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State v. Bader9/13/2002
reliability were present and their admission did not violate the defendant's rights under the Confrontation Clause of the Sixth Amendment.
IV. Alleged Intra-Jury Misconduct
On the morning of the third day of jury deliberations, two court bailiffs reported to the trial judge that two jurors had approached them and asked to see the judge. The judge held a chambers conference with counsel, where the bailiffs reported that the jurors were "extremely upset and almost to the point of tears." The jurors had complained that the jury foreperson was not submitting questions they desired answered to the court. During the chambers conference, a question was received from the jury asking, " f we have reached a unanimous verdict on one of the two charges, do we need to inform you of that fact, or do we wait until we have a decision on both charges?" The defendant asked the court to interview the two jurors to determine "what compelled them to seek the court's assistance and what questions they had that were not answered" and moved for a mistrial. The State objected to both the motion for mistrial and the individual voir dire, arguing that there had been no showing of prejudice to justify a mistrial and that, given the circumstances, voir dire would impermissibly invade the deliberative process of the jury. The court denied the motion for a mistrial and declined to speak directly with the two jurors. Instead, the judge sent a note to the jury instructing it to continue its deliberations until both verdicts had been determined, and that "if any of the jurors have any other questions, please make certain that they are sent to me for response."
The following afternoon, the jury returned unanimous guilty verdicts against the defendant on both charges. At the defendant's request, the jurors were polled individually; they confirmed the unanimous guilty verdicts. After the jury returned to the deliberation room, the defendant again moved for individual voir dire of the two jurors who had earlier complained that the jury foreperson was not bringing their questions to the court's attention. Defendant's counsel represented that one of the two jurors in question "was in tears" while leaving the courtroom. The trial court denied the motion.
In its March 2001 order denying the defendant's motion for a new trial, the trial court stated it was satisfied that any concerns regarding jurors' questions not being relayed to the court were "alleviated" by the court's supplemental answer to the jury's question during the trial. Because the jury submitted no further questions, there was no evidence of prejudice, and individual polling confirmed the jury's unanimous verdicts, the trial court found that the foreperson's conduct did not prejudice the deliberations. Consequently, the court found that the defendant's allegations of juror misconduct did not warrant voir dire during the trial.
On appeal, the defendant contends the trial court's failure to conduct voir dire of the two jurors violated his right to be tried by a fair and impartial jury under Part I, Article 15 of the State Constitution, and the Sixth and Fourteenth Amendments to the United States Constitution. We first address the defendant's claims under the State Constitution. See Ball, 124 N.H. at 231.
"It is axiomatic that a defendant has a right to be tried by a fair and impartial jury." Bathalon, 146 N.H. at 487. At oral argument, the defendant proffered that State v. Rideout, 143 N.H. 363 (1999), should apply in reviewing the trial court's actions. We disagree. Rideout dealt with the trial court's role in investigating "a colorable claim that a jury may be biased or tainted by extrinsic contact or communication." Id
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