State v. McLellan

Decision Date07 November 1994
Docket NumberNo. 93-373,93-373
Citation649 A.2d 843,139 N.H. 132
PartiesThe STATE of New Hampshire v. Shawn McLELLAN.
CourtNew Hampshire Supreme Court

Jeffrey R. Howard, Atty. Gen. (Jeffrey S. Cahill, on the brief and orally), for State.

Stephen A. White, Dover, by brief and orally, for defendant.

JOHNSON, Justice.

The defendant, Shawn McLellan, appeals his conviction for aggravated felonious sexual assault pursuant to RSA 632-A:2 (Supp.1993). The defendant argues that the Superior Court (Dickson, J.) erred in choosing as alternates two jurors who thought they knew people affiliated with the defendant, and in denying the defendant's motion for a mistrial based on a claimed violation of his right against self-incrimination. The defendant also appeals the court's responses to two jury questions. We affirm.

The defendant was indicted for aggravated felonious sexual assault for "knowingly engag[ing] in sexual penetration with another person by overcoming the victim through the actual application of physical force or superior physical strength; in that Shawn McLellan forced his penis into the mouth of [the victim] by forcing himself on top of her and pinning her down on a car seat." The alleged incident occurred on the evening of July 11, 1992, when the defendant offered a ride to the victim who was hitchhiking.

At trial the defendant testified that when initially questioned by the police at the hospital while his blood and saliva samples were taken, he told them that he did not pick up a hitchhiker. He admitted to having signed a Miranda form which he understood waived his right to remain silent. He also testified that he did not inform his wife of the alleged incident until after he was released from the hospital. Over the defendant's objection, the State asked him on cross-examination if he contacted the police to correct his statements after having told his wife what had occurred that evening, to which the defendant answered in the negative.

During the trial, two jurors questioned the court about people whom they had noticed in the courthouse. Juror number ten advised the court that she had noticed a woman sitting in the back of the courtroom whom she had met in a parent conference at the school where she is a guidance counselor. The juror felt that she could still render an unbiased opinion. The woman turned out to be the defendant's mother, although no mention of this fact was made to the juror. The court ruled that this juror would continue to sit and deliberate on the jury if needed, but would automatically become an alternate if she were not needed. The defense objected.

Juror number five also spoke with the court, indicating that during the lunch break, he had seen the defendant speaking to a woman in the hallway whom he thought might be the defendant's mother. The juror recognized the woman as a clerk at a convenience store. It was determined that the defendant did not know the woman and had been briefly speaking with her about another trial. Over the defendant's objection that the State would in effect be given two peremptory challenges if both jurors five and ten were made alternates, the court ruled that juror number five would also be an alternate unless he was necessary to make up the twelve required jurors.

After the first day of deliberations, the jury asked the court the following question: "Does there have to be a connection/correlation between the actual penetration and the use of force?" During a chambers conference, the defendant argued that the answer was clearly "yes." The court decided to ask the jury to clarify the question, after which the jury returned with: "If they agreed to oral sex and he then withdrew; she then disagreed to any additional activity, he then continued. Does force still apply?" The court issued a written answer which included a statement that "with respect to this charge, the defense of consent has not been raised," to which the defendant objected. The defendant was convicted of aggravated felonious sexual assault.

On appeal the defendant first argues that the court erred in ruling that juror number ten would be an alternate unless she was needed to make up the panel of twelve jurors. Since the defendant's argument with respect to juror number five is identical, we will address both issues simultaneously. The defendant argues that his fundamental right to a fair jury trial under both part I, article 15 of the New Hampshire Constitution and the sixth amendment to the United States Constitution has been violated because the court's ruling in effect gave the State two additional peremptory challenges to jurors. "However, the constitutional dimension of the defendant's argument was not called to the trial court's attention, nor was it raised in the notice of appeal. Therefore, we will consider his argument under an abuse of discretion standard...." State v. Plante, 134 N.H. 456, 459, 594 A.2d 1279, 1282 (1991).

We note that RSA 500-A:13, I (1983) requires that alternate jurors "at the direction of the presiding justice, be drawn, selected and empaneled in the same manner as the regular jurors." RSA 500-A:13, II(a) provides that "[t]he alternate jurors shall ... [b]e sworn with and seated near the jury...." In the case at hand, the trial court empaneled fourteen jurors, postponing the designation of the alternates until the case was submitted to the jury for deliberations. We need not decide whether this procedure violated RSA 500-A:13 because this issue has not been presented for appeal. See State v. Jaroma, 137 N.H. 562, 569, 630 A.2d 1173, 1177 (1993).

We now address whether the trial court abused its discretion by hand-picking jurors five and ten to be alternates instead of randomly selecting two. In the chambers conference regarding these jurors, the State voiced the concern that since both jurors had a chance of future contact with the individuals whom they recognized and speculated may be related to the defendant, these jurors might be unable to deliberate impartially. The defendant objected to making these jurors the alternates. An analogy can be drawn to State v. Jaroma, where the trial court nonrandomly selected a foreperson. See Jaroma, 137 N.H. at 569, 630 A.2d at 1177. We found in Jaroma that since the entire panel, including the foreperson, consisted of impartial jurors, the defendant had failed to demonstrate "that he was prejudiced by the selection." Id. at 570, 630 A.2d at 1177. The defendant in the case at hand has failed to demonstrate that the nonrandom selection of jurors five and ten as alternates deprived him of an impartial jury. The trial court had evidence of possible connections, both past and future, between jurors five and ten and people whom those jurors believed were associated with the defendant. On the facts of this case, viewed in the context of the questions presented to us, we conclude that it was within the trial court's discretion to choose jurors five and ten to be the alternates after considering their potential associations, however remote, with the defendant, so as to provide both sides as impartial a jury as possible.

The defendant next argues that the trial court erred in overruling his objection to the State's question to the defendant on cross-examination: "After you went home from the hospital and you told your wife did you then contact the police to tell them, 'By the way, I lied to you. Let me tell you the truth.'?" The defendant's response was that he had not. The defendant raises the right against self-incrimination as guaranteed by part I, article 15 of the New Hampshire Constitution and the fifth amendment of the United States Constitution. We base our decision on the New Hampshire Constitution, see State v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 350 (1983), and cite federal law only to aid our analysis, see State v. Maya, 126 N.H. 590, 594, 493 A.2d 1139, 1143 (1985). We need not engage...

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5 cases
  • State v. Tinkham
    • United States
    • New Hampshire Supreme Court
    • October 5, 1998
    ...Constitution provides no greater protection in this area, see Miranda , 384 U.S. at 444–45, 86 S.Ct. 1602; State v. McLellan , 139 N.H. 132, 136–37, 649 A.2d 843, 845 (1994) (comparing Part I, Article 15 with the Fifth Amendment); New Jersey v. T.L.O ., 469 U.S. 325, 341, 105 S.Ct. 733, 83 ......
  • State v. Spaulding
    • United States
    • New Hampshire Supreme Court
    • April 16, 2002
    ...as protective as the Federal Constitution in this area, we need not undertake a separate federal analysis, see State v. McLellan, 139 N.H. 132, 136–37, 649 A.2d 843 (1994), and cite federal law only to aid our analysis, see State v. Maya, 126 N.H. 590, 594, 493 A.2d 1139 (1985). When a susp......
  • State v. Seymour
    • United States
    • New Hampshire Supreme Court
    • March 19, 1996
    ...question in language requested by the defendant in the context of the entire charge and all of the evidence." State v. McLellan, 139 N.H. 132, 137, 649 A.2d 843, 846 (1994) (quotation omitted). It is within the trial court's discretion to decide how best to aid the jury in its deliberations......
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    • United States
    • New Hampshire Supreme Court
    • November 7, 1994
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