2010-692, State of New Hampshire v. Joshua Guild

The defendant, Joshua Guild, appeals his conviction by

and orally, for the defendant. ___________________________ Lisa L. Wolford

general, on the brief and orally), for the State. a.m. on the morning of their release. T , attorney general (Nicholas Cort, assistant attorney 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:

THE SUPREME COURT OF NEW HAMPSHIRE

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

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

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as fabrication, inaccuracy, and collusion.” United States v. Jackson

p. 2 tradition of sequestering witnesses as a means of discouraging and exposing Rule 615 and RSA 632-A:6, IV “codified a well-established common law

At the request of a party the court shall

this error requires automatic reversal.

statute when it denied his request to sequester the victim’s mother, and that The defendant contends that the trial court violated both the rule and the (Emphasis added.) RSA 632-A:6, IV similarly provides: mandate that the court sequester a witness in a criminal trial upon request.

(Emphasis added.) The defendant argues that Rule 615 and RSA 632-A:6, IV the presentation of the party’s cause. essential to the presentation of the party’s cause. the crime, or a person whose presence is shown by a party to be

(3) a person whose presence is shown by a party to be essential to

authorize exclusion of a party who is a natural person or a victim of

natural person designated as its representative by its attorney, or I. Sequestration of Victim’s Mother an officer or employee of a party in a civil case which is not a (1) a party who is a natural person or a victim of the crime, or (2) and it may make the order of its own motion. This does not

133 (2d Cir. 1995) (quotation omitted; discussing Federal Rule of Evidence

later that day, to the police. order of its own motion. This rule does not authorize exclusion of excluded so that they cannot hear the testimony of other witnesses, buttocks. The victim reported the assaults immediately to her mother and,

At the request of a party the court shall in criminal cases

cannot hear the testimony of other witnesses, and it may make the 632-A [Sexual Assault and Related Offenses], order witnesses could touch her vagina. When she said, “[n]o,” he moved his hand back to her, in cases under RSA

during the victim’s testimony. Rule 615 provides:

and may in civil cases order witnesses excluded so that they buttocks. He then touched her genitals over her underwear and asked if he under the victim’s shirt, then slid it under her underwear and rubbed her half years old. The defendant, who was her aunt’s boyfriend, put his hand and Rule 615 when it denied his request to sequester the victim’s mother The defendant first argues that the trial court violated RSA 632-A:6, IV

occurred in February 2006, when the victim was approximately ten and one- The jury could have found the following facts. The assaults in this case party opposing sequestration to show that any error was harmless. See

p. 3 [Federal] Rule 615 . . . is grounds for reversal . . . only witnesses [in a criminal trial] is mandatory, . . . a trial court’s violation of to New Hampshire Rule 615, have decided that “[a]lthough exclusion of

show that the violation was not prejudicial or was harmless error.” Id 3

from the failure to exclude witnesses is presumed, and the burden is on the

To support his argument, the defendant relies upon People v. Dixon

on the party requesting exclusion of witnesses. See Federal courts construing Federal Rule of Evidence 615, which is similar

Rule 615 is presumed and the burden is on the party opposing sequestration to

contrast, in the Second, Fourth and Ninth Circuit Courts of Appeals, prejudice 1992); Hollman v. Dale Electronic, Inc., 752 F.2d 311, 313 (8th Cir. 1985). By Comer Family Equity Pure Trust v. C.I.R., 958 F.2d 136, 140-41 (6th Cir. 476; United States v. Green, 293 F.3d 886, 891-92 (5th Cir. 2002); William L.

Third, Fifth, Sixth and Eighth Circuit Courts of Appeals, the burden of proof is

per taken the view that prejudice resulting from a trial court’s violation of [Federal] prejudice on the party requesting exclusion, . . . but a number of courts have 568 (2002) (emphasis added). “Some courts have placed the burden of showing Witnesses Under Rule 615 of Federal Rules of Evidence, 181 A.L.R. Fed. 549, exclusion was substantially prejudiced by the error.” Annotation, Exclusion of

inquiry. defendant’s invitation to rule that this error mandates reversal without further to remain in courtroom during victim’s testimony). However, we decline the standard of review of a trial court’s sequestration decision. se reversal rule, we turn to other jurisdictions, which have addressed the reversal that the defendant advances. Finding little support for the defendant’s State, 479 S.W.2d 873 (Ark. 1972), none of which stand for the per se rule of victim’s mother. But on other grounds by State v. Czachor, 413 A.2d 593 (N.J. 1980), and Vaughn v. N.E.2d 206 (Ill. 1961), State v. DiModica, 192 A.2d 825 (N.J. 1963), overruled

35 (Mass. App. Ct. 1992) (no error to allow mother of fourteen-year-old victim “essential” to presentation of party’s case); Com. v. Bonner, 601 N.E.2d 32, 34young witness to remain in courtroom under exception for witnesses who are F.2d 472, 474-75 (3d Cir. 1980) (trial court has discretion to allow parent of

trial court erred when it denied the defendant’s request to sequester the For the purposes of this appeal, we assume, without deciding, that the

(1976) (quotation omitted); see Jackson, 60 F.3d at 133. testimony that is less than candid.” Geders v. United States, 425 U.S. 80, 87 their testimony to that of earlier witnesses”; and (2) “it aids in detecting law,” serves two purposes: (1) “[i]t exercises a restraint on witnesses ‘tailoring’ that this practice, which is “part of our inheritance of the common Germanic 615); see N.H. R. Ev. 615 Reporter’s Notes. The Supreme Court has observed acceptability of verdicts. Rule 615 thus reflects an a p. 4 aid the truth-seeking process and preserve the durability and

self-defeating, in that it would swallow a rule carefully designed to

harmless beyond a reasonable doubt. See

the defendant’s guilt is of an overwhelming nature, quantity, or weight and the

presumption of prejudice has been rebutted. See

requirement of this sort would be not only unduly harsh but also have been different had he been sequestered. A strict prejudice a witness, a new trial is in order unless the State proves that any error was inference that [the non-sequestered witness’s] testimony would

Farnham even without the non-sequestered witness’s testimony, the other evidence of failing to sequester a witness may be harmless beyond a reasonable doubt if, did not affect the verdict. State v. Peters, 162 N.H. 30, 36 (2011). An error in was harmless, the State must prove beyond a reasonable doubt that the error

Applying this analysis, we conclude that in the case before us any

federal harmless error standard).

a trial court has violated Rule 615 and RSA 632-A:6, IV by failing to sequester it almost impossible to sustain the burden of proving the negative

, 791 F.2d at 335. Accordingly, we hold that when, in a criminal trial,

construed narrowly in favor of the party requesting sequestration. judgment in favor of sequestration, and the exceptions should be

had a witness been sequestered.” Id with 20/20 hindsight could a party demonstrate what would have been said

to reflect the drafters’ recognition that any defendant . . . would find [W]e understand the mandatory, unambiguous language of the rule

Circuit Court of Appeals has aptly explained: 615’s express presumption in favor of sequestration.” Id. As the Fourth sequestration, see burden on the party that had opposed sequestration is consistent with Rule

the burden of persuasion on the movant virtually demands the impossible; only that had opposed sequestration.” Jackson, 60 F.3d at 136. “First, . . . placing demonstrate lack of prejudice, or harmless error, properly falls on the party In a criminal case, “[w]e believe the correct view is that the burden to

State, 736 N.E.2d 326, 331 (Ind. Ct. App. 2000). harmless error upon the party opposing sequestration, see, e.g., Stafford v. 2002), and others presuming prejudice and placing the burden of proving

, e.g., State v. Morgan, 797 A.2d 616, 632 (Conn. App. Ct.

courts placing the burden of proving prejudice upon the party seeking State courts are similarly divided upon this question, with some state

Cir. 1986); United States v. Seschillie, 310 F.3d 1208, 1214-17 (9th Cir. 2002). Jackson, 60 F.3d at 136-37; United States v. Farnham, 791 F.2d 331, 33 p. 5 5 (4th 5

card game, she saw the victim come upstairs in tears.

was downstairs in Cassie’s bedroom with the defendant. After she finished her

older sister also testified that she was upstairs playing cards while the victim because “[s]he had totally been crying. Her face was bloody red.” The victim’s red,” and he could tell that she had been crying. He expressed concern

grandmother’s house that morning, he saw that the victim’s face was “totally

guy for you.” The victim’s father also testified that when he arrived at the shaking.” The victim told Cassie: “Auntie, I don’t think [the defendant is] the testified that she saw the victim run up from the bedroom, “upset . . . [and]

In addition to the victim’s testimony, the jury heard from Cassie, who

“went back over to my butt.” underwear, and when she told him that he could not touch her vagina, he

was my vagina.” She testified that at this point, his hand was over her Here, as in State v. Gonzalez

to the pants and asked if -- or patted down and asked can I touch this, which went under the underwear -- I mean over the underwear and slid his hand over the [victim’s] genitalia with his hand over her clothing.” [the victim’s] butt . . . under [her] underwear.” The victim testified: “He kind of was also charged with one count of AFSA, specifically “intentionally touching rubbing her back under her shirt. The defendant then “slid his hand down to victim “to scoot over.” When she did, he put his arm around her and began bedroom. The victim and the defendant were on Cassie’s bed when he asked the upstairs to play cards, leaving the victim and the defendant alone in Cassie’s was able to recall events that had occurred as many as four years earlier. See victim testified that her sisters soon became bored and that they and Cassie went gone to Cassie’s bedroom to watch a movie with Cassie and the defendant. The victim’s sisters at the grandmother’s house, and the victim and her sisters had On the morning of the as saults, the victim’s parents had “dropped off” the

specifically “intentionally touching” the victim’s buttocks with his hand. He

which began less than a month before the victim’s fifteenth birthday, the victim

stayed the night. grandmother’s home. The defendant was Cassie’s boyfriend, and he too had before the assaults, the victim had slept in Cassie’s bedroom at her The defendant was charged with one count of felonious sexual assault, her Aunt Cassie shared with the victim’s grandmother and uncle. The night Gonzalez, 1 p. 5 50 N.H. at 79. She testified that the assaults occurred at the home

defendant was the victim’s detailed description of the assaults. At the trial, Lemieux, 136 N.H. 329, 331-32 (1992), the evidence most damaging to the

Jackson, p. 6 60 F.3d at 137. in relation to the strength of the State’s evidence of guilt. See id.; see also non-sequestered witness’s testimony is merely cumulative or inconsequential 6

her actions she’s evidenced that she hasn’t done that.

the jurors are going to follow the instructions. However, I think by

[DEFENSE COUNSEL]: And I understand that the law presumes

. . . .

she’s required to do. that she has not remained, to this point, fair and impartial, as abilities, but the evidence as she believes it, but I feel it’s revealed

laughing at me at one point. I hope that’s not a reflection on my

Specifically, it’s been brought to my attention that she was

argument.

quite clearly by how she reacted to me during my closing

reasonable doubt. Cf

evidenced that she has already made up her mind in this case,

any error in failing to sequester the victim’s mother was harmless beyond a

laughing, gesticulating during my closing argument. I think she’s No. 4 was -- and I noticed a little of it -- but was rolling her eyes, victim’s mother tailored her testimony to the victim’s testimony, we hold that [DEFENSE COUNSEL]: It was brought to my attention that juror evidence, and because the evidence does not support a conclusion that the Because the defendant’s conviction is supported by other substantial

about the juror’s behavior:

the defendant. motion to disqualify a juror without first conducting voir Cassie’s bedroom, where she saw the victim lying on the bed with Cassie and mother testified that when she arrived at the house, she walked downstairs to

closing arguments and the charge to the jury, the defendant raised concerns

The defendant next asserts that the trial court erred when it denied his

mother arrived at the house, the defendant was in the bathroom. The victim’s II. Voir Dire of Juror

testimony “was not a mere echo” of the victim’s testimony. Bonner and the victim’s contacts with the police. However, the victim’s mother’s happened when she arrived at Cassie’s house on the morning of the assaults, was cumulative of testimony the jury had already heard regarding what

defendant had “touched” her. Additionally, the victim testified that when her defendant had “hurt” her; her mother said that the victim told her that the at 34. For instance, the victim testified that she told her mother that the

The victim’s mother did not testify about the assaults. Her testimony required to voir p. 7 sufficient basis to suspect that the juror was biased, the trial court was evidence. As we recently clarified in State v. Hill

Affirmed

substantively.

On appeal, the defendant contends that because he articulated a juncture was, and could only have been, a challenge to the sufficiency of the

THE COURT: I'm going to deny that --

argument is not preserved for our review, we decline to address it

motion to dismiss was made at the close of the State’s case, and at that HICKS, CONBOY and LYNN, JJ., concurred. charge was against the weight of the evidence. However, the defendant’s motion to dismiss the AFSA charge because the jury’s verdict on the AFSA [DEFENSE COUNSEL]: Yes, it is, Your Honor. Yes.

based upon the weight of the evidence. Accordingly, because the defendant’s

Finally, the defendant argues that the trial court erred when it denied his.

disqualify a juror. the instructions, so I am going to -- I assume it’s a motion to

23, 2012), such a motion does not preserve an objection to the jury verdict

determine whether the alleged incident occurred and, if so, whether it was

communication,” State v. Rideout “a colorable claim that a jury may be biased or tainted by extrinsic contact or argument, he relies upon cases concerning the trial court’s role in investigating III. Conviction on AFSA Charge Against Weight of Evidence

for our review, we decline to address it. the instructions. I think the law is I have to presume she'll follow N.H. 265, 279 (2002). Because the defendant did not preserve this argument allegation of any extrinsic contact or communication. See State v. Bader, 148

. This line of cases is inapplicable when, as here, there is no

colorable claim is made, the court “must undertake an adequate inquiry to

trial court had an independent duty to question the juror. To support this the juror. The defendant argues that preservation is not necessary because the because, as the defendant concedes, he never asked the trial court to voir dire juror had so clearly made up her mind that she would not follow dire the juror. This argument is not preserved for our review jury, and I did not observe anything that led me to believe that the based on a juror’s body language. I'll also say I was watching the

THE COURT: Well, I think it’s very difficult to make a presumption