State v. Brown

Lavery, J.,

dissenting. Although I concur with the rest of the majority opinion, I believe that our precedents require a trial court to conduct some minimal investigation where it appears that the jury may have been exposed to prejudicial extrinsic evidence. Therefore, I must respectfully dissent from part I (A) of the majority opinion.

It is well established that the trial court has broad discretion to determine whether jury misconduct occurred, and, if so, whether such misconduct prejudiced the defendant. State v. Migliaro, 28 Conn. App. 388, 395, 611 A.2d 422 (1992). It is equally well established that the court must have some factual basis on which to exercise that discretion. State v. Gonzalez, 25 Conn. App. 433, 439, 596 A.2d 443 (1991), aff’d, 222-Conn. 718, 609 A.2d 1003 (1992). “In exercising this discretion the trial court must zealously protect the rights of the accused.” State v. Cubano, 203 Conn. 81, 89, 523 A.2d 495 (1987), quoting Wainwright v. Witt, 469 U.S. 412, 429-30, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985).

“Where it appears . . . that the jury panel may have been exposed to prejudicial extrinsic evidence, the *357trial court must conduct an investigation . . . .” (Emphasis added.) State v. Migliaro, supra, 396; State v. Harris, 32 Conn. App. 831, 632 A.2d 50 (1993). The trial court can use whatever inquisitorial tools are necessary and appropriate to determine whether there was a reasonable possibility of prejudice. State v. Migliaro, supra. It is important, however, that “[a] basic factual inquiry into the substantive content of the alleged misconduct [be made] before the trial court [exercises] its discretion in determining the scope or extent of any investigation needed.” Id., 397, quoting State v. Gonzalez, supra, 440. “Where the trial court had the opportunity to observe jurors and to examine them at a posttrial hearing, we will not question that court’s findings absent a showing of clear error.” (Emphasis added.) State v. Leonard, 31 Conn. App. 178, 195, 623 A.2d 1052, cert. granted on other grounds, 226 Conn. 912, 628 A.2d 985 (1993).

Here, the letter indicated that two potentially prejudicial statements may have been made in front of the jury. Two sheriffs bet that the defendant would be convicted because he was black and from New York. Another sheriff stated that one of the state’s witnesses had to be coached with photographs. Although not signed, the letter accurately stated that the defendant was black, a New York resident and accused of cashing bad checks. Further, the letter correctly recited the uncommon first name of one of the jurors. These factual similarities increase the letter’s reliability and reinforce the appearance that the jury may have been prejudicially exposed.

The majority posits that the statements made by the sheriff would aid the defendant by demonstrating the weakness of the state’s case. Therefore, the majority concludes, the statements could never be prejudicial. This is, at best, conjecture. A reviewing court should *358not speculate on the juror’s exposure or the effect thereof. Speed v. DiLibero, 215 Conn. 308, 315, 575 A.2d 1021 (1990).

A review of the case law involving juror misconduct reveals only five cases in which the trial court failed to conduct some form of factual investigation. Three of the cases were affirmed on review. State v. McCall, 187 Conn. 73, 82, 444 A.2d 896 (1982) (investigation unnecessary as judge source of potential prejudicial exposure); Hamill v. Neikind, 171 Conn. 357, 360 n.4, 370 A.2d 959 (1976) (investigation superfluous where juror’s posttrial comment to defense attorney so innocuous as not to risk new trial); State v. Hobson, 8 Conn. App. 13, 22-23, 511 A.2d 348, cert. denied, 201 Conn. 808, 515 A.2d 379 (1986), cert. denied, 480 U.S. 917, 107 S. Ct. 1370, 97 L. Ed. 2d 686 (1987) (no investigation required where misconduct internal to jury deliberations). In the two remaining cases, State v. Migliaro, supra, and State v. Gonzalez, supra, this court remanded the matters specifically because the trial court failed to investigate.

In Gonzalez, the case was remanded so the trial court could investigate the nature and effect of the possible exposure. In Migliaro, the trial court knew the nature and source but not the effect of the potentially prejudicial information on the jury. We required the trial court to conduct a hearing to determine the effect. Likewise, the letter in this case revealed the source and nature of the exposure. The trial court had no way of knowing, however, the effect of that exposure on the jury.

The case law does not require, nor do I suggest, that every allegation of jury misconduct requires a full evidentiary hearing. Although the threshold allegation of misconduct that would necessitate an investigation is low; State v. Migliaro, supra (investigation required *359where it appears jury may have been exposed); the intensity of the investigation required is also low. Id. As we have often stated, the trial court can use whatever inquisitorial tools are necessary and appropriate. Thus, simply interviewing a juror in chambers is sufficient. See, e.g., State v. Cubano, supra; State v. Sims, 12 Conn. App. 239, 244, 530 A.2d 1069 (1987), cert. denied, 206 Conn. 801, 535 A.2d 1315 (1988); State v. Grant, 8 Conn. App. 158, 164, 511 A.2d 369 (1986). I believe that our precedents require trial courts to perform at least some minimal investigation before exercising their discretion.

The trial court received the letter prior to sentencing; thus, the judgment was not yet final. The letter created the appearance that the jury may have been prejudicially exposed. Therefore, the trial court was required to make some basic factual inquiry about possible misconduct. It did not. I would remand this case for a hearing.

Accordingly, I respectfully dissent from part I (A) of the majority opinion.