2007-072, STATE OF NH v. ANGEL COSME

Kelly A. Ayotte

No. 2007-072

Strafford

the Superior Court (Fauver convictions for misdemeanor sexual assault, RSA 632-A:4 (2007), arguing that BRODERICK, C.J. The defendant, Angel Cosme, appeals his two

Christopher M. Johnson

court had a practice of verbally instructing prospective jurors on legal concepts and to be present at the pretrial jury orientation because, he alleged, the trial counts of misdemeanor sexual assault. In August, he filed a motion to record was charged with one count of aggravated felonious sexual assault and two The following facts appear in the record. In April 2006, the defendant

panel. We affirm.

brief and orally, for the defendant. THE SUPREME COURT OF NEW HAMPSHIRE , chief appellate defender, of Concord, on the

general, on the brief and orally), for the State.

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 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New 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

interaction with the pool of prospective jurors outside the presence of the jurors. Rather, he contends that the trial court’s unrehearsed and unrecorded The defendant does not object to educating and orienting prospective

presiding judge followed by questions from the prospective jurors. orientation includes a video presentation and an informal oral address by the 139-53 (Part D and Standard 16) (1993). Our state’s practice for jury at 704. See generally ABA Standards Relating to Juror Use and Management any anxiety about their involvement in the process. See id.; Delgado, 513 A. p. 2 2d been a common practice among courts in the United States for some time. See American legal system, as well as removing the shroud of mystery and relieving selected to potentially sit as a juror on any specific case. Jury orientation has educating prospective jurors about their role and responsibilities in the reporting for jury duty are first assembled in the courthouse but not yet Vance, 250 S.E.2d at 152. This practice is acknowledged as a means of the process prior to criminal, civil or equitable proceedings when individuals legal concepts they will confront should they be selected to sit on a case. See the legal process, the system of advocacy and, at times, the meaning of certain The defendant challenges our state’s practice for jury orientation; that is, service, the trial court provides them with information and instructions about App. 1965). When newly called jurors are first assembled to begin their term of appeal followed. A.2d 1317, 1322 (Md. 1990); Mele v. Becker sexual assault charges and acquitted the defendant of the felony charge. This, 134 N.W.2d 846, 847 (Mich. Ct. 63 (Md. Ct. Spec. App. 1975), overruled on other grounds by applicable law. The jury returned guilty verdicts on the two misdemeanor Sims v. State, 573 513 A.2d 701, 704 (Conn. App. Ct. 1986); Brown v. State proceeded, and at the close of the evidence, the jury was instructed on the, 349 A.2d 359, 362e.g. appellate review. The trial court denied the motion to strike. The trial, State v. Vance, 250 S.E.2d 146, 151-52 (W. Va. 1978); State v. Delgado, the criminal process and the ability to raise and preserve substantive issues for, orientation deprived him of both his right to be present for a critical stage of trial court’s practice of discussing legal concepts with prospective jurors during Fourteenth Amendments to the United States Constitution, arguing that the upon Part I, Article 15 of the State Constitution and the Fifth, Sixth and During jury selection, the defendant moved to strike the jury panel based

already received orientation prior to jury selection. taken on the defendant’s motion until after the pool of prospective jurors had referenced the type of evidence that may be presented at trial. No action was the Wentworth model, see State v. Wentworth, 118 N.H. 83 p. 2 2 (1978), and presiding justice gave an instruction on reasonable doubt which deviated from averred that he had been present at prior orientations during which the and responding to questions of individual prospective jurors. Defense counsel right to a record, in the context of ex p. 3 We have had occasion to review the right to be present, and the corollary

recitation to counsel on the record of the substance of the discussion. Id.; panelists that are outside of the hearing of counsel but are followed by a capital murder, of holding discussions on the record with individual venire constitutional the trial court’s practice, in cases other than first degree and voir dire and after the commencement of trial. For example, we have held

request to excuse a juror. Id. later challenges the trial court’s action, such as rejecting the defendant’s Second, the record permits appellate review of the discussion if the defendant conducted outside the presence of trial counsel.” Hannan, 137 N.H. at 614. impartial jury by enabling him to respond to issues raised during discussions the defendant an opportunity to be heard and protects his right to trial by an a record and providing it to a defendant serves two purposes: “First, it grants present during such discussion); Hannan, 137 N.H. at 614 (same). Preserving discussion required to be recorded stemmed from defendant’s right to be proceedings. See Castle, 128 N.H. at 651-52 (analysis of whether ex parte judicial communications with a juror made in the course of criminal The right to be present also encompasses the right to a record of ex parte

470 U.S. at 526. Castle well as the right to due process.” State v. Hannan, 128 N.H. at 651 (quotation, brackets, and ellipsis omitted); Gagnon, the extent that a fair and just hearing would be thwarted by his absence.” favorable proofs, confront witnesses, and be fully heard in one’s defense, as 522, 526 (1985). “The presence of a defendant is a condition of due process to derives from the specific guarantees set forth in part I, article 15 to produce all (1986) (quotation and brackets omitted); see “The defendant’s right under the State Constitution to be present at trial United States v. Gagnon, 470 U.S. opportunity to defend against the charge.” State v. Castle, 128 N.H. 649, 651 presence has a relation, reasonably substantial, to the fulness of his State Constitution protects his right to be present “whenever the defendant’s a witness or evidence, due process as guaranteed by Part I, Article 15 of the Spain, 464 U.S. 114, 117 (1983). Even when the defendant is not confronting critical stage of the criminal process set against the defendant. See Rushen v. (quotation omitted). This right attaches to any proceeding that constitutes a

cases for guidance only, id. at 232-33. constitutional claims, State v. Ball, 12 p. 4 4 N.H. 226, 231 (1983), and cite federal novo. State v. Dupont, 155 N.H. 644, 645 (2007). We first address state the United States Constitution. We review questions of constitutional law de of the State Constitution and the Fifth, Sixth and Fourteenth Amendments to violated his constitutional rights. He specifically relies upon Part I, Article 15 defendant and his counsel, which may have included instructions of law, 4

criminal charge. against a witness, a party, or specific type of factual scenario, civil claim or witnesses, nor asked to assess any specific personal prejudice they may have prospective jurors. The jury pool is not informed of any specific facts or whether civil or criminal, nor any specific defendant, is presented to the pool of during orientation from those made to empaneled juror). No specific case, see Delgado, 513 A.2d at 70 p. 4 4 (distinguishing ex parte judicial remarks made proceedings,” such as jury voir dire, is subject to defendant’s right to a record); id. at 421 (judicial statement made to jurors “in the course of criminal made in the course of criminal proceedings against any specific defendant. Cf. some point prior to the rendering of a verdict because such commentary is not same as communication during jury selection, while a trial is in progress, or at our State Constitution. Judicial commentary during orientation is not the defendant’s right to be present or right to a record under Part I, Article 15 of Jury orientation is not the type of proceeding that triggers a criminal

impartiality among jurors.” Bailey, 127 N.H. at p. 4 421. reasonably necessary to promote the objective of ensuring fairness and record[,] [t]hese issues . . . call for judgments about the procedures that are [jury] panelists [or prospective jurors] in the presence of counsel or on the Constitution contains “any black letter requirements to conduct colloquies with omitted; emphases added). Because neither the State nor the Federal transcribe every such communication.” Gagnon, 470 U.S. at 526 (quotation judge and a juror, nor is there a constitutional right to have a court reporter defense has no constitutional right to be present at every interaction between a beyond a reasonable doubt that the error was harmless. Id and a juror does not constitute a deprivation of any constitutional right. The The “mere occurrence of an ex parte conversation between a trial judge

the conversation and refused counsel’s request for voir dire). and before deliberations began required reversal because court failed to record 652-53 (ex parte communication with empaneled juror after trial concluded the first instance. Hannan, 137 N.H. at 61 p. 4 4-15; see also Castle, 128 N.H. at communication with an empaneled juror or fails to record such discussion in This standard applies if the trial court fails to notify counsel of an ex parte parte discussions with venire panelist even if such a record is not requested). Brodowski, 135 N.H. 197, 202 (1991) (trial court must preserve record of ex

provide a record in such circumstance requires reversal unless it appears request.” Bailey, 127 N.H. at p. 4 421. Thus, we have held that the refusal to that should not be subject to counsel’s absolute right to a record upon of any statement made in the course of criminal proceedings before the court requirement for a record in such circumstances, stating that “we cannot think State v. Bailey, 127 N.H. 416, 421 (198 p. 5 5). We have emphasized the 5

orientation was questionable, record did not show that defendant suffered 408, 428 (Kan. 1997) (while judicial remark on reasonable doubt during jury left unsaid, no prejudice to defendant’s case shown); State v. Aikins judge engages in ex, 932 P.2d N.W.2d at 848-49 (while certain orientation remarks would have been better impartial jury may be potentially threatened, to some degree, whenever a trial to the extent that the defendant suffers actual prejudice. See We acknowledge, nevertheless, that a defendant’s right to a fair and Mele, 134 if the fairness of the proceeding or the impartiality of the jury is compromised parte judicial commentary during orientation warrants reversal, however, only erroneous statement of law is not disputable.” Vance, 2 p. 5 50 S.E.2d at 152. Ex to fair trial). “That a trial judge might commit a slip of the tongue or make an instances may arise in which a grossly erroneous statement compromises right and impartial jury); Delgado, 513 A.2d at 705 n.4 (acknowledging that court acknowledged possible threat to defendant’s constitutional right to fair 250 S.E.2d at 151-52 (though pretrial orientation meeting not a critical stage,

we do under the State Constitution. p. 5 526. Accordingly, we reach the same result under the Federal Constitution as at 614; Castle, 128 N.H. at 651; Rushen, 464 U.S. at 117; Gagnon, 470 U.S. at does the State Constitution under these circumstances. See Hannan, 137 N.H. The Federal Constitution offers the defendant no greater protection than

no constitutional infringement. p. 5 52, we conclude that failure to record the orientation proceeding also caused derived from the right to be present in this case, see Castle, 128 N.H. at 651defendant had no right to be present. Because the right to require a record is 151; Delgado, 513 A.2d at 704-05; Brown, 349 A.2d at 363. Accordingly, the ability to defend against pending criminal charges. See Vance, 250 S.E.2d at hallmarks of a proceeding in which his presence is necessary to preserve his criminal proceedings instituted against a defendant, and does not bear the we conclude that orientation of prospective jurors is not a critical stage of concepts they will later face should they be chosen to sit on a case. Therefore, be informed about the legal process and generally educated about legal Jury orientation simply provides an opportunity for prospective jurors to

Id. at 106-07. when his presence would otherwise “be useless, or the benefit but a shadow.” summation of counsel). A defendant has no constitutional right to be present accuser, cross-examining witnesses, examining jurors, and heeding factual 106 (1934) (right to be present implicated when proceeding involves confronting no specific case is ever discussed. Cf. Snyder v. Massachusetts, 291 U.S. 97, to defend against the charges pending against him because during orientation through legal counsel, would not provide him with any meaningful opportunity Likewise, a defendant’s presence at orientation, either personally or p. 6 See

and that’s just for the record.

the video and we answer questions. I did that in this case, you feel better, we supplement somewhat the - - what’s on after and answer questions, and we make - - we sort of make court in the state or jury court in the state, that we go in

and I believe just about every court in the state, every trial in addition to the video . . . it is the practice of this Court, have been confused by any chance discrepancy between statements made close of the case and provided in written form. To the extent the jury could understand that they are bound to follow the law as instructed to them at the denied constitutional significance. p. 6 See, 128 S. Ct. 63 (2007), and we conclude that average jurors are able to the court’s instructions, see the possibility of the survival of any prejudice is so slight as to give it no State v. Ayer, 154 N.H. 500, 513 (2006), cert. instructions to rely upon during deliberations. Jurors are presumed to follow meet his burden of establishing that he suffered any actual prejudice. Indeed, you find them to be,” and also provided the jury with a written copy of the Moreover, based upon the record before us, the defendant has failed to “You will decide the case by applying the law that I give to you to the facts as reasonable doubt, all without objection. Further, the trial court directed that, the standard of proof required concerning both, and also defined the concept of the court explained the nature of direct and circumstantial evidence, including to the case just prior to deliberations, without objection. In its instructions, practice; namely, that: course of two days, and the trial court instructed the jury on the law applicable trial judge. However, the trial court in this case informed counsel of its regular between one and two weeks prior to trial, the trial was conducted over the recorded, we cannot review the propriety of the actual statements made by the id. at 704. Orientation occurred sometime Obviously, because the orientation at issue in this appeal was not

responding to questions. about the law, flawed or otherwise, when supplementing the video or there is no indication from the court’s recitation that it made any statements the particular substance of the court’s communication with the jury pool, and made during jury orientation). Notably, the defendant did not inquire about Delgado, 513 A.2d at 703 (reviewing trial court’s reconstructed remarks

(quotation omitted). not sufficient to overturn a verdict or judgment.” Aikins, 932 P.2d at 428 however, that the “mere possibility of prejudice from a remark of the judge is upon whether it likely could have affected outcome of case). We emphasize, impermissible remark by prosecutor justifies reversal of verdict depends in part actual prejudice); see also State v. Mussey, 153 N.H. 2 p. 7 72, 280 (2006) (whether 7

DALIANIS, DUGGAN, GALWAY and HICKS, JJ., concurred.

Affirmed

jury orientation should be accomplished through rulemaking. See governing the interaction between the trial court and prospective jurors during the fairness of trial proceedings and jury impartiality, specific procedures On a prospective basis, in order to curtail the possibility of compromising

51(A)(1)(b); State v. Abram, 153 N.H. 619, 62 p. 7 7-28 (2006).

impartiality of the jury, causing the defendant to suffer actual prejudice. statement during orientation that compromised the fairness of the trial and the that the record reveals no meaningful likelihood that the trial court made any questions that may have arisen during deliberations. Accordingly, we conclude clarification. Namely, the trial court instructed them on how to pose any during orientation and the jury instructions, they had a means of seeking