State v. McLellan
| Decision Date | 07 March 2001 |
| Docket Number | No. 98-515.,98-515. |
| Citation | 146 N.H. 108,767 A.2d 953 |
| Court | New Hampshire Supreme Court |
| Parties | The STATE of New Hampshire v. Ronald McLELLAN. |
Philip T. McLaughlin, attorney general (Christopher H.M. Carter, assistant attorney general, on the brief and orally), for the State.
Risa Evans, assistant appellate defender, of Concord, by brief and orally, for the defendant.
The defendant, Ronald McLellan, was convicted in Superior Court (Dalianis , J.) of one count of aggravated felonious sexual assault and four counts of misdemeanor sexual assault. See RSA 632-A:2, I(j)(1) (1996) (amended 2000); RSA 632-A:4 (1996). Because the trial court found that the defendant's aggravated felonious sexual assault conviction was his third, he was sentenced to life imprisonment without the possibility of parole, see RSA 632-A:10-a, III (1996) (amended 2000), and also sentenced to four concurrent twelve-month terms on the misdemeanor convictions. We affirm in part, reverse in part, vacate the sentence and remand for further proceedings consistent with this opinion.
The record supports the following facts. During the time period covered by the indictments, the defendant lived in Nashua with his girlfriend and two of her daughters. Another daughter, Paula, resided in Massachusetts. On December 7, 1995, Paula reported to the Nashua Police that the defendant had sexually assaulted one of her sisters.
The day the report was made, Detective John Gallagher interviewed the victim. She told him about three incidents involving the defendant, but was uncertain as to when they occurred. She reported to Gallagher that she willingly engaged in the activities she described. As the victim had recently turned sixteen, when the incidents occurred was critical to whether her purported consent vitiated the defendant's criminal culpability. See RSA 632-A:2, I(j).
On December 11, 1995, Gallagher again interviewed the victim while Jane Enright of the New Hampshire Division for Children, Youth and Families (DCYF) was present. During the interview, according to a "Law Enforcement Letter" subsequently drafted by Enright, the victim disclosed "ongoing sexual abuse by [the defendant]."
Approximately three weeks later, Gallagher met with the victim and her mother to discuss placing the victim with relatives. According to information defense counsel received from the victim's mother, Enright was present at the meeting.
Gallagher conducted another interview with the victim on January 11, 1996, at which time she recalled an additional incident involving the defendant which occurred prior to her sixteenth birthday. She claimed that the defendant was in a position of authority over her and that some of the incidents were not consensual.
She also explained that she allowed the defendant to engage in sexual acts with her because she did not want the defendant to do the same thing to her younger sister.
Prior to jury selection, the defendant moved, unsuccessfully, for an order allowing his counsel to conduct sequestered, individual voir dire of potential jurors. He also filed a motion to secure the confidential DCYF investigation records of the victim. After a hearing, the motion was denied because the defendant made an insufficient showing under State v. Gagne , 136 N.H. 101, 105, 612 A.2d 899 (1992).
The defendant was convicted and subsequently sentenced in July 1998. After finding that he had been convicted of two prior aggravated felonious sexual assaults, the trial court sentenced him to life without parole pursuant to RSA 632-A:10-a, III.
On appeal, the defendant argues the trial court erred in: (1) refusing to allow his counsel to conduct sequestered, individual voir dire ; (2) refusing to conduct an in camera review of confidential DCYF records; (3) using the wrong standard of proof to establish his prior convictions for the purposes of sentence enhancement; and (4) finding sufficient evidence to prove his identity as the person convicted of the prior assaults.
The defendant first contends that because he faced mandatory life imprisonment without parole, see RSA 632-A:10-a, III, the trial court should have granted his request for sequestered, individual voir dire . Arguing that first degree murder defendants face the same mandatory sentence, see RSA 630:1-a, III (1996), and that trial courts generally allow sequestered, individual voir dire in such cases, the defendant asserts that he is entitled to the same procedural safeguards under the equal protection provisions of the State and Federal Constitutions. See N.H. CONST. pt. I, art. 2 ; U.S. CONST. amend. XIV, § 1. We disagree.
We first analyze the defendant's argument under our State Constitution, looking to federal law for guidance only. See State v. Ball , 124 N.H. 226, 231, 471 A.2d 347 (1983). Because the Federal Constitution provides no greater protection in the area of equal protection, we need not undertake a separate federal analysis. See LeClair v. LeClair , 137 N.H. 213, 221-22, 624 A.2d 1350 (1993).
The equal protection provision of the State Constitution demands that all similarly situated persons be treated alike. See State v. LaPorte , 134 N.H. 73, 76, 587 A.2d 1237 (1991). Therefore, the "first question in an equal protection analysis is whether the State action in question treats similarly situated persons differently." Id . (quotation omitted). "If the persons are not similarly situated, ... no equal protection problem is involved." LeClair , 137 N.H. at 222, 624 A.2d 1350 (quotation omitted).
The right to have a fair and impartial jury determine guilt or innocence is "a fundamental precept of our system of justice." State v. VandeBogart , 136 N.H. 107, 110, 612 A.2d 906 (1992). However, while the right to an impartial jury enjoys constitutional protection, "the manner in which voir dire is conducted is wholly within the sound discretion of the trial judge." State v. Bone , 131 N.H. 408, 412, 553 A.2d 775 (1989) (quotation omitted). Traditionally, the trial court, not counsel, conducts jury voir dire in all cases except capital cases. See id . The exception is premised on the fact that in capital cases the jury determines whether a sentence of death will be imposed. "A juror who declares that he cannot exercise judgment upon that question is not indifferent and should not be permitted to serve." State v. Comery , 78 N.H. 6, 11, 95 A. 670 (1915).
In the last twenty-five years, trial courts have routinely extended sequestered, individual voir dire to first degree murder cases where the State does not seek the death penalty. See 2 R. McNamara, New Hampshire Practice, Criminal Practice and Procedure § 916, at 390 (1997). The nature of a charge of first degree murder raises a concern that the jury will assume that a guilty verdict results in a sentence of death or life imprisonment. Thus, as in capital cases, a jury's ability to exercise impartiality may be affected by considerations beyond guilt or innocence. These concerns warrant the use of individual voir dire .
The same concern for jury impartiality simply is not present in this case. The jury had no knowledge of what sentence the defendant faced; nor did it participate in the sentencing process. See RSA 632-A:10-a, III. Further, concern over juror fitness based upon a common assumption that the crime charged will result in death or a life sentence is also not present here. Therefore, a defendant charged with aggravated felonious sexual assault is not similarly situated with a defendant charged with capital or first degree murder. Accordingly, no equal protection problem exists. See LeClair , 137 N.H. at 222, 624 A.2d 1350.
The defendant next argues that the trial court erred in denying his pretrial motion for an in camera review of the victim's DCYF confidential records. Based on his claim that the DCYF report could explain inconsistencies in the victim's statements against him, the defendant contends that the trial court misapplied the Gagne standard. See Gagne , 136 N.H. at 105, 612 A.2d 899. We agree.
"[I]n order to trigger an in camera review of confidential or privileged records, the defendant must establish a reasonable probability that the records contain information that is material and relevant to his defense." Id . at 105, 612 A.2d 899. State v. Graham , 142 N.H. 357, 363, 702 A.2d 322 (1997).
In State v. Taylor , 139 N.H. 96, 98, 649 A.2d 375 (1994), the defendant asserted that he had reason to believe the victim was interviewed by DCYF. The defendant, however, presented nothing more than this general assertion as justification for an in camera review of DCYF files. See id . Unlike in Gagne , where we allowed in camera review, the defendant in Taylor failed to offer "specific arguments concerning relevant evidence that, according to information obtained independently by counsel, may have been contained in the DCY[F] file." Id. at 98, 649 A.2d 375. Affirming the trial court's denial of the defendant's motion for in camera review, we held that "[a]t a minimum, a defendant must present some specific concern, based on more than bare conjecture, that, in reasonable probability, will be explained by information in the DCY[F] file." Id. at 99, 649 A.2d 375.
As in Gagne and Taylor , the defendant's argument begins with the general assertion that the victim was interviewed by DCYF. Unlike the defendant in Taylor , however, the defendant did not rest on this general assertion. Based upon the "Law Enforcement Letter" written by Enright and information provided by the victim's mother, defense counsel argued that a reasonable probability existed that the DCYF records may contain information concerning: (1) how the victim's perception of the incidents changed from consensual to non-consensual; (2) why the victim recalled additional incidents that allegedly...
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