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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


Strafford
No. 2013-0623


                        THE STATE OF NEW HAMPSHIRE

                                         v.

                                VINCENT COOPER

                             Argued: May 7, 2015
                      Opinion Issued: September 22, 2015

      Joseph A. Foster, attorney general (Lisa L. Wolford, assistant attorney
general, on the brief and orally), for the State.


      Stephanie Hausman, deputy chief appellate defender, of Concord, on the
brief and orally, for the defendant.

       CONBOY, J. The defendant, Vincent Cooper, appeals his convictions,
following a jury trial, for armed robbery and conspiracy to commit armed
robbery. See RSA 636:1 (2007); RSA 629:3 (2007). He argues that the
Superior Court (Tucker, J.) erred by allowing the State to play an audio
recording of a 911 telephone call at trial, and by allowing the State, in closing
argument, to comment on a fact not in evidence and to misstate the burden of
proof. We affirm.
       The defendant’s convictions arise out of an armed robbery that occurred
in Dover on July 26, 2010. The defendant was charged with armed robbery, in
that, he, acting “in concert with David McLeod and/or Warren Griffen, in the
course of committing a theft from [the victim], knowingly use[d] physical force
on [the victim] and [the victim] was aware of such force and McLeod was
actually armed with or reasonably appeared to the victim to be armed with a
deadly weapon, a firearm.” The defendant was also charged with conspiracy to
commit armed robbery in that, with the purpose that the crime of robbery be
committed, he agreed with McLeod and/or Griffen “to commit or cause the
commission of such crime” and “at least one of the following overt acts was
committed by one of the [conspirators] in furtherance of the conspiracy”: (1)
the defendant “drove McLeod and [Griffen] to [the victim’s] residence to rob [the
victim] of prescription pills”; (2) the defendant “provided McLeod with a firearm”
upon arriving at the victim’s residence; (3) “McLeod robbed [the victim]”; and (4)
the defendant drove McLeod and Griffen away “after McLeod returned from the
robbery.”

      At trial, the State sought to introduce into evidence the audio recording
of a 911 telephone call made by the victim. The defendant objected, arguing
that the victim’s statements were inadmissible hearsay and that, because the
victim was not available to testify at trial, their admission would violate his
constitutional right to confront the witnesses against him. The trial court ruled
that the statements were admissible as excited utterances and that their
admission did not violate the defendant’s right to confront the witnesses
against him. Thereafter, the State played the 911 recording for the jury.

       During the 911 call, the victim told the operator that somebody with a
gun and pepper spray had “just tried to break in the house.” The victim was
unable to identify the suspect, but stated that he was wearing a “[blue]
bandana, black hat,” and “black pants.” He also told the operator that “[t]hey
were driving a tan Crown Vic, I think, or something” and described the vehicle’s
direction of travel after the incident. The victim said that the suspect had
pepper sprayed him, but that the victim “had a stick, and . . . started whacking
[the suspect].” The victim stated that his eyes were burning from the pepper
spray and told the operator that he needed to go to wash his face. At that
point, the operator told the victim that an ambulance was on its way and the
call ended.

       The State also presented the testimony of McLeod. McLeod testified to
the following: On July 26, 2010, he met with the defendant and Griffen in the
parking lot of his then-girlfriend’s apartment. The defendant was driving a
recently purchased “tan Buick” with temporary license plates. Griffen told
McLeod that he wanted to rob the victim and that McLeod was going to do it.
The defendant then drove them to the victim’s apartment to rob the victim of
pills. When they arrived, the defendant took out a gun and handed it to
McLeod, and told him “just do it and get it over with.”


                                        2
       McLeod then ran to the victim’s apartment and “tried to barge in,” but
the victim “had a two by four” that he “shoved . . . at the door . . . [and] got the
door closed.” Before the victim closed the door, McLeod tried to pepper spray
him; however, at some point, McLeod dropped the can of pepper spray.
McLeod then ran down the stairs and, as he did so, he dropped the gun. He
picked up the gun and ran back to the car. When he got into the car, the
defendant was in the driver’s seat and Griffen was in the front passenger seat.
The defendant then drove McLeod back to his then-girlfriend’s apartment.

      McLeod also testified that, in exchange for his testimony against the
defendant, he received immunity from prosecution for his involvement in the
robbery as well as a more lenient sentence on other unrelated charges,
including a separate robbery that occurred the same night as the robbery for
which the defendant was charged.

       During the State’s closing argument, the prosecutor argued that the jury
should not discredit McLeod’s testimony simply because he received a reduced
sentence on the other robbery charge in exchange for his testimony in this
case. The prosecutor stated that other witness statements and physical
evidence supported McLeod’s testimony. For example, the prosecutor told the
jury that Griffen’s fingerprints were found on evidence located near the scene of
a car crash that occurred shortly after the other robbery involving McLeod.
However, in fact, there was no evidence admitted at trial that Griffen was the
source of the fingerprints. The prosecutor also discussed the concept of
reasonable doubt, telling the jury: “It doesn’t mean beyond any doubt, and it
doesn’t mean beyond all doubt. It certainly doesn’t mean you give the
Defendant the benefit of the doubt.” The jury subsequently convicted the
defendant on both charges. This appeal followed.

I.    911 Telephone Call

      The defendant first argues that the trial court erred when it permitted
the jury to hear the audio recording of the victim’s 911 telephone call. He
contends that the victim’s statements in the 911 call constituted inadmissible
hearsay, see N.H. R. Ev. 802, and that their admission violated the Federal
Confrontation Clause, see U.S. CONST. amends. VI, XIV.

       The State disagrees that admission of the recording was error, but argues
that even if it were, any error was harmless beyond a reasonable doubt. For
the purposes of this appeal, we assume, without deciding, that admitting the
audio recording of the 911 call was erroneous, and we agree with the State that
any error was harmless. See State v. Hernandez, 159 N.H. 394, 401-02 (2009);
see also Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986) (recognizing that a
violation of the Federal Confrontation Clause is subject to harmless-error
analysis); State v. Ramsey, 166 N.H. 45, 47-48 (2014) (applying harmless error



                                         3
review to admission of evidence assumed to be in violation of New Hampshire
Rules of Evidence and State and Federal Confrontation Clauses).

       “It is well settled that the erroneous admission of evidence is harmless
only if the State proves, beyond a reasonable doubt, that the verdict was not
affected by the admission.” State v. White, 155 N.H. 119, 127 (2007)
(quotation omitted). “The State bears the burden of proving that an error is
harmless.” Ramsey, 166 N.H. at 47 (quotation omitted). “An error may be
harmless beyond a reasonable doubt if the alternative evidence of the
defendant’s guilt is of an overwhelming nature, quantity, or weight, and if the
inadmissible evidence is merely cumulative or inconsequential in relation to the
strength of the State’s evidence of guilt.” White, 155 N.H. at 127 (quotation
omitted); see Van Arsdall, 475 U.S. at 684 (“Whether [Confrontation Clause]
error is harmless in a particular case depends upon a host of factors . . .
includ[ing] the importance of the witness’ testimony in the prosecution’s case,
whether the testimony was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the witness on material points,
the extent of cross-examination otherwise permitted, and, of course, the overall
strength of the prosecution’s case.”).

       Here, the alternative evidence of the defendant’s guilt was overwhelming.
McLeod directly implicated the defendant in the robbery, stating that the
defendant picked him up in a “tan Buick” with temporary license plates and
drove him to the victim’s apartment for the purpose of committing a robbery.
McLeod further testified that the defendant gave him a gun, and told him “just
do it and get it over with.” McLeod also described the details of the robbery.
For example, he explained how the victim “had a two by four” and “shoved it at
the door . . . [and] got the door closed,” and that he tried to pepper spray the
victim but dropped the can of pepper spray. As he fled the scene, he dropped
the gun, picked it up, and ran to the car. The defendant then drove him back
to his then-girlfriend’s apartment.

      Sergeant Harrington of the Dover Police Department testified that she
spoke with the defendant shortly after the robbery and that he told her that he
had “just purchased” a tan Buick Park Avenue. He stated that, on the day of
the robbery, he drove around Dover the entire day, and that no one else drove
his vehicle that day or night. He also said that he was familiar with McLeod
and Griffen “from prior contacts with them.”

      Further, the victim’s statements on the 911 call were merely cumulative
because McLeod’s testimony was corroborated by evidence other than the
victim’s statements. Cf. Ramsey, 166 N.H. at 48 (concluding that, although
case essentially presented credibility contest between defendant and victim,
any error in failing to allow defendant to inquire into victim’s allegedly false
statements on driver’s license application was harmless where defendant had
other opportunities to impeach victim’s credibility). Detective Khalsa of the


                                        4
Dover Police Department testified that, on the day of the robbery, he responded
“to a report of an assault where the victim was pepper sprayed and a gun had
been pulled on him.” He stated that “[t]he call came out with the suspect
fleeing in a tan vehicle.” Khalsa testified that, upon arriving at the victim’s
apartment he noticed “a can of pepper spray on the threshold of the doorway
and there were two live [not fired] . . . bullets on the stairway.”

        In addition, the victim’s downstairs neighbor testified that, on the date of
the robbery, she returned home and observed a vehicle with a “[r]ed and white
temporary paper [license] plate” parked near her driveway. She described the
vehicle as “a lightish, greenish, tan” colored “full-sized, four door sedan.” She
testified that, shortly after she pulled into her driveway, she observed the
vehicle leave and then return “within . . . five to seven minutes.” When it
returned, she saw “something in the back that looked like at least one other
person.” She stated that, approximately 15 to 20 minutes later, she saw an
ambulance parked on her street.

        The victim’s girlfriend at the time of the robbery testified that the victim
lived with her and that, on the day of the robbery, she received a telephone call
at work from someone telling her that “there was police and tape around [her]
house.” She stated that she called the victim and learned that he was at the
police department because something had happened at their home. She also
testified that she knew of a relationship between the victim and McLeod
whereby the victim had “hooked” McLeod up with “[p]ills.” She explained that
she spoke to the police about the robbery and that she suspected McLeod of
being responsible.

       Moreover, the victim’s statements in the 911 call in relation to the above-
described evidence were inconsequential. Indeed, the victim did not directly
implicate the defendant in the robbery; his statements merely helped to explain
the circumstances of the robbery. See Ronk v. State, No. 2011–DP–00410–
SCT, 2015 WL 2168283, at *15 (Miss. May 7, 2015) (finding admission of bank
statements harmless, in part, because statements did not directly implicate
defendant, but helped explain the investigation of victim’s death). Nonetheless,
the defendant maintains that admission of the 911 call was not harmless
because “[t]he central issue in the case was McLeod’s credibility” and “[t]he
only evidence the State had to corroborate McLeod’s testimony that a crime
occurred was [the victim’s] statements on the 911 call that someone had tried
to break into his apartment.” However, as discussed above, McLeod’s
testimony was corroborated by evidence other than the victim’s statements in
the 911 call. Accordingly, based upon all of the evidence adduced at trial, we
hold that the State has met its burden of proving that any error by the trial
court in allowing the 911 call to be played for the jury was harmless beyond a
reasonable doubt.




                                         5
II.   Prosecutor’s Statements During Closing Argument

      The defendant next argues that the trial court erred by allowing the
State, in its closing argument, to argue a fact not in evidence and to misstate
the burden of proof. The defendant contends that the prosecutor’s comment
that Griffen’s fingerprints were found on evidence located near the scene of a
car crash that occurred shortly after the other robbery involving McLeod was
improper because no such evidence was admitted at trial. He further contends
that the prosecutor misstated the beyond-a-reasonable-doubt standard.
Because the defendant did not object to these statements at trial, he argues
under the plain error rule.

       “The plain error rule allows us to exercise our discretion to correct errors
not raised before the trial court.” State v. Mueller, 166 N.H. 65, 68 (2014)
(quotation omitted); see Sup. Ct. R. 16-A (“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.”).

      For us to find plain error: (1) there must be error; (2) the error
      must be plain; and (3) the error must affect substantial rights. If
      all three of these conditions are met, we may then exercise our
      discretion to correct a forfeited error only if the error meets a
      fourth criterion: the error must seriously affect the fairness,
      integrity or public reputation of judicial proceedings. This rule is
      used sparingly, however, and is limited to those circumstances in
      which a miscarriage of justice would otherwise result.

Mueller, 166 N.H. at 68 (quotation and ellipsis omitted).

       The State does not dispute that both of the prosecutor’s statements
constituted error. We agree that the prosecutor wrongly stated that Griffen’s
fingerprints were the ones found on certain evidence located at the scene of a
car crash following the second robbery. Although counsel is afforded wide
latitude during closing argument, it is well settled that counsel may not argue
facts that have not been introduced into evidence. State v. Lake, 125 N.H. 820,
822 (1984). Because, as the State concedes, there was no evidence that any
fingerprints found were Griffen’s, the prosecutor clearly erred by stating that
there was such evidence.

       We also conclude that the prosecutor erred by stating, during closing
argument, that, “It doesn’t mean beyond any doubt, and it doesn’t mean
beyond all doubt. It certainly doesn’t mean you give the Defendant the benefit
of the doubt.” The State must prove all of the elements of the crime charged
beyond a reasonable doubt. State v. Walsh, 139 N.H. 435, 437 (1995). This
means that the defendant in a criminal case is entitled to the benefit of
reasonable doubt. See State v. Germain, 165 N.H. 350, 358-59 (2013)


                                        6
(discussing the beyond-a-reasonable-doubt standard in context of
circumstantial evidence); State v. Wilson, 47 N.H. 101, 106-07 (1866) (“In the
legal construction of the law as well as in weighing the evidence of facts the
defendant in a criminal [case] is entitled to the benefit of reasonable doubt, on
the ground that the legislature could not have intended a defendant should be
convicted under the law unless the facts brought his case so plainly within the
terms used as to leave no reasonable doubt.”); see also Victor v. Nebraska, 511
U.S. 1, 8 (1994) (noting, with approval, jury instruction that if “there is
reasonable doubt remaining, the accused is entitled to the benefit of it by an
acquittal”).

       Nonetheless, under the circumstances here, we do not find that the
errors require reversal. Because the defendant did not object to the
prosecutor’s statements at trial, and the trial court never ruled on the propriety
of the statements, the pertinent question is whether the trial court erred by
failing to sua sponte strike the statements. See State v. Rawnsley, 167 N.H. 8,
12 (2014); State v. Noucas, 165 N.H. 146, 161 (2013). Assuming, without
deciding, that it was error for the trial court not to sua sponte strike the
prosecutor’s comments, and that the error was plain, we conclude that the
error did not affect the defendant’s substantial rights. See Mueller, 166 N.H. at
70.

      “Generally, to 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.” Id. (quotation
omitted). This third prong of the plain error test is similar to the harmless
error analysis we use to evaluate preserved claims of error, with one important
distinction: the State bears the burden under harmless error analysis, but the
defendant bears the burden under the plain error test. Id. We will find
prejudice under the third prong when we cannot confidently state that the jury
would have returned the same verdict in the absence of the error. Id.

       The defendant argues that the trial court’s failure to sua sponte strike
the prosecutor’s statement about the fingerprint evidence was prejudicial
because, by “arguing facts not in evidence, the State improperly vouched for
McLeod’s testimony, by saying that forensic evidence supported his version of
events.” He further maintains that, “[i]n misstating the burden of proof, the
State unfairly argued that [the defendant] was not entitled to the benefit of the
doubt the jury could very well have had about McLeod’s testimony.” He
contends that “[t]he cumulative effect of the improper arguments likely had an
effect on the jury’s verdicts.” We disagree.

      As discussed above, McLeod’s testimony regarding the robbery was
corroborated by the testimony of other witnesses. Moreover, the defendant’s
counsel argued at trial that McLeod committed both the robbery for which the
defendant was charged as well as the later robbery. He contended that McLeod


                                        7
implicated the defendant in the first robbery only because he was “looking at
decades in prison” and needed to “find a way out.” He further argued that
there “was a common theme that resulted from the evidence in this case, and
that is that McLeod and Griffen are quite connected with one another” and “are
involved in a lot of criminal activity together.” In his closing statement, he
maintained that McLeod “committed this armed robbery . . . [McLeod] was
involved in this armed robbery with . . . Griffen.” During his cross-examination
of Detective Burt of the Dover Police Department, who examined the evidence
at the scene of the car crash following the second robbery, defense counsel
asked Burt whether a backpack he found at the scene, which contained the
evidence the State argued was the source of Griffen’s fingerprints, was
Griffen’s. Contrary to the defendant’s suggestion, defense counsel may have
had strategic reasons for failing to object to the prosecutor’s statement
regarding Griffen’s fingerprints: defense counsel may have concluded that the
prosecutor’s statement supported his theory of the case – that McLeod
committed both robberies, and that McLeod and Griffen were the ones involved
in criminal activity, not the defendant. See Noucas, 165 N.H. at 161-62
(concluding that trial court’s failure to sua sponte strike witness’s testimony or
issue a curative instruction did not amount to plain error and noting that
defense counsel may have had strategic reasons for not objecting to testimony).

       With regard to the prosecutor’s statement that the jury need not give the
defendant “the benefit of the doubt,” we note that this statement was made
only once. Cf. State v. Bujnowski, 130 N.H. 1, 6 (1987) (concluding that
prosecutor’s intentional, repetitive misconduct in closing argument did not
constitute harmless error). In addition, the challenged statement was
immediately preceded by the prosecutor’s statement that “[t]he Judge is going
to instruct you on [the beyond-a-reasonable-doubt standard].” The prosecutor
then stated, “But essentially what I want you to keep in mind is this: It doesn’t
mean beyond any doubt, and it doesn’t mean beyond all doubt. It certainly
doesn’t mean you give the Defendant the benefit of the doubt.” In context, the
prosecutor’s statement could have been an attempt to explain that any benefit
of the doubt given to the defendant must be reasonable. Nonetheless, a
statement that a criminal defendant should not be given the benefit of the
doubt is never proper argument.

      However, the trial court’s instructions to the jury cured any risk of
prejudice to the defendant from the prosecutor’s two erroneous statements.
The jury was instructed at the start of trial that “[y]ou decide what the facts
are, what the truth is and base your verdict on your findings of fact.” After
closing arguments, the court instructed the jury that:

            The evidence in this case consists of the sworn testimony of
      the witnesses both on direct and cross-examination regardless of
      who may have called those witnesses and the exhibits that have
      been received into evidence regardless of who may have produced


                                        8
      them. Arguments, statements and questions by the lawyers are
      not evidence. Questions asked by the lawyers and what the
      lawyers have said in their opening statements, during their closing
      arguments and at other times during the trial are intended to help
      you interpret the evidence, but it is not evidence. If the facts as
      you remember them differ from the way the lawyers have stated
      them, your memory controls.

(Emphases added.)

       The trial court also instructed the jury that, “If during the course of the
trial the attorneys mention a principle of law that is inconsistent with or differs
from what I say the law is, you must disregard what the attorneys said about
the law. It is your duty to follow these instructions during your deliberations.”
The court later explained:

             A reasonable doubt is just what the words would ordinarily
      imply. The use of the word “reasonable” means simply that the
      doubt needs to be reasonable rather than unreasonable. It must
      be a doubt based on reason. It is not a frivolous or fanciful doubt,
      nor is it one that can easily be explained away. Rather, it is such a
      doubt, based upon reason, as remains after consideration of all of
      the evidence that the State has offered against it. The test you
      must use is this: If you have a reasonable doubt as to whether the
      State has proved any one or more of the elements of the crime
      charged, you must find the Defendant not guilty. However, if you
      find that the State has proved all of the elements of the offense
      charged beyond a reasonable doubt, you should find the Defendant
      guilty.

See State v. Wentworth, 118 N.H. 832, 838-39 (1978). Each juror was given a
copy of the trial court’s final instructions. “Juries are presumed to follow
instructions.” State v. Willis, 165 N.H. 206, 225 (2013) (quotation omitted).

        Accordingly, in light of the defendant’s theory of the case, the alternative
evidence corroborating McLeod’s testimony, and the jury instructions, we
conclude that the defendant has failed to show that any error by the trial court
in failing to sua sponte strike the prosecutor’s erroneous statements affected
the outcome of the proceedings. We, therefore, hold that the defendant has
failed to satisfy the third prong of the plain error test.

       Nonetheless, we take this opportunity to reiterate warnings we have set
forth before. See Lake, 125 N.H. at 822-23; State v. Preston, 121 N.H. 147,
151 (1981). We strongly “caution prosecutors to avoid misstatements of
evidence, improper argument, or other improper conduct.” Lake, 125 N.H. at
822 (quotation omitted). Although the defendant has failed to demonstrate


                                         9
prejudice in this instance, we do not condone the conduct by the prosecutor,
who is not counsel on appeal.

      Finally, any issues raised in the defendant’s notice of appeal, but not
briefed, are deemed waived. See State v. Blackmer, 149 N.H. 47, 49 (2003).

                                                 Affirmed.

      DALIANIS, C.J., and HICKS, LYNN, and BASSETT, JJ., concurred.




                                       10
