State of New Hampshire v. Richard Soulia ( 2021 )

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as
well as formal revision before publication in the New Hampshire Reports.
Readers are requested to notify the Reporter, Supreme Court of New
Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any
editorial errors in order that corrections may be made before the opinion goes
to press. Errors may be reported by e-mail at the following address:
reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00
a.m. on the morning of their release. The direct address of the court’s home
page is: http://www.courts.state.nh.us/supreme.
THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Cheshire
No. 2019-0653
THE STATE OF NEW HAMPSHIRE
v.
RICHARD SOULIA
Argued: January 27, 2021
Opinion Issued: May 5, 2021
Gordon J. MacDonald, attorney general (Elizabeth C. Woodcock,
assistant attorney general, on the brief and orally), for the State.
Thomas Barnard, senior assistant appellate defender, of Concord, on the
brief and orally, for the defendant.
BASSETT, J. The defendant, Richard Soulia, appeals his convictions,
following a jury trial, on three counts of aggravated felonious sexual assault.
See RSA 632-A:2, I(a), II (2016). On appeal, the defendant argues that the
Superior Court (Ruoff, J.) erred when it denied his motions to strike for cause
three prospective jurors, in violation of his right to an impartial jury under the
State and Federal Constitutions. He also argues that the trial court may have
erred when it failed to disclose certain confidential records following in camera
review of those records under the standard we recently clarified in State v.
Girard, 173 N.H. 619, 627-29 (2020). Because we conclude that the trial court
sustainably exercised its discretion when it denied the defendant’s motions to
strike the jurors for cause and when it withheld certain confidential records, we
affirm.
I. Motions to Strike Jurors for Cause
The defendant first argues that the trial court violated his right to a fair
and impartial jury under the State and Federal Constitutions when it denied
his motions to strike three prospective jurors for cause. See N.H. CONST. pt. I,
arts. 15, 21, 35; U.S. CONST. amends. VI, XIV. We first address his claim
under the State Constitution and rely on federal law only to aid our analysis.
State v. Ball, 124 N.H. 226, 231-33 (1983). In addition, before discussing the
specific facts relevant to each challenged juror, we set out the legal standards
governing juror impartiality.
Part I, Article 35 of the New Hampshire Constitution provides, in relevant
part, “It is the right of every citizen to be tried by judges as impartial as the lot
of humanity will admit.” N.H. CONST. pt. I, art. 35. “This provision for judicial
impartiality is applicable as well to jurors.” State v. Tabaldi, 165 N.H. 306, 312
(2013) (quotation omitted). This constitutional provision therefore enshrines as
“a fundamental precept of our system of justice that a defendant has the right
to be tried by a fair and impartial jury.” Id. (quotation omitted).
Generally, a juror is presumed to be impartial. Id. “A juror is considered
impartial if the juror can lay aside her [or his] impression or opinion and
render a verdict based on the evidence presented in court.” Id. (quotation
omitted). “When a juror’s impartiality is questioned, however, the trial court
has a duty to determine whether the juror is indifferent.” Id. (quotation
omitted); see also RSA 500-A:12, I (2010). “If it appears that any juror is not
indifferent, [she or] he shall be set aside on that trial.” RSA 500-A:12, II (2010).
The trial court’s determination of a juror’s impartiality “‘is essentially one
of credibility, and therefore largely one of demeanor.’” State v. Addison (Capital
Murder), 165 N.H. 381, 447 (2013) (quoting Patton v. Yount, 467 U.S. 1025,
1038 (1984)). The determination “‘is ordinarily influenced by a host of factors
impossible to capture fully in the record — among them, the prospective juror’s
inflection, sincerity, demeanor, candor, body language, and apprehension of
duty.’” Id. (quoting Skilling v. United States, 561 U.S. 358, 386 (2010)). For
these reasons, the trial court’s impartiality determination “is entitled to special
deference.” Tabaldi, 165 N.H. at 312-13.
“Once the trial court on voir dire has made a determination as to whether
a prospective juror is free from prejudice, it is then our duty on appeal to
evaluate the voir dire testimony of the empanelled jury to determine whether an
impartial jury was selected.” State v. Town, 163 N.H. 790, 794 (2012) (citation
omitted). “We will not disturb the trial court’s ruling absent an unsustainable
2
exercise of discretion or a finding that the trial judge’s decision was against the
weight of the evidence.” Id. “To show an unsustainable exercise of discretion,
the defendant must demonstrate that the court’s ruling was clearly untenable
or unreasonable to the prejudice of his case.” Id. at 795.
The defendant asserts, and the State agrees, that to prove prejudice in
this context, he must show “that a biased juror actually sat on the jury.”
Addison, 165 N.H. at 450 (quotation omitted). Accordingly, we apply that
standard here. Under this standard of review, the defendant argues that the
trial court erred when it denied his motions to strike for cause three
prospective jurors who later sat on the jury. We briefly recount the facts
relevant to jury selection before addressing the defendant’s arguments as to
each challenged juror.
In November 2018, a grand jury indicted the defendant on four counts of
aggravated felonious sexual assault, see RSA 632-A:2 (Supp. 2020), and one
count of prostitution, see RSA 645:2, II(a) (2016). These charges arose from
allegations made by a member of the defendant’s extended family that the
defendant sexually assaulted her on several occasions when she was a minor.
During jury selection, the court asked the entire pool of potential jurors
the following questions, among others: (1) whether they knew any of the
prospective witnesses; (2) whether they were in any way related to persons
engaged in any occupation related to law enforcement; (3) whether they or any
member of their family or anyone close to them had ever been a victim of
sexual abuse, sexual assault, or attempted sexual assault; and (4) whether
there was anything in their history or day-to-day experiences that prevented
them from being fair and impartial towards an individual accused of sexually
assaulting a child. The court instructed the jury pool that if their name was
drawn as a prospective juror and they answered “yes” to any of these
questions, they should alert the court and discuss the question at the bench.
Jurors A, B, and C were among the jurors who responded affirmatively and,
consequently, the court conducted individual voir dire of each juror. The court
found each of these three jurors qualified over the defendant’s objection. The
defendant exhausted his three peremptory challenges, see RSA 606:3, III
(2001), but did not exercise them on Jurors A, B, and C. These three jurors
were not selected as alternates and participated in the jury deliberations that
resulted in the defendant’s convictions. We now examine the voir dire
testimony of Jurors A, B, and C, and address the defendant’s arguments on
appeal as to each juror.
A. Juror A
Juror A informed the court that, approximately ten years ago, her son
had been a police officer and that her former significant other had been a part-
time police officer. She stated that these relationships would not impact her
3
ability to be fair and impartial. Juror A also advised the court that she
previously worked as a para-educator and “was trained to be a child advocate
for nonverbal and nontraditional children.” She explained that, in that
capacity, she once had to report a suspected sexual assault of one of her
students to her supervisor. She said that her only involvement after that
report was to do a “write up” of the allegation for the school district. She also
explained that no one was ever prosecuted for the assault because the alleged
perpetrator was a family member of the child and the child’s parent “did not
want [the alleged perpetrator] to go to jail.” When asked by the court whether
that experience “would affect [her] ability to be fair and impartial in this case,”
Juror A said, “I would say no, with a little bit of apprehension, because I just
felt like the child wasn’t advocated . . . for properly.” Juror A further stated
that she “would do [her] best here to do what’s right and answer honestly to
[her] heart.” In response to questioning by counsel, Juror A admitted that,
when hearing the instant case, her “mind [could] go back to that kid” and that
the experience “had an effect on [her].”
Defense counsel moved to strike Juror A for cause because “[s]he didn’t
express a certainty that she could be fair” and, due to the similarities between
the instant case and her prior experience, Juror A might “want to see justice
done that wasn’t done before.” The court denied the motion and explained, “I
think her answers were candid and honest. I don’t think that her employment
would categorically deny -- would require her not to serve as a juror.”
On appeal, the defendant argues that the record does not establish that
Juror A would be able to set aside her personal experience involving an
allegation of sexual abuse and render an unbiased verdict. He asserts that the
facts here are analogous to those presented in State v. Town. In Town, the
defendant was charged with aggravated felonious sexual assault. Town, 163
N.H. at 791. The challenged juror in that case disclosed to the court that she
had been a victim of sexual assault at the age of fourteen. Id. When the court
asked the juror if that experience prevented her from being fair and impartial,
she replied, “I think I need to do this.” Id. (quotation omitted). When asked
again by the court and for a third time by defense counsel if her personal
experience would prevent her from being impartial, she answered, “I’m not
sure.” Id. at 791-92. On two occasions, the court asked the juror whether she
could set aside her personal situation and judge the case solely on the
evidence, and each time the juror responded that she would “try.” Id. After
considering the entirety of the juror’s voir dire, we held that the juror’s
“indication that she would ‘try’ to be fair and impartial, without more, was
insufficient” to establish her impartiality. Id. at 794.
The defendant argues that Juror A’s statement that she would “do [her]
best” is indistinguishable from the statement made by the juror in Town that
she “would try,” Town, 163 N.H. at 792, and, therefore, the court should
reverse the trial court as it did in Town. We disagree. We analyze the voir dire
4
statements of jurors in the context of their entire voir dire, see id. at 794, not in
isolation. Here, unlike in Town, the juror had not been a victim of sexual
assault. Rather, Juror A’s experience with sexual assault was more remote: in
the course of her employment, she once reported the suspected sexual assault
of a student to her supervisor. Nor, in contrast to the juror in Town, did Juror
A express a desire to serve on the jury as a means of rectifying injustice that
she perceived as a result of her past experience. Although defense counsel
argued that Juror A should be stricken for cause because she “may want to see
justice done that wasn’t done before,” in fact, Juror A made no statement
substantially equivalent to the statement of the juror in Town that “I need to do
this,” id. at 791.
In addition, Juror A’s statements about her ability to be fair and
impartial were not as equivocal as the statements at issue in Town. In Town,
the juror repeatedly said she was “not sure” whether she could be impartial
and that she “would try” to set aside her personal situation. Id. at 791-92.
Here, when asked if her experience with the student at school would affect her
ability to be fair and impartial, Juror A said “no” — with the caveat that the
child had not been advocated for properly. She followed that statement up by
saying she would “do [her] best here to do what’s right and answer honestly to
[her] heart.”
Although Juror A’s statement that she would “do [her] best here to do
what’s right and answer honestly to [her] heart” was ambiguous, we have
observed that it is “not uncommon for jurors to express themselves in
ambiguous and seemingly contradictory ways.” Addison, 165 N.H. at 448; see
also Patton, 467 U.S. at 1039 (“Jurors . . . cannot be expected invariably to
express themselves carefully or even consistently.”). Indeed, “[d]emeanor,
inflection, [and] the flow of the questions and answers can make confused and
conflicting utterances comprehensible.” Addison, 165 N.H. at 447 (quotation
omitted). Nor must a trial court extract particular talismanic or magic words
during voir dire in order to find a juror qualified. See Tabaldi, 165 N.H. at 312
(“[I]mpartiality is not a technical conception.” (quotation omitted)); see also
United States v. Wood, 299 U.S. 123, 145-46 (1936) (“For the ascertainment of
this mental attitude of appropriate indifference, the Constitution lays down no
particular tests and procedure is not chained to any ancient and artificial
formula.”); State v. Clayton, 995 S.W.2d 468, 476 (Mo. 1999) (en banc) (“A trial
court’s determination whether to excuse a juror for cause is not dependent
upon a technical evaluation of the venireperson’s use of ‘magic’ words.”).
Given the ambiguous nature of Juror A’s statements, the trial court was
in the best position to evaluate the certainty of Juror A’s initial affirmation that
her personal experience would not prevent her from being impartial, and the
degree to which her later statements undermined that assertion. See Addison,
165 N.H. at 447; see also Patton, 467 U.S. at 1040 (“[W]hile the cold record
arouses some concern, only the trial judge could tell which of these answers
5
was said with the greatest comprehension and certainty.”). Taking into
account our deferential standard of review, and the series of statements made
by Juror A, we conclude that the trial court sustainably exercised its discretion
when it denied the defendant’s motion to strike Juror A for cause.
B. Juror B
In response to the court’s questions to the entire jury pool, Juror B told
the court that her husband had been sexually abused fifty-five years ago when
he was a child. She stated that she did not think that this fact would impact
her ability to be fair and impartial. She explained that her husband does not
talk about his experience but that she does “see some effects” of it. When
asked whether she would think about her husband’s experience at the trial,
she answered, “No.”
In the course of the court’s questioning about her husband’s history,
Juror B also informed the court that she was a nurse. Upon further
questioning, Juror B explained that, before retiring, she had worked as a
school nurse in a high school for approximately twenty years. As a high school
nurse, she was aware of students who had been sexually abused. However,
she did not participate directly in students’ care related to abuse because that
was the school counselor’s responsibility. Defense counsel then engaged in the
following exchange with Juror B:
[Defense counsel]: Okay. Do you feel like if . . . a young person
was testifying about something . . . that had happened to them as
a child . . . you’d be inclined to believe them?
[Juror B]: I think so.
[Defense counsel]: Um-hum. And so you’d sort of presume they’re
telling the truth?
[Juror B]: I would think so, yeah.
[Defense counsel]: Yeah. Because . . . you’re not really feeling that
kids lie, in your experience?
[Juror B]: No. [They] [s]ometimes fib a little.
[Defense counsel]: Yeah. But about big things, maybe not?
[Juror B]: Probably not.
Defense counsel moved to strike Juror B for cause because “she’s worked
with children for so many years” and would therefore have a bias in favor of the
6
twenty-year-old complainant who would be testifying about alleged childhood
sexual abuse. The trial court denied the request, explaining:
I understand that’s an [empanelled] individual voir dire
process, as well, but I mean, I think good cross-examination begins
(indiscernible) by suggesting the nature of the questions. So I
don’t think there’s really revealing anything of a personal bias. I
think if she follows my instructions, she’ll be able to be impartial.
I just -- even though she said that she might want to believe kids, I
think that’s a personal position with a lot of people. So the point of
this exercise is not to allow folks to cross-examin[e] jurors. Okay?
So I just don’t think anything in her demeanor, and she
came up here to report that her . . . second husband . . . disclosed
an assault that she had . . . no knowledge. So I mean, I think she
might be a perfect candidate for a peremptory [challenge], but I
don’t think there’s enough to strike her for cause. If that were
true, no one that works in a high school would be able to serve as
a juror. No one that works [as] a nurse would be able to serve.
....
And so I mean, I could cross-examine half the people in this
room and get up to look like they had bias, but really they don’t.
So request is denied.
The defendant first argues that the record does not support the trial
court’s finding that Juror B could set aside the fact that her husband had been
sexually abused and render an unbiased verdict. We disagree. The record
demonstrates that Juror B “[didn’t] think” her husband’s history of abuse
would impact her ability to be fair and impartial. She also definitively
answered “No” when asked whether she would think of her husband’s
experience during the trial. The record therefore provides ample support for
the trial court’s decision not to strike Juror B for cause due to her husband’s
history of sexual abuse. Cf. Town, 163 N.H. at 794 (reversing trial court’s
qualification of juror who had been victim of sexual assault and who repeatedly
stated she was “not sure” whether she could be fair and impartial).
The defendant also argues that the record fails to establish that Juror B
could overcome her bias in favor of children and young adult witnesses. The
defendant contends that Juror B’s responses — particularly her responses to
questions posed by counsel — reveal that she has a “tendency to credit
children and young witnesses more than . . . adults.” We are not persuaded.
7
We have observed that prospective jurors “may never have been
subjected to the type of leading questions and cross-examination tactics” that
attorneys frequently employ during voir dire examination, that “prospective
jurors represent a cross section of the community, and [that] their education
and experience vary widely.” Addison, 165 N.H. at 448 (quotation and brackets
omitted). And, “unlike witnesses, prospective jurors have had no briefing by
lawyers prior” to voir dire. Patton, 467 U.S. at 1039. Every trial court judge
intimately understands these realities, and, therefore, “under our system it is
that judge who is best situated to determine competency to serve impartially.”
Addison, 165 N.H. at 448 (quotation omitted). “The trial judge properly may
choose to believe those statements that were the most fully articulated or that
appeared to have been least influenced by leading.” Id. (quotation omitted).
We are not convinced that Juror B’s voir dire responses demonstrate that
she had a tendency to credit children and young adult witnesses more than
adults, as the defendant suggests. In response to counsel’s questions, Juror B
stated that she would presume that a young adult, testifying under oath, would
tell the truth about something that happened to her as a child, and, that in
Juror B’s experience, children typically do not lie about “big things.” However,
Juror B’s testimony does not establish whether she had the same experience
with adults or whether she would apply the same presumption to witnesses
other than young adults and children.
Nevertheless, for the purposes of our analysis, we will assume, without
deciding, as the defendant argues, that defense counsel’s questioning of Juror
B exposed a bias in favor of children and young adult witnesses. That bias was
seemingly at odds with her earlier responses. At the beginning of jury
selection, the court asked the prospective jurors whether they had “any
prejudice either for or against the Defendant, any of the prospective witnesses,
or the lawyers” or “any prejudices whatsoever that might affect your ability to
be fair and impartial.” Juror B did not answer “yes” to this question — as she
might have to disclose potential bias in favor of children or young adults as a
result of her work as a school nurse. Rather, she told the court that her
husband had been the victim of a sexual assault. Consequently, the trial court
could have reasonably inferred from the fact that Juror B did not
independently raise the issue of her work as a school nurse as a source of bias
as demonstrating that Juror B did not view it as impacting her impartiality.
Viewed as a whole, Juror B’s voir dire testimony was seemingly
contradictory. In resolving this conflict, the trial court could consider the fact
that the testimony showing bias was elicited in response to counsel’s leading
questions, and, therefore, the court was entitled to give it less weight. See
Addison, 165 N.H. at 448 (observing that trial judge may choose to believe
those statements “that appear[] to have been least influenced by leading”
(quotation omitted)). Under these circumstances, we give substantial deference
to the trial court’s assessment of the entirety of Juror B’s voir dire, including
8
factors that are impossible to fully capture on the record. See id. at 447-48;
see also Patton, 467 U.S. at 1039-40 (concluding that ambiguity in the three
challenged jurors’ testimony was “insufficient to overcome the presumption of
correctness owed to the trial court’s findings”). Accordingly, we conclude that
the trial court sustainably exercised its discretion when it denied the
defendant’s motion to strike Juror B for cause.1
C. Juror C
In response to the court’s questions to the jury pool, Juror C informed
the court that he was personally acquainted with a police officer whom the
court had identified as one of the witnesses in the case. Juror C explained that
he serves as a member of the Planning Board and of the School Board, and
that the officer is a member of the Board of Selectmen in the same town. He
stated that, in their official capacities, he and the officer “worked together on a
couple of different things,” but that the officer was not his superior on those
projects. He also noted that he is “close friends” with the officer’s father-in-law
and that the officer’s wife “taught [his] kids at school.” However, Juror C
clarified that he does not “hang out” with the officer outside of professional
functions and that his relationship with the officer is “more formal” than that
with the officer’s wife and father-in-law. When questioned by the court about
the impact of his acquaintance with the officer on his impartiality, Juror C said
he “absolutely” would be able to put aside his relationship with the witness
when judging his credibility, and unequivocally affirmed that he would “judge
his credibility just as [he] would any other citizen.” Juror C stated that he did
not “really see a conflict” between his acquaintance with the officer and his
ability to serve as a juror and that he could “hear what [the officer] [has] to say”
and consider “well, okay, maybe there’s that, [and] maybe there’s something
else.”
Outside the presence of Juror C, the court asked counsel what role the
officer would play at trial. Defense counsel stated that the officer had
conducted the initial interview with the complainant and would be the only
police witness at trial. The State represented that the officer would be a
“procedural witness” for the State and that “[t]he case is not going to turn on
him.” Defense counsel thereafter moved to strike Juror C for cause, asserting
that “because [the officer is] the only witness really from law enforcement that
the State is going to put on, his impact, even though he’s not an opinion
witness or an eyewitness . . . [will be] magnified.” Defense counsel also argued
that, because “the only eyewitness that’s going to testify is the victim herself,
the jury is going to probably put more weight on law enforcement than they
would otherwise.” The trial court denied the motion, stating, “I think his
1 We observe that the use of leading questions often obscures, rather than exposes, a juror’s
ability to be impartial and that “answers to open-ended questions are more likely to reveal a
juror’s true feelings.” United States v. Fell, 372 F. Supp. 2d 766, 772 (D. Vt. 2005).
9
answers were very honest, his demeanor -- I mean, he had a professional
relationship; it’s a small town, there’s going to be overlap. He doesn’t know
him, he doesn’t . . . go to his house, or anything like that.” At trial, the officer
testified that he interviewed the complainant, describing her demeanor and
emotional state during the interview.
On appeal, the defendant argues that the record does not establish that
Juror C could set aside his personal relationships with the officer, the officer’s
wife, and the officer’s father-in-law because, during jury selection, the court
mistakenly assumed that the officer would serve as only a “procedural witness”
and that his “credibility would not be at issue.” The defendant asserts that,
contrary to the court’s pretrial assumptions, the officer’s testimony at trial was
significant: the officer testified about his interview of the complainant and
described the complainant’s demeanor and emotional state when discussing
the alleged assaults. See State v. Sulloway, 166 N.H. 155, 164 (2014)
(observing that evidence of the complainant’s demeanor when discussing an
alleged assault “is independent evidence that . . . she was the victim of sexual
assault” (quotation omitted)).
The record demonstrates that Juror C did not have a close relationship
to the officer: Juror C did not socialize or “hang out” with the officer outside of
their professional interactions, he had never been to the officer’s house, and he
considered his relationship with the officer “formal.” This is consistent with
Juror C’s answers on the jury questionnaire, where he stated that he did not
have a “close friend or relative” who was a member of a local, state, or federal
law enforcement agency. Although Juror C had close relationships with the
officer’s family members, Juror C unequivocally affirmed that he “absolutely”
would be able to set aside those relationships in evaluating the officer’s
credibility. These facts, in conjunction with the trial court’s assessment of
Juror C as “very honest,” support the trial court’s denial of the motion to strike
Juror C for cause. See State v. Sharrow, 949 A.2d 428, 433-34 (Vt. 2008)
(affirming trial court’s denial of motion to strike prospective juror who
“repeatedly and thoughtfully” stated that he could remain impartial, despite his
decades of experience as a police officer and teacher and his acquaintance, in
those capacities, with several of the State’s police officer witnesses).
In arguing for a contrary result, the defendant asserts that the trial
court’s decision was predicated upon two incorrect assumptions: that the
officer would serve merely as a “procedural witness” and that the officer’s
“credibility would not be at issue.” First, we are not convinced that the officer’s
testimony at trial was more consequential than the State had represented it
would be during the jury selection process. Although the officer testified
regarding the complainant’s demeanor and emotional state while discussing
the alleged assaults, the officer was not the only witness to testify on that
issue. A New Hampshire Division for Children, Youth, and Families (“DCYF”)
case worker — who was present during the officer’s interview of the
10
complainant — also testified to the complainant’s emotional state during the
interview. Moreover, even if we were to accept the defendant’s assertion that
the nature and extent of the officer’s trial testimony materially differed from the
State’s pre-trial representations, that would not nullify the import of Juror C’s
unequivocal statements that he could set aside his acquaintance with the
officer and “judge [the officer’s] credibility just as [he] would any other citizen.”
Second, we disagree with the defendant’s characterization of the record
as demonstrating that the trial court assumed the officer’s credibility would not
be at issue. There is no evidence in the record to support that assertion.
Moreover, it is always “the province and obligation of the jury to determine the
credibility of witnesses.” State v. McDonald, 163 N.H. 115, 121 (2011).
Accordingly, we conclude that the trial court’s denial of the motion to strike
Juror C for cause was a sustainable exercise of discretion.
D. Summary of Analysis of Motions to Strike Jurors for Cause
In sum, we conclude that the trial court sustainably exercised its
discretion when it denied the defendant’s motions to strike Jurors A, B, and C
for cause. See Tabaldi, 165 N.H. at 313. Because the State Constitution
provides at least as much protection as the Federal Constitution on this issue,
see id., we reach the same conclusion under the Federal Constitution.
We observe that, on several occasions, the trial court could have created
a better record by pressing the jurors to clarify their statements. For example,
following Juror A’s statement that she would “do [her] best here to do what’s
right and answer honestly to [her] heart,” the court could have asked her to
clarify the meaning of her statement. Likewise, after counsel used leading
questions to elicit testimony about Juror B’s possible bias in favor of children
and young adults, the trial court did not follow-up with questions for Juror B
in an attempt to discover whether Juror B could actually set that bias aside
and impartially judge the case based on the evidence presented. It would have
been informative and helpful had the trial court done so.
That is not to say that, in order to be found qualified, a juror must utter
certain “magic words.” However, when there are legitimate concerns as to
whether a juror can be impartial, the trial court has a duty to determine
whether the juror can be indifferent. See id. at 312. Fulfilling this duty may
require that the trial court probe further after the juror’s initial responses to
the questions of counsel or the court — especially when the juror uses
ambiguous phrases such as “I would try” or “I would do my best.” Cf. State v.
Bedell, 169 N.H. 62, 66-67 (2016) (holding that trial court erred in dismissing
juror as biased during trial in part because the court failed to question juror to
determine whether counsel’s opening statement had impacted her impartiality).
Compare Tabaldi, 165 N.H. at 313 (affirming trial court’s denial of motion to
strike when, although juror initially said she would “do her best” to set aside
11
her bias against convicted felons, the trial court probed further to confirm that
juror would not hold the defendant’s prior conviction against him), with Town,
163 N.H. at 794-95 (reversing trial court’s denial of motion to strike juror who
had been victim of same type of crime defendant was charged with and who
continued to equivocate about her ability to be impartial in response to trial
court’s multiple attempts to clarify her testimony). In sum, we recognize that
the trial judge is in the best position to assess and respond to practical
challenges encountered during jury selection, and we therefore encourage trial
courts to probe, as necessary, to discern the meaning of vague or equivocal
statements made by prospective jurors, to fully explore potential biases, and to
ensure impartiality.
II. In Camera Review of Confidential Records
We now turn to the second issue raised by the defendant on appeal. In
the defendant’s brief, filed on May 4, 2020, he argued that the trial court may
have erred when, after conducting an in camera review of confidential DCYF
records, the court ordered that only some of those records be disclosed to the
defendant. He requested that we conduct an in camera review of those records
to determine whether the trial court unsustainably exercised its discretion by
withholding some of them. While this appeal was pending, we decided State v.
Girard, 173 N.H. 619 (2020), which clarified the standard the trial court must
apply when determining whether confidential records must be disclosed to a
defendant, Girard, 173 N.H. at 627-29. We therefore remanded this case to the
trial court for the limited purpose of reviewing the confidential DCYF records
again, in accordance with the standard set forth in Girard.
We instructed the trial court to report the results of its review to this
court. We advised that, if the court determined that it would have disclosed
any of the withheld records before trial had it applied the standard set forth in
Girard, it must order a new trial unless it determined that its failure to disclose
such records was harmless beyond a reasonable doubt. See id. at 630. We
instructed the court that, if it determined that its failure to disclose records
was harmless beyond a reasonable doubt, it should identify in its report to this
court the records that it would have disclosed.
The trial court completed its review of the records on November 4, 2020,
and determined that it would not have disclosed any additional records to the
defendant had it originally applied the standard later set forth in Girard. The
defendant now argues that the trial court may have erred in applying the
Girard standard on remand when it failed to disclose additional confidential
records.
The issue before us is whether the trial court unsustainably exercised its
discretion when, applying the Girard standard, it did not disclose additional
confidential records. See id. at 627. We must determine whether the trial
12
court’s rulings on this discovery issue were clearly untenable or unreasonable
to the prejudice of the defendant’s case. See State v. Guay, 162 N.H. 375, 385
(2011). Our task is to decide whether the trial court sustainably exercised its
discretion when it determined that the undisclosed confidential records do not
contain evidence that would have been “material and relevant” to the
defendant’s defense, see Girard, 173 N.H. at 628. After reviewing the same
confidential records that were examined by the trial court, we conclude that the
trial court sustainably exercised its discretion when it determined that, had it
applied the standard set forth in Girard before trial, it would not have disclosed
additional records. See Guay, 162 N.H. at 385.
Affirmed.
HICKS, HANTZ MARCONI, and DONOVAN, JJ., concurred.
13