State v. Gonzalez ( 2015 )

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STATE OF CONNECTICUT v. MIGUEL GONZALEZ
(SC 18927)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,
Espinosa and Robinson, Js.
Argued September 19, 2014—officially released February 24, 2015
Lisa J. Steele, assigned counsel, for the appellant
(defendant).
Matthew A. Weiner, deputy assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, and Joseph J. Harry, senior assistant state’s
attorney, for the appellee (state).
Opinion
ZARELLA, J. The defendant, Miguel Gonzalez,
appeals from the judgment of conviction, rendered after
a jury trial, of one count of murder in violation of Gen-
eral Statutes § 53a-54a (a). On appeal, the defendant
urges us to overturn his conviction and to remand the
case for a new trial on the grounds that the trial court
abused its discretion and violated his constitutional
right to a trial by an impartial jury by excusing a juror
for injecting extraneous matters into deliberations and
for refusing to deliberate. The defendant further claims
that the trial court abused its discretion by excusing a
second juror who was absent for one day for a medical
reason without inquiring how long she would be
unavailable, denying the defendant’s motions for a mis-
trial after excusing the two jurors, and allowing into
evidence, as proof of consciousness of guilt, testimony
and a video recording relating to the defendant’s refusal
to cooperate with the police as they were taking a
buccal swab sample from him. We reject the defendant’s
claims and, accordingly, affirm the judgment of the
trial court.
The jury reasonably could have found the following
facts. In late September, 2007, the defendant was
involved in an altercation with Miguel Vazquez outside
a bar in the city of Bridgeport. Two weeks later, Vazquez
was with two of his nieces, Erica Ortiz (Erica) and
Nairobi Ortiz (Nairobi), at the same bar when he
encountered the defendant again. Erica and Nairobi
both noticed that the defendant was staring at Vazquez
from across the bar. Vazquez and his nieces then left
the bar for a house party in Bridgeport, attended by
approximately thirty people in the basement of the
house. Later that night, when Erica and Nairobi saw
the defendant arrive at the house party, they noticed
that Vazquez’ demeanor changed and that he looked
‘‘worried.’’ Before they left the party, Erica and Nairobi
also observed the defendant and Vazquez briefly inter-
act with one another in the basement.
After Erica and Nairobi left, Vazquez was shot and
killed near a stairwell leading into the basement where
the party was being held. Although there were no eye-
witnesses to the shooting, partygoers heard gunshots
coming from the basement of the house. An initial inves-
tigation into the shooting proved fruitless, as many of
the people at the house were unwilling to speak with
the police. During a subsequent investigation, however,
Richard Serano told the police that, as he was arriving
at the party, he saw the defendant leaving and that
the defendant was holding a handgun and shouting at
onlookers that he would kill them if they said anything
about what they had seen. Serano also told the police
that, in the months after the shooting, the defendant
threatened to kill him multiple times if he said anything
about the incident.
During their investigation, the police recovered a
baseball hat and a pair of glasses from the basement
in which the defendant and Vazquez had been before
Vasquez was shot. Both Erica and Nairobi had seen the
defendant wearing a similar hat and pair of glasses
the night Vazquez was killed but before the shooting
occurred. Serano told the police that the defendant had
not been wearing a hat or glasses when he saw the
defendant leaving the party. The police thus obtained
a warrant to take a buccal swab sample from the defen-
dant to determine whether the defendant’s DNA was
present on the hat or glasses.
The police presented the defendant with the warrant
while he was in custody for an unrelated incident, but
the defendant refused to cooperate and requested an
attorney. After unsuccessfully attempting to coax the
defendant into cooperating, the police held the defen-
dant down and took the swab sample by force.1 Subse-
quent DNA testing indicated that the defendant was a
possible contributor to the DNA on the hat in question
but not to the DNA on the glasses. The defendant ulti-
mately was arrested and charged with murder in con-
nection with the killing of Vazquez.2
A jury trial was held in the fall of 2011. One of the
detectives who was present when the buccal swab sam-
ple was taken from the defendant testified that the
defendant had refused to cooperate with the police
when they tried to take the sample. During the detec-
tive’s testimony, the state also offered a video recording
of the incident that showed the defendant refusing to
comply with the officers’ request for the swab sample.
The trial court allowed into evidence the detective’s
testimony and, over the objection of defense counsel,
the video recording as evidence of the defendant’s con-
sciousness of guilt.
On the eighth day of jury deliberations, one of the
jurors accused the foreperson, Q.A.,3 of refusing to
deliberate in good faith. The trial court investigated the
allegations by canvassing each juror, including Q.A.,
and ultimately decided to excuse Q.A. and to replace
her with an alternate juror on the grounds that Q.A.
had injected into deliberations extraneous matters and
had refused to deliberate in good faith. Defense counsel
objected to the trial court’s decision to excuse Q.A.,
and the defendant filed a motion for a mistrial, which
the trial court denied. On the same day, a different
juror, C.S., called the court clerk to report that she
would be absent due to a medical condition.4 The trial
court indicated that it was inclined to excuse C.S. in
addition to Q.A. and, over defense counsel’s objection,
replaced C.S. with another alternate juror. The defen-
dant also moved for a mistrial on the basis of the trial
court’s decision to excuse C.S., but the trial court denied
that motion as well.
The reconstituted jury deliberated for four days
before finding the defendant guilty of murder.5 The trial
court then rendered judgment in accordance with the
jury verdict and sentenced the defendant to fifty years
incarceration. This direct appeal followed.
I
The defendant first claims that the trial court abused
its discretion and violated his constitutional right to a
trial by an impartial jury when it excused Q.A. The
defendant does not challenge the trial court’s factual
findings regarding Q.A.’s conduct. Rather, the defendant
argues that the trial court failed to apply the proper
standards in deciding whether to excuse Q.A. With
respect to the first basis on which the trial court
excused Q.A., her injection of extraneous matters into
deliberations, the defendant argues that Q.A.’s conduct
was not improper and, further, that the trial court
should not have excused Q.A. unless that misconduct
compromised her ability to deliberate fairly. With
respect to the second basis on which the trial court
excused Q.A., her refusal to deliberate in good faith,
the defendant argues that the trial court should not
have excused Q.A. without first applying a ‘‘heightened’’
standard to ensure that there was no reasonable possi-
bility that Q.A. was being excused because of her views
regarding the merits of the case. The state responds
that the trial court had just cause to excuse Q.A., that
the trial court was not required to apply the standards
the defendant urges, with respect to both of the grounds
on which she was excused, and that, even if those
standards applied, excusing Q.A. was nevertheless
proper. We conclude that the trial court did not abuse
its discretion or violate the defendant’s constitutional
right to a trial by an impartial jury in excusing Q.A.
The following additional facts relating to the jury’s
deliberations are pertinent to this claim. On the fourth
day of deliberations, the jury sent the trial court a note
stating that it was ‘‘struggling to come to [a] con[sen-
sus]’’ and asking to be reinstructed on reasonable doubt
and making inferences. On the fifth day of deliberations,
discord appeared to be growing among the jurors when
one juror asked the court clerk whether they could ‘‘get
rid of’’ the foreperson. The following day, the jury sent
the trial court a note stating: ‘‘We are not able to come
to one decision.’’ In response, the trial court gave the
jury a Chip Smith instruction,6 after which the jury
resumed deliberations. One day later, the trial court
suspended deliberations when Q.A. lost her voice and
was physically unable to speak. When the jury returned
the following day, the eighth day of deliberations, one
of the jurors, A.N., sent the trial court a note stating:
‘‘It is the opinion of several jurors that one juror is not
deliberating in good faith. We appear to be at an
impasse.’’
To investigate A.N.’s allegations, the trial court
decided to interview each juror separately in the pres-
ence of counsel. Before questioning each juror, how-
ever, the trial court cautioned the juror not to reveal
anything about the substance of the deliberations or
whether there were any voting blocs within the jury.
The trial court began with A.N., who identified Q.A. as
the juror he believed was not deliberating in good faith.
A.N. accused Q.A. of ‘‘argu[ing] facts that never came—
argu[ing] suppositions, I should say, that never came
into evidence during the trial.’’ When the trial court
asked A.N. to describe in general terms the extrinsic
evidence Q.A. had raised during deliberations, A.N.
stated that Q.A. had suggested that witnesses who testi-
fied at trial had been bribed. A.N. also complained that
Q.A. kept changing her argument and her views on what
evidence she found credible.
The trial court then proceeded to carefully interview
the ten remaining jurors, other than Q.A. All ten jurors
unanimously agreed that one of the jurors was not
meaningfully or reasonably participating in delibera-
tions, and all ten independently identified Q.A. as that
juror. At least seven of those ten jurors specifically
stated that Q.A. was refusing to speak to the other
jurors, and five jurors indicated that Q.A. was refusing
to sit at the table with them in order to participate in
deliberations. One juror noted that Q.A. had stated, ‘‘I
don’t have to share my opinions,’’ and another juror
noted that Q.A. had also stated, ‘‘I’m just here to observe
. . . .’’ A different juror explained that she thought Q.A.
had been communicating, but only in short responses
to other jurors’ questions. Yet another juror added that
she thought that Q.A. had ‘‘said what she wants to say,
and she’s got her opinion, and she’s done with deliberat-
ing,’’ whereas a different juror testified: ‘‘I don’t think
she’s deliberating in good faith . . . . It’s not because
I think she agrees or disagrees with anybody, so that’s
not where I’m coming from with that. I just think that
she’s not . . . participating.’’ Similarly, another juror
testified that, ‘‘[r]egardless of the arguments being
made, regardless of the discussion being made, [Q.A.]
shuts down. . . . It’s a wall that we can’t get around.’’
One of the jurors suggested that Q.A. had only
‘‘recently’’ withdrawn from participating in the deliber-
ations.
Although the majority of the jurors’ complaints about
Q.A. centered on her lack of participation in the deliber-
ations, a few jurors also complained to the trial court
about the arguments Q.A. had made during delibera-
tions and her reasons, or lack thereof, for them. For
instance, one juror noted, as had A.N., that Q.A. kept
changing her argument over the course of deliberations.
A different juror stated that ‘‘the case that [Q.A.] makes
is . . . weak at best.’’ Finally, another juror explained
that ‘‘[Q.A.’s] opinion is what she’s feeling, and [the
other jurors] want more. . . . [Q.A. is] not giving them
more . . . [as to] why she feels the way she feels
. . . .’’ None of the jurors other than A.N. alleged that
Q.A. had suggested that witnesses had been bribed.
To conclude its investigation, the trial court inter-
viewed Q.A., who denied that she was refusing to partic-
ipate in deliberations. Q.A. described the deliberations
as ‘‘intense,’’ and stated: ‘‘I think we’re kind of at a point
where one is not listening to the other because one is
not giving the answers that the others want to accept.’’
With respect to the bribery allegations, Q.A. explained:
‘‘A question was asked of me, what would an individual
have gotten out of being a witness? And my response
was, I don’t know. I don’t know. I can’t tell you. So, a
question was then [posed]; do you believe there was—
and I said, I never said that.’’ When the trial court asked
Q.A. if she thought that witnesses had been bribed, Q.A.
stated, ‘‘I said, no, I don’t believe there was. But I don’t
know what someone would get out of being a witness.’’
During the trial court’s interviews with the twelve
jurors, none of them indicated an inclination to convict
or acquit. One juror, however, suggested that a majority
of jurors had agreed on a verdict by stating that Q.A.
was ‘‘[n]ot responding . . . when the people try to have
[an] open discussion as [to] what they’re—most of the
people are feeling.’’ That juror did not indicate, how-
ever, in which direction ‘‘most of the people’’ were
inclined to vote.
After interviewing each juror and hearing arguments
from counsel, the trial court decided to excuse Q.A. for
two reasons. First, the court excused Q.A. because it
found that she had refused to participate in delibera-
tions. In making this finding, the trial court explained:
‘‘[Eleven] jurors were absolutely consistent that [Q.A.]
was in fact not deliberating. . . . That is different from
a juror who has reasonably participated in the delibera-
tions and has an opinion that is fixed, and [he or she]
will go no further. . . . [T]he court is persuaded [by]
their claims that she shut down, that she refused to
discuss things, that she refused to give her opinions
. . . [and] they were uniformly consistent that she had
essentially shut herself down and would not deliberate.’’
The second reason the trial court gave for excusing
Q.A. was that it found that Q.A. had injected into deliber-
ations ‘‘a matter that was outside the evidence, some-
thing that was based on conjecture or suspicion,’’ by
suggesting that witnesses had been bribed. In recount-
ing A.N.’s testimony regarding Q.A., the trial court
stated: ‘‘Twice, [A.N.] corrected me to be clear . . .
that [Q.A.] had said that [witnesses] had been bribed,
not may have been, but [that] they had been.’’ Although
Q.A. denied having made such statements, the trial
court discredited her testimony, stating: ‘‘I thought
[Q.A.’s] testimony on that point . . . when confronted
with what another juror had said—I thought her testi-
mony on that, her quick recollection of the colloquy
and her explanation of—I’ve got to say I thought were
disingenuous. I really thought it was a contrived
response. . . . And, to me, she was not credible on
that point. . . . I found much more credible the testi-
mony of [A.N.], who was clear to me twice that it had
occurred. I believe in sum, then, that [Q.A.] has not
conducted her deliberations in accordance with the
court’s instructions . . . .’’ After making these find-
ings, the trial court excused Q.A. from the jury.
After it decided to excuse Q.A. but before replacing
Q.A. with an alternate juror and proceeding with delib-
erations, the trial court separately interviewed each of
the remaining jurors, except C.S., who was absent for
a medical reason. The trial court asked them whether
they were willing and able to begin deliberations anew,
as is required by General Statutes § 54-82h (c),7 the
statute permitting the substitution of alternate jurors
in criminal cases. Each juror confirmed that he or she
was able to do so. The trial court then canvassed two
alternate jurors to ensure that they had abided by the
court’s instructions since the end of the trial and were
still able to serve as jurors. Finally, the trial court
replaced Q.A. with an alternate juror8 and instructed
the reconstituted jury that it must disregard any prior
deliberations and begin them anew.
A
We begin with the defendant’s claim that the trial
court improperly excused Q.A. for injecting extraneous
matters into deliberations. The defendant argues that,
even if Q.A. suggested that witnesses had been bribed,
the trial court was not justified in excusing her. The
defendant contends that, in making those comments,
Q.A. was not impermissibly considering matters outside
of the evidence but, rather, was relying on her common
sense and life experience to evaluate the evidence and
to make credibility determinations about witnesses.
Alternatively, the defendant claims that the trial court
failed to apply the correct evidentiary standard before
excusing Q.A. Specifically, the defendant claims that,
before excusing Q.A., the trial court should have deter-
mined whether her misconduct affected her ability to
deliberate impartially. We conclude that the defendant’s
claims are without merit and that the trial court did
not abuse its discretion in excusing Q.A. for considering
matters extraneous to the evidence presented at trial.
Our standard of review for a trial court’s decision to
excuse a juror is well established. Section 54-82h (c)
permits trial courts to excuse a juror ‘‘[i]f, at any time,
any juror shall, for any reason, become unable to further
perform [his or her] duty . . . .’’ ‘‘The power to excuse
a juror under this section is expressly premised on a
finding of cause. . . . Whether in the circumstances
just cause exists to excuse a juror is a matter within
the discretion of the . . . court.’’ (Internal quotation
marks omitted.) State v. Apodaca, 303 Conn. 378, 386,
33 A.3d 224 (2012); see also State v. Cubano, 203 Conn.
81, 88–89, 523 A.2d 495 (1987) (‘‘[t]he trial court is vested
with wide discretion in determining the competency of
jurors to serve, and that judgment will not be disturbed
absent a showing of an abuse of discretion’’).
‘‘Consideration of extrinsic evidence is jur[or] mis-
conduct . . . . The modern jury’s verdict must be
based solely upon the evidence developed at the trial.’’
(Citations omitted.) State v. McCall, 187 Conn. 73, 80,
444 A.2d 896 (1982), citing Irving v. Dowd, 366 U.S.
717, 722, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961); see also
75B Am. Jur. 2d 78–79, Trial § 1305 (2007). Indeed, every
juror who serves on a jury in a criminal trial in Connecti-
cut swears under oath or assents by affirmation to base
the verdict on the evidence presented at trial. See Gen-
eral Statutes §§ 1-23 and 1-25. In the present case, the
trial court instructed the jurors to base their verdict
solely on the evidence presented at trial. ‘‘A juror is
expected to draw upon his general knowledge and expe-
rience in deciding the case, and he is encouraged to
participate in full and robust debate and deliberations
with his fellows in reaching a verdict. However, he
should not consider facts relating to the case unless
introduced at trial under constitutional and legal safe-
guards . . . .’’ (Internal quotation marks omitted.)
State v. Asherman, 193 Conn. 695, 739, 478 A.2d 227
(1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84
L. Ed. 2d 814 (1985). A trial court may, in its discretion,
excuse a juror who considers during deliberations facts
that were not presented at trial. See id., 740 (concluding
that it was inappropriate for juror to bring belt and
shirt into jury room to conduct experiment); see also
United States v. Ebron, 683 F.3d 105, 127–28 (5th Cir.
2012) (District Court did not abuse its discretion in
excusing juror on basis of her lack of candor and failure
to abide by court’s instructions), cert. denied, U.S.
, 134 S. Ct. 512, 187 L. Ed. 2d 365 (2013); State v.
Mills, 57 Conn. App. 356, 364–65, 748 A.2d 891 (2000)
(trial court properly excused juror who could not guar-
antee that he would not rely on his specialized knowl-
edge during deliberations).
Applying these principles to the present case, we
conclude that the trial court did not abuse its discretion
in excusing Q.A. for suggesting that witnesses had been
bribed. Although Q.A. denied making such a suggestion,
the trial court acted within its authority in concluding
that her denial was not credible and in crediting A.N.’s
statement that Q.A. had done so. At no point during
the trial did a party introduce evidence to indicate that
any of the witnesses had been bribed. Thus, by sug-
gesting that witnesses had been bribed, Q.A. violated
her oath and the trial court’s instructions to base her
verdict solely on the evidence presented at trial. In
making those comments, Q.A. was not drawing from
her general knowledge and experience to evaluate the
evidence, which is permissible; rather, she was pur-
porting to have specific knowledge about the individu-
als who testified at trial that could have come only
from an outside source. This was plainly improper and
constituted cause to excuse Q.A.9 Excusing Q.A. on this
basis was therefore within the trial court’s sound dis-
cretion.
We also reject the defendant’s claim that the trial
court failed to apply the proper standard in excusing
Q.A. for considering extraneous matters. The defendant
argues that the trial court should have applied a stan-
dard similar to that recognized in State v. Depaz, 165
Wash. 2d 842, 204 P.3d 217 (2009), which held that, when
a trial court is aware that a juror is a holdout, it should
not excuse the juror for engaging in misconduct if the
juror can still deliberate fairly despite the misconduct.
See id., 857. The Washington Supreme Court expressly
limited this standard, however, to cases in which ‘‘the
trial court has knowledge of [the] deliberating juror’s
substantive opinion of the case . . . .’’ Id. In the pres-
ent case, the trial court had no knowledge of Q.A.’s or
any other juror’s substantive opinion about the case,
due to the extensive precautions that the court took
when interviewing the jurors, and there is little evidence
in the record, if any, that Q.A. was a holdout juror.
Thus, such a standard would have been inapplicable in
the present case.
In arguing that the trial court should have applied a
different standard in excusing Q.A., the defendant also
relies on cases standing for the proposition that a trial
court need not dismiss a juror for misconduct unless
the defendant establishes that he or she has been preju-
diced by the misconduct. See, e.g., State v. Asherman,
supra, 193 Conn. 736. This principle does not control
the present case, however, because it does not prevent
a trial court from removing a juror in its discretion
for engaging in nonprejudicial misconduct. Instead, it
merely establishes that, when a trial court has declined
to remove a juror for engaging in misconduct, and that
misconduct was not prejudicial to the defendant, a
defendant is not entitled to have his or her conviction
reversed. For the foregoing reasons, we conclude that
the trial court was not required to apply a different
standard before excusing Q.A. and that it did not abuse
its discretion in excusing Q.A. for injecting extraneous
matters into deliberations.
B
The defendant’s second claim with respect to the trial
court’s decision to excuse Q.A. is that the trial court
failed to apply a ‘‘heightened’’ evidentiary standard in
deciding whether to excuse Q.A. for refusing to deliber-
ate.10 Specifically, the defendant argues that Q.A. was,
in fact, a holdout juror and that, before excusing Q.A.,
the trial court should have determined whether there
was any reasonable possibility that the allegations
against her actually stemmed from the other jurors’
disagreement with Q.A. over the merits of the case. In
other words, the defendant argues that the trial court
should have first determined whether the other jurors
accused Q.A. of refusing to deliberate in good faith
because they disagreed with Q.A. regarding the defen-
dant’s guilt, and, if so, the trial court should not have
excused Q.A. Although the defendant concedes that the
trial court was not required to make such a determina-
tion under Connecticut law, he urges us to adopt such
a rule, as some other jurisdictions have done. The defen-
dant relies primarily on a line of federal circuit court
cases applying some variant of this standard. See, e.g.,
United States v. Symington, 195 F.3d 1080, 1087 (9th
Cir. 1999); United States v. Thomas, 116 F.3d 606,
621–24 (2d Cir. 1997); United States v. Brown, 823 F.2d
591, 596 (D.C. Cir. 1987). We conclude that it is not
necessary to decide what standard would apply in the
present case because the trial court excused Q.A. not
only for refusing to deliberate in good faith, but also
for considering matters not in evidence, a ground that
was independent of Q.A.’s refusal to deliberate.11
Because we upheld the trial court’s decision to excuse
Q.A. on the basis that she considered matters not in
evidence; see part I A of this opinion; we need not reach
the defendant’s claim regarding the trial court’s decision
to excuse Q.A. for refusing to deliberate.
II
The defendant next claims that the trial court abused
its discretion when it excused C.S. and replaced her
with an alternate juror when C.S. was absent for one
day due to a medical issue. The defendant concedes
that a trial court may excuse a juror who will be absent
for an extended period of time due to illness but argues
that, in this case, the trial court committed reversible
error by excusing C.S. without knowing how long C.S.
would be absent or investigating the specific reason
she was absent. We disagree and conclude that the trial
court did not abuse its discretion in excusing C.S.
The following additional facts, which are undisputed,
are relevant to our resolution of this issue. On the same
day that the trial court excused Q.A., which was a Fri-
day, C.S. called the court clerk ‘‘to report a medical
condition that would make her unavailable, at least [for
that day].’’ At that point, the jury had deliberated for
eight days, but deliberations had been suspended for
the prior two days. Q.A. had lost her voice on Wednes-
day, the trial court had spent Thursday investigating
Q.A.’s alleged misconduct, and, on Friday morning, the
court finished its investigation and hearing arguments
from counsel about whether to excuse Q.A. It had been
sixteen days, including weekends and days off from
deliberations, since the close of evidence and twenty-
six days since the trial had begun. The trial court thus
indicated that, ‘‘under all of these circumstances,’’ it
intended to replace C.S. at the same time it was replac-
ing Q.A., as long as the alternate jurors were still fit to
serve and the remaining jurors were willing to begin
deliberations anew. As we previously discussed, the
trial court canvassed each of the alternate and
remaining jurors and confirmed that they were able and
willing to begin deliberations anew. The trial court then
excused C.S., over the objection of defense counsel,
denied the defendant’s motion for a mistrial, and
replaced C.S. with an alternate juror. The reconstituted
jury subsequently found the defendant guilty after delib-
erating for four days.
As we noted in part I A of this opinion, we review a
trial court’s decision to excuse a juror pursuant to § 54-
82h (c) for abuse of discretion. See, e.g., State v. Apo-
daca, supra, 303 Conn. 386. We have recognized that
unavailability due to illness may constitute cause to
excuse a juror. See id., 386–87 (trial court’s decision to
excuse juror who was ill with flu and unable to confirm
when she would return was not abuse of discretion).
In the present case, we cannot say that the trial court
abused its discretion in excusing C.S. from the jury
when she reported that she would be unavailable for
at least one day. The trial court excused C.S. on the
basis of all of the circumstances surrounding the trial
and the deliberations up to that point, and, in light of
those specific circumstances, we conclude that the trial
court was justified in excusing C.S. When the trial court
excused C.S., it had been twenty-six days since the trial
had started. At that point, the jury’s deliberations had
been suspended for the prior two days because Q.A.
lost her voice and had engaged in misconduct. If the
trial court had suspended deliberations again on the
Friday that C.S. was absent, deliberations would have
resumed at the earliest on the following Monday, five
days after deliberations were first interrupted.
We note, however, that the trial court’s decision to
excuse C.S. was at the outer limits of its discretion.
Arguably, the most critical fact justifying the trial
court’s decision is that, on the day C.S. was absent, the
trial court had excused Q.A. The jury was thus forced
to begin deliberations anew, regardless of whether the
trial court excused C.S. or waited to see if she could
return. If the trial court had not excused Q.A., then it
could have suspended deliberations on that Friday to
see if C.S. was able to return the following Monday, in
which case the jury could have resumed its delibera-
tions where it previously had left off. Because the trial
court already had excused Q.A., and it therefore was
impossible to avoid beginning deliberations anew,
excusing C.S. did not carry the burden of restarting
deliberations that usually accompanies the replacement
of an excused juror.
If the trial court had not already excused Q.A., we
seriously doubt that it would have been proper to
excuse C.S. the Friday she was absent, forcing delibera-
tions to begin anew instead of suspending deliberations
at least one day to see if C.S. returned the following
Monday. In light of all the circumstances surrounding
the trial court’s decision to excuse C.S., however, we
conclude that the court did not abuse its discretion in
excusing C.S.
We reject the defendant’s contention that the trial
court lacked sufficient information to find that C.S. was
unable to perform her duty as a juror, as required by
§ 54-82h (c). In making this argument, the defendant
relies on a string of federal cases standing for the propo-
sition that it is an abuse of discretion to excuse a juror
who will be unavailable for only a short time. See, e.g.,
United States v. Araujo, 62 F.3d 930, 936–37 (7th Cir.
1995). These cases, however, are of limited usefulness
in deciding the present appeal because the excused
juror in each case was not replaced by an alternate
juror, and the matter in each case subsequently was
tried to a jury of eleven rather than twelve. In contrast,
the defendant in the present case was found guilty by
the reconstituted jury of twelve after the court replaced
both Q.A. and C.S. with alternate jurors, which relieved
any concerns about the defendant being denied his right
to a unanimous verdict by an impartial jury. The defen-
dant cites no other authority to support his contention
that trial courts are barred from excusing a juror who
is unavailable only for a short period of time, and we
decline to impose such a limitation on a trial court’s
discretion. Thus, we conclude that the trial court did
not abuse its discretion in excusing C.S. from the jury.
III
The defendant further claims that the trial court
abused its discretion in denying his motions for a mis-
trial after the court excused Q.A. and C.S. The defendant
contends that replacing Q.A. and C.S. with alternate
jurors instead of declaring a mistrial was reversible
error because the jury was ‘‘obviously deadlocked
. . . .’’ We disagree.
As we previously discussed, the jury appeared to
disagree initially over the verdict before the trial court
excused Q.A. and C.S. The jury deliberated for four
days before sending the trial court a note stating that
it was ‘‘struggling to come to [a] con[sensus]’’ and ask-
ing to be reinstructed on reasonable doubt and making
inferences. Over the course of the following two days,
one of the jurors asked the clerk whether they could
‘‘get rid of’’ the foreperson, and the jury sent another
note to the trial court stating, ‘‘[w]e are not able to
come to one decision.’’ The jury continued to deliberate,
however, after the trial court gave the jury a Chip Smith
instruction. The trial court suspended deliberations
when Q.A. lost her voice, and, one day later, the allega-
tions of Q.A.’s misconduct emerged. After an investiga-
tion, in which all eleven other jurors independently
identified Q.A. as the juror who had refused to partici-
pate in deliberations, the trial court excused Q.A.
The defendant moved for a mistrial on three separate
occasions, and the trial court denied all three motions.12
The defendant first filed a written motion for a mistrial
after the court interviewed the eleven jurors other than
Q.A. In this motion, the defendant requested that the
court declare a mistrial rather than excuse Q.A. and
replace her with an alternate juror. The defendant
argued that the trial court should declare a mistrial
because the jury was deadlocked and because the
court’s canvassing of the jury would make it impossible
for a reconstituted jury to begin deliberations anew,
thereby violating the defendant’s right to a unanimous
verdict by an impartial jury. Later that same day,
defense counsel, on behalf of the defendant, orally
moved for a mistrial when the trial court indicated that
it was going to excuse C.S. and replace her with an
alternate juror. At that time, defense counsel stated that
he objected not only to the trial court’s decision to
excuse C.S., but also ‘‘to the . . . whole procedure’’
the court had used in canvassing the jurors. Three days
after the trial court excused Q.A. and C.S., the defendant
renewed his motion for a mistrial on the basis that the
local media had published a newspaper article in which
Q.A. claimed that other jurors had attempted to intimi-
date her because they did not agree with how she
viewed the case. The defendant now claims that it was
‘‘evident’’ that the jury was deadlocked and that the
trial court abused its discretion in declining to declare
a mistrial and in replacing Q.A. and C.S. with alter-
nate jurors.
We review a trial court’s decision to grant or deny a
motion for a mistrial for abuse of discretion. See, e.g.,
State v. Ortiz, 280 Conn. 686, 702, 911 A.2d 1055 (2006).
‘‘While the remedy of a mistrial is permitted under the
rules of practice, it is not favored. [A] mistrial should
be granted only as a result of some occurrence upon
the trial of such a character that it is apparent to the
court that because of it a party cannot have a fair trial
. . . and the whole proceedings are vitiated. . . . If
curative action can obviate the prejudice, the drastic
remedy of a mistrial should be avoided. . . . On
appeal, we hesitate to disturb a decision not to declare
a mistrial. The trial judge is the arbiter of the many
circumstances which may arise during the trial in which
his function is to assure a fair and just outcome. . . .
The trial court is better positioned than we are to evalu-
ate in the first instance whether a certain occurrence
is prejudicial to the defendant and, if so, what remedy
is necessary to cure that prejudice. . . . The decision
whether to grant a mistrial is within the sound discre-
tion of the trial court.’’ (Internal quotation marks omit-
ted.) Id.
We conclude that the trial court did not abuse its
discretion in denying the defendant’s motions for a mis-
trial. As a threshold matter, we reject the defendant’s
contention that the jury was ‘‘obviously’’ deadlocked
at any point. As we previously discussed, there is no
evidence in the record of any of the jurors’ views on
the merits of the case, or whether there were any voting
blocs within the jury. See part I A of this opinion. The
fact that the jury reported that it was ‘‘struggling’’ to
come to a consensus, and then reported that it was not
able to come to ‘‘one decision,’’ does not necessarily
mean that the jury was deadlocked. The trial court’s
findings indicate that the more likely explanation for
the jury’s difficulty in coming to a unanimous verdict
was the fact that Q.A. was refusing to participate in
deliberations. The defendant’s claim that the jury was
deadlocked is therefore entirely speculative.
Moreover, the defendant cites no authority in support
of his claim that the trial court was required to declare
a mistrial under the facts of the present case. Trial
courts are not required to declare a mistrial when a jury
has deliberated for a certain number of days without
reaching a verdict, nor are they always required to
declare a mistrial when a juror engages in misconduct.
Rather, when faced with a juror’s violation of instruc-
tions, trial courts exercise their discretion in determin-
ing whether a jury is capable of disregarding a juror’s
misconduct and beginning deliberations anew. In the
present case, the trial court made exactly that judgment
after investigating the scope of Q.A.’s misconduct and
the willingness of the other jurors to begin deliberations
anew. Excusing Q.A. and replacing her with an alternate
juror instead of declaring a mistrial was within the trial
court’s sound discretion. See United States v. Ronda,
455 F.3d 1273, 1299–1301 (11th Cir. 2006) (District Court
did not abuse its discretion in denying motions for mis-
trial after excusing two jurors who introduced extrane-
ous information into deliberations), cert. denied sub
nom. Aguero v. United States, 549 U.S. 1212, 127 S. Ct.
1327, 167 L. Ed. 2d 86 (2007), and cert. denied sub nom.
Beguiristain v. United States, 549 U.S. 1212, 127 S. Ct.
1327, 167 L. Ed. 2d 86 (2007), and cert. denied sub nom.
Garcia v. United States, 549 U.S. 1212, 127 S. Ct. 1338,
167 L. Ed. 2d 86 (2007). We therefore conclude that the
trial court did not abuse its discretion in denying the
defendant’s motions for a mistrial.
IV
Finally, we consider the defendant’s evidentiary
claim. The defendant contends that the trial court
abused its discretion in admitting, as consciousness of
guilt evidence, a detective’s testimony pertaining to,
and a video recording of, the defendant’s refusal to
cooperate with the police while they were taking a
buccal swab sample from him. The defendant claims
that these two pieces of evidence, namely, the testimony
and the video recording, were inadmissible because
they were not probative of consciousness of guilt and
because they were more prejudicial than probative. The
state responds that the defendant’s evidentiary claim
with respect to both the detective’s testimony and the
video recording are unpreserved. Alternatively, the
state argues that the trial court did not abuse its discre-
tion in admitting the testimony and the video recording,
and that, even if the court did abuse its discretion in
admitting the evidence, their admission was harmless.
The following additional facts are relevant to our
resolution of the defendant’s claim. Approximately one
year after Vazquez was killed and one year before the
police arrested the defendant for that killing, the police
obtained a warrant to take a buccal swab sample from
the defendant. By that time, the police suspected that
the defendant had shot and killed Vazquez, and they
sought the buccal swab sample so that they could com-
pare the defendant’s DNA to that found on a hat and
a pair of glasses recovered from the scene of the crime.
Erica and Nairobi had both seen the defendant wearing
a similar hat and glasses on the night of the shooting,
before the shooting occurred. When Serano saw the
defendant leaving the house party at which Vazquez
was killed, however, he noticed that the defendant was
not wearing glasses or a hat. Erica and another witness
also had seen the defendant wear a similar hat on previ-
ous occasions.
The police approached the defendant to take the buc-
cal swab sample while he was in custody for reasons
unrelated to the shooting of Vazquez and presented him
with one page of the warrant that they had obtained, but
the defendant refused to cooperate. The police officers
therefore took the buccal swab sample by force. The
incident was captured on a video camera positioned
outside of the cell in which the defendant was being
held. Given the location from which the video recording
was taken and the quality of that recording, however,
the video recording depicted only the defendant’s con-
versation with the police officers outside the cell before
and after the swab sample was taken and did not show
the officers actually taking the swab sample by force.
Thereafter, the results of the DNA testing revealed that
the defendant possibly contributed to the DNA on
the hat.
At trial, the state called one of the detectives who
was present when the police took the buccal swab
sample from the defendant to testify about the incident
as evidence of the defendant’s consciousness of guilt.
The state also sought to enter into evidence the video
recording of the incident for the same purpose. Defense
counsel initially objected to any references to the buccal
swab incident but then limited his objection to the intro-
duction of the video recording.13 On that point, defense
counsel stated: ‘‘I don’t think I would have a problem
with the testimony from . . . the officer that [the
defendant] refused to give [the buccal swab sample]
and that they had to hold him down. But what I really
find . . . so prejudicial is the fact that it’s [recorded]
and that [the jurors] get [to] watch this—this whole
incident. . . . If [the detective] wants to testify that
[the defendant] refused and that they had to, you know,
force him to get it from him, you know, I . . . distin-
guish between those two. And the [distinction] to me
is that the [recording] is so prejudicial.’’ The trial court
overruled the objection and admitted both the testi-
mony and the video recording, noting that ‘‘[defense]
counsel indicated that he did not truly object to the
evidence concerning the refusal, but he was more con-
cerned with the [video recording] itself being too preju-
dicial.’’ The detective testified at trial about how the
defendant had resisted when the police took the buccal
swab sample, and the jury viewed the video recording
of the incident.
A
Before reaching the merits of the defendant’s eviden-
tiary claim, we first must consider whether the defen-
dant preserved his claim for appellate review. The state
contends that defense counsel not only affirmatively
waived any objection to the detective’s testimony but
that, in doing so, defense counsel also waived any objec-
tion to the video recording because the testimony and
video recording were substantively identical. The defen-
dant argues that defense counsel never waived his
objections to either piece of evidence and that the
defendant preserved this claim on the basis of defense
counsel’s objection at trial and his motion for a judg-
ment of acquittal or for a new trial. We agree with the
state in part and conclude that the defense waived any
objection to the detective’s testimony but that defense
counsel’s objection to the video recording preserved
for appeal the issue of the recording’s admissibility.
It is well settled that we review claims alleging an
improper evidentiary ruling only if they are distinctly
raised at trial. See, e.g., State v. Simpson, 286 Conn.
634, 645, 945 A.2d 449 (2008). ‘‘When a party consents
to or expresses satisfaction with an issue at trial, claims
arising from that issue are deemed waived and may not
be reviewed on appeal.’’ State v. Smith, 289 Conn. 598,
621, 960 A.2d 993 (2008).
In the present case, we agree with the trial court that
defense counsel did not object to the admission of the
detective’s testimony regarding the taking of the buccal
swab sample. Defense counsel waived any objection to
that testimony when he stated, ‘‘I don’t think I would
have a problem with the testimony’’ and then expressly
distinguished the testimony from the video recording
to which he objected. Thus, the defendant failed to
preserve the issue of the admissibility of the detec-
tive’s testimony.
We do not believe, however, that defense counsel
also thereby waived his objection to the admission of
the video recording of the buccal swab incident.
Although it may not have been the most prudent deci-
sion to distinguish the detective’s testimony from the
video recording, given that they involved identical sub-
ject matter, we do not believe that defense counsel
waived his objection to the admission of the video
recording by waiving his objection to the detective’s
testimony. A party may object to only one of two pieces
of evidence that are in substance the same, but differ
in form, when the form of one is objectionable. This
appears to be what defense counsel did in the present
case. Initially, defense counsel objected to both the
detective’s testimony and the video recording on the
ground that they were not probative of the defendant’s
consciousness of guilt. After waiving his objection to
the detective’s testimony, however, defense counsel
then objected to the video recording on the additional
basis that the video recording was unduly prejudicial.
Thus, we conclude that the defendant preserved his
claim that the trial court had abused its discretion in
admitting the video recording of the buccal swab
incident.
B
We now address the merits of the defendant’s eviden-
tiary claim. The defendant argues that the video
recording was inadmissible because it was not proba-
tive of consciousness of guilt and because its prejudicial
effect outweighed its probative value. We disagree and
conclude that the trial court did not abuse its discretion
in admitting the video recording into evidence.14
We review a trial court’s evidentiary rulings for abuse
of discretion. E.g., State v. Coccomo, 302 Conn. 664,
670–71, 31 A.3d 1012 (2011). ‘‘We will make every rea-
sonable presumption in favor of upholding the trial
court’s ruling, and only upset it for a manifest abuse
of discretion. . . . [Thus, our] review of such rulings
is limited to the questions of whether the trial court
correctly applied the law and reasonably could have
reached the conclusion that it did.’’ (Internal quotation
marks omitted.) Id., 671.
‘‘In a criminal trial, it is relevant to show the conduct
of an accused, as well as any statement made by him
subsequent to the alleged criminal act, which may fairly
be inferred to have been influenced by the criminal act.
. . . Generally speaking, all that is required is that . . .
evidence [of consciousness of guilt] have relevance,
and the fact that ambiguities or explanations may exist
which tend to rebut an inference of guilt does not render
[such] evidence . . . inadmissible but simply consti-
tutes a factor for the jury’s consideration. . . . The fact
that the evidence might support an innocent explana-
tion as well as an inference of a consciousness of guilt
does not make [the admission of evidence of conscious-
ness of guilt] erroneous. . . . Moreover, [t]he court [is]
not required to enumerate all the possible innocent
explanations offered by the defendant. . . . [I]t is the
province of the jury to sort through any ambiguity in the
evidence in order to determine whether [such evidence]
warrants the inference that [the defendant] possessed
a guilty conscience.’’ (Citations omitted; internal quota-
tion marks omitted.) Id., 669–70. Moreover, evidence
of a defendant’s consciousness of guilt is admissible
only if its probative value outweighs its prejudicial
effect. See, e.g., State v. Hill, 307 Conn. 689, 698, 59
A.3d 196 (2013).
Applying these principles to the present case, we
conclude that the defendant’s reaction to the detectives
who took the buccal swab sample ‘‘may fairly be
inferred to have been influenced by the criminal act’’ of
shooting and killing Vazquez. (Internal quotation marks
omitted.) State v. Coccomo, supra, 302 Conn. 669. Two
witnesses saw the defendant wearing a hat before the
murder, and one witness saw the defendant not wearing
a hat after the murder. Moreover, the police later found
a hat similar to the hat that Erica and Nairobi had seen
the defendant wearing the night of the murder in the
basement where Vazquez was killed. On the basis of
these facts, the jury reasonably could have inferred
that the defendant had refused to cooperate with the
detectives because he believed that the buccal swab
sample might produce DNA evidence linking him to the
murder of Vazquez. The fact that there are alternative
explanations for the defendant’s refusal to cooperate
with the police officers taking the buccal swab sample,
or that additional facts would have made the defen-
dant’s conscious of guilt more obvious, is irrelevant.
See id., 669–70.
We also conclude that the prejudicial effect of the
video recording did not outweigh its probative value.
The defendant does not specify what prejudicial effect
the video recording had on the jury, beyond the fact
that seeing the defendant in custody generally suggests
that he was guilty of some other misconduct. The defen-
dant cannot argue that the video recording was the type
of inflammatory visual that would unduly arouse the
jurors’ emotions, particularly in view of the fact that the
video recording did not show the defendant’s physical
struggle with the police officers. Whatever prejudicial
effect the defendant’s lack of cooperation may have
had, it paled in comparison to the prejudicial nature of
the murder charge the defendant was facing, one of the
most heinous crimes of which one can be accused. Cf.
State v. Mooney, 218 Conn. 85, 130–31, 588 A.2d 145
(evidence of defendant’s past larcenies not unduly prej-
udicial, in part, because they were not grave crimes in
comparison to robbery and felony murder charges that
defendant was facing), cert. denied, 502 U.S. 919, 112
S. Ct. 330, 116 L. Ed. 2d 270 (1991).
We also reject the defendant’s contention that the
trial court should have excluded the video recording
because the defendant ‘‘was trying to protect his consti-
tutional rights.’’ The defendant relies on a number cases
in which we have held that ‘‘consciousness of guilt
evidence should not be admitted when doing so would
chill an important legal right or undermine public pol-
icy.’’ State v. Coccomo, supra, 302 Conn. 677; see also
State v. Jones, 234 Conn. 324, 358–59, 662 A.2d 1199
(1995) (trial court improperly instructed jury that it may
consider, as proof of consciousness of guilt, evidence
that defendant refused to comply, on religious grounds,
with court order directing him to give hair and blood
samples). The defendant fails to appreciate, however,
that he had no constitutional right to refuse to comply
with the warrant for the buccal swab sample. See
Bumper v. North Carolina, 391 U.S. 543, 550, 88 S. Ct.
1788, 20 L. Ed. 2d 797 (1968); see also General Statutes
§ 54-33d (prohibiting person from, inter alia, resisting,
impeding or interfering with any person authorized to
execute search warrant or to effect search or seizure
in performance of his official duties). Moreover, the
defendant has not identified any independent legal right
or public policy that would be infringed by deeming
the video recording in question admissible evidence of
the defendant’s consciousness of guilt. Thus, we con-
clude that the trial court did not abuse its discretion
in admitting the video recording of the defendant refus-
ing to cooperate with the police officers who took the
buccal swab sample.
The judgment is affirmed.
In this opinion the other justices concurred.
1
The defendant subsequently was convicted of interfering with a search
in violation of General Statutes § 54-33d. See State v. Gonzalez, 144 Conn.
App. 353, 355, 71 A.3d 681, cert. denied, 310 Conn. 914, 76 A.3d 630 (2013).
2
The defendant also was charged with criminal possession of a firearm
in violation of General Statutes (Rev. to 2007) § 53a-217 (a).
3
To protect the privacy interests of the jurors, we refer to them by their
first and last initials.
4
The court commenced its investigation regarding the allegations against
Q.A. on October 20, 2011, and excused Q.A. the following day. C.S. was
absent on October 21, 2011, but had been present on October 20, 2011,
when the court interviewed each juror regarding Q.A.’s alleged refusal to
participate in deliberations.
5
The state subsequently nolled the charge of criminal possession of a
firearm. See footnote 2 of this opinion.
6
‘‘A Chip Smith instruction reminds the jurors that they must act unani-
mously, while also encouraging a deadlocked jury to reach unanimity.’’
(Internal quotation marks omitted.) State v. O’Neil, 261 Conn. 49, 51 n.2,
801 A.2d 730 (2002).
7
General Statutes § 54-82h (c) provides in relevant part: ‘‘If the alternate
juror becomes a member of the regular panel after deliberations began, the
jury shall be instructed by the court that deliberations by the jury shall
begin anew. . . .’’
8
Another alternate juror was substituted for C.S. at this time. See part II
of this opinion.
9
Q.A.’s conduct is distinguishable from that of the excused juror in People
v. Allen, 53 Cal. 4th 60, 264 P.3d 336, 133 Cal. Rptr. 3d 548 (2011), a case
on which the defendant relies. In Allen, a witness testified at trial that he
had seen one of the defendants commit murder, even though a time card
from the witness’ employer indicated that he was at work when the murder
occurred. Id., 64. The witness, who was Hispanic, explained that a coworker
had clocked him into work that day, even though he was not actually at
work. See id. In discussing this testimony, one juror stated: ‘‘That’s a lie. I
know Hispanics, they never cheat on timecards, so this witness . . . was
at work [when the crime occurred], end of discussion.’’ (Internal quotation
marks omitted.) Id., 66. In light of the juror’s comment, the trial court
excused the juror for, inter alia, considering facts outside of the evidence.
Id., 68.
The California Supreme Court held that the trial court improperly had
excused the juror. Id., 78. The court reasoned that the juror had not engaged
in misconduct but, rather, was permissibly applying his life experience to
evaluate a witness’ credibility. Id.
The present case is not analogous to Allen. In the present case, the trial
court found that Q.A. had suggested that witnesses had been bribed. Thus,
unlike the excused juror in Allen, Q.A. was suggesting that witnesses were
not credible because she had information pertaining specifically to the
witnesses themselves, not because her general knowledge and experience
informed her that a witness’ testimony was unreliable. Q.A.’s conduct is
more akin to a juror who personally knows a witness or a party and who
bases her verdict on her past experience with that person instead of the
evidence presented at trial. Cf. State v. Anderson, 65 Conn. App. 672, 675–78,
783 A.2d 517 (2001) (trial court excused juror who stated he knew defendant
from ‘‘ ‘the street’ ’’ and that defendant was ‘‘ ‘not a very nice person’ ’’).
Thus, we reject the defendant’s contention that Allen supports overturning
the trial court’s decision to excuse Q.A. for considering matters extraneous
to the evidence presented at trial.
10
We reject the state’s contention that the defendant failed to preserve
this claim for appellate review. The defendant cited to, and attached copies
of, the leading cases on this point in his motion for a mistrial and motion
for a judgment of acquittal or for a new trial. Thus, the state cannot now
claim to be taken by surprise by this claim on appeal.
11
Some federal and state appellate courts have adopted a heightened
standard that trial courts must apply before excusing a juror for refusing
to deliberate in good faith. For instance, the Ninth Circuit has held that, ‘‘if
the record evidence discloses any reasonable possibility that the impetus
for a juror’s dismissal stems from the juror’s views on the merits of the
case, the court must not dismiss the juror. Under such circumstances, the
trial judge has only two options: send the jury back to continue deliberating
or declare a mistrial.’’ (Emphasis in original; footnote omitted.) United States
v. Symington, supra, 195 F.3d 1087. Other jurisdictions follow variants of
that basic rule. See, e.g., United States v. Abbell, 271 F.3d 1286, 1302 (11th
Cir. 2001) (juror cannot be excused unless it is established ‘‘ ‘beyond [a]
reasonable doubt’ ’’ that he or she is not being excused for views on merits
of case), cert. denied, 537 U.S. 813, 123 S. Ct. 74, 154 L. Ed. 2d 16 (2002);
United States v. Thomas, supra, 116 F.3d 622–23 (juror may not be excused
if there is ‘‘ ‘any possibility,’ ’’ instead of any reasonable possibility, that
juror’s view of merits of case serves as basis for request to excuse). But
see People v. Cleveland, 25 Cal. 4th 466, 484, 21 P.3d 1225, 106 Cal. Rptr.
2d 313 (2001) (rejecting heightened standard and ruling that dismissal is
permissible if there is ‘‘a ‘demonstrable reality’ that the juror is unable or
unwilling to deliberate’’).
The courts that have adopted a heightened standard have done so in
recognition of ‘‘the difficulty in detecting the difference between a juror’s
illegal act of nullification, by deciding to vote against the weight of the
evidence, and the juror’s failure to be convinced of the defendant’s guilt.’’
United States v. Baker, 262 F.3d 124, 131 (2d Cir. 2001). Applying a height-
ened standard when a juror has been accused of refusing to deliberate in
good faith ‘‘protects not only against the wrongful removal of jurors; it also
serves to protect against overly intrusive judicial inquiries into the substance
of the jury’s deliberations.’’ United States v. Thomas, supra, 116 F.3d 622.
Specifically, requiring trial courts to engage in this type of an inquiry is
intended to prevent a court from mistakenly excusing a juror for having
doubts about the sufficiency of the evidence against a defendant, which
violates a defendant’s sixth amendment right to a unanimous jury. See
United States v. Brown, supra, 823 F.2d 596. Applying a heightened standard
is also intended to prevent the appearance that a trial court is ‘‘reconstituting
a jury in order to reach a particular result,’’ in violation of the defendant’s
right to an impartial jury under the sixth amendment. State v. Elmore, 155
Wash. 2d 758, 772, 123 P.3d 72 (2005); see id. (‘‘[i]f a holdout juror is dismissed
in a way that implies his dismissal stems from his views on the merits of
the case, then the reconstituted jury may be left with impression that the
trial judge prefers a guilty verdict’’).
The jurisdictions that have adopted a heightened standard, however, have
expressly limited it to cases in which ‘‘the allegations [of juror misconduct]
go to the quality and coherence of the juror’s views on the merits . . . .’’
United States v. Symington, supra, 195 F.3d 1087 n.6. That is, the heighten
standard applies ‘‘only to those dismissals where the juror’s conduct cannot
be evaluated without delving into the reasons underlying the jurors’ views
of the case, i.e., where the deliberative process has been implicated.’’ United
States v. Edwards, 303 F.3d 606, 633 (5th Cir. 2002).
Accordingly, courts do not apply a heightened standard when a juror is
accused of engaging in misconduct that does not relate to the substance of
jury deliberations. Specifically, they do not apply the heightened standard
when a juror is alleged to have considered extrinsic evidence during delibera-
tions. See id., 632–33; see also United States v. Ebron, supra, 683 F.3d
127–28. Courts do not apply the heightened standard in such instances
because ‘‘accusations that a deliberating juror has discussed or considered
extrinsic evidence . . . can be investigated without direct discussion of the
juror’s views about the merits of the case.’’ (Citations omitted.) State v.
Elmore, supra, 155 Wash. 2d 770.
12
After the jury found the defendant guilty, the defendant also filed a
motion for a judgment of acquittal or for a new trial on the ground that the
trial court improperly had replaced Q.A. and C.S. with alternate jurors instead
of declaring a mistrial. The trial court denied this motion, as well.
13
In addition to objecting to the admission of the video recording at trial,
the defense also filed a motion in limine prior to trial seeking to exclude
from evidence the video recording of the buccal swab incident.
14
The defendant claims that, even if he failed to preserve the issue of the
admissibility of the detective’s testimony, we nevertheless should resolve
that issue in the defendant’s favor under the plain error doctrine if we decide
that it was improper to admit the video recording. Because we conclude that
the trial court did not abuse its discretion in admitting the video recording, we
reject the defendant’s claim under the plain error doctrine. See, e.g., State
v. Darryl W., 303 Conn. 353, 373, 33 A.3d 239 (2012) (reversal under plain
error doctrine first requires determination that trial court committed error).