Tamara Dukette v. Daniel Brazas
166 N.H. 252
N.H.2014Background
- Tamara Dukette slipped on ice at an apartment owned by Daniel Brazas; jury found Brazas not at fault after a two-day trial.
- Before trial, the superior court ordered counsel to submit individual voir dire questions ex parte and stated that attorney-conducted voir dire would occur at the bench, with jurors answering individually out of the panel’s hearing.
- Plaintiff moved for reconsideration to allow counsel to ask questions without prior submission and to permit addressing the entire panel; she filed an emergency original-jurisdiction petition to this court while the motion was pending.
- This Court partially granted relief: it vacated the trial court’s requirement that counsel submit voir dire questions in advance, citing RSA 500-A:12-a, IV; the remainder of the petition was denied without prejudice.
- At jury selection, the trial court conducted attorney voir dire at the bench; plaintiff’s counsel waived asking questions and was never allowed to address the panel as a whole. Plaintiff later appealed, arguing the bench voir dire procedure violated the statute and deprived her of constitutional protections and meaningful trial preparation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether RSA 500-A:12-a requires counsel to question the entire jury panel aloud (open voir dire) | RSA 500-A:12-a III’s right to examine “any of the prospective jurors” implies counsel may examine the panel as a whole | Statute’s language permits examination of “any” juror individually; structure does not mandate panel questioning | Court: “any” means one or some, not “all”; statute does not require addressing the entire panel aloud (affirmed) |
| Whether the trial court erred by requiring prior submission of counsel’s voir dire questions | Pretrial order impermissibly restricted counsel’s statutory right to conduct voir dire without prior submission | Trial court presumed power to control voir dire procedures | Court granted relief in part earlier: vacated requirement to submit questions in advance under RSA 500-A:12-a IV; counsel may not be required to submit questions unless improper questioning occurred |
| Whether bench, individual voir dire procedure violated statutory or constitutional rights and deprived plaintiff of fair trial preparation | Procedure prevented jurors from hearing others’ answers and limited counsel’s ability to probe bias and prepare case; violated statute and constitutional protections | Procedure was within trial court discretion under statute to limit scope/form of questioning where appropriate | Court declined to reach preservation-based constitutional/fair-preparation arguments because plaintiff failed to raise them properly below; did not decide on merits |
| Whether plaintiff preserved claim that she was prevented from addressing the panel prior to individual questioning | Plaintiff contends motion to reconsider covered this change and preserved the issue | Defendant notes plaintiff did not object at trial or renew motion after procedure announced | Court: issue not preserved—motion to reconsider did not reference post-draw change and plaintiff did not object or move after learning; appellate review declined |
Key Cases Cited
- State v. Dor, 165 N.H. 198 (2013) (statutory interpretation reviewed de novo)
- Appeal of Northern New England Tele. Operations, LLC, 165 N.H. 267 (2013) (clear statutory language controls)
- Thompson v. D'Errico, 163 N.H. 20 (2011) (issues not raised at trial generally not reviewable on appeal)
- N.H. Dep’t of Corrections v. Butland, 147 N.H. 676 (2002) (motion for reconsideration required to preserve new issues for appeal)
- State v. Noucas, 165 N.H. 146 (2013) (issue preservation and appellate review principles)
- McCarthy v. Wheeler, 152 N.H. 643 (2005) (statutory use of “shall” is mandatory)