State v. Castle

• Decision Date: 03 October 1986
• Docket Number: No. 85-326,85-326
• Citation: 517 A.2d 848,128 N.H. 649
• Parties: The STATE of New Hampshire v. Vincent Roy CASTLE.
• Court: New Hampshire Supreme Court

Page 848

517 A.2d 848

128 N.H. 649

The STATE of New Hampshire v.Vincent Roy CASTLE.

No. 85-326.

Supreme Court of New Hampshire.

Oct. 3, 1986.

Stephen E. Merrill, Atty. Gen. (Barbara R. Keshen, attorney, on brief and orally), for the State.

James E. Duggan, Appellate Defender, Concord, by brief and orally, for defendant.

KING, Chief Justice.

The defendant was tried before a jury on four counts of aggravated felonious sexual assault.In this appeal he challenges the propriety of an ex parte conversation between the Trial Court(Dalianis, J.) and a juror.We reverse and remand.

At trial, after the court had instructed the jury and adjourned for lunch, one of the jurors asked to speak to the judge.Jury deliberations had not yet begun.The judge held an ex parte discussion with the juror off the record concerning the juror's realization that he recognized the victim's father, who had been present in the courtroom, as someone who was employed at his workplace.Concluding that the juror felt no discomfort and would be able to perform his duties, the judge did not excuse him.Two alternate jurors were available at that time but were dismissed after lunch when the jury began deliberating.

When counsel returned from lunch, the judge informed them of the colloquy.Defense counsel asked the court to discharge the juror or conduct a voir dire in the presence of counsel.Both requests were denied.The judge then summarized on the record the substance of the conversation with the juror:

"At the lunch break, ... one of the jurors in our case[ ] asked to see me.And when he did see me, he told me that he hadn't realized it before today, but suddenly recognized that he knew who the father of [the victim] was inasmuch as both are employed at Sanders.He told me that he recognized the name when he heard it in the trial; and then when he saw the gentleman sitting with the woman who had that name, he recognized the individual as being someone he knows to work at Sanders.

He told me that he did not know him personally, did not encounter him at work and had no reason to think that his knowledge of the man as tenuous as it is would make any difference in the case.He assured me that he felt no bias.And although I offered him the option if he felt the slightest bit of discomfort, given the fact that both worked for the same company, of leaving the deliberations as we still had our two alternate jurors available, he assured me that he felt no such discomfort and he wished to participate as he was charged and sworn to do.I therefore did not excuse him."

Defense counsel objected to the court's refusal to voir dire the juror on the ground that it violated the defendant's right to a fair trial and due process of law under part I, article 15 of the New Hampshire Constitution.By motion for a new trial, the defendant additionally asserted that he was denied his rights to a fair trial and to confrontation as guaranteed by the sixth and fourteenth amendments to the United States Constitution.We proceed by considering the defendant's rights under State law, seeState v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 350(1983), relying on authority from other jurisdictions solely as a guide to our analysis of the State claim.SeeMichigan v. Long, 463 U.S. 1032, 1040-41, 103 S.Ct. 3469, 3476-77, 77 L.Ed.2d 1201(1983).Thereafter, we will address federal constitutional issues only insofar as federal law would provide greater protection.Ball, supra124 N.H. at 232, 471 A.2d at 351.

In asserting that he has been denied a fair trial, the defendant does not contend that the juror who approached the judge was in fact biased.Therefore, the right to trial by an impartial jury secured by part I, article 35 of the New Hampshire Constitution, seeState v. Sawtelle, 66 N.H. 488, 32 A. 831(1891), is not directly implicated in this case.Our inquiry focuses instead on the procedural protections necessary to ensure the impartiality of jurors.In this regard, the defendant maintains that the court's ex parte communication and subsequent refusal to conduct a voir dire prevented him from obtaining the information necessary to determine whether the juror was able to be impartial.He characterizes this error as a violation of his right to be present at all stages of trial.

The defendant's right to be present at trial derives from the specific rights to produce all favorable proofs, confront witnesses, and be fully heard in one's defense, N.H. CONST. pt. I, art. 15;seeState v. Lister, 119 N.H. 713, 716, 406 A.2d 967, 969(1979), as well as the right to due process, seeSnyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S.Ct. 330, 332, 78 L.Ed. 674(1934), guaranteed by part I, article 15 of the State Constitution, Opinion of the Justices, 66 N.H. 629, 633, 33 A. 1076, 1078(1891).Even where a defendant is not confronting witnesses or evidence against him, the due process clause guarantees the right to be present "whenever [the defendant's] presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge."Snyder, supra291 U.S. at 105-06, 54 S.Ct. at 332."[T]he presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence...."Id. at 107-08, 54 S.Ct. at 333.See alsoUnited States v. Gagnon, 470 U.S. 522, 105 S.Ct. 1482, 1484, 84 L.Ed.2d 486(1985).Therefore, in order to determine whether the defendant was denied due process, we must consider whether his presence at the discussion between the judge and the juror was reasonably required in order to ensure that the jury was impartial.State v. Bailey, 127 N.H. 416, 421, 503 A.2d 762, 766(1985).

State v. Bailey is central to our analysis of the defendant's claim that he had a right to be present at the ex parte discussion.Bailey involved New Hampshire's customary voir dire procedure in which the trial court poses questions to the venire panel as a group and, where necessary, holds individual discussions with panelists at the bench.Defense counsel requested that the individual discussions be held on the record with counsel present.The court denied the request and instead conducted the discussions off the record, subsequently informing counsel of the substance of each panelist's comments.The defendant challenged this practice under part I, article 15 of the State Constitution.We held that considerations of promoting candor and minimizing awkwardness justified the practice of excluding both the defendant and defense counsel from individual discussions between the judge and jurors during the course of voir dire.127 N.H. at 421, 503 A.2d at 767.

Nonetheless, we recognized in Bailey that this procedure had the potential to interfere with the defendant's ability to conduct his defense.Bailey, supra at 421, 503 A.2d at 767."Preservation of the opportunity to prove actual bias is a guarantee of a defendant's right to an impartial jury."Dennis v. United States, 339 U.S. 162, 171-72, 70 S.Ct. 519, 523, ...