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State v. Afshar

Supreme Court of New Hampshire, Merrimack

October 12, 2018

THE STATE OF NEW HAMPSHIRE
v.
FOAD AFSHAR

          Argued: June 27, 2018

          Gordon J. MacDonald, attorney general (Sean R. Locke, assistant attorney general, on the brief and orally), for the State.

          Lothstein Guerriero, PLLC, of Concord (Theodore M. Lothstein on the brief and orally), for the defendant.

          LYNN, C.J.

         The State appeals an order of the Superior Court (Nicolosi, J.) granting the defendant, Foad Afshar, a new trial following his convictions on one count of simple assault, see RSA 631:2-a (2016), two counts of unlawful mental health practice, see RSA 330-A:23 (2017), and one count of aggravated felonious sexual assault, see RSA 632-A:2, II (Supp. 2017). On appeal, the State argues that the trial court unsustainably exercised its discretion when, during a post-verdict hearing on the defendant's motion for a new trial, it failed to apply the proper legal analysis in evaluating the potential biases of two jurors. We affirm and remand.

         I

         The following facts are derived from the record. The defendant was convicted by a jury of simple assault and aggravated felonious sexual assault based on charges that he touched the genitals of his 12-year-old client during a therapy session. The defendant was also convicted on two counts of unlawful mental health practice based on charges that he had failed to renew his mental health counselor's license at the time he was treating the victim.

         Following his convictions, an attorney representing the defendant post-trial learned that two of the jurors at his trial, Jurors 6 and 14, had failed to disclose on their juror questionnaires or during jury selection that they had been child victims of sexual assault. The defendant moved for a new trial, contending that he was denied his right to a fair and impartial jury because Jurors 6 and 14 would have been excused during voir dire had their experiences been revealed to the court. The trial court held a hearing on the defendant's motion, at which Jurors 6 and 14 testified. After the hearing, the trial court issued an order granting the defendant a new trial. The State moved for reconsideration, which the trial court denied, and this appeal followed.

         Prior to jury selection, the potential jurors filled out questionnaires that included the following question: "Have you or has any member of your family been the victim of a crime?" Both Jurors 6 and 14 answered, "No." The trial court began jury selection by informing the jury pool of the charges against the defendant. The court next instructed that it would be reading a list of questions, and that if a potential juror's name was selected and that individual answered "yes" to any of the questions asked by the court, that person would need to come up to the bench to discuss his or her response. The trial court explained that the microphones at the bench would be turned off, and that if there was a sensitive matter that an individual did not want to discuss in the presence of the lawyers and the defendant, a request to speak privately with the judge would be obliged.

         When reading its list of questions, the trial court asked:

Have you or a close member of your family or a close friend ever been a victim of a crime?

         The court elaborated: "And when I ask that question, I don't mean whether somebody has been prosecuted or identified or charged, I just mean have you ever been victimized." When their names were called, Jurors 6 and 14 stated that they had not answered "yes" to any of the voir dire questions, and said that they could be fair and impartial. They were then seated on the jury.

         Following the parties' presentation of the evidence, the jury began its deliberations. While deliberating, a young male juror expressed concern about his ability to determine whether the defendant was capable of committing the offenses charged. In response, Juror 14 shared her view that there was no profile of an offender, and that she herself had been a victim of childhood sexual assault. Juror 6, who had been elected as the foreperson of the jury, then revealed that he also had been sexually assaulted as a child. The jury thereafter returned a guilty verdict.

         At the post-verdict hearing on the defendant's motion for a new trial, Juror 6 confirmed that he had been sexually assaulted by a babysitter when he was approximately five or six years old. The incident ended when the babysitter's mother returned home. While Juror 6 did not immediately tell anyone about the incident, he asked his mother not to send him to that babysitter again and she granted his request. Juror 6 testified that he had not remembered the sexual assault until approximately 50 years later when the perpetrator came into his business establishment. Upon seeing the perpetrator, Juror 6 recalled the event and became disabled to the point that he lost his ability to breathe. He could not function for several days after the encounter. When ...


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