State v. Jones ( 2014 )

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STATE v. JONES—CONCURRENCE
McDONALD, J., concurring. I concur in the judgment
of the majority affirming the judgment of the Appellate
Court, and I join in parts I A and II of the majority
opinion. With respect to part I B, I agree with the major-
ity that the trial court has discretion, pursuant to its
inherent authority to manage the trial process, to deter-
mine how and where the jury shall study an exhibit
during its deliberations. I write separately, however,
because I disagree with the majority’s conclusion that
the trial court properly exercised its discretion in this
case when it determined that the jury would have to
review an exhibit of a digital video recording (video)
in open court because there was no equipment in the
jury room for reviewing such videos. Instead, I would
conclude that the trial court abused its discretion
because the record reveals that the trial court did not
make any effort to determine if the proper equipment
could be secured in order for the jury to review the
video in private. Nevertheless, I would conclude that
the trial court’s error was harmless and, therefore, that
the Appellate Court’s judgment should stand. Accord-
ingly, I concur in the judgment.
The majority concludes that the trial court properly
exercised its discretion in this case because the request
by the defendant, William T. Jones, to have suitable
equipment made available to the jury, and the lack of
basic trial technology in the courthouse ‘‘to play the
video in the jury room left the trial court with little
choice but to require the jury to view the video in open
court.’’ Notwithstanding the fact that the video was
introduced as an exhibit by the state at trial,1 the major-
ity faults the defendant for not procuring any equipment
to facilitate the jury’s review of the video in the jury
room, as the state’s laptop computer used to play the
video during trial could not properly be sent into the
jury room because it contained information not admit-
ted into evidence. Therefore, the majority posits that
the trial court was under no obligation to delay delibera-
tions while the court or the parties secured equipment
needed to play the video in the jury room. Unlike the
majority, I believe that despite the timing of the defen-
dant’s request, the trial court abused its discretion
because the trial court did not make any effort to find
a way for the jury to review the video in the jury room
other than asking the state if its laptop was clean.2 The
trial court could have asked its clerk to undertake a
basic inquiry as to whether the proper equipment to
play the video was available somewhere else in the
courthouse, or whether it could be readily secured by
court operations staff members. Alternatively, the trial
court could have asked whether either party had the
ability to find alternative equipment and to provide it
within a reasonable period of time.3 It did not pursue
any of these options. Instead, the trial court simply
stated that it did not ‘‘have anything to send into them
for them to play the video,’’ and asked whether the
state’s laptop was clean. Therefore, the majority’s asser-
tion that the trial court was left with ‘‘little choice’’ but
to require the jury to review the video in open court is
not predicated upon any facts in the record. See United
States v. Saunders, 553 F.3d 81, 87 (1st Cir.) (holding
trial court did not commit error in proposing that jury
review audio and video exhibits in courtroom when
technical difficulties arose with prosecutor’s clean lap-
top because ‘‘the judge worked diligently to cause the
requested materials to be provided to the jury,’’ and
‘‘moved expeditiously’’ when problem arose), cert.
denied, 558 U.S. 864, 130 S. Ct. 170, 175 L. Ed. 2d 108
(2009); United States v. Rose, 522 F.3d 710, 715 (6th Cir.)
(approving of trial court’s decision to convert digital
recording to compact disc format so jury could listen
to admitted evidence in privacy of jury room), cert.
denied, 555 U.S. 890, 129 S. Ct. 194, 172 L. Ed. 2d 155
(2008). Like the majority, I recognize that it may not
be feasible for a jury to review some types of exhibits
in the privacy of the jury room, such as toxic substances
or unusually large exhibits, or even video or audio tapes
where they contain other material that has been
excluded as part of the relevant evidence. The concerns,
however, associated with such exhibits, namely, that
due to their very nature or content they cannot fit or
be safely utilized in the jury room, were not present in
this case. Accordingly, I would conclude that the trial
court abused its discretion in making its determination
without undertaking any effort to make suitable
arrangements to allow the jury to review and discuss
the video in the privacy of the jury room.
Furthermore, although I hereinafter conclude that
the trial court’s error was harmless, I agree with the
defendant’s observation that requiring the jury to review
a recorded exhibit such as the one in the present case
in open court could impede the jury deliberation pro-
cess, as jurors would be hindered in closely examining
and contemporaneously discussing the evidence among
themselves due to the presence of the judge, counsel,
members of the public audience, and the defendant.
See State v. West, 274 Conn. 605, 650, 877 A.2d 787 (‘‘the
primary if not exclusive purpose of jury privacy and
secrecy is to protect the jury’s deliberations from
improper influence’’ [internal quotation marks omit-
ted]), cert. denied, 546 U.S. 1049, 126 S. Ct. 775, 163 L.
Ed. 2d 601 (2005); Clark v. Whitaker, 18 Conn. 543,
549 (1847) (courts ‘‘must repel every foreign influence,
which may affect the minds of the jury’’); see also John-
son v. Duckworth, 650 F.2d 122, 125 (7th Cir.) (‘‘jury
privacy is not a constitutional end in itself; it is, rather,
a means of ensuring the integrity of the jury trial’’),
cert. denied, 454 U.S. 867, 102 S. Ct. 332, 70 L. Ed. 2d
169 (1981). I believe that requiring the jury to review
the video that was admitted into evidence in the present
case in open court and then return to the jury room to
deliberate is more than ‘‘perhaps a little more burden-
some,’’ as the majority asserts. The jury’s ability to
review evidence and contemporaneously discuss it,
rewind it, pause it or otherwise scrutinize it is an invalu-
able part of our judicial process and should not be
understated. The jury certainly should not be compelled
to conduct its business in open court where courtroom
attendees would be able to observe the jury’s delibera-
tive process. Because of this understanding, our courts
have a long-standing practice of providing all exhibits
to juries to review in the privacy of the jury room. See,
e.g., State v. Wood, 208 Conn. 125, 129–30, 545 A.2d
1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L.
Ed. 2d 225 (1988); Capone v. Sloan, 149 Conn. 538, 544,
182 A.2d 414 (1962); State v. Wallace, 78 Conn. 677, 678,
63 A. 448 (1906).
Having concluded that the trial court abused its dis-
cretion in failing to make any effort to provide the jury
with the video and with the equipment needed in order
to watch it in the privacy of the jury room, I now exam-
ine whether this error was harmful.4 ‘‘When an improper
evidentiary ruling is not constitutional in nature, the
defendant bears the burden of demonstrating that the
error was harmful. . . . [W]hether [an improper ruling]
is harmless in a particular case depends upon a number
of factors, such as the importance of the witness’ testi-
mony in the prosecution’s case, whether the testimony
was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the wit-
ness on material points, the extent of cross-examination
otherwise permitted, and, of course, the overall strength
of the prosecution’s case. . . . Most importantly, we
must examine the impact of the . . . evidence on the
trier of fact and the result of the trial. . . . [T]he proper
standard for determining whether an erroneous eviden-
tiary ruling is harmless should be whether the jury’s
verdict was substantially swayed by the error. . . .
Accordingly, a nonconstitutional error is harmless
when an appellate court has a fair assurance that the
error did not substantially affect the verdict.’’ (Internal
quotation marks omitted.) State v. Favoccia, 306 Conn.
770, 808–809, 51 A.3d 1002 (2012).
The defendant argues that the trial court’s error was
harmful because the video was central to his defense
in that it contradicted Officer Christian Rodriguez’ testi-
mony that he fired at the defendant’s motor vehicle, a
Dodge Charger, as it ran over his foot. The defendant
claims that the procedure for reviewing the video likely
affected the weight the jury placed on the contents
of the video and thus substantially affected the jury’s
verdict because: (1) the jury was unable to review the
video up close, under its control, and on a small screen;
and (2) there was an additional burden on the jury of
having to come into the courtroom to review the video
without being able to discuss it simultaneously. In
response, the state argues that any error by the trial
court was harmless because there is nothing in the
record to indicate that the jury had any desire to review
the video during its deliberations and the jury viewed
the video during the trial eight times in its entirety and
viewed selected portions of the video approximately
eight additional times. The state further notes that the
defendant was able to use the video during his cross-
examination of all three officers involved in the accident
to exploit his claimed discrepancy in Rodriguez’ testi-
mony, and that he had also replayed the video during
his summation of his theory that Rodriguez had lied
about how he was injured. Lastly, the state argues that
the error was harmless because its case against the
defendant was strong for the following reasons: (1)
the state corroborated Rodriguez’ testimony that the
defendant’s Charger ran over his foot with the testimony
of Officer Jose Rivera, who heard Rodriguez cry out in
pain and saw him limping away as the Charger sped
away; (2) an independent witness heard the gunfire,
looked out his office window, and saw Rodriguez ‘‘hob-
bling’’ back toward his vehicle; (3) Rodriguez was taken
to the hospital, treated for a ‘‘crush’’ injury and placed
on light duty for one month; (4) the defendant fled the
scene, and eventually was apprehended in Rochester,
New York; and (5) the defendant made a request to
another person that she misreport that the Charger had
been stolen.
I agree with the state. Although the video should have
been given to the jury to review in the privacy of the
jury room, the defendant has not shown that its exclu-
sion had a substantial impact on the jury’s verdict.
Despite being given the opportunity to review the video
in open court, the jury never asked to do so. Further,
given the short length of the video and the numerous
opportunities that the jury had to view it during trial,
the defendant has not provided this court with a fair
assurance that the inability to review the video in the
privacy of the jury room substantially affected the ver-
dict. Notably, the state’s case was strong. The state
presented testimony of multiple witnesses to corrobo-
rate Rodriguez’ account that the defendant’s Charger
ran over his foot, and the defendant’s actions following
the incident further weigh in favor of the strength of the
state’s case against the defendant. Therefore, I would
conclude that it is doubtful that the jury’s inability to
watch the video in the privacy of the jury room influ-
enced the jury’s verdict in any appreciable way.
I therefore respectfully concur in the judgment.
1
The lack of basic trial practice technology in our courtrooms is remark-
able. Until our state courts begin to approach the level of technological
capabilities that are available in the federal courts in Connecticut, it is my
opinion that the proponent of the evidence should be required to provide
the means by which an exhibit can be reviewed in the jury room in the
same manner as he or she presented it during the trial. In other words, the
proponent of video evidence should provide the jury with the proper play-
back equipment. Such a bright line rule would provide clear guidance to
our state’s courts and members of the bar, and, as a result, would avoid
the very problem that is present in this case. In this increasingly modern
era where digital exhibits are becoming more prevalent, the lack of proper
equipment for such evidence impedes the well established ‘‘policy of the
law that every tribunal for the trial of civil or criminal causes should have
open to it the best legitimate means of acquiring such knowledge of the
law and the facts as will enable it to decide the cases before it fairly and
intelligently.’’ (Internal quotation marks omitted.) State v. Gould, 241 Conn.
1, 13, 695 A.2d 1022 (1997). I agree with the majority, however, that the
creation of such a bright line rule is best left to the Rules Committee of the
Superior Court, which is vested with the power to establish rules of proce-
dure for our trial courts. See, e.g., Statewide Grievance Committee v. Spirer,
247 Conn. 762, 779, 725 A.2d 948 (1999); Oakley v. Commission on Human
Rights & Opportunities, 237 Conn. 28, 30, 675 A.2d 851 (1996).
2
The defendant summarily asks this court, without any analysis or citation
to relevant authority, to consider whether the trial court’s withholding of
the video from the jury room violated his constitutional rights to a fair trial
and due process. As the Appellate Court noted; see State v. Jones, 140 Conn.
App. 455, 460 n.1, 59 A.3d 320 (2013); and the defendant appears to concede
to this court, these claims were not preserved at trial. As such, not only is
this court ‘‘not required to review issues that have been improperly presented
to this court through an inadequate brief’’; (internal quotation marks omitted)
Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 300 n.9, 852 A.2d
703 (2004); but the defendant has failed to show that his claim even remotely
satisfies the four prongs of State v. Golding, 213 Conn. 233, 239–40, 567
A.2d 823 (1989). Accordingly, I decline to review the defendant’s constitu-
tional claim. See State v. Osbourne, 138 Conn. App. 518, 539–40, 53 A.3d
284 (holding defendant’s claim that trial court improperly restricted viewing
of video exhibit to courtroom during deliberations failed to meet second
prong of Golding and was not manifest injustice constituting plain error),
cert. denied, 307 Conn. 937, 56 A.3d 716 (2012).
3
The record is unclear as to whether a computer was required to play
the video or if it could have simply been played in a digital video disc player.
As noted by the majority and the Appellate Court; see footnote 2 of the
majority opinion; State v. Jones, 140 Conn. App. 455, 462 n.2, 59 A.3d 320
(2013); the following exchange took place during the predeliberation collo-
quy between the court and the parties:
‘‘The Court: Well, my con—they need—they need—would need the laptop
to play the video, is—right? I assume that’s right, correct?
‘‘[The Prosecutor]: Uh, hum.
‘‘The Court: Is—is the—and I—does the laptop have any—other stuff on
it besides the video?
‘‘[The Prosecutor]: Yes.’’ (Internal quotation marks omitted.) State v.
Jones, supra, 462 n.2.
On appeal to this court, neither party makes an argument that a specific
piece of equipment was necessary to play the video. In light of my conclusion
that the trial court abused its discretion due to its apparent lack of effort
to accommodate the jury, the exact nature of the equipment needed to
review the video is not critical to the resolution of this appeal.
4
The defendant contends that allowing only for the replaying of the video
in the courtroom in front of the court, both attorneys, and the defendant
constituted structural error. This contention is without merit because not
only does the defendant fail to show that his claim is of constitutional
magnitude, he also has failed to show how the trial court’s error infected
the entire trial process through extrinsic factors. See State v. Latour, 276
Conn. 399, 411, 886 A.2d 404 (2005) (‘‘[Structural error] cases do not involve
trial error occurring during the presentation of the case to the jury but
involve extrinsic factors not occurring in the courtroom. . . . These cases
recognize that violation of some constitutional rights, such as the right to
a trial by an impartial jury, may require reversal without regard to the
evidence in the particular case.’’); see also Vasquez v. Hillery, 474 U.S. 254,
263–64, 106 S. Ct. 617, 88 L. Ed. 2d 598 (1986) (structural error due to
systematic exclusion from grand jury of individuals based on race); Whitus
v. Georgia, 385 U.S. 545, 549–50, 87 S. Ct. 643, 17 L. Ed. 2d 599 (1967)
(structural error due to purposeful discrimination in selection of jurors);
Tumey v. Ohio, 273 U.S. 510, 535, 47 S. Ct. 437, 71 L. Ed. 749 (1927) (structural
error when judge has financial interest in outcome of trial).