Opinion
No. CR01106952
November 14, 2003
MEMORANDUM OF DECISION
I. INTRODUCTION
Dowen Phillips, defendant, claims juror misconduct during the deliberations of his trial and moves this court to order a new trial.
The defendant claims in Defendant's Motion For Evidentiary Hearing Concerning Jury Misconduct dated March 17, 2003, that the jurors acted on a mistake of fact during deliberations wherein the defendant was convicted of Failure to Appear in the First Degree, for his failure to come to court on August 1, 2001, and the jurors "believed that the defendant was in court on August 1, 2001 but found that he was not in court on August 2, 2001."
On April 8, 2003, the court denied the defendant's motion based upon his claim of mistake of fact.
During the proceedings of April 8, 2003 the defendant extended the claim of juror misconduct to include claims of racial bias on the part of one of the jurors. The court conducted an evidentiary hearing relevant to the claim of racial bias.
On October 16, 2003, at the request of the court, defendant filed a Motion for New Trial based upon a claim of racial bias. The defendant bears the burden of proving actual prejudice that resulted from the alleged juror misconduct.
On December 9, 2002, the defendant filed a Motion for a New Trial based upon grounds other than juror misconduct. The Motion for a New Trial dated December 9, 2002, was denied by the court. The defendant filed no Amended or New Motion for New Trial based upon this claim of racial bias until suggested by the court.
The defendant failed to carry his burden of proof. The Motion for a New Trial is denied.
II. PROCEDURAL HISTORY
The defendant was charged in a six-count information with various crimes. The sixth count being Failure to Appear in the First Degree, a violation of General Statutes Sec. 53a-172, wherein it is alleged that the defendant failed to appear in court on August 1, 2001.
The evidentiary portion of the trial commenced on October 29, 2002. On November 26, 2002, the jury could not reach a unanimous verdict on counts one through five and a mistrial duly entered on said counts. The jury returned a unanimous verdict of guilty on the sixth count: Failure to Appear in the First Degree. A Pre-sentence Investigation was ordered and the matter was continued to January 24, 2003, for sentencing.
The defendant requested an extended continuance until March which was not opposed by the state.
The trial concluded on November 26, 2002. The testimony revealed that the defendant did have a conversation with juror Mr. K. as early as November 27, 2002, and communicated this conversation to his counsel. All conversations by his counsel with jurors are all post-verdict.
At the hearing on March 18, 2003, counsel for the defendant represented to the court that the defendant spoke with a juror, Mr. K, and the defendant related to counsel the content of the conversation with Mr. K. The defendant's attorney then contacted the foreperson, Ms. C.
Due to allegations, inter alia, of racial bias by one of the jurors the court elects not to identify the jurors directly. Accordingly, the court will identify each juror by the first letter of each juror's surname. Because two jurors have a surname beginning with the letter K the court will identify the subject of the claims of racial bias by utilizing that juror's first name and surname initials (BK).
Counsel, in his offer of proof in the March 18, 2003 proceeding, called his client as a witness. Mr. Phillips testified, inter alia, that his girlfriend had a chance encounter with Mr. K and Mr. K gave her his telephone number and invited the defendant's call. The defendant thereby called Mr. K and inquired as to how the jury could find him guilty of the Failure to Appear charge when he was in court on August 1st. "And he was like, um, I didn't show enough evidence that I was there on August 2nd." (T., 3/16/03, p. 13.) Mr. Phillips further testified "He believe (sic) I was there on August 1st." (T., 3/18/03, p. 13.)
In the proceeding of April 8, 2003, counsel for the defendant represented that he had spoken to two additional jurors (Mr. H and Ms. R) and "that indicated that it (the failure to appear verdict) was based on August 2nd that they voted to convict, which is not — the crime was committed on August 1st." (T., 4/8/63, p. 3.)
Based upon the showing of the defendant, on April 8, 2003, the court denied the defendant's Motion for Evidentiary Hearing based upon the claim of juror mistake of fact. (T. April 8, 2003, pps. 10-14.) The court relied upon State v. Aillon, 168 Conn. 541, 550, 363 A.3d 49 (1975), and P.B. § 42-33. The court interpreted the law relevant to any such claim of juror misconduct based upon mistake of fact to be settled in that there can be no impeachment of the jury's verdict on such grounds. (See, infra pages 15-18.) The denial of April 8, 2003, relevant to the claim of mistake of fact, stands.
On April 8 counsel further represented that the view of the case by juror B.K. was racially motivated. (T., 4/8/03, p. 5.) This is the first time any claim of racial bias was made before the court.
The court indicated that there must be an inquiry by the court and the court requested that the respective attorneys solicit juror affidavits relevant to the issue of racial bias. The matter was continued to mid-May.
Curiously, the defense counsel did not consider an inquiry by the court that would take the form of summoning the jury as necessary:
Attorney O'Brien: Well, your Honor, I mean if the court is going to deny the inquiry at this point into their making (a) mistake as to the law . . .The Court: I've done that.
Attorney O'Brien: Then I don't see the court bringing in the jurors to make a determination of whether the jurors believe that (Mr. B.K.) was a racist. (Transcript, April 8, 2003, page 15.)
Immediately after the court proceeding of April 8, upon reflection, the court was of the opinion that representatives of the respective parties converging upon the unsuspecting jurors was perhaps not the most prudent way to proceed. Accordingly, immediately after the court session of April 8 in an effort to maintain the status quo and expedite the form of the court's inquiry, the court forwarded a facsimile to each attorney, vacating its order of the attorneys obtaining affidavits of jurors, and scheduled the matter for the next court session, April 9, 2003 at 9:30 a.m. The defense requested a one-day continuance to April 10, 2003 at 9:30 a.m.
The facsimile to each attorney transmitted on April 8, 2003, read in its entirety:
Upon further reflection, the order of the Court relevant to the obtaining of sworn affidavits from discharged jurors is vacated.
Counsel for the defense has made a representation to the Court that "racial bias" played a role in the defendant's conviction, or words to that effect.
The Court will set this matter down for tomorrow April 9, 2003 at 9:30 a.m. to hear an offer of proof from the defense counsel (it need not be in the form of an affidavit).
Thereafter, the Court will decide the nature and the form of the Court's inquiry.
Apparently, counsel for the defendant requested a continuance for an additional day in order to afford him an opportunity to interview additional jurors, which he did.
The facsimile to counsel was intended to maintain the status quo and proceed on the record. The court did not, in its facsimile of April 8, 2003, order the respective attorneys not to talk to jurors although it was the court's intent in forwarding the facsimiles to maintain the status quo and not have the attorneys contact the jurors. This was not explicit in the court's communication.
At the April 10 proceeding counsel for the defendant represented that he had conversations with jurors Mr. H, Ms. C, Mr. K and Ms. R and that based on counsel's inquiries counsel had reason to believe that juror B.K. demonstrated a bias based upon race.
Although the court had ruled on April 8, 2003, denying the defendant's motion based on a claim of mistake of fact, counsel for the defendant continued his investigation on this ground beyond the April 8th ruling.
Attorney O'Brien contacted several jurors and related to each information he received that there was some misunderstanding whether the jury's verdict on the Failure to Appear Charge related to the defendant's failure to come to court on August 1 or August 2, 2001. There is a reasonable basis to conclude that the manner in which defendant's counsel conducted the inquiry tainted one or more of the jurors. In light of the court's ruling, the manner of conducting the interviews is moot.
III. ISSUE PRESENTED
Whether the defendant has demonstrated actual prejudice to support his claim of juror bias?
The court must answer the inquiry in the negative. The defendant has not made such a showing.
IV. FACTS CT Page 12462
On April 29 and May 7, 2003, the court did conduct an evidentiary hearing relevant to the claim of racial bias wherein all six jurors who participated in deliberations did testify and the court finds the following facts:
The foreperson Ms. C was unavailable on April 29th and did testify on May 7, 2003.
Four jurors (Ms. R, Mr. H, Mr. K and Ms. C) had reason to believe that one of the jurors (Mr. B.K.) prejudged the defendant based upon the defendant's courtroom demeanor and interpreted some comments attributed to Mr. B.K. as being racially motivated. Mr. K. and Mr. H. are jurors of African-American descent. (Transcript, April 29, 2003, pages 26-27.)
Mr. N has no recollection about anything inappropriate being communicated during deliberations. Mr. N has no reason to believe his decision on the Failure to Appear charge was based upon inappropriate information.
Ms. R recalls that one of the jurors (Mr. B.K.) commented on the defendant's courtroom behavior and that Ms. R interpreted these comments to be racially based. Ms. R could not recall any of these comments. Ms. R testified that none of these comments effected her verdict on the failure to appear charge.
Mr. H testified that Mr. B.K. was set in his ways and directed some racial remarks to Mr. H. Mr. H believed Mr. B.K.'s mind was made up when Mr. B.K. made statements relevant to the defendant's courtroom demeanor. Mr. H could not be specific as to any racial remarks directed at him (Mr. H) but he did recall B.K. in reference to an alleged accomplice of the defendant being of Puerto Rican descent and Mr. B.K. saying words to the effect, "you know how those people are; how they treat their women . . ." Mr. H testified that Mr. B.K. said that he, B.K., knew the defendant was guilty when he first saw him based on the defendant's demeanor in court. Mr. H categorized that as "being prejudiced. It may not be a racial prejudice, but it's a prejudice." Mr. H did testify that he made a mistake by compromising on the failure to appear charge.
Mr. K testified that Mr. B.K. rendered opinions and did not offer a factual basis for those opinions. Mr. K testified that Mr. B.K. made comments that Mr. K interpreted as having racial undertones. Mr. K could not be more explicit. Mr. K did testify that his verdict was based upon his interpretations of the evidence and the law.
Mr. B.K. did testify and related that there were vague threats directed toward him by other jurors. Mr. B.K. did admit that two members of the jury called him racist. Mr. B.K. likewise was of the opinion that there were racial undertones to the deliberations. Mr. B.K. did indicate that he commented upon the defendant's courtroom behavior and he could not comprehend how some may have interpreted his comments as being racially motivated. Mr. B.K. stands on his verdict on the failure to appear charge.
Ms. C the foreperson; testified that it was her opinion that Mr. B.K. did not enter the jury room with an open mind. Ms. C indicated there were comments made in the jury room that she believed were inappropriate and "somewhat of a racial nature . . ." As a basis for these conclusions Ms. C pointed to Mr. B.K.'s comments of the defendant's courtroom behavior. Ms. C. interpreted Mr. B.K.'s comments as demonstrating a racial bias. Ms. C stands by her verdict on the failure to appear charge.
The subject of the jurors' criticisms (Mr. B.K.) likewise believed there were racial undertones to the deliberations and that vague threats were directed toward him.
The court finds the testimony of each of the jurors credible for the purposes of this inquiry.
V. DISCUSSION
Counsel for the defendant has raised a claim of juror misconduct. A trial court must, when presented with any allegations of juror misconduct, conduct a preliminary inquiry, sua sponte if necessary, in order to assure itself that a defendant's constitutional right to a trial before an impartial jury has been fully protected. The form and scope of such an inquiry are to be determined by the trial court within the exercise of its discretion. State v. Brown, 235 Conn. 502, 528-29 (1995).
In Brown the Connecticut Supreme Court held that "a trial court must conduct a preliminary inquiry on the record, whenever it is presented with any allegations of jury misconduct in a criminal case, regardless of whether an inquiry is requested by counsel." Id., 526 n. 27.
In State v. Santiago, 245 Conn. 301 (1998), our Supreme Court required an expanded inquiry by the trial court when an allegation of racial bias on the part of a juror is raised, "the trial court should conduct a more extensive inquiry than that prescribed in Brown. Such inquiry should include, at a minimum, an extensive inquiry of the person reporting the conduct, to include the context of the remarks, an interview with any persons likely to have been a witness to the alleged conduct, and the juror alleged to have made the remarks." Id., 340.
When the defendant raised the claim of racial motivation by a juror the court did conduct an evidentiary hearing. The court interviewed each juror separately in open court outside the presence of the other jurors. Counsel was accorded an opportunity to put questions to the respective jurors through the court. When the court concluded its inquiry of each juror the juror was excused and discharged and did not re-join the jurors awaiting to be questioned. Generally, the court posed the same questions to each of the jurors.
Early in our jurisprudence in Connecticut relevant to the inquiry into jury deliberations, our Supreme Court did approve of the rule adopted by Lord Mansfield in Vaise v. Deleval, 1 T.R. 11 (K.B. 1785), that evidence of juror misconduct or mistake could not be received from a juror to set aside his own verdict. State v. Freeman, 5 Conn. 348, 350, 352. As noted in State v. Freeman, supra, 351-52, "the various policies behind the rule were to give stability to the verdicts of jurors, to minimize the temptation for jury tampering, and to prevent inquisition into the arguments and reasoning of the jurors that go into their ultimate verdict."
Over the years our case law has rejected the broad prohibition of the so-called Mansfield rule and has devised a narrower rule which serves the policies, articulated for the support of the Mansfield rule, equally well.
It has firmly been established in this state that a juror is no longer incompetent to testify in an attempt to impeach the verdict rendered in either a civil or criminal case. Josephson v. Meyers, 180 Conn. 302, 310 (1980).
In any claim of juror misconduct our case law has divided the nature of the inquiry as 1) that evidence which essentially inheres in the verdict and cannot be inquired into, and 2) that evidence which is in the nature of extraneous influences and is subject to inquiry.
That evidence which essentially inheres in the verdict excludes, as immaterial, evidence as to the expressions and arguments of the jurors in their deliberations and evidence as to their own motives, beliefs, mistakes and mental operations generally, in arriving at their verdict. (Citations omitted). "That rule has been aptly described as applying the parol evidence rule to a jury's verdict, so that their outward verdict as finally and formally made, and not their prior and private intentions, is taken as exclusively constituting the act." (Citations omitted.) Aillon, supra, 550.
Our Supreme Court went on to state in Aillon: "Accordingly, it is today universally agreed that on a motion to set aside a verdict and grant a new trial the verdict cannot be affected, favorably or unfavorably, by the circumstances: that one or more jurors misunderstood the judge's instructions: or were influenced by an illegal paper or an improper remark of a fellow juror; or assented because of a weariness or illness or importunities; or assented under an erroneous belief that the judge would use clemency or have the legal right to vary the sentence; or had been influenced by inadmissible evidence; or had decided upon grounds which rendered newly discovered evidence immaterial; or had omitted to consider important evidence or issues; or had miscalculated accounts by errors of fact or of law; or had by any other motive or belief been led to their decision." Aillon, supra, 550 f.n. 3 (citations omitted; emphasis added).
Although not quoted in Aillon, the court in Wright (upon which Aillon relies, see infra page 18) stated further "that such affidavit to avoid the verdict may not be received to show any matter which does essentially inhere in the verdict itself, as that the juror did not assent to the verdict; that he misunderstood the instructions of the court; the statement of the witnesses or the pleadings in the case; that he was unduly influenced by the statements or otherwise of his fellow jurors, or mistaken in his calculations or judgment, or other matter resting alone in the juror's breast." (Emphasis omitted and new emphasis added.) Josephson, supra, 310-11.
"On the other hand, the rule does not prohibit juror testimony regarding the failure to obey certain essential formalities of juror conduct, i.e., irregularities and misconduct extraneous to the mental operations of the jury." (Citations omitted.) Id.
Adopting a rule which applies the parol evidence rule to a jury's verdict, the court in Aillon, quoting from Wright v. Illinois Mississippi Telegraph Co., 20 Iowa 195, 210, stated "[t]hat affidavits of jurors may be received for the purpose of avoiding a verdict, to show any matter occurring during the trial or in the jury room, which does not essentially inhere in the verdict itself, as that a juror was improperly approached by a party, his agent, or attorney; that witnesses or others conversed as to the fact or merits of the cause, out of court and in the presence of jurors; that the verdict was determined by aggregation and average or by lot, or game of chance or other artifice or improper manner." See Josephson v. Meyers, supra, 310. (Emphasis added.)
"It is well established, however, that not every incident of juror misconduct requires a new trial." State v. Newsome, 238 Conn. 588, 627, 682, A.2d 972 (1996). "[D]ue process seeks to assure a defendant a fair trial, not a perfect one . . . [T]he constitution does not require a new trial every time a juror has been placed in a potentially compromising situation . . . [because] it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote." (Internal quotation marks omitted.) State v. Tomasko, 242 Conn. 505, 513, 700 A.3d 28 (1997). "The question is whether or not the misconduct has prejudiced the defendant to the extent that he has not received a fair trial . . . 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 . . . We have previously held that, in cases where the trial court is directly implicated in juror misconduct, the state bears the burden of proving that misconduct was harmless error . . . Where, however, the trial court was in no way responsible for the juror misconduct . . . we have repeatedly held that a defendant who offers proof of juror misconduct bears the burden of proving that actual prejudice resulted from that misconduct." (Citations omitted; internal quotation marks omitted.) State v. Newsome, supra, 628. State v. Rhodes, supra, 47.
"Jury impartiality is a core requirement of the right to trial by jury guaranteed by the constitution of Connecticut, article first, § 8, and by the sixth amendment to the United States constitution. . . . [T]he right to a jury trial guarantees to the criminally accused a fair trial by a panel of impartial, indifferent jurors . . . The modern jury is regarded as an institution in our justice system that determines the case solely on the basis of the evidence and arguments given [it] in the adversary arena after proper instructions on the law by the court." (Internal quotation marks omitted.) State v. Santiago, supra, 330 (1998).
The Connecticut constitution, article first, § 8, as amended by article seventeen of the amendments, provides in relevant part: "In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by information, to a speedy, public trial by an impartial jury . . ."
The sixth amendment to the United States constitution provides in relevant part: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . ."
The court is mindful of the gravity of any claim of racial bias attributed to any juror. As our Supreme Court has very aptly stated: "[I]t is the jury that is a criminal defendant's fundamental `protection of life and liberty against race or color prejudice.'" (Citations omitted.) Accordingly, an allegation that a juror is racially biased "strikes at the heart of the [defendant's] right to a trial by an impartial jury and the right to equal protection." (Citations omitted.) In addition, public confidence in the fair administration of justice is undermined if such allegations are not thoroughly investigated and questioned. "Discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice." (Citations omitted.) State v. Santiago, supra, 334-35.
Our Supreme Court in State v. Mukhtaar, 253 Conn. 280, 297, stated, "[U]ltimately, however, `[t]o succeed on a claim of [juror] bias the defendant must raise his contention of bias from the realm of speculation to the realm of fact.'" (Internal quotation marks omitted.) Citing State v. Myers, 242 Conn. 125, 141, 698 A.2d 823 (1997).
In the matter before this court, the trial court is not implicated in the defendant's charge of juror misconduct and, therefore, the defendant bears not only the burden of proving misconduct but also the burden of proving the prejudicial impact of that misconduct.
It appears that a substantial basis for the jurors' concern was the fact that Mr. B.K. was attentive to the defendant's courtroom demeanor and interaction with his counsel during the trial. Based upon these observations Mr. B.K. made certain inferences and informed his colleagues of same during deliberations. Some interpreted these comments as demonstrating Mr. B.K.'s ignorance, others believed the comments demonstrated a racial bias. The jurors (except for Mr. N and B.K.) were generally of the belief that any comment upon defendant's courtroom behavior was inappropriate and went outside the evidence.
It is clear to this court that the inferences Mr. B.K. made as a result of his observations of the defendant's courtroom behavior were expressions of opinion and not statements of fact. Juror Mr. K. commented that no facts were presented by Mr. B.K. to explain the opinions Mr. B.K. expressed. "Mere expression of opinion, as opposed to positive expression of facts, does not warrant a mistrial. Even where a juror has formed some preconceived opinion as to the guilt of an accused, a juror is sufficiently impartial if he or she can set aside that opinion and render a verdict based on the evidence in the case." (Internal quotation marks omitted, citation omitted.) "It is enough if a juror is able to . . . decide the case on the evidence presented and the instructions given by the court." (Citation omitted.) Anderson, supra, 438.
The court found each of the jurors to be credible. Although several of the jurors had reason to believe that one of their colleagues espoused preconceived notions of the defendant's guilt, there is nothing in the evidence to suggest that their individual verdict was based on anything other than the facts and the law presented in the orderly course of the trial.
The comments attributed to Mr. B.K. during deliberations are in the nature of that which essentially inheres in the verdict. Whatever was said by Mr. B.K., there is no evidence that any comments attributed to Mr. B.K. compromised the jury in any way.
VI. CONCLUSION
As our Supreme Court stated in defining the prejudice that must be demonstrated: "[A] 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 . . ." State v. Rhodes, 248 Conn. 39, 47. There has been no such showing in the instant matter.
As was said earlier, it is settled in our law that a defendant who offers proof of juror misconduct bears the burden of proving actual prejudice resulted from that misconduct.
The defendant has failed to carry his burden of proof that actual prejudice has taken place.
The Motion for a New Trial based on a claim of juror bias is DENIED.
The instant matter has been pending for a protracted period. The delay, in part, is attributed to the Court's granting multiple extensions of time in order to allow the defendant to file his memorandum of law (Defendant's Memorandum of Law on the Issue of Juror Bias) which was filed on August 22, 2003.