State v. Anderson

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STATE OF CONNECTICUT v. STEPHANIE
ANDERSON
(AC 36245)
DiPentima, C. J., and Gruendel and Keller, Js.*
Argued January 4—officially released March 15, 2016

(Appeal from Superior Court, judicial district of
Hartford, geographical area number fourteen,
McWeeny, J. [judgment]; Bentivegna, J. [motion for
mistrial].)
Gwendolyn S. Bishop, assigned counsel, for the
appellant (defendant).
Lisa A. Riggione, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Robert Diaz, senior assistant state’s attor-
ney, for the appellee (state).
Opinion

KELLER, J. The defendant, Stephanie Anderson,
appeals from the judgment of conviction, rendered fol-
lowing a jury trial, of one count of operating a motor
vehicle while under the influence of alcohol in violation
of General Statutes § 14-227a (1), and one count of
operating a motor vehicle while her operator’s license
was under suspension in violation of General Statutes
§ 14-215 (c). Additionally, the defendant pleaded guilty
under a part B information to being a third time offender
pursuant to General Statutes § 14-227a (g) (3). On
appeal, the defendant claims that the trial court, Benti-
vegna, J., erred when it denied her motion for a mistrial,
which was based on a communication that occurred
during the trial between the defendant’s daughter and
a juror. We affirm the judgment of conviction.
The following facts and procedural history are rele-
vant to this appeal. On March 13, 2012, a Hartford police
officer arrested the defendant, who was charged with
driving while under the influence of alcohol and
operating a motor vehicle while her license was under
suspension. The defendant pleaded not guilty and
elected to be tried by a jury. The defendant was tried
by a jury before the court, McWeeny, J., on April 25,
2013. At the conclusion of the trial, the jury returned
a verdict of guilty on both counts. Also, the defendant
pleaded guilty, under a part B information, to being a
third time offender under § 14-227a (g) (3).
On June 10, 2013, Judge McWeeny sentenced the
defendant and, at the time of sentencing, delayed execu-
tion of the sentence. On July 29, 2013, Judge Bentivegna1
lifted the stay and clarified the sentence imposed. The
defendant was sentenced to a total effective term of
three years incarceration, suspended after one year of
mandatory incarceration, followed by three years of
probation.
The defendant filed a motion for a mistrial on July
26, 2013. In the motion, the defendant represented that
she was deprived of a fair trial because one of the jurors
had interacted with her daughter during a lunch recess
at trial. Specifically, the defendant alleged that she had
been deprived of a fair trial because that interaction
made it probable that the juror became biased, given
that the juror knew who her daughter was, her daughter
smelled of alcohol, and one of the charges against her
pertained to her alleged intoxication by means of
alcohol.
On August 19, 2013, Judge Bentivegna held an eviden-
tiary hearing on the defendant’s motion. At the hearing,
the defendant presented the testimony of her daughter,
her son, and D,2 the juror with whom the defendant’s
daughter allegedly had interacted during the trial. The
state did not call any witnesses at the hearing, but both
the state and the defendant presented oral arguments.
According to the testimony of the defendant’s three
witnesses at the hearing, the defendant’s daughter—
who was an observer in the courtroom at the trial and
who was eighteen years of age at the time—approached
D during the lunch recess while she was standing with
another juror outside of the courthouse. The witnesses
testified that the defendant’s daughter asked D if she
could borrow her cell phone and D allowed her to do
so. According to the witnesses’ testimony, after the
defendant’s daughter completed her phone call, she
thanked D and gave her the phone.3 The defendant’s
son testified that he and the defendant were able to
observe the defendant’s daughter interacting with D
outside of the courthouse and that the defendant
became ‘‘mad’’ because she knew that D was a juror.
The defendant’s daughter testified that although she
knew at the time of the interaction that D was a juror
in her mother’s trial, she did not talk about the case at
all with D. D also testified that she did not talk about the
case with anyone, including the defendant’s daughter,
during the recess.
According to the testimony of the defendant’s daugh-
ter and the defendant’s son, the defendant’s daughter
had been drinking alcohol on the night before her inter-
action with D. The defendant’s daughter also testified
that she ‘‘probably’’ smelled of alcohol ‘‘a little bit’’
when she interacted with D, but that although, in her
own estimate, she had been close enough to D so that
she could have smelled alcohol, the entire encounter
was ‘‘really fast’’ and D had not made any comments
about her smelling of alcohol. D testified that the defen-
dant’s daughter neither seemed intoxicated nor smelled
of alcohol during their interaction. She also testified
that she did not notice that the defendant’s daughter
had been sitting in the courtroom during the course of
the trial, but only had observed her in the courtroom
after the conclusion of the trial. Furthermore, when
asked if she knew that the young woman who had
asked her to borrow her cell phone was the defendant’s
daughter, D testified that she neither knew that the
defendant had a daughter, nor knew that the young
woman was related to the defendant in any way.
At the conclusion of the hearing, the court made the
following factual findings: ‘‘As to whether the proof that
the incident occurred, I think—the evidence reflects
that there was a contact between the defendant’s daugh-
ter . . . and the juror, [D].
‘‘And . . . I think that it’s clear that [the daughter]
approached [D] and asked [D] to borrow her cell phone
and that [D] allowed [the daughter] to use the cell phone
to make a call.
‘‘I think that the evidence reflects that that whole
. . . incident probably . . . wasn’t . . . very long
. . . . And the record reflects [the daughter’s] testi-
mony is that they—and—[D’s] testimony was that they
didn’t talk about the case.
‘‘They didn’t talk about anything relating [to] the jury
. . . or the jury deliberations. And then, there is some
dispute about whether or not [D] asked [the daughter]
to borrow [the daughter’s] lighter.
‘‘That [the daughter] says yes. . . . [The son] said,
yes. [D] said no. She had her own lighter. But, even if
. . . it was true, assume, for the sake that it was true,
that [the daughter] loaned . . . [D] the lighter, there
was still no discussion of the jury trial.
‘‘There’s no indication that there was any discussion
of the case. . . . I think that those are the facts that
relate to the first element [of juror misconduct], you
know, proof that an incident occurred.
‘‘The second element is proof that the misconduct
resulted in actual prejudice or bias. And there has not
been really any evidence that demonstrates that . . .
[D] was—that this contact that . . . [D] had with the
defendant’s daughter, in any way rose to that level. So,
this really was a limited conversation in front of the
courthouse. . . .
‘‘There was no discussion of the trial. There was no
discussion of a jury’s deliberation. I think that . . .
[D’s] testimony was credible in terms of her testimony.
And as I indicated, there was really no proof that this
incident had any effect or influence on . . . [D’s] abil-
ity to be [a] fair and impartial juror.
‘‘There was no indication that . . . [D] shared any-
thing regarding the encounter with any other member
of the . . . jury. There’s no indication that . . . [D]
said to another juror that she had this encounter with
[the daughter] and [the daughter] smelled of alcohol.
‘‘I mean, there was no proof of that. There was really
no evidence adduced at trial—at the hearing that the
defendant has been prejudiced in any way by . . . [D’s]
conduct. And the evidence failed to show that . . .
[D’s] misconduct was such as [to] make [it] probable
that . . . [D’s] mind was influenced by it so as to render
. . . [her] an unfair and prejudicial juror. So, the court’s
going to find that the defense failed to prove any actual
prejudice or bias.’’
Accordingly, the court denied the defendant’s motion
from the bench. This appeal followed.
On appeal, the defendant claims that the court abused
its discretion in denying her motion for a mistrial
because it improperly required her to prove that the
interaction between her daughter and D subjected her
right to a fair trial to ‘‘actual prejudice’’ instead of ‘‘prob-
able prejudice.’’ In opposition, the state argues that the
court held the defendant to the correct burden of proof
on her motion.4 Alternatively, the state argues that even
assuming that the court imposed an improper burden
of proof upon the defendant, ‘‘the absence of any evi-
dence of an effect on [D] establishes that the defendant
could not prevail under any standard.’’ We agree with
the state that the defendant could not prevail under the
correct legal standard and, thus, we conclude that the
court did not abuse its discretion in denying her motion
for a mistrial.
We begin our analysis by setting forth the appropriate
standard of review. ‘‘The decision as to whether to grant
a motion for a mistrial . . . is one that requires the
trial court to exercise its judicial discretion. . . . Our
review of the trial court’s exercise of its discretion is
limited to questions of whether the court correctly
applied the law and could reasonably have concluded
as it did. . . . Every reasonable presumption will be
given in favor of the trial court’s ruling. . . . It is only
when an abuse of discretion is manifest or where an
injustice appears to have been done that a reversal will
result from the trial court’s exercise of discretion. . . .
‘‘[Although] the remedy of a mistrial is permitted
under the rules of practice, it is not favored. . . . If
curative action can obviate the prejudice, the drastic
remedy of a mistrial should be avoided. . . . The gen-
eral rule in Connecticut is that a mistrial is granted only
where it is apparent to the court that as a result of
some occurrence during trial a party has been denied
the opportunity for a fair trial. . . . The trial court
enjoys wide discretion in deciding whether a mistrial
is warranted . . . and its evaluation as to events
occurring before the jury is to be accorded the highest
deference. . . . Every reasonable presumption will be
given in favor of the trial court’s ruling . . . because
the trial court, which has a firsthand impression of
the jury, is in the best position to evaluate the critical
question of whether the juror’s or jurors’ exposure has
prejudiced a defendant. . . . [W]e examine the court’s
exercise of discretion to determine whether it correctly
applied the law and reasonably could have concluded
as it did in denying the motion for a mistrial.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Boykin, 74 Conn. App. 679, 685–87, 813 A.2d 143, cert.
denied, 263 Conn. 901, 819 A.2d 837 (2003).5
Before the trial court and this court, the defendant
consistently characterized the interaction between her
daughter and D as ‘‘juror misconduct.’’ Thus, we turn
to fundamental principles that govern claims of juror
misconduct. ‘‘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 amend-
ment to the United States constitution. . . . It is well
established, however, that not every incident of juror
misconduct requires a new trial. . . . [T]he constitu-
tion 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.’’ (Citations omitted; internal quotation
marks omitted.) State v. Anderson, 255 Conn. 425, 435–
36, 773 A.2d 287 (2001). ‘‘[It] bears mentioning that the
opportunity for a juror to commit misconduct is a far
cry from a juror who actually does commit misconduct.
Theoretically, 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.’’ State
v. Roman, 320 Conn. 400, 410–11, A.3d (2016).
A defendant who claims that juror misconduct
deprived him of his right to a fair trial, must prove that
the alleged misconduct, in fact, occurred. The nature of
the misconduct then determines whether the defendant
thereafter bears the burden of proving that it actually
prejudiced his right to a fair trial or whether such preju-
dice is presumed as a matter of law, thus shifting the
burden to the state to prove that the misconduct was
harmless. In situations in which ‘‘the trial court is
directly implicated in juror misconduct, the state bears
the burden of proving that misconduct was harmless
error.’’ (Internal quotation marks omitted.) State v.
Rhodes, 248 Conn. 39, 47, 726 A.2d 513 (1999). Addition-
ally, in a recent decision, State v. Berrios, 320 Conn.
265, 292, A.3d (2016), our Supreme Court
explained that a presumption of prejudice is triggered
once it is proven that there existed ‘‘external interfer-
ence with the jury’s deliberative process via private
communication, contact, or tampering with jurors that
relates directly to the matter being tried.’’ (Footnote
omitted.) In cases of this nature, ‘‘the burden properly
rests on the state for several reasons: the overarching
importance of protecting the defendant’s constitutional
right to a fair trial, the continuing maintenance of the
integrity of the jury system and the necessity of continu-
ing to preserve the trust reposed in criminal jury ver-
dicts.’’ (Internal quotation marks omitted.) Id., 293.
Nonetheless, ‘‘the burden remains on the defendant to
show prima facie entitlement to the . . . presumption
[of prejudice]; evidence, rather than speculation, is
required to shift the burden of proof to the state.’’ Id.
Thus, unless a defendant can prove, rather than
merely speculate, that the court was directly implicated
in juror misconduct or that there was ‘‘external interfer-
ence with the jury’s deliberative process via private
communication, contact, or tampering with jurors that
relates directly to the matter being tried’’; (footnote
omitted) id., 292; a defendant cannot demonstrate an
entitlement to a presumption of prejudice, but ‘‘bears
the burden of demonstrating prejudice’’ as a result of
the alleged misconduct. State v. Roman, supra, 320
Conn. 409.
With respect to a defendant’s burden of proving that
juror misconduct was prejudicial, our Supreme Court
has stated: ‘‘It is well established . . . that not every
incident of juror misconduct requires a new trial. . . .
[D]ue process seeks to assure a defendant a fair trial,
not a perfect one. . . . [T]he 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 miscon-
duct has prejudiced the defendant to the extent that he
has not received a fair trial. . . . 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.’’
(Citations omitted; internal quotation marks omitted.)
State v. Rhodes, supra, 248 Conn. 47; see also State
v. Anderson, supra, 255 Conn. 436 (proper inquiry is
whether misbehavior was of such nature as to make it
probable that juror’s mind was influenced); State v.
Newsome, 238 Conn. 588, 628, 682 A.2d 972 (1996)
(same). ‘‘Ultimately . . . [t]o succeed on a claim of
[juror] bias the defendant must raise his contention of
bias from the realm of speculation to the realm of fact.’’
(Internal quotation marks omitted.) State v. Anderson,
supra, 436. We observe that, in accordance with ‘‘the
well settled limitation on inquiring into the mental pro-
cesses of jurors’’; State v. Johnson, 288 Conn. 236, 261,
951 A.2d 1257 (2008); this inquiry does not involve an
inquiry concerning the actual effect of any misconduct
upon one or more jurors.
In the present case, the defendant did not argue
before the trial court that she did not bear the burden
of demonstrating that she had been prejudiced by the
alleged juror misconduct, and she does not so argue
before this court. Despite the fact that the defendant
does not dispute that she bore the burden of proof on
her motion for a mistrial, she claims that the court held
her to an improper burden of proof based upon its
statements at the conclusion of the hearing that ‘‘[t]he
second element [of a juror misconduct claim] is proof
that the misconduct resulted in actual prejudice or
bias,’’ that ‘‘[t]here was really no evidence adduced . . .
at the hearing that the defendant [had] been prejudiced
in any way by [D’s] conduct,’’ and that ‘‘the court’s
going to find that the defense failed to prove any actual
prejudice or bias.’’ These statements, the defendant
claims, reflect that the court, in its assessment of her
motion for a mistrial, improperly required her to prove
that D actually was biased because of D’s interaction
with her daughter.
We conclude that the court properly denied the defen-
dant’s motion for a mistrial because, as a matter of law,
the court’s findings of fact establish that the defendant
failed to carry her burden of proving that the contact
between her daughter and D made it probable that D
became biased as a result of it. Although the defendant
characterizes the claim as involving juror misconduct,
the defendant did not allege, nor did the court find, that
D had violated any of her obligations as a juror simply
because she briefly had conversed with the defendant’s
daughter, whose relationship to the defendant was
unknown to her, about matters that were wholly unre-
lated to the defendant’s trial. The defendant has not
proven that juror misconduct occurred. Instead, this
claim involves third party communication with a juror,
which, the defendant argues, probably caused the juror
to be biased against her. The defendant did not demon-
strate that the court was directly involved in this contact
between D and the defendant’s daughter or that the
contact related directly to the matter being tried. Thus,
the defendant did not demonstrate a prima facie entitle-
ment to a presumption of prejudice, but bore the burden
of demonstrating prejudice. See State v. Roman, supra,
320 Conn. 409.
Although the court’s oral decision does not clearly set
forth the defendant’s burden of proof, we nevertheless
interpret the decision by considering it in its entirety,
rather than by considering certain statements in artifi-
cial isolation. See, e.g., In re Nevaeh W., 317 Conn. 723,
733, 120 A.3d 1177 (2015) (reviewing court must read
trial court’s opinion as whole to discern meaning). Here,
the court stated the burden of proof to be imposed on
the defendant both accurately and inaccurately. Specifi-
cally, it accurately referred to the burden of proof when
it stated that ‘‘the evidence failed to show that the juror’s
misconduct was such as [to] make [it] probable that
the juror’s mind was influenced by it so as to render
the juror an unfair and prejudicial juror.’’ See State v.
Anderson, supra, 255 Conn. 436; State v. Rhodes, supra,
248 Conn. 47; State v. Newsome, supra, 238 Conn. 628;
State v. Abraham, 84 Conn. App. 551, 556, 854 A.2d 89,
cert. denied, 271 Con. 938, 861 A.2d 514 (2004). The
court, however, also inaccurately referred to the burden
of proof when it stated that ‘‘[t]he second element is
proof that the misconduct resulted in actual prejudice
or bias,’’ that ‘‘there was really no proof that this inci-
dent had any effect or influence on the juror’s ability
to be [a] fair and impartial juror,’’ and that ‘‘the court’s
going to find that the defense failed to prove any actual
prejudice or bias.’’ Thus, it is unclear whether the court
held the defendant to the proper burden of proving
whether she was deprived of a fair trial because the
contact at issue probably caused D to be an unfair and
prejudicial juror.
To the extent that it appears from the court’s oral
decision that it impermissibly considered whether the
alleged misconduct had any effect on D’s—or any other
juror’s—deliberation process or her ability to be impar-
tial, we do not consider such impropriety to warrant
reversal as to the defendant’s conviction. The court’s
findings concerning the incident, which are not chal-
lenged on appeal, lead us to conclude that the court
did not abuse its discretion in denying the defendant’s
motion because, as a matter of law, the defendant is
unable to prevail under the correct burden of proof.
We may affirm the court’s judgment on the ground
that, as a matter of law, the court’s findings of fact
concerning the interaction between D and the defen-
dant’s daughter do not establish that the incident proba-
bly caused D to be an unfair or impartial juror. ‘‘We
may affirm a trial court’s decision that reaches the right
result, albeit for the wrong reason.’’ State v. Albert, 50
Conn. App. 715, 728, 719 A.2d 1183 (1998), aff’d, 252
Conn. 795, 750 A.2d 1037 (2000). We are mindful that
‘‘the opportunity for a juror to commit misconduct is
a far cry from a juror who actually does commit miscon-
duct.’’ State v. Roman, supra, 320 Conn. 410. The court’s
findings reflect that the interaction between the defen-
dant’s daughter and D was brief, that the interaction
did not involve any discussion of the case or of the jury
trial, and that the interaction was not brought to the
attention of any other members of the jury. As we
already have observed, the present claim involves third
party communication with a juror that was not related
to the matter being tried. It does not involve juror mis-
conduct. The court found D’s version of events to be
credible, which encompassed her testimony that she
was unaware of the identity of the defendant’s daughter
when she interacted with her, that she only learned of
her identity after the jury’s deliberations had ended,
and that the defendant’s daughter neither appeared to
be intoxicated nor smelled of alcohol. On the basis of
this factual record, we conclude that the court properly
exercised its discretion in denying the defendant’s
motion for a mistrial.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Judge Bentivegna stated that Judge McWeeny was unavailable at the time.
2
We refer to the juror by her initial to protect her legitimate privacy
interests. See, e.g., State v. Holley, 90 Conn. App. 350, 352 n.2, 877 A.2d 872,
cert. denied, 275 Conn. 929, 883 A.2d 1249 (2005).
3
There was some dispute as to whether, at this point, D asked the defen-
dant’s daughter if she could borrow her lighter so that she could smoke a
cigarette. Specifically, the defendant’s daughter and the defendant’s son
testified that this had occurred, but D testified that this did not occur. The
defendant’s daughter and son both testified that the defendant’s daughter
allowed D to borrow her lighter, that D returned it to her after she lit her
cigarette, and that the defendant’s daughter then walked away from her.
4
Also, as it did at the hearing on the motion for mistrial, the state, relying
on the testimony of the defendant’s son, argues on appeal that the defendant
waived her claim because despite the fact that she and her son observed
her daughter interacting with a person whom she knew to be a juror on
April 25, 2013, she apparently chose to not bring all of the details of the
encounter to her attorney’s attention until after the jury returned its verdict.
When Judge Bentivegna gave her an opportunity to respond to the waiver
argument at the hearing, defense counsel represented that on April 25, 2013,
when court came back into session after a recess and after the encounter
between the daughter and D had taken place, Judge McWeeny admonished
the jury to refrain from talking to anyone outside of the jury about the case.
Defense counsel represented that shortly after the court’s admonishment,
the defendant then said to her that Judge McWeeny must have given the
warning ‘‘because [her] daughter was speaking—the juror was speaking to
[her] daughter.’’ Defense counsel represented that despite the defendant’s
statement to her, she did not raise the issue of a mistrial at that time because
she mistakenly thought that, based upon his admonishment, Judge McWeeny
had already been informed of the encounter between the daughter and a
juror. Defense counsel submitted that she had not known all of the details
of the encounter at that time and that she later learned that Judge McWeeny’s
admonishment was occasioned by a different incident that had occurred
during a recess in which several jurors had overheard the defendant talking
on her cell phone outside of the courtroom and had informed the court
immediately thereafter. Ultimately, defense counsel stated that there was
a miscommunication between herself and her client insofar as she knew
neither the reason for Judge McWeeny’s admonishment nor all of the details
surrounding the interaction between the daughter and one of the jurors
on the date that the incident occurred, April 25, 2013. Defense counsel
represented that on July 24, 2013, the defendant informed her of the exact
nature of the encounter that occurred between her daughter and D and that
she filed the motion for a mistrial two days later, on July 26, 2013. Accord-
ingly, defense counsel argued that the defendant had not waived her claim.
After hearing defense counsel’s representations on the waiver issue at
the hearing on the motion for mistrial, the court, Bentivegna, J., addressed
the merits of the defendant’s motion and did not make any findings as to
whether the defendant had waived her claim. The record does not contain
any factual findings related to the undisputed representations of defense
counsel as to when she became aware of all of the details surrounding the
encounter between D and the defendant’s daughter. Accordingly, the record
does not permit us to revisit the waiver issue.
5
We recognize that, generally, the judge who is asked to consider and
rule on a motion for a mistrial is the same judge who presided over the
trial itself. As discussed previously in this opinion, however, that did not
occur in the present case. Although, in the present case, Judge Bentivegna
did not have a firsthand impression of the jury, that fact does not cause us
to review his ruling on the motion for a mistrial with any less deference
than if he had presided over the trial. In the present case, the motion for
a mistrial was based on an occurrence that involved only one juror, D. Judge
Bentivegna had a firsthand opportunity to evaluate D during the proceeding
related to the motion for a mistrial and, thereby, to evaluate the probable
effect of her exposure to the defendant’s daughter.