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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


Coos
No. 2014-0662


                       THE STATE OF NEW HAMPSHIRE

                                         v.

                                  PAUL BEDELL

                          Argued: January 13, 2016
                         Opinion Issued: May 27, 2016

      Joseph A. Foster, attorney general (Colleen Laffin, attorney, and Stephen
D. Fuller, senior assistant attorney general, on the brief, and Mr. Fuller orally),
for the State.


      Christopher M. Johnson, chief appellate defender, of Concord, on the
brief and orally, for the defendant.

      BASSETT, J. The defendant, Paul Bedell, appeals his convictions on two
counts of aggravated felonious sexual assault. See RSA 632-A:2, I(l) (2007).
The defendant argues that the Superior Court (Bornstein, J.) erred when, on
the second day of trial, it dismissed a juror after it erroneously concluded that
the juror could no longer be impartial. We affirm because we conclude that,
although error, the juror’s dismissal was not prejudicial because an impartial
jury ultimately rendered the verdict in the defendant’s case.
       The record supports the following facts. During jury selection for the
defendant’s trial, the trial court asked prospective jurors the following question:
“Have you or a close family member ever been accused of [sexual assault]?”
The following exchange occurred between one of the prospective jurors and the
trial court:

      [JUROR]: You mentioned being directly connected with somebody
      that has been accused or convicted. . . . [M]y cousin’s son [has]
      also been accused and is preparing to go to trial. I don’t know [if]
      it will affect or not.

      ....

      THE COURT: So, would any of those experiences have any effect
      on your ability to be fair and impartial in deciding this case?

      [JUROR]: No. Each one is an individual and you got to go by the
      evidence. I learned that a long time ago.

      THE COURT: Okay. So you can be fair and impartial and decide
      the case based solely on the evidence presented and the law as I
      instruct you on it?

      [JUROR]: Uh-huh.

      THE COURT: Yes?

      [JUROR]: Yes.

The State then further questioned the juror:

      [STATE]: Okay. So the fact that this 10 year old [in your relative’s
      case] made up a story about a sexual assault, wouldn’t that color
      your views when listening to another child if they were to say that
      they were sexually assaulted by someone?

      [JUROR]: Not necessarily. It depends on how the child was raised,
      it depends on if the parents stress honesty with the child and all
      things.

      [STATE]: But you’re not going to hear necessarily how the child
      was raised.

      [JUROR]: No, I’m not. I’d have to go by the evidence presented.




                                        2
      [STATE]: And -- but if the evidence presented is limited to just her
      testimony and the testimony of the other witnesses, wouldn’t your
      experience with [your relative] color your view as to what
      constitutes a reasonable doubt versus --

      [JUROR]: I would have to take what was said at face value. I
      would have to -- because I don’t know the parties involved.

      Having used all of its peremptory challenges, the State asked the trial
court to dismiss the juror for cause, arguing that her ability to “fairly and
accurately judge this case” was “too close for comfort.” The trial court asked
the juror if she “would still be able to evaluate the credibility of the alleged
victim and every witness based on the factors” in the present case; the juror
responded, “Yes.” The trial court found the juror qualified to sit on the jury,
and declined to dismiss her for cause.

       During a subsequent pre-trial evidentiary hearing, the State again asked
that the juror be struck for cause because the State had learned that the
attorney representing the juror’s relative worked in the same public defender’s
office as the defendant’s attorney. The trial court denied the State’s request,
noting that the juror “was quite firm in her expressions that she could be fair
and impartial and indifferent,” and observing that, because the juror “wasn’t
aware . . . and ha[d] no reason to be aware of” the professional relationship
between the attorneys, the juror’s connection to the defendant’s counsel was
“attenuated.”

       On the second day of trial, the State again asked to dismiss the juror for
cause, arguing that, during her opening statement, defense counsel made a
“direct appeal to [the juror’s] prior experience with her [relative].” Defense
counsel had stated:

            This is the kind of charge that brings all kinds to mind.
      People on the jury want to sometimes put in their own meanings,
      thoughts, bring their own background, fetishes, or passion about
      the very nature of this kind of charge. But when everything is said
      and done, again, this case will have done something very simple.
      This case is about a little girl who wanted attention and boy did
      she get it.

             We all know, we’ve all met, we’ve had first-hand information
      of people who make things up for reasons that aren’t all together
      clear.

Defense counsel explained that she had merely provided a “general layout of
the case,” denying that her remarks were directed specifically to the juror.



                                        3
       The trial court granted the State’s request to remove the juror for cause,
observing that although it had found the juror impartial at the time of jury
selection, defense counsel’s opening statement was an appeal to the juror’s
personal experiences with her relative. The trial court explained:

      [I]n the circumstances presented, I am now finding that [the juror]
      can no longer be fair, impartial, and unbiased; that is, that she can
      no longer be indifferent as it relates to this particular case where
      certainly, according to the Defense’s opening, and the evidence
      introduced thus far at trial on cross-examination of the State’s
      witnesses, one of the, perhaps, an important part of the
      Defendant’s defense is that [the victim], for whatever reason, is
      making this stuff up.

After a three-day trial, the jury convicted the defendant on two counts of
aggravated felonious sexual assault. This appeal followed.

         The defendant argues that the trial court erred when it dismissed the
juror for cause after the jury had been sworn and the trial had begun. He
asserts that because the trial court found the juror’s affirmations that she
could remain impartial credible, and because there is no evidence that the
juror’s impartiality was impacted by subsequent events, the juror remained
qualified to serve and should not have been removed. The State counters that
the trial court’s dismissal of the juror was proper given the “cumulative effect
. . . of all of the potential factors that weighed against [the juror’s] impartiality,”
including defense counsel’s opening statement and the professional connection
between the attorney for the juror’s relative and the defendant’s attorney.
Moreover, the State argues that, even if the dismissal was error, it does not
warrant reversal because an impartial jury rendered the verdict, and, therefore,
the defendant cannot show that he was prejudiced.

       “It is a fundamental precept of our system of justice that a defendant has
the right to be tried by a fair and impartial jury.” State v. Addison, 161 N.H.
300, 303 (2010) (quotation omitted). Generally, a juror is presumed to be
impartial. Id. To be found impartial, a juror “need not come into the trial with
no information or impression of the nature of the case. It is sufficient if the
juror can lay aside her impression or opinion and render a verdict based on the
evidence presented in court.” State v. Weir, 138 N.H. 671, 676 (1994)
(quotation and brackets omitted). When a juror’s impartiality is questioned,
the trial court has a duty to determine whether the juror is indifferent.
Addison, 161 N.H. at 303. “It is well settled that whether a prospective juror is
free from prejudice is a determination to be made in the first instance by the
trial court on voir dire.” Id. “The manner in which voir dire is conducted is
wholly within the sound discretion of the trial court.” Id. (quotation and
brackets omitted). “If it appears that any juror is not indifferent, the juror shall
be set aside on that trial.” Id. (quotation and brackets omitted).


                                          4
       “The trial court’s determination of the impartiality of the jurors selected
is essentially a question of demeanor and credibility and, thus, is entitled to
special deference.” State v. Tabaldi, 165 N.H. 306, 312-13 (2013). “We will not
disturb the trial court’s ruling absent an unsustainable exercise of discretion or
a finding that the trial judge’s decision was against the weight of the evidence.”
Id. at 313 (quotation omitted). When we determine whether a ruling made by a
judge is a proper exercise of judicial discretion, we are deciding whether the
record establishes an objective basis sufficient to sustain the discretionary
judgment made. State v. Lambert, 147 N.H. 295, 296 (2001). “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.” State v. Perri, 164 N.H. 400, 408 (2012).

        We first address whether the trial court erred when it dismissed the juror
for cause mid-trial. We conclude that the record does not establish an
objective basis sufficient to sustain the trial court’s finding. First, during jury
selection, the juror repeatedly stated that she could remain impartial, and
there is nothing in the record to suggest that the trial court doubted the
veracity of her repeated affirmations. See Tabaldi, 165 N.H. at 313 (upholding
trial court’s determination that juror was impartial after juror “affirmatively . . .
sa[id] that she would not try [the] case on the basis of [the defendant’s]
reputation or his past” (quotations and brackets omitted)). Moreover, the
record does not show that the professional connection between the attorney for
the juror’s relative and the defendant’s attorney affected the juror’s ability to be
impartial. Cf. State v. White, 105 N.H. 159, 161 (1963) (concluding that trial
court did not err when it dismissed a juror who “at one time had employed one
of the defendant’s attorneys” and was a “steady client” of an associate of that
attorney). To the contrary, as the trial court observed, the juror “wasn’t aware
. . . and ha[d] no reason to be aware of” the professional relationship between
the attorneys, and, thus, any connection she might have had to the defendant’s
counsel was “attenuated.”

        Additionally, the record does not support the trial court’s finding that
defense counsel’s comment during her opening statement — that “[w]e all know
. . . people who make things up” — affected the juror’s ability to remain
impartial. During her opening statement, defense counsel merely advanced a
common theory of defense — that the alleged victim is lying. This statement
falls well within the bounds of proper advocacy. See 2A McNamara, New
Hampshire Practice: Criminal Practice and Procedure § 32.11, at 10 (2010)
(opening statements allow “counsel to explain the defendant’s theory of the
case to the jury”); State v. Morais, 819 A.2d 424, 429 (N.J. Super. Ct. App. Div.
2003) (observing that prosecutor “appropriately called upon all jurors to draw
from their personal experiences and common sense”). We note that the trial
court did not question the juror to determine whether counsel’s statement
affected her impartiality, nor does the record show that there was an objective
basis sufficient to sustain the trial court’s determination that, “in the


                                         5
circumstances presented,” the juror could “no longer be fair, impartial, and
unbiased.” Cf. Tabaldi, 165 N.H. at 313 (upholding trial court’s determination
that juror was impartial because record showed that trial court asked juror “a
number of questions,” including whether she could “affirmatively . . . say” that
she could be impartial (quotation omitted)). Accordingly, we hold that the trial
court erred when it dismissed the juror for cause.

       We now turn to whether the trial court’s erroneous dismissal of the juror
requires reversal of the defendant’s convictions. The defendant argues that we
must reverse because the trial court, through error, allowed the State’s
“meritless mid-trial cause challenge” to improperly “shape the jury’s
composition.” Citing our decision in State v. Sullivan, 157 N.H. 124 (2008), the
defendant asserts that the erroneous mid-trial dismissal of a juror in and of
itself — without regard to its impact on the impartiality of the jury that
ultimately rendered the verdict — requires reversal. The State counters that
even if the trial court erred when it dismissed the juror, an impartial jury
decided the defendant’s case, and, therefore, reversal is not required because
there was no prejudice. We agree with the State.

        The defendant’s reliance on Sullivan is misplaced. In that case, the trial
judge dismissed a juror after deliberations had begun “as a result of [the]
cumulative effect” of the juror’s behavior, including the juror’s refusal to follow
the court’s instructions. Sullivan, 157 N.H. at 136-37, 140 (quotation omitted).
On appeal, we held that the trial court erred when it dismissed the juror
because the juror’s inability “to carefully consider the evidence presented at
trial, and to deliver a fair and true verdict on the charges against the defendant
in accordance with the law outlined by the trial court” did not “appear in the
record as a demonstrable reality.” Id. at 137 (quotation omitted), 139-40. We
reversed the defendant’s convictions, explaining that “the non-meritorious
discharge of a deliberating juror is a violation of a fundamental constitutional
right” because “the defendant had a vested interest in [a properly impaneled
juror’s] continued participation in deliberations that should not have been
disturbed.” Id. at 141 (emphases added).

       Here, the trial court dismissed the juror on the second day of trial, rather
than during deliberations. Thus, Sullivan is distinguishable because, here, the
removal of the juror did not disrupt deliberations. See id. at 137-41 Indeed,
the defendant “does not argue that the jury that did sit on his case was not
impartial.” State v. Addison (Capital Murder), 165 N.H. 381, 449 (2013).
“Accordingly, [his] right of trial by an impartial jury is not implicated in this
case.” Id. (quotation omitted). Rather, as the State correctly observes, the
defendant has shown only that “the effect of the trial court’s ruling” was “to
diminish the jury panel from fourteen impartial jurors to thirteen, and the
number of alternate jurors from two to one.” Therefore, the defendant has
failed to meet his burden of demonstrating prejudice. See id. (observing that,



                                        6
generally, a criminal defendant alleging juror bias bears the burden to
demonstrate actual prejudice).

      Thus, because the defendant has not demonstrated — or even argued —
that the jury that convicted him was not impartial, we conclude that reversal is
not warranted. See Perri, 164 N.H. at 408. Any issue raised in the defendant’s
notice of appeal that he has not briefed is deemed waived. See State v.
Blackmer, 149 N.H. 47, 49 (2003).

                                                 Affirmed.

      DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred.




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