2012-0581, State of New Hampshire v. William Gaudet

“opened the door” to certain otherwise inadmissible evidence; (2) denied his On appeal, he argu es that the trial court erroneously: (1) determined that he (2007) (amended 2008), following a jury trial in Superior Court (Houran, J.). (amended 2008, 2012), and one count of attempted incest, see RSA 639:2 attempted aggravated felonious sexual assault, see RSA 632 - A:2 (2007) RSA 632 - A:4 (Supp. 2005) (amended 2005, 2008, 2010), one count of (amended 2003, 2006, 2008), two counts of misdemeanor sexual assault, see o n one count of felonious sexual assault, see RSA 632 - A:3, I - III (1996) DALIANIS, C.J. The defendant, William Gaudet, appeals his convictions

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

general, on the brief and orally), for the State. Joseph A. Foster, attorney general (Lisa L. Wolford, assistant attorney

No. 2 01 2 - 581 Carroll

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, Concor d, 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

to refer to th e Maine lawsuit. The State objected, arguing that the lawsuit was gave opening statements, defense counsel informed the court that she intended the subject of several colloquies between counsel and the court. Before counsel The relevance of the Maine lawsuit at the defendant’s criminal trial was

still pending when the instant criminal charges were t ried. advice and filed a civil suit against the defendant in Maine. Her lawsuit was she deserved some of the defendant’s money. The victim took Raymond’s the victim to file a civil la wsuit against the defendant because he thought that the defendant, having been informed of them by the police. Raymond advised for $160,000. He was also aware, generally, of the victim’s allegations against child, was aware that the defendant had inherited a house, which he had sold “had some money.” Raymond, who has known the victim since she was a former employer and business partner, Dwight Raymond, tha t the defendant After speaking to the police, the victim was informed by the defendant’s

later, in p. 2 2010. the assault. The victim did not report the assaults to the police u ntil five years Maine. Again, because she was afraid, the victim did not tell her mother about was sorry” for the previous night. The defendant drove the victim back to across the hall to her own bedroom. The next morning, the defendant “said he victim felt “really weird[,] . . . uncomfortable[,] [and] . . . scared” and went erect penis against her leg, and “rubbing [her] vagina with his hand.” The the defendant’s bed. T he defendant was lying naked next to her, rubbing his living room, the victim fell asleep. When she awoke, she was lying naked on defendant gave the victim two beer s. While the two watched a movie in the New Hampshire for her sixteenth birthday. On the night in question, t he The defendant next assaulted the victim in 2005 when she visited him in

out of the defendant’s home and lived with her mother and step father in Maine. because she was afraid, she complied. After that incident, the victim moved “about ten minutes.” The defendant told the victim not to tel l anyone, and told him “no,” the defendant pulled her shirt down and rubbed her breast for asked to view a scar on her breast. Although she felt “very uncomfortable” and New Hampshire. One day, the defen dant came into the victim’s room and mother. In p. 2 2001, w hen she was twelve years old, the victim lived with him in November 1989. The defendant, the victim’s father, is divorced from her The jury could have found the following facts. The victim was born in

I. Factual Summary

affirm. conduct an adequate inquiry after excusing one of the deliberating jurors. We motions for a mistrial during the State’s closing argument; and (4) failed to motion for a mi strial during the State’s opening statement; ( p. 3 3) denied his two 3

to years of sexual and physical abuse, including the specific charged acts in that [the New Hampshire allegations are] what the lawsuit is about as opposed The State objected, arguing that defense counsel had created “a misimpression

him. anything she may have to gain by making t hese allegations against her motives, to her relationship with [the defendant], and to victim]’s testimony and to her two stories, to her memories, and to With that, I’m going to ask that you pay attention to [the

of a lawsuit she has filed in the State of Mai ne where she lives. badly. And you will find out these allegations are included as part problems with money. That she has needed money and needed it [The victim] will tell you during this trial that she’s had

money. with [the victim]. And [she] needed, and may still nee d, that And it also seems that [he] wasn’t going to share any of that money money just a couple of years before these allegations came to light. Second, [the defendant] inherited a home and a sum of

and she didn’t like it. to [the defendant]. . . . She thought [he] was. . . nicer to her sister First, as the State has already told you, [she] was never close

motivations, motives for [the victim] to lie to you. reasons. . . . [I]n this case, I will suggest two of them to you. Two [P]eople . . . come to Court and [do] not tell the truth for many

following statements in her opening statemen t: In accord with the trial court’s decision, defense counsel made the

lawsuit does not concern only these c harged events here in New Hampshire.” Maine lawsuit,” then the court would allow the State “to make it clear that the the New Hampshire charges are the motivation or the only motivation for the opening statemen t, but ruled that if she created “a misleading impression that trial court decided that defense counsel could refer to the Maine lawsuit in her [New Hampshire] allegations are included in paperwork in that lawsuit.” The t hink it can be said that there is a lawsuit in . . . Maine and that part of th[e] Hampshire] charge[s] [are] the sole basis of the lawsuit.” She explained: “I existence of the lawsuit without leaving a misimpression that [the New Hampshire. Defense counsel then stated: “I think we can address the supporting her lawsuit, also referr ed to conduct that occurred in New within . . . Maine.” Defense counsel countered that the victim’s affidavit, irrelevant because it seeks “damages based on conduct that occurred strictly p. 4 4

in Main e, “Rule p. 4 403 . . . trump[s] the opening the door doctrine.” with regard to the allegation that the defendant sexually penetrated the victim such as vaginal penetration in Kennebunk, Maine.” The trial court ruled that by questioning her about “specific allegations of specific incidents of bad acts about her motive for filing the lawsuit, the State would not be allowed to do so rebut any potential[ly] misleading impression” by asking the victim questions The trial court explained that although the State would be “p ermitted to

evidence” that the Maine alleged assaults did not occur. resulted in criminal charges and because defense counsel ha d “strong to testify th at she was abused in Maine because the Maine allegations had not Defense counsel stressed that it would be particularly improper for the victim defendant] physical ly and sexually abused [her] over all of these years.” counsel argued that it would not be proper for the victim to “say [the Maine beyond just [the New Hampshire allegations].” However, d efense factor” and to “say there are . . . other reasons why [she’s] suing him in . . . that it would be proper for the victim “to say [that] money isn’t [her] motivating emotional and sexual abuse at the hand s of this man.” Defense counsel agreed what her real motivation is, in that. . . she endured years of physical and impression, the State asserted that the victim “should be allowed to testify With regard to the evidence necessary to counter the misleading

the jury understand that there is more to that lawsuit.” Accordingly, the court decided that the State was “not precluded from having defense counsel’s opening “would understand there’s more to that lawsuit.” support of that lawsuit.” The court observed that a juror “listen ing carefully” to State cannot be limited to simply evidence concerning these charges as in defendant] actively decided to open with reference to the lawsuit, of course the balance then, looking at [New Hampshire] Rule [of Evidence] p. 4 403, as [the const ituted the sole basis for the Maine lawsuit. The court stated: “In . . . misleading to the extent that it suggested that the New Hampshire allegations The trial court ruled that defense counsel’s opening statement was

the State to correct. the Maine lawsuit was true and that, therefore, there was no misimpression for countered that her statement that the New Hampshire allegations were part of subsequent to the[ ] charged conduct[,] in multiple states.” Defense counsel occurred before that, between the two [charged] occasions, and also occurred eight years ago, without th e jury knowing that the abuse had misimpression that this lawsuit was filed . . . last year about these things that should be given,” and that it could not “adequately do that [with] the “right t o argue how much weight, if any, evidence [of the victim’s motive] bringing the lawsuit “is to make money.” The State contended that it had the was misleading for defense counsel to suggest that the victim’s motivation for that lawsuit of acts that occurred in Maine.” The State further objected that it p. 5 5

physical abuse and everything” the victim endured in “Maine and New the door” to the victim’s testimony about his uncharged conduct (“all the exercised its discretion by finding that his counsel’s ope ning statement “opened On appeal, the defendant argues that the trial court unsustainably

A. Opening the Door Doctrine

II. Analysis

A I don’t want to keep having it inside.

Q Okay.

A Because I just want to get this over with.

Q Why have you agreed to testify today?

A No.

money? Q Okay. Are you testify ing today in hopes it will help you make

A Maine and New Hampshire.

Q Was that in Maine or New Hampshire or both?

I was younger. A All the physical abuse and everything I went through from when

Q And by “everything”, what do you mean?

A Because everything I went through.

Q Why?

A Yes.

Q . . . Did you believe you deserve this money?

defendant] got from selling a boat. A Dwight thought that we deserved some money . . . that [the

Q . . . Why did you agree to go along with this lawsuit?

The State then questioned the vict im as follows: p. 6 6

carefully considered the parties’ competing positions when it concluded that a Blackstock, 147 N.H. 791, 797 (2002). We also recognize that the trial court created any misleading impression is an arguable point. See State v. misleading.” We believe that whether defense counsel’s opening statement the evidence “does not make that evidence, or the defense’s theory, State disagrees with the inference the defense will urge the jury to draw” from from the facts relating to the civil suit.” He argues that “[t]he fact that the evidence, but was rather the conclusion the defense hoped the jury would draw d efendant counters that the victim’s “pecuniary motivation was not misleading have to gain by making these allegations against [the defendant]”). The provided a motive for her to f abricate (“pay attention . . . to anything she may greed (“she has needed money and needed it badly”) and that the Maine lawsuit implied assertions that th e victim’ s motive for bringing the Maine lawsuit was asserts that the misleading impression was created by defense counsel’s State, that statement did not create the misleading impression. The State accurate, and, therefore, did not mislead the jury. See id. According to the Hampshire allegations “are included as part of” the Maine lawsuit was The defendant contends that his counsel’s statement that the New

evidence absent an unsustainable exercise of discretion.” Id. court’s ruling on whether the defendant opened the door t o prejudicial rebuttal impact of particular testimony.” Id. Accordingly, “we will not upset the trial prejudice. Id. “The trial court is in the best position to gauge the prejudicial prevent prejudice and is not to be subver ted into a rule for the injection of not permit all evidence to pass through because the doctrine i s intended to evidence in proper context. Id. The fact t hat the “door has been opened” does evidence for his own advantage, without allowing the opponent to place the favorable to his opponent and then selectively introducing some of this 590. The rule, thus, prevents a party from successfully excluding evidence initial evidence must have reasonably misled the fact finder in some way. Id. at evidence that may not otherwise be admissible. Id. at 589 - 90. How ever, the a justification, beyond mere relevance, for the opponent’s introduction of For this doctrine to apply, a party must introduce evidence that provides

Here, we are concerned only with the specific contradiction doctrine. otherwise inadmissible evidence to counter the misleading advantage. Id. and the opponent is then permitted to introduce previously suppressed or party has introduced a dmissible evidence that creates a misleading advantage “specific contradiction,” is more broadly applied to situations in which one introduce testimony to counter the prejudice. Id. The second doctrine, prejudicial evidence has been erroneously admitted, and the opponent seeks to (2009). The first doctrine, “curative admissibility,” applies when inadmis sible governing the admissibility of evidence. State v. Wamala, 158 N.H. 583, 589 Hampshire”). The “opening the door” doctrine comprises two doctrines p. 7 7

12 p. 7 7 N.H. 101, 103 (1985). the evidence, and the defendant must be prejudiced thereby.” State v. Dayutis, acted in bad faith, the opening statement must be completely unsupported by prosecutor’s opening statement is th at the prosecutor must be shown to have prosecutor’s opening statement. “The standard for reversible error in a We first address the defendant’s motion for mistrial based upon the

1. Motion for Mistrial During Opening Statement

discretion.” State v. Bisbee, 165 N.H. 61, 68 (2013) (quotation omitted). or other remedial action is necessary absent an unsust ainable exercise of mistrial. “We will not overturn the trial court ’ s decision on whether a mistrial The defendant next challeng es the trial court’s denial of his motions for

B. Motions for Mistrial

to the prejudice of his case. See id. establishing that the trial court’s ruling was clearly untenable or unreasonable circumstances, we hold that the defendant has failed to carry his burden of prejudice.” State v. Costello, 159 N.H. 113, 123 (2009). Under thes e that the jury would misuse the evidence, thus reducing the potential for unfair instructions, which the jury is presumed to follow, “minimized the possibility victim’s civil lawsuit in fact occurred. Therefore, the trial court’s limiting instructed that it could not consider whether the uncharged acts alleged in the victim’s civil lawsuit for their truth. In other words, the jury was specifically court twice instructed the jury that it c ould not consider the allegations in the had committed other crimes against the victim. We disagree. Here, the trial unsustainable exercise of discretion because it conveyed to the jury that he The defendant contends that admitting the testimony constituted an

prejudicial. did not waive his argument that admitting evidence of the uncharged acts was contrary. Based upon our review of the record, we conclude that the defe ndant opening statement was not misleading. The trial court had not yet ruled to the context. At this point in the proceeding, defense counsel was arguing that her in Maine. ’” However, the State has quoted defense coun sel’s statement out of inform the jury that the victim had made ‘ additional allegations relating to stuff that the defendant conceded in the trial court that “the State properly could the defendant “effectively waived” any claim of prejudice. The State contends unreasonable to the prejudice of the defendant’s case. The State asserts that We next consider whether the trial court’s ruling was clearly

we assume, without deciding, that the trial court erred by so concluding. misleading impression was created. However, for the purposes of this appeal, p. 8 8

and has great latitude in closing argument to both summarize and discuss the omitted). “A prosecutor may draw reasonable inferences from the facts proven are not compromised in the process.” Bisbee, 165 N.H. at 6 p. 8 8 (quotation license to fashion argument with the need to ensure that a defendant's rights closing argument, we face the delicate task of balancing a prosecutor’s broad closing a rgument. “In examining claims of prosecutorial misconduct during We next address the motions for mistrial based upon the prosecutor’s

2. Motions for Mistrial During Closing Argument

statement. based upon the challenged comment by the prosecutor in her opening exercise its discretion when it denied the defendant’s motion for a mistrial 233 - 34 (2004). Accordingly, we hold that the trial court did not unsustainably the court’s curative instruction to the jury. See State v. Hearns, 151 N.H. 226, Moreover, an y possible prejudice produced by the statement was negated by improper. However, there is no evidence that the prosecutor acted in bad faith. We assume, without deciding, that the prosecutor’s comment was

considered by you in any way. t hat, jurors, but I should make it clear. It’s stricken; not to be is stricken from the record. I . . . assume that you understand [W]hich means that . . . the last statement made by counsel

. . . .

behalf of [the defendant]. And, accordingly, I sustained the objection that was posed on opening statements are not to be argum ent, among other things. And the bottom . . . line is as I . . . indicated at the outset,

that . . . issue of . . . law. All right. Thank you, jurors, for your patience as I resolved

issu ed the following curative instruction to the jury: objection, although it denied the defense motion for a mistrial. The court then The defense objected to that statement, and the trial court sustained the

abusive to her and her sister. mo ving in with her father, . . . he became verbally and physically missed her sister, really. She will also tell you that not long after years old, she moved back in with . . . her dad . . . because she [The victim] will tell you [that] . . . when she was about 12

In her opening statement, the prosecutor stated: p. 9 9

accusations and Dwight Raymond and this laws uit but you’re not I can’t tell you what relationship there may be between these I can’t tell you why [the victim] is making these accusations.

mention that in November either. rubbing her le ft breast when she was 12 years old. She didn’t breast, where she says that [the defendant] spent 10 minutes the time when she was 12 and this alleged touching of her left . . . She didn’t tell police, in November [2010] anything about

. . . .

how she characterized it. her relationship with him was basically non - existe nt. That was little contact with her dad during this period of time. She said that she was afraid but s he also told you that she . . . was having very mom when she gets home. She doesn’t tell the police. She said tell, nothing according to her testimony but she doesn’t tell h er [The defendant] never threatened her, never asked her not to

now says she knows. said she didn’t know what [the defendant] was talking about. She 2010, when specifically a sked that question [by the police], she knew what he was referring to. Even though, in November of court, she said very specifically that at the time he apologized, she s ays that the next morning, [the defendant] apologized. So here in She didn’t call the police and she did n’t call p. 9 911. [The victim] then [after the November - December 2005 assault], which was next door. [T he victim] testified that she didn’t go to the police station

During her closing argument, defense counsel told the jury:

Hearns, 151 N.H. at 232. an unsustainable exercise of discretion, we will not overturn its decision.” adequately correct the prejudice created by a prosecutor’s remarks, and absent “The trial court is in the best position to determine what remedy will injustice that cannot be cured by jury instructions.” Id. (quotation omitted). not merely improper, but is so prejudicial that it constitutes an irreparable “Mistrial is the proper remedy only if the evidence or comment complained of is against blatant appeals to bias and prejudice.” Id. (quotation omitted). “there must be limits to pleas of pure passion and there must be restraints from the evidence.” Id. (q uotation and brackets omitted). At the same time, evidence presented to the jury and to urge them to draw inferen ces of guilt p. 10 10

caused by defense counsel’s opening statement. Defense counsel argued that physical abuse only to counter the misleading impression about her motive mistrial, contending that the trial court allowed the victim’s testimony about . . . not part of the evidence in the case . . . .” Defe nse counsel moved for a ever[ ] say that she feared physical abuse from [the defendant] if she told. It’s abuse she suffered.” Defense counsel argued, “At no point did this witness because she did not know what her f ather would do because of the physical Defense counsel objected to the statement, “She was afraid to tell

suffered -know what her father would do because of the physical abuse she she was afraid to tell. She was afraid to tell because she did not [After the incident when the victim was sixteen], [o]nce again,

. . . .

because her father to ld her not to tell and she was afraid. uncomfortable that mad e her feel and that she didn’t tell anyone in the house so no one would know. She told you how chest -- her breast. He did this when the two of them were alone bedroom and pulled down her shirt and groped and rubbed her a nd her father were alone in his house. . ., he came into her [The victim] told you that when she was 12 years old and she

abused her when she was 12 and when she was 16 years old. longer wanted to keep it inside; a secret of how her father sexually for several years; a secret that she told you about because she no victim], who told you about a secret that she has carried with h er You heard the testimony of a brave young woman, [the

The State then argued:

testimony has done absolutely nothing to dispel that presumption. allegations are not true. [The defendant] is innocent and the you about a lawsuit that these allegations are part of. These memories work. [The victim] has motives to lie. . . . [S]he has told mind. [The victim’s] testimony is not consistent with the way that I’ve said about memory and mo tives should be forefront in your When you consider the evidence that’s been presented, what

. . . .

with this case any more than it is my job to explain it. here to figure that out. It isn’t your job to sort out what is going on p. 11 11

response to defense counsel’s implied assertions that the victim’s allegations charged assaults because she was “afraid” was a permissible evidence - based The State’s assertion that the victim did not immediately disclose the

didn’t call 9 p. 11 11 . . .. [S] he [didn’t] tell her mom when she [g ot] home.” go to the police station, which was next door. She didn’t call the police an d she charged assaults demonstrated that the assaults never happened: “[S] he didn’t Defense counsel also implied that the victim’s failure to promptly report the motives to lie” and intimated that the Maine lawsuit provided such a motive. that out.” Defense counsel specificall y told the jury that the victim “has accusations and Dwight Raymond and this lawsuit but you’re not here to figure lawsuit: “I can’t tell you what relationship there may be between these there was a relationship between the victim’s accusations and the Maine why [the victim] is making these accusations.” Defense counsel implied that victim’s motive for accusing the defendant of sexual assault: “I can’t tell you (2005). In her closing argument, defense counsel specifically referenced the defense counsel’s closing argument.” State v. Ainsworth, 151 N.H. 691, 698 improper. “[T] he prosecutor’s comments here were a permissible response to Unlike the trial court, we conclude that the prosecutor’s comment was not remarks amounted to impermis sible comments.” Hearns, 151 N.H. at 232. “As a threshold matter, we must determine whether the prosecutor’s

that portion of the last phrase of her closing argument. to by the Prosecutor in her closing argument. Accordingly, I strike true or not. Such is the case of the evidence that was just referred credibility of witnesses, not for whether the underlying assertion is lunch; some evidence is admitted only to assist you in judging the [J]urors, as I will discuss in my instructions to you after

a mistrial. The trial court then issued the following cur ative instruction: The trial court sustained defense counsel’s objection, but denied the motion for

and I did not let it in for that purpose. To take it to the next step takes [it] directly into [Rule] 404(b)

motivation for her to be fabricating her e. by the Defense concerning the lawsuit and that lawsuit’s of the underlying assertion. I let it in because the door was open the testimony about the allegations in the lawsuit in for the truth She did say that she was afraid on the s tand but I did not let

The trial court agreed with defense counsel, stating:

. . . let in for any purpose” other than to counter that misleading impression. the victim’s testimony about why she sued the defendant in Maine “was not p. 12 12

required. The court stated: argument,” but that a mistrial, either with or without prejudice, was not The trial court ruled that the State’s comment constituted “an improper

prepared written closing argument. strike all references to the physical abuse allegation from her previously that she made the error, but not in bad faith, because she mistakenly did not part . . . to do what it was told not to do in this case.” The prosecutor stated prejudice was required. The State explained that “[t]here was no intent on [its] had improp erly referred to the physical abuse allegation, a mistrial with Defense counsel argued that because this was the second time that the State motive for the victim’s delay in reporting the defendant’s sexual assaults. abuse allegation in the civil suit as a motive for bringing that suit, but also as a mistrial was warranted because the State did not merely refer to the p hysical Defense counsel objected to the prosecutor’s statements and argued that a

give her motive not to tell, not to get her father angry. as stated in the ci vil suit of abuse would give her motive. It would abuse in New Hampshire, however, years of what happened to her abuse, that would not give her a motive to testify about sexual If [the victim] filed a civil suit in Maine because of physical

. . . .

corroborates that fact about what [the victim] told you. . . . suggested that she file the lawsuit. Dwight Raymond’s testimony against her father was not her idea and that Dwight Raymond because of physical abuse. She told you that filing the civil suit against her father. She told you why she filed the civil suit [The victim] told you that she filed a civil suit in Maine

The defendant again moved for mistrial after the prosecutor stated:

b. Second Motion for Mistrial

defendant’s motion for mistrial based upon them. court did not unsustainably exercise its discretion when it denied the prejudice the comments could have caused. Accordingly, we hold that the trial uncharged assaults in Maine, the trial court’s instruction cured any possible victim suffered could have been interpret ed as a reference to the alleged do so. To the extent that the State’s reference to the “physical abuse” the charged assaults when they happened because she was “scared” and “afraid” to her civil lawsuit. The victim specifically testified that she did not disclose the against the defendant were untrue and were made to advance her position in p. 13 13

of those allegations. make any direct or indirect state ment or implication as to the truth allegations in the civil suit and understood those references to that you understood the State to be making references to the the allegations in the civil [suit] are true or not and to the exten t to make any argument or even a sugge stion to you as to whether not. Likewise, that makes it improper, impermissible for the State improper for you to consider whether those allegations are true or certainly. And accordingly, it would be impermissible and true have no bearing on any issue in this case. No direct bearing Whether those allegations in a civil lawsuit are true or not

than that. specifically, [the victim’s] testimony and not for any purpose other determinations about the credibility of the testimony of a witness, may find it helpful or not, of aiding you in your ability to mak e a very limited purpose; the sole purpose, to the extent that you evidence concerning allegations made in a civil lawsuit in Maine for First though, I do want to be clear about this. I let in

argument. floor back over to [the prosecutor] to complete her closing [J]urors, welcome back. In a moment, I’m going to turn the

The trial court then inst ructed the jury:

only warranted but necessary to do so. improper argument and to use that phrase and I believe it is not inform the jury that that portion . . . of [the State’s] argument was And as much as I hate to do it, I think it is necessary that I

not proper argument. unequivocal instruction from me to the jury as to what is and is thought my prior ruling was clear. It does warrant a clear and ruling. I accept that representation although I do stress that I closing argument and neglected to r edact in light of my prior Prosecutor indicates that she was . . . reading from a pre - prepared So, mistrial . . . with or without prejudice is denied.

presented by the State. Defendant to rebut an assertion made by the State or evidence Defendant’s failure to testify or comment on a failure of a constitutionally impermissible territory, such as a comment on It is not . . . does not, for instance, tr[ea]d into p. 14 14

first time, this son of a bitch has been doing this all along. Why into a telephone pole. I know why, I know everything, this isn’t his mind on the drive home; it couldn’t have hit me harder if I drove victim and why the sister didn’t testify. I had these things on my One of the things that puzzled us was why she was the only

right. sure they will work hard and do a good job; I only hope they get it was within the parameters and scope of your instructions. I am many avenues but always someone would ask wheth er the point to be associated with [it]. We discussed many points and explored First I think you have an outstanding jury . . . . I am proud

able to correctly convey my thoughts, in the spoken word. I thought I had better [write] this down as . .. I might not be

and given to counsel and the defendant: presented the court with the following note, which was entered as an exhibit speak to the court. Outside of the presence of the other jurors, the juror Before the second day of jury deliberations began, Juror No. 10 asked to

C. Investigation of Juror Misconduct

defendant’s second motion for a mistrial. that the trial court unsustainably exercise d its discretion when it denied the thorough i nstruction cured any possible prejudic e. Therefore, we cannot say Here, even if the prosecutor’s comments were improper, the trial court’s

and in my final instructions after lunch. all other instructions that I give you during the course of this case that I do expect you to f ollow that instruction as you would follow And I should say as [the prosecutor] retakes the podium,

for completion of her closing argument. told them that I’m tur ning the case back over to [the prosecutor] I’ve told the attorne y [s] that that was my ruling. I ’ve also

argum ents and are not in this case. those arguments had never been made. They are not proper stricken. In your own minds, you need to consider this case as if closing argu ment concerning the allegations in that civil suit is accordingly, the last portion that you heard of [the prosecutor’ s] I’ve told the attorneys that I was going to tell you that and that, That’s improper argument and it is stricken from this case. p. 15 15

the trial court denied. He does not challenge that denial on appeal. the alternates serve in his place. The defendant moved for a mistria l, which After this colloquy, the State asked that the juror be dismissed and that one of

JUROR NO. 10: None of that. I recalled that on my way home.

shared any of this information with other jurors. that none of this was on your mind; that you could not have THE COURT: [I] just want to be sure that during deliberations,

JUROR NO. 10: [Last night] . . . I was asking myself that question.

overnight break? THE COURT: [D]id this come to you overnight, during the

leave the room. JUROR NO. 10: Not a soul. They didn’t even know I was going to

ask whether you’ve shared any of these thoughts -the whole jury c an proceed or not, and so I need to back up and THE COURT: [M]y concern now, I’m telling you . . . , is whether

The trial court then had the following exchange with the juror:

helped. Please apologize to the rest of [the] j urors but it can’t be

know I can no longer be impartial. part of my mind I know these are two different cases but I also revelation, based on the evidence legally presented. In the logical Your honor I knew this guy was guilty before I came to this

. . . .

her sister as insurance, in case we get it wrong. can hear what I know and remain impartial. The state is saving would come out and you would have to declare a mistrial, no jury state put the sister on the stand? Because if they did all this they ask ed her if dear old dad was raping her too. Why didn’t the discussing when this came to light? It was her sister’s rape when has been raping her too. What was the other matter the cops were that vulgarity but that’s the way this guy thinks) the son of a bitch did he take the older girl? Because she was ripe, (please excuse p. 16 16

to determine the nature and extent of its inquiry into the situation. Bader, 148 488. Absent proof of actual prejudice, it was within the trial court’s discretion jurors, that no prejudice had affected the panel. See Bathalon, 146 N.H. at conclusions, but also assured itself, after careful voir dire of the remaining Here, the trial court not only excused the juror who disclosed his

unsustainable exercise of discretion. Bader, 148 N.H. at 279. omitted). This is a fact - specific determination that we review for an and the predilections of the jury.” Id. (q uotation, brackets, and ellipsis impact of premature jury discussions of guilt and to observe the mood at trial . . . .” Id. “The trial court is obviously in the best position to observe the remove the offending juro r from the panel and undertake individual voir dire communicated an opinion to other jurors, the trial court should generally where it was alleged that a juror prematurely concluded guilt or innocence and “When confronted with an allegation of improper intra - jury conduct, especially defendant.” Bathalon, 146 N.H. at 488 (quotation and brackets omitted). these circumstances, the burden of proving actual prejudice rests with the intra - jury communication. See State v. Bader, 148 N.H. 265, 279 (2002). “In communication in this case, we are concerned here only with pos sible improper Because the defendant has made no claim of extrinsic contact or

that trial.”). II (2010) (“If it appears that any juror is not indifferent, he shall be set aside on disqualified before or during trial should be removed.” Id.; see RSA 500 - A:12, State v. Bathalon, 146 N.H. 485, 487 (2001). “Any juror found to be axiomatic that a defendant has a right to be tried by a fair and impartial jury.” Even if preserved, the defendant’s argument is unavailing. “It is

court that its limited voir dire of the remaining jurors was in any way deficient. this argument for our review. At no time d id defense counsel argue to the trial sister. H owever, as the State aptly observes, the defendant has not preserved testify and speculation as to whether the defendant had sexually assaulted the improper matters as Juror No. 10 — e.g., the failure of the victim’s sister to jurors was insufficient to determine whether they considered the same The defendant contends that the trial court’s voir dire of the remaining

then was excused. questioned more specifically outside of the presence of the other jurors and to both questions, except for one, who answered “no” to both. This juror was from trial and [the court’s] instructions of law.” All of the jurors answered “yes” have occurred to this point” and to base his or her “decision on the evidence each juror whether he or she would be able to “set aside . . . deliberations that determine whether to allow the jury to proceed. Specifically, the court asked The court then conducted limited voir dire of the remaining jurors to p. 17 17

HICKS, CONBOY, LYNN, and BASSETT, JJ., concurred.

intra - juror misconduct constituted an unsustainable exercise of discretion. conclude that the nature and scope of the trial court’s inquir y into potential N.H. at 279. Thus, even if the defendant’s argument were preserved, we ca nnot