2008-441 & 2008-814, State of New Hampshire v. Andrew Santiago

hosted a party at his parents’ home in Candia. There were approximately The record supports the following. On July 18, 2007, Ricky Menczywor

We affirm. denying his proposed voir dire question and his motion to reconvene the jury. Superior Court (McHugh, J.). He appeals, arguing that the trial court erred in count of accomplice to robbery, see RSA 636:1 (2007), following a jury trial in DUGGAN, J. The defendant, Andrew Santiago, was found guilty of one

and orally, for the defendant. Paul Borchardt, assistant appellate defender, of Concord, on the brief

attorney general, on the brief and orally), for the State. Michael A. Delaney, attorney general (Thomas E. Bocian, assistant

to press. Errors may be reported by E-mail at the following address: Opinion Issued: March 10, 2010

2008-814 Nos. 2008-441 editorial errors in order that corrections may be made before the opinion goes Rockingham Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

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 but convicted him of accomplice to robbery. The defendant appealed. p. 2 The jury acquitted the defendant on the robbery and simple assault charges,

originally from Puerto Rico that this would affect your ability to be impartial?”

defendant then returned the gun to Menczywor. decision. We consolidated the two appeals. Menczywor handed the gun to the defendant and took the watch. The

Rico and is therefore a United States citizen. Do you feel that because he is following question: “Andrew Santiago is Hispanic. He is originally from Puerto court asked the venire four of the five questions. The court did not pose the jury. The trial court denied the motion, and the defendant also appealed that from his wallet. The defendant had difficulty taking Sullivan’s watch, so defendant, who was arrested for being a minor in possession of alcohol. was loaded. The police found four people inside the home, including the

The record does not reflect any further discussion of the request, but the trial the defendant moved for a new trial, or, in the alternative, to reconvene the head. The defendant then took Sullivan’s gold chain, earrings, and money One juror responded, “Color made a differ[e]nce.” Based upon this response, defendant punched him in the face and Menczywor pointed a rifle at Sullivan’s two rifles on the floor near a closet in the back of the house. One of the rifles One question asked, “Was the race of the defendant a factor in your verdict?” of the house with the defendant. As Sullivan began walking away, the After the trial, a defense investigator sent the jurors a questionnaire.

trial court, which the court considered in an unrecorded chambers conference. Before trial, the defendant submitted five proposed voir dire questions to the their way into the home, the police conducted a protective sweep that revealed robbery, and simple assault. See RSA 636:1; RSA 626:8, III; RSA 631:2-a, I(a). Menczywor for hosting the party. Sullivan found Menczywor on the back deck The defendant was indicted on one count of robbery, accomplice to

arm. He was wearing a red shirt when the police found him in the basement. had punched him. The defendant, a Hispanic man, had such a tattoo on his wearing a red shirt, with a tattoo of the word “Boogie” on his lower forearm, During the investigation, Sullivan told the police that a “Spanish” male

while others remained inside the home with the doors locked. After forcing goodbye to friends inside the house, while Sullivan went outside to thank Menczywor’s home. Several partygoers fled into the woods behind the house, called the police. About ten state and local police officers arrived at After the robbery, Sullivan, Coppola and Morrissey left, and Morrissey

After midnight, Sullivan and Coppola decided to leave. Coppola said

Courtney Coppola, Danielle Morrissey and the defendant. twenty-five people at the party, including Donald Sullivan, his girlfriend, the trial court to reconvene the jury to see if the verdict was tainted by racial

p. 3 occurred in this case.

juror’s response to the questionnaire that “Color made a differ[e]nce” required

argument in off-the-record conference). However, no such reconstruction the new trial because the trial court cannot correct any potential error by asking

understanding of what occurred. jury. He does not separately raise the issue of the

denying his motion to reconvene the jury. The defendant contends that the adequate record” on appeal. preserved his challenge to the trial court’s failure to ask his proposed We next address the defendant’s argument that the trial court erred in

II. Alleged Juror Misconduct

voir dire question at that point. Therefore, this issue is not preserved. representation by defense counsel that he had previously made specific Moreover, it is too late to raise such an issue for the first time in a motion for a

the parties later reconstructed the record to reflect their and the trial court’s request for a new trial, or, in the alternative, for the trial court to reconvene the dire questions in passing. The only issue expressly raised in the motion is a question. The defendant’s motion, however, only mentions the proposed voir

conference does not “relieve the defendant of his burden to present an The defendant argues that his motion for a new trial adequately

before us, “we cannot speculate as to what occurred.”

(1992) (finding issue preserved where State and trial court effectively ratified

We have reviewed issues where there was an unrecorded conference and

N.H. 521, 536 (2004). The fact that there was an unrecorded chambers

chambers conference is unrecorded and the record is not part of the case record to the court’s decision not to ask one of the questions. Where a an unrecorded chambers conference and the defendant did not object on the Here, the trial court considered the defendant’s proposed voir dire questions in objection. See State v. Ericson, 159 N.H. 379, 386 (2009) (citations omitted). contemporaneous objection that explicitly states the specific grounds of To preserve an issue for appellate review, a defendant must make a

arguments in the trial court. We agree. preserved for appeal because the defendant did not raise these constitutional art. 35; U.S. CONST. amend. VI. The State counters that this issue was not constitutional rights to be tried by an impartial jury. See N.H. CONST. pt. I, question about racial bias during juror voir dire violated his state and federal The defendant first argues that the trial court’s decision not to pose a

I. Voir Dire them to oral examination.

p. 4 declined to explore the matter further by recalling the jurors and subjecting

correct in denying the defendant’s motion to reconvene the jury. 4

misconduct such that the court unsustainably exercised its discretion when it

clearly untenable or unreasonable to the prejudice of a party’s case.

the juror’s responses were vague and unresponsive and the trial court was neither untenable nor unreasonable.

Yes us, then, is whether the defendant’s allegation raised an issue of jury a last resort for a trial judge.” 1. Was this the first time you’ve served on a jury?

of the juror questionnaire and the juror’s responses. They are as follows: unsustainable exercise of discretion standard, and reverse only if the ruling is In support of his motion for a new trial, the defendant submitted a copy

was a rational explanation for the juror’s response. The State further argues made some mistake . . . which produced their verdict.” defendant’s identity was based in large part upon the color of his skin, there before us, we hold that the trial court’s denial of the defendant’s motion is race five times during the trial. The State contends that because the Caldwell, 91 N.H. at 155. Based upon the record

discretion of the trial court,”

and have them orally examined.” (explaining unsustainable exercise of discretion standard). The question before the jury when it found that “case law suggests that the reconvening of a jury is v. Low, 138 N.H. 86, 88 (1993); cf. State v. Lambert, 147 N.H. 295, 296 (2001)

91 N.H. 150, 155 (1940). We review the trial court’s decision under an

and interrogate a jury “whenever [it] is of the opinion that the jury may have Bothwick v. LaBelle, 115 N.H. 279, 281 (1975). The trial court may reconvene contested issue at trial and points out that the defendant was identified by his (quotation omitted), and the trial court’s discretion in this respect is broad.

(quotation, brackets and ellipsis omitted). “This is a matter within the sound

“Neither party has the legal right to bring the jurors before the trial judge applied an improperly high standard to the defendant’s request to reconvene determine which interpretation was correct. Second, he argues the trial court the defendant’s identity was in issue – it should have reconvened the jury to

The State argues that the defendant’s identification was the most

explanations for the juror’s comment – as either evidence of prejudice or that bias. First, he argues that because the trial court found two plausible p. 5 5

is troublesome.

sic sic

have assisted you in your verdict? (i.e. information; evidence; view) to the trial process, which might

racial considerations are injected into jury deliberations, the Sixth Amendment

See State v. Johnson, 630 N.W.2d 79, 83 (S.D. 2001) (“When

Viewed in isolation, the juror’s response that “Color made a differ[e]nce”

More evidence

10. Was there anything the state or the defense could have added

No

9. What was your impression of the defendant? deliberations? Afford []

8. What was your impression of the prosecuting attorney?

Okay

7. What was your impression of the defense attorney?

She was very good

6. Did the fact that the defendant is Hispanic come up in

Color made a differ[e]nce

p. 5 5. Was the race of the defendant a factor in your verdict?

The evidence of his robbery

What was the most important testimony in this case? 4. What was the most important piece of evidence in this case?

No

influenced your decision? If so, what? 3. Did any other jurors do or say anything that would have

and his tatoo [] It was clear that some of the people saw the same thing twice

2. What led you to convict Mr. Santiago of robbery? other evidence the juror considered. p. 6 the juror voted guilty not based upon the defendant’s race, but based upon the 6 interpretation consistent with the evidence at trial. evidence of potential juror misconduct was ambiguous and susceptible to an

jury.

his robbery” – an answer devoid of any reference to the defendant’s race. Here,

juror told counsel about specific errors the jury made. Here, however, the

upon the other evidence she considered. court unsustainably exercised its discretion by deciding not to reconvene the agreed with result); BRODERICK, C.J., and DALIANIS, HICKS and CONBOY, JJ., concurred. statute. deliberations, a juror went to the library to research the New Hampshire rape Affirmed.

important piece of evidence in this case,” the juror responded, “The evidence of affected the verdict in any significant way. When asked to identify “the most in that the defendant alleged no independent misconduct of the juror that The conduct here does not rise to the level of these cases. In those situations a

most important part of this case, the juror’s answer is entirely reasonable.” their respective determinations of fault and foreman failed to ask whether each Id. at 707. The affidavit submitted by defense counsel indicated the agree with the trial court that because “the Defendant’s race was perhaps the damages); decision not to reconvene the jury when, during the weekend layover in jury In State v. Gordon, 141 N.H. 703 (1997), we affirmed the trial court’s

court’s decision to reconvene the jury.

to reconvene jury where jury foreman indicated jury miscalculated damages).

where juror informed plaintiff’s counsel jury reached decision by averaging these answers are “completely unresponsive” to the questions asked. We thus Bunnell, 126 N.H. at 665, 669 (finding reconvening jury proper where juror told defense attorney jury improperly calculated amount of Hartford Fire Ins. Co., 126 N.H. 674, 683 (1985) (upholding reconvening of jury

Our conclusion is supported by other cases where we have upheld a trial

the defendant?”, the response was “No.” We agree with the trial court that responded, “She was very good.” When asked, “What was your impression of fact that the defendant is Hispanic come up in deliberations?”, the juror questions and answers, however, it is not. For example, when asked, “Did the guarantee of a fair trial is defeated.” (quotation omitted)). In light of the other