Citing Goodale,State v. Brodowski, and State v. Anaya, the defendant argues that our “prior decisions imply that [we] concur[ ] with the view that the erroneous denial of a challenge for cause requires reversal where the complaining party has exhausted its peremptory challenges.” SeeGoodale, 144 N.H. 224, 740 A.2d 1026; State v. Brodowski, 135 N.H. 197, 600 A.2d 925 (1991); State v. Anaya, 131 N.H. 330, 553 A.2d 297 (1988). We disagree.

Citing Goodale, State v. Brodowski, and State v. Anaya, the defendant argues that our "prior decisions imply that [we] concur[ ] with the view that the erroneous denial of a challenge for cause requires reversal where the complaining party has exhausted its peremptory challenges." SeeGoodale, 144 N.H. 224, 740 A.2d 1026 ; State v. Brodowski, 135 N.H. 197, 600 A.2d 925 (1991) ; State v. Anaya, 131 N.H. 330, 553 A.2d 297 (1988). We disagree.

This practice passes constitutional muster so long as a record of the discussion is preserved and made available to the defendant. See State v. Brodowski, 135 N.H. 197, 201, 600 A.2d 925, 927 (1991). A record of the ex parte discussion serves two distinct functions.

We have "consistently held that we will not consider issues raised on appeal that were not presented in the lower court." State v. Brodowski, 135 N.H. 197, 200, 600 A.2d 925, 926 (1991) (quotations omitted). Although we have recognized narrow exceptions to this rule, see, e.g., id. at 200, 600 A.2d at 927 (finding pro se defendant's claim preserved despite no objection where trial judge's explanation of jury selection process to defendant was incomplete); Skidmore, 138 N.H. at 203, 636 A.2d at 66 (finding defendant's claim preserved despite no objection to trial court's failure to give limiting instruction where court admitted defendant's prior conviction over his objection), we are unpersuaded that an additional exception should be created.

The court next considered Porter's claim that the trial court had improperly prevented him from cross-examining Rossignol regarding other past allegations of sexual assault. As to this line of argument, the court ruled that Porter had "acquiesced" rather than "objected" to the trial court's ruling on the issue, and that the trial court's ruling must therefore stand. Id. at 100-101 (citing State v. Brodowski, 135 N.H. 197, 200 (1991) for the proposition that "we see no reason to depart from the general principle that the rules of preservation are not relaxed for a pro se defendant"). Finally, the court rejected Porter's three remaining claims, including his prosecutorial misconduct claim, because the arguments were "either meritless . . . or were not properly preserved for appellate review."

Thus, we have held that the refusal to provide a record in such circumstance requires reversal unless it appears beyond a reasonable doubt that the error was harmless. Id.; State v. Brodowski, 135 N.H. 197, 202, 600 A.2d 925 (1991) (trial court must preserve record of ex parte discussions with venire panelist even if such a record is not requested). This standard applies if the trial court fails to notify counsel of an ex parte communication with an empaneled juror or fails to record such discussion in the first instance. Hannan, 137 N.H. at 614-15; see also Castle, 128 N.H. at 652-53 ( ex parte communication with empaneled juror after trial concluded and before deliberations began required reversal because court failed to record the conversation and refused counsel's request for voir dire). The “mere occurrence of an ex parte conversation between a trial judge and a juror does not constitute a deprivation of any constitutional right.

This case involves neither a pro se defendant nor the need for a limiting instruction regarding the introduction of evidence of a prior crime. See Skidmore, 138 N.H. at 202-03, 636 A.2d at 65-66; see also State v. Brodowski, 135 N.H. 197, 200, 600 A.2d 925, 926-27 (1991); Brien v. Wiley, 124 N.H. 573, 575, 474 A.2d 1015, 1016 (1984). "When a defendant's affirmative challenge is necessary to apprise a court that a constitutionally protected interest is at stake, it is reasonable to construe a defendant's silence as a waiver of the challenge.

Thus, the information is equally available to the parties for use in challenging the selected jurors, either peremptorily or for cause. The only prejudice that the defendant claims by virtue of the State's unequal access to the records is that with knowledge of the criminal records of the unselected members of the venire, the State is in a better position to know who might replace a selected juror in determining whether to exercise a peremptory challenge. While our constitutional policy requires that voir dire be conducted in a manner that permits reasonably intelligent use of peremptory challenges, cf. State v. Brodowski, 135 N.H. 197, 201, 600 A.2d 925, 927 (1991), we cannot hold that equal knowledge of the criminal records of unselected members of the venire is constitutionally required to ensure the ultimate impartiality of the defendant's jury, cf. Ross v. Oklahoma, 487 U.S. 81, 88 (1988) (so long as defendant's jury is ultimately impartial, that the defendant had to exercise a peremptory challenge to attain an impartial jury does not violate the right to an impartial jury under federal law). Although the defendant's claim of prejudice did not constitute a violation of his right to an impartial jury, we conclude that it did constitute a violation of his right to due process.

We see no reason to depart from the general principle that the rules of preservation are not relaxed for a pro se defendant. See State v. Brodowski, 135 N.H. 197, 200, 600 A.2d 925, 926 (1991). The defendant next argues that the trial court denied him a fair trial by consolidating the sexual assault, kidnapping, and escape charges.

In other jury selection contexts, we have stressed the need for a record to permit appellate review and ensure a fair and impartial jury. See State v. Brodowski, 135 N.H. 197, 201, 600 A.2d 925, 927 (1991); State v. Castle, 128 N.H. 649, 652, 517 A.2d 848, 850 (1986). In the instant case, there was testimony that these jurors were excused based on the clerk of court's directive, and the trial court found their reporting dates were amended for inconvenience.