2005-461, STATE OF NH v. CLINTON BROWN

The defendant, Clinton Brown, appeals his convictions

defendant. Sisti Law Offices, of Chichester (Mark L. Sisti on the brief), for the

general, on the brief), for the State. to press. Errors may be reported by E-mail at the following address: Kelly A. Ayotte, attorney general (David W. Ruoff, assistant attorney

page is: http://www.courts.state.nh.us/supreme. v.

editorial errors in order that corrections may be made before the opinion goes No. 2005-461 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Merrimack Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as been excused.”

p. 2 leaving with a group of people at lunchtime and it was after we had already

told “maybe a couple of the jurors – that I did see people – [the defendant]

other juror meant nothing to him.

“offhand” comment was made. asked this question. also said that not all the jurors had returned from lunch break when this based only upon the evidence presented in the courtroom. Juror 2 was not conclusions based upon her observations. She said that she thought that she affirmed their ability to remain impartial and reach a fair verdict in the case “mostly I saw the backs of them.” Juror 6 said that she did not reach any further questioned, Juror 6 said that she had no idea who the people were, 2 when the juror made her comments. Juror 2 said that the comments of the

lot “just looked like anybody else, like normal people.” Like Juror 2, Juror 5

hearing Juror 6’s comments. When asked, Jurors 5, 7, 8, 9, 10, 12 and 14 all

know “who everybody was, it was just a group of people with him.” When other jurors were “coming back in” to the jury room after their lunch break making this comment to any juror in particular. According to Juror 2, the exact comments were as follows: “You know what I like to do at lunch? I go her car and just watching people,” but he did not believe that this juror was The court then spoke to Juror 7 again. Juror 7 explained that Juror 6’s

Juror 5 stated that Juror 6 said that the people she saw in the parking

juror may have made. Eight jurors, Jurors 2, 5, 7, 8, 9, 10, 12 and 14, recalled

that she guessed that the defendant was with his family, but that she did not question the jurors during the Juror 6 said, “Yeah. I just said that I saw them leaving.” She told the court When asked if she had made some comment about this to her fellow jurors, Juror 2 recalled that “[o]ne of the ladies said something about sitting in

denied hearing any juror make any comments about any observations that

see what they heard in the first instance.” Both counsel were permitted to Thereafter, the court decided to voir dire all of the jurors individually “to everyone else was left to go later so we couldn’t interfere – interact with them.”

other jurors that she found doing this to be “informative.” when they were in their own environment.” According to Juror 7, Juror 6 told

thought it was interesting that they allowed us to go out and then the – car, eating lunch, and I just noticed that the defendant was leaving. And I Both counsel participated in the voir dire. Juror 6 told the court: “I was in my After Juror 7 spoke to the court, the court decided to voir dire Juror 6.

people involved in the trial when they didn’t know they were being watched and “enjoyed spending her lunch . . . sitting in her car in the parking lot watching as a witness, lawyer, judge or bailiff. p. 3 said.” witnesses. Juror 10 said that she had “no clue who [the juror] was looking at.” anything about the case, and [the subject] was dropped and nothing else was the juror made the comment, someone else said that the jurors could not “talk

The juror was not specific about whom she saw and did not identify the person comment did not say whom she saw or refer to the people she saw as

out as you can get” inside the jury room when the comment was made. After

their lunch in the car and they saw someone in the parking lot or something.” continued reading [her] magazine.” Juror 10 said that the juror who made the

lot of laughing going on.” He said that the other jurors were “[a]bout as spread time.

some family members milling around out[side] and she was sitting in her car

Juror 14 heard another female juror “make a comment that they ate were in the jury room when Juror 6 made her comments. situations.” After hearing this comment, Juror 10 “just looked away . . . and everyone in the jury room would hear them. He believed that all of the jurors they’re not up on the stand . . . it’s kind of odd seeing them out in real-life they heard it “because everybody[ ] [was] in there talking things, [there was] a weird seeing everybody out there, you know, outside of the case. . . . [W]hen might not have heard it because there were other conversations going on at the were in the jury room when the juror made this comment, he did not know if whom she saw, and said that when the juror made the comment, other jurors she was in her car eating lunch.” Juror 9 stated that although other jurors. . . eating or something.” Juror 12 stated that the juror was not specific about

Juror 12 said that he thought that one of the jurors “said she just saw

with her.” Juror 7 said that Juror 6 made her comments loudly enough so that car, ate her lunch and then came back in.” She heard the juror say, “[I]t’s . . . she didn’t make any contact with anybody . . . . So . . . she just sat in her juror “saw some people [in the trial] standing outside the courtroom . . . when her car, eating her lunch, and . . . that she was kind of . . . crouched down so Juror 10 recalled hearing one of the jurors “saying that she was sitting in

everyone in the jury room “shut up and nobody would even make eye contact very informative.” Juror 7 said that after Juror 6 made this statement, environment when they don’t know they’re being watched. I find that to be Juror 9 said that he had heard a statement by another juror that the

people out of [the courtroom], how they interact outside.” Juror 8 said that she heard Juror 6 say that it was “interesting to see

there, and I get to watch all the people that are involved in the trial in their and spend lunchtime sitting in my car where I can sit there, no one knows I’m occurred. p. 4 time; and (6) the point in the deliberations when the communication or contact

about her observations. As the trial court’s decision to presume prejudice has

communications with others are about the case.

role in the case; (4) whether other jurors became aware of the communication juror knew of the connection; (3) whether the party involved had a substantial (2) whether the party involved was connected with the case and whether the individuals associated with the trial and her communication with fellow jurors The trial court presumed prejudice from Juror 6’s observations of

(2003). See State v. Bader, 148 N.H. 265, 279 (2002), cert. denied, 538 U.S. 1014 court’s fact-specific determinations for an unsustainable exercise of discretion.

State v. Rideout, 143 N.H. 363, 366 (1999). We review the trial

and individuals associated with the case or when the juror’s unauthorized such prejudice is presumed when there are communications between jurors

alleged incident occurred and, if so, whether it was prejudicial.” prejudiced are: (1) whether the matter pending before the court was discussed; the trial court must undertake an adequate inquiry to determine whether the Some of the factors relevant to determining whether the panel was

The jury ultimately returned a guilty verdict. reasonable doubt. Id. burden shifts to the State to prove that any prejudice was harmless beyond a impartial jury.” Id. In those instances, the

In a criminal case, a defendant must prove actual prejudice, although

N.H. at 487 (quotation and brackets omitted). him of his state and federal constitutional rights to an impartial jury. Bathalon, 146

allegation that a juror has been biased by extrinsic contact or communication, A:12, II (1997). “We have previously decided that when there is also an verdict. The court excused Juror 6, and the trial continued for several days. to be disqualified before or during trial should be removed. Id.; see RSA 500-

State v. Bathalon, 146 N.H. 485, 487 (2001). Any juror found

“It is axiomatic that a defendant has a right to be tried by a fair and

226, 231 (1983), citing federal authority for guidance only, id. at 233. defendant’s assertion under the State Constitution, see State v. Ball, 124 N.H. CONST. pt. I, art. 15; U.S. CONST. amends. VI, XIV. We first address the

On appeal, the defendant argues that the trial court’s decision deprived

beyond a reasonable doubt, that this misconduct would not affect the jury’s engaged in misconduct that was presumptively prejudicial, the court found, The trial court denied this motion. Although the court found that Juror 6 Following the voir dire of the jurors, the defendant moved for a mistrial. whatsoever.”

p. 5 the contact between the juror and the witness at issue in

time.” 5

testimony of any juror who said they simply did not hear any comment

trial, when the State had called only five of its eleven witnesses. By contrast,

and her communications about them occurred over a “prolonged period of

defendant guilty. Id. at 367-68. the juror in Rideout returned to the jury room, the jury unanimously found the things occurred.” The court stated that it had “no basis to discredit the while the jury was in deliberations. Id. at 364. Less than one-half hour after

Finally, the incident with Juror 6 occurred on only the second day of

Id. at 366.

Fourth, there was no evidence that the juror’s contact with the witnesses contrast, in The court further determined, after conducting individual

conversation going on, that they were in various parts of the room when certain that there were 14 people in the room, that there was more than one observations, others did not. As the court observed: “A number of jurors noted Third, while some of the jurors heard Juror 6’s statements about her

witness.” Id. Juror 6 had said. As the record supports these findings, we uphold them. identified by name and, according to the trial court, was “an important State

Rideout, the individual with whom the juror had contact was

communicate anything that would identify them to her fellow jurors. By did not communicate anything that would identify them to her fellow jurors. although Juror 6 knew this, she did not know who they were and did not although the individuals Juror 6 observed were connected with the case, and either the witnesses or her fellow jurors about the case at hand. Second, harmlessness. See id. at 367. First, Juror 6 had no communications with See Rideout, 143 N.H. at 367-68. Here several factors weigh in favor of finding motion for mistrial. sufficiently rebutted the presumption of prejudice that arose from the incident. harmless beyond a reasonable doubt and therefore denied the defendant’s We further uphold the trial court’s determination that the State unsustainably exercised its discretion when it found that any prejudice was

remaining jurors, that their ability to be impartial was not affected by what

court found that Juror 6 did not know which witnesses she had observed and based upon her observations, that certain witnesses looked “normal.” The The trial court found that, at worst, Juror 6 had expressed an opinion,

not err by doing so. Accordingly, we review whether the trial court not been challenged on appeal, we assume, without deciding, that the court did p. 6 6

Constitution under these circumstances,

Constitution offers the defendant no greater protection than does the State trial court’s denial of the defendant’s motion for a mistrial. As the Federal was harmless beyond a reasonable doubt. Accordingly, we find no error in the

BRODERICK, C.J., and DUGGAN, GALWAY and HICKS, JJ., concurred.

result under the Federal Constitution as we do under the State Constitution.

that any prejudice presumed from Juror p. 6 6’s observations and communications Under these circumstances, we uphold the trial court’s determination