s notice of appeal but not briefed. See State v. Blackmer, 149 N.H. 47, 49 (2003).
Affirmed.
DONOVAN, COUNTWAY, GOULD, and WILL, JJ., concurred.
Timothy A. Gudas,
Clerk