The opinion of the court was delivered by: Dalianis, C.J.
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.
Argued: February 15, 2012
The defendant, Joshua Guild, appeals his conviction by a jury on one count of felonious sexual assault, see RSA 632-A:3, III (Supp. 2011), and one count of aggravated felonious sexual assault (AFSA), see RSA 632-A:2, II (Supp. 2011), both involving the same minor victim. He contends that the Superior Court (McNamara, J.): (1) violated New Hampshire Rule of Evidence 615 and RSA 632-A:6, IV (2007) by failing to sequester the minor victim's mother; (2) erroneously denied his motion to disqualify a juror without first conducting a voir dire of the juror; and (3) erroneously denied his motion to dismiss the AFSA charge. We affirm.
The jury could have found the following facts. The assaults in this case occurred in February 2006, when the victim was approximately ten and one- half years old. The defendant, who was her aunt's boyfriend, put his hand under the victim's shirt, then slid it under her underwear and rubbed her buttocks. He then touched her genitals over her underwear and asked if he could touch her vagina. When she said, "[n]o," he moved his hand back to her buttocks. The victim reported the assaults immediately to her mother and, later that day, to the police.
I. Sequestration of Victim's Mother
The defendant first argues that the trial court violated RSA 632-A:6, IV and Rule 615 when it denied his request to sequester the victim's mother during the victim's testimony. Rule 615 provides:
At the request of a party the court shall in criminal cases and may in civil cases order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person or a victim of the crime, or (2) an officer or employee of a party in a civil case which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause.
(Emphasis added.) RSA 632-A:6, IV similarly provides:
At the request of a party the court shall, in cases under RSA 632-A [Sexual Assault and Related Offenses], order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This does not authorize exclusion of a party who is a natural person or a victim of the crime, or a person whose presence is shown by a party to be essential to the presentation of the party's cause.
(Emphasis added.) The defendant argues that Rule 615 and RSA 632-A:6, IV mandate that the court sequester a witness in a criminal trial upon request. The defendant contends that the trial court violated both the rule and the statute when it denied his request to sequester the victim's mother, and that this error requires automatic reversal.
Rule 615 and RSA 626:6, IV "codified a well-established common law tradition of sequestering witnesses as a means of discouraging and exposing fabrication, inaccuracy, and collusion." United States v. Jackson, 60 F.3d 128, 133 (2d Cir. 1995) (quotation omitted; discussing Federal Rule of Evidence 615); see N.H. R. Ev. 615 Reporter's Notes. The Supreme Court has observed that this practice, which is "part of our inheritance of the common Germanic law," serves two purposes: (1) "[i]t exercises a restraint on witnesses 'tailoring' their testimony to that of earlier witnesses"; and (2) "it aids in detecting testimony that is less than candid." Geders v. United States, 425 U.S. 80, 87 (1976) (quotation omitted); see Jackson, 60 F.3d at 133.
For the purposes of this appeal, we assume, without deciding, that the trial court erred when it denied the defendant's request to sequester the victim's mother. But see Government of Virgin Islands v. Edinborough, 625 F.2d 472, 474-75 (3d Cir. 1980) (trial court has discretion to allow parent of young witness to remain in courtroom under exception for witnesses who are "essential" to presentation of party's case); Com. v. Bonner, 601 N.E.2d 32, 34- 35 (Mass. App. Ct. 1992) (no error to allow mother of fourteen-year-old victim to remain in courtroom during victim's testimony). However, we decline the defendant's invitation to rule that this error mandates reversal without further inquiry.
To support his argument, the defendant relies upon People v. Dixon, 177 N.E.2d 206 (Ill. 1961), State v. DiModica, 192 A.2d 825 (N.J. 1963), overruled on other grounds by State v. Czachor, 413 A.2d 593 (N.J. 1980), and Vaughn v. State, 479 S.W.2d 873 (Ark. 1972), none of which stand for the per se rule of reversal that the defendant advances. Finding little support for the defendant's per se reversal rule, we turn to other jurisdictions, which have addressed the standard of review of a trial court's sequestration decision.
Federal courts construing Federal Rule of Evidence 615, which is similar to New Hampshire Rule 615, have decided that "[a]lthough exclusion of witnesses [in a criminal trial] is mandatory, . . . a trial court's violation of [Federal] Rule 615 . . . is grounds for reversal . . . only if the party requesting exclusion was substantially prejudiced by the error." Annotation, Exclusion of Witnesses Under Rule 615 of Federal Rules of Evidence, 181 A.L.R. Fed. 549, 568 (2002) (emphasis added). "Some courts have placed the burden of showing prejudice on the party requesting exclusion, . . . but a number of courts have taken the view that prejudice resulting from a trial court's violation of [Federal] Rule 615 is presumed and the burden is on the party opposing sequestration to show that the violation was not prejudicial or was harmless error." Id. In the Third, Fifth, Sixth and Eighth Circuit Courts of Appeals, the burden of proof is on the party requesting exclusion of witnesses. See Edinborough, 625 F.2d at 476; United States v. Green, 293 F.3d 886, 891-92 (5th Cir. 2002); William L. Comer Family Equity Pure Trust v. C.I.R., 958 F.2d 136, 140-41 (6th Cir. 1992); Hollman v. Dale Electronic, Inc., 752 F.2d 311, 313 (8th Cir. 1985). By contrast, in the Second, Fourth and Ninth Circuit ...