Argued October 16, 2015.
Substitute information charging the defendant with the crime of robbery in the first degree, brought to the Superior Court in the judicial district of New Haven, and tried to the jury before Blue, J.; thereafter, the court denied the defendant's motion for a mistrial; subsequently, the jury returned a verdict of guilty and the court rendered judgment in accordance with the verdict, from which the defendant appealed.
The defendant, who was convicted of the crime of robbery in the first degree, appealed, claiming that the trial court had improperly denied his motion for a mistrial on the ground that his mother, M, tampered with the jury by speaking to a juror outside of the courthouse about the evidence. The court had learned of the encounter through a note from the juror, J, on the third day of trial. In response to questioning by the court, J testified that M had approached him and asked if he realized that a particular witness had lied. J also testified that he had informed the rest of the jury about the encounter and had discovered that one other juror, E, had witnessed it. Finally, J testified that his ability to decide the case based solely on the evidence had not been compromised as a result of the encounter. E then testified that he recognized M from the courtroom, that he had seen the encounter, and that his ability to decide the case based solely on the evidence also had not been affected. The court then individually questioned each of the remaining jurors, who each testified that they could decide the case based solely on the evidence presented. On the basis of this testimony, the court concluded that the misconduct did not deprive the defendant of a trial before a fair and impartial jury, and denied the defendant's motion for a mistrial. The jury subsequently returned a guilty verdict and the court rendered judgment in accordance with the verdict. On the defendant's appeal, held :
1. This court concluded that the presumption of prejudice established in Remmer v. United States (347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654, 1954-1 C.B. 146) is still good law with respect to external interference with the jury's deliberative process via private communication, contact, or tampering with jurors that relates directly to the matter being tried, and that the presumption is triggered once the trial court determines that jury tampering has occurred, thus shifting the burden to the state to prove that there was no reasonable possibility that any juror was affected in his or her freedom of action as a juror; furthermore, the defendant here had met his burden of showing a prima facie entitlement to the presumption of prejudice because there was no dispute that the comments made by M to J concerned the veracity of a witness and, therefore, directly related to the matter before the jury.
2. The trial court did not abuse its discretion in denying the defendant's motion for a mistrial, the state having met its burden of establishing that there was no reasonable possibility that M's actions affected the jury's ability to act fairly and impartially in deciding the case; the trial court reasonably could have believed the testimony of J and the other jurors that M's actions did not affect their impartiality or their ability to decide the case based solely on the evidence admitted at trial.
Richard E. Condon, Jr., senior assistant public defender, for the appellant (defendant).
Rita M. Shair, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Roger Dobris, senior assistant state's attorney, for the appellee (state).
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js. ROBINSON, J. In this opinion the other justices concurred.
[320 Conn. 266] This appeal requires us to consider the continuing vitality of the presumption of prejudice in jury tampering cases articulated by the United States Supreme Court in Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654, 1954-1 C.B. 146 (1954) ( Remmer I ), which is a question that has divided state and federal courts for more than thirty years in the wake of Smith v. Phillips, 455 U.S. 209, 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). The defendant, Orlando Berrios, Jr., appeals from the judgment of the trial court convicting him, following a jury trial, of robbery [320 Conn. 267] in the first degree in violation of General Statutes § 53a-134 (a) (4). On appeal, the defendant claims that the trial court improperly denied his motion for a mistrial on the
ground that his mother had tampered with the jury by approaching a juror outside the courthouse and speaking to him about the evidence in this case. Relying on the presumption of prejudice articulated in Remmer I ( Remmer presumption), the defendant contends that his mother's jury tampering violated his constitutional right to a fair trial because the state failed to carry its " 'heavy burden'" of proving that her actions did not affect the jury's impartiality. Although we conclude that the Remmer presumption remains good law in cases of external interference with the jury's deliberative process via private communication, contact, or tampering with jurors about the pending matter, we also conclude that the state proved that there was no reasonable possibility that the actions of the defendant's mother affected the jury's ability to decide this case fairly and impartially. Accordingly, we affirm the judgment of the trial court.
The record reveals the following background facts, which the jury reasonably could have found, and procedural history. On December 4, 2011, at approximately 7:20 a.m., the defendant and another man, Bernard Gardner, were driving in a black Hyundai Santa Fe (car) on Cedar Street in the city of New Haven when they came upon the victim, Javier Ristorucci, who was out for a walk. The defendant stopped and exited the car, and while Gardner watched, robbed the victim at gunpoint. The victim gave the defendant his cell phone, cash, and the gray hooded sweatshirt and black jacket that he was wearing at the time. After being flagged down by Leonardo Ayala, a friend of the victim who had just left the scene, Francisco Ortiz, an officer in the New Haven Police Department, saw the car stopped [320 Conn. 268] in the middle of the street with its brake lights on; the defendant was sitting in the driver's seat smoking crack. The victim then told Ortiz that a man in the car with a gun had robbed him.
When Ortiz attempted to stop the car, the defendant drove away, causing a high speed pursuit through the streets of New Haven onto Interstate 91, which ended when the car came to a rest against the guardrail near exit 11 in North Haven. After a brief foot pursuit, Ortiz and several other police officers apprehended the defendant, who had been driving the car. In the meantime, other police officers apprehended Gardner, who was pinned against the highway guardrail in the passenger seat. Following a showup identification, the victim identified the defendant by his hat, clothing, and face as the person who had robbed him. Ortiz found the victim's gray sweatshirt and black jacket when he searched the car; the gun, cash, and cell phone were not recovered.
The state charged the defendant with robbery in the first degree in violation of § 53a-134 (a) (4), and the case was tried to a jury. During trial, a juror, J, informed the trial court that the defendant's mother had approached him on the street outside the courthouse and commented on the veracity of one of the witnesses. Following voir dire of J and the rest of the jurors, the defendant moved for a mistrial on the ground of jury tampering. The trial court denied that motion. The jury subsequently returned a verdict finding the defendant guilty of robbery in the first degree. The trial court rendered a judgment of guilty in accordance with the jury's verdict, and
sentenced the defendant to a total effective sentence of fifteen years imprisonment, followed [320 Conn. 269] by five years of special parole. This appeal followed.
The record reveals the following additional facts and procedural history relevant to the defendant's claim that the trial court abused its discretion in denying his motion for a mistrial on the ground that the jury's impartiality had been compromised by jury tampering. On the third day of evidence, the clerk informed the trial court that J had reported to the clerk that the defendant's mother had approached him " and some communication had occurred." The trial court then read a note from J in which he stated that he had been " approached by the defendant's mother in the parking lot yesterday . . . [at] approximately 3:30 p.m. She attempted to engage me in conversation. I did not respond to her comments." The trial court then questioned J in open court about the note and he stated: " I guess [the defendant's mother] was concerned for which way we were leaning and [she] was asking me if I . . . realized that that last cop was lying. And I made no comment to her and I told her [to] be careful of the gateway that we were walking over so she didn't trip, and I said have a nice evening. So, that was the total."  J further testified that he had informed the rest of the jury about that encounter while he was preparing the note. J assured the trial court that his ability to decide the case based solely on the evidence had not been compromised as a result of the encounter.
[320 Conn. 270] In response to voir dire questions from the defendant, J testified that he did not tell any friends or family what had happened, and had informed only the other jurors. When asked whether the conversation would affect his ability to " continu[e] to be fair and impartial to the state and to the defendant," J responded, " [n]o, not at all." J further testified that he viewed the actions of the defendant's mother as those of " a concerned mother." When asked whether he would " decide this case based on anything that happened yesterday [at] about 3:30 [p.m.] outside of this courtroom," J responded, " [n]o." J also testified that he had learned from the other jurors that one juror, E, had witnessed the encounter with the defendant's mother.
Before questioning the other jurors, the trial court excluded the defendant's mother
from the courtroom. E then testified that, while stopped on his bicycle at the intersection of Orange and Grove Streets, he saw a woman, who he recognized from the courtroom, approach J from behind while talking. E further testified that he did not see or hear J communicate with her. E also testified, in response to questions from the trial court and the defendant, that the incident would not affect his ability to decide the case based solely on the evidence presented in court.
[320 Conn. 271] Having interviewed the two witnesses to the incident, the trial court then summoned the remaining members of the jury for individual questioning. The next juror, M, testified that J had told the other members of the jury that " he was approached by the defendant's mother, but he didn't say anything, he just walked off." When asked by the trial court whether she would " decide [the] case based 100 percent on the evidence," M responded, " [y]es." M offered a similar assurance in response to questions from the defendant, agreeing that what she heard from J had not affected her ability to be " fair and impartial in this matter," and that her impartiality remained the " [s]ame as it was when [she was] sworn in . . . ."
Another juror, S, testified that J had said " he was approached by the defendant's [mother]." S stated that she " believe[d]" J had spoken about " two young ladies behind him" at that time " with cell phones and [J] wasn't . . . sure whether he was being taped or not, so he needed to tell [the trial court]." S similarly assured the trial court that her ability to discharge her sworn duty to decide the case impartially " based 100 percent on the evidence in court" had not been compromised. In response to further questions from the defendant, S stated that J " wasn't sure" about being recorded because the two young women " had cell phones out, so he wasn't sure whether he was being taped, you [320 Conn. 272] know, for a mistrial, he wasn't sure, so he wanted to tell the [trial court] because he wasn't sure about being taped or not. He saw the two young ladies, I guess, with cell phones, and he wanted to tell it just in case."  When asked by defense counsel whether ...