State v. Jones ( 2014 )

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STATE OF CONNECTICUT v. WILLIAM T. JONES
(SC 19117)
Rogers, C. J., and Palmer, Zarella, McDonald, Espinosa and Robinson, Js.
Argued February 24—officially released November 11, 2014
Lisa J. Steele, assigned counsel, for the appellant
(defendant).
Robert J. Scheinblum, senior assistant state’s attor-
ney, with whom, on the brief, were Michael Dearington,
state’s attorney, and Mary Elizabeth Baran, former
senior assistant state’s attorney, for the appellee (state).
Opinion
ROBINSON, J. Practice Book § 42-23 (a) requires that
a trial court ‘‘shall submit to the jury . . . [a]ll exhibits
received in evidence’’ for review during its delibera-
tions. In this certified appeal, we consider whether a
trial court may, consistent with Practice Book § 42-23
(a), require that a jury watch a digital video exhibit in
open court during its deliberations rather than provid-
ing the jury with the equipment needed to watch the
video in the privacy of the jury room. The defendant,
William T. Jones, appeals, upon our grant of his petition
for certification,1 from the judgment of the Appellate
Court affirming the trial court’s judgment of conviction,
rendered after a jury trial, of assault of public safety
personnel in violation of General Statutes § 53a-167c
and engaging police in pursuit in violation of General
Statutes § 14-223 (b). State v. Jones, 140 Conn. App.
455, 59 A.3d 320 (2013). The trial court in this case
determined that it did not have access to equipment
needed to play the video in the jury room during deliber-
ations, so it required the jury, if it chose to watch the
video again, to view it in open court. The defendant
claims that the Appellate Court improperly concluded
that this procedure complied with the mandate, set
forth in Practice Book § 42-23 (a), that the trial court
‘‘shall submit’’ exhibits to the jury. We conclude that
Practice Book § 42-23 (a) requires a trial court to make
exhibits available for the jury’s use during deliberations,
but that a trial court has discretion, pursuant to its
inherent authority to manage the trial process, to deter-
mine the means by which the jury reviews submitted
evidence. Accordingly, we affirm the judgment of the
Appellate Court.
The following facts and procedural history are rele-
vant to the present appeal. Meriden police officers
stopped the defendant’s car after observing what the
officers believed was a narcotics transaction involving
the defendant. Shortly after stopping the car, and as
the officers approached it on foot, the defendant drove
away, running over an officer’s foot. That officer, who
had previously drawn his firearm, fired two shots at
the defendant’s car as it sped away. Police were unable
to catch up with the defendant that day, but the defen-
dant was later arrested in New York on a fugitive war-
rant. The state ultimately charged the defendant with
second degree assault in violation of General Statutes
§ 53a-60 (a) (2), assault of public safety personnel in
violation of § 53a-167c, and engaging police in pursuit
in violation of § 14-223 (b).
At the defendant’s trial, the state introduced, as an
exhibit, a DVD containing a recording from a camera
mounted inside one of the police cars present at the
stop of the defendant’s car. The camera, which was not
pointed directly at the defendant’s car, did not record
the stop or the assault, but did capture the defendant’s
car driving away and recorded the sound from the
two gunshots.
Both parties used the video during the trial. The par-
ties played the entire video for the jury a combined
total of eight times, and played portions of the video
about eight more times. Both parties also used it during
each of their closing arguments. The defendant used
the video principally to contradict the injured officer’s
testimony that he fired at the defendant’s car as it ran
over his foot. The video shows that no one was near
the defendant’s car when the shots are heard in the
recording, so the defendant used the video to attack
the testifying officer’s credibility. In response, the state
argued that the video captured only a portion of the
stop and that other evidence confirmed that the assault
took place, even if not at the exact time the injured
officer thought that it had occurred.
On the morning of the day the jury began its delibera-
tions, the defendant’s counsel asked the trial court, for
the first time, whether the jury would be able to view
the video in the jury room during its deliberations. The
trial court responded that it did not have any equipment
to allow a viewing in the jury room. During the trial,
the parties had used a laptop computer and a projector
belonging to the prosecutor to play the video, but the
trial court determined that it could not provide the
computer to the jury because it contained other infor-
mation not admitted into evidence. The trial court
instead determined that it would instruct the jury that
it could view the video in the courtroom, with the court
and counsel present, by sending out a note.2 The trial
court later gave this instruction to the jury and sent
them to deliberate.3 The jury did not ask to see the video.
The jury deliberated for about an hour and then
returned a verdict finding the defendant guilty of assault
of public safety personnel and engaging police in pur-
suit, but acquitting him on the charge of second
degree assault.
At sentencing, the defendant raised concerns about
the manner in which the trial court made the video
available to the jury and later moved for judgment of
acquittal and a new trial. He argued that requiring the
jury to view the video in the courtroom ‘‘unfairly and
unduly reduced [the jury’s] ability to freely discuss the
facts of the case . . . .’’ The trial court denied the
motion. The trial court explained that it had no means
to facilitate the jury’s viewing of the video inside the
jury room and determined that the jury had sufficient
opportunity to watch the video in open court, if it had
chosen to do so. The trial court concluded that the
defendant therefore suffered no prejudice and declined
to set aside the defendant’s conviction. Thereafter, the
trial court sentenced the defendant to a total effective
sentence of seventy-eight months imprisonment.
The defendant appealed from the trial court’s judg-
ment of conviction to the Appellate Court. State v.
Jones, supra, 140 Conn. App. 455. The defendant
claimed, among other things, that the trial court’s ruling
that the jury could view the video in open court, rather
than in the jury deliberation room, violated Practice
Book § 42-23 (a). Id., 459. The Appellate Court dis-
agreed, concluding that the trial court has inherent
authority to use its discretion to managing the trial
process and that the trial court in this case did not abuse
its discretion given the late notice of the defendant’s
concern and the unavailability of technology needed to
view the video in the jury room. Id., 464–66. This certi-
fied appeal followed.
On appeal, the defendant claims that command that
the trial court ‘‘shall submit’’ all full exhibits to the jury
set forth in Practice Book § 42-23 (a) requires that the
jury be allowed to review the exhibits in the privacy of
the jury room. According to the defendant, this required
the trial court (or the state) to provide the jury with
equipment necessary to view a DVD. Because the trial
court failed to do this, the defendant argues that it acted
improperly, requiring a new trial. The defendant further
asks us to interpret § 42-23 (a) to require, as a bright
line rule, that the party offering an exhibit into evidence
must also provide the jury with any equipment needed
to review that evidence privately, in the jury room.
The state disagrees with the defendant’s assertion
that the trial court acted improperly and balks at the
defendant’s proposed bright line interpretation of § 42-
23 (a). According to the state, the rule’s command that
the trial court ‘‘shall submit’’ exhibits to the jury requires
only that the court give the jury the opportunity to study
or consider the exhibit. Because the trial court has the
inherent discretion to manage the proceedings before
it, the state argues that the trial court may determine
where and how the jury reviews submitted exhibits.
Alternatively, the state asserts that even if the trial
court’s order violated § 42-23 (a), this did not prejudice
the defendant and was, therefore, harmless error.
Finally, the state objects to the defendant’s request for a
bright line rule. It argues that the diverse and constantly
evolving types of digital evidence, and the equipment
used to view that evidence, each raise unique considera-
tions. The state, therefore, urges us to leave any rule
making on this topic to the Rules Committee of the
Superior Court, which is better suited to consider the
many issues that are raised by new and various types
of evidence.
For the reasons stated subsequently in this opinion,
we conclude that, although Practice Book § 42-23 (a)
requires trial courts to submit exhibits to the jury, that
section does not control the manner in which exhibits
must be submitted, and that the trial court retains dis-
cretion to determine the manner in which the jury exam-
ines submitted exhibits. We also decline to adopt the
defendant’s proposed bright line rule.
I
Our interpretation of Practice Book § 42-23 (a)
requires us to determine: (1) whether the trial court
submitted the exhibit to the jury as required by § 42-
23; and (2) if the exhibit was submitted, whether the
trial court abused its discretion to manage the trial
process when it decided the jury could view the submit-
ted evidence in open court. We address these questions
in turn.
A
We turn first to the language of the rule of practice
at issue, noting our standard of review at the outset.
Our interpretation of the rules of practice is a question
of law subject to plenary review. State v. Heredia, 310
Conn. 742, 755, 81 A.3d 1163 (2013). We interpret rules
of practice in the same manner that we construe stat-
utes. Id. We previously have set forth the principles
that govern our interpretation. Id. As with statutes, if
the text of a Practice Book provision and an analysis
of its relationship to other related provisions yield a
plain and unambiguous meaning, we apply that meaning
to the case before us. Id., 755–56.
Practice Book § 42-23 (a) requires a trial court to
make trial exhibits available for consideration or study
by the jury. Section 42-23 (a) provides in relevant part:
‘‘The judicial authority shall submit to the jury . . . (2)
All exhibits received in evidence.’’ This section does not
define the term ‘‘submit.’’ That term’s ordinary meaning,
according to its dictionary definition, is ‘‘to send or
commit for consideration, study, or decision’’ or ‘‘to
present or make available for use or study . . . .’’ Web-
ster’s Third New International Dictionary (1993). Under
this meaning of ‘‘submit,’’ together with the definitive
word ‘‘shall,’’ which both parties agree is a mandatory
command in this context,4 § 42-23 (a) unambiguously
requires that a jury be allowed to study and consider
all trial exhibits. Trial courts thus lack discretion to
deny the jury a meaningful opportunity to study and
consider an exhibit during its deliberations.
Using this interpretation, we conclude that the trial
court submitted the exhibit to the jury, in compliance
with Practice Book § 42-23 (a), by making it available
for review in open court.5 There is no evidence in the
record that the jury would have been unable to use or
study the DVD’s contents or that the deliberation pro-
cess was impaired in any way by using the trial court’s
chosen procedure. Notably, the trial court’s procedure
is identical to the procedure that we expressly approved
for submitting videotaped deposition testimony for
review during deliberations. See State v. Gould, 241
Conn. 1, 14–15, 695 A.2d 1022 (1997). Accordingly, we
conclude the trial court complied with § 42-23 (a).
B
Our interpretation and application of Practice Book
§ 42-23 (a) does not end our inquiry, however, because
the text of that rule does not specifically prescribe
where or how a jury’s study of submitted exhibits must
take place. These questions are the focus of the defen-
dant’s claims on appeal. Given the silence of § 42-23
(a) on this point, we conclude that the trial court retains
discretion, pursuant to its inherent authority to manage
trials before it, to determine how and where the jury
shall study the exhibit. See Fattibene v. Kealey, 18 Conn.
App. 344, 359–60, 558 A.2d 677 (1989) (in absence of
rule of practice on point, trial court may rely on its
inherent authority to manage proceedings, including
authority to impose sanctions). We previously have
explained that a trial court has ‘‘the authority to manage
cases before it as necessary. . . . Deference is
afforded to the trial court in making case management
decisions because it is in a much better position to
determine the effect that a particular procedure will
have on both parties. . . . The case management
authority is an inherent power necessarily vested in
trial courts to manage their own affairs in order to
achieve the expeditious disposition of cases. . . . The
ability of trial judges to manage cases is essential to
judicial economy and justice.’’ (Internal quotation
marks omitted.) State v. Colon, 272 Conn. 106, 256, 864
A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S. Ct.
102, 163 L. Ed. 2d 116 (2005).
This authority extends to determining the means by
which the jury examines submitted exhibits. For exam-
ple, in Capone v. Sloan, 149 Conn. 538, 544–45, 182 A.2d
414 (1962), a trial court permitted the jury to use a ruler
to gauge distances on a map that the court had admitted
into evidence. This court concluded that determining
whether to permit the jury to use the ruler was a deci-
sion within the ‘‘sound discretion of the court’’ and that
the trial court had not abused that discretion. Id.; see
also State v. Wood, 208 Conn. 125, 129–30, 545 A.2d
1026 (trial court had discretion to allow party to provide
each juror with copy of single exhibit for easier review),
cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed. 2d
225 (1988); State v. Wallace, 78 Conn. 677, 678, 63 A.
448 (1906) (trial court had discretion to permit jury to
use magnifying glass to view photograph); cf. State v.
Gould, supra, 241 Conn. 15 (concluding that videotaped
depositions must be viewed in open court).
The manner in which the trial court should exercise
this discretion depends principally on the nature of the
exhibit and the risks posed by allowing the jury to
review the exhibit in the jury room. See State v. Gould,
supra, 241 Conn. 15 (nature of videotaped deposition
testimony, and danger that jury might give it greater
significance than trial testimony, requires that it be
played in open court). Most trial exhibits are easily
given to the jury and may be studied without external
aids. In such cases, these exhibits should be given to
the jury for its examination in the jury room. Our trial
courts have even given firearms and narcotics to juries
for their private review. See, e.g., State v. Rogers, 177
Conn. 379, 381, 418 A.2d 50 (1979); State v. Plaza, 23
Conn. App. 543, 550–52, 583 A.2d 925 (1990), cert.
denied, 217 Conn. 811, 587 A.2d 153 (1991). Other exhib-
its, however, present more complex considerations. For
example, toxic substances might present a danger to
jurors and require precautions to permit safe review by
the jurors. Unusually large exhibits might not allow for
examination inside a smaller jury room. Additionally,
some evidence, like the evidence in this case, might
require ancillary equipment for the jury to perceive
it in the manner intended.6 These concerns apply to
numerous types of electronic evidence, including digital
video and audio recordings, software, websites, and
unwieldy electronic documents or spreadsheets not
easily converted to a paper equivalent. For these trickier
exhibits, the trial court may use its discretion to craft
a solution that permits the jury a reasonable and fair
opportunity to study the exhibit at issue. Whether the
trial court has properly exercised its discretion will
depend on the particular circumstances presented by
each case.
We turn now to whether the manner in which the
trial court submitted the exhibit to the jury in the pre-
sent case amounted to an abuse of its discretion. We
conclude that the trial court acted properly under the
circumstances. The late request by the defendant and
the lack of readily available and suitable equipment 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. The defendant’s counsel did not offer
any equipment of his own and the laptop used to play
the video during trial could not properly be sent into
the jury room because it contained information not
admitted into evidence. In light of the lateness of the
defendant’s request, the trial court was under no obliga-
tion to delay deliberations, and keep the jury waiting
while the court or the parties searched for or purchased
clean equipment needed to play the DVD in the jury
room. Therefore, the trial court properly exercised its
discretion in this case.
The defendant claims, however, that the trial court
abused its discretion because requiring the jury to
review the video in open court in this case ‘‘relegated
[the video] to muteness’’ or ‘‘second-class status.’’ We
disagree.
First, the trial court did not render the video mute
because its order did not prevent the jury from
reviewing the video during deliberation; it simply
changed the location where the jury could view it. Sec-
ond, the trial court’s instruction mitigated the risk of
the jury singling out the video for less consideration
than other evidence by explaining to the jury that the
video was treated differently than other trial exhibits
only because of the lack of available playback equip-
ment. The trial court said nothing to discourage the
jury from viewing the video, nor did it indicate that the
jury should give the video any more or less weight than
other evidence.
The defendant cites cases from other jurisdictions in
support of his arguments, but those cases hold only
that a trial court may provide playback equipment to
the jury so that it can review an exhibit in the jury
room. See United States v. Rose, 522 F.3d 710, 714–15
(6th Cir. 2008); United States v. Bizanowicz, 745 F.2d
120, 123 (1st Cir. 1984); Arlton v. Schraut, 936 N.E.2d
831, 839–40 (Ind. App. 2010); State v. Castellanos, 132
Wash. 2d 94, 100–101, 935 P.2d 1353 (1997). In fact, one
of the defendant’s cited cases expressly endorses the
method used by the trial court here. See Arlton v.
Schraut, supra, 839 (‘‘[t]he trial court could also have
properly given the jury the videotape during delibera-
tions and allowed them to view the videotape in
open court’’).
The defendant also argues that the trial court’s
method improperly impeded the jury’s ability to view
and contemporaneously discuss the video in private by
requiring the video to be viewed in open court, before
counsel and the defendant. We agree that permitting
the jury to view exhibits in private is preferred, but the
trial court’s method in this case did not preclude the
jury from studying or considering the exhibit, as Prac-
tice Book § 42-23 (a) requires. Nothing in the trial
court’s instructions precluded the jury from discussing
the video in private, nor did the trial court require the
jury to discuss the video in open court, while watching
it. The jury was free to watch the video in court and
return to the jury room to discuss, and repeat if neces-
sary. For example, in State v. Osbourne, 138 Conn. App.
518, 539–41, 53 A.3d 284 (2012), the trial court required
the jury to view a video exhibit in open court. Using
this procedure, the jury viewed a video exhibit at least
twelve times during its deliberations and had the video
played back at various speeds and paused at certain
frames. Id., 536–37, 541.7 Although perhaps a little more
burdensome, this accommodation afforded the jury a
meaningful opportunity to view the video in court, but
deliberate about it in private. Accordingly, we conclude
that the trial court did not abuse its discretion.
II
Lastly, we address the defendant’s invitation to this
court to interpret Practice Book § 42-23 (a) to require
the proponent of any evidence also to provide any ancil-
lary equipment necessary for the jury to examine that
exhibit in the jury room. We decline the invitation.
The issues raised by the ever increasing prevalence
of digital evidence do not lend themselves to resolution
through the creation of a one size fits all solution made
in the context of a single appeal. To be sure, we strongly
believe that the best practice in these circumstances is
for the parties and the court to address this issue before
the trial to come up with a solution agreeable to all
involved—one that allows the jury to view submitted
evidence in the jury room. See Arlton v. Schraut, supra,
936 N.E.2d 840 (‘‘[i]deally, these issues should be dealt
with well before deliberations begin, even before trial,
so that the trial court does not have to scramble just
before deliberations trying to find a way to let the jury
access admitted digital evidence’’). The parties should
confer with one another in advance to determine which
exhibits, if any, will require equipment for the jury’s
use and to determine how that equipment will be pro-
cured and given to the jury. Any proposed solutions or
disputes should be presented to the trial court for its
review well in advance of jury deliberations. In light of
the long-standing practice of our courts to provide juries
all exhibits for their review in the privacy of the jury
room; see, e.g., Capone v. Sloan, supra, 149 Conn. 544;
the preferred option is for juries to receive all exhibits,
when feasible, in the jury room. Nevertheless, there are
those cases, such as this, when the circumstances will
not permit such a review. Numerous issues may arise
when it comes to providing the jury access to digital
evidence. These issues could include, for example,
whether the necessary equipment is available for use,
whether the parties can afford to provide the equip-
ment, whether the jury possesses the skills needed to
operate the equipment, and whether the jury could
improperly manipulate or destroy the exhibit. See, e.g.,
Arlton v. Schraut, supra, 840 (noting the ‘‘unintended
issues’’ that may arise from providing jury with direct
computer access).
Resolution of these issues is best left to the parties
and the trial court, who are better equipped to respond
to the nuances of each case. To the extent that the
creation of generally applicable rules on this topic are
necessary or appropriate, that responsibility is left to
the Rules Committee of the Superior Court, which is
vested with the power to establish rules of procedure
for our trial courts. See, e.g., Statewide Grievance Com-
mittee v. Spirer, 247 Conn. 762, 779, 725 A.2d 948 (1999);
Oakley v. Commission on Human Rights & Opportuni-
ties, 237 Conn. 28, 30, 675 A.2d 851 (1996).
The judgment of the Appellate Court is affirmed.
In this opinion ROGERS, C. J., and PALMER, ZARE-
LLA and ESPINOSA, Js., concurred.
1
We granted certification limited to the following question: ‘‘Did the Appel-
late Court properly conclude that the trial court’s decision requiring the
jury to view, during its deliberations, certain video evidence in open court
complied with Practice Book § 42-23?’’ State v. Jones, 308 Conn. 911, 61
A.3d 1099 (2013).
2
The full extent of the predeliberation colloquy between the parties and
the trial court on this topic is as follows:
‘‘[Defense Counsel]: Your Honor, just, if I may inquire? Is the—the video—
this whole setup of the electronics going to be left in this courtroom or—
or into the jury deliberation room?
‘‘The Court: No, it’s just going to be left here. My—my view is, I don’t
have anything to send into them for them to play the video. If they want to
have the video replayed, they’re going to have to request it and we’ll play
it in the courtroom. And, in fact, I can tell them that.
‘‘[Defense Counsel]: Without us present?
‘‘The Court: No, no. My view is, anything that’s done in the courtroom,
counsel and [the defendant] and I should be present. So, basically, it’s just
like a playback of testimony. If they want a replay of the video, I’ll have
them come out here and we’ll replay the video.
‘‘[Defense Counsel]: I—it seems to me, and I’m not trying to be difficult
here, Your Honor, but for a free flow of—of conversation where they can
stop and start and stop and start the video and actually deliberate about
the video, shouldn’t it—shouldn’t they actually be alone when they’re looking
at this video?
‘‘The Court: I don’t think that’s necessary. I don’t have anything for them
to play it on in the jury room. I don’t have anything to send it in with, so
they’re just going to have to come out and ask for it.
‘‘[Defense Counsel]: Couldn’t all this equipment be sent in?
‘‘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.
‘‘The Court: Yes. That’s the problem. I can’t be sending anything into the
jury room that has other documents or items on it that haven’t been made
full exhibits. I’ll make it clear to them, if they want to [see] the video [again],
then we can replay it—they can request it and we’ll play it in the courtroom.’’
(Internal quotation marks omitted.) State v. Jones, supra, 140 Conn. App.
461–62 n.2.
3
The trial court gave the following instruction immediately before dismiss-
ing the jury to deliberate: ‘‘Good morning, ladies and gentlemen. You’ve
now heard my instructions to you on the law, so it’s just about time for you
to begin your deliberations. One other matter that I just wanted to bring to
your attention, the video that has been made a full exhibit in this case is
obviously something that you can review again if you’d like. Unfortunately,
I can’t send anything in with you in order for you to be able to view that
video in the jury deliberation room. I don’t have a separate DVD player that
I can send in with you. So if at any point you want to revisit that video and
replay that video, just send out a note to me, we’ll reconvene in the courtroom
and we’ll replay that video for you.’’
4
But see, e.g., State v. Pare, 253 Conn. 611, 623, 755 A.2d 180 (2000) (‘‘the
use of the word shall, though significant, does not invariably establish a
mandatory duty’’ [internal quotation marks omitted]).
5
We note that our review of whether the trial court complied with Practice
Book § 42-23 (a), a nondiscretionary rule, is plenary. State v. Sheriff, 301
Conn. 617, 627 n.6, 21 A.3d 808 (2011).
6
Simply sending the DVD containing the video at issue in the case to the
jury room would not have complied with Practice Book § 42-23 (a). See
part I A of this opinion. To meaningfully study and consider the video exhibit
at issue in this appeal, the jury needed suitable equipment to view the video
files stored on the DVD.
7
In Osborne, the Appellate Court concluded that this procedure was not
a manifest injustice amounting to plain error. State v. Osbourne, supra, 138
Conn. App. 540.