Opinion
No. CR07 22 31 64 T
August 20, 2008
MEMORANDUM OF DECISION RE MOTION FOR JUDGMENT OF ACQUTTIAL/MISTRIAL/NEW TRIAL
Following a jury verdict convicting him of three crimes, the defendant filed a Motion For Judgment of Acquittal/Motion for Mistrial/And Motion for New Trial (hereinafter "motion"). This court denied the motion in an oral ruling on February 25, 2008. (Attachment A.) The motion asserts three grounds: (1) the evidence did not permit a finding of guilty; (2) inconsistent verdicts; and (3) juror misconduct.
I.
As to the juror misconduct ground, this court ruled on this claim in a memorandum of decision dated January 17, 2008. (Attachment B.)
II.
The claim that there was insufficient evidence to permit the guilty findings was denied by the court because, based on the evidence presented at trial, a rational trier of fact could find each crime proven beyond a reasonable doubt. State v. Kirker, 47 Conn.App. 612, 619, cert. denied, 244 Conn. 914 (1978).
III.
The claim as to inconsistent verdicts is based on two assertions by the defendant. First, that the not guilty verdict on conspiracy to commit robbery first degree creates a logical and factual inconsistency with the other verdicts. Second, that the guilty verdict on reckless endangerment when compared to the guilty verdicts on the assault second degree and robbery first degree counts creates a legal inconsistency based on State v. King, 216 Conn. 585 (1990).
As to the claim of factual inconsistency, Connecticut law does not require factual consistency in jury verdicts. State v. Goriss, CT Page 13799 108 Conn.App. 264, 267 (2008). For a variety of policy reasons, the law permits inconsistent jury verdicts. See State v. DeCaro, 252 Conn. 229, 242-43 (2000) (summarizing the policies underlying inconsistent verdict rule).
As to the claim of legal inconsistency, the defendant correctly asserts that the same act cannot simultaneously be performed intentionally and recklessly. State v. King, supra, 216 Conn. 593-94. In other words, reckless conduct cannot be intentional because one who acts recklessly does not have a conscious objective to cause a particular result. Id. An examination of the charges in the present case demonstrates, however, that the rule of State v. King does not apply.
The defendant was convicted of two specific intent crimes: assault second degree (intent to cause physical injury), and robbery first degree (intent to commit larceny through the use of force). The defendant was also convicted of one reckless intent crime: reckless endangerment first degree (reckless risk of serious physical injury to another person).
Comparing the intent for robbery with that for reckless endangerment reveals that the two intents are not mutually inconsistent. The robbery involves intentional theft through force while the reckless endangerment involves reckless risk of serious injury. This is distinguishable from the attempted murder/reckless assault charges involved in King because there the intents were ruled to be mutually inconsistent. Moreover, the two counts relate to different acts. The robbery was based on the theft of the victim's property and display of a gun, whereas the reckless endangerment could well have related to other conduct described below.
Comparing the intent for intentional assault second degree with that for reckless endangerment also, on the facts of this case, does not present a King problem. In the first place, because it is a general verdict it is unclear precisely what factual theory the jury relied upon in rendering its verdict While a single act cannot simultaneously be both intentional and reckless, the evidence at trial supported a different factual basis for each charge. The assault charge was based on the victim sustaining physical injury either from being thrown to the ground or shot by a pellet gun. The reckless endangerment charge was supported by evidence that (1) the defendant stopped his vehicle to let out his armed companions so they could accost the victim, (2) the defendant drove from the area leaving the victim injured, or (3) the defendant could have had the intent to only injure the victim slightly but the actual discharge of the pellet gun (that was unintended) recklessly created a risk of serious physical injury.
The defendant admitted being present but denied knowledge that the crime would take place. During the robbery, however, the defendant moved his vehicle so as to facilitate the perpetrator's escape. The jury could have determined that the defendant formed the required intents for robbery and assault at that point and then aided the others by driving them from the crime scene.
In summary, the present case is sufficiently distinguishable from State v. King such that the counts of conviction are not legally inconsistent.
Conclusion
For the reasons set forth above, the Motion for Acquittal/Motion for Mistrial/New Trial is denied.
So Ordered at Bridgeport, Connecticut this 19th day of August 2008.
ATTACHMENT A **EXCERPT**
Before we proceed to the sentencing, I want to address the defendant's motion for judgment of acquittal/motion for mistrial/motion for new trial. This was filed back in December of `07, and it raised three grounds. One was that the evidence would not permit a finding of guilty, second that the verdicts were inconsistent, and third, that one of the jurors had engaged in misconduct.
As to the third ground, the Court did conduct a hearing in January and issued a memorandum of decision on that ground. But Attorney D'Amato, would you like to be heard with respect to the other two grounds that you raised in your motion?
MS. D'AMATO: Yes, your Honor. Thank you.
THE COURT: Go ahead.
MS. D'AMATO: Our contention here, your Honor, is that verdicts that are inconsistent so far as a mental state referring to the same act, are legally and logically inconsistent, and therefore, a legal impossibility. And basically what happened here is that Mr. Hart was acquitted of conspiracy, but he was convicted of assault second under the intentional portion of the statute, which required specific intent. And also convicted of robbery first, which also requires specific intent. Then he was convicted of reckless endangerment.
Now, the two earlier statutes, the reckless — I mean, the robbery and the assault second both require specific intent. There was only act here, it was a robbery. And it sounds like what happened was that the jury found him guilty as an accessory after the fact. That he didn't know about the robbery, he didn't conspire with anybody because they didn't find him guilty of the conspiracy portion. And that's the only thing that would make any sense.
So, the problem is that if they're finding him guilty of reckless endangerment, what exactly is their theory? Because he can't be — he couldn't have been recklessly — my theory is that what happened was that they took the reckless and they — and they used the reckless manner instead of the specific intent.
Now, there's plenty of case law, there's State v. King, and the Court basically — and this is 216 Conn. 585, the Court basically says that you can't have two mental states — two different mental states for the sane act or the same result.
There was one victim here. He was found — he was convicted of reckless assault and attempted murder. Attempted murder required specific intent. Reckless assault required recklessness. And the judge ordered a new trial based on the fact that a person can't have the same — have two mental states for the same action.
Again, in State v. Hinton, there was a gentleman who had a triple shotgun. He shot into a crowd of people and three of them were injured. The fourth one, I believe, was — or three of them were killed, one of them was seriously injured. And the Court found that because he was convicted again of this reckless and — reckless assault and attempted murder that that was inconsistent.
The only case that I found that was consistent was that when there was a pause in the action, there was a man, he was shooting into a car, evidently the first time he shot it was sort of like what the Court said was a reasonable jury could have found that he shot into the car to scare the people, and that was reckless. And then the second time that he started shooting, it was to kill someone. And that's how they reconciled that particular crime.
In this case, the defendant was charged as a robber, as a conspirator. And I probably should have asked for a bill of particulars on the reckless endangerment, but I can't for the life of me figure out what he was reckless for if he was — if he specifically intended to drive these robbers home and aid them in their crime. It's one or the other.
THE COURT: Okay. Thank you. Attorney Kelley.
MS. KELLEY: Your Honor, I would ask that you deny the motion for a judgment of acquittal. I think at this point in time you can't go back and second guess as to how the jury reached a verdict or have a — you know, I'm sure there are many theories, and theories are great, but the jury has spoken. The jury deliberations are private.
I think it was very clear from their question during deliberations that the defendant's convictions are based on an accessory theory, which the State notified the defendant prior to trial that it was proceeding as well on an accessory theory. There is nothing inconsistent about finding the defendant not guilty as to conspiring, but guilty as to an accessory on either of the counts of which he was convicted. And I would ask your Honor — the State would request that your Honor deny the motion for judgment of acquittal and/or new trial.
THE COURT: The motion is denied. Look, just driving the car, van, whatever, Jeep, stopping it later, an armed person gets out of the van knowing that there's going to be a crime. That in and of itself could be reckless endangerment. I mean, it's a general verdict. And I do not see the verdicts as inconsistent. And to the extent that they are, it's not an inconsistency that requires a new trial.
So, the motion for judgment of acquittal is denied, and on all the grounds, other than the juror misconduct, which I've already addressed in a separate memorandum of decision. Okay. Would the State like to make any general sentencing remarks?
ATTACHMENT B MEMORANDUM OF DECISION RE MOTION FOR NEW TRIAL DUE TO JUROR MISCONDUCT
This is a criminal case in which the defendant was convicted of various charges arising out of a street robbery that allegedly occurred on April 2, 2007 at approximately 11:20 p.m. in the area of 15 Renwick Drive, Bridgeport, Connecticut. The victim testified at trial that he was robbed by three masked assailants, one of whom shot him with a pellet gun. The victim saw the license plate number of the vehicle used by the perpetrators and reported that information to the police. The police stopped the vehicle about thirty-five minutes later and it contained a pellet gun, masks and personal items from the victim. The defendant was driving the vehicle when it was stopped. During a show-up identification procedure, the victim identified the defendant as one of the robbers based on his clothing and stature. At trial, the defendant testified that he was at the scene of the robbery but remained in the vehicle while others committed the crime without his knowledge.
Following the jury's verdict, the defendant filed the present motion asserting juror misconduct. Specifically, the defendant asserted that one of the jurors, Thomas Brooks, had visited the scene of the robbery during the trial and had expressed an opinion as to the defendant's guilt. Pursuant to State v. Brown, 235 Conn. 502 (1995), the court conducted an inquiry into the alleged juror misconduct.
For the reasons set forth below, the motion for new trial due to juror misconduct is denied.
Background
The so-called Brown hearing was conducted on January 16, 2008. Each of the six jurors testified. The examination focused on the two areas raised in the present motion, namely: (1) did a juror visit the crime scene during the trial and (2) prior to deliberations, did a juror express an opinion as to the defendant's guilt. The jurors' testimony may be summarized as follows.
Juror Ronald Simmons testified that during the trial another juror, Thomas Brooks, remarked that he had a friend who stayed over in the area of the crime scene and that Brooks said that he had gone over there to check it out. Ronald Simmons learned nothing about the location based on Brooks' comments. Simmons also testified that on one occasion he heard Brooks mumbling something to the effect that, "he got himself into trouble, he is guilty, he knows he is guilty." Simmons construed this as Brooks "thinking out loud."
Juror Paulette Lorette testified that she learned that Thomas Brooks had visited the crime scene location during the trial but that she learned no additional information about the scene. Lorette did not hear anyone voice any comments or opinions as to the defendant's guilt prior to deliberations.
Juror Thelma Fortson testified that during the trial Thomas Brooks drove by the street where the robbery occurred and saw that it was dark. She learned no new facts about the location from Brooks. Fortson did not hear any juror, prior to deliberations, state an opinion as to the defendant's guilt. Fortson did, however, testify that just prior to deliberations she had made a comment to Brooks to the effect of "how did he not know that the kids were doing this crap."
Juror Valerie Kotsay testified that during the trial she heard nothing about a juror visiting the crime location and also heard no juror express any opinion as to the defendant's guilt.
Juror Efrain Justiniano testified that Thomas Brooks said that he had passed by the crime scene and it was a dark place. Justiniano did not hear any juror, prior to deliberations, state an opinion as to the defendant's guilt.
Juror Thomas Brooks testified that he did not visit the crime scene location during the trial. Brooks further testified that he did not express any opinion as to the defendant's guilt with any other juror.
Discussion
As a general matter, jury verdicts are insulated from impeachment by jury testimony. Tanner v. United States, 483 U.S. 107, 117 (1987). Our Supreme Court has drawn an exception to this rule for criminal cases when jury misconduct is alleged. State v. Brown supra, 235 Conn. 526. In such cases, the court must hold an inquiry on the record. Id. Such inquiry is limited by Practice Book § 16-24 which in part provides "upon inquiry into the validity of a verdict, no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror nor any evidence concerning mental processes by which the verdict was determined . . ." Courts have identified important policy considerations that underlie this limitation, principally, that jurors would be beset by the defeated party in an effort to secure evidence of misconduct sufficient to set aside a verdict and as a consequence what was intended to be a private deliberation would be the constant subject to public investigation. See generally, McDonald v. Pless, 238 U.S. 264, 267-68 (1915), Wright v. United States, 559 F.Sup. 1139, 1151 (E.D.N.Y 1983), aff'd, 732 F.2d 1048 (2nd Cir. 1984).
Despite these policy concerns, it is fundamental that a defendant is entitled to have an impartial jury decide his case solely on the basis of the evidence and arguments given them in the adversary arena after proper instructions on the law by the court. State v. Rodriguez, 21 Conn. 315, 325 (1989). In this regard, it is improper for jurors to discuss the case among themselves until all of the evidence has been presented and the case has been submitted to them after final instructions by the trial court. State v. Washington, 182 Conn. 419, 425 (1980). The rationale behind this rule is that a juror, having expressed in discussion his or her view of the guilt or innocence of the defendant, would be inclined thereafter to give special attention to the testimony confirming that view. Id. As our Supreme Court in State v. Washington, supra, stated: "When most [people] commit themselves publicly to any fact, theory, or judgment they are too apt to stand by their own public declarations in defiance of the evidence." Id.
It is well established, however, that not every incident of juror misconduct requires a new trial. State v. Newsome, 238 Conn. 588, 627 (1996). The question is whether or not the misconduct has prejudiced the defendant to the extent that he or she has not received a fair trial. Id., 628. The defendant has been prejudiced if "the misbehavior is such to make it probable that the juror's mind was influenced by it so as to render him or her an unfair and prejudicial juror." Id., (quoting Williams v. Salamone, 192 Conn. 116, 122 (1984)). To succeed on a claim of juror misconduct the defendant must raise his contention from the realm of speculation to the realm of fact. State v. Owens, 100 Conn.App. 619, 628 (1997). Moreover, when the trial court is in no way responsible for the possible misconduct, the defendant bears the burden of proving that the misconduct actually occurred and resulted in actual prejudice. Id.
In the present case, the defendant does not assert that the trial court was responsible for the misconduct and accordingly bears the burden of proof. As noted above, the defendant asserts that juror Thomas Brooks engaged in juror misconduct by (1) visiting the crime scene during the trial and discussing it with the other jurors and (2) expressing an opinion as to the defendant's guilt to the other jurors. Neither of these claims warrant a new trial.
On several occasions during the trial, the court instructed the jury not to discuss the case among themselves or with anyone else and not to do any independent investigation.
As to the claim that juror Thomas Brooks visited the scene, such action in no way prejudiced the defendant. Although Brooks denied going to the scene, for purposes of this motion, the court assumes that he did. The most that came out of his conduct was that he told the other jurors that it was a dark area. If anything, this information was beneficial to the defendant in that it might affect the victim's opportunity to view the perpetrators. In addition, the defendant testified and admitted being present in a vehicle at the scene of the robbery. His defense was that he was an innocent and unknowing bystander and that others did the crime. Finally, there is no evidence that Brooks' conduct provided jurors with any additional or different information about the scene. To the contrary, each of the other jurors expressly testified that they learned nothing about the scene from Brooks. This conduct falls into the category of a harmless view of the crime scene that courts around the country have rejected as grounds requiring a new trial. See annot., 58 A.L.R.2d 1153-57 (1958); State v. Newsome, supra, 238 Conn. 633.
As to the claims that during the trial, juror Thomas Brooks expressed and discussed a opinion as to the defendant's guilt, the court finds that such action was not misconduct and, any event, did not prejudice the defendant. Juror Brooks denied expressing any opinion as to the defendant's guilt prior to deliberations. Of the other five jurors, four did not hear him express any such opinion. One juror, Ronald Simmons, heard Brooks "mumbling" about the defendant getting himself into trouble and knowing that he is guilty. Simmons attributed this to Brooks "thinking out loud." Significantly, Simmons testified that he paid no attention to it. Assuming that the comments were made, this is not the sort of public declaration of opinion that State v. Washington, supra, was concerned about. To the contrary, it appears to be an unintentional revelation of internal thought process that Brooks may not even have been aware of. As noted above, a juror's mental thought process is not a proper subject matter for judicial inquiry. Practice Book § 16-34; see also Josephson v. Meyers, 180 Conn. 302, 310-11 (1980) (no evidence to avoid a verdict may be received as to "any matter resting alone in the juror's breast"). To the extent that Brooks may have revealed his thought processes, the court does not find that it prejudiced the defendant.
At the hearing, one other potential area of juror misconduct came up that should be addressed. Juror Thelma Fortson testified that, just prior to deliberations, she made a comment to juror Brooks to the effect of "how did he not know that the other kids were doing this crap." This was an improper presubmission discussion of the evidence. State v. McCall, 187 Conn. 73, 76 (1982). Juror Fortson's comment was not, however, the same as taking a position on the defendant's guilt. The comment posed the central issue in the case as framedby the parties. That is, the defendant's claim that although he was present, he did not know that his companions had committed a robbery. The court finds that this isolated comment did not render juror Fortson an unfair or prejudicial juror. She indicated that the comment had an influence on her judgment. Moreover, juror Fortson seemed to have generally positive view of the defendant. This point was echoed by juror Simmons who testified that the defendant seemed like a "good kid." The court does not find that the defendant sustained actual prejudice because of Fortson's comment.
Conclusion
For the reasons set forth above, the court finds that the defendant has not sustained his burden to prove prejudicial juror misconduct. Accordingly, the defendant's motion for a new trial based on juror misconduct is denied.
Dated at Bridgeport, Connecticut this _____ day of January 2008.