State v. VandeBogart, 90-411

• Decision Date: 20 August 1992
• Docket Number: No. 90-411,90-411
• Citation: 136 N.H. 107,612 A.2d 906
• Parties: The STATE of New Hampshire v. Daniel VANDEBOGART.
• Court: New Hampshire Supreme Court

Page 906

612 A.2d 906

136 N.H. 107

The STATE of New Hampshire v. Daniel VANDEBOGART.

No. 90-411.

Supreme Court of New Hampshire.

Aug. 20, 1992.

John P. Arnold, Atty. Gen. (William H. Lyons, Senior Asst. Atty. Gen., on the brief and orally), for the State.

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

BROCK, Chief Justice.

The defendant, Daniel VandeBogart, was convicted by a jury in the Superior Court (Gray, J.) of simple assault, RSA 631:2-a, and sentenced to serve twelve months in the Hillsborough County House of Correction. He appeals the conviction, claiming that the trial court erred by informing the jury panel during voir dire that he had been indicted for first-degree murder. For the reasons that follow, we affirm.

The defendant was initially found guilty on two misdemeanor charges, simple assault and criminal threatening, in the Manchester District Court on September 21, 1989, and appealed to the superior court for a de novo jury trial. At that time, the defendant was the subject of an investigation concerning the death of Kimberly Goss, of Londonderry. The misdemeanor charges stem from an unrelated incident. The record shows that the murder investigation received a great deal of media attention, some of which focused on the defendant and the fact that he was a parolee from Montana who had been convicted of three prior sex offenses.

A week before the defendant's trial was to begin, the defendant was indicted in Rockingham County for the first-degree murder of Kimberly Goss. The defendant moved for a change of venue, arguing that jury selection in such close proximity to the murder indictment and the intense media coverage surrounding it would prevent him from receiving a fair trial. The court denied the motion.

The following day, the defendant moved to dismiss the misdemeanor complaint and renewed his motion for a change of venue citing additional and more pervasive news coverage. In his motion to dismiss the defendant argued, among other things, that voir dire could not adequately ensure an impartial jury. According to the defendant, the usual questioning would not be sufficiently detailed to ferret out those jurors who were aware of the facts surrounding the murder indictment. On the other hand, more detailed questioning--"Do you know that Mr. VandeBogart is charged with first degree murder?"--would only exacerbate the problem. The defendant argued that the only possible way to voir dire the jury would be to ask each juror whether they had regularly read certain newspapers or listened to local radio and television news programs. If so, they would automatically be excluded. Given the impracticality of this method, the defendant urged the court to dismiss the case. The court denied the motion to dismiss, but delayed ruling on the motion to change venue until after first attempting to select a jury in Hillsborough County.

Jury selection began the following day. Prior to addressing the panel, the court told the defendant that it intended to inform the jury at the outset of voir dire that the defendant had been indicted for first-degree murder. The defendant objected, but the court proceeded to instruct the entire panel as follows:

"As you know, we ask you certain questions to determine your partiality or impartiality, and we ask that you be candid with us in your answers. And the purpose of that, as you know, is to insure that we have a jury as impartial as the lot of humanity will allow us to have for any defendant. We ask you to be candid, and I will be candid with you.

This particular defendant has been indicted in Rockingham County for the crime of first degree murder. The press coverage of that has been in the Manchester Union Leader and other newspapers and television stations and radio stations around the state. And I doubt if there are many of you in here who have not read something about it or heard the name Daniel VanDeBogart [sic]. So I'll tell you up front that he is under indictment in Rockingham County for first degree murder."

The court further instructed the jurors that the murder indictment was not relevant in any way to the misdemeanor charges, and to disregard any opinions that they may have formed based on the knowledge that the defendant had been indicted for murder. Then, in the usual fashion, the court posed the standard questions, read the names of prospective jurors and asked whether they were aware of any reasons that they could not serve on the jury. The court dismissed thirteen jurors in the process of empanelling the jury. On appeal, the defendant argues that the court erred by informing the panel of the murder indictment.

It is a fundamental precept of our system of justice that a defendant has the right to be tried by a fair and impartial jury. N.H. CONST. pt. I, art. 15; U.S. CONST. amends. VI, XIV. "Voir dire examination serves to protect that right by exposing possible biases, both known and unknown, on the part of potential jurors." State v. Goding, 124 N.H. 781, 783, 474 A.2d 580, 581 (1984) (quotations and citations omitted).

"Whether or not a prospective juror is indifferent, for whatever reason his impartiality is questioned, is a determination to be made in the first instance by the trial court on voir dire .... It is then the duty of this court on appeal to evaluate the voir dire testimony of the empaneled jury to determine whether an impartial jury was selected."

State v. Wellman, 128 N.H. 340, 348, 513 A.2d 944, 949 (1986) (quoting State v. Laaman, 114 N.H. 794, 800, 331 A.2d 354, 358 (1974), cert. denied, 423 U.S. 854, 96 S.Ct. 101, 46 L.Ed.2d 79 (1975)).

"Under our system of jury selection, where the questioning of jurors is done by the court and not by counsel, the court owes a special duty to act on its own when counsel has alerted the court to special problems." State v. Cere, 125 N.H. 421, 423, 480 A.2d 195, 197 (1984). However, the choice of questions to be asked during voir dire is a matter within the sound discretion of the trial court. See State v. Wright, 126 N.H. 643, 648, 496 A.2d 702, 705 (1985). This court will not disturb the trial court's ruling "absent abuse of discretion or a finding that the trial judge's decision was against the weight of the evidence." Wellman, 128 N.H. at 348, 513 A.2d at 949-50.

In this case, the defendant informed the trial court of the unusual circumstances and problems associated with selecting an impartial jury. The court responded with venire questions and instructions addressing the potential prejudicial effects of the publicity. The issue is whether the court's decision to inform the entire panel of the defendant's murder indictment and then to question the jurors as to whether they could fairly consider the evidence in the misdemeanor cases ensured that the jury was impartial. While the question of jury impartiality "is difficult to define precisely in the abstract," Wellman, 128 N.H. at 348, 513 A.2d at 949, we find that the court's ruling in this case was not an abuse of discretion.

First, the defendant argued to the court that, because of the pervasive news coverage, most of the jurors already knew about the defendant's murder indictment. He submitted newspaper articles discussing the indictment and represented to the court that radio and television news programs were giving the case substantial coverage. This evidence, indicating a widespread awareness of the murder indictment, justified the court's decision to confront the problem directly at the outset of the venire process. Heeding the evidence, the court highlighted for the jury the most difficult problem confronting them in terms of their ability to remain impartial. The court was then able to explain to the jury immediately the legal principles they would have to understand and apply in order to ensure that the defendant was afforded a fair trial. By directly referring to pretrial publicity, the court emphatically informed the panel of their duty to be impartial and gave them an opportunity to express any reservations or doubts in this regard.

The court's decision to inform the prospective jurors of the murder indictment was not contrary to the law. As a general rule, a showing by the defendant that jurors have gained knowledge or awareness through the news media of the facts and circumstances surrounding the case is not enough to conclude that a juror is biased.

" 'In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity and scarcely any of those best qualified to serve as jurors will not have formed some impression as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.' "

Laaman, 114 N.H. at 800, 331 A.2d at 358 (quoting Irvin v. Dowd, 366 U.S. 717, 722-23, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751 (1961)). Thus, because it was apparent that many of the prospective jurors were aware of the defendant's murder indictment, the court was obliged to determine that the jurors on the panel either had no preconceived opinions concerning the defendant's guilt on the murder or misdemeanor charges, or that they were able to disregard such opinions. That having been done, the defendant has the burden to show prejudice. State v. Conklin, 115 N.H. 331, 337, 341 A.2d 770, 775 (1975); Laaman, 114 N.H. 794, 802, 331 A.2d 354, 358.

We have previously recognized that pretrial media coverage of a case can result in either inherent or...