2019-0653, State of New Hampshire v. Richard Soulia

Girard, 173 N.H. 619, 627 - 29 (2020). Because we conclude that the trial court review of those records under the standard we recently clarified in State v. erred when it failed to disclose certain confidential records following in camera State and Federa l Constitutions. He also argues that the trial court may have three prospective jurors, in violation of his right to an impartial jury under the Superior Court (Ruoff, J.) erred when it denied his motions to strike for cause See RSA 632 - A:2, I(a), II (2016). On appeal, the defendant argues that the following a jury trial, on three counts of aggravated felonious sexual assault. BASSETT, J. The defendant, Richard Soulia, appeals his convictions,

brief and orally, for the defendant. Thomas Barnard, senior assistant appellate defender, of Concord, on the

assistant attorney general, on the brief and orally), for the State. Gordon J. MacDonald, attorney general (Elizabeth C. Woodcock,

No. 2019 - 0653 Cheshire

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

omitted). “We will not disturb the trial court’s ruling absent an unsustainable impartial jury was selected.” State v. Town, 163 N.H. 790, 794 ( p. 2 2012) (citation evaluate the voir dire testimony of the empanel l ed jury to determine whether an a prospective juror is free from prejudice, it is then our duty on appeal to “Once the trial court on voir dire has made a determination as to whether

deference.” Tabaldi, 165 N.H. at 3 1 p. 2 2 - 13. these reasons, the trial court’s impartiality determination “is entitled to special duty. ’” Id. (quoting Skilling v. United States, 561 U.S. 358, 386 (2010)). For inflection, sincerity, demeanor, candor, body language, and apprehension of impossible to capture fully i n the record — among them, the prospective juror’s 1038 (1984)). The determination “‘ is ordinarily influenced by a host of facto rs Murder), 165 N.H. 381, 447 (2013) (quoting Patton v. Youn t, 467 U.S. 1025, of credibility, and therefore largely one of demeanor. ’” State v. Addison (Capital The trial court’s determination of a juror’s impartiality “‘ is essentially one

indifferent, [she or] he shall be set aside on that trial.” RSA 500 - A:1 p. 2 2, II (2010). omitted); see also RSA 500 - A:12, I (2010). “If it appears that any juror is not has a duty to determine whether the juror is indifferent.” Id. (quotation omitted). “When a juror’s impartiality is questioned, ho wever, the trial court render a verdict based on the evidence presented in court.” Id. (quotation impartial if the juror can lay aside her [or his] impression or opinion and Generally, a juror is presumed to be impartial. Id. “A juror is considered

to be tried by a fair and impartial jury.” Id. (quotation omitted). “a fundamental precept of our system of justice that a defendant has the right ( p. 2 2013) (quotation omitted). This constitutional provision therefore enshrines as impartiality is applicable as well to jurors.” State v. Tabaldi, 165 N.H. 306, 312 of humanity will admit.” N.H. CONST. pt. I, art. 35. “This provision for judicial part, “It is the right of every citizen to be tried by judges as impartial as the lot Part I, Article 35 of the New Hampshire Constitution provides, in relevant

governing jur or impartiality. specific facts relevant to each chall enged juror, we set out the legal standards State v. Ball, 1 p. 2 24 N.H. 226, 231 - 33 (1983). In addition, before discussing the under the State Constitution and rely on federal law only to aid our analysis. arts. 15, 21, 35; U.S. CONST. amends. VI, XIV. We first address his claim his motions to strike three prospective jurors for cause. See N.H. C ONST. pt. I, and impartial jury under the State and Federal Constitutions when it denied The defendant first argues that the trial court violated his right to a fair

I. Motions to Strike Jurors for Caus e

affirm. strike the jurors for cause and when it withheld certain confidential records, w e sustainably exercised its discretion when it denied the defendant’s motions to p. 3 3

time police officer. She stated that these relationships would not impact her had been a police officer and that her former significant other had been a part - Juror A informed the court that, approximately ten years ago, her son

A. J uror A

appeal as to each juror. testimony of Jurors A, B, and C, and address the defendant’s arguments on resulted in the defendant’s convictions. We now examine the voir dire were not selected as alternates and participated in the jury deliberations that (2001), but did not exercise them on Jurors A, B, and C. These three jurors defendant exhausted his three p ere mptory challenges, see RSA 606: p. 3 3, III found each of these three jurors qualified over the defendant’s objection. The consequently, the court conducted individual voir dire of each juror. The court Jurors A, B, and C were among the jurors who responded affirmatively and, questions, they should alert the court and discuss the question at the bench. drawn as a prospective juro r and they answered “yes” to any of these assaulting a child. The court instructed the jury pool that if their name was them from being fair and impartial towards an individual accused of sexually ther e was anything in their history or day - to - day experiences that prevented sexual abuse, sexual assault, or attempted sexual assault; and (4) whether member of their family or anyone close to them had ever been a victim of engaged in any occupation related to law enforcement; (3) whether they or any prospective witnesses; (2) whether they were in a ny way related to persons the following questions, among others: (1) whether they knew any of the During jury selection, the court asked the entire pool of potential jurors

defendant sexually assaulted her on several occasions when she was a minor. allegations made by a member of the defendant’s extended family that the count of prostitution, see RSA 645:2, II(a) (2016). The se charges arose from aggravated felonious sexual assault, see RSA 6 p. 3 32 - A:2 (Supp. 2020), and one In November 2018, a grand jury indicted the defendant on four counts of

each challenged juror. relevant to jury selection before addressing the defendant’s arguments as to prospective jurors who later sat on the jury. We briefly recount the facts trial court erred when it denied his motions to strike for cause three standard here. Under this standard of review, the defendant argues that the Addison, 165 N.H. at 450 (quotation omitted). Accordingly, we apply that this context, he must show “that a biased juror actually sat on the jury.” The defendant asserts, and the State agrees, that to prove prejudice in

or unreasonable to the prejudice of his case.” Id. at 795. the defendant must demonstrate that the court’s ruling was clearly untenable weight of the evidence.” Id. “To show an unsustainable exercise of discretion, exercise of discretion or a finding that the trial judge’s decision was against the p. 4 4

reverse the trial court as it did in Town. We disagree. W e analyze the voir dire she “would try,” Town, 163 N.H. at 792, and, therefore, the court should best” is in distinguishable from the statement made by the juror in Town that The defendant argues that Juror A’ s statement that she would “do [her]

insufficient” to establish her impartiality. Id. at 79 p. 4 4. “indication that she would ‘try’ to be fair and impartial, without more, was considering the entirety of the juror’s v oir dire, we held that the juror’s evidence, and each time the juror responded that she would “try.” Id. After could set aside her personal situation and judge the case solely on the sure.” Id. at 791 - 92. On two occasions, t he court asked the juror whether she experience would prevent her from being impartial, she answered, “I’m not again by the court and for a third time by defense counsel if her personal she replied, “I think I need to do this.” Id. (quotation omitted). When asked asked the juror if that experience prevented her from being fair and imp artial, had been a victim of sexual assault at the age of fourteen. Id. When the court N.H. at 791. The challenged juror in that case disclosed to the court that she defendant was charged with aggravated felonious sexu al assault. Town, 163 facts here are analogous to those presented in State v. Town. In Town, t he allegation of sexual abuse and render an unbiased verdict. He asserts that the Juror A would be able to set aside her personal experience involving an On appeal, the defendant argues that the record does not establish that

would categorically deny -- would require her not to serve as a juror.” think her answers were candid and honest. I don’t think that her emp loyment done that wasn’t done before.” The court denied the motion and explained, “I the instant case and her prior experience, Juror A might “want to see justice express a certainty that she could be fair” and, d ue to the similarities between Defense counsel moved to strike Juror A for cause because “[s]he didn’t

the experience “had an effect on [her].” w hen hearing the instant case, her “mind [could] go back to that kid” and that [her] heart.” In response to questioning by counsel, Juror A admi tted that, that she “would do [her] best here to do what’s right and answer honestly to felt like the child wasn’t advocated . . . for properly.” Juror A further stated Juror A said, “I would say no, with a little bit o f apprehension, because I just that experience “would affect [her] ability to be fair and impartial in this case,” want [the alleged perpetrator] to go to jail.” When asked by the court whether perpetrator was a family member of the child and the child’s parent “did not explained that no one was ever prosecuted for the assault because the alleged report was to do a “write up” of the allegation for the school district. She also students to her supervisor. She said that her only involvement after that capacity, she once had to report a suspected sexual assault of one of her for nonverbal and nontraditional children.” She explained that, in that previously worked as a para - educator and “was trained to be a child advocate ability to be fair and impartial. Juror A also advised th e court that she p. 5 5

arouses some concern, only the trial judge could tell which of these answers 16 p. 5 5 N.H. at 447; see also Patton, 467 U.S. at 1040 (“[W]hile the cold record degree to which her later statements undermined that assertion. See Addison, her p ersonal experience would not prevent her from being impartial, and the in th e best position to evaluate the certainty of Juror A’s initial affirmation that Given the ambiguous nature of Juror A’s statements, the trial court was

upon a technical evaluation of the venireperson’s use of ‘magic’ words.”). court’s determination whether to excuse a juror for cause is not dependent formula.”); State v. Clayton, 99 p. 5 5 S.W.2d 468, 476 (Mo. 1999) (en banc) (“A trial particular tests and procedure is not chained to any ancient and artificial this mental attitude of appropriate indifference, the Constitution lays down no United States v. Wood, 299 U.S. 1 23, 145 - 46 (1936) (“For the ascertainment of (“[I]mpartiality is not a technical conception.” (quotation omitted)); see also during voir dire in order to find a juror qualified. See Tabaldi, 165 N.H. at 312 omitted). Nor must a trial court extract particular talismanic or magic words conflicting utterances comprehensible.” Addison, 165 N.H. at 447 (quotation inflection, [and] the flow of the questions and answers can make confused and e xpress themselves carefully or even consistently.”). Indeed, “[d]emeanor, also Patton, 467 U.S. at 1039 (“Jurors . . . cannot be expected invariably to ambiguous and seemingly contradictory ways.” Addison, 165 N.H. at 448; see observed that it is “not uncommon for jurors to express themselves in what’s right and answer honestly to [her] heart” was ambiguous, we have Although Juror A ’s statement that she would “do [her] best here to do

[her] heart.” saying she would “do [her] best here to do what’s right and answer honestly to child had not been advocated for properly. She followed that statement up by ability to be fair and impartial, Juror A said “no” — with the caveat that the Here, when asked if her experience with the student at school would affect her and that s he “would try” to set aside her personal situation. Id. at 791 - 92. the juror repeatedly said she was “not sure” whether she could be impartial impartial were not as equivocal as the statements at issue in Town. In Town, In addition, Juror A’ s statements about her ability to be fair and

this,” id. at 791. substantially equivalent to the statement of the juror in Town that “I need to do justice done that wasn’t done before,” in fact, Juror A made no statement argued that Juror A should be stricken for cause because she “may want to see she perceived as a result of her past experience. Although defense counsel A express a desire to serve on the jury as a means of rectifying injustice that of a student to her supervisor. Nor, in contrast to the juror in Town, did Juror the course of her employment, she once reported the suspected sexual assault assault. Rather, Juror A ’s experience with sexual assault was more remote: in isolation. Here, u nlike in Town, the juror had not been a victim of sexual statements of juror s in the context of their entire voir dire, s ee id. at 794, not in p. 6 6

with children for so many years” and would therefore have a bias in favor of the Defense counsel moved to strike Juror B for cause because “she’s worked

[Juror B]: Probably not.

[Defense counsel]: Yeah. But about big things, maybe not ?

[Juror B]: No. [They] [s]ometimes fib a little.

kids lie, in your experience? [Defense counsel]: Yeah. Because . . . you’re not really feeling that

[Juror B]: I would think so, yeah.

telling t he truth? [Defense counsel]: Um - hum. And so you’d sort of presume they’re

[Juror B]: I think so.

a child. . . you’d be inclined to believe them? was testifying about something . . . that had h appened to them as [Defense counsel]: Okay. Do you feel like if . . . a young person

following exchange with Juror B: was the school counselor ’s responsib ility. Defense counsel then engaged in the she did not participate directly in students’ care related to abuse because that nurse, she was aware of students who had been sexually abused. However, school nurse in a high school for approximately twenty years. As a high school questioning, Juror B explained that, before retiring, she had worked as a Juror B also informed the court that she was a nurse. Upon further In the course of the court’s questioning about her husband’s history,

she answered, “No.” asked whether she would think about her husband’s experience at the trial, talk ab out his experience but that she does “see some effects” of it. When her ability to be fair and impartial. She explained that her husband does not he was a child. She stated that she di d not think that this fact would impact the court that her husband had been sexually abused fifty - five years ago when In response to the court’s questions to the entire jury pool, Juror B told

B. Juror B

when it denied the defendant’s motion to strike Juror A for cause. by Juror A, we conclude that the tr ia l court sustainably exercised its discretion account our deferential standard of review, and the series of statements made was said with the greatest comprehension and certainty.”). Taking into p. 7 7

children and young witnesses more than . . . adults.” We are not persuaded. questions posed by counsel — reveal that she has a “tendency to credit defendant contends that Juror B ’s response s — particularly her responses to could overcome her bias in favor of children and young adult witnesses. The The defendant also argues that the record fails to establish that Juror B

stated s he was “not sure” whether she could be fair and impartial). qualification of juror who had been victim of sexual assault and who repeatedly history of sexual abuse. Cf. Town, 163 N.H. at p. 7 794 (reversing trial court’s the trial court’s decision not to strike Juror B for cause due to her husband’s experience during the trial. The record therefore provides ample s upport for answered “No” when asked whether she would think of her husband’s would impact her ability to be fair and impartial. She also definitively demonstrates that Juror B “[didn’t] think” her husband’s history of abuse sexual ly abuse d and render an unbiased verdict. We disagree. The record court’s finding that Juror B could set aside the fact that her husband had been The defendant first argues that the record does not support the trial

So request is denied. room and get up to look like they had bias, but really they don’t. And so I mean, I could cross - examine half the people in this

. . . .

a juror. N o one that works [as] a nurse would be able to serve. true, no one that works in a high school would be able to serve as don’t think there’s enough to strike her for cause. If that were might be a perfect candidate for a peremptory [challenge], but I an assault that she h ad . . . no knowledge. So I mean, I think she came up here to report that her . . . second husband . . . disclosed So I just don’t think anything in her demeanor, and she

this exercise is not to allow folks to cross - examin[e] jurors. Okay? think that’s a personal position wit h a lot of people. So the point of I just -- even though she said that she might want to believe kids, I think if she follows my instructions, she’ll be able to be impartial. don’t think there’s really revealing anything of a personal bias. I (indiscernible) by suggesting the nature of the questio ns. So I process, as well, but I mean, I think good cross - examination begins I understand that’s an [empanel l ed] individual voir dire

sexual abuse. The trial court denied the request, explaining: twenty - year - old complainant who would be testifying about alleged childhood p. 8 8

to the trial court’s assessment of the entirety of Juror B’s voir dire, including (quotation omitted)). Under these circumstances, we give substantial deference those statements “that appear[] to have been least influenced by leading” Addison, 165 N.H. at 44 p. 8 8 (observing tha t trial judge may choose to believe questions, and, therefore, the court was entitled to give it less weight. See that the testimony showing bias was elicited in response to counsel’s leading contradictory. In resol ving this conflict, the trial court could consider the fact Viewed as a whole, Juror B ’s voir dire testimony was seemingly

as demonstrating that Juror B did not view it as impacting her impartiality. independently raise the issue of her work as a school nurse as a source of bias could have reasonably inferred from the fact that Juror B did not husband had been the victim of a sexual assault. Consequently, t he trial court result of her work as a school nurse. Rather, she told the court that her might have to disclose potential bias in favor of children or young adults as a be fair and impartial.” Juror B did not answer “yes” to this question — as she or the lawyers” or “any prejudices whatsoev er that might affect your ability to prejudice either for or against the D efendant, any of the prospective witnesses, selection, the court asked the prospective jurors whether they had “any seemingly at odds with her earlier responses. At the beginning of jury B exposed a bias in favor of children and young adult witnesses. That bias was deciding, as the defendant argues, that defense counsel’s questioning of Juror Nevertheless, for the purposes of our analysis, we wil l assume, without

other than young adults and children. with adults or whether she would apply the same presumption to witnesses Juror B ’s testimony does not establish whether she had the same experience Juror B’ s experience, children typically do not lie about “big things.” However, tell the truth about somethin g that happened to her as a child, and, that in stated that she would presume that a young adult, testifying under oath, would adults, as the defendant suggests. In response to counsel’s questions, Juror B she had a tendency to credit children and young adult witness e s more than We are not convinced that Juror B ’s voir dire responses demonstrate that

appeared to have been least influenced by leading.” Id. (quotation omitted). choose to believe those statements that w ere the most fully articulated or that Addison, 165 N.H. at 44 p. 8 8 (quotation omitted). “The trial judge properly may that judge who is best situated to determine competency to serve impartially.” intimately understand s these realities, and, therefore, “under our system it is lawyers prior” to voir dire. Patton, 467 U.S. at 103 p. 9 9. Every trial court judge omitted). And, “unlike witnesses, prospective jurors have had no briefing by and experience vary widely.” Ad dison, 165 N.H. at 448 (quotation and brackets jurors represent a cross section of the community, and [that] their education attorneys frequently employ during voir dire examination, that “prospective subjected to the type of leading questions and cross - examination tactics” that We have observed that prospective jurors “may never have been 9

juror’s true feelings.” United States v. Fell, 372 F. Supp. 2d 766, 772 (D. Vt. 2005). ability to be impartial and that “answers to open - ended questions are more likely to reveal a We observe that the use of leading questions often obscures, rather than exposes, a juror’s 1

would otherwise.” The trial court denied the motion, stating, “I think his the jury is going to probably put more weight on law enforcement than they that, because “the only eyewitness that’s going to testify is the victim her self, witness or an eyewitness . . . [will be] magnified.” Defense c ounsel also argued the State is going to put on, his impact, even though he’s not an opinion that “because [the officer is] the only witness really fr om law enforcement that him.” Defense counsel thereafter moved to strike Juror C for cause, asserting “procedural witness” for the State and that “[t]he case is not going to turn on police witness at trial. The State represented that the officer would be a conducted the initial interview with the complainant and would be the only officer would play at trial. Defense counsel stated that the officer had Outs ide the presence of Juror C, the court asked counsel what role the

else.” and consider “well, okay, maybe there’s that, [and] maybe there’s something ability to serve as a juror and that he could “hear what [the officer] [has] to say” not “really see a conflict” between his acquaintance w ith the officer and his his credibility just as [he] would any other citizen.” Juror C stated that he did when judging his credibility, and unequivocally affirmed that he would “judge he “absolutely” would be able to put aside his relationship with the witness the impact of his acquaintance with the officer on his impartiality, Juror C said with the officer’s wife and father - in - law. When questioned by the court about functions and that hi s relationship with the officer is “more formal” than that clarified that he does not “han g out” with the officer outside of professional and that the officer’s wife “taught [his] kids at school.” However, Juror C projec ts. He also noted that he is “close friends” with the officer’s father - in - law couple of different things,” but that the officer was not his superior on those stated that, in th eir official capacities, he and the officer “worked together on a that the officer is a member of the Board of Selectmen in the same town. He he serves as a member of the Planning Board and of the School Bo ard, and court had identified as one of the witnesses in the case. Juror C explained that the court that he was personally acquainted with a police officer whom the In response to the court’s questions to the jury pool, Juror C informed

C. Juror C

defendant’s motion to strike Juror B for cause. 1 the trial court sustainably exercise d its discretion when it denied the correctness owed to the trial court’s findings”). Accordingly, w e conclude that challenged jurors’ testimony was “insufficient to overcome the presumption of see also Patton, 467 U.S. at p. 10 103 p. 9 9 - 40 (concluding that ambiguity in the three factors that are impossible to fully capture on the record. See id. at 447 - 48; 10

case worker — who was present during the officer’s interview of the issue. A New Hampshire Division for Children, Youth, and Families (“DCYF”) the alleged assaults, the officer was not the only witness to testify on that regarding the complainant’s demeanor and emotional state while discussing would be during the jury selection process. Although the officer testified testimony at trial was more consequential than the State had r epresented it “credibility would not be at issue.” First, we are not convinced that the officer’s officer would serve merely as a “procedural witness” and that the officer’s court’s decision was predicated upon t wo incorrect assumptions: that the In arguing for a contrary result, the defendant asserts that the trial

those capacities, with several of the State’s police officer witnesses). decades of experience as a police officer and teacher and his acquaintance, in “repeatedly and thoughtfully” stated that he could remain impartial, despite his (affirming trial court’s denial of motion to strike prospective juror who Juror C for cause. See State v. Sharrow, 949 A.2d 428, 433 - 34 (Vt. 2008) Juror C as “very honest,” support the trial court’s denial of the motion to stri ke credibility. These facts, in conjunction with the trial court’s assessment of would be able to set aside those relationships in evaluating the officer’s officer ’ s family members, Juror C unequivocally affirmed that he “absolutely” law enforcement agency. Although Juror C had close relationships with the have a “close friend or relative” who was a member of a local, state, or federal Juror C ’s answe rs on the jury que stionnaire, where he stated that he did not considered his relationship with the officer “formal.” This is consistent with their professional interactions, he had never been to the officer’s house, and he to the officer: Juror C did not socialize or “hang out” with the officer outside of The record demonstrates that Juror C did not have a close relationship

assault” (quotation omitted)). alleged assault “is independent evidence that . . . she was the victim of sexual (observing that evidence of the complainant’s demeanor when discussing an the alleged assaults. See State v. Sulloway, 166 N.H. 155, 164 (2014) described the complainant’s demeanor and emotional state when discussing significant: the officer testified about his interview of the complainant and contrary to the court’s pretrial assumptions, the officer’s testimony at trial was and that his “credibility would not be at issue.” The defendant asserts that, mistakenly assumed that t he officer would serve as only a “procedural witness” wife, and the officer’s father - in - law because, during jury selection, the court Juror C could set aside his personal relationships with the officer, the officer’s On a ppeal, the defendant argues that the record does not establish that

emotional state during the interview. testified that he interviewed the complainant, describing her demeanor and him, he doesn’t . . . go to his house, or anything like that.” At trial, the officer relationship; it’s a small town, there’s going to be overlap. He doesn’t know answers were very honest, his demeanor -- I mean, he had a professional p. 11 11

strike when, although juror initially said she would “do her best” to set aside Compare Tabaldi, 165 N.H. at 313 (affirming trial court’s denial of motion to determine whe ther counsel’s opening statement had impacted her impartiality). juror as biased during trial in part because the court failed to question juror to Bedell, 169 N.H. 62, 66 - 67 (2016) (holding that trial court erred in dismissing ambiguous phrases such as “I would try” or “I would do my best.” Cf. State v. the questions of counsel or the court — especially when the juror uses require that the trial court probe further after the juror’s initial responses to whether the juror can be indifferent. See id. at 312. Fulfilling t his duty may whether a juror can be impartial, the trial court has a duty to determine certain “magic words.” However, when there are legitimate concerns as to That is not to say that, in order to be found qualified, a juror must utter

been info rmative and helpful had the trial court done so. and impartially judge the case based on the evidence presented. It would have in an attempt to discover whether Juror B could actually set that bias aside and young adults, the trial court did not follow - up with question s for Juror B questions to elicit testimony about Juror B’s possible bias in favor of children clarify the meaning of her statement. Likewise, after counsel used leading right and answer honestly to [her] heart,” the court could have asked her to following Juror A’s statement that she would “do [her] best here to do what’s a better record by press ing the jurors to clarify their statements. For example, W e observe that, on several occasions, the trial court could have created

see id., we reach the same conclusion under the Federal Constitution. provides at least as much protection as the Federal Constitution on this issue, for cause. See Tabaldi, 165 N.H. at 313. Because the State Constitution discretion when it denied the defendant’s motions to strike Jurors A, B, and C In sum, we conclude that the t rial court sustainably exercise d its

D. Summary of Analysis of Motions to Strike Jurors for Cause

Juror C for cause was a sustainable exercise of discretion. Accordingly, w e conclude that the trial court’s denial of the motion to strike credibility of witnesses.” State v. McDonald, 163 N.H. p. 11 115, 121 (2011). Moreover, it is always “the province and obligation of the jury to determine the be at issue. There is no evidence in the record to support that assertion. as demonstrating that the trial court assumed the officer’s credibility would not Second, we disagree with the defendant’s characterization of the record

officer and “judge [the officer’s] credibility just as [he] would any other citizen.” unequivocal statements that he could set aside his acquainta nce with the State’s pre - trial representations, that would not nullify the import of Juror C ’s the nature and extent of the officer’s trial testimony materially differed from the interview. Moreover, even if we were to accept t he defendant’s assertion that complainant — also testified to the complainant’s emotional state during th e p. 12 12

confidential records. See id. at 627. We must determin e whether the trial discretion when, applying the Girard standard, it did not disclose additional The issue before us is whether the trial court unsustainably exercised its

records. Girard standard on remand when it failed to disclose additional confidential defendant now argues that the trial court may have erred in applying the defendant had it originally applied the standard later set forth in Girard. T he and determined that it would not have disclosed any additional records to the The trial court completed its review of the records on November 4, 2020,

court the records that it would have disclosed. was harmless beyond a reasonable doubt, it should identify in its report to this instructed the court that, i f it determined that i ts fai lure to disclose records such records was harmless beyond a reasonable doubt. See id. at 630. We Girard, it must order a new trial unless it determined that its failure to disclose any of the withheld records before trial had it applied the standard set forth in court. We advised that, if the court determined that it would have disclosed We instructed the trial court to report the results of its review to this

again, in accordan ce with the standard set forth in Girard. trial court for the limited purpose of review ing the confidential DCYF records defendant, Girard, 173 N.H. at 627 - 29. W e therefore remanded this case to the apply when determining whether confidential records must be disclosed to a Girard, 173 N.H. 619 (2020), which clarified the standard the trial court must withholding some of them. While this appeal was pending, we decided State v. to determine whether the trial court unsustainably exercised its discretion by defendant. He requested that we conduct an in camera review of those records records, the court ordered that only some of those records be disclosed to the have erred when, after conducting an in camera review of confidentia l DCYF the defendant’s brief, filed on May 4, 2020, he argued that the trial court may We now turn to the second issue raised by the defendant on appeal. In

II. In Camera Review of Confidential Records

ensure impartiality. statements made by prospective jurors, to fully explore potential biases, and to courts to prob e, as necessary, to discern the meaning of vague or equivocal challenges encountered during jury selection, and we therefore encourage trial the trial judge is in the best position to assess and respond to pract ical court’s multiple atte mpts to clarify her testimony). In sum, we recognize that continued to equivocate about her ability to be impartial in response to trial had been victim of same type of crime defendan t was charged with and who 163 N.H. at 794 - 95 (reversing trial court’s denial of motion to strike juror who juror would not hold the defendant’s prior conviction against him), with Town, her bias against convicted felon s, the trial court probed further to confirm that p. 13 13

HICKS, HANTZ MARCONI, and DONOVAN, JJ., concurred.

additional reco rds. See Guay, 162 N.H. at 385. applied the standard set forth in Girard before trial, it w ould not have disclosed trial court sustainably exercised its discretion when it determined that, had it confidential records that were examined by the trial court, we conclude that the defendant’s defense, see Girard, 173 N.H. at 628. After reviewing the same contain evidence that would have been “material and relevant” to the discretion when it determined that the undisclosed confidential records do not (2011). O ur task is to decide whether the trial court sustainably exercised its to the prejudice of the defendant’s case. See State v. Guay, 162 N.H. 375, 385 court’s rulings on this discovery issue were clearly untenable or unreasonable