2010-774, State of New Hampshire v. William K. Town

The defendant, William K. Town, was convicted by jury of one

and Christopher A. Dall on the brief, and Mr. Ostler orally), for the defendant. DesMeules, Olmstead & Ostler

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

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 22 as p. 2 JUROR 67: I’m not sure.

able to do so? [DEFENSE COUNSEL]: You’re unsure that you would be

. . . . JUROR 67: I would try.

THE COURT: That’s all we can ask is that you try.

JUROR [67]: All I could say is I would try.

situation? Would you be able to do that?

the evidence here in the courtroom and put aside your own THE COURT: Well, could you judge the case just from

p. 2 JUROR 67: I’m not sure.

The real question is, because of your personal situation, do

of cases. individual voir know, don’t feel like you have to be on this case. We’ve got plenty THE COURT: Well, there are plenty of cases, so, you

JUROR 67: I think I need to do this.

fair and impartial? THE COURT: Okay. Does that prevent you from being

who responded affirmatively. As a result, the court conducted the following relative had ever been the victim of sexual abuse. Juror 67 was among those the trial court asked the prospective jurors whether they or a close friend or The record supports the following relevant facts. During jury selection,

tell you that I was molested when I was 14. JUROR 67: I would like to be on this one, but I have to

dire of Juror 67:

the first issue and remand. jury instruction after twice learning of the jury’s numerical split. We reverse on impartial jury under the State and Federal Constitutions. See p. 3 The defendant argues that the trial court violated his right to a fair and

seat in the jury box. THE COURT: I’m going to find you qualified. Take your

cause.

presented for appellate review. See 3

preserve an issue for appellate review. State v. Gordon this jurisdiction is that a contemporaneous and specific objection is required to THE COURT: I’ll treat your motion as a motion for

address his claims under the State Constitution, State v. Ball [THE STATE]: No questions.

THE COURT: Okay.

an opportunity to correct any error it may have made before those issues are

preserve this argument for appellate review. We disagree. The general rule in As a threshold matter, the State asserts that the defendant failed to [DEFENSE COUNSEL]: Your Honor, I exercised --

following colloquy ensued between the court and defense counsel: Here, immediately after the trial court found Juror 67 qualified, the experience as a victim and her “need” to be on the jury in this case. We first

(2011). The purpose underlying our preservation rule is to afford the trial court

231 (1983), and cite federal opinions for guidance only. Id. at 232-33.

impartial was insufficient, especially in light of her disclosures about her prior other things, that Juror 67’s indication that she would “try” to be fair and I, arts. 15, 17, 21, 35; U.S. CONST. amend. VI. Specifically, he argues, among JUROR 67: Yes.

JUROR 67: That’s right.

can only do the best you can. THE COURT: -- and judge the case just from here. You

JUROR 67: I would.

personal situation -- THE COURT: Well, would you try and put aside your defendant’s motion as one for cause. Cf p. 4 regarding Juror 67’s partiality, and the court stated it was treating the

colloquy with defense counsel that the court was aware of his concerns

clear from the court’s questioning of Juror 67 as well as its subsequent

concerns and to make clear that he did not want her on the jury. Indeed, it is the partiality of Juror 67, we believe that he did enough to alert the court to his While defense counsel could have elaborated on his concerns regarding

challenge is also denied.” “Your motion for a peremptory is denied” and “Your motion for further peremptory challenge. The court indicated that it understood and stated,

Defense counsel then further explained that he would like an additional

THE COURT: Thank you.

[DEFENSE COUNSEL]: 12.

your issue. THE COURT: She was younger than that. I understand

complainant claims that she was --

citizen to be tried by judges as impartial as the lot of humanity will admit.” Part I, Article 35 of our constitution provides that “[i]t is the right of every

abused when she was 14. That’s right around the age that the Number 67, after all, just said that she herself was sexually

argument. correct the error). We, therefore, turn to the merits of the defendant’s

request”); State v. King would be and “was already aware of the substance of defense counsel’s 4

much like to be able to use another peremptory for Number 67.

counsel’s objection to a jury instruction and that it had an opportunity to

informed counsel that it would decide what the substance of the instruction

on Number 11, and so just to preserve the record, I would very [DEFENSE COUNSEL]: I . . . exercised my first peremptory

where it was clear from the court’s comments that it understood defense

defense counsel to object to the jury instruction itself where the court had

THE COURT: Oh, yeah.

exercised a -where for both of those, and I did -- I’m out of peremptories. I

[DEFENSE COUNSEL]: Okay. I guess I’m in a situation indicated that she would “try.” In view of Juror 67’s entire voir p. 5 judge this case based solely upon the evidence presented, each time she merely trial court twice asked her if she could put aside her personal situation and

offense, or the underlying facts of that indictment, said they could render a

that she was “not sure” whether she could be fair and impartial. Although the could put aside her own personal experience and be fair and impartial); State v. characterization of the juror’s response “I’ll try” as being unequivocal that she

and render a verdict based on the evidence presented in court.” Weir was insufficient to establish that she could “lay aside her impression or opinion

indicated they had some knowledge of the defendant’s indictment on a separate Addison, 160 N.H. 493, 499 (2010) (noting that all of the jurors selected who fourteen and stated, “I think I need to do this.” She then repeatedly reiterated

F.3d 1109, 1113 n.5 (9th Cir. 2000) (disagreeing with government’s at 676 (quotation and brackets omitted); cf. United States v. Gonzalez, 214 was against the weight of the evidence. Addison, 138 N.H.

that her indication that she would “try” to be fair and impartial, without more,

trial.” RSA 500-A:12, II (2010); Weir impartial. She revealed that she had been the victim of sexual assault at age Here, Juror 67 expressed clear concerns regarding her ability to be

unsustainable exercise of discretion or a finding that the trial judge’s decision 794, 800 (1974). We will not disturb the trial court’s ruling absent an determine whether an impartial jury was selected, State v. Laaman, 114 N.H. our duty on appeal to evaluate the voir dire testimony of the empanelled jury to a prospective juror is free from prejudice, Addison, 161 N.H. at 303, it is then (quotation omitted)). Generally, a juror is presumed to be impartial. Addison Once the trial court on voir dire has made a determination as to whether

“If it appears that any juror is not indifferent, he shall be set aside on that duty to determine whether the juror is indifferent. Addison, 161 N.H. at 303. 1997). When a juror’s impartiality is questioned, however, the trial court has a other grounds, as stated by Moffat v. Gilmore, 113 F.3d 698, 701 (7th Cir. omitted); Irvin v. Dowd, 366 U.S. 717, 723 (1961), superseded by statute on court.” State v. Weir, 138 N.H. 671, 676 (1994) (quotation and brackets impression or opinion and render a verdict based on the evidence presented in 161 N.H. at 303. A juror is considered impartial “if the juror can lay aside her

capable and willing to decide the case solely on the evidence before it.” 554 (1984) (“One touchstone of a fair trial is an impartial trier of fact – a jury 2107 (2011); McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, Addison, 161 N.H. 300, 303 (2010) (quotation omitted), cert. denied, 131 S. Ct. defendant has the right to be tried by a fair and impartial jury.” State v. (1891). Indeed, “[i]t is a fundamental precept of our system of justice that a Hughes, 135 N.H. 413, 419-20 (1992); State v. Sawtelle, 66 N.H. 488, 503 Wellman, 128 N.H. 340, 348 (1986), abrogated on other grounds by State v. This provision for judicial impartiality is applicable as well to jurors. State v. less probable than it would be without the evidence.” State v. Mitchell

p. 6 fact that is of consequence to the determination of the action more probable or “Evidence is relevant if it has any tendency to make the existence of any

outweighed by its potential for unfair prejudice.

admission of guilt and that its probative value was not substantially

prejudicial. The State contends that the statement was relevant as an

confession or admission.” Therefore, he argues, it was irrelevant and The defendant argues that the statement “is too vague to be considered a

basement.

this, and I just ran downstairs to where the girls were in the he said, I know I am disgusting, and he got down on the floor like remember what we used to do. I said, no, you’re disgusting. And

And he put his arm around me like this and he said, . . . you

came out to the kitchen and it was just me and him out there.

that the defendant

the prejudice of his case. Id

defendant following the sexual assault was at a party in 1993. She testified overturn its determination absent an unsustainable exercise of discretion. Id At trial, the victim testified that the first time she was alone with the

demonstrate that the court’s ruling was clearly untenable or unreasonable to at 294. To show an unsustainable exercise of discretion, the defendant must

relevant is a question for the trial court’s sound discretion, and we will not not relevant is inadmissible. Mitchell, 148 N.H. at 295. Whether evidence is request. N.H. 293, 294-95 (2002) (quotation omitted); N.H. R. Ev. 401. Evidence that is “disgusting.” Following a hearing, the trial court denied the defendant’s, 148

statement he made to her at a party in 1993 acknowledging that he was

to arise on remand, we will address it. See

not reach the federal issue. See Because the defendant prevails under our State Constitution, we need

exercised its discretion in finding Juror 67 qualified to sit on the jury. and 404(b), the defendant sought to exclude testimony by the victim about a Before trial, relying upon New Hampshire Rules of Evidence 401, 403,

statement he made to the victim at a party in 1993. Because the issue is likely The defendant next argues that the trial court erred in admitting a

Ct. 1494 (2011). Accordingly, we conclude that the court unsustainably verdict based upon only the evidence presented at trial), cert. denied, 131 S. p. 7 State v. Cassavaugh

some improper basis, commonly one that is emotionally charged. undue tendency to induce a decision against the defendant on

Rather, the prejudice required to predicate reversible error is an

evidence offered by the prosecution is meant to be prejudicial. the tendency of the evidence to prove his guilt, in which sense all prejudice is not, of course, a mere detriment to a defendant from

delay, waste of time, or needless presentation of cumulative evidence.” N.H. R. confusion of the issues, or misleading the jury, or by considerations of undue

other than the established propositions in the case. Unfair

probative value is substantially outweighed by the danger of unfair prejudice, Nonetheless, even if evidence is relevant, it “may be excluded if its himself to be disgusting based upon his commission of the sexual assault. Cf one interpretation). action that may cause a jury to base its decision on something

Miller, 155 N.H. 246, 252 (2007). disturb its decision absent an unsustainable exercise of discretion. State v. was possible, it could be understood to imply that the defendant believed substantially outweighed by the danger of unfair prejudice, and we will not relevant as an admission of guilt despite the fact that it could have more than the floor.” Although more than one interpretation of the defendant’s statement the trial court considerable deference in determining whether probative value is its instinct to punish, or trigger other mainsprings of human “disgusting” and he responded, “I know I am disgusting, and . . . got down on appeal to a jury’s sympathies, arouse its sense of horror, provoke, 161 N.H. 90, 98 (2010) (quotation omitted). We accord Evidence is unfairly prejudicial if its primary purpose or effect is to statement was relevant. Cf the victim and the defendant were alone following the assault. Thus, the

prison anymore, and that if the police would stop him he would kill himself’” “you remember what we used to do.” She testified that she said he was

Ev. 403. made a substantial period of time after the assault, it was made the first time

defendant’s statement shortly after the crime that he “‘didn’t want to go to defendant following the sexual assault he put his arm around her and said,. State v. Elbert, 125 N.H. 1, 13 (1984) (finding We disagree. The victim testified that the next time she was alone with the statement is not relevant because it “was made years after the alleged assault.” consciousness of guilt”). Moreover, despite the fact that the statement was apologies to the victim “could be construed as demonstrating his People v. Grathler, 858 N.E.2d 937, 943 (Ill. App. Ct. 2006) (finding defendant’s

an admission and, thus, was not relevant. He further maintains that the Here, the defendant argues that the statement is neither a confession nor p. 8 8

remand. See defendant’s remaining arguments as they are unlikely to arise again on

Given our disposition of this appeal, we decline to address the

Reversed and remanded

defendant’s statement to the victim that he was “disgusting.” unsustainably exercise its discretion when it admitted evidence of the

“not so unduly emotional as to inflame a jury.” Cassavaugh DALIANIS, C.J., and CONBOY and LYNN, JJ., concurred. probative value. The victim’s testimony regarding this statement was brief and the defendant’s 1993 statement did not substantially outweigh the testimony’s.

State v. Woodard, 146 N.H. 221, 229 (2001).

(quotation omitted). Accordingly, we hold that the trial court did not

the danger of unfair prejudice resulting from the victim’s testimony regarding We disagree with the defendant that the trial court erred in finding that