State of New Hampshire v. Justin Cassidy

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2015-0162, State of New Hampshire v. Justin
Cassidy, the court on March 18, 2016, issued the following
order:

Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
We affirm.

Following a jury trial in Superior Court (Abramson, J.), the defendant,
Justin Cassidy, was convicted on a charge of acting in concert with another in
the sale of a controlled drug. See RSA 318-B:2, :26 (Supp. 2015). He argues
that the evidence was insufficient to sustain his conviction, and that the trial
court erred by not assuring that the jurors would begin deliberations anew
after substituting an alternate juror during jury deliberations.

We first address whether the evidence was sufficient to sustain the
defendant’s conviction. The indictment on which the defendant was convicted
alleged that on or about May 20, 2014, “in concert with Taylor Bacon, . . . [he]
did knowingly sell a quantity of a controlled drug, to wit, heroin, in a quantity
of less than one gram, including any adulterants or dilutants, to an
[informant], in exchange for United States Currency.” On appeal, the
defendant argues that this language charged him with being an accomplice to a
drug sale. He further argues that the evidence established only that he sold
heroin to Ms. Bacon, who in turn sold it to the informant; there was no
evidence, according to the defendant, that he knew the heroin he sold to Ms.
Bacon would be distributed to anyone else. Thus, he argues that the evidence
was legally insufficient to establish “that he knowingly ‘solicited, aided or
attempted to aid another’ to sell drugs” so as to give rise to accomplice liability.
We assume, without deciding, that this argument is preserved.

The defendant’s argument is built upon the faulty premise that he was
charged solely as an accomplice. Under New Hampshire law, however,
language in a charging document alleging that a defendant acted “in concert
with” another ordinarily charges the defendant both as a principal and as an
accomplice. State v. Brooks, 164 N.H. 272, 289 (2012); State v. Sinbandith, 143 N.H. 579, 584 (1999) (finding that language in an indictment charging the
defendant with knowingly selling a controlled drug “in concert with and aided
by another” provided sufficient notice that the defendant was being charged as
a principal). Moreover, the identity of the purchaser of a drug is not an
element of the crime of sale of a controlled drug under RSA 318-B:2. See State
v. Bell, 125 N.H. 425, 429 (1984).

Consistent with these principles, the trial court instructed the jury in
this case, without objection, as follows:

Now in this case the Defendant has been charged with sale
of a controlled drug, acting in concert with Taylor Bacon. The
definition of this crime has four parts or elements. The State must
prove each element beyond a reasonable doubt. Understand the
State is not required to prove beyond a reasonable doubt each and
every fact upon which it relies. The State is required to prove
beyond a reasonable doubt the four elements of the crime. Thus,
the State must prove:

First, the Defendant sold a substance to another;

And, second, the Defendant knew the substance was heroin;

And, third, the amount of the controlled drug was less than
one gram, including any adulterants or diluents;

And, fourth, the Defendant acted knowingly.

....

Now as a matter of law, the Defendant is charged here as
both a principal and an accomplice in sale of a controlled drug. A
defendant may be convicted of a crime although he did not
personally perform all of the conduct which constitutes the offense.
In other words, the law recognizes that there may be a division of
labor in criminal activity, just as there is in business or many
other activities of daily life.

Thus, if you find the crime of sale of a controlled drug
occurred, then the State may prove the Defendant’s guilt of that
crime in either one of two ways. First, by proving beyond a
reasonable doubt that the offense was committed by the Defendant
himself as described above; or, second, by proving beyond a
reasonable doubt that the Defendant is accountable for the
conduct of someone else, namely, Taylor Bacon, and that the
offense was committed by a combination of the Defendant’s own
acts and the actions of Taylor Bacon.

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(Emphases added.) Thus, the trial court properly instructed the jury that it
could convict the defendant if it found that he knowingly sold less than one
gram of a substance he knew to be heroin to another. The jury was not
required to find in addition that he knew the heroin would be distributed to the
informant. See id. at 430 (because identity of purchaser is not an element, it
made no difference that the person to whom the defendant sold drugs was not
the state trooper named in the indictment, but was an informant). In his brief,
the defendant acknowledges that “[t]he State’s evidence is that Ms. Bacon said
she bought a baggie of heroin from [the defendant], and in turn sold it to [the
informant]. . . . The amount of drugs Ms. Bacon bought and sold was 0.843
grams – roughly the amount of her daily habit.”

We conclude, therefore, that the evidence was sufficient to sustain the
defendant’s conviction.

We next address whether the trial court erred by not assuring that the
jurors would begin deliberations anew after substituting an alternate juror
during jury deliberations. After the trial court was required to substitute an
alternate juror for a juror who had become ill, the trial court specifically
instructed the jurors to “start [their deliberations] all over again,” to share with
the new juror their positions and viewpoints as to the evidence and the law, to
listen to the new juror’s positions and viewpoints, and not to consider or refer
to any viewpoints that may have previously been expressed by the excused
juror. The defendant argues that these instructions were not sufficient to
assure that the jurors would in fact begin deliberations anew; rather, the
defendant argues that the trial judge was obligated to ask each juror
individually whether the juror could begin deliberations anew, and to obtain
each juror’s affirmative statement on the record that the juror would begin
deliberations anew. See State v. Sullivan, 157 N.H. 124, 142-43 (2008).

The record does not reflect that the defendant raised this issue in the
trial court. To the contrary, it shows that, after the trial court instructed the
jurors to begin their deliberations anew, it asked counsel whether there was
“anything else [to address] before the jury’s excused,” to which the defendant’s
counsel responded, “No, Your Honor.” However, the defendant asserts that “if
it appears [that he] did not contemporaneously object to the trial judge’s
abbreviated procedure, this Court should nonetheless reverse for plain error.”

Under the plain error rule, we have discretion to correct errors that were
not raised in the trial court. State v. Mueller, 166 N.H. 65, 68 (2014). The rule
“is used sparingly, however, and is limited to those circumstances in which a
miscarriage of justice would otherwise result.” Id. (quotation omitted). Among
other requirements, for there to be plain error, the error at issue must affect
substantial rights. Id. That is, it must affect the outcome of the case. Id. at
70. This analysis “is similar to the harmless error analysis we use to evaluate
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preserved claims of error, with one important distinction: whereas the State
bears the burden under harmless error analysis, the defendant bears the
burden under the plain error test.” Id.

In this case, the State concedes that the trial court erred under Sullivan.
It argues, however, that the error did not affect the defendant’s substantial
rights. In his brief, the defendant does not address how the error affected
substantial rights, but asserts instead that because “the trial judge’s oversight
is structural error ‘not subject to harmless error analysis,’” he does not have to
prove that it affected his substantial rights.

A “structural error” is a constitutional error that necessarily renders a
criminal trial so fundamentally unfair that it “cannot reliably serve its function
as a vehicle for the determination of guilt or innocence.” State v. Addison
(Capital Murder), 165 N.H. 381, 452 (2013) (quotation omitted). Such an error
requires reversal of the defendant’s conviction without regard to whether the
error was prejudicial. See id.

We have never addressed whether a trial judge’s failure to individually
question jurors to assure that the jurors begin deliberations anew constitutes a
constitutional “structural error.” State v. Dushame, 136 N.H. 309 (1992),
relied upon by the defendant to argue that the error here was structural, solely
concerned the application of RSA 500-A:13 (1983). We concluded that the
statute, as it was then written, required the discharge of any alternate jurors
upon submission of a case to the jury. Dushame, 136 N.H. at 314-15. We did
not address any constitutional requirements for substituting a juror during
deliberations, or whether the failure to follow those requirements constitutes
structural error.

Although we did not require the defendant in Dushame to establish
prejudice because the statute’s effect was to render his jury a jury of eleven
persons contrary to the State Constitution, we then expressly declined to
consider “the constitutional implications of late substitution” of jurors. Id. In
State v. Colbert, 139 N.H. 367, 371 (1995), we noted that these two statements
in Dushame are at variance, and concluded that, to the extent Dushame
suggests that substituting a juror during jury deliberations violates the State
Constitution, it is dicta. Thus, we specifically rejected the dissent’s argument
that a trial court’s post-deliberation substitution of a juror in violation of RSA
500-A:13 (1983) is a “structural jury problem” for which a defendant is not
required to object. Id.; see also id. at 374-75 (Horton, J., dissenting).
Moreover, we rejected the defendant’s argument that his counsel’s failure to
object to the substitution of a juror during jury deliberations was
presumptively prejudicial for purposes of ineffective assistance of counsel, and
rejected his ineffective assistance of counsel claim because he had not shown
actual prejudice. Id. at 372-73. Contrary to the defendant’s argument,
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therefore, Dushame does not stand for the proposition that “[s]ubstitution of a
juror after commencement of deliberations is structural error”; it merely stands
for the proposition that such juror substitution violated the version of RSA
500-A:13 then in effect.

In response to Dushame, the legislature amended RSA 500-A:13 to allow
for the substitution of a juror after the commencement of deliberations. See
Colbert, 139 N.H. at 371; RSA 500-A:13 (2010) (amended 2013). In Opinion of
the Justices (Alternate Jurors), 137 N.H. 100, 103-05 (1993), we concluded
that the substitution of a juror after the commencement of jury deliberations is
consistent with a defendant’s state constitutional right to a trial by jury so long
as certain procedural requirements are followed. In Sullivan, we held that the
trial court violated the defendant’s constitutional right to be tried by a fair and
impartial jury by discharging a juror during deliberations, contrary to Opinion
of the Justices, for a non-meritorious reason. Sullivan, 157 N.H. at 132-41.
We also concluded that, after improperly dismissing the juror, the trial court
further violated the defendant’s right to a fair and impartial jury by not
securing assurances from each remaining juror that the juror could and would
begin deliberations anew. Sullivan, 157 N.H. at 141-43. We characterized the
latter error as “further grounds for reversal.” Id. at 141. However, we did not
address whether any of the errors in Sullivan was “structural.”

More recently, in Addison, 165 N.H. at 443-52, we addressed whether the
trial court violated the defendant’s right to a fair and impartial jury by denying
his pretrial motions to strike certain potential jurors for cause. We concluded
that, because the defendant had exercised peremptory challenges with respect
to those jurors, and because he did not contend that any of the jurors who sat
on his jury was biased, he could not establish that errors in denying his for
cause challenges prejudiced him. Id. at 449-52. In so ruling, we specifically
determined that errors in jury selection are not “structural” errors, and warrant
reversal only upon a showing of prejudice. Id. at 452.

Although Addison concerned the pretrial denial of for cause challenges to
potential jurors, we see no qualitative difference between that kind of error and
the kind of error at issue in this case for the purpose of assessing whether the
trial was rendered so fundamentally unfair that it “cannot reliably serve its
function as a vehicle for the determination of guilt or innocence.” Id. (quotation
omitted). Accordingly, we conclude that a failure to individually question
jurors to assure that the jurors begin deliberations anew after substituting an
alternate juror during deliberations is not a “structural error,” but is instead
subject to harmless error analysis. Id.

Here, the defendant has not shown how the trial court’s failure to
question the jurors regarding their ability to begin deliberations anew affected
the outcome of the case. We presume that the jurors followed the trial court’s
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instructions to begin their deliberations anew. See State v. Tyler, 158 N.H.
776, 779 (2009). Indeed, the record reflects that the jury deliberated for nearly
five hours before reaching a unanimous verdict on one charge and deadlocking
on two other charges. We conclude that the defendant has not established that
any error in the trial court’s failure to individually question the jurors to assure
that they would begin their deliberations anew affected his substantial rights.
Mueller, 166 N.H. at 70.

Affirmed.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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