2005-594, STATE OF NH v. WILLIAM JOSEPH SULLIVAN, JR.

reverse and remand.

Hicks

replacing a member of his jury after the commencement of deliberations. We made to members of the Nashua Police Department, and by dismissing and denying his motion to suppress evidence of self-incriminating statements he (2007). He appeals his convictions, arguing that the trial court erred by see RSA 630:1-a (2007), and conspiracy to commit murder, see id.; RSA 629:3 defendant, William Joseph Sullivan, Jr., was convicted of first degree murder, BRODERICK, C.J. After a jury trial in Superior Court (, J.), the

brief and orally, for the defendant. Christopher M. Johnson, chief appellate defender, of Concord, on the

brief and orally), for the State. to press. Errors may be reported by E-mail at the following address: Kelly A. Ayotte, attorney general (Thomas E. Bocian, attorney, on the

editorial errors in order that corrections may be made before the opinion goes No. 2005-594 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Hillsborough-southern judicial district Readers are requested to notify the Reporter, Supreme Court of New ___________________________

page is: http://www.courts.state.nh.us/supreme. 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 p. 2 22 as 2

locations, and went to a mall to buy the defendant new clothes. assisted in these efforts. The two then disposed of evidence in various

was stunned, he then stabbed her to death.

the defendant and Kasinskas. ongoing disapproval of such ideas engendered hostility and resentment in both cohabitation like opening a joint bank account with the defendant. Dominico’s

bloody clothing, and collected the knives he had used in the attack. Kasinskas After the murder, the defendant cleaned himself off, removed some of his

from work. Following an argument, he hit her with a baseball bat; once she however, the defendant attacked Dominico in her home soon after she returned detail of marriage and a future together. be intruder, and established false alibis for their own whereabouts. In reality, intensified; they professed love for one another within days, and soon spoke in plans to make it look like Dominico’s house had been broken into by a wouldspite of the physical distance separating them, their relationship rapidly On August 6, p. 2 2003, the defendant and Kasinskas jointly carried out

and similarly disapproved of Kasinskas making other moves toward to blow up her home by igniting its oil tank. Dominico’s life, which ranged from poisoning her coffee creamer to an attempt week, Kasinskas and the defendant made four failed attempts to take opposition to their cohabitation to making plans to kill Dominico. During that In fact, the two had moved from discussing ways to eliminate Dominico’s with Kasinskas. By that time, their anger toward Dominico had crystallized. In early August p. 2 2003, the defendant drove to Nashua to spend a week

began communicating daily through the internet, letters and phone calls. In her mother, Jeanne Dominico, in Nashua. The defendant and Kasinskas soon with his family in Connecticut. Kasinskas, then fourteen years old, lived with Kasinskas be legally emancipated. Dominico angrily refused this request, too, on the internet. At the time, the defendant was seventeen years old and lived with him. When Dominico objected to this plan, the two proposed that the defendant and Kasinskas to discuss the possibility of her moving to live first time in August p. 2 2002, and subsequent visits soon followed. These visits led Dominico drove Kasinskas to Connecticut to meet the defendant for the

p. 2 2002, the defendant met Nicole Kasinskas through an instant message service The record supports the following background information. In May

the defendant that he was free to leave; the trial court noted that Moore drive himself to the police station. On the other hand, Moore never informed defendant in the back seat of a cruiser for the drive from Dominico’s house to at one point sat down on the trunk of his car. He did not ask to leave or to coming to the station when asked to do so by Linehan. Linehan sat with the

defendant remained with Moore to await a second cruiser.

Throughout his conversation with Moore, the defendant was pacing freely, and need his medication, however, and also said that he “had no problem” with about Dominico, and about Dominico’s relationship with Kasinskas. suffered from anxiety and took medication for it. The defendant said he did not the defendant to relax, which prompted the defendant to explain that he defendant appeared “jumpy” and was not standing in one place. Linehan told

transported there. Kasinskas was taken to the station first, while the get to the station, Moore told her that he would make sure the defendant was When Kasinskas expressed concern about the defendant not knowing how to The defendant also spoke about souvenir shopping with Kasinskas that day, the past. In response, Moore asked the defendant to give him a “fair shake.” officers, and described having been charged with crimes he did not commit in and made contact with Moore and the defendant. Linehan noted that the example, the defendant spontaneously volunteered that he did not like police At around 10:27 p.m., Detective Dennis Linehan arrived on the scene,

found, explained that “they needed to be transported to the [police station].” returned to where the defendant and Kasinskas stood, and, as the trial court

found that their conversation was “primarily dominated by the defendant.” For While they waited, Moore spoke with the defendant. The trial court

them to come to the Nashua Police Department for interviews. Moore then Sprankle ordered Moore to separate the defendant and Kasinskas and ask while Moore notified Detective Sergeant Rick Sprankle of their arrival. from themselves. Initially, Hill told them to keep away from the residence, defendant returned to Dominico’s house with the goal of diverting suspicion defendant approach the crime scene. Kasinskas testified that she and the At approximately 10:15 p.m., Hill and Moore noticed Kasinskas and the

position on the west side of the house. took charge of “perimeter duty,” and assigned Detective Shawn Hill to a home and roped off a perimeter around the residence. Sergeant William Moore promptly called 911. Shortly thereafter, Nashua police arrived at Dominico’s Dominico’s boyfriend discovered her body later in the evening of August 6 and defendant’s motion to suppress, and have not been challenged on appeal. The following facts were found by the trial court in its order on the

has actually been seized. Beauchesne, 151 N.H. at 810. show of authority, has in some way restrained the liberty of the person.” Constitution provides protection against unreasonable seizures. 258, 259 (1996). “This occurs when an officer, by means of physical force or longer believe he or she is free to leave. Id. at 810; State v. Quezada, 1 p. 4 41 N.H. interaction becomes a seizure, however, when a reasonable person would no few questions.” Beauchesne, 151 N.H. at 809 (quotation omitted). An clearly erroneous. not occur simply because a police officer approaches an individual and asks a persons.” Cote, 129 N.H. at 364 (quotation omitted). Indeed, “[a] seizure does all personal intercourse between policemen and citizens involves ‘seizures’ of limited seizure. State v. Beauchesne, 151 N.H. 803, 809 (2005). However, “not

State Constitution, reasonableness of a seizure is only necessary, of course, when an individual the United States Constitution. We first address his arguments under the 129 N.H. 358, 36 p. 4 4 (1987); see N.H. CONST. pt. I, art. 19. An inquiry into the Article 19 of the New Hampshire Constitution and the Fourth Amendment to State v. Cote, appeal. In support of his claims, he invokes the protections of both Part I, We begin our review here with the baseline rule that the New Hampshire police outside Dominico’s residence. The defendant challenges this ruling on not been “seized” for constitutional purposes during his interaction with the trial court’s legal conclusions, however, is de novo. Id.

the trial court’s factual findings unless they lack support in the record or are statements as the fruit of an illegal seizure of his person at the crime scene. When reviewing a trial court’s order on a motion to suppress, we accept

opinions for guidance only, id. at 232-33.

After a hearing, the trial court denied his motion, ruling that the defendant had casual and nonconfrontational.” See State v. Belton, 150 N.H. 7 p. 4 41, 747, cert. denied, 543 U.S. 1028 (2004). any point during this time period, and found that overall “the atmosphere was the use of physical force or threatening language on the part of the officers at Prior to trial, the defendant moved to suppress his self-incriminating

also led the police to the locations where they had hidden evidence. Kasinskas eventually admitted their involvement in Dominico’s murder. Both After being questioned separately at the station, both the defendant and

not frisk the defendant before doing so. The trial court found no evidence of the station, which lasted somewhere between five and eight minutes. He did p. 5 5

by Linehan whether he “would mind” coming to the station. The defendant

cooperation with the . . . investigation,” questions. Thus, the defendant was acting “voluntarily[,] in a spirit of apparent Within, at most, twelve minutes of Moore’s statement, the defendant was asked investigation; the police did not initially ask them to stop to respond to “transcend[ ] a mere request to communicate.” Beauchesne, 1 p. 5 51 N.H. at 815. and that challenged in themselves at the crime scene to find out what was going on with the be transported to the police station, this statement, in context, did not we find significant distinctions between the police communication at issue here Moreover, despite the fact that Moore told the defendant he “needed” to

free to disregard the officers and leave. See id. finding that a reasonable person in the defendant’s position would not have felt times prior to his arrival at the Nashua Police Department, weighs against a defendant also controlled the flow of his conversation with the officers at all omitted), when interacting with the police. This, coupled with the fact that the

police by returning to Dominico’s residence. He and Kasinskas presented seized during his interaction with the police at the crime scene. At the outset, Here, in contrast, it was the defendant who initiated contact with the

Id. simply walk away. As a result, in both cases we found that seizures occurred. would not have left a reasonable person feeling free to disregard the police and commands, coupled in both cases with a measure of investigative pursuit, the defendant’s position would have understood his situation.” questions. Beauchesne, 1 p. 5 51 N.H. at 815; Quezada, 141 N.H. at 260. Such movement was sufficiently curtailed by considering how a reasonable person in physical force, the defendants were ordered by officers to “stop” and answer defendant in his brief. In both of those cases, although the police never used

In this case, we agree with the trial court that the defendant was not

Quezada, 141 N.H. at 2 p. 5 59-60. the circumstances surrounding the incident. Cote, 129 N.H. at 365; see Further, we conduct an inquiry into an alleged seizure while mindful of all of

one, “requiring a determination of whether the defendant’s freedom of Beauchesne, 1 p. 5 51 N.H. at 809-10. Our analysis of this issue is an objective “may not convey a message that compliance with their request[s] is required,” amount to an official show of authority, Quezada, 141 N.H. at 2 p. 6 60, the police (quotation omitted). While “mere request[s] to communicate” generally do not indicating that compliance with the officer’s request might be compelled.” Id. some physical touching of the person, or the use of language or tone of voice threatening presence of several officers, the display of a weapon by an officer, “Circumstances indicating a show of authority might include the 6

replacement of one of his jurors, Juror 13, after the commencement of

State Constitution.

Linehan and proceed on his way. reason to believe that he was not free to end his conversations with Moore and

to a fair and impartial jury were violated by the trial court’s dismissal and The defendant next argues that his federal and state constitutional rights

reach the same conclusion under the Federal Constitution as we do under our United States v. Espinoza, 490 F.3d 41, 48-49 (1st Cir. 2007). Accordingly, we N.H. 1 p. 6 64, 169 (2007); see Florida v. Bostick, 501 U.S. 429, 434-36 (1991); through his transport to the police station, the defendant had any objective does our State Constitution under these circumstances. State v. Brown, 155 support the contention that, from the time he returned to the crime scene The Federal Constitution offers the defendant no greater protection than neither physical force nor coercive commands. In sum, the record does not Police Department, and also agreed to be transported there. He experienced confessed, see Belton, 150 N.H. at 747. taint of any illegal seizure had been purged by the time the defendant engaged in criminal activity, see Beauchesne, 151 N.H. at 809, or whether the seized the defendant by possessing a reasonable suspicion that he had been Given this holding, we need not inquire whether the police justifiably

The defendant readily agreed to engage in such communication at the Nashua could only be expected that the police would request further communication. a seizure. The defendant voluntarily placed himself in a situation where it on arrival. that the defendant’s encounter with the police at the crime scene amounted to actually accompanied the defendant to the police station and interviewed him In view of all the circumstances presented here, we are not persuaded effect Moore’s statement may have had, especially since it was Linehan who to comply with their wishes. display of weapons or a pat frisk – indicating that the defendant was obligated Riley, 12 p. 6 6 N.H. 257, 264 (1985). The police made no show of force – like a as opposed to being confined, for example, in a police cruiser. Cf. State v. paced at will and at one point sat on the trunk of his own car. He was outside, Linehan at the crime scene, the defendant retained freedom of movement. He Finally, we note that throughout his interaction with both Moore and

binding nature of Linehan’s request significant and curative of any coercive immediately responded he “had no problem” with that. We find the non- p. 7 7

the modern sense. Okay? who’s competent to be a juror. That’s what juror of peers means in necessarily the same community, but a citizen of the United States

defendant or the State.

of the day, after the court made clear that an absence would require dismissal location of the alleged appointment. During a voir dire of the juror at the end conference with counsel, the trial court expressed skepticism about the excused from court on July 5 for a medical appointment in New York City. In a peer is intended. It simply means a citizen of the same – not the – On the sixth day of trial, June 2 p. 7 7, 2005, Juror 13 requested to be

him or know something about him, and – This exchange prompted no questions or concerns from counsel for either the

Juror 13: Okay.

presents us a problem or not.

court proceeded as follows: The Court: That – that’s not the – the manner in which the word

Juror 13: Well if I’m a jury of his peers, it means I probably know

The Court: Why? How – how could it, sir?

of our peers. I don’t know Mr. Sullivan, and I don’t know if that constitutional claim. Juror 13: I’ve got a little problem as this is supposed to be a jury our State Constitution occurred. Accordingly, we need not reach his federal In this instance, we agree with the defendant that violations of his rights under from the remaining original jurors that they could feasibly restart deliberations. purpose of serving on a “jury of [the defendant’s] peers.” His dialogue with the inquire whether he could really be considered a “peer” of the defendant for the of general jury instructions on June p. 7 7, 2005, Juror 13 approached the court to of the trial judge on a number of occasions. Following the trial court’s issuance Over the course of the defendant’s trial, Juror 13 required the attention

erred when substituting an alternate by failing to secure adequate assurances maintains that, even if the dismissal of Juror 13 was proper, the trial court from the panel deciding his case without adequate cause. Second, he Specifically, the defendant first argues that the trial court dismissed Juror 13 103-05 (1993); see also U.S. CONST. amend. VI; N.H. CONST. pt. I, art. 15. deliberations. See Opinion of the Justices (Alternate Jurors), 13 p. 7 7 N.H. 100, case-in-chief,” and argued, citing 8 p. 8 been inattentive and sleeping “through a substantial portion of the State’s

answer to you just as soon as possible.

have Juror 13 declared an alternate. The State contended that Juror 13 had between Juror 13, who had apparently once been a member of the state Moreover, counsel for the State reported the discovery of correspondence

not to submit questions for witnesses. that he had also “disregarded” the court after it had “repeatedly” advised jurors morning, the State supplemented its complaint vis-à-vis Juror 13 by arguing an appropriate exercise of discretion. In a hearing on the matter the next (2005), that non-randomly selecting Juror 13 to serve as an alternate would be been written down and submitted to me now . . . and we’ll get an asked to write them down very much in the manner that they’ve State v. Fernandez, 152 N.H. 233, 239-40 of law . . . , in fact, you can [ask questions] – the foreperson will be questions of fact, I cannot help you. . . . But if you have questions On the fifteenth day of trial, July 11, the State filed pleadings seeking to the closing arguments of counsel. . . . already given such a caution to the jury in the past. We note that the court mistakenly indicated to counsel on July 7 that it had this juncture it cannot answer any of those questions.

But that only begins when deliberations begin[ ].

this conference. And part of those instructions say that if you have any however, that no such instruction was actually given to the jury as a result of . . . But in the end you’ll receive written instructions after

perhaps it’s a good time for the court to remind the jury that at The court has been handed a few more questions. And

ask questions: during the trial. day, after consultation with counsel, the court did address the jury’s ability to advocate and an intern had observed Juror 13 sleeping “a number of times” On July 7, Juror 13 again submitted a question for a witness. On that

offered to issue an instruction to the jury to that effect. The parties agree, that he would not allow juror questions to be transmitted to witnesses, and bench conference with counsel just before a lunch recess, the trial judge stated certain questions asked of Kasinskas, who was testifying at the time. At a On June 30, the court received two notes from Juror 13 seeking to have

same day, counsel for the State indicated to the court that a victim-witness from jury service, Juror 13 offered to reschedule his appointment. On that him very, very closely . . . .

sufficiently alert throughout the proceedings. . . . I was observing

of the attorneys. . . . And it’s clear that probably [Juror 13] didn’t disqualifying one, by any means. essential periods of the trial. day whether the [pro]spective jurors had had any dealings with any certainly an alarm bell at that juncture, but it was not a appeared to be asleep, but they were very brief and they were not Even in the most rudimentary form, the court inquired on the first the apparent history of contact, with the Attorney General’s Office. mere selection as an alternate. The most troubling aspect, though, starts with the contact, very close concern about the nature of the testimony. . . . evinced a close awareness of what was going on in the trial and a attempting to offer, but nevertheless, I satisfied myself that he was that he repeatedly sent notes. They actually, to some degree, make sure that everything is on the record. soporific arguments . . . that the [S]tate or the defense was As to the notes, the court is not overly troubled by the fact three periods that I observed of him . . . responding to some . . . .

Sullivan’s peers. I don’t know that I’m his peer. And that was during trial. There were three very brief periods where he I found nothing improper in [Number] 13’s attentiveness in the prosecution of the defendant – merited his dismissal, as opposed to his

problematic was obvious to the court from the beginning. So let’s [Number] 13 during the course of the trial because there were The court further became concerned with . . . Juror

. . . he said, judge, you know . . . I’m supposed to be a jury of Mr. instructions. And his question . . . was . . . roughly as follows: members of the Attorney General’s Office – even though they were not involved approached the court with a question following general contended that Juror 13’s failure to disclose his familiarity with multiple The court first became concerned about this juror when he produced “a strong reprimand” about his behavior while in office. The State

The fact that this juror was problematic or could have been

response to the State’s motion: On July 12, the trial court made the following findings and rulings in

on the evening of July 11, related to a 2003 investigation of the juror that had legislature, and the Attorney General’s Office. That correspondence, uncovered p. 10 10

the dictionary because, in his view, the court’s definition “didn’t seem to be

away. (Knowing it was not supposed to be here.) when several other jurors recognized it and asked him to put it Juror 13, who stated that he had planned to look up the word “conspiracy” in law book. He opened it for just a second (perhaps 5- p. 10 10 seconds), The court immediately halted deliberations and conducted a voir dire of letting you know. was a copy of Black’s Law Dictionary. The juror referred to by the note was Juror 13, and the “law book” in question

on this, or what else I should or could do. As I noted, I am not sure if you need any other information otherwise) to be an alternate prior to the start of deliberations. He put it back in his bag and did not refer to it. arguments and the court’s jury instructions, and was not chosen (randomly or

One of the jurors brought in what looks to be some sort of

I do not know if I am required to report this, but I am and

received a note from the jury foreman stating the following: and that he is subject to disqualification . . . . On July 14, 2005, the second day of deliberations, the trial judge isn’t, I can’t say that this juror has violated his oath intentionally say, applying the general standards of what’s speculation and what

the defendant.”). Juror 13 thus remained impaneled through closing and that you will deliver a fair and true verdict as to the . . . charges against will carefully consider the evidence and the law presented to you in this case correspondence] based upon what I’ve observed of this gentleman. state.nh.us/jury/juror_handbook.htm (“You solemnly swear or affirm that you See also New Hampshire Juror Oath, available at http://www.courts.

The constitutional issue has been framed and I just can’t

. . . .

. . . It’s just as likely that he has forgotten [about the

. . . .

required[ ] to disqualify him. . . . violation of his oath as a juror, which is what I’m ruling would be The court cannot say in a vacuum, though, that that is a had contact with people with the Attorney General’s Office. . . . ever have any contact with [the prosecutors], but he certainly has p. 11 11

clerk of court to draw the name of an alternate to replace Juror 13.

is clear grounds for disqualification.

oath[s]. done properly by jurors who have the capacity to follow their fundamental duty of this court to ensure that deliberations are Over defense counsel’s repeated objections, the trial judge then instructed the additional time to research it.

follow clear instructions from this court. And that I submit to you It’s a deliberate inability [ ]or a deliberate refusal . . . to

. . . .

marked as court exhibits in this case.

It is a fundamental matter, I will grant you that, but it is a following findings and ruling: questions to me. been able to actually utilize the book. At this juncture, the trial court made the questions, continually throughout the trial submitted written disqualified and I’m rejecting [defense counsel’s] request to have arguments and labeling Juror 13’s actions “innocuous” given that he had not And as a result of this cumulative effect, I find that he is Black’s Law Dictionary. he deliberately went out of his way to obtain law as provided by based solely on the evidence and the law as I gave it to them. And decide the case, he and his fellow jurors are to decide the case This is a juror who was specifically instructed that he is to

questions after having been told not to do so and they are all . . . [T]his is the juror who repeatedly sought to ask

having been told repeatedly that he was not allowed to submit Juror 13 from the panel. The defense again objected, raising constitutional And so that the record is clear, this is the [juror] who, after his oath and deliberate consistent with the instructions. serious concerns in this court’s mind about his ability to adhere to fellow jurors told him to put the book away. oath[s]. And it’s a pattern with this gentleman that has raised parties are entitled to jurors who will refrain from violating their as the law of humanity will permit, among other things. But all Well, what [the defendant] is entitled to is a jury as impartial

In response to this information, the State renewed its motion to remove

prior to coming to court, and had not had time to read anything in it before his totally complete.” Juror 13 also stated that he had not used the dictionary p. 12 12

juror have had the benefit of the unavailable juror’s views. the other jurors along their paths to a decision. Nor will the new interplay of influences among and between jurors, that advanced part of the dynamics of the prior deliberations, including the

using an alternate juror once deliberations have begun”). We have risks involved, “this standard comes down firmly on the side of prohibition of Justice, Discovery and Trial by Jury § 15-2.9 cmt. at 177 (3d ed. 1996) (given Burnette, 775 P.2d at 588 (citations omitted); cf. ABA Standards for Criminal

to persuade others. Moreover, the new juror will not have been juror will not have a realistic opportunity to express his views and defendant’s guilt or innocence, there is a real danger that the new under our State Constitution to have a fair and impartial jury resolve his case. which some jurors may have formed opinions regarding the of preventing unnecessary mistrials, it also implicates a defendant’s right Where an alternate juror is inserted into a deliberative process in sitting juror becomes “disqualified.” While this statute serves the laudable goal 104 (quotation omitted). and is fraught with potential for error.” Opinion of the Justices, 137 N.H. at (Colo. 1989). “The discharge of a deliberating juror is a sensitive undertaking intrusion upon the deliberative process,” People v. Burnette, 775 P.2d 583, 590 just verdict cannot be reached if there is an inappropriate interference with or jury room is sacrosanct,” State v. Alexander, 143 N.H. 216, 227 (1998), and “a art. 15; State v. Colbert, 139 N.H. 367, 371-72 (1995). This is because “[t]he See Opinion of the Justices, 137 N.H. at 103-05; see also N.H. CONST. pt. I,

perform must appear in the record as a demonstrable reality.” nature of the decision to remove a deliberating juror, a juror’s “inability to a sitting juror after the commencement of deliberations in the event that a RSA 500-A:13, V (1997) permits the substitution of an alternate juror for

the trial court. on the charges against the defendant in accordance with the law outlined by consider the evidence presented at trial, and to deliver a fair and true verdict to dismiss a deliberating juror is for an unsustainable exercise of discretion. discretionary decision below). To “perform,” in this context, means to carefully 147 N.H. at 296 (record must establish an objective basis to sustain Williams, 21 P.3d p. 12 1209, 1213 (Cal. 2001) (quotations omitted); see Lambert,

(explaining unsustainable exercise of discretion standard). Given the sensitive 10(a) (1991 & Supp. 2007); see also State v. Lambert, 147 N.H. 295, 296 (2001) With Alternate After Case Has Been Submitted to Jury, 88 A.L.R.4th 711, § Propriety, Under State Statute or Court Rule, of Substituting State Trial Juror See Com. v. Zimmerman, 804 N.E.2d 336, 340 (Mass. 2004); Annotation,

sufficient cause to dismiss Juror 13. Appellate review of a trial court’s decision We turn now to the defendant’s argument that the trial court lacked an abuse of discretion for the judge to conclude that allowing the juror to

p. 13 to the presiding judge. In this instance, the Appeals Court held that “it was not

the defendant involved. The officer later reported his interaction with the juror to be an off-duty police officer, who readily offered his unfavorable opinion of to which he had been assigned. The patron with whom he conversed happened

deliberative process.

while shopping at a Home Depot, discussed the substance of the murder trial relations with her fellow jurors and about “her apparent hold-out position,” jury’s deliberations over the phone. Instead, she complained about having poor Peppicelli, 872 N.E.2d at 1148-49. In that case, a juror, deliberating juror whose failure to follow court instructions could affect the In contrast, Peppicelli illustrates the necessity of dismissing a

harmless. Therefore, the juror’s failure to follow instructions was deemed essentially unable to be fair and impartial or unable to continue deliberating. Id. at 566. Massachusetts Appeals Court noted the lack of findings that the juror was had abused its discretion by dismissing the juror for using the phone, the make findings on the record establishing a “meritorious reason” for dismissal. her being the lone vote for acquittal. Id. at 565. In finding that the trial court deliberating juror, we require trial courts to ask questions of that juror and i.e.,

brackets omitted). The juror did not, however, discuss the substance of the third party within the earshot of other jurors.” Id. at 565 (quotation and for “violat[ing] her oath by discussing the deliberations over the phone with a For example, in Rodriguez, the trial judge discharged a deliberating juror

(Mass. App. Ct. 2005). to dismiss a juror per se. See Com. v. Rodriguez, 828 N.E.2d 556, 565-66 mere failure to follow instructions, in and of itself, is not a meritorious reason v. Peppicelli, 872 N.E.2d 1142, 1148-49 (Mass. App. Ct. 2007). However, the instructions of the court may be a meritorious reason for dismissal. See Com. natural flow of deliberations without just cause. Thus, prior to removing a As the defendant concedes, a juror’s failure or refusal to follow the

(citing same standard). (Mass. 1984) (quotation omitted); see Opinion of the Justices, 137 N.H. at 104 relationship with his fellow jurors.” Com. v. Connor, 467 N.E.2d 1340, 1346 having nothing whatever to do with the issues of the case or with the juror’s dismissing a deliberating juror] includes only reasons personal to a juror, not permitted to evade his or her responsibilities. Id. “Good cause [for Id. at 105. Great care must be taken to ensure that a lone dissenting juror is

Specifically, trial courts must scrupulously avoid interrupting the

Justices, 137 N.H. at 104-05 (quotation omitted). only in special circumstances, and with special precautions.” Opinion of the consequently held that “[t]he discharge of a deliberating juror is . . . to be done submissions.

p. 14 questions needed to be held until deliberations, Juror 13 ceased his

issued – for the first and only time – an instruction on July 7 stating that instructed not to. To the contrary, the record reveals that after the trial court that Juror 13 had “continually” submitted questions after being “repeatedly”

grounds for reversal. disobedience will likely amount to an unsustainable exercise of discretion and Moreover, there is no support in the record for the trial court’s July 14 finding opposes the discharge of a particular juror, disqualification for more general record, and the trial judge gave no reason for reversing them on July 14. done over a defendant’s objection. Indeed, where it is the defendant who members of the Attorney General’s staff. These decisions are supported by the evidence of an inability to deliberate fairly despite the juror’s past dealings with

dismissing a deliberating juror is lessened considerably, and should not be outlined by the trial court. Absent these types of impacts, the necessity of submission of questions to be evidence of attentiveness, and found no concrete impartially consider the evidence presented at trial, or to apply the law as July 12, the trial court dismissed Juror 13’s sleeping as insignificant, found his impacts include, most pertinently, an effect on the individual juror’s ability to engaged in a “pattern” of disobedience amounting to a violation of his oath. On have a relevant demonstrable impact on the deliberative process. Relevant the record does not fairly support his July 14 conclusion that Juror 13 had In the present case, given the trial judge’s extensive findings on July 12,

on the deliberative process as a whole. See Connor, 467 N.E.2d at 1347. impact on that juror’s impartiality and ability to decide the case in question, or warranted where a failure or refusal to follow instructions will likely have some

500-A:13, V, only if it is more likely than not that the juror’s disobedience will constitutes a meritorious reason to disqualify a deliberating juror, see RSA Therefore, we hold that a failure to follow the court’s instructions

who conducted out-of-court evidence gathering properly dismissed). of reasoning. In general, those cases illustrate that dismissal of a juror is for dismissal); Kalianov v. Darland, 252 N.W.2d 732, 737 (Iowa 1977) (juror relative during lunch break to seek input on guilt of defendant; “sound basis” (same); Boler v. State, 522 S.E.2d 676, 677 (Ga. Ct. App. 1999) (juror met with U.S. 907 (2002); Cloud v. State, 510 S.E.2d 370, 372 (Ga. Ct. App. 1998) unstable juror who refused to deliberate properly dismissed), cert. denied, 537 Diaz, 115 Cal. Rptr. 2d 799, 803-08 (Ct. App.) (intimidated and emotionally oath to consider evidence and applicable law properly dismissed); People v. F.3d 606, 614 (2d Cir. 1997) (juror intent on nullifying charges regardless of

A survey of reported decisions from other jurisdictions supports this line

process.” Id. at 1149 (quotation omitted). return to deliberations would have irreparably tainted the jury’s deliberative constitutional right. p. 15 meritorious discharge of a deliberating juror is a violation of a fundamental

contrary necessitates reversal of the defendant’s convictions, since the non-

meritorious reason to dismiss him from the panel. The trial court’s order to the supervision over the course of a lengthy trial, we conclude that there was no trial court may have experienced frustration with Juror 13’s need for

– a failed attempt to use a legal dictionary – had no demonstrable impact on the contrary. We further find that the final act leading to Juror 13’s dismissal record in this case, largely in light of the trial judge’s own extensive findings to participation in deliberations that should not have been disturbed. was properly impaneled; the defendant had a vested interest in his continued

the trial judge did not discredit Juror 13’s trial court may have been frustrated with it. We do emphasize, though, that generally follow directions or deliberate appropriately is not borne out by the In sum, we find that the trial court’s ruling that Juror 13 could not

dictionary had a demonstrable impact on the deliberative process. does not demonstrate that Juror 13’s unsuccessful effort to use a legal find the lack of a taint on the deliberative process to be controlling. The record use of a dictionary, no grounds for a mistrial exist. See id. Similarly, here, we in the instructions.” Id. (quotation and emphasis omitted). Absent prejudicial jury actually substituted the dictionary definition of a legal term for that given unauthorized use of a dictionary, the trial judge should determine whether the v. Gillespie, 61 F.3d 457, 459 (6th Cir. 1995). “When a jury makes instructions. We do not condone this behavior and can understand why the relevant way, courts tend to reject calls for a mistrial. See, e.g., United States court’s definition of the law of conspiracy in violation of the court’s dictionary has been brought into deliberations but has not been used in any His action, to be sure, evidenced an intent to supplement or modify the trial We also note that under these circumstances, namely, where a legal had an impact on his own ability to deliberate, or on that of his fellow jurors. deliberate inconsistently with the law handed down by the court. record does not support a finding that Juror 13 would have gone on to the defendant that the legal dictionary incident was innocuous, since the influenced Juror 13’s view of the law of conspiracy. We therefore agree with dictionary had not yet been used, or find that the dictionary had somehow

Juror 13. There is no evidence that Juror 13’s attempt to use the dictionary dismissal, or contributed to a would-be “pattern” of violations on the part of We disagree, however, that this act constitutes a meritorious reason for “as a result of [a] cumulative effect,” Juror 13’s behavior warranted dismissal. Nevertheless, after the legal dictionary incident, the trial court found that p. 16 16

verdicts on the indictments.

words, it’s not simply enough to renew where you left off. instructions, go back and start with the instructions. In other The jury was then released to deliberate, and ultimately returned guilty make sure you cover that base. If you started with the

instructions? Alright. Thank you very much. Is there anyone who does not understand the court’s at the beginning and we look forward to your work product. . . . . . . Ladies and gentlemen, I instruct you once again to begin

. . . .

and that includes going over exhibits, if it happened to be there, You have a collective memory of where you started, I’m sure, collective – I see[ ] nodding heads, and I’m very grateful for that. responded affirmatively. bring the alternate colloquially up to speed. And you have a as a group, whether they felt they could still be fair and impartial. All eleven instructing you to colloquially . . . start from square one and not that. I am instructing you to go back to the beginning. I’m I am instructing you to do something more burdensome than enough. That’s not enough. appropriate and then you shall renew deliberations. But that’s not deliberations and give you such other instructions as may be The statute says that I am to instruct you to recommence

The court then issued the following additional instructions:

replacement would have an effect on deliberations. The jurors were also asked, any impact on his or her deliberation, and whether Juror 13’s dismissal and when asked whether Juror 13’s attempted use of a legal dictionary would have of each of the remaining eleven jurors. Each juror responded in the negative After the discharge of Juror 13, the trial judge undertook a brief voir dire

this point, too, and thus find further grounds for reversal. would completely restart their deliberations. We agree with his argument on inadequate guarantees from the remaining original jurors that they could and the court’s instructions” to the jury, he maintains that the court secured when it seated Juror 13’s replacement. While he “makes no complaint about The defendant also challenges the procedures employed by the trial court

implicated by the removal of a deliberating juror. There is a sanctity in ongoing

we find further cause to reverse the defendant’s convictions.

nature of the crime charged but upon the fundamental constitutional right must In reversing the defendant’s convictions, our focus is not upon the

deliberations. Because the trial court failed to secure such guarantees here, becomes necessary to seat an alternate juror after the commencement of of twelve arrive at a common verdict sufficiently protected in the event that it decision after engaging in cases where this is possible is a defendant’s constitutional right to have a jury aside all opinions and conclusions formed during prior deliberations. Only in added). In other words, each juror should be certain of his or her ability to set deliberations anew.” Opinion of the Justices, 137 N.H. at 104 (emphasis and impartial jury.” ask each remaining juror whether he or she “can and will start the therefore, essential to satisfying the defendant’s constitutional right to a fair to substituting an alternate for a deliberating juror, trial courts in this state aside and disregard all past deliberations and begin deliberating anew is, repeating all prior arguments for the sake of the newcomer.”). Therefore, prior discussing the case anew as though no prior deliberations had occurred, and deliberations with the alternate juror. when so instructed by the court, the jury could truly go back to ‘square one,’ instructions as may be appropriate. The jury shall then renew its for Criminal Justice, supra § 15-2.9 cmt. at p. 17 176 (“[I]t is uncertain that, even (emphasis added). This holding is not merely hortatory. Compare ABA Stds. affirmatively state that they can and will start the deliberations anew.” Id. stem from the right of a defendant to have each juror arrive at his or her We have also held, however, that “the remaining jurors should concerns about the substitution of an alternate juror for a deliberating juror concern with its instructions. once again “start from square one” with its new member. Constitutional

(quotation omitted). “Requiring that the trial court instruct the jury to set deliberations which are the common experience of all of them.” Id. at 104 unanimous verdict is not met unless those 12 reach their consensus through deliberations and shall give the jury such other supplemental Justices, 137 N.H. at 103-04. “The requirement that 12 persons reach a

deliberations after the legal dictionary incident. Instead, the jury needed to As the trial judge indicated, the reconstituted jury could not simply resume

[t]he presiding justice shall instruct the jury to recommence

the place of a disqualified juror, RSA 500-A:13, V provides, in pertinent part, that after an alternate takes p. 18 18

matter to the trial court for further proceedings consistent with this opinion.

DALIANIS and GALWAY, JJ., concurred.

regardless of the nature of the crime alleged. With that said, we remand this jury deliberations that should not be disturbed unless patently necessary,