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Dukette v. Brazas

Supreme Court of New Hampshire

May 8, 2014

Tamara Dukette
v.
Daniel Brazas

Argued February 26, 2014.

Merrimack.

Upton & Hatfield, LLP, of Concord ( Michael S. McGrath on the brief and orally), for the plaintiff.

Primmer Piper Eggleston & Cramer PC, of Manchester ( Gary M. Burt on the brief and orally), for the defendant.

Dalianis, C.J. Lynn and Bassett, JJ., concurred; Conboy, J., concurred specially.

OPINION

Page 735

[166 N.H. 253] Dalianis, C.J.

Following a two-day trial in Superior Court (Smukler, J.), the jury determined that the defendant, Daniel Brazas, was not legally at fault for the injuries sustained by the plaintiff, Tamara Dukette, when she slipped and fell on ice at her apartment, which was owned by the defendant. The plaintiff appeals, arguing that the trial court erred in preventing counsel from addressing and examining the jury panel during attorney-conducted voir dire. We affirm.

The facts are not in dispute. On February 19, 2013, following the final pretrial conference in this matter, the trial court issued a written order requiring " [i]ndividual voir dire questions to be submitted ex parte to [the] court." In addition, although it was not memorialized in the order, the trial court stated that if any juror wished to respond to a question asked by counsel, the juror would have to approach the bench and answer the question, presumably before the judge and counsel, but otherwise out of the hearing of the remainder of the seated panel.

The plaintiff filed a motion for reconsideration, asking the trial court to reconsider: (1) its requirement that counsel submit written questions to the court prior to attorney-conducted voir dire ; and (2) its ruling prohibiting counsel from questioning the jury as a group so that all of the jurors could hear both the questions and the answers. Prior to the trial court ruling upon the motion for reconsideration, with the date for drawing a jury only a few days away, the plaintiff filed an emergency petition for original jurisdiction with this court, raising the same two issues that had been included in her motion for reconsideration. We granted the petition in part and vacated the trial court's order insofar as it required prior submission of voir dire questions by counsel. See RSA 500-A:12-a, IV (2010) (" The trial judge shall permit counsel to conduct voir dire examination without requiring prior submission of the questions unless a particular counsel engages in improper questioning." ). In all other respects, we denied the petition without prejudice to the rights of either party to raise the remaining issue in an appeal from a final judgment in the case. The trial court ultimately denied the motion for reconsideration.

On March 4, 2013, jury selection took place. After the trial court asked general

Page 736

voir dire questions, it stated that attorney-conducted voir dire [166 N.H. 254] would take place at the bench. Plaintiff's counsel, however, waived asking any questions of the prospective jurors. Additionally, the parties agree that counsel was never afforded an opportunity to address the panel as a whole.

The plaintiff first argues that the trial court erred in conducting voir dire in such a manner as to prevent jurors from hearing other jurors' answers to voir dire questions, as the voir dire statute requires. See RSA 500-A:12-a, III (2010). The defendant responds that the ...


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