State of New Hampshire v. Alphonse Toto

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2018-0197, State of New Hampshire v. Alphonse
Toto, the court on May 8, 2020, 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.

The defendant, Alphonse Toto, appeals his conviction, following a jury
trial in Superior Court (Schulman, J.), on charges of aggravated felonious
sexual assault, occurring between 1981 and 1985. See RSA 632-A:2 (1986)
(amended 1986, 1992, 1994, 1995, 1997, 1998, 1999, 2003, 2008, 2012,
2014, 2017, 2018). He contends that: (1) the trial court erred when it
dismissed a juror for cause during the voir dire process; and (2) as a result of
that alleged error, the jury that convicted him was not impartial.

A fundamental precept of our system of justice is that a defendant has
the right to be tried by a fair and impartial jury. State v. Bedell, 169 N.H. 62,
65 (2016). If it appears that any juror is not indifferent, the juror shall be
dismissed. RSA 500-A:12, II (2010). To be found impartial, a juror need not
come into the trial with no information or impression of the nature of the case.
Bedell, 169 N.H. at 65. The question of impartiality is determined by whether
the juror’s views would prevent or substantially impair the performance of the
juror’s duties. State v. Addison (Capital Murder), 165 N.H. 381, 447 (2013). To
be entitled to reversal of his conviction, the defendant must further show that,
as a result of the juror’s improper dismissal, the jury that convicted him was
not impartial. Bedell, 169 N.H. at 68.

The trial court’s determination of the impartiality of the jurors selected is
essentially a question of demeanor and credibility. Id. at 66. The trial court’s
decision “‘is ordinarily influenced by a host of factors impossible to capture
fully in the record—among them, the prospective juror’s inflection, sincerity,
demeanor, candor, body language, and apprehension of duty.’” Addison, 165
N.H. at 447 (quoting Skilling v. United States, 561 U.S. 358, 386 (2010)). For
these reasons, the trial court’s determination is entitled to “special deference.”
Bedell, 169 N.H. at 66.

We will not disturb the trial court’s ruling absent an unsustainable
exercise of discretion or a finding that the ruling was against the weight of the
evidence. Id. 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 court’s discretionary
judgment. Id. 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. Id. A trial court’s finding that a
juror is not impartial may be overturned only when it amounts to manifest
error. See Addison, 165 N.H. at 447.

In this case, the victim said that she had been sexually assaulted as a
child, but had not disclosed the events to police until she was an adult. The
defense claimed, in part, that she had confused the defendant with her actual
abuser. The trial court determined, based upon its examination of the juror in
question, that her opinion regarding delayed disclosures of sexual abuse would
likely impair her ability to be impartial. See id.

During voir dire, the juror volunteered that she harbored “really . . .
strong opinions on sexual cases that come about, like, 4 years later or 35 years
later.” The juror added that she “question[ed] why [the victim is] 40 years old,
why when she was 6, did it take 35 years to come about.” Although the juror
denied that the delayed disclosure “ended” the case in her mind and agreed
that she could listen to the evidence with an open mind, she stated that the
delayed disclosure caused her to enter her role as a juror with a “[q]uestioning
manner.” She concluded by stating that, “I think with everything going on
lately with all these – on the news all these sexual harassments and 20, 25, 30
years later, people are coming forward, I’m like –."

The trial judge questioned the juror, allowed the parties an opportunity
to question her and to give their opinions, and then questioned the juror
further. On the record, the judge articulated his reasoning, expressing concern
that the juror was “cynical” about delayed disclosures and might experience
“an almost involuntary closing of the mind.” Cf. Bedell, 169 N.H. at 67 (stating
that judge did not question juror to determine her impartiality and that record
did not show objective basis sufficient to sustain trial court’s determination
that juror could no longer be impartial). The judge characterized the decision
as “a close call.”

The defendant emphasizes the trial court’s comment that any juror was
going to question the reason for the victim’s lengthy delayed disclosure.
Whether the juror should be disqualified rested not on whether she questioned
the delayed disclosure, but on whether she held an opinion regarding delayed
disclosures that might interfere with her ability to view the evidence
impartially.

The defendant points to instances during the court’s examination of the
juror when the juror indicated that she could consider the evidence impartially.
See State v. Tabaldi, 165 N.H. 306, 313 (2013) (affirming trial court’s decision
not to dismiss juror who said she would not try the case based upon her

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opinion of felons). However, the transcript does not reflect the affect or
demeanor of the witness. See Addison, 165 N.H. at 447. Furthermore, we note
that four of the juror’s responses to the trial court are identified in the
transcript as “indiscernible.”

The trial court observed that, “if we had a longer time to ask better
questions, we’d find out more.” The defendant faults the court for not asking
the juror additional questions. However, the trial court spent sufficient time
examining the juror to conclude that she was not impartial. Its statement
could reasonably be understood as referring to the likelihood that, given more
time, the juror would have exposed her bias in more detail.

On this record, we conclude that the defendant failed to establish that
the trial court’s decision to dismiss the juror for cause was unreasonable or
untenable. See Bedell, 169 N.H. at 66. Accordingly, we need not address the
defendant’s argument that, in light of the dismissal, the jury necessarily lacked
impartiality. See id. at 68.

Affirmed.

Hicks, Bassett, Hantz Marconi, and Donovan, JJ., concurred.

Timothy A. Gudas,
Clerk

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