2016-0293, The State of New Hampshire v. James Bazinet

juror’s ability to render an impartial verdict. We affirm. in to evidence, but which was visible in the defense counsel’s file — had on that each juror about the impact that a photograph — which had not been admitted robbery, and that the trial court erred when it did not individually question On appeal he argues that the evidence was insuffi cient to convict him of and being a felon in possession of a deadly weapon, see RSA 159:3, I(a) (2014). assault, see RSA 631:1, I (b) (2016), robbery, see RSA 636:1, I (a), III (a) (2016), conviction following a jury trial in Superior Court (Ruoff, J.) for first degree BASSETT, J. The defendant, Dominick Stanin, Sr., appeals his

brief and orally, for the defendant. Stephanie Hausman, deputy chief appellate defender, of Concord, on the

general, on the brief and orally), for the State. Gordon J. MacDonald, attorney general (Sean P. Gill, assistant attorney

No. 2016 - 0441 Hillsborough - northern judicial district

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instruction, explaining that the photograph had not been intentionally required, the court reconvened the jury and gave a detailed curative mistrial. The court denied the motion. After finding that a mistrial was not juror developed about the photograph. Defense counsel again moved for a question each juror regarding what he or she saw and what opinion, if any, the by an instruction. Defense counsel then asked the court to indiv idually the realm of juror misconduct,” and that any resulting prejudice could be cured rather it stated that the jury’s exposure to the photograph did not “fall[] into which i s prejudicial to [the defendant].” The cour t did not rule on the motion; the D efense attorney for inadvertently exposing [the photograph] to them, evidence that was not admitted [and drawing] . . . an adverse inference against Defense counsel then move d for a mistrial, arguing that the jury was “using counsel had displayed the photograph “almost deliberately, for the jury to see.” were discussing the photograph, and that one juror had stated that defense Less than an hour later, Juror 9 reported to the court that other jurors

during deliberations. instructed the juror to let it know if other jurors mentioned the photograph She told the court that other jurors may have seen the photograph. The court th at she would base her verdict solely on the evidence presented during trial. In response to questioning from the trial judge, Juror 9 assured the court

however, it had not been admitted into evidence at trial. in the assault. The State disclosed the photograph to defense counsel; internet, believing that the im age matched the description of the weapon used as an image of a knife. A detective had downloaded the photograph from the the presence of the juror, t he court and the lawyers identified the photograph weapon in question” that she “obviously wasn’t supposed to see.” Outside of She said that she had seen a photograph in defense counsel’s file of “the As the jury began its deliberations, Juror 9 asked to address the court.

jury trial, the defendant was convicted on all charges. robbery, and being a felon in possessi on of a deadly weapon. After a three - day subsequently arrested the defendant and charged him with first degree assault, The victim identified the defendant in a photo line - up. The police

keys that had previously been in his pockets were missing from his room. broken ribs and multiple stab wounds, he noticed that the money, phone, and When the victim returned home later that day after receiving treatment for two floor. N eighbors called an ambulance and the victim was taken to the hospital. reach into his pockets, causing his money, phone, and keys to spill on to the his son to “do something, do something.” There after the victim felt someone wedged type thing, with a handle on it.” During the assault, the defendant told him with a knife that the victim described as “kind of l ike a triangle, kind of [a] defendant and his adult son entered their housemate’s bedroom and stabbed The jury could have found the following facts. O n August 14, p. 2 2014, the p. 3 3

omitted). “Questions about the reasonableness of theories of innocence are for have found proof of guilt beyond a reasonable doubt.” Id. at p. 3 361 - 62 (quotation alternative hypothesis is sufficiently reasonable that a rational juror could not the light most favorable to the prosecution and determines whether the exculpatory fashion. Id. “Rather, the reviewing court evaluates the evidence in been suggested by the defendant which could explain the ev ents in an at 361. The court does not determine whether another possible hypothesis has all reasonable conclusions based upon the evidenc e have been excluded.” Id. conclusion consistent with innocence has been excluded, but, rather, whether (quotation omitted). “The proper analysis is not whether every possible modified in part on other grounds by State v. King, 168 N.H. 340, 345 (2015) hypothesis of innocence.” State v. Germain, 165 N.H. 350, 362 (2013), consistent with guilt and inconsistent, on the whole, with any reas onable not in isolation. Id. We “consider whether the circumstances presented are light most favorable to the State and examine each evidentiary ite m i n context, guilt. Id. Under this standard, however, we still consider the evidence in the solely circumstantial, it must exclude all reasonable conclusions except could have found g uilt beyond a reasonable d oubt. Id. When the evidence is and all reasonable inferences from it in the light most favorable to the State, defendant must prove that no rational trier of fact, viewing all of the evidence 718 (2017). To prevail upon a challenge to the sufficiency of the evidence, the therefore, our standard of review is de novo. State v. Morrill, 169 N.H. 709, A ch allenge to the sufficiency of the evidence raises a claim of legal error;

after the attempt or commission.” RSA 6 p. 3 36:1, II (2016). retain the stolen property immediately after its taking, or in immediate flight commi tting a theft ’ if it occurs in an attempt to commit theft, in an effort to of the force. RSA 636:1, I(a). “An act shall be deemed ‘in the course of committing a theft, used physical force on the victim, and the victim was aware prove beyond a reasonable doubt that the defendant, in the course of the evidence. In order to convict the defendant of robbery, the State needed to We first address the defendant’ s argument regarding the sufficiency of

incident.” was inadequate to gauge the effect on the jury of the potentially prejudicial about the photograph because, without such questioning, “the court’s inquiry used force against the victim; and (2) failed to individually question each juror insufficient to prove that he was in the course of committing a theft when he denied his motio n to dismiss the robbery charge because the evidence was On appeal, the defendant contends that the trial court erred when it: (1)

convicted the defendant on all charges. This appeal followed. impartially delibe rate based on the evidence that’ s admitted at trial.” The jury Each juror then individually affirmed that he or she could “fairly and displayed, was not evidence, and could not be considered in reaching a verdict. p. 4 4

prejudice is presumed when there are communications between jurors and criminal case, a defendant must prove actual prejudice, although such whether it was prejudicial.” Brown, 1 5 p. 4 4 N.H. at 348 (quotation omitted). “In a adequate inquiry to determine whether the alleged incident occurred and, if so, extrinsic contact or communication, the trial court must undertake an A: 12, II (2010). If there is an allegation “that a juror has been biased by be disqualified before or during trial should be removed. Id.; see RSA 500 impartial jury. State v. Brown, 154 N.H. 345, 348 (2006). Any juror found to It is axiomatic that a defendant has a right to be tried by a fair and

(1999); see State v. Ball, 12 p. 4 4 N.H. 226, 231 - 32 (1983). upon federal law only to aid our analysis. State v. Rideout, 143 N.H. 363, 365 W e first address the defendant’ s claims under the State Constitution, and rely impartial jury. See N.H. CONST. pt. I, art. 15; U.S. CONST. amends. VI, XIV. their thinking” deprived him of his state and federal constitutional rights to an individually “about what they saw or heard others discussing and its effect on defendant contends that the trial court’ s decision not to question jurors photograph of the weapon had on his or her ability to remain impartial. The when it failed to question each juror individually about the impact the We next address the defendant’s argument that the trial court erred

found guilt beyond a re asonable doubt. See id. at 362. of fact, viewing the evidence in the light most favorable to the State, could have that the defendant has not met his burden to demonstrate that no rational trier were mi ssing from his room. Given the totality of the evidence, we conclude he testified that, when he returned from the hospital, his money and phone did not see the defendant take his belongings during the course of the assault, causing his money, phone, and keys to spill onto the floor. Although t he victim victim testified that shortly there after, someone reached into his pockets, stabbing him, the defendant told his son to “do something, do something.” The The jury heard testimony from the victim that, while the defendant was doubt that the defendant committed theft. See Germain, 165 N.H. at 361 - 62. evidence, the presence of other people in the house did not create reasonable alternative hypothesis was not “reasonable” because, given the totality of the Here, a rational juror could have concluded that the defendant’s

property. We disagree. that other people lived in the house and any one of them could have taken his with innocence explains the disappeara nce of [the victim’s] property”; namely, charge. See RSA 636:1, II. He contends that a “rational conclusion consistent by statute, the trial court erred in denying his motion to dismiss the robbery prove that force was used “in the course of committing a theft” as is required The defendant argues that, because the evidence was insufficient to

362. the jury to decide in cases predicated upon circumstantial evidence.” Id. at p. 5 5

presumption of prejudice, when, after a witness for the S tate provided medical In Rideout, we concluded that the State had failed to rebut the

368. We disagree. to sufficiently establish that the jury was untainted. See Rideout, 143 N.H. at individually about a presumptively prejudicial incident in order for the record it did not do so here. He further argues that a trial court must quest ion jurors and undertake individual voir dire of the panel,” id., the trial court erred when approach [for inquiring into juror misconduct] is to remove the offending juror contends that, because we have previously observed that the “most common saw or heard others discussing and its effect on their thinking.” The defendant because the court did not “question each juror individua lly about what they Here, t he defendant argues that the trial court’s inquiry was inadequate

unsustainable exercise of discretion. Lamy, 1 p. 5 58 N.H. at 523. inquiry. Id. This is a fact - specific determination, which we review for an trial court has broad discretion to determine the extent and nature of its whether it was prejudicial.” Rideout, 143 N.H. at 365 (emphasis added). The adequate inquiry to determine whether the alleged incident occurred and, if so, tainted by extrinsic contact or communication, the court must undertake an “When a party makes a colorable claim that a jury may be biased or

juror be questioned individually. that the trial court did not err when it denied the defendant’s request that each extrinsic contact or communication that triggers the presumption, we conclude applies: even if we were to find that the photograph constitute d the kind of presumption. Here, w e need not decide whether the presumption of pre judice case do not rise to the level of egregiousness which justify imposition of the States v. Boylan, 898 F.2d 230, 261 (1st Cir. 1990), and that the facts of this communication which directly injec ts itself int o the jury process,” United applicable only where there is an egregious tampering or third party The State, citing federal precedent, counters that “the presumption is because the jury was exposed to extraneous information related to the case. The defendant argues that the presumption of prejudice applies here

prejudice was harmless beyond a reasonable doubt.” Id. at p. 5 522 - 23. established, and t he burden of proof shifts to the State to prove that the related to the issues presented at trial, a presumption of prejudice is 522 (2009). “[W]hen a juror is exposed to extraneous information sufficiently opportunity to examine and present to the jury.” State v. Lamy, 158 N.H. 511, his or her decision upon evidence that the defendant never had any communications concerning the case. In both instances, the juror may base presents the “same danger . . . as when a juror is party to extraneous same presumption to a juror’ s unauthorized view of the crime scene” because it co mmunications with others are about th e case.” Id. We have extend ed “the individuals associated with the case or when the juror’ s unauthorized p. 6 6

the photograph was harmless beyond a reasonable doubt. evidence to establish that any prejudice resulting from the jury’s exposure to Therefore here, because of the trial court’s investigation, there was sufficient that any juror who did not follow the court’s instructions would be replaced. court if the photo was again discussed. The trial court also warned the jurors and (4) further instructed the jurors not to discuss the photo, and to notify the and impartially deliberate based on the evidence that’s admitted at this trial”; individual affirmation from each juror that he or she could “continue to fairly evidence, and could not be considered in reaching a verdict; (3) received an jury that the photograph had not been intentionally displayed, was not the conversation among jurors about the photograph; (2) instructed the entire photograph on each juror when it: (1) questioned Juror 9 about the nature of realm of juror misconduct,” the trial court investigate d the effect of the concluded that the jury’s exposure to the photograph did not fall “into the Here, in contrast with Rideout, despite the fact that the trial court

N.H. at 3 p. 6 65. mandate that the trial court individual ly question each juror. See Rideout, 143 “adequate inquiry” into a presumptively prejudicial incident, it does not omitted)). Therefore, although Rideout requires that a trial court make an prejudice if confronted with a colorab le claim of juror misconduct” (quotation magnitude of the taint - producing event and the extent of the resulting not have discretion to refuse to conduct any inquiry at all regarding the also United States v. Zimny, 846 F.3d 458, 472 (1st Cir. 2017) (a “judge does that the State had failed to rebut the presumption of prejudice. See i d.; s ee had on the other juror s ’ ability to render an impartial verdict, we concluded beca use the State offered no evidence regarding what effect, if any, the incident with the State’s witness to the rest of the jury. Id. at 368. Accordingly, make any findings” regarding whether that juror had disclosed his encounter the juror who received medical assistance, and it “did not hear any evidence or trial court ’s decision because it had explored the effect of the incident only with Id. at 365 (emphases added) (citations omitted). In Rideout, we reversed the

extent and nature of its inquiry. court has broad, though not unlimited, discretion to determine the incident occurred and, if s o, whether it was prejudicial. The tr ial undertake an adequate inquiry to determine whether the alleged tainted by extrinsic contact or communication, the court must When a party makes a colorable claim that a jury may be biased or

juror individually. R ather, we stated: Id. W e did not, however, hold that a trial court is required to q uestion each potentially prejudicial effect the incident may have had on the jury as a whole. assistance to a juror during deliberations, the court did not inquire into the p. 7 7

concurred. DALIANIS, C.J., and HICKS, LYNN, and HANTZ MARCONI, JJ.,

but not fully briefed, is deemed waived). State v. Blackmer, 149 N.H. 4 p. 7 7, 49 (2003) (issue raised in a notice of appeal, at oral argument, but not briefed or raised in the trial court, is deemed waived); deemed waived. See State v. Scott, 167 N.H. 634, 638 (2015) (argument made d efendant’s notice of appeal or at oral argument that are not fully briefed are under the State Constitution. Any rem aining arguments raised in the N.H. at 365, we reach the same result under the Federal Constitution as we do than does the State Constitution under these circumstances, see Rideout, 143 As the Federal Constitution offers the defendant no greater protection

from the incident was harmless beyond a reasonable doubt. could remain impartial, there was sufficient evidence that the prejudice, if any, curative instruction, and each juror’s individual affirmation that he or she 158 N.H. at 523 (quotation omitted). Here, we conclude that, in light of the determine what constitutes an adequate inquiry into juror misconduct.” Lamy, fashion requested by the defendant, “it is within the trial court’s discretion to N.H. at 348. Although the trial court did not conduct its inquiry in the specific adequate to determine whether the incident was prejudicial. See Brown, 154 that the trial court soundly exercised its discretion, and that its inquiry was Thus, even if the presumption of prejudice were to apply, we conclude

omitted). an unbiased mind in a certain matter.” Lamy, 158 N.H. at 523 (quotation he or she remained impartial. “[A] juror i s well - qualified to say whether he has the trial court gave the curative instruction to the jury, each juror affirmed that have resulted from the jury’s exposure to the photograph. Importantly, after court’s instruction suffici ently diminished any prejudicial impact that might believed that defense counsel had disclosed the photograph intentionally. T he concern that the jury would draw an adverse inference against him if it fashioned a curative instruction that squarely addressed the defendant’s court conducted an inquiry into the jury’s exposure to the photograph, and jurors follow the trial court ’ s instructions.” Id. (quotation omitted). Here, the of those instances. “[W]e base our review on the familiar presu mption that would be inadequate as a matter of law,” id. (quotation omitted), this is not one (2002). Although “there may be some instances in which curative instructions could not otherwise be justly reached.” Sta te v. Dowdle, 148 N.H. 345, 348 depends on the capacity of the offending [incident] to lead to a verdict that we disagree. “The adequacy of a particular jury instruction necessarily because its curative instruction was insufficient to cure the possible prejudice, To the extent that the d efendant also argues that the trial court erred