DocketNumber: No. CR92-75659
Citation Numbers: 1994 Conn. Super. Ct. 2552
Judges: FREEDMAN, J.
Filed Date: 3/11/1994
Status: Non-Precedential
Modified Date: 4/18/2021
"A necessary component of the right to an impartial jury trial is the right to have the jury decide the case `solely on the basis of the evidence and arguments given them in the adversary arena after proper instructions on the law by the court.'" State v. Migliaro,
IB
Where it appears that the jury may have been exposed to prejudicial extrinsic evidence, the trial court should conduct an investigation to determine whether juror misconduct occurred. State v. Migliaro, supra, 396. The Appellate Court has made it clear that the "trial court enjoys broad discretion in determining whether jury misconduct occurred, and, if so, whether such misconduct prejudiced the defendant. . . ." State v. Brown,
While the trial judge "has wide discretion 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 . . ."; State v. Rodriguez, supra, 326; "under State v. Asherman, . . . inquiry could not be made into the mental processes of the jurors, but could explore the use . . . and whether it played any part in the jury's decision." State v. Leonard, supra, 192-93. See also Miller v. United States, supra, 83 n. 11. "[T]he trial court is not concerned with mental processes of the jurors, but the nature and quantity of the misconduct." Williams v. Salamone,
IC
A claim of juror misconduct based upon allegations that jurors discussed a case prior to deliberation does not automatically require a new trial. State v. Washington,
ID
Where the defendant, through his private investigator, was able to offer some showing on prior discussion or improper conduct as to any juror, (or there was any reason to believe the juror may have heard something) that juror was interrogated by the court. Jurors who, the investigator found, were not involved in such conduct and who did not hear of any such conduct, were not interrogated, in line with the court's policy of making the least possible incursion into the integrity and sanctity of the jury system, since no predicate existed for such an interrogation. Requiring "a satisfactory threshold showing of substantiality before invading the juror's privacy [does not] . . . offend the Constitution." Neron v. Tierney,
"[E]vidence coming from counsel rather than from the juror is . . . hearsay." United States v. Nance,
The court inquired along the lines of our case law: (1) whether comments had been made by certain jurors prior to the commencement of deliberations; (2) whether those comments were in fact improper; (3) whether any jurors considered or viewed extrinsic evidence; (4) whether jurors had been exposed to either improper comments or extrinsic evidence; and (5) whether the defendant was prejudiced by improper comments or extrinsic evidence. See State v. Gonzalez,
II CT Page 2557
The defendant attacks with a shotgun rather than a rifle. The testimony of the jurors falls into five categories: (1) prejudgment of the defendant's guilt or innocence; (2) one juror's alleged visit to, and inspection of, the crime scene; (3) the credibility of the state's chief witness, Rodney Womble; (4) the appearance of witnesses in "jail clothes"; and (5) the physical appearance of a female witness.
PREJUDGMENT OF GUILT OR INNOCENCE
It is significant that every juror interviewed by the defendant's investigator and every juror interrogated by the court (including those who admitted they made comments) made it clear that there was no prejudgment of the defendant's guilt or innocence by any jurors. That much is unanimous, and the court finds it credible. Whatever was said, there is no evidence it compromised the jury in any way.
JUROR'S VISIT TO THE CRIME SCENE
Juror Kowaleski, who lived quite near the area in question, testified that on two or three routine trips to the Trumbull Mall, she took her usual shortest route, which brought her through the intersection that was the site of the shooting at issue in this case; that she did not stop and get out, but merely looked around as she passed through the area; and that she saw nothing that altered or affected her opinion about the case that was based on the evidence under oath. She did not tell any jurors that she drove past the scene, which other jurors corroborated.
The issue for the jury was not the physical scene. The issue was when Rodney Womble lied: in his police statement or in his testimony in court. As the juror herself stated, the incident could have taken place anywhere. The physical scene contributed nothing to what had to be determined by the jury. The juror did not go to the scene to get information, as alleged by the defendant. It is clear from the testimony that nothing that Ms. Kowaleski did affected the outcome of this case. No evidence supports the view urged on us by the defendant.
CREDIBILITY OF THE STATE'S CHIEF WITNESS
There was testimony that jurors' statements were made CT Page 2558 concerning one or more witnesses changing their testimony and lying. When pressed by the court, it was obvious that the testimony was really about Rodney Womble, the state's chief witness. Womble gave two entirely conflicting stories: one to the police who reduced it to a statement that he signed; and one in court particularly on cross-examination.3 The state claimed at trial that Womble told the truth in his statement, but lied in court. The defense contended Womble lied in his statement but testified truthfully in court, particularly on cross-examination. Basic to the theory of both the state's case and the defense case, was the fact that Womble changed his testimony. Both sides conceded he was a liar. They differed on when he lied. Clearly, Womble lied either on cross-examination or he lied in his police statement — that much is not in question. Much of cross-examination was spent attempting to make a lie out of his statement to the police.
Any comments by jurors about Womble simply recognized the obvious and mirrored both the state's and the defendant's view of the case. Since both sides recognized Womble as a liar, it is fatuous to suggest that the recognition of that by one or more jurors somehow prejudiced the defendant. It clearly did not. Logic dictates that the jury ultimately had to base its verdict either on the facts revealed by Rodney Womble's statement to the police, or in his denial of the statement on cross-examination. Any juror discussion about Womble lying did no damage to the defendant since it was totally compatible with the presentation of both sides.
APPEARANCE OF WITNESSES IN JAIL CLOTHES
Rodney Womble and Jared Fleming were both in custody when they testified. Each was accompanied by a corrections officer. In fact, Womble testified on cross-examination that he was in custody and that he was returned to Connecticut to testify in this case. Comments about Womble's prison dress, therefore, had no affect whatsoever on this case.
Jared Fleming was called as a witness by the state, to whom he became increasingly hostile. Like Womble, he gave a statement to the police, and like Womble, his testimony was replete with contradictions when compared to his police statement. He made obvious testimonial departures from his earlier statement. Fleming had a fight with the victim before he was killed. Fleming testified on more than one occasion that CT Page 2559 he did not know who killed the victim, and at one point, claimed he had not heard anything about the shooting. He contributed nothing to the state's case. If he "had not testified, the trial record would have been substantially the same." State v. Francis,
Moreover, Fleming was not a credible witness and only appeared interested in protecting himself. He neither helped nor hurt the defendant; he was not called by the defendant. If any juror comments about veracity were meant to include him, they were strictly de minimus and only stated the obvious without prejudicing the defendant.
APPEARANCE OF FEMALE WITNESS
Comments about the physical appearance of a female witness referred to Vanessa Fleming, Jared's mother. Like her son, she gave the police a story that varied in places from her testimony. Like her son, she was not a credible state's witness (she also had a significant number of larceny convictions); and like her son, she contributed little or nothing of value to the case, testifying that she did not know who shot the victim. Like her son, had she not testified, the record would not have been much different. She neither helped nor hurt the defendant. In fact, there was a significant disagreement between Vanessa and Jared Fleming in their testimony which compromised the testimony of both of them.
This was a one dimensional case. There is no question that it turned on when Womble was truthful and when he was lying. The physical appearance of Vanessa Fleming and what a juror may have said about that appearance could not have helped or hurt the defendant in any way. Her testimony was of no real significance. The court believes that the state proffered her testimony and that of her son only to avoid a Secondino charge. See, Secondino v. New Haven Gas Co.,
With the various factors listed above, the defendant could conceivably argue that while no single factor is sufficient to make a difference, the aggregation of all these factors gives them a legal vitality that they do not have individually. CT Page 2560
The defendant seeks to gain advantage from a conflict in testimony between jurors Powell and Noehren, and the testimony of jurors Towers and Benton. The court does not agree with the defendant's assessment of credibility. The fact that some jurors did not agree was not unusual. Some jurors had some difficulty remembering what happened. Moreover, there was no reason for them to remember, since the actions complained of were obviously of little concern to them. The defense wants the court to see sinister motives on the part of jurors. The court finds none. Sixteen jurors were packed into a small jury room for a number of days. The noise could undoubtedly get intense, and it is doubtful all jurors were able to hear everything. Undoubtedly, some read. Some chatted. Few had reason to be interested in what must have been many idle conversations. Furthermore, the fact of testimonial conflict does not establish the blatant misconduct and prejudice the defendant seeks. The court looked in vain for positive testimony given under oath which supports the defendant's position. A mere conflict in testimony fails to supply the positive evidence of prejudice needed for a new trial. Even if a witness is discredited, that does not establish the opposite of the witness' testimony. Positive evidence is required.
If this court exercised its discretion and ordered a new trial, it would do so in a virtual evidential vacuum — where speculation replaces fact finding, and without concrete support for the defendant's complaints. Any argument that there was prejudice "resides wholly in the realm of speculation and does not substantiate a claim of prejudice." State v. Harris,
Our Supreme Court has rejected the idea that a group of claims of error, none of which is legally viable, can be aggregated to form another claim of error. State v. Tillman,
In finding the correct solution to this case, it is highly important to get the flavor of the case as it unfolded at trial. Accordingly, the court returned to listen to the tapes of the trial to determine whether its impressions of the jury were correct. It was also important to be sure of what could and what could not affect the verdict. The court took our Supreme Court's teaching seriously and wanted to be in a position to justify the confidence that court expressed in State v. Weinberg,
Since the case turned solely on when Womble lied, his statement assumed great importance. Bearing sufficient indicia of reliability, it came in as a Whelan statement. See State v. Whelan,
Most jurisdictions and most commentators are in agreement.
It appeared to the court originally and again on reheating the tapes that there was one clear and cogent moment of truth in Womble's testimony. As a witness he was not helpful to the state on direct examination, and the state ultimately offered his statement On cross-examination, defense counsel used a clever trial strategy — feeding Womble the answers in what were sometimes somewhat long questions and allowing him to answer only "yes" or "no." When counsel's extensive cross-examination CT Page 2562 ended, the state questioned him again on redirect. It was then that the state cut him loose and allowed him to answer questions with more than "yes" or "no." At that time, Womble rather remarkably returned to the information he gave the police and stated categorically that Newsome was, in fact, present at the time and place in question. The court is satisfied that the jury was as impressed as the court with the way he blurted out information he had denied on cross-examination. It was the first time Womble sounded truthful, a fact the court observes, that was obviously not lost on the jury. It was a rare moment — the kind which has the potential to turn a trial around. It came against a background of silence on the part of the many witnesses who were at the scene. The upshot is that the Whelan statement alone, did not cause the defendant's conviction. Freed from the restrictions of a long cross-examination, Womble reverted almost automatically to the truth, before he had a chance to think about it. It was highly damaging to the defendant.
Against this background it is clear that the allegations of juror comments played no role whatsoever in the jury's decision and did not prejudice the defendant. His only harm came from the one witness originally willing to come forward — Rodney Womble. Indeed, this case provides a proper testimonial to the Supreme Court's decision to allow prior inconsistent statements for substantive purposes in Whelan.
This court finds that Mr. Newsome received a fair trial, unencumbered by any prejudice from juror comments.
The law recognizes that jurors are human. Our state and federal supreme courts have both noted that "the Constitution does not require a new trial every time a juror has been placed in a potentially compromising situation . . . [because] it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote." State v. Weinberg,
It is worth restating the obvious. The conversations complained of here were not a product of external influences. They were comments made by a few individual jurors. There was little or no discussion surrounding them. Most jurors were not part of any discussion. There is every indication that none of them in any way prejudiced this defendant, since most of them had nothing to do with the issue upon which this case turned. Any comment about Womble merely repeated what both counsel contended in the assertion of their trial strategies. The jury clearly saw the case the way both counsel wanted them to; they recognized that counsel were correct that Womble was a liar. No reasonable juror could have been influenced by any juror comments, including the jurors who made them. This court believes the jurors did not prejudge the question of guilt or innocence, and that the defendant received a fair trial.
Moreover, the alleged trip to the scene, was not a trip to the scene at all. The juror merely passed through the intersection two or three times without stopping. It played no role in the conviction and was clearly harmless beyond a reasonable doubt. See, Commonwealth v. Jones,
In each situation alleged, the court finds that none of the CT Page 2564 juror comments prejudiced the defendant. Objectively, none of the allegations could have reasonably affected the outcome of the jury deliberations. Therefore, in the absence of any prejudice, the court finds none of the defendant's basic rights implicated. Even if the court were to find that the juror actions did invoke constitutional rights, however, the court is abundantly satisfied that the conduct complained of was harmless beyond a reasonable doubt.
One of the serious problems with the inquiry undertaken here is the imposition on and harassment of a jury which has worked hard, supposedly in secret, to do the difficult job of determining guilt or innocence. Miller v. U.S., supra, 81. The court sensed that a number of jurors were disturbed by being called back into court. Since the court finds no wrongdoing, the court understands why one juror used an off-color expression to describe the defendant's attempt to second-guess them and overturn their verdict. The court is mindful that we stand on a threshold of possibly undermining our long held policy of finality. See Tanner v. U.S.,
The court is similarly concerned with the assault on the integrity of the jury system and its sanctity of jury silence that contributes so heavily to making the jury system acceptable to the public. Every inquiry into jury deliberations is a potential incursion which may damage that system. The system should not be assaulted in the absence of good cause to do so. In Neron v. Tierney,
In State v. Brown, the appellate court held that whether juror consideration of extrinsic information is prejudicial depends on the magnitude of the juror deviation from a proper role, the degree to which the accused was deprived of his rights, and the likelihood that an impropriety affected the jury's verdict. State v. Brown,
For the reasons discussed, the defendant's motion for a new trial is denied.
SAMUEL S. FREEDMAN, J.
APPENDIX A
MEMORANDUM ON MOTION FOR NEW TRIAL
FREEDMAN, J.
The plaintiff moves for a new trial, alleging that: (a) jurors discussed the case before deliberations; (b) one juror went to the scene of the shooting alleged in this case.
At a hearing before the court, the defendant produced evidence gathered by a private investigator from interviews with jurors.
Therefore, because of evidence produced at a hearing by the defendant, the court will hear the testimony of jurors Stephanie Kowalewski, Shelly Towers (alternate), Donald Wales, Barry Powell, Donnie Langley and Beverly Noehren.
Questioning of all jurors will be conducted by the court.
". . . Counsel shall be required to return such copies to the clerk . . . upon completion of the voire dire. Except for disclosure made during voire dire or unless the court orders otherwise (emphasis added) information inserted by jurors shall be held in confidence . . . Such . . . questionnaires shall not constitute a public record."
The court, after hearing evidence, believes that defense counsel's action in using juror questionnaires post-trial, for out of court purposes not sanctioned by the statute (i.e., sending an investigator to interview jurors who sat, and deliberated, in this case) without first securing the approval of the court, is not in accord with the spirit, if not the language of section
Accordingly, the court orders that any future use of those forms, or any information gained from them — as well as any further contact with any member of the jury or alternates who sat in this case — shall be permitted only with the prior approval of the court, and shall be subject to any conditions set forth by the court.
While in the absence of state rules, the court does not suggest misconduct on the part of counsel, the court does question the wisdom of proceeding without court approval, to have a private investigator question jurors after trial. The CT Page 2568 reasons should be patently obvious and are well documented. Among other problems, approval of such acts sets a precedent that invites every losing defendant to investigate the jury that convicted him, even in the absence of any evidence of juror misconduct. The public policy of this state will not permit this.
Since the Superior Court has not yet adopted formal rules for contacting jurors, when good cause exists for that action, the court adopts federal practice regarding post-trial inquiries of jurors.
The parties may not conduct any further inquiries of jurors without permission of the court.
The second circuit has held that ". . . to insure that jurors are protected from harassment a district judge has the power, and sometimes the duty, to order that all post-trial investigation of jurors shall be under his supervision." United States v. Moten,
The federal courts have, with painstaking care, spelled out the critical need for the restrictive rule they have adopted. The logic is compelling. There is no doubt that besides the not inconsequential danger inherent in an assault on the finality of decisions, the consequences of unregulated questioning, such as occurred here, can badly damage the sanctity and vitality of the jury system. In this last bastion of the voire dire, we too often see counsel who continue to put jurors "on trial," treating them like defendants, a practice which heavily contributes to the bad name often given to our courts and our justice system. It is important to avoid further damage to that system which is, after all, one of the cornerstones of democratic government. If evidence from jurors is required it should be obtained by a court appointed officer or "special master" (preferably a commissioner of the Superior Court), subject to the instructions of that court. Counsel's duty to a client is, in this setting, better carried out under court CT Page 2569 approval and supervision.
The court will take steps to summon the six jurors mentioned above, giving them reasonable and adequate notice that they must attend a hearing of this court on Friday, October 29, 1993, at 10 o'clock A.M.
S. FREEDMAN, J.
Louis Neron v. James E. Tierney, Etc. , 841 F.2d 1197 ( 1988 )
James Miller v. United States , 403 F.2d 77 ( 1968 )
State v. Savage , 161 Conn. 445 ( 1971 )
United States v. Oscar H. Klee , 494 F.2d 394 ( 1974 )
United States v. Donald R. Nance, Ii, and Thomas N. Tileston , 502 F.2d 615 ( 1974 )
State v. McCall , 187 Conn. 73 ( 1982 )
McDonald v. Pless , 35 S. Ct. 783 ( 1915 )
Aillon v. State , 168 Conn. 541 ( 1975 )
Secondino v. New Haven Gas Co. , 147 Conn. 672 ( 1960 )
Rushen v. Spain , 104 S. Ct. 453 ( 1983 )
State v. Washington , 182 Conn. 419 ( 1980 )
Remmer v. United States , 74 S. Ct. 450 ( 1954 )
Turner v. Louisiana , 85 S. Ct. 546 ( 1965 )