State v. Cosme
| Decision Date | 20 March 2008 |
| Docket Number | No. 2007-072.,2007-072. |
| Citation | 943 A.2d 810 |
| Parties | The STATE of New Hampshire v. Angel COSME. |
| Court | New Hampshire Supreme Court |
The defendant, Angel Cosme, appeals his two convictions for misdemeanor sexual assault, RSA 632-A:4 (2007), arguing that the Superior Court (Fauver, J.) erred in denying his motion to strike the jury panel. We affirm.
The following facts appear in the record. In April 2006, the defendant was charged with one count of aggravated felonious sexual assault and two counts of misdemeanor sexual assault. In August, he filed a motion to record and to be present at the pretrial jury orientation because, he alleged, the trial court had a practice of verbally instructing prospective jurors on legal concepts and responding to questions of individual prospective jurors. Defense counsel averred that he had been present at prior orientations during which the presiding justice gave an instruction on reasonable doubt which deviated from the Wentworth model, see State v. Wentworth, 118 N.H. 832, 395 A.2d 858 (1978), and referenced the type of evidence that may be presented at trial. No action was taken on the defendant's motion until after the pool of prospective jurors had already received orientation prior to jury selection.
During jury selection, the defendant moved to strike the jury panel based upon Part I, Article 15 of the State Constitution and the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, arguing that the trial court's practice of discussing legal concepts with prospective jurors during orientation deprived him of both his right to be present for a critical stage of the criminal process and the ability to raise and preserve substantive issues for appellate review. The trial court denied the motion to strike. The trial proceeded, and at the close of the evidence, the jury was instructed on the applicable law. The jury returned guilty verdicts on the two misdemeanor sexual assault charges and acquitted the defendant of the felony charge. This appeal followed.
The defendant challenges our state's practice for jury orientation; that is, the process prior to criminal, civil or equitable proceedings when individuals reporting for jury duty are first assembled in the courthouse but not yet selected to potentially sit as a juror on any specific case. Jury orientation has been a common practice among courts in the United States for some time. See, e.g., State v. Vance, 162 W.Va. 467, 250 S.E.2d 146, 151-52 (1978); State v. Delgado, 8 Conn.App. 273, 513 A.2d 701, 704 (1986); Brown v. State, 29 Md.App. 1, 349 A.2d 359, 362-63 (1975), overruled on other grounds by Sims v. State, 573 A.2d 1317, 1322 (1990); Mele v. Becker, 1 Mich.App. 172, 134 N.W.2d 846, 847 (1965). When newly called jurors are first assembled to begin their term of service, the trial court provides them with information and instructions about the legal process, the system of advocacy and, at times, the meaning of certain legal concepts they will confront should they be selected to sit on a case. See Vance, 250 S.E.2d at 152. This practice is acknowledged as a means of educating prospective jurors about their role and responsibilities in the American legal system, as well as removing the shroud of mystery and relieving any anxiety about their involvement in the process. See id.; Delgado, 513 A.2d at 704. See generally ABA Standards Relating to Juror Use and Management 139-53 (Part D and Standard 16) (1993). Our state's practice for jury orientation includes a video presentation and an informal oral address by the presiding judge followed by questions from the prospective jurors.
The defendant does not object to educating and orienting prospective jurors. Rather, he contends that the trial court's unrehearsed and unrecorded interaction with the pool of prospective jurors outside the presence of the defendant and his counsel, which may have included instructions of law, violated his constitutional rights. He specifically relies upon Part I, Article 15 of the State Constitution and the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. We review questions of constitutional law de novo. State v. Dupont, 155 N.H. 644, 645, 931 A.2d 583 (2007). We first address state constitutional claims, State v. Ball, 124 N.H. 226, 231, 471 A.2d 347 (1983), and cite federal cases for guidance only, id. at 232-33, 471 A.2d 347.
"The defendant's right under the State Constitution to be present at trial derives from the specific guarantees set forth in part I, article 15 to produce all favorable proofs, confront witnesses, and be fully heard in one's defense, as well as the right to due process." State v. Hannan, 137 N.H. 612, 614, 631 A.2d 531 (1993) (quotation omitted). This right attaches to any proceeding that constitutes a critical stage of the criminal process set against the defendant. See Rushen v. Spain, 464 U.S. 114, 117, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983). Even when the defendant is not confronting a witness or evidence, due process as guaranteed by Part I, Article 15 of the State Constitution protects his 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." State v. Castle, 128 N.H. 649, 651, 517 A.2d 848 (1986) (quotation and brackets omitted); see United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985). "The 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." Castle, 128 N.H. at 651, 517 A.2d 848 (); Gagnon, 470 U.S. at 526, 105 S.Ct. 1482.
The right to be present also encompasses the right to a record of ex parte judicial communications with a juror made in the course of criminal proceedings. See Castle, 128 N.H. at 651-52, 517 A.2d 848 (); Hannan, 137 N.H. at 614, 631 A.2d 531 (same). Preserving a record and providing it to a defendant serves two purposes: "First, it grants the defendant an opportunity to be heard and protects his right to trial by an impartial jury by enabling him to respond to issues raised during discussions conducted outside the presence of trial counsel." Hannan, 137 N.H. at 614, 631 A.2d 531. Second, the record permits appellate review of the discussion if the defendant later challenges the trial court's action, such as rejecting the defendant's request to excuse a juror. Id.
We have had occasion to review the right to be present, and the corollary right to a record, in the context of ex parte judicial contact with jurors during voir dire and after the commencement of trial. For example, we have held constitutional the trial court's practice, in cases other than first degree and capital murder, of holding discussions on the record with individual venire panelists that are outside of the hearing of counsel but are followed by a recitation to counsel on the record of the substance of the discussion. Id.; State v. Bailey, 127 N.H. 416, 421, 503 A.2d 762 (1985). We have emphasized the requirement for a record in such circumstances, stating that "we cannot think of any statement made in the course of criminal proceedings before the court that should not be subject to counsel's absolute right to a record upon request." Bailey, 127 N.H. at 421, 503 A.2d 762. Thus, we have held that the refusal to provide a record in such circumstance requires reversal unless it appears beyond a reasonable doubt that the error was harmless. Id.; State v. Brodowski, 135 N.H. 197, 202, 600 A.2d 925 (1991) (). This standard applies if the trial court fails to notify counsel of an ex parte communication with an empaneled juror or fails to record such discussion in the first instance. Hannan, 137 N.H. at 614-15, 631 A.2d 531; see also Castle, 128 N.H. at 652-53, 517 A.2d 848 ().
The Gagnon, 470 U.S. at 526, 105 S.Ct. 1482 (quotation omitted; emphases added). Because neither the State nor the Federal Constitution contains "any black letter requirements to conduct colloquies with [jury] panelists [or prospective jurors] in the presence of counsel or on the record[,] [t]hese issues . . . call for judgments about the procedures that are reasonably necessary to promote the objective of ensuring fairness and impartiality among jurors." Bailey, 127 N.H. at 421, 503 A.2d 762.
Jury orientation is not the type of proceeding that triggers a criminal defendant's right to be present or right to a record under Part I, Article 15 of our State Constitution. Judicial commentary during orientation is not the same as communication during jury selection, while a trial is in progress, or at some point prior to the rendering of a verdict because such commentary is not made in the course of criminal proceedings against any specific defendant. Cf. id. at 421, 503 A.2d 762 (...
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