State v. Roman

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 STATE OF CONNECTICUT v. RUBEN ROMAN
(SC 19474)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued October 16, 2015—officially released February 9, 2016

Ilana R. N. Ofgang, assigned counsel, for the appel-
lant (defendant).
Nancy L. Walker, deputy assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Robin D. Krawczyk, senior assistant
state’s attorney, for the appellee (state).
 Opinion

ESPINOSA, J. This direct appeal, following an inquiry
into allegations of juror misconduct, comes to us almost
sixteen years after the defendant, Ruben Roman, was
convicted of murder in violation of General Statutes
(Rev. to 1997) § 53a-54a, assault in the first degree in
violation of General Statutes § 53a-59 (a) (1), criminal
possession of a pistol in violation of General Statutes
(Rev. to 1997) § 53a-217c (a) (1), and risk of injury to
a child in violation of General Statutes (Rev. to 1997)
§ 53-21. The defendant claims that the trial court
improperly rejected his claim of alleged juror miscon-
duct and his related claim that the unusually extended
delay in scheduling a postremand inquiry into the
alleged misconduct violated his constitutional right to
due process and a fair trial. In the defendant’s first
appeal to this court, we reversed in part the judgment of
the Appellate Court, which had rejected the defendant’s
claim that the trial court abused its discretion in failing
to conduct an inquiry into the defendant’s juror miscon-
duct allegations. State v. Roman, 262 Conn. 718, 729,
817 A.2d 100 (2003). We remanded the case with instruc-
tion to the trial court to conduct an inquiry into the
defendant’s claim. Id. In 2013—following a decade long
delay—the trial court held the mandated inquiry, found
no evidence of juror misconduct, and denied the defen-
dant’s request to vacate his conviction and for a mistrial.
We conclude that the trial court properly found no
evidence of juror misconduct and the delay on remand
did not violate the defendant’s right to due process.
Accordingly, we affirm the judgment of the trial court.
The following facts are relevant to the defendant’s
claims before this court. On the evening of December
24, 1997, the defendant and his girlfriend, Maria Torres-
Arroyo, hosted a holiday gathering at their home in East
Hartford. Id., 721. Throughout the night, the defendant
consumed cocaine and a number of alcoholic bever-
ages. Id. At approximately 3 a.m. on December 25, 1997,
the defendant returned home after driving several fam-
ily members back to their respective residences. Id.
Upon entering the house, the defendant encountered
Torres-Arroyo sitting at a table with her brother-in-law
from a prior marriage, Israel Arroyo, and her minor son
and her nephew. Id. The defendant and Torres-Arroyo
began to have a heated argument that rapidly escalated
and culminated in the defendant firing a .45 caliber
semiautomatic pistol at both Torres-Arroyo and Arroyo.
Id. Although Torres-Arroyo survived, Arroyo subse-
quently died from his wounds while being transported
to the hospital. Id.
On January 19, 2000, the jury found the defendant
guilty of all charges. Id. Judge Wollenberg held a sen-
tencing hearing on March 13, 2000. Id. At the sentencing
hearing, the defendant informed the court of a potential
instance of juror misconduct, but did not provide any
evidence as he had been unable to reach an attorney
he had recently retained who allegedly had evidence
of the misconduct. Id., 722–23. The defendant sought
a continuance to allow him to present evidence of the
alleged misconduct, but the court denied the continu-
ance without conducting an inquiry into the defendant’s
allegations and rendered judgment of guilty in accor-
dance with the verdict. Id. The defendant appealed to
the Appellate Court, which affirmed the trial court’s
decision; State v. Roman, 67 Conn. App. 194, 197, 786
A.2d 1147 (2001); and then appealed to this court, which
reversed in part the judgment of the Appellate Court
and remanded the case to the Appellate Court with
direction to remand the case to the trial court with
direction to conduct an inquiry into the defendant’s
juror misconduct claim. State v. Roman, supra, 262
Conn. 720.
Following a ten year delay in scheduling the inquiry,
the facts of which are relevant to the defendant’s due
process claim and are set forth in part II of this opinion,
the defendant’s postremand hearing before Judge
Dewey began on February 6, 2013. At the hearing, the
defendant presented the testimony of Mary Eason, who
claimed to have overheard juror misconduct on a public
bus and mentioned it to her boyfriend, Hiram Rodriguez.
Additionally, the defendant was able to summon the
entire jury from his original criminal trial, as well as
two of the three alternate jurors, the third having died
prior to the hearing.
At the hearing, the defendant presented evidence of
two different allegations of juror misconduct, namely
that (1) a juror had potentially discussed the case with
members of the public, and (2) two alternate jurors
exchanged communications during trial. The defen-
dant’s first and main allegation was grounded in Eason’s
testimony. Eason testified that on several days in 2000
between 6 a.m. and 6:30 a.m. she heard a group of
individuals discussing the defendant’s case on a public
bus that travels from Hartford to East Hartford.
Although Eason was not personally acquainted with the
defendant, she recognized his name and the details of
his case from conversations with Rodriguez, who was
a friend of the defendant. Although Eason only heard
snippets of the conversations, she testified that the par-
ticipants mentioned that one of the jurors was speaking
with them, but it was Eason’s belief that the juror was
not on the bus.1 After overhearing the conversations on
the bus, Eason mentioned them to Rodriguez. Rodriguez
then visited the defendant in jail prior to the sentencing
hearing and informed him of Eason’s observations.
Apart from that, Eason did not recall much of what the
passengers actually said.
All twelve regular jurors and two of the alternate
jurors from the defendant’s original criminal trial also
testified at the hearing. All regular members of the jury
testified that they did not discuss any aspects of the
trial outside of the courtroom, nor did they use the
public bus system during the trial or at any other time.
One juror, N.M.,2 testified that she knew some people
who used public transportation, but none who would
have been on the same bus as Eason. One of the alter-
nate jurors, P.M., testified that although he had several
coworkers that used public buses, he never discussed
any aspects of the trial with them nor did he think they
would have been on Eason’s bus. The other alternate
juror, M.M., testified that several of the employees at
his company used the public bus system, but stated
that he never discussed the defendant’s case with any
of his employees. M.M. acknowledged that he did dis-
cuss the case with his wife during the trial, but testified
that his wife would have had no opportunities to men-
tion these discussions with any of M.M.’s employees or
anyone else that rode the bus.
The defendant’s second allegation of juror miscon-
duct was that two of the alternate jurors communicated
with each other during the trial. M.M. testified that
he exchanged ‘‘little comments’’ as well as nonverbal
communications with P.M.—who sat next to him in the
jury box—during the course of the defendant’s trial.
M.M. testified that prior to his and P.M.’s dismissal as
alternates, he would roll his eyes and exchange looks
with P.M. whenever the defense presented a line of
argument he did not find compelling. The exchanges
only passed between M.M. and P.M. and did not involve
any other members of the jury. One of the regular jurors,
D.C., testified that while seated in the jury box he was
unaware of any exchanges occurring between other
jurors.
In May, 2013, both parties submitted briefs to the trial
court based on the evidence adduced at the hearing. In
his brief, the defendant argued for a new trial on the
basis of the alleged juror misconduct. In her September
13, 2013 memorandum of decision, Judge Dewey denied
the defendant’s request for a new trial. Judge Dewey
found that the evidence did not support the defendant’s
allegations, as there was nothing to indicate that the
conversations that Eason overheard referenced any
information relayed by deliberating jurors, as opposed
to information obtained from media coverage. Judge
Dewey also found that the credible and cumulative testi-
mony of all the regular jurors established that none of
them participated in any juror misconduct. Accordingly,
Judge Dewey denied the defendant’s request for a
new trial.
Following Judge Dewey’s denial of his request to
vacate his conviction and for a mistrial, the defendant
appealed directly to this court.3 On appeal, the defen-
dant raises similar arguments to those initially pre-
sented to Judge Dewey following the postremand
hearing. First, the defendant argues that given Eason’s
testimony and the communications between alternate
jurors P.M. and M.M., Judge Dewey erroneously con-
cluded that there was no evidence to support a finding
of juror misconduct. Second, the defendant argues that
Judge Dewey incorrectly concluded that his right to a
fair trial was not violated by the delay in scheduling
the postremand hearing. In response, the state counters
that the evidence introduced by the defendant at the
postremand hearing failed to establish a violation of
his right to a fair trial before a panel of impartial jurors.
The state also argues that, despite the defendant’s argu-
ment to the contrary, the scheduling delay did not vio-
late the defendant’s rights because it did not prevent
him from fully presenting his juror misconduct claim.
We agree with the state on both claims.
I
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.’’ (Internal quotation marks omitted.)
State v. Brown, 235 Conn. 502, 523, 668 A.2d 1288 (1995).
In cases where a defendant alleges juror bias or miscon-
duct, 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.’’ (Internal quotation marks omit-
ted.) State v. Feliciano, 256 Conn. 429, 449, 778 A.2d
812 (2001). 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.’’ (Internal
quotation marks omitted.) State v. Rhodes, 248 Conn.
39, 47, 726 A.2d 513 (1999). It is well settled that if ‘‘the
trial court is directly implicated in juror misconduct,
the state bears the burden of proving that misconduct
was harmless error.’’ (Internal quotation marks omit-
ted.) Id. 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.’’ (Internal quotation
marks omitted.) Id.
Finally, when reviewing claims of juror misconduct
on appeal we recognize that ‘‘the trial court has wide
latitude 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. West, 274
Conn. 605, 649, 877 A.2d 787, cert. denied, 546 U.S. 1049,
126 S. Ct. 775, 163 L. Ed. 2d 601 (2005).
The defendant presents two alleged instances of juror
misconduct as having violated his right to a fair trial.
First, the defendant relies on Eason’s testimony to dem-
onstrate that one of the jurors allegedly communicated
information about the trial to a third party. Second, the
defendant argues that the comments and the eye rolling
and glances exchanged between alternate jurors P.M.
and M.M. constituted an impermissible communication
between the alternate jurors and the twelve regular
jurors. As the trial court is not at fault for either allega-
tion of misconduct, the defendant bears the burden of
demonstrating prejudice. State v. Rhodes, supra, 248
Conn. 47. We conclude, however, that the defendant
has failed to carry his burden on both allegations of mis-
conduct.
Although Eason testified that she heard a group of bus
passengers mention the defendant’s name and believed
that they were discussing the defendant’s case, she also
testified that she only heard ‘‘bits and pieces’’ of the
conversation. Importantly, Eason testified that the pas-
sengers were only discussing the court proceedings and
specifically testified that they were not discussing the
content of the jury deliberations. Thus, even though
Eason testified that she overheard a passenger state
that he or she was in contact with a juror, there is no
evidence that the supposed juror leaked any informa-
tion about the jury’s deliberations.
Indeed, there is an utter lack of evidence suggesting
that any of the jurors leaked any information—about
the deliberations or otherwise—to an individual who
used the same public transportation system as Eason.
In her memorandum of decision, Judge Dewey found
that all of the regular and alternate jurors testified credi-
bly that they did not engage in any of the alleged conver-
sations overheard by Eason, nor was there any evidence
that any of the participants in the conversations on the
bus received any information from any of the jurors,
as opposed to media reports.4 The defendant counters
this fact with the argument that because regular juror
N.M. and alternates M.M. and P.M. all testified that they
knew individuals who used public transportation, they
‘‘had the opportunity’’ to relay information about the
trial to individuals who could have been on the same
bus as Eason. Although the jurors may have had the
opportunity to converse with acquaintances that used
the public bus system, N.M., M.M., and P.M. all testified
that they had no such conversations.
Furthermore, it bears mentioning that the opportu-
nity for a juror to commit misconduct is a far cry from
a juror who actually does commit misconduct. Theoreti-
cally, every juror in every trial always has the potential
to take some action that could prejudice the defendant’s
right to a fair trial. The vast majority of those called to
jury service, however, approach their duty seriously
and abide by their oaths as jurors. As one of our sister
courts once wryly observed, for the opportunity for
misconduct to be removed entirely, ‘‘the jury would
have to be consigned to a dungeon to consider [its]
verdict . . . .’’ People v. Strause, 290 Ill. 259, 281, 125
N.E. 339 (1919). Were we to accept the defendant’s
argument and hold that the mere opportunity for a
juror to commit misconduct is comparable to actual
misconduct and therefore warrants a new trial, ‘‘few
trials would be constitutionally acceptable.’’ (Internal
quotation marks omitted.) State v. Johnson, 288 Conn.
236, 249, 951 A.2d 1257 (2008). We do not find the
defendant’s argument in this vein to be persuasive.
Accordingly, we conclude that it was not an abuse
of discretion for Judge Dewey to deny the defendant’s
request for a new trial on the basis of Eason’s testimony.
Judge Dewey’s finding of fact regarding Eason’s testi-
mony was that Eason overheard the defendant’s name
in another person’s conversation. Indeed, this is the
only conclusion that may be definitively drawn from
Eason’s testimony, which does not conclusively estab-
lish that a juror was on the bus or that a juror related
any information about the trial to a passenger. As Judge
Dewey noted, there is nothing to indicate that the pas-
sengers’ information did not come from a benign
source, such as media coverage. Given that the conver-
sations occurred in the same time frame as when the
verdict was announced and that the passengers were
riding a bus in the town where the defendant committed
his crimes, it is possible that the passengers’ conversa-
tions were inspired by nothing more than local interest.
As the defendant could not demonstrate juror miscon-
duct based on Eason’s testimony, Judge Dewey did not
abuse her discretion in denying the defendant’s request
for a new trial on these grounds.
The defendant also argues that the ‘‘little comments’’
and the eye rolling and skeptical glances exchanged
between alternates M.M. and P.M. influenced the regu-
lar jurors, and therefore constituted impermissible
third-party communications that merited Judge Dewey
granting his request for a new trial. Again, we conclude
that the trial court did not abuse its discretion in denying
the defendant a new trial on these grounds, as the defen-
dant cannot show that the conduct of M.M. and P.M.
tainted the regular jurors and thereby violated his right
to a fair trial.
The defendant asserts that alternates P.M. and M.M.
engaged in continuous commentary during the trial and
opined on the defendant’s guilt while sitting in the jury
box next to the regular members of the jury. The testi-
mony of both P.M. and M.M. at the postremand hearing
presents a different picture. P.M. testified that during
the trial he did not communicate with any other person
about the proceedings. M.M. testified that although he
exchanged comments with P.M. and rolled his eyes and
gave ‘‘little looks’’ to P.M. while sitting at the end of
the back row of the jury box, he and P.M. ‘‘weren’t in
conversation’’ about the substance of the case. M.M.
testified that these exchanges only occurred between
himself and P.M. and did not involve any members of
the regular jury. The only regular juror that was directly
asked about other jurors communicating, D.C., testified
that he was unaware of such actions occurring in the
jury box. Tellingly, it would appear that neither Judge
Wollenberg nor defense counsel became aware of
M.M.’s objectionable conduct over the course of the
trial. See United States v. Fazio, 770 F.3d 160, 169 (2d
Cir. 2014) (United States District Court judge dismissed
juror for, among other things, rolling her eyes, smirking,
and exchanging knowing glances with other jurors dur-
ing trial).
We are unaware of any existing Connecticut prece-
dent holding that actions akin to those in the present
case constitute juror misconduct. Many of our prior
decisions addressing juror misconduct involve claims
of misconduct that occurred outside of the courtroom.
See State v. Johnson, supra, 288 Conn. 254–55. In those
cases that do address in-court conduct similar to that
which occurred in the present case, we have not held
that such conduct rose to the level of prejudicial juror
misconduct. See State v. Ross, 230 Conn. 183, 227, 228,
646 A.2d 1318 (1994) (no misconduct where juror
‘‘ ‘smiled broadly’ ’’ at victim’s father when verdict was
announced), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133,
130 L. Ed. 2d 1095 (1995); Lachira v. Sutton & Sutton
Esquires, 143 Conn. App. 15, 24, 68 A.3d 1177 (no mis-
conduct where juror allegedly ‘‘ ‘saluted’ ’’ defendant
and turned to look at him when exiting courtroom),
cert. denied, 310 Conn. 922, 77 A.3d 140 (2013). To be
clear, there may be cases where a juror’s courtroom
actions rise to the level of misconduct and unfairly
prejudice the defendant. The present case, however, is
not one of those. Although we do not sanction the
alternate jurors’ indecorous courtroom conduct, we
cannot conclude from the evidence presented that their
side comments, eye rolling and shared glances amount
to juror misconduct. P.M. and M.M. testified—and
Judge Dewey found—that neither alternate juror dis-
cussed the substance of the case prior to their dismissal
before deliberations began. Thus, there was no abuse
of discretion in Judge Dewey’s denial of the defendant’s
request for a new trial on these grounds.
Despite the testimony of D.C. to the contrary, and
the fact that the trial court and the regular jurors seem
to have been unaware of the alternate jurors’
exchanges, the defendant argues that the rest of the
jury must have seen their exchanges and were thereby
negatively influenced. In support of this argument, the
defendant suggests that we should treat the alternate
jurors as third parties5 and presume both that the regu-
lar jurors witnessed the conduct and that the defendant
was thereby prejudiced, requiring the state to rebut the
presumption of prejudice.
In cases where there is contact between third parties
and jurors regarding a matter before the jury, the burden
shifts to the state ‘‘to establish that the contact was
harmless.’’ (Internal quotation marks omitted.) State v.
Berrios, 320 Conn. 265, 294, A.3d (2016). We
recognize, however, that ‘‘evidence, rather than specu-
lation, is required to shift the burden of proof to the
state.’’ Id., 293. In the present case, the defendant’s
claim of third-party contact does not move beyond the
realm of speculation and the defendant thereby retains
a burden he cannot carry given the evidence in the
record. Witness testimony at the postremand hearing
simply does not support the defendant’s theory that the
other jurors were aware of the exchanges between M.M.
and P.M. M.M. testified that the communications
involved no other members of the jury. D.C., the only
juror that was directly asked about the actions of other
jurors, testified that he was entirely unaware of any
such conduct.6 As both P.M. and M.M. were dismissed
from jury service prior to deliberations, there is no
possibility that the alternate jurors’ actions influenced
the regular jurors while deliberating. Accordingly, we
conclude that there was no abuse of discretion for Judge
Dewey to have denied a new trial on these grounds.
In sum, we conclude that Judge Dewey did not abuse
her discretion in denying the defendant’s request for a
new trial. Neither Eason’s testimony nor P.M. and
M.M.’s exchanges establish the existence of prejudicial
juror misconduct that tainted the defendant’s right to
a fair trial. The defendant’s juror misconduct claim is
therefore meritless.
II
The defendant also argues that his constitutional
rights to due process and a fair trial were violated by
the ten year delay in scheduling the postremand inquiry
and that Judge Dewey should have granted his request
for a new trial on these grounds. Although we acknowl-
edge that the delay in the present case is remarkable, we
conclude that it did not adversely affect the defendant’s
ability to present his juror misconduct claim and there-
fore did not infringe the defendant’s due process rights.
The following facts are relevant to the defendant’s
due process claim. After this court issued its decision
in Roman in 2003, it appears that neither the parties
nor the court took any action regarding the remand
order until May 12, 2006, when the defendant’s newly
assigned counsel, Michael Georgetti, appeared before
Judge Wollenberg. Georgetti explained to the court that
he was having significant trouble in both contacting the
attorney the defendant had privately retained prior to
sentencing, Kay Wilson, and securing the cooperation
of Eason. Georgetti asked Judge Wollenberg for a con-
tinuance for further time to contact Wilson and to
secure Eason’s appearance. Although Georgetti sug-
gested two dates later that month on which to hold the
hearing, Judge Wollenberg instead provided the parties
with an open-ended continuance and instructed
Georgetti and the prosecutor to contact him whenever
they were ready. There was no discussion of specific
dates or a timeline by which to proceed.
In the years following the 2006 appearance before
Judge Wollenberg, Georgetti continued to face difficul-
ties in locating both Wilson and Eason. Throughout 2009
and 2010, Georgetti spoke with the Hartford caseflow
coordinator several times about scheduling a status
conference on the postremand hearing. Georgetti even-
tually managed to contact Wilson, although the informa-
tion in her possession proved to be unhelpful in
furthering the defendant’s juror misconduct claim. Still
unable to contact Eason and without any other sources
of evidence, on March 10, 2010, Georgetti filed a motion
to summon and examine the jury in order to question
the individual jury members about potential misconduct
during the defendant’s trial. Judge Wollenberg then
scheduled an in-chambers conference on the motion
with the parties. Although Georgetti appeared at the
meeting and was able to speak with Judge Wollenberg,
the meeting produced no results, as a snowstorm pre-
vented the prosecutor from reaching the courthouse.
Georgetti subsequently attempted to reschedule the
meeting, but was prevented from doing so due to Judge
Wollenberg’s illness and subsequent death.
In 2012, the presiding judge reassigned the defen-
dant’s case to Judge Dewey, who scheduled a hearing
on November 20, 2012. At the hearing, Georgetti moved
to withdraw from his representation of the defendant
as he believed that he would likely be required to testify
on the delay and his efforts to locate Eason. Indeed, at
the 2013 evidentiary hearing on the defendant’s juror
misconduct claim, the defendant offered the testimony
of Georgetti as well as Matthew Goetz and Marcie Hutt,
criminal caseflow coordinators for the judicial district
of Hartford, to testify as to the delay in scheduling
the hearing.
Goetz testified that he worked as a caseflow coordi-
nator in Hartford from 1998 to 2005, and his responsibili-
ties included scheduling Judge Wollenberg’s cases. At
the time of Goetz’ employment, the court’s computer
system did not track those cases that had been
remanded for a hearing. To compensate for this, Goetz
testified that of his own volition he kept daily lists of
cases to be scheduled, but that he did not have any
memory of ever scheduling a hearing after the remand
order in Roman. In 2005, Goetz began a new position
in the judicial branch and Hutt replaced him in the role
of caseflow coordinator. Hutt used the same list system
as Goetz to keep track of scheduling hearings. Although
Hutt could not remember if she was the one who sched-
uled the initial hearing date in 2006, she testified that
had Judge Wollenberg given her a subsequent date on
which to schedule the hearing, she would have sched-
uled a hearing accordingly. Ultimately, Hutt did not do
so until 2012 when the presiding judge provided her
with a date to schedule the hearing before Judge Dewey.
Georgetti also offered testimony on the delay. He
acknowledged that he could have taken more steps
to prevent the delay, yet simultaneously stated that
because the scheduling power rested solely in the court,
he felt there was not much more he could have done
as defense counsel to get the hearing scheduled.
Defense counsel also questioned Eason on the effect
of the delay on her testimony, given that Eason’s testi-
mony was at times vague and imprecise about what
she actually overheard the other passengers discussing
on the bus. Regardless, Eason stated that had she been
required to testify at an earlier point in time, her testi-
mony would not have been any different. Eason also
testified that her resistance to being called as a witness
was due to her wish to avoid involvement in legal pro-
ceedings and that she only appeared at the hearing
because she was under subpoena.
In his posthearing brief to the trial court, the defen-
dant argued that the delay in scheduling the hearing
violated his right to due process and a fair trial and
was sufficient grounds for a new trial. Judge Dewey
noted that ‘‘[n]either the trial court nor counsel were
particularly aggressive’’ in ensuring that a hearing was
scheduled, and denied the defendant’s request for a
new trial on those grounds.
When a defendant alleges that his right to a speedy
trial has been violated, this court balances, on a case-
by-case basis, the factors identified by the United States
Supreme Court in Barker v. Wingo, 407 U.S. 514, 530,
92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). State v. DePastino,
228 Conn. 552, 560, 638 A.2d 578 (1994). These factors
include: ‘‘[1] [l]ength of delay, [2] the reason for the
delay, [3] the defendant’s assertion of his right, and [4]
prejudice to the defendant.’’ Barker v. Wingo, supra,
530. We recognize that these factors ‘‘have no talismanic
qualities’’ but rather ‘‘must be considered together with
such other circumstances as may be relevant.’’ Id., 533.
We apply this same factual matrix to the defendant’s
claim that the delay in scheduling the postremand
inquiry into juror misconduct violated his right to
due process.
The ‘‘triggering mechanism’’ for our consideration of
the Barker factors is the length of the delay that the
defendant has experienced. Id., 530. As the tolerable
length of delay may vary greatly between cases, our
inquiry into the length of the delay ‘‘is necessarily depen-
dent upon the peculiar circumstances of the case.’’ Id.,
530–31. Following our 2003 remand order in Roman,
the defendant did not receive an evidentiary hearing
until a full decade later. A delay of such great length
is astounding at first glance, and, indeed, the state con-
cedes that the ten year delay in the present case war-
rants our consideration of the remaining Barker factors.
 After determining that there is a delay that requires
our consideration, we examine the reason for the delay.
Recognizing that there are diverse arrays of circum-
stances that may contribute to a delay in any given
case, we place different weights on different reasons
for the delay. Id., 531. For example, deliberate actions
by the state to ‘‘hamper the defense should be weighted
heavily against the government.’’ Id. Likewise, ‘‘neutral
reason[s] such as negligence or overcrowded courts’’
are weighted less heavily, but still weigh against the
state due to a defendant’s lack of control over such
circumstances. Id. Additionally, a ‘‘valid reason, such
as a missing witness, should serve to justify appropriate
delay.’’ Id. Finally, our case law recognizes a distinction
between delays that arise due to individual failures and
those that arise due to systemic problems. State v.
DePastino, supra, 228 Conn. 562. When a delay may be
ascribed to an individual failure rather than an institu-
tional failure, the defendant must show actual preju-
dice. Id.
Given the length of time that elapsed in the present
case, the reasons for the delay are numerous and varied.
We find helpful the state’s characterization of the ten
year delay as having occurred in three stages: (1) the
period between our 2003 remand order and Georgetti’s
initial 2006 appearance before Judge Wollenberg; (2)
Georgetti’s 2006 to 2010 quest to locate Eason and Wil-
son; and (3) the period between 2010 and 2013 when
various individual blunders and unfortunate circum-
stances prevented scheduling the hearing.
In regard to the three years following our remand
order in 2003, the record is devoid of any explanation
that would indicate why the court did not schedule the
defendant’s hearing or why the parties did not request
that the hearing be scheduled during this time. A turning
point seems to have been in 2006, when Georgetti was
appointed as the defendant’s new counsel and Judge
Wollenberg scheduled the first hearing pursuant to the
remand order. It was at this hearing that Georgetti
explained his difficulties in locating both Eason and
Wilson and that Judge Wollenberg granted an open-
ended continuance and instructed the parties to get
in touch with him when they were ready to proceed.
Significantly, the prosecutor indicated that the state
was content with Georgetti receiving more time to
locate the witnesses and did not attempt to hinder
Georgetti in his efforts on the defendant’s behalf. This
stands in marked contrast to the facts in Barker, where
the state deliberately delayed a defendant’s trial for
years in an attempt to first convict a codefendant.
Barker v. Wingo, supra, 407 U.S. 516–19. In this regard
at least, the delay in the present case does not weigh
against the state. The majority of Georgetti’s time
between 2006 and 2010, was consumed by his attempts
to find Wilson and to ensure Eason’s cooperation. Gen-
erally, a delay that occurs due to the search for a missing
witness is justified. Id., 531. Notably, however, the delay
in the present case was catalyzed by the defendant’s
request for a continuance in order to gather more evi-
dence, rather than the state seeking more time while
the defendant was ready and waiting to proceed. A
delay that results from a defendant’s own request for
more time cannot later serve as the basis for a due
process violation. See State v. Bonner, 290 Conn. 468,
486, 964 A.2d 73 (2009) (delay was due in part to defen-
dant’s own requested continuances to conduct further
evidentiary investigations).
Finally, between 2010 and 2013, a series of events
occurred that, by their very nature, make it difficult for
us to assign fault to any particular party. First, caseflow
coordinator Hutt had difficulty finding a date which
worked for Judge Wollenberg. As this matter was
entirely out of the defendant’s hands, any delay that
resulted from it weighs against the state. The next
delays, however, were the fault of no party. The 2010
meeting between the parties and Judge Wollenberg was
cancelled only when a hazardous winter storm pre-
vented the prosecutor from reaching the courthouse.
Judge Wollenberg subsequently became ill, stopped
hearing cases, and later died. As we cannot assign fault
for the whims of the weather or the inevitability of
human mortality, we conclude that any such delay that
resulted from these circumstances is excusable. See
Barker v. Wingo, supra, 407 U.S. 533–34 (delay caused
by unexpected illness of case investigator was
excusable).
The defendant attempts to cast the delay here as a
widespread systemic failure akin to the institutional
failures we condemned in Gaines v. Manson, 194 Conn.
510, 481 A.2d 1084 (1984). In that case, we determined
that the failure of the state to provide a sufficient num-
ber of public defenders to indigent clients was a sys-
temic failure that weighed heavily against the state and
amounted to a deprivation of the petitioners’ due pro-
cess and equal protection rights. Id., 513–14, 527. There
is no evidence, however, that would indicate that the
delay in scheduling the defendant’s hearing was due to
some inherent failure—rather than an isolated, individ-
ual failure—in the court system. The defendant cites
to the practice of the courthouse caseflow coordinators
in making their own scheduling lists as evidence of an
institutional failure. Not only is there nothing in the
evidence to indicate that the system employed by Goetz
and Hutt was anything more than an individual system
used to manage their own job duties, there is also noth-
ing that would indicate that their system was in any way
responsible for the delay. Compare State v. DePastino,
supra, 228 Conn. 561 (court reporter’s failure to deliver
transcript was individual, not systemic, failure).
Overall, nearly seven years of the delay is either unac-
counted for or was consumed by Georgetti’s attempt
to locate Eason. The remaining three years were due to
unforeseeable circumstances and Judge Wollenberg’s
trouble finding a date on which to meet with the parties.
As such, we conclude that although much of the delay
was susceptible to reasonable explanation, the trial
court’s delay in setting a concrete date should weigh
against the state. We observe, however, that trial courts
should not take too rigid a stance in scheduling when
defendants request additional time or an extension to
locate witnesses or to obtain potentially exculpatory
evidence. Flexibility in scheduling can provide defense
counsel with the time needed to more comprehensively
protect defendants’ rights to present a full defense.
We next examine the defendant’s assertion of his
right to a timely postremand inquiry. The defendant’s
assertion of the right ‘‘is entitled to strong evidentiary
weight in determining whether the defendant [has]
be[en] deprived of the right. We emphasize that failure
to assert the right will make it difficult for a defendant
to prove that he was denied [due process].’’ Barker v.
Wingo, supra, 407 U.S. 531–32. Accordingly, we observe
that it may be helpful to note to what extent, if any, a
defendant’s failure to assert the right contributed to a
delay. As Judge Dewey aptly noted in her memorandum
of decision, neither the trial court nor counsel took a
proactive approach to having the hearing scheduled.
As we have already observed, while the trial court
did not take on an active role in managing the progress
of the defendant’s hearing, the defendant also did not
himself take a particularly active approach in asserting
his right to have the hearing scheduled and held. When
considering the third Barker factor in the context of
the present case, the record demonstrates that for three
years following our remand order in Roman, the defen-
dant took no action asserting his right to have a hearing
scheduled. Although parties to a case have no individual
control over the court calendar, a ‘‘wait and see’’
approach to scheduling is—as this case demonstrates—
certainly unwise. Despite being represented by counsel,
there is no evidence that the defendant ever contacted
the court about scheduling the hearing during these
first three years. The defendant’s momentum in sched-
uling the hearing seems only to have accelerated upon
Georgetti’s appointment as the defendant’s new attor-
ney in 2006. Even then, another four years elapsed after
the initial appearance before Judge Wollenberg before
the defense filed its motion to summon the jury and
asked for the hearing. Prior to that, the defendant filed
no formal requests for a hearing. Georgetti apparently
spoke informally with Judge Wollenberg about the hear-
ing while at the courthouse on various occasions, but
these conversations do not seem to have been formal
requests by the defendant to schedule the hearing or
indicate that he was ready to proceed. Although a miss-
ing witness may validly justify a delay, Eason’s evasions
alone cannot fully explain the defendant’s approach to
asserting his right to a hearing, especially because three
years of the delay occurred prior to Georgetti’s attempts
to contact Eason and for four years afterward the defen-
dant filed nothing with the court asserting his right.7
Thus, the defendant’s failure to assert his right was also
another reason for the delay itself. We conclude that
the defendant’s approach to asserting his right to the
hearing weighs against him.
The final Barker factor concerns any prejudice that
a defendant has experienced as a result of a delay. In
considering prejudice, we recognize that ‘‘[i]f witnesses
die or disappear during a delay, the prejudice is obvious.
There is also prejudice if defense witnesses are unable
to recall accurately events of the distant past. Loss of
memory, however, is not always reflected in the record
because what has been forgotten can rarely be shown.’’
Barker v. Wingo, supra, 407 U.S. 532.
Despite the ten year delay that the defendant in the
present case experienced, he was able to fully and com-
prehensively present his arguments concerning juror
misconduct at the 2013 hearing. Although one alternate
juror died prior to the hearing, the testimony of alter-
nate jurors P.M. and M.M. does not indicate that the
deceased alternate was involved in the communications
between them. Additionally, as the deceased alternate
juror did not deliberate, he could not have affected
the verdict during the jury’s deliberations. Even though
thirteen years had elapsed since his trial, the defendant
was still able to summon every member of the original
jury to testify. Furthermore, all of the recalled jurors and
alternates testified credibly and displayed few lapses in
memory on important points, which is perhaps
explained by the strong impression that sitting on the
jury of a murder trial likely had on the citizens called
upon to be jurors. Although Eason’s testimony contains
some moments in which she was uncertain of particular
details of the conversation that she overheard on the
bus, Eason’s own testimony establishes that these
uncertainties were not due to the decay of time. When
asked by defense counsel whether her testimony would
have been the same if she had been called to testify
earlier, Eason indicated that her testimony at the 2013
hearing was the same as it would have been at any
prior point in time. Thus, Eason’s testimony—crucial
to the defendant’s claim—was not altered by the delay
and therefore did not prejudice the defendant.
The defendant argues that, given that Judge Wollenb-
erg had presided over the defendant’s original criminal
trial and, but for his death, would likely have presided
over the postremand hearing if it had been held without
delay, he was ‘‘deprived of his constitutional right to
due process.’’ We are aware, however, of no authority
that requires the original judge in a matter to preside
over every future iteration of the original matter.
Indeed, we have authority to the contrary, preventing
trial judges from presiding again over a matter on which
they were reversed on appeal. See General Statutes
§ 51-183c; Practice Book § 1-22 (a); State v. AFSCME,
Council 4, Local 1565, 249 Conn. 474, 480, 732 A.2d
762 (1999). As Judge Dewey was able to observe and
hear firsthand the testimony of all of the jurors and
witnesses at the 2013 hearing, we cannot conclude that
Judge Wollenberg’s death was a factor that prejudiced
the defendant. Overall, we conclude that the delay did
not prejudice the defendant’s ability to present his
claim.
In balancing the Barker factors, we determine that
the defendant’s right to due process was not violated.
Even though the delay in the present case was unusually
long, it did not prevent the defendant from fully pre-
senting his juror misconduct claim. Although the fact
that Judge Wollenberg did not schedule a concrete date
does weigh against the state, the defendant’s own fail-
ure to assert his right to the hearing weighs heavily
against his claim. Finally, and importantly, despite the
delay, the defendant was able to call the witnesses
crucial to his juror misconduct claim, all of whom testi-
fied credibly and without any serious lapses in memory.
We therefore conclude that Judge Dewey properly
rejected the defendant’s claim that the delay violated
his right to due process.
The judgment is affirmed.
In this opinion the other justices concurred.
1
As Judge Dewey later observed, members of the jury could not have
been on the bus, as they would have been reporting to the courthouse in
Hartford at approximately the time of Eason’s observations, not taking a
bus in the opposite direction.
2
We refer to the jurors by their first and last initials in order to protect
their privacy interests. See State v. Gonzalez, 315 Conn. 564, 569 n.3, 109
A.3d 453 (2015).
3
We initially transferred the defendant’s appeal to the Appellate Court
pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1, but later
transferred the appeal back to this court on the motion of the state. See
Practice Book § 65-2.
4
Alternate juror M.M. did testify that he shared details about what was
‘‘going on’’ in the trial with his wife. The defendant, however, did not raise
this communication as independent grounds for a mistrial at the postremand
hearing, nor does he do so before this court.
5
The defendant posits that we should treat the alternate jurors as third
parties during the time they were sitting in the jury box and still sworn in
as jurors. To be sure, we do recognize a distinction between regular jurors
and alternate jurors, particularly after the latter have been dismissed prior
to deliberations. See State v. Apodaca, 303 Conn. 378, 387–89, 33 A.3d 224
(2012) (alternate juror cannot be recalled to serve as regular juror on same
case following dismissal). To hold that alternate jurors are third parties
during their jury service would create innumerable difficulties, as alternate
jurors and regular jurors unavoidably come into contact with one another.
As trial courts instruct all jurors not to discuss the case amongst each other
prior to deliberation, and we presume that jurors follow the instruction of
the trial court unless there is evidence to the contrary; State v. Parrott, 262
Conn. 276, 294, 811 A.2d 705 (2003); we do not believe that treating alternate
jurors as third parties during trial would significantly further any interest
in protecting the fair trial rights of defendants. To be clear, prejudice may
arise if an alternate juror contacts a regular juror following the alternate’s
dismissal from service. There is, however, no such allegation in the present
case. The Arizona decision that the defendant cites for the proposition that
alternates should be treated as third parties is distinguishable on these very
grounds. See State v. Miller, 178 Ariz. 555, 557, 875 P.2d 788 (1994) (dismissed
alternate juror left note opining on defendant’s guilt on windshield of regular
juror’s car).
6
Defense counsel only questioned D.C. about the other jurors’ acts despite
having the opportunity at the postremand inquiry to ask the other jurors as
well. To pass by this opportunity only to argue before this court that it is
possible that the other jurors may have seen P.M. and M.M.’s actions strikes
us as a somewhat disingenuous approach.
7
It is undisputed that Eason was opposed to appearing as a witness, but
we observe that the defendant’s counsel at the 2013 hearing was able to
secure Eason’s appearance, under subpoena, in a matter of a few months.