Opinion
No. CR 02-0210921S
March 8, 2004
MEMORANDUM OF DECISION ON DEFENDANT'S AMENDED MOTION FOR NEW TRIAL
On October 6, 2003, the defendant, Judith Scruggs, was found guilty after a jury trial of the charge of risk of injury to a minor in violation of General Statutes § 53-21(a)(1). On October 8, 2003, the defendant filed a timely motion for a new trial on four grounds: that this court had erred in denying (1) a mid-trial motion by defendant to disqualify a juror; (2) the defendant's motion for mistrial; (3) the defendant's motion for acquittal at the close of the state's case; and (4) the defendant's request for a polling of the jury as to its unanimity on one element of the charge on which she was convicted. On October 15, 2003, the defendant filed an amended motion for a new trial incorporating the previous claims but also seeking a new trial based on claims of juror misconduct and prosecutorial misconduct during closing argument. The state opposes the motion on the basis that the defendant's due process rights were not infringed. The court held an evidentiary hearing on the claim of juror misconduct, as discussed more fully below, has reviewed the transcript of both parties' summations, and considered the arguments of both parties in their written memoranda and oral argument. For the reasons set forth below, the motion is denied.
That statute provides, in relevant part: "Any person who . . . wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that . . . the health of such child is likely to be injured . . ." shall be guilty of the crime of risk of injury to a minor. General Statutes § 53-21(a)(1).
I — CLAIM OF JUROR MISCONDUCT
In the weeks following the verdict, two newspaper articles were published stating that juror Vincent Giardina had told newspaper reporters that the defendant's "intention to sue the city figured in his decision to find [her] guilty." One article reported that another juror, Paul Kirschmann, stated this subject had been brought up during jury deliberations. The defendant then filed a motion for new trial based on a claim of juror misconduct. Pursuant to its obligation under State v. Brown, 232 Conn. 431, 656 A.2d 997 (1995), to conduct a preliminary inquiry on the record in the face of an allegation of jury misconduct, the court scheduled an evidentiary hearing, which occurred over three days in October, November and December of last year. Before each day's hearing, the court solicited the views of the parties as to witnesses to summon and for written submissions of questions to ask. The court conducted all questioning of witnesses, but interrupted each hearing periodically to confer with counsel as to areas of inquiry and did not discharge any witness until each party stated that it had no further questions it sought to have asked. On October 31, the court heard testimony from jurors Giardina and Kirschmann. On November 14, jury foreperson Thomas Diaz also testified. On December 19, the two reporters from the New York Times and Meriden Record-Journal testified. The focus of the evidentiary hearing was what juror Giardina said during deliberations, the effect of that utterance on the deliberations, what he had said to the various newspaper reporters, and whether the prospect that the defendant might bring a civil action had influenced his decision to convict the defendant on the first count.
After the verdict, juror Giardina spoke to a reporter for the New York Times about the jury's deliberations. Or October 12, 2003, that newspaper published an article reporting that Giardina had said "he supported a conviction, in part, because he did not want Ms. Scruggs to sue the City if she were acquitted." The next day, Giardina spoke with a reporter for the Meriden Record-Journal about the deliberations and about his conversation with the Times reporter; after that, juror K spoke to the same Record-Journal reporter about the deliberations. On October 14th, the Record-Journal published an article about the interviews with the two jurors, which in part stated as follows:
A juror who convicted Judith Scruggs admitted Monday that Scruggs' intention to sue the city was on his mind during deliberations . . .
Last week, [Giardina] told the Times that Scruggs' intention to sue the city figured in his decision to find Scruggs guilty . . .
When asked Monday if the reporter were true, [Giardina] replied," I would be lying if I said it wasn't" adding that "he would hate to see Scruggs try to profit from her son's death."
The article also reported that juror Kirschmann "said he remembered that Scruggs' intention to sue the city came up during the deliberations, but that it was a casual comment and quickly dismissed."
Three days before the first day of the evidentiary hearing on defendant's claim of juror misconduct Giardina spoke with a reporter from the Hartford Courant, which published an article on October 29, 2003, reporting that in this interview Giardina said that "the possibility that Judith Scruggs might sue the city of Meriden over the suicide of her 12-year-old son played no part in [his] decision to find her guilty." The article further stated that Giardina admitted he expressed to jurors during deliberations that it would be a shame if Scruggs successfully sued the Meriden School district and the city for her son's death. But he was told immediately by the jury foreman to abandon any thoughts of anything that was outside the evidence they were asked to consider, he said.
It was mentioned for about 20 seconds on the last day of deliberations when we were pretty much done with the case . . . It definitely was not on my mind during deliberations.
The article also stated that Giardina said "during trial he was unaware that Scruggs had filed an intent to sue and mentioned to jurors that he was wondering if she was planning any legal action."
The right to trial by jury was one of the chief means set up by the founders of our state and national governments to protect the people against tyranny and the arbitrary application of governmental power. Trial by jury, wrote Swift, "is one of the most valuable privileges that can be enjoyed in civil society, and essential to the preservation of civil liberty." 2 Z.Swift, A System of the Laws of the State of Connecticut (1796), Vol. I, p. 230. "The right of trial by jury is of ancient origin, characterized by Blackstone as `the glory of the English law' and `the most transcendent privilege which any subject can enjoy." (Citation omitted.) Dimick v. Schiedt, 293 U.S. 574, 485-86 (1935). "So basic to our jurisprudence is the right to a fair trial that it has been called `the most fundamental of all freedoms.' Estes v. Texas, 381 U.S. 532, 540 (1965). It is a right essential to the preservation and enjoyment of all other rights, providing a necessary means of safeguarding personal liberties against government oppression." Nebraska Press Assn. v. Stuart, 427 U.S. 539, 586 (1976) (Brennan, J., concurring), cited in State v. Walker, 80 Conn. App. 542, 554, 835 A.2d 1058 (2003). As Justice Douglas so astutely observed, "Since . . . [the jury] is of and from the community, it gives the law an acceptance which verdicts of judges could never do." W.O. Douglas, The Anatomy of Liberty, 38 (Simon and Schuster, 1963).
"Jury impartiality is a core requirement of the right to trial by jury guaranteed by the constitution of Connecticut, article first, § 8, and by the sixth amendment to the United States constitution . . . [T]he right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, indifferent jurors . . . The modern jury is regarded as an institution in our justice system that determines the case solely on the basis of the evidence and arguments given [it] in the adversary arena after proper instructions on the law by the court . . . [Article first, § 8, and the sixth amendment require] that a criminal defendant be given a fair trial before an . . . unprejudiced jury . . ." (Citations omitted; internal quotation marks omitted.) State v. Centeno, 259 Conn. 75, 81, 787 A.2d 537 (2002). The defendant claims that the circumstances of this case have deprived her of that right.
As the defendant correctly claims, "[c]onsideration [by the jury] of extrinsic evidence is presumptively prejudicial because it implicates the defendant's constitutional right to a fair trial before an impartial jury." (Internal quotation marks omitted.) State v. Santiago, 245 Conn. 301, 330, 715 A.2d 1 (1998). "The presumption of prejudice is not conclusive," however, Remmer v. United States, 347 U.S. 227, 229 (1954), and a jury's consideration of extrinsic evidence "does not automatically necessitate a new trial." State v. Anderson, 255 Conn. 425, 773 A.2d 287 (2001); State v. Asherman, 193 Conn. 695, 736, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050 (1985). There is no doubt that a juror's exposure to extrinsic material falls under the potential rubric of jury misconduct. State v. Brown, 232 Conn. 431, 446, 656 A.2d 997, superseded on other grounds, 235 Conn. 502, 668 A.2d 1288 (1995).
It is well established, however, that not every incident of juror misconduct requires a new trial. Due process seeks to assure a defendant a fair trial, not a perfect one. 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. The question is whether or not the misconduct has prejudiced the defendant to the extent that he has not received a fair trial.
(Citations omitted; internal quotation marks omitted.) State v. Anderson, supra, 255 Conn. 435-36.
"Like any other human institution, . . . trial by jury in criminal cases is neither perfect nor infallible." Regina v. Connor Anor UKHL 2 (January 22, 2004). The law on considering claims of juror misconduct thus has a long history. Most courts have now abandoned Lord Mansfield's rule, which precluded impeaching a jury verdict with the testimony or affidavit of a juror, but none permit inquiry into the mental operations of jurors. "[I]t is today universally agreed that on a motion to set aside a verdict and grant a new trial the verdict cannot be affected either favorably or unfavorably by the circumstances . . . that one or more jurors . . . had by any other motive or belief been led to their decision." 8 Wigmore, Evidence, § 2349, p. 681-82 (McNaughton Rev. 1961). As our Supreme Court recognized in Aillon v. State, 168 Conn. 541, 363 A.2d 49 (1975),
According Lord Steyn's recent remarks before the House of Lords in Regina v. Connor and Anor, other jurisdictions that preclude inquiry into the jury's mental and deliberative processes include the United Kingdom; Scotland ( Stewart v. Fraser (1830) 5 Murray 166; Swankie v HM Advocate (1999) SCCR 1); Canada ( R. v. Pan; R v Sawyer [2001] 2 SCR 344); Australia ( R. v. Andrew Brown [1907] 7 NSWSR 290; R. v. Medici (Court of Criminal Appeal, Victoria, 5 June 1995); and New Zealand ( R. v. Papadopoulos [1979] 1 NZLR 621.
the various policies behind the [Lord Mansfield] rule were to give stability to the verdicts of jurors, to minimize the temptation for jury-tampering, and to prevent inquisition into the arguments and reasoning of the jurors that go into their ultimate verdict. Those policies are served equally as well by a narrower rule "which excludes, as immaterial, evidence as to the expressions and arguments of the jurors in their deliberations and evidence as to their own motives, beliefs, mistakes and mental operations generally, in arriving at their verdict." McCormick, Evidence (2d Ed.) 68, p. 148. That rule has been aptly described as applying the parol evidence rule to a jury's verdict, so that their outward verdict as finally and formally made, and not their prior and private intentions, is taken as exclusively constituting the act. 8 Wigmore (McNaughton Rev.), Evidence 2348, 2349.
Id., 550. The modern Connecticut rule, set forth in Practice Book § 42-33, "Impeachment of Verdict," provides as follows:
Upon an inquiry into the validity of a verdict, no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror nor any evidence concerning mental processes by which the verdict was determined. Subject to these limitations, a juror's testimony or affidavit shall be received when it concerns any misconduct which by law permits a jury to be impeached. The rule is grounded in both the need to create and protect an environment in which jurors may engage in free and full debate on the issues of a case as well as the interests of finality.
The federal courts even prohibit any evidence from jurors themselves as to juror misconduct, except in limited circumstances. Rule 606(b) of the Federal Rules of Evidence provides:
Upon an inquiry into the validity of a verdict . . . a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions . . . except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention.
Thus, in Tanner v. United States, 483 U.S. 107, 127 (1987), the United States Supreme Court refused to consider juror testimony that during trial several jurors had consumed alcohol, ingested cocaine and marijuana, sold narcotics among to each other, and fallen asleep because of "the inadmissibility of juror testimony and the clear insufficiency of the nonjuror evidence."
Wigmore explains the reason why courts do not allow inquiry into juror's motives as follows:
[T]he verdict as uttered is the sole embodiment of the jury's act and must stand as such without regard to the motives or beliefs which have led to its act. The policy which requires this is the same which forbids consideration of the negotiations of parties to a contract leading up to the final terms as deliberately embodied in their deed, namely, the loss of all certainty in the verdict, the impracticability of seeking for definiteness in the preliminary views, the risk of misrepresentation after disclosure of the verdict and the impossibility of expecting any end to trials if grounds for the verdict were allowed to effect its overthrow.
8 Wigmore, Evidence § 2349(a), p. 681 (McNaughton Rev. 1961).
The Supreme Court has on several occasions explained why it would not permit inquiry into the mental processes of jurors. See, e.g., McDonald v. Pless, 238 U.S. 264 at 267-68 ("[L]et it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation — to the destruction of all frankness and freedom of discussion and conference."); Tanner v. United States, 483 U.S. 107, 120-21 (1987) ("There is little doubt that postverdict investigation into juror misconduct would in some instances lead to the invalidation of verdicts reached after irresponsible or improper juror behavior. It is not at all clear, however, that the jury system could survive such efforts to perfect it. Allegations of juror misconduct, incompetency, or inattentiveness, raised for the first time days, weeks, or months after the verdict, seriously disrupt the finality of the process. See, e.g., Government of the Virgin Islands v. Nicholas, [ 759 F.2d 1073 (CA3 1985)]; supra, at 1081 (one year and eight months after verdict rendered, juror alleged that hearing difficulties affected his understanding of the evidence). Moreover, full and frank discussion in the jury room, jurors' willingness to return an unpopular verdict, and the community's trust in a system that relies on the decisions of laypeople would all be undermined by a barrage of postverdict scrutiny of juror conduct."
"[W]here juror misconduct is claimed, jurors [are] competent to testify to the occurrence of incidents during trial or during their deliberations which might have affected the result of the trial, but [cannot] testify as to the impact of such incidents on their verdict." (Internal quotation marks omitted.) Turk v. Silberstein, 48 Conn. App. 223, 228, 709 A.2d 578 (1998). Instead of asking jurors whether the misconduct affected their deliberations, the court must "use an objective standard in which the focus is on the nature and quality of the misconduct, rather than the mental processes of the jurors." Speed v. DeLibero, 19 Conn. App. 95, 561 A.2d 959 (1989), rev'd on other grounds, 215 Conn. 308, 575 A.2d 1021 (1990). "The question is whether the misconduct is of such a nature as to make it probable that the misconduct resulted in prejudice and an unfair trial." Id.
More than a century ago, the United States Supreme Court set forth the rule for inquiry into the prejudicial effect of juror misconduct, distinguishing between proper testimony about objective matters ("any facts bearing upon the question of the existence of any extraneous influences") and improper testimony about subjective matters ("how far that influence operated upon his [the juror's] mind"). Mattox v. United States, 146 U.S. 140, 149 (1892). When the claimed juror misconduct concerns consideration of extrinsic information, our own Supreme Court has held, similarly, that
[e]vidence of the actual effect of the extraneous matter upon jurors' minds can and should be excluded, as such evidence implicates their mental processes, but receiving their evidence as to the existence of the condition or the happening of the event . . . supplies evidence which can be put to the test of other testimony (and thus sound policy is satisfied) and at the same time the evidence can serve to avert . . . a grave miscarriage of justice, which it is certainly the first duty of a court of conscience to prevent if at all possible.Aillon v. State, supra, 168 Conn. 551.
Courts have suggested several factors to be considered in determining whether to grant a new trial. See, e.g., State v. Asherman, supra, 193 Conn. 739. ("[W]hen a juror passes beyond the record evidence in reaching a decision, whether a new trial will be granted depends upon the magnitude of the juror's deviation from his proper role, the degree to which the accused was deprived of the benefits of the constitutional and statutory safeguards, and the likelihood that the impropriety influenced the jury's verdict." (Internal quotation marks omitted.); State v. Newsome, 238 Conn. 588, 630, 682 A.2d 972 (1996) ("[T]he materiality of an issue found to have been discussed prior to deliberation is properly considered, along with nature of that discussion . . .") Ultimately, however, when a juror relies on extrinsic evidence in reaching a decision, such deviation is measured by the likelihood that the impropriety influenced the jury's verdict. State v. Asherman, supra, 739. "The 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." (Internal quotation marks omitted) State v. Walker, supra, 80 Conn. App. 557.
Testimony from the three jurors leaves no doubt that Giardina spoke during deliberations about an extrinsic, non-evidentiary matter — the prospect of the defendant filing a civil action against the City of Meriden, and this court so finds. It is impossible to determine precisely what he said, as the evidence from the three jurors conflicts slightly as to whether he asked aloud if she had taken any action to sue (jurors Giardina and Diaz) or voiced an opinion that he hoped she would not sue and benefit financially from her son's death (juror Kirschmann). Regardless of his specific words, however, at least two jurors immediately informed him that such a matter was outside the evidence and not a proper matter to discuss or consider; and the matter was not thereafter discussed during deliberations.
This is not a case where a piece of evidence or fact which was not admitted at trial was learned by or communicated to a juror or jurors, "a circumstance that may give rise to a heightened risk of prejudice to the defendant." State v. Rhodes, 248 Conn. 39, 51, 726 A.2d 513 (1999). The "extrinsic material" brought to the jury's attention here was not in the nature of an evidentiary fact, such as an unauthorized visit to the scene of a crime or conversation with a witness, that bore on the factual issues at trial, but was instead a juror's opinion about a fact not directly bearing on guilt or innocence. The utterance had no likely or probable effect on the jury's deliberations. Though such an opinion was still an extrinsic factor, the juror's utterance of that opinion was immediately followed by the admonition of other jurors that the jury could not consider such a matter. That there was no further discussion of the question shows the lack of effect of juror G's utterance. The court finds that the "extrinsic matter" here, objectively considered, was not of the nature or quality to result in actual prejudice to the defendant's right to a fair trial before an impartial jury. There is no likelihood that his impropriety affected the jury's verdict. See, e.g., State v. McCall, 187 Conn. 73, 81, 444 A.2d 896 (1982) ("Mere expression of opinion, as opposed to positive expression of facts, does not warrant a mistrial.")
An independent fact supporting that conclusion, though not a basis for this court's finding or decision here, which the court finds based on the testimony of the three jurors in the hearing and includes here for possible appellate consideration, is that this conversation occurred only after the jury had voted for conviction on the first count; and after this conversation, the jury voted for acquittal on the second though fourth counts of the information.
Much of counsel's argument following the hearing focused on whether Giardina had considered an improper factor in his vote for conviction. Yet as the authorities cited above show, this court may not go behind the verdict to evaluate a juror's motives in rendering the verdict. Hence, Giardina's statements to reporters as to his reasons for voting to convict are not a basis for impeaching the verdict. The defendant's argument to the contrary founders on the well-established rule "which excludes, as immaterial, evidence as to the expressions and arguments of the jurors in their deliberations and evidence as to their own motives, beliefs, mistakes and mental operations generally, in arriving at their verdict." Allion v. State, supra, 168 Conn. 550, quoting C. McCormick, Evidence (2d Ed. 1972) 68, pp. 148-49.
"MR. NORRIS: . . . He used information which was not evidence in this case, nor in the law provided to the Court, in part, according to his statement to find the defendant guilty.
"THE COURT: So it's your claim that if a juror considers extrinsic evidence, that that's presumptive evidence of bias requiring a new trial, is that the gist of the claim?
"MR. NORRIS: Yes, but that's not the only case because in this situation we're not talking about a juror who said he considered extrinsic evidence and dismissed that extrinsic evidence. In this case, you're dealing with an admission of a juror who not only says I considered extrinsic evidence but, in fact, that was a motivating factor in finding the defendant guilty . . .
. . . [I]t was in fact prejudicial because we have an admission, that he considered this, in part, in finding her guilty.
"THE COURT: . . . Now do you think that I find that, in fact, was his motive, one his reasons for a guilty verdict, that the defendant is basically right, that that's a basis for the ordering of a new trial?
"MR. DINNAN: I agree with that."
(December 19, 2003, Transcript 28, 36-37, 55.)
Nor does the court find any prejudice or bias on Giardina's part. The only misconduct alleged here on Giardina's part was his voicing an opinion about an extrinsic factor to the jury during deliberations. This court has observed Giardina testify on several occasions: during voir dire, a mid-trial evidentiary hearing after a member of the public spoke to him about this case, and the post-verdict hearings here. There is no persuasive evidence that Giardina actually knew, before the verdict, that the defendant had taken any action to sue the city. The court does not find credible the inference drawn by a newspaper reporter, from her recollection that Giardina used the past perfect tense, that he learned about the defendant's intention to sue during the trial. The testimony of the jurors as to Giardina's utterance during deliberations shows that he did not then know whether the defendant was suing the city. On the totality of the evidence, the court does not find that he concealed such a knowledge during voir dire or that during trial he acquired and failed to disclose such knowledge. Based on the court's numerous opportunities to observe this witness and consider his testimony, and the full array of evidence presented here, the court does not find any improper bias or prejudice on this juror's part.
The court repeatedly instructed the jurors to avoid any outside information about the trial or issues arising therein and to inform the court of any instance in which they might happen to do so. Juror G. showed his awareness of his duty to follow the court's admonitions to obey the rules of juror conduct when he reported to the court, mid-trial, that he had been approached by an individual he identified as allied with the defendant. His conduct suggests he would have similarly informed the court had he acquired outside information about the case.
II — CLAIM OF PROSECUTORIAL MISCONDUCT
A second ground relied upon by the defendant in her amended motion for a new trial is her assertion that the prosecutor committed prejudicial misconduct in closing argument by referring to a Chinese proverb and urging the jury to "vote your conscience on what you truly believe the proper verdicts should be for these three charges." The defendant claims that the state's request for jurors to vote their conscience as to the proper verdict was an improper appeal to their passions.
It goes without saying that a prosecutor may not appeal to the emotions, passions and prejudices of the jurors during closing argument. "[S]uch appeals should be avoided because they have the effect of diverting the jury's attention from [its] duty to decide the case on the evidence. When the prosecutor appeals to emotions, he invites the jury to decide the case, not according to a rational appraisal of the evidence, but on the basis of powerful and irrelevant factors which are likely to skew that appraisal." (Internal quotation marks omitted.) State v. Payne, 260 Conn. 446, 462, 797 A.2d 1088 (2002).
In analyzing a claim of prosecutorial misconduct during summation, the court must first determine whether the challenged statements were improper and, second, if so, whether they caused the defendant substantial prejudice. State v. Garrett, 42 Conn. App. 507, 515-16, 681 A.2d 362, cert. denied, 239 Conn. 928, 929, 683 A.2d 398 (1996). In considering the second factor, the court must
focus on several factors, including (1) the extent to which the misconduct was invited by defense conduct or argument, (2) the severity of the misconduct, (3) the frequency of the misconduct, (4) the centrality of the misconduct to the critical issues in the case, (5) the strength of the curative measures adopted and (6) the strength of the state's case. Furthermore, whether a new trial or proceeding is warranted depends, in part, on whether defense counsel has made a timely objection to any of the prosecutor's improper remarks. When defense counsel does not object, request a curative instruction or move for a mistrial, he presumably does not view the alleged impropriety as prejudicial enough to seriously jeopardize the defendant's right to a fair trial.
(Citations omitted; quotation marks omitted.) State v. Pepper, 79 Conn. App. 1, 20, 828 A.2d 1268, cert. granted on other grounds, 266 Conn. 919, 837 A.2d 801 (2003), The prosecutor here asked jurors to "[l]ook at this case closely, analyze it up and down, the strengths, weaknesses, criticisms of both sides" and then "vote your conscience on what you truly believe the proper verdicts should be." The prosecutor's remark presaged the court's instruction to the jury that it should "decide this case upon the basis of your own individual judgment and conscience." In State v. Coney, 266 Conn. 787, 835 A.2d 977 (2003), the court recently considered the propriety of a prosecutor telling a jury "to do the right thing." The court held that such a remark, in the context of that case, "was nothing more than encouragement for the jury to take their role seriously and act accordingly," id. at 817, in large part because, like the prosecutor's remark in the present case, it was not coupled with an immediate exhortation to convict.
The prosecutor's statement here might be construed as an appeal to the jury's conscience, but as such is vastly different from those appeals to the passions or emotions of jurors that have been held improper. In State v. Reynolds, 264 Conn. 1, 836 A.2d 224 (2003), for example, after referring to the defendant's photo album of his family during summation, the prosecutor urged the jury to examine autopsy photographs of the victim in evidence and stated:
[The defendant] created these autopsy pictures and I know that they are not pleasant to look at, and they weren't introduced and shown to you to make you feel uneasy. They were introduced because this is what the defendant left the Williams family. That's their family album.
Id. In State v. Payne, supra, 260 Conn. 446, the prosecutor improperly appealed to the jury's emotions by seeking sympathy for the victim's family and inflaming anger against the defendant. "The prosecutor indicated that only a guilty verdict would protect our legal system." Id., 463. The court held that describing the victim during summation as "on a slab, on a cutting board" was calculated to inflame the passions of the jury against the defendant [and] . . . to engender sympathy for the victim." Id. The prosecutor "portrayed the defendant's defense as seeking to capitalize on the deceased victim's inability to be present at the trial." Id. In State v. Alexander, 254 Conn. 290, 307, 755 A.2d 868 (2000), the court held that the prosecutor had "elicited powerful feelings of disgust in the average juror" and "made it extremely difficult for the jury to focus on the actual facts in evidence" with his description of child molesters and their victims.
The court has reviewed the entire transcript of the prosecutor's closing argument. As was true of defense counsel's as well, his summation was a thoughtful argument focused on the evidence, the credibility of the witnesses, and whether the state had met its burden of proof. In none of the state's summation does this court find prosecutorial misconduct requiring a new trial. Even if improper, however, on the facts of this case such a remark did not cause substantial prejudice to the defendant. Skilled defense counsel had objected moments earlier, when the prosecutor's summation began to refer to non-evidentiary facts — an objection sustained by the court, yet decided not to object to the argument that the defendant now claims was improper. Such failure to object suggests that the defense "presumably did not regard those remarks . . . as seriously prejudicial at trial." (Internal quotation marks omitted.) State v. Chasse, 51 Conn. App. 345, 356, 721 A.2d 1212 (1998), cert. denied, 247 Conn. 960, 723 A.2d 816 (1999). Nor does the juxtaposition of this remark to a proverb about harmony in the home, country and world referred to by the prosecutor render the remark harmful. The proverb did not expose the jury to new facts or ask the jury to rely on factors outside the evidence, but was a rhetorical device that neither exceeded the bounds of appropriate argument nor constituted an improper appeal to the emotions of the jury. These isolated remarks in the close of the state's summation were not severe in any misconduct or central to the critical factual issues in the case.
The court thus concludes that there is no basis in the prosecutor's summation to order a new trial.
III — POLLING JURY REGARDING UNANIMITY
The defendant also claims that a new trial is necessary because the court should have polled the jury whether it was unanimous as to one of the elements necessary for conviction of risk of injury. The court instructed the jury that it "must agree unanimously as to whether [the defendant's] conduct was either wilful or unlawful" on the count of risk of injury charge. After the jury announced its verdict of guilty, the court directed a poll of jurors as to their unanimity on each count, but rejected a defense request that the court poll the jury as to whether it had been unanimous on whether the defendant's conduct had been either wilful or unlawful.
When the state proceeds on alternative theories of liability in a criminal prosecution, the jury must unanimously agree as to which theory has been proven beyond a reasonable doubt.
In essence, the unanimity requirement . . . requires the jury to agree on the factual basis of the offense. The rationale underlying the requirement is that a jury cannot be deemed to be unanimous if it applies inconsistent factual conclusions to alternative theories of criminal liability. Where a trial court charges a jury that the commission of any one of several alternative acts would subject a defendant to criminal liability, a unanimity charge on a specific act is required only if two conditions are met: (1) the alternative acts are conceptually distinct from each other; and (2) the state has presented supporting evidence on each alternative act. Alternative bases of liability are not conceptually distinct if the two ways [of committing the crime] are practically indistinguishable.
(Internal quotations omitted; citations omitted.) State v. Suggs, 209 Conn. 733, 761, 553 A.2d 1110 (1989). Although appellate cases make clear that a trial court's refusal to poll a jury when requested by the defendant is reversible error, here the jury was polled as to the unanimity of its verdict on each count.
There is no binding Connecticut authority on whether a unanimity instruction on alternative theories of liability requires a jury poll upon request of the defendant. Here, however, the court's refusal to poll the jury as to unanimity has caused defendant no legal harm, for after reviewing the briefs submitted by both parties after trial, the court now concurs with the state that the unanimity instruction to the jury on this element was not required. A unanimity instruction is required only where the state claims that "alternative" and "conceptually distinct" actions of a defendant are subject to criminal liability. Such is not the case here. The element of wilfulness or unlawfulness is akin to differing mens rea components of a crime, and hence did not require an instruction that the jury unanimously agree as to which had been proven beyond a reasonable doubt. See State v. Suggs, supra, 209 Conn. 763. ("Whether alternative bases of liability are conceptually distinct ordinarily focuses . . . on actus reus components.") (Alterations omitted.) The jury need not have been unanimous in its conclusion as to whether the defendant had acted wilfully or done so unlawfully, so long as the jurors were unanimous that her conduct violated the statute under which they convicted her. Hence, the court's failure to poll as to their unanimity on this element was not error or the basis for a new trial.
IV — OTHER GROUNDS
The three remaining grounds for new trial raise claims already rejected by the court at trial — that the court should have disqualified juror Giardina after he disclosed contact by a third party during trial, should have granted a mistrial, and should have granted the defendant's motion for acquittal on all charges after the state's case in chief. The defendant has raised no reason for the court to reconsider its prior rulings rejecting these claims by defendant.
After the court learned of improper contact mid-trial between juror Giardina and a person attending trial, the court conducted an evidentiary hearing in which the court individually queried Giardina and the other jurors. The court ascertained the facts concerning the contact and searchingly inquired whether that encounter would prejudice him. Although "upset when it happened," (T. 10/31/01 at 31) and assuming that the person who did so was associated with the defense, Giardina assured the court that the contact would not affect his verdict; and the court found him credible. The critical consideration in resolving a claim of improper juror contact is not whether prejudice may be assumed from such contact, but, rather, whether, under the specific facts of the case, any such impropriety actually affected the verdict. State v. Walker, 80 Conn. App. 542, 557, 835 A.2d 1058 (2003). "The 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." State v. Rhodes, supra, 248 Conn. 47. The court found that the contact was not such as would render Giardina unfit to continue serving.
As for the motion for judgment of acquittal at the close of the state's case, for reasons more fully stated in this court's decision denying the post-verdict motion for acquittal, the court concludes that the evidence presented by the state's witnesses in the prosecution case in chief established a prima facie case, with the evidence viewed most favorably to the state, that would permit a reasonable jury to render verdicts of guilty.
Conclusion
For the above-stated reasons, the amended motion for new trial is therefore DENIED.
BY THE COURT
STEPHEN F. FRAZZINI JUDGE OF THE SUPERIOR COURT