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State v. Flagg

Supreme Court of New Hampshire

October 19, 2011

State of New Hampshire
Sean Flagg


The defendant, Sean Flagg, appeals his conviction for driving while being certified as a habitual offender. He argues that the trial court erred in denying his motion for a mistrial after a juror reported that she heard a comment made by him or someone associated with him while walking to her car at lunch. We affirm.

Due process does not require a new trial every time a juror has been placed in a potentially compromising situation. State v. Rideout, 143 N.H. 363, 365 (1999). When there is an allegation that a juror has been biased by extrinsic contact or communication, the trial court must conduct an adequate inquiry to determine whether the alleged incident occurred, and if so, whether it was prejudicial. State v. Brown, 154 N.H. 345, 348 (2006). The trial court has broad, though not unlimited, discretion to determine the extent and nature of its inquiry. Rideout, 143 N.H. at 365.

Generally, in a criminal case, the defendant must prove actual prejudice; however, such prejudice is presumed when there are communications between jurors and individuals associated with the case. Brown, 154 N.H. at 348. In those instances, the burden shifts to the State to prove that any prejudice was harmless beyond a reasonable doubt. Id.

Some factors relevant to determining whether a panel has been prejudiced are: (1) whether the matter pending before the court was discussed; (2) whether the party involved was connected with the case and whether the juror knew of the connection; (3) whether the party involved had a substantial role in the case; (4) whether other jurors became aware of the communication or contact; (5) whether the communication or contact extended over a prolonged period of time; (6) the point in deliberations at which the communication or contact occurred; and (7) the effect of any pertinent jury instructions. Rideout, 143 N.H. at 366. Absent an unsustainable exercise of discretion, we will affirm the trial court's fact-specific determinations. Brown, 154 N.H. at 349.

In this case, Juror 9 was walking to lunch in the court parking lot when she came upon the defendant and someone she believed to be his brother. She was near enough to them to hear the following comment which she thought was made by the defendant: "Who comes to court dressed like that." She reported that they then appeared to cut her off as she headed to her car. When she returned to deliberations after lunch, she remarked "that it's difficult for a defendant to come to Court and ask a jury to believe them when they have the courage to make that kind of comment toward a juror in the parking lot." The other jurors insisted that the contact be reported to the court. The trial court then conducted individual voir dire of the entire jury and gave trial counsel the opportunity to ask follow-up questions.

The trial court denied the defendant's motion for a mistrial based on the following findings: (1) the jurors immediately ceased their deliberations; and (2) in conducting a voir dire of each individual juror, the court received assurances from each that he or she could continue deliberations, deciding the case based only on the evidence presented and not using anything learned from Juror 9 in their deliberations. The trial court also replaced Juror 9 with the alternate juror and instructed the reconstituted jury that they were required to begin their deliberations anew: "You need to throw away your notes. You need to erase the chalkboards. You need to do your best to start all the way back at square one. And that is because it is the right of all defendants to have each juror arrive at his or her decision after engaging in all of the jury deliberations." See, e.g., State v. Costello, 159 N.H. 113, 123 (2009) (jury is presumed to follow trial court's instructions).

The defendant argues that simply replacing Juror 9 was insufficient to erase the prejudice caused by the communication because it appears that some jurors might have understood Juror 9's report of the incident to be "evidence of [the defendant's] character or credibility." Even if we assume, without deciding, that her report could be so construed, we conclude that the trial court conducted sufficient inquiry to establish that the remaining jurors were not improperly influenced by such evidence.

Nor do we agree with the defendant's characterization of Juror 4's testimony. Although Juror 4 indicated that she wished to discuss something with the trial court off the record, she indicated that it was a question about the deliberations. She also responded that she was sure that what she heard from Juror 9 – that the defendant had made a rude comment – would not cause her to judge the defendant's testimony more adversely than she might otherwise, or influence her view of how she would consider his testimony. See, e.g., State v. Lamy, 158 N.H. 511, 523 (2009) ("A juror is well-qualified to say whether he has an unbiased mind in a certain matter."(citations and quotations omitted)).

We are similarly unpersuaded by the defendant's characterization of the conclusions to be drawn from the voir dire of Juror 10. A fair and complete reading of the record indicates that Juror 10 was candid in replying that she did not know if she could put the exchange out of her mind completely, but that she was able to not use it in reaching her decision in the case.

We note that the defendant also argues that "the voir dire of the jurors was impeded by the trial court's insistence that they could not speak about the substance of their deliberations." During voir dire of Juror 1, the trial court stated, "I'm not going to allow him to talk about what his deliberations are", to which defense counsel responded, "Okay." Because the trial court was not alerted to the alleged error now advanced on appeal, it has not been preserved for our review. See State v. Blackmer, 149 N.H. 47, 48 (2003).



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