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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Merrimack No. 2006-150 LAWRENCE SLEEPER v. WARDEN, NEW HAMPSHIRE STATE PRISON Argued: January 18, 2007 Opinion Issued: April 5, 2007 Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the petitioner. Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the brief and orally), for the respondent. DUGGAN, J. The State appeals an order of the Superior Court (Brennan, J.) granting a writ of habeas corpus to the petitioner, Lawrence Sleeper. We reverse. Sleeper was convicted after a jury trial in Superior Court (Fitzgerald, J.) of several charges of aggravated felonious sexual assault and felonious sexual assault. The evidence at trial consisted of the testimony of the two juvenile victims and Sleeper, who testified on his own behalf and denied the allegations. Four days after the verdict, the trial judge issued an order explaining that after the guilty verdicts, he went to the jury deliberation room "to dismiss [the jury] and thank them." The order continued:

There was some general questioning and comment about their jury service. One juror then asked why there was so little evidence to go on in this case. I explained the nature of sexual assaults and that they frequently came down to one person's word against another. I further explained that police investigations are largely made up of hearsay evidence which is not admissible so the police would not necessarily have anything to add. There was some general comment about the difficulty and stress of deciding this kind of case. The foreperson then asked "Can I ask you something about the trial?" (my personal recollection) or according to another court employee in the room, "Can we tell you why?" There were several different conversations going on in the room at the time. I responded I'll answer what I can. The foreperson went on to say "the prosecution put on all this evidence and we (the jury) kept asking why he (the defendant) didn't put on any evidence that he didn't do it." Another court employee in the room understood the foreperson to say "there was all these accusations and evidence being offered . . . but the defendant did not really offer anything or explain why he was not guilty." As the record shows, the defendant testified in his defense and my first reaction was that the comments were directed at the defendant's credibility. On further reflection, however, the comments could reflect improper burden shifting on the part of the jury. The jury foreperson was quoted by the press (based on comments after the jury was dismissed and had left the courthouse) as saying, "It was difficult because we had to systematically breakdown the credibility of the witnesses, but in the end both of their (the victims [sic]) stories were actually very consistent . . . ." The order then gave the parties an opportunity to "file motions requesting any relief deemed appropriate in light of the above accompanied by a detailed memorandum of law supporting the parties' [sic] position with specific reference to use of a juror's `testimony' to impeach a verdict." Sleeper filed a motion to reconvene the jury, to which the State objected. The trial court denied the motion, ruling that "[t]he comments of the jury do nothing more than reflect on the jury's proper function of weighing the credibility of each and every witness that testifies including the defendant and do not reflect a general burden shifting to the defendant." Thereafter, Sleeper appealed. Five issues were raised in his notice of appeal, including the issue of whether the trial court erred in deciding not to reconvene the jury. That issue, however, was not briefed. We affirmed the convictions. See State v. Sleeper, 150 N.H. 725 (2004).

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Sleeper subsequently filed a petition for writ of habeas corpus in superior court, arguing the trial court erred in not acting immediately to conduct an individual voir dire of each juror. He asserted that by delaying disclosure of the jurors' comments, the court "forced a legal situation that is virtually unwinnable for a convicted defendant

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