State of New Hampshire v. Joshua Heredia

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0736, State of New Hampshire v. Joshua
Heredia, the court on March 24, 2021, issued the following
order:

Having considered the briefs and oral arguments of the parties, we
conclude that a formal written opinion is unnecessary in this case. The
defendant, Joshua Heredia, appeals his convictions, following a jury trial in the
Superior Court (Anderson, J.), on one count of simple assault, see RSA 631:2-a
(2016); RSA 651:6, I(g) (2016), and two class B felony counts of riot, see RSA
644:1, I(a), IV (2016). The defendant argues that the trial court erred by:
(1) denying his motion to strike one of the jurors for cause; and (2) denying his
motion for a directed verdict with respect to one of the two riot charges. We
affirm.

I. Facts

The record supports the following facts. During the early morning hours
of May 11, 2018, three Manchester police officers — Officers Stewart,
Harrington, and Roscoe — responded to a noise complaint at a bar in
Manchester. Upon their arrival, the officers observed the defendant, along with
another individual, arguing with the bouncer outside of the bar. After speaking
briefly with the officers, the defendant started to leave the area, but then
returned. Shortly thereafter, the defendant’s brother and other individuals
joined the defendant outside the bar. The police asked the group to leave, but
they refused, spilling out into the street in front of the bar. The defendant’s
brother then started yelling expletives at the officers and recording them with
his cell phone. The officers decided to arrest the brother for disorderly
conduct, but, as they attempted to restrain him, the group became increasingly
aggressive, “shouting, screaming, swearing, [and] getting . . . very, very close”
to the officers.

As the three officers struggled to restrain the brother, Officers Harrington
and Roscoe became distracted by the group, leaving Officer Stewart alone with
the brother. While Officers Harrington and Roscoe attempted to control the
group, which grew larger after the bar closed, the brother began assaulting
Officer Stewart, beating her in the head and face. Realizing Officer Stewart’s
predicament, Officer Roscoe jumped on top of the brother and punched him
several times. The defendant began punching Officer Roscoe, shifting Officer
Roscoe’s attention away from the brother. The brother then punched Officer
Stewart one last time. The defendant continued punching Officer Roscoe until
another officer tackled and arrested him. As a result of the incident, Officers
Stewart and Roscoe suffered various injuries, and both were diagnosed with
concussions. The defendant was charged with one count of resisting arrest,
one count of simple assault, one count of second-degree assault, and, with
respect to the injuries sustained by Officers Roscoe and Stewart, two class B
felony counts of riot.

During jury selection, Juror B.L. asked the trial court to excuse him from
jury service due to financial hardship. He did not express any concern about
his connections to law enforcement until defense counsel asked him about his
juror questionnaire, which stated that he had friends or relatives in law
enforcement. Juror B.L. responded that, although he did not recognize any of
the names of the officers involved in this case, he “work[s] with a ton of
Manchester Police” at his physical therapy clinic, has “a friend of the family
that’s also police,” and has “a lot of family in law enforcement.” When the trial
court asked if his connections to law enforcement would “affect [his] ability to
be fair and impartial in this case,” Juror B.L. stated:

I would try not to let it be, but I am sympathetic towards
them just because . . . the nature of what I . . . do and my
relationship to them. I’m not going to lie and say I wouldn’t
(indiscernible), but I would try to be unbiased.

The trial court then asked if Juror B.L. could “resolve a difference in testimony
between police and non-police based on the testimony at trial only.” Juror B.L.
responded: “I would try to do that. I would try to do that to the best of my
ability.”

Defense counsel moved to strike Juror B.L. for cause, arguing, in part,
that Juror B.L. could not guarantee his impartiality in serving on the jury. The
trial court denied the motion and ruled that Juror B.L. was qualified, noting:

The question is flawed to begin with because almost
everybody, to some extent, would give some -- I mean, there are
some people that wouldn’t, but a lot of people -- the question really
isn’t an abstract, would you give deference to police. The question
is can you listen to two people testify and decide based on the facts
of the testimony, the demeanor and all of that.

I think he answered that question sufficiently well. I’m going
to find him qualified.

Neither the defendant nor the State struck Juror B.L. via peremptory
challenge. Juror B.L. was seated on the jury, which convicted the defendant
on the simple assault and riot charges.

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 The defendant then moved for a directed verdict on both of the riot
charges. He argued, in part, that no rational jury could have concluded that
he engaged in violent or tumultuous conduct, as required by RSA 644:1, I(a),
until he punched Officer Roscoe, at which point his brother had already
punched Officer Stewart several times. Thus, the defendant argued, because
his brother punched Officer Stewart several times before he intervened, the
State could not prove that his actions caused Officer Stewart’s concussion. See
RSA 644:1, IV. The trial court disagreed, concluding that the jury could have
found that the defendant “was part of the crowd that was surrounding the
officers as they tried to restrain [the brother].” The trial court further noted
that the fact that one of the brother’s blows against Officer Stewart occurred
after the defendant intervened further supported the jury’s findings as to
causation. Accordingly, the trial court denied the defendant’s motion. This
appeal followed.

II. Analysis

On appeal, the defendant argues that the trial court’s denial of his
motion to strike Juror B.L. for cause violated his state and federal
constitutional rights to an impartial jury because Juror B.L.’s statements that
he would “try” to set aside his feelings about law enforcement were insufficient
to establish his impartiality. We first address the defendant’s claim under the
State Constitution and rely upon federal law only to aid our analysis. State v.
Ball, 124 N.H. 226, 231-33 (1983).

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. Afshar, 171 N.H. 381,
386 (2018); see U.S. CONST. amend. VI; N.H. CONST. pt. I, arts. 21, 35.
Generally, a juror is presumed to be impartial. Afshar, 171 N.H. at 386. A
juror is impartial if he or she “can lay aside his or her impression or opinion
and render a verdict based on the evidence presented in court.” Id. When a
juror’s impartiality is questioned, the trial court must determine whether the
juror is indifferent. Id.; see RSA 500-A:12, I (2010). “If it appears that any
juror is not indifferent, he [or she] shall be set aside on that trial.” RSA 500-
A:12, II (2010).

The trial court’s determination regarding the impartiality of the jurors
selected is essentially a question of demeanor and credibility. State v. Tabaldi, 165 N.H. 306, 312-13 (2013). Thus, we afford special deference to the trial
court’s decision and we will not overturn the trial court’s ruling unless it was
an unsustainable exercise of discretion or against the weight of the evidence.
Id. at 313.

The defendant draws our attention to State v. Town, 163 N.H. 790
(2012), which involved a challenge to a juror, who had been the victim of a
sexual assault, as to whether she was qualified to sit on a case involving an

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aggravated felonious sexual assault charge. Town, 163 N.H. at 791-92. After
expressing concerns about her ability to be fair and impartial, the juror stated
during voir dire: “I think I need to do this.” Id. at 791. The juror then
indicated that she was “not sure” whether she could be fair and impartial. Id.
The trial court twice asked if the juror could set aside her personal situation
and judge the case based solely upon the evidence, and each time the juror
stated that she would “try.” Id. at 791-92. In light of the juror’s entire voir
dire, we held that the juror’s “indication that she would ‘try’ to be fair and
impartial, without more, was insufficient to establish that she could lay aside
her impression or opinion and render a verdict based on the evidence
presented in court.” Id. at 794 (quotation omitted). Accordingly, we reversed
the defendant’s conviction, concluding that the trial court’s finding that the
juror was qualified to serve on the jury was an unsustainable exercise of
discretion. Id. at 795.

We are not persuaded by the defendant’s contention that Town is “nearly
identical” to this case. We recognize that, as in Town, Juror B.L. expressed
concern about his ability to remain fair and impartial, indicating that his
personal and professional connections to police officers made him
“sympathetic” to them. He also repeatedly reiterated during voir dire that he
would “try” to remain fair and impartial, but did not affirmatively state that he
would do so. Cf. Tabaldi, 165 N.H. at 313 (upholding the trial court’s decision
not to strike a juror who stated that she would “do her best” to put aside her
concerns regarding the defendant’s prior convictions where the juror later
affirmed that she would not judge the case on that basis).

However, when compared to the juror in Town, Juror B.L.’s personal
connection to this case was more attenuated. Unlike the juror in Town, whose
statement, “I think I need to do this,” Town, 163 N.H. at 791, suggested that
she viewed serving on the jury as therapeutic or personally redeeming, Juror
B.L. did not indicate that he had been the victim of a crime or that the nature
of the charges against the defendant would impact his impartiality in any way.
That Juror B.L. did not recognize any of the names of the officers who were
injured or appeared as witnesses further demonstrates that, unlike the juror in
Town, his sympathies did not warrant his disqualification.

Ideally, the trial court would have further probed Juror B.L. about his
sympathy for the police, particularly given the importance of police credibility
in this case. Nonetheless, we conclude that the trial court did not
unsustainably exercise its discretion by finding Juror B.L. qualified to serve on
the jury. We have observed that it is not uncommon for jurors to express
themselves in ambiguous and seemingly contradictory ways. State v. Addison
(Capital Murder), 165 N.H. 381, 448 (2013). Although when individually
excerpted from the voir dire transcript, some of Juror B.L.’s answers might be
described as ambiguous, the record before us supports the trial court’s
ultimate decision that he could listen to the testimony at trial and decide the

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case “based on the facts of the testimony, the demeanor and all of that.” On
one hand, Juror B.L. voluntarily disclosed his connections to law enforcement
in his juror questionnaire, and when prompted, admitted that he was
“sympathetic” towards police. On the other hand, Juror B.L. did not raise any
concerns about his connections to law enforcement until defense counsel
asked about his responses to questions posed in the juror questionnaire.
Indeed, the record indicates that Juror B.L. was primarily concerned with how
spending time away from his clinic to serve on the jury would impact him
financially.

Therefore, notwithstanding the ambiguous and seemingly contradictory
nature of Juror B.L.’s statements, the record supports the trial court’s ultimate
conclusion that Juror B.L. could decide the case based solely upon the
evidence presented at trial. We further conclude that the trial court was best
situated to evaluate whether Juror B.L. was sincere when he responded to
inquiries about his connections to the police, and, relatedly, whether he was
capable of setting aside those connections and rendering a verdict based upon
the evidence. See id. at 447.

To the extent that the defendant argues that the trial court’s ruling was
not entitled to special deference because it was not based upon Juror B.L.’s
demeanor or credibility, we disagree. Although the trial court did not expressly
reference Juror B.L.’s demeanor or credibility in denying the defendant’s
motion to strike, all juror impartiality determinations rely, in part, on the trial
court’s assessment of the juror’s demeanor and a host of other factors
impossible to capture fully in the record. See id. Although the circumstances
here present a close call, we conclude, in light of the special deference we
afford to the trial court’s decision, see id. at 447-48, that the trial court did not
unsustainably exercise its discretion when it denied the defendant’s motion to
strike Juror B.L. for cause. Because the State Constitution provides at least as
much protection as the Federal Constitution on this issue, see Tabaldi, 165
N.H. at 313, we reach the same conclusion under the Federal Constitution.

We next address the defendant’s argument that, because there was
insufficient evidence that his actions caused Officer Stewart’s concussion, the
trial court erred by denying his motion for a directed verdict with respect to the
riot charge involving Officer Stewart. A challenge to the sufficiency of the
evidence raises a question of law, which we review de novo. State v. Folley, 172
N.H. 760, 766 (2020). We will uphold the jury’s verdict unless no rational trier
of fact could have found guilt beyond a reasonable doubt, considering the
evidence, and all reasonable inferences drawn therefrom, in the light most
favorable to the State. Id. We examine each item of evidence in the context of
the entire case, and not in isolation. Id. The defendant bears the burden of
proving that the evidence was insufficient to prove guilt. Id. If the record
contains only circumstantial evidence, the defendant must establish that the
evidence fails to exclude all reasonable conclusions except guilt. Id.

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 To convict the defendant of riot as charged in the indictment, the State
had to prove beyond a reasonable doubt that the defendant: “Simultaneously
with [two] or more other persons . . . engage[d] in tumultuous or violent
conduct and thereby purposely or recklessly create[d] a substantial risk of
causing public alarm.” RSA 644:1, I(a). The offense of riot is considered a
class B felony “if, in the course of and as a result of the conduct, any person
suffers physical injury.” RSA 644:1, IV. The defendant “need not have
personally engaged in the actual acts of physical violence to be prosecuted for a
class B felony under RSA 644:1, IV.” State v. Belkner, 117 N.H. 462, 467-68
(1977).

Here, the trial court instructed the jury that the State bore the burden of
proving that the defendant’s violent or tumultuous conduct caused Officer
Stewart’s concussion. The video evidence presented to the jury at trial depicts
the defendant standing in the crowd that surrounded the officers as they
attempted to restrain the brother. At trial, Officer Harrington testified that
someone struck him as he was assisting the arrest of the brother, causing him
to shift his attention to the crowd. Officer Harrington further testified that,
when he stood up to address the crowd, his attention became fixed upon the
defendant. Because Officer Roscoe was already attempting to control the
crowd, this shift in Officer Harrington’s attention left Officer Stewart alone with
the defendant’s brother, creating an opportunity for the brother to begin
beating Officer Stewart in the head and face. Although the defendant denied
striking Officer Harrington, he admitted that Officer Harrington pushed him
because he “got a little too close” as the officers struggled with the brother.
Based upon this evidence, the jury could have concluded that the defendant’s
participation in the crowd surrounding the officers shifted Officer Harrington’s
attention away from his brother, and, consequently, enabled his brother to
assault Officer Stewart, thereby causing Officer Stewart’s concussion.

The defendant argues that the evidence was insufficient to convict him of
riot as a class B felony because the State failed to prove that he made physical
contact with any of the officers before punching Officer Roscoe, at which point
his brother had already punched Officer Stewart several times. According to
the defendant, the fact that his attack on Officer Roscoe allowed his brother to
punch Officer Stewart one last time is, at best, circumstantial evidence that his
actions caused Officer Stewart’s concussion. Because this evidence fails to
“exclude all reasonable conclusions except guilt,” Folley, 172 N.H. at 766, the
defendant argues, the trial court should have granted his motion with respect
to the riot charge against Officer Stewart.

We disagree with the premise of the defendant’s argument. Although the
record contains little, if any, evidence that the defendant made physical contact
with any of the officers before punching Officer Roscoe, the jury could have
concluded that the defendant was an active participant in the crowd, rather
than an uninvolved bystander, and that his contributions to the tumultuous

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behavior of the crowd fell within the definition of riot set forth in RSA 644:1,
I(a). See Belkner, 117 N.H. at 472 (finding sufficient evidence of riot based
upon the defendant’s participation in an incident at the New Hampshire State
Prison where the defendant directed threats at prison guards, refused to leave
the area, and made no effort to disassociate himself from the scene); State v.
Garcia, 162 N.H. 423, 433 (2011) (concluding that the evidence of riot was
“overwhelming” where multiple witnesses observed the defendant at the scene
holding a baseball bat with a group of people who were arguing with the
victim); see also State ex rel. Juv. Dept. v. Saechao, 2 P.3d 935, 940-41 (Or. Ct.
App. 2000) (finding sufficient evidence of riot under an Oregon statute, similar
to RSA 644:1, I(a), where the defendant was part of a group that surrounded
the victim and blocked his escape as other individuals began assaulting him).
The jury could have also concluded that the defendant’s actions diverted
Officer Harrington’s attention away from the brother, creating an opportunity
for the brother to assault Officer Stewart. It is of no moment whether the
defendant personally assaulted Officer Stewart, as the jury could have
concluded that his actions enabled his brother to do so. See Belkner, 117 N.H.
at 467-68. As the trial court noted, that the defendant’s subsequent attack on
Officer Roscoe allowed the brother to deliver one final blow to Officer Stewart
further supports the jury’s conclusion as to causation. Therefore, viewing the
evidence in the light most favorable to the State, we conclude that the State
presented sufficient evidence that Officer Stewart sustained her concussion “in
the course of and as a result of” the defendant’s riotous conduct. RSA 644:1,
IV.

III. Conclusion

For the foregoing reasons, we affirm the defendant’s convictions on one
count of simple assault, see RSA 631:2-a; RSA 651:6, I(g), and two counts of
riot as a class B felony, see RSA 644:1, I(a), IV.

Affirmed.

HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

Timothy A. Gudas,
Clerk

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