2013-230, Tamara Dukette v. Daniel Brazas

Following a two-day trial in Superior Court (Smukler, from addressing and examining the jury panel during attorney-conducted voir

The plaintiff appeals, arguing that the trial court erred in preventing counsel slipped and fell on ice at her apartment, which was owned by the defendant.

dire. We affirm.

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 fault for the injuries sustained by the plaintiff, Tamara Dukette, when she J.), the jury determined that the defendant, Daniel Brazas, was not legally at

the brief and orally), for the defendant.

orally), for the plaintiff.

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 general voir dire questions, it stated that attorney-conducted voir dire would

p. 2 The plaintiff first argues that the trial court erred in conducting voir dire

On March 4, 2013, jury selection took place. After the trial court asked

court prior to attorney-conducted voir dire; and (2) its ruling prohibiting reconsider: (1) its requirement that counsel submit written questions to the

The trial court ultimately denied the motion for reconsideration. to raise the remaining issue in an appeal from a final judgment in the case. and, if possible, construe that language according to its plain and ordinary

The plaintiff filed a motion for reconsideration, asking the trial court to was never afforded an opportunity to address the panel as a whole. order insofar as it required prior submission of voir dire questions by counsel. interpretation of a statute is a question of law that we review de novo. State v.

Attorney-conducted voir dire is governed by RSA 500-A:12-a (2010), and,

is at odds with its structure.

voir dire questions, as the voir dire statute requires. See RSA 500-A:12-a, III respects, we denied the petition without prejudice to the rights of either party When interpreting a statute, we first look to the language of the statute itself, intent as expressed in the words of the statute considered as a whole. Id. Dor, 165 N.H. 198, 200 (2013). We are the final arbiters of the legislature’s the remainder of the seated panel. questions of the prospective jurors. Additionally, the parties agree that counsel presumably before the judge and counsel, but otherwise out of the hearing of reconsideration. We granted the petition in part and vacated the trial court’s accordingly, this appeal requires us to interpret that statute. The

(2010). The defendant responds that the plaintiff’s interpretation of the statute

in such a manner as to prevent jurors from hearing other jurors’ answers to unless a particular counsel engages in improper questioning.”). In all other

take place at the bench. Plaintiff’s counsel, however, waived asking any the juror would have to approach the bench and answer the question, court, raising the same two issues that had been included in her motion for away, the plaintiff filed an emergency petition for original jurisdiction with this the motion for reconsideration, with the date for drawing a jury only a few days requiring “[i]ndividual voir dire questions to be submitted ex parte to [the]

voir dire examination without requiring prior submission of the questions See RSA 500-A:12-a, IV (2010) (“The trial judge shall permit counsel to conduct

court stated that if any juror wished to respond to a question asked by counsel,

hear both the questions and the answers. Prior to the trial court ruling upon counsel from questioning the jury as a group so that all of the jurors could pretrial conference in this matter, the trial court issued a written order The facts are not in dispute. On February 19, 2013, following the final

court.” In addition, although it was not memorialized in the order, the trial not raised in the forum of trial.” Thompson v. D’Errico, 163 N.H. 20, 22 (2011).

p. 3 these arguments. “[P]arties [generally] may not have judicial review of matters case.” The trial court, however, was never afforded the opportunity to consider both constitutional protections and the ability to meaningfully prepare her

The plaintiff contends that the trial court’s procedure “deprived [her] of

reconsider. We disagree. The plaintiff’s motion to reconsider is devoid of any

course. likewise not prohibited, and, in certain instances, it may be the more prudent

The plaintiff asserts that this issue was raised in her motion to

two: one or some indiscriminately of whatever kind.” Webster’s Third New

Accordingly, although questioning of the panel as a whole is not required, it is

conclude that the plaintiff failed to properly preserve this issue for our review. from addressing the jury panel prior to individual questioning. Again, we

A:12-a, III. “Any” is defined as “one indifferently out of more than affords counsel the right to examine “any of the prospective jurors.” RSA 500group,” the plain meaning of the provision refutes her assertion. This provision upon “any unique or complex elements, legal or factual, in the case.” counsel,” as well as “the form and subject matter of voir dire questions,” based retains the discretion to prescribe “[t]he scope of the examination conducted by

The plaintiff also argues that the trial court erred in preventing counsel

Id. To satisfy this preservation requirement, issues which could not have been specifically raised the arguments articulated in her brief before the trial court. “reiterates that the legislature intended counsel to examine the jury panel as a

We note, however, that pursuant to RSA 500-A:12-a, IV, the trial court

these issues. 676, 679 (2002). Because the plaintiff failed to do so, we need not address motion for reconsideration. N.H. Dep’t of Corrections v. Butland, 147 N.H. presented to the trial court prior to its decision must be presented to it in a

It is the plaintiff’s burden, as the appealing party, to demonstrate that she and challenges for cause.” Although the plaintiff asserts that this provision in order to enable counsel to intelligently exercise both peremptory challenges right to examine, by oral and direct questioning, any of the prospective jurors

examination of the prospective jurors, “counsel for each party shall have the employed by the trial court did not violate the statute. mean “all,” or, as here, the entire panel. Consequently, the procedure International Dictionary 97 (unabridged ed. 2002). It does not, in any context,

meaning. Id. “When statutory language is clear, its meaning is not subject to

Pursuant to RSA 500-A:12-a, III, after the trial court has completed its

N.H. 267, 272 (2013). modification.” Appeal of Northern New England Tele. Operations, LLC, 165 reasonable amount of time to address the panel . . . for the purpose of p. 4 has made clear that, prior to questioning jurors, counsel “shall be allowed a to achieve the legislature’s purpose of assuring juror neutrality. The legislature

express my belief that doing so is, as a practical matter, the most effective way

allowing counsel to question the jury panel as a whole. I write separately to (2010), we have stated that the statute does not preclude the trial court from CONBOY, J., concurring specially. In interpreting RSA 500-A:12-a whole – open voir dire – simply cannot be duplicated by individual voir dire at requisite degree of neutrality required.”); McCarthy v. Wheeler, 152 N.H. 643, opinion, bias, or prejudices which might prevent a juror from attaining the

opinion, the effectiveness of subsequent questioning of the jury panel as a opinion, bias, or prejudices.” RSA 500-A:12, II (emphasis added). In my prompt jury reflection, probing, and subsequent disclosure of information, prompt jury reflection, probing, and subsequent disclosure of information, reconsider after the trial court established the new voir dire procedure.

the bench. Further, given the time constraints that generally characterize jury

explaining such party’s claims, defenses, and concerns in sufficient detail to explaining such party’s claims, defenses, and concerns in sufficient detail to draw. Nor did she object when she learned of the change or file a motion to

requirements established by the legislature when conducting jury voir dire. Accordingly, we take this opportunity to remind trial judges to comply with the

LYNN and BASSETT, JJ., concurred; CONBOY, J., concurred specially. amount of time to address the panel of prospective jurors for the purpose of Affirmed. included it in her motion for reconsideration, which was filed prior to the jury conference] until the jury was drawn.” Accordingly, she could not have in the trial court’s procedure [from that described at the final pre-trial

[and] is significant as indicating the intent that the statute is mandatory.”). 645 (2005) (“The use of the word ‘shall’ is generally regarded as a command . . .

issue was raised in the trial court, we decline to address it. See State v.

RSA 500-A:12-a, II (“Counsel for each party shall be allowed a reasonable short-circuited the process . . . by eliminating the panel presentation.” See to address the jury panel, stating in his brief that the trial court “essentially dire, the defendant does not contest her assertion that she was not permitted panel. Indeed, she concedes in her brief that she “did not learn of the change Although the plaintiff has not provided us with a record of the jury voir reference to a ruling by the trial court precluding her from addressing the jury

Noucas, 165 N.H. 146, 152 (2013); Butland, 147 N.H. at 679.

Consequently, because the record does not support the assertion that this p. 5 5

circumstances of the particular case.” RSA p. 5 500-A:12-a, III.

entire panel. In my judgment, open voir dire better accomplishes the

examination calculated to discover bias or prejudice with regard to the

privately at the bench, the questions that would otherwise be asked of the selection, it is unlikely that counsel would be able to explore with each juror,

legislature’s stated purpose of allowing counsel “liberal and probing