State v. Biggs ( 2017 )

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STATE OF CONNECTICUT v. FRANK
EDWARD BIGGS
(AC 38528)
Sheldon, Prescott and Bear, Js.
Syllabus
Convicted, following a jury trial, of the crimes of larceny in the second
degree, conspiracy to commit larceny in the second degree, larceny in
the third degree as an accessory, conspiracy to commit larceny in the
third degree, and engaging police in pursuit, and, following a plea of
nolo contendere, of being a persistent felony offender and a persistent
serious felony offender, the defendant appealed to this court. He claimed,
inter alia, that the trial court violated his right to an impartial jury
by failing to conduct an adequate investigation into a claim of juror
misconduct that he had brought to the court’s attention on the date
originally scheduled for his sentencing. The claim involved an incident
in which a juror made a comment to H, the defendant’s friend, about
the defendant’s trial while the trial was ongoing, in violation of the
court’s order to the jurors not to discuss the case with anyone. The trial
court conducted a preliminary inquiry into the claim but did not hold
an evidentiary hearing, as the defendant requested, to hear testimony
from the juror involved in the alleged misconduct because the court
found, on the basis of H’s testimony during the preliminary inquiry, that
the defendant had not been prejudiced by the juror’s conversation with
H, in which the juror indicated that the state’s case against the defendant
was weak. Held:
1. The defendant could not prevail on his unpreserved claim that, pursuant
to Remmer v. United States (347 U.S. 227), the trial court improperly
failed to accord him a presumption that the juror’s communication to
H was prejudicial in determining whether the defendant met his burden
of proving that he had been prejudiced by the juror’s communication,
there having been no constitutional violation; the defendant was not
entitled to the Remmer presumption of prejudice, he having failed to
prove that the court was implicated in the juror misconduct, or that
there was an external interference with the jury’s deliberative process
via a private communication, contact or tampering with jurors that
related directly to the case being tried.
2. The trial court did not abuse its discretion when it declined, after conduct-
ing its preliminary inquiry into the defendant’s claim of juror misconduct,
to hold a further evidentiary hearing to receive the juror’s testimony
because it was persuaded by the evidence from its preliminary inquiry
that the defendant had not been prejudiced by the juror’s misconduct;
the court properly determined, on the basis of H’s testimony during the
preliminary inquiry, that the juror’s conversation with H was largely
nonsubstantive and did not involve extrinsic information that might
have interfered with the jury’s deliberative process or caused the juror
to develop an allegiance to either party.
3. The trial court violated the defendant’s right against double jeopardy by
sentencing him on separate charges of conspiracy to commit larceny
in the second degree and conspiracy to commit larceny in the third
degree, which both stemmed from a single, unlawful agreement to steal
money from the victim; accordingly, the defendant’s separate sentence
and conviction of conspiracy to commit larceny in the third degree
could not stand and had to be vacated.
Argued January 30—officially released September 26, 2017
Procedural History
Two part substitute information charging the defen-
dant, in the first part, with the crimes of larceny in the
second degree, conspiracy to commit larceny in the
second degree, larceny in the third degree, conspiracy
to commit larceny in the third degree and engaging
police in pursuit, and, in the second part, with being a
persistent felony offender and a persistent serious fel-
ony offender, brought to the Superior Court in the judi-
cial district of New Britain, geographical area number
fifteen, where the first part of the information was tried
to the jury before Alander, J.; verdict of guilty; there-
after, the defendant was presented to the court, D’Ad-
dabbo, J., on a plea of nolo contendere to the second
part of the information; judgment of guilty; subse-
quently, the court, Alander, J., denied the defendant’s
motion for a hearing regarding allegations of juror mis-
conduct and rendered judgment in accordance with the
verdict and plea, from which the defendant appealed
to this court. Reversed in part; judgment directed.
David B. Bachman, assigned counsel, for the appel-
lant (defendant).
Rita M. Shair, senior assistant state’s attorney, with
whom were Brian Preleski, state’s attorney, and, on
the brief, David Clifton, assistant state’s attorney, for
the appellee (state).
Opinion
SHELDON, J. The defendant, Frank Edward Biggs,
appeals from the judgment of conviction rendered
against him following a jury trial in the judicial district
of New Britain on charges of larceny in the second
degree as an accessory in violation of General Statutes
§§ 53a-123 (a) (3)1 and 53a-8 (a); conspiracy to commit
larceny in the second degree in violation of General
Statutes §§ 53a-48 (a) and 53a-123 (a) (3); larceny in
the third degree as an accessory in violation of General
Statutes §§ 53a-124 (a) (2)2 and 53a-8 (a); conspiracy
to commit larceny in the third degree in violation of
General Statutes §§ 53a-48 (a) and 53a-124 (a) (2); and
engaging police in pursuit in violation of General Stat-
utes § 14-223 (b). After the jury returned its guilty ver-
dict, the trial court found the defendant guilty on
additional charges of being a persistent felony offender
in violation of General Statutes (Rev. to 2011) § 53a-40
(f) and being a persistent serious felony offender in
violation of General Statutes § 53a-40 (c), upon his plea
of nolo contendere to those charges under a part B
information. The defendant ultimately was given a sepa-
rate sentence on each of the seven charges for a total
effective term of nine years of incarceration followed
by five years of special parole.3
The defendant claims on appeal that the court (1)
abused its discretion and violated his right to an impar-
tial jury by failing to conduct an adequate investigation
as to a claim of juror misconduct that he brought to
its attention on the date originally scheduled for his
sentencing and (2) violated his constitutional right
against double jeopardy by imposing separate senten-
ces upon him on two counts of conspiracy that were
based upon a single conspiratorial agreement. The state
disputes the defendant’s juror misconduct claim, con-
tending that the court adequately investigated and prop-
erly disposed of that claim. It agrees with the defendant,
however, that the court violated his right against double
jeopardy by imposing separate sentences upon him on
two counts of conspiracy that were based upon a single
conspiratorial agreement. We agree with the state, and
therefore we affirm the trial court’s judgment on all
charges except for conspiracy to commit larceny in the
third degree, and remand this case to the court with
direction that the defendant’s sentence and resulting
conviction on that charge be vacated pursuant to State
v. Polanco, 308 Conn. 242, 259–60, 61 A.3d 1084 (2013).
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts.
During the early afternoon of August 27, 2011, James
Peterson, the eighty-eight year old uncle of the owner
of Hooters Restaurant in Wethersfield, transported two
bags of daily proceeds from Hooters to the TD Bank
in Berlin to make a cash deposit in the amount of $7242.
In the parking lot outside of the bank, Peterson encoun-
tered and briefly chatted with a friend, Dean Clemens.
After their conversation was over, and while Clemens
was returning to his truck, he saw a man in the entrance
to the bank grab the deposit bags in from Peterson and
run away. Peterson first screamed at the man, who
ran north, around the bank, and then cut through the
neighboring Dunkin’ Donuts parking lot. Thereafter,
while attempting to follow the man in his truck, Clem-
ens saw the man enter the passenger side of a newer
black or dark blue Cadillac in the parking lot adjacent
to the Dunkin’ Donuts parking lot. As soon as the man
entered the Cadillac, Clemens saw it speed out of the
parking lot and turn east onto Farmington Avenue. Due
to traffic in the bank parking lot, Clemens was initially
unable to follow the Cadillac directly. He did, however,
immediately notify the local police of what he had just
seen by calling 911. Clemens told the 911 operator that
there had been a ‘‘bank robbery’’ at the TD Bank and
he was then pursuing the robbers’ getaway vehicle.
After accelerating to catch up to the Cadillac, he eventu-
ally was able to see its license plate number, which
he relayed to the 911 operator. The license plate was
registered to Whitney L. Johnson of Hamden. When
Clemens was stopped behind the Cadillac at a stop
light, he saw someone sit up in its backseat. He also
noticed that the driver of the Cadillac was wearing a
Boston Red Sox hat. After police officers joined in the
pursuit of the Cadillac, Clemens returned to the bank
and gave a statement to the officers from the Berlin
Police Department who had responded to that location
after the incident occurred.
Kelly Waas was getting coffee at the Dunkin’ Donuts
next to TD Bank when the incident occurred. While
seated in her car in the drive-through lane, she saw a
dark Cadillac driving back and forth in the adjacent
parking lot. She noticed that the driver of the Cadillac
was a black man with a husky build who was wearing
a red baseball cap. She then saw a young black man
run past her car and get into the rear passenger seat
of the Cadillac, after which the Cadillac ‘‘took off like
a bullet.’’ Waas also reported her observations to the
Berlin police officers who had responded to the bank
after the incident was reported.
Also on the morning of the incident, patrol Officer
Eric Chase of the Berlin Police Department was on
duty in his marked police cruiser when his dispatcher
radioed a ‘‘BOLO’’4 for a Cadillac that had reportedly
been involved in a ‘‘robbery’’ at TD Bank. Recalling that
a Cadillac matching the dispatcher’s description had
just passed him as he was driving southbound on the
Berlin Turnpike, Chase accelerated to overtake the
Cadillac, and eventually was able to maneuver his
cruiser behind it so he could see its license plate. By
so doing, he was able to confirm that it was the Cadillac
described in the BOLO. He then activated his lights and
siren in an unsuccessful attempt to pull over the
Cadillac.
As Chase’s pursuit continued, other officers were
setting up emergency operations at a firehouse farther
south along the Berlin Turnpike in advance of an
impending hurricane. When Lieutenant James Gosselin,
a member of the hurricane response team, heard the
broadcast about the fleeing Cadillac, he maneuvered
his vehicle across the southbound lanes of the highway
in an effort to stop it. To get around the vehicle, how-
ever, the operator of the Cadillac drove over the right
curb of the highway, across the grass, and around some
vehicles stopped at a nearby intersection. Chase initially
followed the Cadillac around the vehicle and continued
to pursue it southbound on the Berlin Turnpike,
reporting as he did so that there appeared to be two
people in the vehicle, one in the driver’s seat and the
other in the front passenger’s seat. He ended his pursuit,
however, at the Meriden city line because by then he
could no longer see the Cadillac.
Later on the day of the incident, Hamden police offi-
cers went to the address of Johnson, the registered
owner of the Cadillac, who was then the defendant’s
fiance´e. Johnson told the police officers that the defen-
dant had been using the Cadillac that day, and that he
in fact had been using it throughout the month of
August, 2011. Johnson stated that her brother had called
her earlier in the day when police officers first went to
her residence to inquire about the Cadillac. During that
call, her brother had told her that the police were
investigating a vehicle that had been involved in the
commission of a crime. Johnson then called the defen-
dant and informed him that the police were at her resi-
dence looking for the Cadillac. Sounding upset, the
defendant then told Johnson that he, too, was looking
for the Cadillac because it had been stolen from him
earlier. The day of the incident was to have been the
day of Johnson’s and the defendant’s wedding shower.
When Johnson asked the defendant over the telephone
what he was going to do about the shower, the defen-
dant replied that he would not be coming to the shower.
When Johnson later asked him about their wedding
plans, moreover, he told her that the wedding would
not be taking place, and, in fact, that he was unsure if
or when she would ever see him again.
A couple of days later, Chase was dispatched to Meri-
den to investigate an abandoned motor vehicle. Upon
his arrival, Chase recognized the vehicle from its license
plate as the Cadillac he had pursued on the Berlin Turn-
pike after hearing the report of its use in a bank robbery.
He took photographs of the Cadillac, including one of
its untampered-with locking mechanism to show that
a key must have been used to start and stop the vehicle.
The Cadillac was then towed to the Berlin Police
Department, where it was searched pursuant to a
warrant.
The search of the Cadillac led to the discovery of the
defendant’s driver’s license, along with receipts from
an AutoZone store in Hamden and a Dunkin’ Donuts
in Wethersfield. The receipt from Dunkin’ Donuts was
dated about one-half hour before the start of the inci-
dent at TD Bank, and the contents of the cup found
in the vehicle matched the order of coffee that was
documented on the Dunkin’ Donuts receipt. Police sub-
sequently examined surveillance videos from AutoZone
and Dunkin’ Donuts from the morning of the incident,
which showed the defendant, wearing a Boston Red
Sox hat, making purchases in both establishments. The
surveillance video from AutoZone also showed the blue
Cadillac the defendant was reportedly driving on the
day of the incident.
Steven Kostka, a Berlin police officer assigned to the
investigation, later interviewed Johnson again. In this
second interview, Johnson told Kostka that the defen-
dant had told her that the Cadillac was stolen on the
night before the incident. The defendant later contacted
Kostka on November 9, 2011, after Kostka had left him
a message explaining that an active warrant was out
for his arrest in connection with the incident. The defen-
dant told Kostka that he would turn himself in to the
police once his finances were in order. The defendant,
however, never turned himself in, and on January 17,
2012, more than two months after he called Kostka, he
was arrested. Additional facts will be set forth as nec-
essary.
I
INVESTIGATION OF JUROR MISCONDUCT
The defendant’s first claim on appeal is that the court
abused its discretion and violated his right to an impar-
tial jury by failing to conduct an adequate investigation
of a claim of juror misconduct that he brought to the
court’s attention on the date originally scheduled for his
sentencing. The following additional facts are necessary
for our resolution of that claim.
On October 24, 2014, when the defendant appeared
in court for sentencing, defense counsel presented the
court with a notarized statement from one of the defen-
dant’s friends, Darcy Hudson-Monroe, who averred that
on the second day of trial, while she was waiting outside
the New Britain Superior courthouse before entering
for the morning session, she ‘‘ran into’’ and had a brief
conversation with a one of her former coworkers, A.S.,5
who was then serving on the defendant’s jury. The affi-
davit stated that after Hudson-Monroe and A.S. greeted
one another and asked each other what they were doing
at the courthouse, Hudson-Monroe told A.S. that she
was there ‘‘waiting for my friend [the defendant
because] he is on trial today.’’ A.S. reportedly responded
to that statement by saying that he was there serving
as a juror in that case. Hudson-Monroe then asked A.S.
how the case was going. He responded that ‘‘ ‘[t]hey
have no real hard evidence against him.’ ’’ Hudson-Mon-
roe ended their conversation by remarking, ‘‘ ‘that’s
good so you should not be doing jury duty for any length
of time.’ ’’ They then said goodbye to one another and
went separately into the courthouse.
After reviewing the affidavit, the court stated that it
was required by law to make a preliminary inquiry into
the defendant’s claim of juror misconduct. Defense
counsel informed the court that, in anticipation of such
an inquiry, he had told Hudson-Monroe that she might
have to testify about her statement. By the time the
court was ready to hear from her, however, Hudson-
Monroe had left the courthouse.
Later that day, with Hudson-Monroe still absent from
the courthouse, the court determined that if her affida-
vit was true, then A.S. had engaged in misconduct by
speaking with her about the case because he had been
instructed on several occasions not to discuss the case
with anyone. Even so, the court noted that A.S.’s
reported statement that ‘‘ ‘[t]hey have no real hard evi-
dence against him’ ’’ was essentially accurate because
by that point in the trial, only circumstantial evidence
had been presented.
The court then stated that the law governing claims
of juror misconduct was set forth in State v. Bozelko,
119 Conn. App. 483, 494, 987 A.2d 1102, cert. denied,
295 Conn. 916, 990 A.2d 867 (2010), cert. denied,
U.S. , 134 S. Ct. 1314, 188 L. Ed. 2d 331 (2014), which
held that when the court itself is not responsible for
alleged juror misconduct, the defendant bears the bur-
den of proving that actual prejudice resulted from such
misconduct. It thus asked defense counsel to specify
what prejudice had resulted from the misconduct he
had reported. Although counsel initially responded that
he could not identify any such prejudice, he suggested
that he might be able to establish prejudice through
Hudson-Monroe’s live testimony. At the same time,
however, defense counsel conceded that he had no
evidence of juror misconduct or resulting prejudice to
the defendant’s right to a fair trial other than that
described in Hudson-Monroe’s affidavit.
Although the court noted that it could not presume
that there was further evidence of prejudice, it gave
the defendant several days to bring Hudson-Monroe
before the court to testify. When defense counsel asked
if the court also planned to call the offending juror,
A.S., into court to testify, the court stated that it had
no such plan at that time because it first needed to hear
from Hudson-Monroe to determine if her statement was
credible, and then, if her statement was found to be
credible, it would determine, in light of her testimony,
whether there was any need for the juror’s testimony
as well.
On October 29, 2014, Hudson-Monroe returned to
court to testify about the substance of her statement.
In her testimony on direct examination, the following
exchange occurred between her and defense counsel:
‘‘Q. All right, Ms. [Hudson-Monroe], do you know
[the defendant]?
‘‘A. Yes, I do. . . .
‘‘Q. And prior to this trial, did you know [the
defendant]?
‘‘A. Yes.
‘‘Q. And how is it you know [the defendant]?
‘‘A. [The defendant] and I used to date about twenty
years ago.
‘‘Q. And have you kept in touch with him on and off
since then?
‘‘A. Somewhat.
‘‘Q. Can you tell me a little about yourself? Are
you employed?
‘‘A. I’m retired.
‘‘Q. Okay. And what are you retired from?
‘‘A. Corrections.
‘‘Q. Corrections with what state?
‘‘A. Connecticut.
‘‘Q. How long did you work for corrections?
‘‘A. Almost twenty-one years.
‘‘Q. And during the course of that employment with
the state, Department of Correction, did you get to
know an [A.S.]?
‘‘A. Yes. . . .
‘‘Q. And did you ever work with [A.S.]?
‘‘A. Yes, I did.
‘‘Q. And can you tell me approximately how long you
worked with him?
‘‘A. Maybe nine or ten years.
‘‘Q. And did there come a time that you ran into [A.S.]
in this courthouse?
‘‘A. Outside.
‘‘Q. Will you tell me approximately when that
occurred?
‘‘A. Um, August, I can’t remember the date. I know
it was a date that [the defendant] was coming to find out
if he was guilty or not. I just don’t remember the date.
‘‘Q. So, you ran into [A.S.].
‘‘A. Yes, I did.
‘‘The Court: When you say outside, do you mean
outside the courthouse?
‘‘The Witness: Yes, sir.
‘‘The Court: Okay.
‘‘Q. Can you tell me what happened—
‘‘A. Sure.
‘‘Q. —outside the courthouse?
‘‘A. Okay. I was sitting outside with my grandson,
and I saw [A.S.] coming up and I got up to go, you
know, greet him, because I haven’t seen him in four
years. I’ve been retired now for four years. So, we
walked up to one another, gave one another a brief
embrace and asked both at the same time, what are
you doing here? And I said, oh, my friend is in court.
My friend, [the defendant], is in court. And he said, oh,
I’m on duty, I have jury duty. I said, oh, I said, well,
how is it going? He said, oh, well, it’s not going too
bad. They don’t have much evidence on him. And I said,
okay, so you shouldn’t be here long. He said, no, not
really, but you never know. And I said, okay, good to
see you, and I introduced him to my grandson, we gave
a brief embrace, I went and sat back down, waited for
[the defendant] to come into court, and he came into
the courthouse and that’s it.
‘‘Q. Now, when you met [A.S.]—
‘‘A. Um-hum.
‘‘Q. —did you indicate you were here for [the
defendant]?
‘‘A. Yeah, I said my friend, [the defendant].
‘‘Q. And did he indicate what trial he was sitting as
a juror on?
‘‘A. No, he didn’t.
‘‘Q. Now, your statement is slightly different from
that statement.
‘‘The Court: Here it is.
‘‘A. Okay. . . .
‘‘Q. In that statement, didn’t you indicate that he told
you he was a juror on [the defendant’s] case?
‘‘A. He said he was a juror on a case. I don’t
remember—
‘‘Q. On that case?
‘‘A. I don’t remember if it was that case. All I know
he’s saying he’s a juror on the case. . . .
‘‘Q. —you, I believe in your statement, you said,
shortly thereafter we said our goodbyes and proceeded
in the courthouse.
‘‘A. Correct.
‘‘Q. And did you talk about anything else with respect
to this case with [A.S.]?
‘‘A. Absolutely not. I stayed outside with my grand-
son, and he came on inside.
‘‘Q. And did you see him in the courthouse at all after
that encounter outside?
‘‘A. No, I didn’t. When I came in, I sat on the right-
hand side and only stayed for about a half an hour. But
no jurors were in here when we came in.
‘‘Q. And by the time you left, had any jurors come in?
‘‘A. I don’t—oh, no. By the time I left, no. The other
one in here was you, [the defendant], and the gentleman
sitting here and the sheriffs and myself.’’
Thereafter, on the state’s cross-examination of her,
Hudson-Monroe further testified about her encounter
with A.S. as follows:
‘‘Q. Okay. When you were talking about the meeting
outside on the steps of the courthouse—
‘‘A. Um-hum, okay.
‘‘Q. —do you remember about when that was?
‘‘A. I don’t remember the day. Like I said, the date—
I know it was August, a day that [the defendant] had
to come to court because he was finding out if he was
going to be guilty or not, and I don’t remember that date.
‘‘Q. But do you remember, was it in the afternoon?
Was it in the morning?
‘‘A. I came in the morning because I have school, so
I came in the morning.
‘‘Q. Okay. And you said you got here—well, do you
know when you got here?
‘‘A. Um, about 9:15ish.
‘‘Q. Okay. And how long had you been here before
you ran into [A.S.]?
‘‘A. I’m not sure. Maybe a little before ten or so.
‘‘Q. Okay. So, just before ten o’clock is when you
met him?
‘‘A. Yeah.
‘‘Q. And about how much time passed between when
you first met him and when you parted ways?
‘‘A. How much time passed, maybe three minutes or
so. . . .
‘‘Q. Now, to go to the conversation that you had, was
it cordial?
‘‘A. Oh, yeah.
‘‘Q. It was just two friends that met after—
‘‘A. Absolutely. Absolutely.
‘‘Q. —about four years, you said?
‘‘A. Yes, I’ve been retired for four years.’’
At the conclusion of Hudson-Monroe’s testimony,
defense counsel requested the court’s permission to
subpoena A.S. The court responded that even if it
accepted Hudson-Monroe’s testimony as true, and
found on that basis that A.S. had violated its orders not
to discuss the case with anyone, the defendant was still
required by law to prove that he had been prejudiced
by such misconduct before the juror would be called
in to testify about the incident.
Counsel argued that the defendant may have been
prejudiced if he was found guilty ‘‘by a less than impar-
tial jury, and I think that we have enough information
right now to raise that red flag to have him come in and
testify whether he did or didn’t.’’ He conceded again,
however, in response to the court’s specific question on
the subject, ‘‘that there’s nothing about the conversation
that [the juror] may have had with [Hudson-Monroe]
that is prejudicial.’’ Counsel concluded by arguing that,
on the facts of this case, the court was required to
hear testimony from the juror as part of its preliminary
inquiry as to his alleged misconduct under the authority
of State v. Brown, 235 Conn. 502, 519, 526, 668 A.2d
1288 (1995) (requiring court to conduct sua sponte pre-
liminary inquiry as to juror misconduct in exceptional
circumstance where court received anonymous letter
detailing juror’s public divulgence of highly prejudi-
cial information).
The state responded to this argument by noting that
Brown did not require a full evidentiary hearing as to
every allegation of juror misconduct, but only an initial
inquiry to determine if a full hearing was necessary.
Here, it insisted, the court already had conducted a
proper initial inquiry as to the defendant’s allegation
that clearly demonstrated that no further inquiry was
necessary because the juror’s reported statement to
Hudson-Monroe evidenced only his opinion that the
state’s case against the defendant was weak, which
could not have prejudiced the defendant, and that
defense counsel himself had conceded that no identifi-
able prejudice had resulted from the making of that
statement. The state concluded by arguing that even if
the juror was called to testify about the juror’s alleged
misconduct, he could not shed much light on the issue
of prejudice during jury deliberations because he would
not be permitted to testify as to how his encounter with
Hudson-Monroe had affected either his or his fellow
jurors’ decision-making process.
After hearing these arguments, the court ruled that,
even if Hudson-Monroe’s testimony was accepted as
true,6 the defendant had failed to show that any actual
prejudice had resulted from her conversation with A.S.,
and thus he was not entitled to an evidentiary hearing
at which A.S. would be called as a witness. It reasoned
that because A.S.’s statement that ‘‘ ‘[t]hey have no real
hard evidence against him’ ’’ was the extent of his com-
ments about this case, there was no evidence that Hud-
son-Monroe had attempted to influence A.S., or that
A.S. had received any extrajudicial information about
the case. Thus, the court explained that, although any
communication between a juror and a nonjuror that
conveyed extrajudicial information could potentially be
so prejudicial to the defendant’s fair trial rights as to
warrant a further evidentiary inquiry, no such further
inquiry was required here because no such improper
communication had taken place. In the end, the court
concluded that the testimony of Hudson-Monroe as to
her brief encounter with A.S. had given it a sufficient
basis for concluding that the defendant had not been
prejudiced by that encounter because it confirmed that
there had not been ‘‘some other conversation beyond
what she indicated in her affidavit . . . .’’
Against this background, the defendant claims that
the court abused its discretion and violated his right
to an impartial jury by failing to conduct an adequate
investigation of his claim of juror misconduct. On this
score, the defendant argues, more particularly, that the
court (1) erred by failing to presume that he had been
prejudiced by the offending juror’s improper conversa-
tion about the case with Hudson-Monroe, and then by
failing and refusing, in the absence of affirmative proof
of prejudice, to permit the juror to testify to determine
if, by his misconduct, he had violated the defendant’s
right to a fair trial; and (2) thereafter abused its discre-
tion by denying the defendant’s request to subpoena
the juror to testify about his improper conversation
with Hudson-Monroe and its possible consequences.
‘‘[W]hen reviewing claims of juror misconduct on
appeal we recognize that the trial court has wide lati-
tude in fashioning the proper response to allegations
of juror [misconduct]. . . . We [therefore] have limited
our role, on appeal, to a consideration of whether the
trial court’s review of alleged jur[or] misconduct can
fairly be characterized as an abuse of its discretion.’’
(Internal quotation marks omitted.) State v. Roman,
320 Conn. 400, 409, 133 A.3d 441 (2016); id., 411 (holding
denial of defendant’s request for new trial not abuse of
discretion because defendant could not demonstrate
juror misconduct).
‘‘Under the constitution of Connecticut, article first,
§ 8, and the sixth amendment to the United States con-
stitution, the right to a trial by jury guarantees to the
criminally accused a fair trial by a panel of impartial,
indifferent jurors. . . . In cases where a defendant
alleges juror bias or misconduct, the defendant may be
entitled to a new trial if he can raise his allegations
from the realm of speculation to the realm of fact.
. . . In such cases, we ask whether or not the [jury]
misconduct has prejudiced the defendant to the extent
that he has not received a fair trial.’’ (Citations omitted;
internal quotation marks omitted.) Id., 408.
‘‘[A] defendant has been prejudiced if the misbehavior
is such to make it probable that the juror’s mind was
influenced by it so as to render him or her an unfair
and prejudicial juror. . . . We observe that, in accor-
dance with the well settled limitation on inquiring into
the mental processes of jurors; State v. Johnson, 288
Conn. 236, 261, 951 A.2d 1257 (2008); this inquiry does
not involve an inquiry concerning the actual effect of
any misconduct upon one or more jurors.’’ (Citations
omitted; emphasis in original; internal quotation marks
omitted.) State v. Anderson, 163 Conn. App. 783, 794,
134 A.3d 741, cert. denied, 321 Conn. 909, 138 A.3d
931 (2016).
In Remmer v. United States, 347 U.S. 227, 229, 74 S.
Ct. 450, 98 L. Ed. 654 (1954), the United States Supreme
Court declared that ‘‘[i]n a criminal case, any private
communication, contact, or tampering, directly or
indirectly, with a juror during a trial about the matter
pending before the jury is, for obvious reasons, deemed
presumptively prejudicial, if not made in pursuance
of known rules of the court and the instructions and
directions of the court made during the trial, with full
knowledge of the parties. The presumption is not con-
clusive, but the burden rests heavily upon the [g]overn-
ment to establish, after notice to and hearing of the
defendant, that such contact with the juror was harm-
less to the defendant.’’ (Emphasis added.) The defen-
dant now argues, for the first time on appeal, that the
trial court erred in failing to accord him the benefit of
the Remmer presumption when determining if he had
met his burden of proving that he had been prejudiced
by A.S.’s private communication with Hudson-Monroe
during his trial. The defendant raises this claim pursuant
to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d
823 (1989), as modified by In re Yasiel R., 317 Conn.
773, 781, 120 A.3d 1188 (2015). Under this standard, ‘‘[a
defendant] can prevail on a claim of constitutional error
not preserved at trial only if all of the following condi-
tions are met: (1) the record is adequate to review the
alleged claim of error; (2) the claim is of constitutional
magnitude alleging the violation of a fundamental right;
(3) the alleged constitutional violation . . . exists and
. . . deprived the defendant of a fair trial; and (4) if
subject to harmless error analysis, the state has failed to
demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt.’’ (Emphasis in
original; internal quotation marks omitted.) In re Ray-
mond B., 166 Conn. App. 856, 864, 142 A.3d 475 (2016).
We find that the defendant’s claim is reviewable
because the record is adequate for our review and the
claim is of constitutional magnitude. The defendant’s
claim, however, fails on the merits because we hold,
as further discussed, that there is no violation of consti-
tutional law.
The United States Supreme Court later discussed the
Remmer presumption in two cases, Smith v. Phillips,
455 U.S. 209, 212, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982),
and United States v. Olano, 507 U.S. 725, 113 S. Ct.
1770, 123 L. Ed. 2d 508 (1993), and some courts have
interpreted both to restrict the Remmer presumption,
if not to eliminate it entirely. In Smith, the Supreme
Court explained that ‘‘due process does not require a
new trial every time a juror has been placed in a poten-
tially compromising situation. . . . Due process means
a jury capable and willing to decide the case solely on
the evidence before it, and a trial judge ever watchful
to prevent prejudicial occurrences and to determine
the effect of such occurrences when they happen. Such
determinations may properly be made at a hearing like
that ordered in Remmer . . . .’’ Smith v. Phillips,
supra, 217. In Olano, the Supreme Court echoed its
holding in Smith that due process does not require a
new trial in every instance of juror misconduct, and
added, importantly, that there are some instances of
juror misconduct in which a presumption of prejudice
may not apply. United States v. Olano, supra, 739 (hold-
ing that mere presence of alternate jurors during jury
deliberations did not entail sufficient risk of ‘‘chilling’’
deliberations to justify presumption of prejudice). The
court in Olano thus concluded that, while the miscon-
duct at issue in Remmer, involving the attempted brib-
ery of a juror, was appropriately presumed to be
prejudicial, other outside intrusions upon the jury
required proof of prejudicial impact on the defendant’s
right to a fair trial. Id.
In light of these authorities, our Supreme Court dis-
cussed the viability of the Remmer presumption in State
v. Berrios, 320 Conn. 265, 129 A.3d 696 (2016), where
it held that the ‘‘Remmer presumption is still good law
with respect to external interference with the jury’s
deliberative process via private communication, con-
tact, or tampering with jurors that relates directly to
the matter being tried.’’ (Footnote omitted.) Id., 292. As
to misconduct of that sort, the court in Berrios held
that the burden rests on the state to prove that such
misconduct was harmless, although it emphasized that
the burden remains on the defendant to make a prima
facie showing as to his entitlement to the presumption.
Id., 293.
‘‘It is well settled that if the trial court is directly
implicated in juror misconduct, the state bears the bur-
den of proving that misconduct was harmless error.
. . . If, however, the trial court is not at fault for the
alleged juror misconduct, we have repeatedly held that
a defendant who offers proof of juror misconduct bears
the burden of proving that actual prejudice resulted
from the misconduct.’’ (Citation omitted; emphasis
added; internal quotation marks omitted.) State v.
Roman, supra, 320 Conn. 408–409; see also State v.
Anderson, supra, 163 Conn. App. 793–94 (under Ber-
rios, ‘‘unless a defendant can prove, rather than merely
speculate, that the court was directly implicated in juror
misconduct or that there was external interference with
the jury’s deliberative process via private communica-
tion, contact, or tampering with jurors that relates
directly to the matter being tried . . . a defendant can-
not demonstrate an entitlement to a presumption of
prejudice, but bears the burden of demonstrating preju-
dice as a result of the alleged misconduct’’ [citation
omitted; internal quotation marks omitted]).
Our Supreme Court in State v. Brown, supra, 235
Conn. 526–28, instructed that ‘‘a trial court must con-
duct a preliminary inquiry, on the record, whenever
it is presented with any allegations of jury misconduct
in a criminal case, regardless of whether an inquiry is
requested by counsel. Although the form and scope of
such an inquiry lie within a trial court’s discretion,
the court must conduct some type of inquiry in
response to allegations of jury misconduct. That form
and scope may vary from a preliminary inquiry of
counsel, at one end of the spectrum, to a full eviden-
tiary hearing at the other end of the spectrum, and,
of course, all points in between. Whether a preliminary
inquiry of counsel, or some other limited form of pro-
ceeding, will lead to further, more extensive, proceed-
ings will depend on what is disclosed during the initial
limited proceedings and on the exercise of the trial
court’s sound discretion with respect thereto. . . .
‘‘We recognize that the trial judge has a superior
opportunity to assess the proceedings over which he
or she personally has presided . . . and thus is in a
superior position to evaluate the credibility of allega-
tions of jury misconduct, whatever their source. There
may well be cases, therefore, in which the trial court
will rightfully be persuaded, solely on the basis of the
allegations before it and the preliminary inquiry of
counsel on the record, that such allegations lack any
merit. In such cases, a defendant’s constitutional
rights may not be violated by the trial court’s failure
to hold an evidentiary hearing, in the absence of a
timely request by counsel.’’ (Citations omitted; empha-
sis added; footnote omitted.) Id.
Our Supreme Court in Brown further explained that
‘‘[o]ur requirement that any allegations of jury miscon-
duct necessitate some type of preliminary inquiry still
leaves the form and scope of such an inquiry to be
determined by the trial court within the exercise of its
discretion. . . . In the proper circumstances, the trial
court may discharge its obligation simply by notifying
the defendant and the state of the allegations, providing
them with an adequate opportunity to respond and stat-
ing on the record its reasons for the limited form and
scope of the proceedings held. In other circumstances,
the trial court itself may need to cause an investigation
of the allegations of jury misconduct to be conducted
through informal or formal means. If the trial court
determines that a proper assessment of allegations
requires an evidentiary hearing, it possesses wide dis-
cretion in deciding how to pursue an inquiry into the
nature and effect of information that comes to a juror
improperly as well as its potential effect upon the jury
if it learns of it.’’ (Citations omitted; internal quotation
marks omitted.) Id., 529.
When a trial court exercises its discretion as to the
form and scope of an inquiry into allegations of juror
misconduct, it ‘‘should honor the defendant’s request
[for a minimal type of proceeding], unless the court is
persuaded that other factors warrant a more extensive
inquiry. . . . In contrast, although the defendant can
request an evidentiary hearing, the trial court should
not hold such a proceeding if it is persuaded that a
less extensive inquiry is more appropriate in light of
all the circumstances.’’ (Emphasis added.) Id., 530. It
should also consider the seriousness of the allegation
by taking into account ‘‘the prejudicial nature of the
alleged misconduct as well as the nature and degree of
the jury’s alleged involvement in the misconduct.’’ Id.,
531. Brown also advises that, when exercising its discre-
tion as to how to proceed with a claim of juror miscon-
duct, a court should credit the government’s interest
in the finality of judgments, protecting the privacy and
integrity of jury deliberations, preventing juror harass-
ment, and maintaining public confidence in the jury
system. Id., 529–31.
Applying those well settled legal principles to the
present case, we conclude that, although the defendant
is correct that a Remmer presumption of prejudice
applies in certain circumstances, he failed to prove that
he was entitled to such a presumption here.
The mere introduction of evidence of juror miscon-
duct, even if proven true, does not entitle a defendant
to a Remmer presumption of prejudice. Under Remmer,
prejudice is not presumed unless the court is implicated
in the alleged conduct, or there was an external interfer-
ence with the jury’s deliberative process via private
communication, contact, or tampering with jurors that
relates directly to the matter being tried. State v. Ander-
son, supra, 163 Conn. App. 793. The defendant has
proved neither.
The court exercised its broad discretion to select an
appropriate method for investigating and evaluating the
defendant’s claim of juror misconduct. See State v.
Brown, supra, 235 Conn. 526–28. After receiving Hud-
son-Monroe’s notarized statement, it determined that,
if the allegations within it were true, then juror miscon-
duct had occurred. Therefore, it scheduled an eviden-
tiary hearing to investigate the nature of the reported
misconduct by allowing the defendant to call Hudson-
Monroe to testify. Because the court itself was not impli-
cated in the alleged misconduct, the defendant could
have proved that he was entitled to a presumption of
prejudice only if he demonstrated that the communica-
tion at issue constituted an external interference with
the jury’s deliberative process via private communica-
tion, contact, or tampering with jurors that relates
directly to the matter being tried. See State v. Berrios,
supra, 320 Conn. 292; State v. Anderson, supra, 163
Conn. App. 793. He failed to do so.
Although the complained-of conversation related
directly to the matter being tried, the court determined,
and the defendant conceded, that A.S.’s statement to
Hudson-Monroe that ‘‘ ‘[t]hey have no real hard evi-
dence against him’ ’’ was not in any way an interference
with the jury’s deliberative process. The court found
that Hudson-Monroe’s testimony confirmed the essence
of her notarized statement and thus added nothing to
that statement tending to indicate that she had made
any attempt to influence A.S. It further found that A.S.
was not thereby given, nor did he receive, any extrajudi-
cial information about the case, and that nothing about
the conversation threatened A.S.’s ability to decide the
case fairly and impartially, based solely upon the evi-
dence presented at trial. No further inquiry was required
here because no such improper communication had
taken place that rose to the level of constituting an
external interference.
We conclude that the court properly determined that
the communication between Hudson-Monroe and A.S.
was largely nonsubstantive and did not introduce
extrinsic information of any kind, let alone that which
might either have interfered with the jury’s deliberative
process or caused A.S. to develop an allegiance to either
party.7 See State v. Roman, supra, 320 Conn. 410–11.
As such, the court did not abuse its discretion when,
upon hearing testimony from Hudson-Monroe in the
course of its initial inquiry into A.S.’s misconduct, it
declined to hold a further evidentiary hearing to receive
A.S.’s testimony about his misconduct, even after the
defendant requested such a hearing, because it was
persuaded by the evidence before it that its own lesser
inquiry had established adequately that the defendant
had not been prejudiced by such misconduct. See State
v. Brown, supra, 235 Conn. 526.
II
DOUBLE JEOPARDY CLAIM
The defendant next claims that the court erred when
it violated his right against double jeopardy by sentenc-
ing him separately on two counts of conspiracy that
were based upon the same conspiratorial agreement.
Specifically, he argues that the trial court committed
plain error when it rendered judgment and sentenced
him on the charges of conspiracy to commit larceny in
the second degree and conspiracy to commit larceny in
the third degree because both of those counts stemmed
from a single unlawful agreement to steal the deposit
bags from Peterson. The state concedes that there was
only one conspiracy, the agreement to commit larceny,
and therefore that the conviction on the two conspiracy
counts constitutes a violation of the defendant’s right
against double jeopardy. We agree and conclude that
vacatur is the appropriate remedy for the double jeop-
ardy violation resulting from the defendant’s conviction
of two counts of conspiracy that were based upon a
single conspiratorial agreement.
The defendant acknowledges that he failed to raise
the present claim before the trial court, but argues that
the claim is reviewable on appeal under the plain error
doctrine embodied in Practice Book § 60-5. Because,
however, the defendant’s claim is ‘‘based on a violation
of the prohibition against double jeopardy afforded
under the state and federal constitutions . . . the claim
is reviewable under [State v. Golding, supra, 213 Conn.
239–40] because the record is adequate for review, and
the claim is of constitutional magnitude. . . . The
defendant claims that he received multiple punishments
for the same offense in a single trial. A defendant may
obtain review of a double jeopardy claim, even if it is
unpreserved, if he has received two punishments for
two crimes, which he claims were one crime, arising
from the same transaction and prosecuted at one trial
. . . . Because the claim presents an issue of law, our
review is plenary.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Urbanowski, 163 Conn.
App. 377, 386–87, 136 A.3d 236, cert. granted on other
grounds, 321 Conn. 905, 138 A.3d 280 (2016).
‘‘The double jeopardy clause of the fifth amendment
to the United States constitution provides that no per-
son shall be subject for the same offense to be twice
put in jeopardy of life or limb. This clause prohibits
not only multiple trials for the same offense but also
multiple punishment for the same offense. . . . Double
jeopardy analysis in the context of a single trial is a
two-step process. First, the charges must arise out of the
same act or transaction. Second, it must be determined
whether the charged crimes are the same offense. Multi-
ple punishments are forbidden only if both conditions
are met.’’ (Internal quotation marks omitted.) State v.
Brown, 132 Conn. App. 251, 255, 31 A.3d 434 (2011),
cert. denied, 303 Conn. 922, 34 A.3d 396 (2012).
‘‘A single agreement to commit several crimes consti-
tutes one conspiracy. . . . [M]ultiple agreements to
commit separate crimes constitute multiple conspirac-
ies.’’ (Internal quotation marks omitted.) State v.
Ellison, 79 Conn. App. 591, 599, 830 A.2d 812, cert.
denied, 267 Conn. 901, 838 A.2d 211 (2003).
In the present case, the defendant was convicted and
sentenced on separate charges of conspiracy to commit
larceny in the second degree in violation of §§ 53a-48 (a)
and 53a-123 (a) (3), and conspiracy to commit larceny
in the third degree in violation of §§ 53a-48 (a) and 53a-
124 (a) (2) that were based upon a single conspiratorial
agreement. The state concedes that ‘‘[b]ased on [its]
long form information and the evidence presented at
trial, there was only one unlawful agreement,’’ which
was the agreement to commit larceny of the deposit
bags from Peterson. We conclude that the defendant’s
conviction of and sentencing on both the charge of
conspiracy to commit larceny in the second degree and
the charge of conspiracy to commit larceny in the third
degree constitute multiple punishments for the same
offense. Accordingly, as the state concedes, the third
prong of Golding is met. Cf. In re Raymond B., supra,
166 Conn. App. 864. Therefore, the defendant’s separate
sentence and resulting judgment of conviction on the
count of conspiracy to commit larceny in the third
degree must be reversed, and the case must be
remanded to the trial court with direction to vacate the
defendant’s sentence and judgment of conviction on
that charge. See State v. Wright, 320 Conn. 781, 829–30,
135 A.3d 1 (2016) (holding that vacatur, rather than
merger, of two of three conspiracy counts based upon
single conspiratorial agreement was proper remedy for
defendant’s multiple convictions in violation of his con-
stitutional right against double jeopardy); see also State
v. Polanco, supra, 308 Conn. 259–60.
The judgment is reversed only as to the conviction
of conspiracy to commit larceny in the third degree
and the case is remanded with direction to vacate the
judgment as to that conviction; the judgment is affirmed
in all other respects.
In this opinion the other judges concurred.
1
In relation to the count on larceny in the second degree, the long form
information charged the defendant in relevant part ‘‘[with taking] property
from the person of another, to wit: a deposit bag from the hands of John
Peterson . . . .’’
2
In relation to the count on larceny in the third degree, the long form
information charged the defendant in relevant part ‘‘[with taking] property
valued over $2000, to wit: the other person physically taking the deposit
bag containing money in the approximate amount of $7242 from John
Peterson and the defendant driving that other person from the scene with
the stolen property . . . .’’
3
The defendant was sentenced to a period of eight years of incarceration
and five years of special parole for the crime of larceny in the second
degree as enhanced by being a persistent felony offender; eight years of
incarceration and five years of special parole, to run concurrently, for the
crime of conspiracy to commit larceny in the second degree; four years of
incarceration, to run concurrently, for the crime of larceny in the third
degree as an accessory; four years concurrent for the crime of conspiracy
to commit larceny in the third degree; and one year of incarceration, to run
consecutively, for engaging police in pursuit.
4
‘‘BOLO’’ stands for ‘‘be on the lookout.’’
5
In accordance with our usual practice, we identify jurors by initials in
order to protect their privacy interests. See, e.g., State v. Osimanti, 299
Conn. 1, 30 n.28, 6 A.3d 790 (2010).
6
The court noted that there was a discrepancy between Hudson-Monroe’s
written statement and her in-court testimony as to whether A.S. informed
her that he was serving on the defendant’s jury. The court ultimately dis-
missed that discrepancy as an unimportant detail.
7
Although other trial courts have heard testimony from jurors accused
of misconduct before rendering decisions as to whether juror misconduct
occurred and thus prejudiced the defendant; see State v. Anderson, supra,
163 Conn. App. 786 (trial court held evidentiary hearing at which defendant
presented testimony of her daughter, her son, and juror with whom her
daughter allegedly interacted during trial); the court here was within its
province to determine, in its fact specific inquiry, that such testimony was
unnecessary in light of its preliminary inquiry.