State v. Hughes ( 2022 )

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STATE OF CONNECTICUT v. DANTE
ALEXANDER HUGHES
(SC 20268)
Robinson, C. J., and McDonald, D’Auria,
Kahn, Ecker and Keller, Js.
Syllabus
Convicted of the crimes of manslaughter in the first degree with a firearm
and criminal possession of a firearm in connection with the shooting
death of the victim, the defendant appealed to this court, claiming that
the state had failed to satisfy its burden of disproving his claim of self-
defense beyond a reasonable doubt and that the trial court improperly
had denied his motion for a new trial on the ground of juror misconduct.
While the defendant and his girlfriend, K, were drinking and socializing
at a bar, they began to argue, and K struck the defendant in the face
with a beer bottle. K then left the bar with the keys to their vehicle,
and the defendant followed her. At the request of a bartender, several
patrons, including the victim, went outside to check on K. As K was
seated in the driver’s seat of the couple’s vehicle, the defendant punched
her in the face. The victim and another patron pulled the defendant
away from K, and the defendant and the victim started to argue. Another
patron intervened, and the situation appeared to have calmed down,
but, moments later, the defendant shot the victim three times with a
gun that he had removed from the vehicle and then fled the scene.
Shortly thereafter, the defendant fled to Canada. At trial, the defendant
asserted that he had acted in self-defense and offered his account of
the events. He testified, inter alia, that, at the time of the shooting, he
thought that the victim was reaching for a gun because the victim
had threatened him and had reached into the waistband of his pants.
Following his conviction, the defendant filed a motion for a new trial on
the ground of juror misconduct after learning that, during deliberations,
a juror, J, had consulted a dictionary for the definition of ‘‘manslaughter.’’
Following a hearing, at which the jurors, including J, were individually
questioned, the trial court, relying on the standard set forth in State v.
Johnson (288 Conn. 236), denied the defendant’s motion, concluding
that no actual prejudice had resulted from J’s misconduct. Held:
1. The state presented sufficient evidence to satisfy its burden of disproving
the defendant’s claim of self-defense beyond a reasonable doubt, there
having been ample evidence to support a finding that, at the time of
the shooting, the defendant did not subjectively or reasonably believe
that the victim was about to draw a gun and to use deadly physical
force against him: the evidence provided a reasonable basis for the jury
to find that the victim was not armed and never acted in a violent or
menacing manner toward the defendant and that, from the victim’s
perspective, the confrontation had deescalated and appeared to be
resolved just before the shooting; moreover, the jury was free to discredit
the defendant’s version of events and to credit the testimony of the other
witness and reasonably could have rejected the defendant’s dubious
explanation that he had retrieved his loaded gun, moments before shoot-
ing the victim, to safeguard it rather than to use it to shoot the victim;
furthermore, the jury could have given weight to the fact that, prior to
the defendant’s interview with the police, he never claimed to have
acted in self-defense and the fact that, when he finally did so, he gave
inconsistent accounts, and there was significant consciousness of guilt
evidence from which the jury was free to infer that the defendant knew
that his conduct was wrongful.
2. This court concluded that the presumption of prejudice articulated in
Remmer v. United States (347 U.S. 227) applies when a defendant demon-
strates that a juror consulted a dictionary definition of a material term
that substantively differed from the legal definition of that term provided
by the trial court, thereby shifting the burden to the state to prove that
the exposure to the definition was harmless beyond a reasonable doubt;
in the present case, the defendant established his entitlement to the
presumption of prejudice, as the dictionary definition that the juror
consulted was of an essential legal term and it differed materially from
the trial court’s definition of the elements of manslaughter.
3. The trial court properly denied the defendant’s motion for a new trial,
that court having correctly concluded that the juror misconduct caused
no actual prejudice to the defendant, and, accordingly, the state’s burden
of proving that the misconduct was harmless necessarily was met: this
court was not persuaded by the defendant’s contention that the trial
court applied an incorrect legal standard simply because it framed its
inquiry into the juror misconduct in terms of the misconduct’s effect
on the jurors’ impartiality, as it was apparent that that court ascribed
the proper, broader meaning to the term impartiality and that it used
the term to encompass the critical questions relevant to a proper inquiry
into the matter; moreover, the record clearly established that there was
no reasonable possibility that any member of the jury relied on the
dictionary definition to the defendant’s detriment in reaching the verdict,
as the trial court credited J’s testimony that he had relied on only
the court’s instruction defining manslaughter and that the dictionary
definition of manslaughter did not influence his decision in the case,
and the other jurors credibly testified that their impartiality remained
unaffected by any potential exposure to the extrinsic dictionary defini-
tion, which dispelled any concern about their ability to be fair and
impartial; furthermore, the trial court’s conclusion was bolstered by the
fact that the misconduct occurred before the court specifically directed
the jury not to consult the dictionary and to rely exclusively on the
elements noted in the court’s instruction on the crime of manslaughter,
and it was reasonable to presume that the jurors followed the court’s
instructions.
Argued March 31—officially released November 23, 2021*
Procedural History
Substitute informations charging the defendant with
the crimes of murder and criminal possession of a fire-
arm, brought to the Superior Court in the judicial dis-
trict of New London, where the murder charge was
tried to the jury before Jongbloed, J.; verdict of guilty
of the lesser included offense of manslaughter in the
first degree with a firearm; thereafter, the charge of
criminal possession of a firearm was tried to the court,
Jongbloed, J.; finding of guilty; judgment of guilty in
accordance with the jury’s verdict and the court’s find-
ing; subsequently, the court denied the defendant’s
motion for a new trial, and the defendant appealed this
court. Affirmed.
Vishal K. Garg, for the appellant (defendant).
Jonathan M. Sousa, deputy assistant state’s attorney,
with whom, on the brief, were Michael L. Regan, former
state’s attorney, and Paul J. Narducci, state’s attorney,
for the appellee (state).
Opinion
KELLER, J. Following a jury trial, the defendant,
Dante Alexander Hughes, was convicted of manslaugh-
ter in the first degree with a firearm in violation of
General Statutes § 53a-55a, after the jury found him not
guilty of murder but rejected his claim of self-defense.
In a subsequent trial to the court, the defendant was
found guilty of criminal possession of a firearm in viola-
tion of General Statutes § 53a-217 in connection with
the same incident. On appeal,1 the defendant claims
that the evidence presented at trial was insufficient
to disprove, beyond a reasonable doubt, any of the
elements of self-defense because the state failed to pres-
ent affirmative evidence that discredited the defen-
dant’s testimonial account of the incident. The defen-
dant also claims that the trial court improperly denied
his motion for a new trial on the ground of juror miscon-
duct, specifically, a juror’s consultation of a dictionary
definition of ‘‘manslaughter,’’ because the court applied
an incorrect legal standard and misallocated the burden
of proof. We affirm the judgment of conviction.
The record reveals the following facts, which the jury
reasonably could have found, and procedural history.2
In the early morning hours of December 11, 2016, the
defendant and his girlfriend, Latoya Knight, stopped for
a drink at Ryan’s Pub, a neighborhood bar in Groton,
after Knight picked the defendant up from work in the
couple’s Nissan Armada. Knight was already intoxicated
when the couple arrived at the pub. While the defendant
and Knight were inside the pub, the defendant engaged
in a friendly conversation with two other patrons, John
Hoyt and then the victim, Joseph Gingerella.
At some point, the defendant and Knight started
arguing. Knight slapped a beer bottle out of the defen-
dant’s hand, picked it up, and hit him in the face with
it. She then demanded the keys to the Armada and
stormed outside through the pub’s side door with the
keys in hand. When the defendant went to follow her,
the pub’s bartender, Rachel Smith, tried to stop him
because she could see that he was angry and told him
not to hurt Knight. The defendant pushed Smith away
and continued to follow Knight. Smith then asked
Andrew Flynn, another patron, Hoyt, and the victim to
check on Knight.
When the defendant reached the Armada, Knight was
sitting in the driver’s seat. The defendant opened the
door and punched Knight multiple times in the face,
causing her nose to bleed. Hoyt and the victim then
approached the Armada, positioned themselves on
either side of the defendant, and attempted to stop the
assault. Hoyt put his hands underneath the defendant’s
arms and tried to pull him away. The victim also tried
to pull the defendant away from Knight and yelled,
‘‘[y]ou’re not gonna hit her like that! . . . [Y]ou’re not
gonna put your hand[s] on her!’’ The defendant and
the victim continued arguing, and Flynn intervened by
extending his arms between the two of them and telling
them to ‘‘chill.’’
Another pub patron observing the incident, Elvira
Gonzalez, saw both Flynn and the victim gesture with
their hands for the defendant to calm down. Smith, who
had gone outside to tell everyone to calm down, saw
Flynn gesture to her that everything was okay. Seconds
later, several witnesses present at the scene heard mul-
tiple gunshots fired, but no one saw the defendant pull
the trigger or observed the victim immediately before
he was fatally shot.3 After Hoyt heard the shots, he
turned around to see what had happened and saw the
defendant holding a gun and the victim lying on the
ground, shielding himself with his hand up. The defen-
dant then fled the scene.
The defendant went to his home, changed his clothes,
and made phone calls to his two brothers, his sister, and
his mother. Thereafter, one of the defendant’s brothers
picked him up and drove him to the Norwich home of
their uncle, Shelton Rawls. The defendant told Rawls
that he had shot someone after telling that person to
mind his own business and to leave him and Knight
alone, and that he thought he had killed this person.
He asked Rawls to cut his hair, and Rawls then cut
off the defendant’s green dreadlocks. The defendant’s
other brother met the defendant at Rawls’ house later
that morning to give the defendant a new prepaid cell
phone. Before turning off the subscriber phone that he
had been using, the defendant sent a text message to
his work supervisor that stated, ‘‘[n]ot coming in for a
long time . . . .’’
The defendant made arrangements to be driven to
Boston, Massachusetts, by one of his brother’s friends
and decided to make his way across the Canadian bor-
der from there. While heading to Canada, the defendant
called several family members using the prepaid phone
but used a function on the phone that prevents the
person receiving the call from seeing the phone number
of the person who is calling. The defendant made a
stop at Niagara Falls, New York, and threw the gun that
he had used to shoot the victim into the Niagara River.
Afterward, he walked across a bridge into Canada,
where he was detained by Canadian border agents.
Nine days after the shooting, Groton police detectives
drove to Canada, took custody of the defendant, and
brought him back to Connecticut, where he was placed
under arrest. Groton detectives subsequently interro-
gated the defendant. For most of the approximately
two hour interrogation, the defendant denied any
involvement in the shooting. He falsely claimed that he
had left the area before the shooting occurred and had
no idea how it happened. He also falsely claimed that
he did not own a gun, had fought with Knight outside
the pub but no one intervened, had left the pub after
calling a cab to take him to the bus station, had cut his
hair in Buffalo, New York, because he had an upcoming
job interview, and had traveled to Canada for enjoy-
ment. At one point, when the interrogating officers
urged the defendant to tell them the real story because
they already knew that he had shot the victim, he
responded, ‘‘[y]ou got no cameras.’’ Approximately one
hour and forty minutes into the interrogation, the defen-
dant admitted that he had shot the victim but claimed
to have done so in self-defense. He claimed that the
victim had started to pull up his shirt, and the defendant
‘‘thought [that the victim] was reaching for something
. . . that he was going for a gun.’’ He stated that he
was trying to protect himself and was ‘‘not trying to
kill [the victim].’’ He also indicated that he ‘‘didn’t know
[that the victim] didn’t have nothin’.’’
In two substitute informations, the defendant was
charged with murder in violation of General Statutes
§ 53a-54a (a) and criminal possession of a firearm. At
trial, the defendant asserted a defense of self-defense.
The state disputed that the defendant had acted in self-
defense but also argued that he was not entitled to the
defense because he had a duty to retreat.4 At the close
of evidence, pursuant to the state’s request, the trial
court instructed the jury on both murder and the lesser
included offense of manslaughter in the first degree
with a firearm. The court also instructed the jury on
its obligation to consider whether the defendant acted
in self-defense, if it found the defendant guilty of
either crime.
The jury found the defendant guilty of manslaughter
in the first degree with a firearm, and the court there-
after found the defendant guilty of criminal possession
of a firearm. The court rendered judgment in accor-
dance with the verdict and its finding, and imposed a
total effective sentence of fifty years of imprisonment,
execution suspended after forty-five years, followed by
five years of probation.
Following his conviction, the defendant filed a
motion for a new trial on the ground of juror miscon-
duct, after learning that, during deliberations, a juror
had consulted a dictionary for the definition of ‘‘man-
slaughter.’’ The trial court recognized that misconduct
had occurred but, following a hearing, denied the
motion, concluding that no actual prejudice resulted
from the misconduct. This appeal followed. Additional
facts and procedural history will be set forth as neces-
sary.
I
The defendant’s first claim is that he is entitled to
an acquittal on the charge of manslaughter in the first
degree with a firearm because the state failed to meet
its burden, pursuant to General Statutes § 53a-12 (a),
of disproving, beyond a reasonable doubt, any of the
elements of his self-defense claim. He contends that
the state was obligated to present affirmative evidence
to discredit his testimonial account of what occurred
at the precise moment of the shooting. Specifically, he
claims that the state failed (1) to present affirmative
evidence that the victim did not make a gesture that
the defendant could reasonably have believed was as
an attempt to reach for a deadly weapon, or (2) to
establish the statutory disqualification for self-defense
of failure to retreat. The state asserts that it can, and
did, satisfy its burden of persuasion through direct and
circumstantial evidence proving that the defendant did
not reasonably believe that the victim was about to use
deadly physical force against him. We agree with the
state. Therefore, we need not consider the state’s alter-
native claim that, even if the defendant had held such
a belief, the jury reasonably could have concluded that
he had a duty to retreat.
The defendant did not raise this insufficiency claim in
the trial court, but his unpreserved claim is nonetheless
reviewable under State v. Golding, 213 Conn. 233, 239–
40, 567 A.2d 823 (1989), as modified by In re Yasiel R.,
317 Conn. 773, 781, 120 A.3d 1188 (2015). We have
previously recognized that ‘‘any defendant found guilty
on the basis of insufficient evidence has been deprived
of a constitutional right, and would therefore necessar-
ily meet the four prongs of Golding.’’5 (Internal quota-
tion marks omitted.) State v. Revels, 313 Conn. 762, 777,
99 A.3d 1130 (2014), cert. denied, 574 U.S. 1177, 135 S.
Ct. 1451, 191 L. Ed. 2d 404 (2015). Because there is no
independent significance of a Golding analysis in this
context, we review an unpreserved sufficiency of the
evidence claim as though it had been preserved. See
State v. Adams, 225 Conn. 270, 276 n.3, 623 A.2d 42(1993).
We begin with the theory of self-defense advanced
by the defendant and then turn to the relevant legal
principles. The defendant offered the following account
in his testimony. The defendant was assaulting Knight
inside the Armada while Hoyt and the victim were trying
to pull him off of her. During the struggle between the
defendant and the victim, the victim called him a ‘‘bitch
ass’’ and an offensive racial epithet, and also stated that
he would ‘‘F [him] up . . . .’’ The defendant did not
have a gun on him at that time but retrieved his Glock
nine millimeter pistol from the overhead console of the
Armada and placed it in his pocket when he saw that
Knight was starting the Armada in an attempt to leave.
He did so because he was concerned that, given Knight’s
intoxicated state, the police might stop the Armada and,
in turn, discover the gun. The gun was already loaded
and cocked when the defendant removed it from the
Armada. The defendant then started to walk away from
the Armada, while Hoyt and the victim remained with
Knight. When he got one or two parking spaces past
the Armada, where it was kind of dark, he had an ‘‘urge’’
to turn around and, upon doing so, saw the victim
approximately fifteen feet away. The victim said noth-
ing, but he reached into his waistband. The defendant
thought that the victim was going to shoot him, so the
defendant ‘‘came up and just shot.’’ The defendant was
unsure whether any bullets actually struck the victim.
On cross-examination, the defendant admitted that,
after the shooting, he had contacted relatives, changed
his appearance (clothes and hair), switched cell phones,
tried to conceal the source of his outgoing calls, and
gone to Canada. He also admitted that he gets ‘‘fired
up’’ when people lay hands on him. In explaining why
Knight deserved the beating that he had inflicted on
her, he stated, ‘‘you know, you just take nothing from
nobody. Once somebody puts their hands on you, you
know, you have [a] right to defend yourself.’’
We assess this evidence, as well as the other evidence
adduced by the state, pursuant to the following princi-
ples. ‘‘Under our Penal Code, self-defense, as defined
in [General Statutes] § 53a-19 (a) . . . is a defense,
rather than an affirmative defense. See General Statutes
§ 53a-16.’’ (Citation omitted.) State v. Clark, 264 Conn.
723, 730, 826 A.2d 128 (2003). Whereas an affirmative
defense requires the defendant to establish his claim by
a preponderance of the evidence; see General Statutes
§ 53a-12 (b); a properly raised defense places the burden
on the state to disprove the defendant’s claim beyond
a reasonable doubt. See General Statutes § 53a-12 (a).
‘‘Consequently, a defendant has no burden of persua-
sion for a claim of self-defense; he has only a burden
of production. That is, he merely is required to introduce
sufficient evidence to warrant presenting his claim of
self-defense to the jury. . . . Once the defendant has
done so, it becomes the state’s burden to disprove the
defense beyond a reasonable doubt.’’ (Citation omitted;
internal quotation marks omitted.) State v. Clark, supra,
730–31. ‘‘As these principles indicate, therefore, only
the state has a burden of persuasion regarding a self-
defense claim . . . .’’ (Internal quotation marks omit-
ted.) State v. O’Bryan, 318 Conn. 621, 631, 123 A.3d
398 (2015).
Because the state bears the burden of disproving self-
defense, the standard for reviewing claims of insuffi-
cient evidence in conjunction with a defense of justifica-
tion such as self-defense is essentially the same standard
used when examining claims relating to insufficient proof
of the elements of a charged offense. See State v. Revels,
supra, 313 Conn. 778. ‘‘A party challenging the validity of
the jury’s verdict on grounds that there was insufficient
evidence to support such a result carries a difficult
burden.’’ (Internal quotation marks omitted.) State v.
Rhodes, 335 Conn. 226, 233, 249 A.3d 683 (2020). In
reviewing the sufficiency of evidence, we apply a two
part test. ‘‘First, we construe the evidence in the light
most favorable to sustaining the verdict. Second, we
determine whether upon the facts so construed and
the inferences reasonably drawn therefrom the [jury]
reasonably could have concluded that the cumulative
force of the evidence established guilt beyond a reason-
able doubt . . . .’’ (Internal quotation marks omitted.)
State v. Allan, 311 Conn. 1, 25, 83 A.3d 326 (2014). In
doing so, we are mindful that ‘‘the trier of fact is not
required to accept as dispositive those inferences that
are consistent with the defendant’s innocence. . . .
The trier [of fact] may draw whatever inferences from
the evidence or facts established by the evidence it
deems to be reasonable and logical.’’ (Internal quotation
marks omitted.) State v. Drupals, 306 Conn. 149, 158,
49 A.3d 962 (2012). ‘‘[W]e do not ask whether there is
a reasonable view of the evidence that would support
a reasonable hypothesis of innocence. We ask, instead,
whether there is a reasonable view of the evidence
that supports the [jury’s] verdict of guilty.’’ (Internal
quotation marks omitted.) State v. Rhodes, supra, 229.
‘‘[I]t does not diminish the probative force of the evi-
dence that it consists, in whole or in part, of evidence
that is circumstantial rather than direct.’’ (Internal quo-
tation marks omitted.) State v. Niemeyer, 258 Conn.
510, 517, 782 A.2d 658 (2001). Thus, in the present case,
we construe the evidence and all the reasonable infer-
ences drawn therefrom in the light most favorable to
supporting the jury’s rejection of the defendant’s defense.
Section 53a-19 sets forth the narrow circumstances
in which a person is justified in using deadly physical
force on another person in self-defense. Under § 53a-
19 (a), ‘‘a person may justifiably use deadly physical
force in self-defense only if he reasonably believes both
that (1) his attacker is using or about to use deadly
physical force against him, or is inflicting or about to
inflict great bodily harm, and (2) that deadly physical
force is necessary to repel such attack. . . . [T]he test
a jury must apply . . . is a subjective-objective one.
The jury must view the situation from the perspective
of the defendant . . . [but] . . . the defendant’s belief
ultimately must be found to be reasonable.’’6 (Internal
quotation marks omitted.) State v. Reddick, 174 Conn.
App. 536, 552, 166 A.3d 754, cert. denied, 327 Conn. 921,
171 A.3d 58 (2017), cert. denied, U.S. , 138 S.
Ct. 1027, 200 L. Ed. 2d 285 (2018).
Thus, with regard to the first requirement of self-
defense, the jury must make two separate affirmative
determinations for the defendant’s claim of self-defense
to succeed. The jury must determine whether, on the
basis of all of the evidence presented, the defendant in
fact believed that the victim was about to use deadly
physical force.7 See, e.g., State v. Prioleau, 235 Conn.
274, 286, 664 A.2d 743 (1995). This initial determination
typically requires the jury to assess the veracity of wit-
nesses, often including the defendant, and to determine
whether the defendant’s account of his belief is in fact
credible. Id. If the jury determines that the defendant
did not believe that the victim was about to use deadly
physical force when the defendant employed deadly
force, the defendant’s self-defense claim must fail. Id.,
287. Even if the jury finds that the defendant may have
held such a belief, if that belief was not objectively
reasonably, the self-defense claim must fail. See id.It bears emphasizing that, in making these determina-
tions, the trier of fact is entitled to believe or disbelieve
all, part, or none of any witness’ testimony, and the fact
that certain evidence is not controverted does not mean
that it must be credited. See State v. DeMarco, 311
Conn. 510, 520 n.4, 88 A.3d 491 (2014); State v. Brown,
299 Conn. 640, 648, 11 A.3d 663 (2011); E. Prescott,
Tait’s Handbook of Connecticut Evidence (6th Ed.
2019) § 6.23.8, p. 378. The credibility of a witness may
be impeached by showing, inter alia, that the witness
is biased due to having an interest in the matter; see
Conn. Code Evid. § 6-5; or that the witness made a prior
inconsistent statement. See Conn. Code Evid. § 6-10.
These well established principles disprove the defen-
dant’s contention that, in the absence of affirmative
evidence from at least one other witness of what hap-
pened between the defendant and the victim in the
moments immediately before the defendant fired his
gun, the jury must accept the defendant’s testimony in
determining whether he reasonably believed that the
victim was reaching for a gun, thereby justifying his use
of deadly physical force on the victim. This argument
ignores the fact that the jury was free to reject the
defendant’s testimony as to his belief after considering
any other evidence, including other portions of the
defendant’s testimony and his prior statements, that
was inconsistent with his self-defense claim. The jury
similarly was free to discredit the defendant’s version
of the events immediately preceding and following the
shooting and, instead, could have credited the testi-
mony of the other witnesses. When presented with con-
flicting accounts, the jury is not required to accept the
testimony and inferences offered on behalf of the defen-
dant. See, e.g., State v. James E., 154 Conn. App. 795,
815, 112 A.3d 791 (2015) (evidence was sufficient to
disprove self-defense beyond reasonable doubt), aff’d,
327 Conn. 212, 173 A.3d 380 (2017).
The defendant’s argument mistakenly assumes that
his testimony was the only evidence presented to the
jury that was relevant to his claim of self-defense. As
we explain more fully hereinafter, it was not. Although
the jury is not free to merely disbelieve the defendant
and to conclude that the opposite of what he said was
true; see Ventura v. East Haven, 330 Conn. 613, 641–42,
199 A.3d 1 (2019); State v. Alfonso, 195 Conn. 624, 634,
490 A.2d 75 (1985); the jury may reject his self-defense
claim if other evidence and reasonable inferences
drawn therefrom undermine the credibility of his
account. See State v. Grasso, 189 Conn. App. 186, 212–
13, 207 A.3d 33, cert. denied, 331 Conn. 928, 207 A.3d
519 (2019) (evidence of blackmail by victim and its
effect on defendant supports jury’s rejection of self-
defense claim, even though only victim and defendant
were present when shooting occurred); State v. Cruz,
75 Conn. App. 500, 519, 816 A.2d 683 (2003) (defendant’s
argument, based mostly on his own testimony, that only
reasonable conclusion jury could have reached was that
he acted in self-defense ‘‘relates to witness credibility,
not sufficiency of the evidence’’), aff’d, 269 Conn. 97,
848 A.2d 445 (2004).
Having reviewed the evidence in its entirety, and con-
struing it in the light most favorable to sustaining the
verdict, we conclude that there was a rational view of
the evidence that proved beyond a reasonable doubt
that, at the time of the shooting, the defendant did not
reasonably believe that the victim was about to use
deadly physical force against him.
The evidence provided an ample basis for the jury
to find that the victim was not in fact armed and never
acted in a violent or menacing manner toward the defen-
dant. No weapon was found on or near the victim after
the shooting.8 The defendant did not claim that the
victim ever mentioned having a gun or any other
weapon. None of the witnesses to the events occurring
outside the pub, including the victim’s nearby compan-
ions, heard the victim threaten the defendant or use
the language the defendant described.9 The victim
attempted to pull the defendant away from Knight but
never attempted to inflict any physical injury on the
defendant. Flynn testified that the argument between
the defendant and the victim ‘‘didn’t seem too serious.’’
The evidence also provided a reasonable basis for
the jury to find that, from the victim’s perspective, the
confrontation had deescalated and then appeared to
have been resolved just before the shooting. Gonzalez
saw both Flynn and the victim gesture with their hands
for the defendant to calm down and observed what she
characterized as a peaceful conversation. After Smith
went outside to tell everyone to calm down so that she
would not have to call the police, Flynn gestured to
her that everything was okay, and she returned inside.
Flynn, Smith, and Gonzalez turned away from observing
the defendant and the victim, and headed back toward
the pub because they believed that the situation had
been amicably resolved. According to the testimony of
Knight, Hoyt, Smith, and Gonzalez, there was no cause
for the victim to become further agitated. Knight was
safe, and the effort undertaken by the victim and his
friends to defend her had concluded. The defendant
had begun to walk away. The collective force of this
evidence provided a persuasive basis for the jury to
conclude that, even if it were to accept the defendant’s
assertion that the victim moved his hand in the vicinity
of the waistband of his pants, there was no reasonable
basis for the defendant to believe that the victim was
about to draw a gun.
The jury also reasonably could have rejected the dubi-
ous explanation that the defendant gave for retrieving
his loaded gun, moments before firing three shots at
the victim. If the defendant actually had been concerned
about the consequences of Knight’s driving while intoxi-
cated and being found in possession of an illegal fire-
arm, the most effective course of action would have
been to withhold the keys to the Armada in the first
place or to take them back from her, not to retrieve
the gun from the console. His choice of action and its
timing left the jury free to infer that the defendant had
retrieved the gun not to safeguard it but to use it.
The jury also could have given weight to the fact that,
prior to his video-recorded interview with the police
approximately nine days after the shooting, the defen-
dant never claimed to have acted in self-defense. He
admitted that he had never suggested it to the relatives
and friends with whom he spoke after the shooting.
Instead, he told Rawls, hours after the shooting, that
he had shot and possibly killed someone after that per-
son had interceded in an argument between the defen-
dant and Knight and the defendant told him to mind
his own business. Rawls inferred from what he had
been told that the victim must not have heeded the
defendant’s direction. When the defendant finally
claimed to have acted in self-defense, he gave inconsis-
tent accounts, in his police interview and at trial, of the
particulars.
Finally, the jury’s verdict was supported by signifi-
cant consciousness of guilt evidence. In the self-defense
context, such evidence ‘‘tend[s] to show that the defen-
dant believed that what he had done was not merely
an act of self-defense, but [was] something that was
considered wrong in the eyes of the law.’’ State v.
Thomas, 50 Conn. App. 369, 384, 717 A.2d 828 (1998),
appeal dismissed, 253 Conn. 541, 755 A.2d 179 (2000).
After shooting the victim, the defendant attempted to
disguise himself by changing his appearance, fled the
state, and then attempted to flee the country. He also
attempted to conceal his whereabouts and to destroy
evidence. The jury was free to reject his explanations
for these actions and to infer that he was deliberately
eluding the police to avoid prosecution for conduct he
knew was wrongful. See State v. Ferrara, 176 Conn.
508, 516–18, 408 A.2d 265 (1979).
In its totality, the evidence provides ample support
for the jury to conclude that the defendant did not
believe, subjectively or reasonably, that the victim was
about to draw a gun on him. Rather, the evidence sup-
ports the jury’s reasonable conclusion that, when the
defendant fired his gun at the victim, he was still pro-
pelled by the rage he had just unleashed on Knight and
angry about the victim’s interference in his business. We
therefore conclude that there was sufficient evidence
to disprove the defendant’s claim of self-defense beyond
a reasonable doubt.
II
The defendant also claims that the trial court improp-
erly denied his motion for a new trial on the ground of
juror misconduct. He contends that the court’s conclu-
sion that he suffered no actual prejudice from a juror’s
consultation of a dictionary definition of ‘‘manslaugh-
ter’’ rested on an incorrect legal standard and a misallo-
cation of the burden of proof. We conclude that the
trial court properly denied the defendant’s motion for
a new trial.
The record reveals the following additional relevant
facts. In its final instructions to the jury, the trial court
set forth the elements that the state was required to
prove to establish murder or, alternatively, manslaugh-
ter in the first degree with a firearm if it found the
defendant not guilty of murder, as well as the elements
of self-defense to consider should it find the defendant
guilty of either offense. With respect to manslaughter,
the court provided the statutory elements—that the
defendant must have (1) engaged in conduct that cre-
ated a grave risk of death, (2) acted recklessly, (3) acted
under circumstances evincing an extreme indifference
to human life, and (4) caused the death of the victim.10
See General Statutes § 53a-55 (a) (3). The court also
instructed the jury not to ‘‘look up anything on the
Internet or make any private investigations of any kind,’’
an instruction it had given numerous times during trial.
It did not, however, reiterate an instruction given at the
commencement of jury selection, almost one month
earlier, that the jury should not look up any terms in
a dictionary.11
On the second day of deliberations, the jury sent a
note asking the court to clarify certain aspects of the
murder instruction and ‘‘whether it is permissible to
look up the word manslaughter in the dictionary.’’ The
court consulted with counsel and, with their agreement,
instructed the jury that it ‘‘should use the definition of
the specific charge of manslaughter as explained by its
elements in [the court’s] instructions and not look up
anything in any outside sources, including the diction-
ary.’’12
The following day, on July 26, 2018, the jury of twelve
unanimously found the defendant guilty of manslaugh-
ter in the first degree with a firearm. The jurors were
individually polled, and each juror unequivocally
affirmed his or her agreement with the verdict.
On July 31, 2018, one of the jurors, D.M.,13 engaged
in a postverdict conversation with courthouse staff. In
that conversation, D.M. mentioned that one of the other
jurors had looked up the definition of manslaughter in
a dictionary. This information was reported to the trial
court, which then scheduled a hearing to determine
whether the jury, or any member thereof, had in fact
looked up the definition of manslaughter in a dictionary,
and what impact, if any, that action may have had on
the jury’s deliberations.14
Prior to the hearing, counsel agreed to the questions
that would be posed by the court to each juror. In
accordance with that agreement, each juror was ques-
tioned as to whether the dictionary definition of man-
slaughter had been raised during deliberations, and, if
so, when this occurred; whether any outside informa-
tion had affected the juror’s ability to sit fairly and
impartially; whether any outside information had affected
the juror’s ability to follow the court’s instructions; and
whether the juror had considered only the evidence
presented in the courtroom and only the court’s instruc-
tions. After each juror was questioned, counsel was
given the opportunity to propose follow-up questions.
Although a few jurors recalled hearing a discussion
about such a definition, they indicated that the discus-
sion had been promptly shut down and that this incident
had prompted the jury’s note to the court. Those jurors
also testified that no dictionary had been brought into
the jury room and that either no definition had been read
aloud or they could not recall any dictionary definition.
Each of the twelve jurors affirmed that no outside infor-
mation had affected the juror’s ability to sit fairly and
impartially, that no outside information had affected
the juror’s ability to follow the court’s instructions, and
that the juror had considered only the evidence pre-
sented in the courtroom and only the court’s instruc-
tions.
One juror, J.B., admitted in the following exchange,
however, that he had consulted a dictionary to obtain
a definition of manslaughter:
‘‘The Court: . . . [I]t has come to the court’s atten-
tion that there may have been a reference to or a discus-
sion regarding a dictionary definition of manslaughter.
. . . [W]hat can you tell us about that in terms of your
knowledge of that?
‘‘[J.B.]: My knowledge of it, I had a general idea what
manslaughter was, and I looked it up in the dictionary
and [came] up with a definition.
‘‘The Court: All right. And then was that something
you mentioned?
‘‘[J.B.]: Absolutely.
‘‘The Court: Yes. All right. . . . [D]o you recall
whether that was before in time or after the note
came out?
‘‘[J.B.]: That was before.
‘‘The Court: All right. So . . . after the note came
out and the answer was received to the note that you
were to consider the definition that the court provided
. . . without going into any of the specific mental pro-
cesses of the jury’s deliberation . . . did that outside
information or any outside information affect your abil-
ity to sit fairly and impartially as a juror in this case?
‘‘[J.B.]: Yeah, it did. I mean, the—it wasn’t the out-
come I wanted, I could tell you that, but I mean, it is
what it is, I think.
‘‘The Court: I guess my question is, you’ve indicated
that you looked up the definition.
‘‘[J.B.]: Yep.
‘‘The Court: And you mentioned it. Then the jury sent
out the note.
‘‘[J.B.]: Yep.
‘‘The Court: And the jury was given instructions from
the court at that time. And those instructions were to
consider only the definition that the court provided.
‘‘[J.B.]: Correct.
‘‘The Court: And my question is, did you follow the
court’s instructions?
‘‘[J.B.]: I did.’’
In response to the court’s next questions—whether
that outside information, the dictionary definition,
affected J.B.’s ability to sit fairly and impartially as a
juror in the case and whether he considered information
outside of the evidence in the courtroom and the court’s
instructions in this case—J.B. started to address his
own thought process and the vote count on the charges
at a certain point in the deliberations. The trial court
interrupted J.B. and emphasized that he should not
reveal anything about any juror’s mental process in
reaching a verdict.15 The inquiry then continued:
‘‘The Court: . . . [S]o, without going into that, my
question is really whether any outside information, and
you’ve indicated that you did have some outside infor-
mation, and then you were told to . . . consider only
the definition that the court provided, so my question
is, did you in fact—did any outside information affect
your ability to fairly and impartially decide this case?
‘‘[J.B.]: No.
‘‘The Court: And then, did you in fact consider—or
did any outside information affect your ability to follow
the court’s instructions in this case?
‘‘[J.B.]: No. I mean, I don’t know. I believe I settled.
That’s what I believed. You know what I mean?
‘‘The Court: All right. I think I understand what
you’re saying.
‘‘[J.B.]: Yes.
‘‘The Court: And, I guess lastly, were you able to
consider and limit your consideration only to the evi-
dence in the case, as well as the court’s instructions?
‘‘[J.B.]: Yes.’’
After defense counsel requested follow-up questions
to ascertain what J.B. had reviewed and why, the court
elicited the following additional information. J.B. had
looked up the definition of manslaughter in a Webster’s
Dictionary, which he recalled defined the term as ‘‘tak-
ing a man’s life without forethought or malice . . . .’’
J.B. indicated that the ‘‘without forethought’’ aspect of
the definition was important for the other jurors to
know because it confirmed J.B.’s prior understanding
of manslaughter to mean ‘‘an accidental thing.’’ This
exchange then ensued:
‘‘The Court: All right. And are you telling us that
the reason you looked it up was because it seemed
inconsistent with what you had thought or—
‘‘[J.B.]: Sort of.
‘‘The Court: All right. I don’t want to put any words
into your mouth.
‘‘[J.B.]: I mean, yeah. I mean, I just wanted to have
an actual definition of what it was and—
‘‘The Court: All right. And then the court explained
that you needed to use the definition that the court had
provided.
‘‘[J.B.]: After that, I had done that, correct.
‘‘The Court: And that was afterward?
‘‘[J.B.]: Yes.
‘‘The Court: And did you follow the court’s instruc-
tions?
‘‘[J.B.]: I mean, basically, I did.’’
The defendant thereafter filed a motion for a new
trial on the ground of prejudicial juror misconduct. The
trial court denied the motion, concluding that ‘‘no actual
prejudice resulted from the conduct’’ at issue. The court
relied on the standard articulated in State v. Johnson,
288 Conn. 236, 951 A.2d 1257 (2008), in which this court
emphasized the limitations on postverdict inquiry of
jurors and then observed: ‘‘[O]nce a verdict has been
reached, the proper inquiry does not involve a determi-
nation of what conclusions the jurors actually drew
but, rather, of whether the jurors were aware of or
actually exposed to [extrinsic material], whether it
affected their ability to be impartial and whether it was
of such a nature that it probably rendered the juror[s]
unfair or partial.’’ (Emphasis in original; internal quota-
tion marks omitted.) Id., 262–63.
The trial court then applied these three inquiries to
the present case. It first found that exposure to the
dictionary definition was limited to one juror and that,
with regard to the other jurors’ awareness, their
responses credibly dispelled any concern that J.B.’s
actions had tainted them. Second, the court found that
the jurors’ credible assurances that their impartiality
remained unaffected by any potential exposure to the
extrinsic dictionary definition dispelled any concern
about the jurors’ ability to be impartial. With respect
to J.B. specifically, the court found that some of his
answers were nonresponsive but interpreted those
comments to simply reflect J.B.’s frustration that he
had compromised to reach consensus with other jurors.
The court found that J.B.’s subsequent answers dis-
pelled any concerns of impartiality. Finally, the court
found that the nature of the information was not of
the sort to compel a finding of prejudice. The court
concluded that our appellate case law did not deem
reference to a dictionary inherently prejudicial. It also
found no prejudice under the particular facts of this
case because ‘‘utilization of [the] dictionary definition
[of manslaughter] would be inconsistent with the actual
verdict reached,’’ given the difference between that defi-
nition and the statutory definition that the jury applied.16
In considering the second and third Johnson inquiries,
the court also relied on the black letter principle that,
‘‘[i]n the absence of a clear indication to the contrary,
[the court] must presume that the jury followed [the
court’s] instruction.’’ State v. Asherman, 193 Conn. 695,
737–38, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050,
105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985). The trial court
rejected the defendant’s reliance on case law from other
jurisdictions, concluding that each case was factually
distinguishable.
In his appeal to this court, the defendant’s challenge
to the legal standard applied by the trial court has sev-
eral threads. We glean three distinct points. First, the
defendant contends that the trial court incorrectly
relied on the impartiality standard in State v. Johnson,
supra, 288 Conn. 262–63, because the misconduct in
the present case is not of the type that raises concerns
of juror partiality. He asserts that the trial court, instead,
should have considered whether the extrinsic informa-
tion interfered with J.B.’s ability to judge the case solely
on the basis of the definition provided by the court,
and whether the verdict was influenced by J.B.’s argu-
ments in deliberations in reliance on the dictionary
definition. Second, the defendant contends that the trial
court improperly placed the burden on him to prove
prejudice. Although there is a split of authority in other
jurisdictions with respect to this issue, he contends
that this court’s case law suggests that we follow the
jurisdictions that would apply a presumption of preju-
dice, which in turn would require the state to prove
that there was no reasonable possibility that J.B.’s con-
sultation of a dictionary influenced the verdict. Third,
the defendant contends that the trial court improperly
failed to determine that the state did not meet this
burden. He asserts that this conclusion is compelled
either by the testimony adduced at the hearing or under
various objective tests applied by other jurisdictions to
assess prejudice under such circumstances.17
The state questions the defendant’s preservation of
some of these issues but contends that, in any event,
the trial court unambiguously allocated the burden of
proof to the state, consistent with the state’s acknowl-
edgment during the hearing on the motion for a new
trial that a presumption of prejudice applied and that
it had the burden to prove that there was no prejudice.
The state further contends that it met this burden of
proof no matter which test is applied.18
Insofar as the defendant’s claims bear on the proper
legal standard, they are subject to plenary review. See,
e.g., Hartford v. CBV Parking Hartford, LLC, 330 Conn.
200, 214, 192 A.3d 406 (2018) (legal standard generally);
In re Jason R., 306 Conn. 438, 452, 51 A.3d 334 (2012)
(misallocation of burden of proof). Insofar, however,
as they challenge the trial court’s assessment of the
credibility of the jurors’ testimony at the hearing inquir-
ing into the alleged misconduct, or the reasonableness
of inferences drawn from such testimony, we review
such assessments under the abuse of discretion stan-
dard. See, e.g., State v. Dixon, 318 Conn. 495, 506–507,
122 A.3d 542 (2015); State v. Small, 242 Conn. 93, 113,
700 A.2d 617 (1997). See generally State v. Newsome,
238 Conn. 588, 628, 682 A.2d 972 (1996) (motion for
new trial based on allegations of juror misconduct ‘‘is
addressed to the sound discretion of the trial court and
is not to be granted except on substantial grounds’’
(internal quotation marks omitted)).
We agree with the defendant, and the state’s conces-
sion, that J.B.’s consultation of a dictionary definition
of manslaughter was presumptively prejudicial under
the circumstances in the present case and that the state
bore the burden of proving that this juror misconduct
was harmless. We do not share the state’s confidence
that the trial court necessarily allocated the burden of
proof to the state, as this matter was not expressly
decided in the court’s decision on the defendant’s
motion.19 Nonetheless, if the court correctly determined
that the facts demonstrated that the defendant suffered
no actual prejudice from the juror misconduct, the
state’s burden of proof would be met.20 See State v.
Berrios, 320 Conn. 265, 299, 129 A.3d 696 (2016) (con-
cluding that state overcame presumption of prejudice
by proof that jurors’ impartiality was not affected by
third-party contact); see also United States v. Olano,
507 U.S. 725, 739, 113 S. Ct. 1770, 123 L. Ed. 2d 508(1993) (‘‘There may be cases [in which] an intrusion
should be presumed prejudicial . . . but a presump-
tion of prejudice as opposed to a specific analysis does
not change the ultimate inquiry: Did the intrusion affect
the jury’s deliberations and thereby its verdict?’’ (Cita-
tions omitted.)). We conclude that the trial court’s deter-
mination is supported by the law and the record in
this case.
A
Our analysis is guided by the following principles.
‘‘Under the constitution of Connecticut, article first, § 8,
and the sixth amendment to the United States constitu-
tion, the right to a trial by jury guarantees to the crimi-
nally accused a fair trial by a panel of impartial, indiffer-
ent jurors.’’ (Internal quotation marks omitted.) State
v. Roman, 320 Conn. 400, 408, 133 A.3d 441 (2016); see
also Morgan v. Illinois, 504 U.S. 719, 727, 112 S. Ct.
2222, 119 L. Ed. 2d 492 (1992). A necessary component
of the right to an impartial jury is the right to have the
jury decide 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.’’ State v.
Rodriguez, 210 Conn. 315, 325, 554 A.2d 1080 (1989);
see also Hughes v. Borg, 898 F.2d 695, 700 (9th Cir.
1990) (‘‘[s]tate defendants have a federal constitutional
right to an impartial jury and jurors have a correlative
duty to consider only the evidence that is presented in
open court’’).
‘‘Consideration of extrinsic evidence is jury miscon-
duct and has been found to be sufficient to violate the
constitutional right to a trial by an impartial jury.’’ State
v. McCall, 187 Conn. 73, 80, 444 A.2d 896 (1982). Most
courts treat a juror’s exposure to any extra-record infor-
mation, whether relating to the facts or the law in the
case, as a form of extrinsic evidence or influence. See,
e.g., United States v. Pagán-Romero, 894 F.3d 441,
446–47 (1st Cir.), cert. denied, U.S. , 139 S. Ct.
391, 202 L. Ed. 2d 299 (2018); United States v. Rosenthal,
454 F.3d 943, 949 (9th Cir. 2006); United States v. Agu-
irre, 108 F.3d 1284, 1288 (10th Cir.), cert. denied, 522
U.S. 931, 118 S. Ct. 335, 139 L. Ed. 2d 260 (1997); United
States v. Martinez, 14 F.3d 543, 550 (11th Cir. 1994);
see also United States v. Steele, 785 F.2d 743, 746 (9th
Cir. 1986) (‘‘extraneous information’’ and ‘‘extrinsic
material’’); State v. Klafta, 73 Haw. 109, 122, 831 P.2d
512, 519 (1992) (‘‘ ‘extraneous definitions or statements
of law’ ’’); Allers v. Riley, 273 Mont. 1, 9, 901 P.2d 600(1995) (‘‘extraneous materials’’); State v. Abell, 383
N.W.2d 810, 812 (N.D. 1986) (‘‘improper extraneous
information’’); Ryser v. State, 453 S.W.3d 17, 41 (Tex.
App. 2014, pet. ref’d) (‘‘ ‘outside influence’ ’’). Informa-
tion obtained through juror consultation of a dictionary
is generally considered to be extrinsic information and
thus misconduct.21 See United States v. Pagán-Romero,
supra, 447; United States v. Aguirre, supra, 1288; United
States v. Martinez, supra, 550.
‘‘It is well established, however, that not every inci-
dent of juror misconduct requires a new trial.’’ State v.
Newsome, supra, 238 Conn. 627. ‘‘[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 influ-
ence that might theoretically affect their vote.’’ (Internal
quotation marks omitted.) State v. Tomasko, 242 Conn.
505, 513, 700 A.2d 28 (1997); see also State v. Asherman,
supra, 193 Conn. 736 (‘‘Juror misconduct [that] results
in substantial prejudice to the defendant is not to be
tolerated. But not every irregularity in a juror’s conduct
compels reversal. The dereliction must be such as to
deprive the defendant of the continued, objective and
disinterested judgment of the juror, thereby foreclosing
the accused’s right to a fair trial.’’ (Internal quotation
marks omitted.)). ‘‘The question is whether . . . the
misconduct 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.’’ (Citation omitted; internal quotation marks omit-
ted.) State v. Newsome, supra, 628.
Although these principles are broadly accepted,
courts are divided on whether exposure to certain
extrinsic influences should be deemed presumptively
prejudicial and, if so, whether such a presumption shifts
the burden to the state to prove the harmlessness of
the misconduct. See State v. Berrios, supra, 320 Conn.
284–92. This divide largely turns on whether the court
has concluded that the presumption of prejudice articu-
lated in Remmer v. United States, 347 U.S. 227, 229, 74
S. Ct. 450, 98 L. Ed. 654 (1954) (Remmer presumption),
a jury tampering case, retains its vitality or whether the
court has interpreted subsequent United States
Supreme Court case law to indicate that the due process
holding in Remmer only entitles the defendant to a
hearing, at which he bears the burden of proving actual
prejudice. Although this court seemed to endorse the
latter view in one case; see State v. Johnson, supra, 288
Conn. 254; we expressly left this issue open in several
other cases because the party claiming the presumption
could not prevail, even if the burden of proof shifted
to the state. See State v. Berrios, supra, 282–83 (noting
that uncertainties resulting from post-Remmer cases
created inconsistencies in our own case law and cit-
ing cases).
In State v. Berrios, supra, 320 Conn. 266–67, we finally
weighed in on this issue. In that case, the defendant
had moved for a mistrial after a juror reported that the
defendant’s mother had made comments about the case
to the juror during a trial recess. Id., 269; see footnote
24 of this opinion. The trial court denied the defendant’s
motion following a hearing at which the jurors were
questioned about the contact and its effect. Id., 269–73.
We held that ‘‘the Remmer presumption is still good
law with respect to external interference with the jury’s
deliberative process via private communication, con-
tact, or tampering with jurors that relates directly to
the matter being tried.’’ (Footnote omitted.) Id., 292.
We explained that the defendant bears an initial burden
of proving that the Remmer presumption applied,
through proof that an extrajudicial contact or communi-
cation occurred and that the contact or communication
pertained to the matter before the jury. Id., 293–94. We
further explained that ‘‘the Remmer presumption is not
conclusive. The burden rests heavily on the government
to establish that the contact was harmless’’; (internal
quotation marks omitted) id., 294; meaning that ‘‘there
was no reasonable possibility that the tampering or
misconduct affected the [jurors’] impartiality.’’ (Internal
quotation marks omitted.) Id.Although the holding in Berrios was limited to an
extrinsic influence initiated by a third party, several
factors indicate that the Remmer presumption also
should apply in cases in which the extrinsic influence
is brought to bear by a juror, at least in some such
cases. We made a point in Berrios of favorably citing
the position of the United States Court of Appeals for
the Second Circuit that it is ‘‘well-settled that any extra-
record information of which a juror becomes aware is
presumed prejudicial’’; (internal quotation marks omit-
ted) id., 287; as well as that of other jurisdictions that
apply a presumption of prejudice to ‘‘serious, or not
innocuous claims of external influence, such as jury
tampering, bribery, or use of extra-record evidence.’’
(Internal quotation marks omitted.) Id., 288–89. One of
the cases we favorably cited applied a presumption of
prejudice to a juror’s use of a dictionary; see id., 288,
citing United States v. Lawson, 677 F.3d 629 (4th Cir.),
cert. denied sub nom. Hutto v. United States, 568 U.S.
889, 133 S. Ct. 393, 184 L. Ed. 2d 162 (2012); see also
United States v. Lawson, supra, 645 (‘‘[the Remmer]
presumption likewise is applicable when a juror uses
a dictionary or similar resource to research the defini-
tion of a material word or term at issue in a pending
case’’). The court in Lawson observed that there is a
split of authority as to whether a juror’s consultation
of a dictionary is presumptively prejudicial that mirrors
the jurisdiction’s view of the vitality of the Remmer
presumption. United States v. Lawson, supra, 645.
We also observe that, even among those jurisdictions
that do not view jurors’ consultation of a dictionary to
be inherently prejudicial as a general matter, courts
have recognized that an exception may exist when
jurors are exposed to a dictionary definition of a mate-
rial term that is manifestly inconsistent with the one
provided by the court. See, e.g., United States v. Pagan-
Romero, supra, 894 F.3d 447–48 (‘‘In general, the use
of a dictionary will pose a qualitatively less serious risk
of harm [than exposure to facts that could be used as
evidence]. . . . Of course, exceptions to this general
approach may arise, in cases where, for example, the
dictionary definition was contrary to, or confusingly
inconsistent with, the instructions, where the jurors
confirmed that they had actually relied on the mis-
leading definition, or where the court made an inade-
quate effort to inquire into the impact of the taint.’’
(Citation omitted.)). See generally Ryser v. State, supra,
453 S.W.3d 42 (discussing cases); annot., 35 A.L.R.4th
626, 631, 653, §§ 2[b] and 5[b] (1985) (same).
Our lone ‘‘dictionary’’ case is not to the contrary. In
State v. Asherman, supra, 193 Conn. 736, this court set
forth the general proposition that ‘‘[c]onsideration of
extrinsic evidence is presumptively prejudicial because
it implicates the defendant’s constitutional right to a
fair trial before an impartial jury. . . . But unless the
nature of the misconduct on its face implicates his
constitutional rights the burden is on the appellant to
show that the error of the trial court is harmful.’’ (Cita-
tions omitted.) We concluded in Asherman that the
defendant was not prejudiced as a result of a juror’s
consultation of a dictionary. Id., 737. In that case, nota-
bly, the dictionary had been consulted for the meaning
of a generic term, ‘‘inference,’’ which the trial court
used but did not specifically define in its instructions,
and the defendant’s concern that the jury could inter-
pret one of the dictionary definitions to allow it to base
inferences on speculation was alleviated by the trial
court’s instructions regarding the use of inferences. Id.
We adopted the logic that some other courts have fol-
lowed; see footnote 21 of this opinion; under which
definitions in a standard dictionary are assumed to be
common knowledge and, thus, constitute knowledge
that jurors are presumed to possess in the absence of
an indication to the contrary. See State v. Asherman,
supra, 737. See generally State v. Harris, 340 S.C. 59, 64,
530 S.E.2d 626 (2000) (‘‘[c]ourts have almost uniformly
found no prejudice to the defendant when the dictionary
definition did not vary from the ordinary meaning of
the words or from the meaning contained in the trial
court’s instructions’’). We had no occasion to consider
whether a presumption of prejudice should apply when
jurors consider a dictionary definition of a material
term that directly conflicts with the legal definition
provided by the trial court.
We agree with those jurisdictions that have con-
cluded that a presumption of prejudice applies if the
defendant can demonstrate that a juror consulted a
dictionary and was thereby exposed to a definition of
a material term that substantively differed from the legal
definition provided by the court, shifting the burden
to the state to prove that this exposure was harmless
beyond a reasonable doubt. See United States v. Law-
son, supra, 677 F.3d 645–46 (holding that Remmer pre-
sumption applies when juror uses dictionary to research
definition of ‘‘a material word or term at issue in a
pending case’’ and that it was of particular concern
when dictionary was consulted for definition of term
that addressed contested element of offense); United
States v. Aguirre, supra, 108 F.3d 1288 (‘‘jury’s exposure
to extrinsic information [such as a dictionary definition]
gives rise to a rebuttable presumption of prejudice’’);
United States v. Martinez, supra, 14 F.3d 550 (holding,
in case involving several categories of extrinsic evi-
dence, including unauthorized use of dictionary to
define terms discussed during deliberations, that ‘‘we
assume prejudice and thus, we must consider whether
the government rebutted that presumption’’); Marino
v. Vasquez, 812 F.2d 499, 505 (9th Cir. 1987) (holding
that unauthorized use of dictionary definitions is revers-
ible error and that government must establish that error
is harmless beyond reasonable doubt); State v. Klafta,
supra, 73 Haw. 122 (‘‘[A] juror’s obtaining of extraneous
definitions or statements of law differing from that
intended by the court is misconduct [that] may result
in prejudice to the defendant’s constitutional right to
a fair trial. . . . A new trial will not be granted if it can
be shown that the jury could not have been influenced
by the alleged misconduct.’’ (Citation omitted; internal
quotation marks omitted.)); Allers v. Riley, supra, 273
Mont. 2, 9 (applying rebuttable presumption of preju-
dice when jury used extraneous materials—two diction-
aries—to redefine critical element of case that was
already correctly defined in court’s instructions); see
also United States v. Console, 13 F.3d 641, 665–66 (3d
Cir. 1993) (applying presumption of prejudice in case
in which juror discussed definition of Racketeer Influ-
enced and Corrupt Organizations Act with attorney sis-
ter and shared definition with other jurors during delib-
erations), cert. denied sub nom. Curcio v. United States,
511 U.S. 1076, 114 S. Ct. 1660, 128 L. Ed. 2d 377 (1994),
and cert. denied sub nom. Markoff v. United States,
513 U.S. 812, 115 S. Ct. 54, 130 L. Ed. 2d 21 (1994)
B
Mindful of these principles, we turn to the particular
claims raised by the defendant. We agree with the defen-
dant that he established his entitlement to the presump-
tion of prejudice. The dictionary definition that J.B.
consulted was of an essential legal term, and it differed
materially from the trial court’s definition of the ele-
ments of manslaughter. The dictionary purportedly
defined manslaughter as the taking of a life ‘‘without
forethought or malice,’’ whereas the elements provided
by the court required proof of recklessness and extreme
indifference to human life. As we previously indicated,
although we cannot say with certainty whether the trial
court imposed the burden on the state to prove that
consultation of the dictionary was harmless, the state’s
burden necessarily would be met if the trial court cor-
rectly determined that the evidence established that this
conduct caused no actual prejudice to the defendant.
To resolve this issue, we begin with the defendant’s
contention that the trial court applied an incorrect legal
standard. Specifically, he contends that the court’s
application of the standard from State v. Johnson, supra,288 Conn. 262–64, was incorrect because jurors’ consul-
tation of a dictionary does not implicate concerns about
the jurors’ impartiality but, rather, the possible misuse
of the definition in reaching a verdict. We are not per-
suaded that the trial court applied an incorrect legal
standard simply because it framed its inquiry in terms
of the misconduct’s effect on the jurors’ impartiality.
As we previously indicated, the right to have a jury
decide the case solely on the basis of the evidence
presented and the court’s instructions on the law is
subsumed under the right to a fair and impartial jury.
See State v. Rodriguez, supra, 210 Conn. 325; see also
Hughes v. Borg, supra, 898 F.2d 700. Although we agree
that, in light of the term’s common meaning and in the
absence of any context suggesting a different meaning,
a juror likely would interpret a question asking about
their ability to be impartial as one inquiring about any
bias they might have against the defendant,22 we are
satisfied that the trial court ascribed the proper, broader
meaning to the term. The trial court’s questions were
not limited to those concerning impartiality but specifi-
cally concerned whether a dictionary definition of man-
slaughter had been consulted or raised, whether any
outside information had affected the jurors’ ability to
follow the court’s instructions, and whether the jurors
considered only the evidence presented and the court’s
instructions. It is apparent, therefore, that the trial court
used the term impartiality to encompass those critical
questions.
We agree with the defendant that, when jurors have
improperly consulted a dictionary to obtain a definition
of a legal term, the ultimate inquiry is whether there is
‘‘a [reasonable] possibility that the extrinsic material
could have affected the verdict.’’ (Internal quotation
marks omitted.) United States v. Steele, supra, 785 F.2d
746; see United States v. Weiss, 752 F.2d 777, 783 (2d
Cir.), cert. denied, 474 U.S. 944, 106 S. Ct. 308, 88 L.
Ed. 2d 285 (1985); State v. Abell, supra, 383 N.W.2d 812;
Ryser v. State, supra, 453 S.W.3d 41; see also State v.
Rhodes, 248 Conn. 39, 49 n.16, 726 A.2d 513 (1999) (‘‘the
critical consideration . . . is not whether prejudice
may be assumed from [exposure to such information],
but, rather, whether, under the specific facts of the
case, any such impropriety actually affected the ver-
dict’’). The trial court effectively concluded in the pres-
ent case that no such possibility existed when it found
that J.B. credibly testified that he had relied on only
the trial court’s instruction defining manslaughter and
that the dictionary definition of manslaughter did not
influence his decision in the case.
The defendant challenges the propriety of this conclu-
sion but does so on the basis of the record, not as a
matter of law.23 Specifically, the defendant argues that
the trial court could not properly credit J.B.’s ultimate
answers because there was other evidence indicating
that J.B. in fact did rely on the dictionary definition of
manslaughter in the jury deliberations: J.B. recalled the
dictionary definition more than one month after trial;
he initially gave equivocal responses to the court’s ques-
tions about relying on the dictionary and only gave the
‘‘ ‘right’ ’’ answers after the court steered him in that
direction; and his conduct had been sufficiently egre-
gious that, weeks later, another juror reported to court
staff that a juror had consulted an outside dictionary
during deliberations. The defendant further argues that,
because the court could not properly credit J.B.’s
responses indicating that he did not rely on the diction-
ary definition of manslaughter, the court also could
not assume that J.B.’s arguments to other jurors were
unaffected by this taint. Because the trial court is not
permitted to ask the other jurors questions that would
gauge the influence of J.B.’s arguments on them, the
defendant asserts that the court was required to con-
sider how a typical, hypothetical juror would be affected
by the difference between the definitions. See footnote
17 of this opinion (setting forth tests identified by defen-
dant).
We conclude that, although perhaps the trial court
reasonably could have drawn the inferences advanced
by the defendant, it was not compelled to do so. ‘‘[T]he
trial judge is uniquely qualified to appraise the probable
effect of information on the jury, the materiality of the
extraneous material, and its prejudicial nature.’’ (Inter-
nal quotation marks omitted.) State v. Rodriguez, supra,
210 Conn. 331. This court must defer to the credibility
assessment of the trial court, which has had the oppor-
tunity to observe first hand each juror’s demeanor and
attitude and, therefore, is in the best position to judge
his or her credibility and draw inferences therefrom.
See State v. Dixon, supra, 318 Conn. 506. The testimony
of the jurors that each was, or would be, fair and impar-
tial, although not determinative, is significant, and ‘‘[we]
are not inclined to disregard the statements of those
jurors . . . as inevitably suspect.’’ (Internal quotation
marks omitted.) State v. Rodriguez, supra, 330; see also
United States v. Gillespie, 61 F.3d 457, 460 (6th Cir.
1995) (‘‘[T]he court should determine whether the jury
actually used the dictionary definition to reach [its]
verdict. . . . [A] juror’s declaration at the hearing
exploring these questions is not inherently suspect.’’).
No doubt ‘‘[t]he nature and quality of the juror’s assur-
ances is of paramount importance; the juror must be
unequivocal about his or her ability to be fair and impar-
tial.’’ (Internal quotation marks omitted.) State v. Ber-
rios, supra, 320 Conn. 296. Although this court may
review the transcript to ascertain whether it reveals
textual evidence of equivocation, ‘‘[e]valuation of any
equivocation evinced in tone or manner remains in the
province of the trial judge.’’ Id., 296–97.
Some of J.B.’s responses could be viewed as equivo-
cal or nonresponsive. Part of the problem in characteriz-
ing those responses is J.B.’s repeated efforts to interject
his thoughts about the case and tentative votes by the
jury—both of which were forbidden matters that the
trial court was assiduously attempting to avoid. The
trial court, therefore, reasonably attempted to secure
unequivocal answers to its questions.
In State v. Berrios, supra, 320 Conn. 265, in which
we applied a presumption of prejudice to a third party’s
improper contact with a juror midtrial; id., 294; we
concluded that the trial court did not abuse its discre-
tion in denying the defendant’s motion for a mistrial
because the state had proved that this contact was
harmless beyond a reasonable doubt through the jurors’
testimonial assurances that the impermissible contact
did not affect their impartiality or their ability to decide
the case based solely on the evidence admitted at trial.
Id., 296. We observed that the trial court’s discretion
to credit these assurances was reasonable because the
jurors’ testimony was unequivocal and supported by
other facts in the record.24 See id., 296–99.
Stricter scrutiny may be warranted when jurors are
asked postverdict whether they acted impartially and
in accordance with the court’s instructions, especially
when the question is posed to a juror who has commit-
ted misconduct. See State v. Dixon, supra, 318 Conn.
507 (‘‘[t]he trial court’s assessment of the juror’s assur-
ances, [although] entitled to deference, must be realistic
and informed by inquiries adequate in the context of the
case to ascertain the nature and import of any potential
juror bias’’ (internal quotation marks omitted)); see
also, e.g., State v. Holt, 79 S.D. 50, 53, 107 N.W.2d 732(1961) (trial court properly relied on jurors’ affidavits
stating that their use of dictionary for terms relevant
to lesser included offenses did not influence their ver-
dict to overcome presumption of prejudice given that
verdict on principal charge eliminated consideration of
lesser included offenses). In the present case, the trial
court’s conclusion is bolstered by the fact that the mis-
conduct occurred before the court specifically directed
the jury not to consult the dictionary and to rely exclu-
sively on the elements in the court’s manslaughter
instruction. The court’s initial charge to the jury did not
include such a pointed instruction, and it is reasonably
possible that J.B. did not recall the court’s specific
prohibition on consulting dictionaries from jury selec-
tion approximately one month earlier. See footnote 11
of this opinion. The fact that other jurors sent the note
to the court to shut down any further efforts by J.B.
to discuss the dictionary definition suggests that they
would have alerted the court, before the verdict was
rendered, if J.B.’s comments suggested that he contin-
ued to rely on the dictionary definition after the court
responded to the note. The jury deliberated until the day
after the court responded to the note, without further
incident. Cf. Jordan v. Brantley, 589 So. 2d 680, 682
(Ala. 1991) (‘‘[t]he evidence reflects that the jury had
not been able to reach a verdict until the dictionary
was used’’). Under these circumstances, it is reasonable
to presume that the jurors followed the court’s instruc-
tions. See, e.g., State v. Rodriguez, supra, 210 Conn.
333 (‘‘[t]he jury, in the absence of a fair indication to
the contrary, is presumed to have followed the instruc-
tions of the court’’ (internal quotation marks omitted)).
The trial court correctly concluded that the juror
misconduct caused no actual prejudice to the defen-
dant. The record clearly establishes that there was no
reasonable possibility that any member of the jury relied
on the dictionary definition to the defendant’s detriment
in reaching the verdict. The state proved that the mis-
conduct was harmless beyond a reasonable doubt. The
trial court therefore properly denied the defendant’s
motion for a new trial.25
The judgment is affirmed.
In this opinion the other justices concurred.
* November 23, 2021, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
The defendant appealed directly to this court pursuant to General Stat-
utes § 51-199 (b) (3).
2
The defendant does not challenge his conviction of criminal possession
of a firearm. We therefore limit the facts to those relevant to the manslaughter
conviction.
3
An autopsy performed by a state medical examiner revealed that the
victim sustained three gunshot wounds: to his left shoulder, to his left leg,
and to his torso, in the abdominal area. The bullets that caused the shoulder
and leg wounds entered the victim’s body from the back. The sequence of
the gunshots could not be determined.
4
‘‘[A] person is not justified in using deadly physical force upon another
person if he or she knows that he or she can avoid the necessity of using
such force with complete safety . . . by retreating . . . .’’ General Statutes
§ 53a-19 (b) (1).
5
In order to prevail on an unpreserved claim, a defendant must show that
(1) the record is adequate to review the alleged claim of error, (2) the claim
is of constitutional magnitude alleging the violation of a fundamental right,
(3) the alleged constitutional violation exists and deprived the defendant
of a fair trial, and (4) if the claim is subject to harmless error analysis, the
state has failed to demonstrate harmlessness beyond a reasonable doubt.
See, e.g., In re Yasiel R., supra, 317 Conn. 779, 781. A claim is reviewable
if the first two prongs are met; the second two prongs involve a determination
of whether the defendant may prevail. See id., 779 n.6.
6
Although our case law typically states this subjective-objective frame-
work in connection with challenges to the second requirement regarding
the degree of force necessary to respond; see, e.g., State v. O’Bryan, supra,
318 Conn. 632; State v. Saunders, 267 Conn. 363, 373, 838 A.2d 186, cert.
denied, 541 U.S. 1036, 124 S. Ct. 2113, 158 L. Ed. 2d 722 (2004); State v.
Clark, supra, 264 Conn. 732; the fact that both requirements are premised
on a reasonable belief makes this framework equally applicable to the first
requirement, which is the focus of the parties’ arguments in the present
case. See Burke v. Mesniaeff, 334 Conn. 100, 128, 220 A.3d 777 (2019).
7
Although the self-defense statute also permits this defense when the
defendant reasonably believes that he is at risk of great bodily harm; see
General Statutes § 53a-19 (a) (2); the defendant’s theory in the present case
is that he believed that the victim was drawing a gun.
8
Although the availability of the defense of self-defense does not depend
on whether the victim was in fact using or about to use deadly physical
force because it is the defendant’s belief that is material; see, e.g., State v.
Clark, supra, 264 Conn. 732; the presence of a weapon would lend support
to the defendant’s belief.
9
Knight was not a particularly helpful witness to either side. The police
interviewed her on two occasions. Both interviews were video-recorded. In
the first interview, which took place a few hours after the incident in ques-
tion, Knight stated that she knew nothing about what had happened and
that she was alone in the Armada until she tried to leave the pub’s parking
lot. The second interview took place a few days later, after she was charged
with interfering with the police investigation. Knight acknowledged that she
had been less than truthful during the first interview. When Knight testified
at trial, her recollection of the events at issue was poor, and the state
introduced portions of both of her video-recorded statements to the police
as prior inconsistent statements under State v. Whelan, 200 Conn. 743, 753,
513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).
10
The court also instructed the jury that the state was required to prove
that the defendant used a firearm to cause the victim’s death. See General
Statutes § 53a-55a.
11
At the commencement of jury selection, the court provided the following
admonishment to prospective jurors: ‘‘Please do not do any legal research
into any of the issues involved in this case. Please don’t look up anything
on the Internet, any terms in the dictionary, review any medical textbooks
or look up the statutes which might be at issue here. . . . I will instruct
you as to the definitions of any terms you need to know, and the lawyers
will elicit from the witnesses any explanations of terms or principles which
the lawyers believe will be necessary in your deliberations.’’ In its instruc-
tions at the commencement of trial two weeks later, the court also admon-
ished the jury that ‘‘[i]t is your duty to accept the law and to follow it as I
give it to you, whether or not you agree with it.’’
12
Although the jury’s note reasonably may have been interpreted to imply
that no juror had yet consulted a dictionary, the present case demonstrates
that the better practice under these circumstances would be for the trial
court to conduct an inquiry to confirm that no such action had been taken.
Had the court done so in the present case, it could have considered whether
to excuse the juror who had in fact already consulted the dictionary and
to replace him with an alternate juror. See, e.g., State v. Klafta, 73 Haw.
109, 123, 831 P.2d 512 (1992).
13
The jurors are referred to by their initials to protect their privacy inter-
ests. See, e.g., State v. Osimanti, 299 Conn. 1, 30 n.28, 6 A.3d 790 (2010).
14
When a trial court is presented with allegations of juror misconduct in
a criminal case, it must conduct, on the record, an inquiry into the allegations.
See State v. Brown, 235 Conn. 502, 526, 668 A.2d 1288 (1995). The nature
of such an inquiry lies within the trial court’s discretion and may vary from
a preliminary inquiry of counsel to a full evidentiary hearing. See id., 529.
If the court determines that an evidentiary hearing is warranted, it has wide
discretion in deciding how to conduct the hearing to determine the nature
and effect of information that comes to a juror improperly and its potential
effect on the entire jury if it learns of it. See id. There is no claim in the
present case that the procedure was in any way deficient or improper.
15
We have omitted J.B.’s comments that reveal aspects of his, or any other
juror’s, deliberative process. The trial court’s questions clearly were not
aimed at eliciting such information, and the trial court properly disregarded
any such statements in its decision on the defendant’s motion. See Aillon
v. State, 168 Conn. 541, 551–52, 363 A.2d 49 (1975); see also Practice Book
§ 42-33.
16
It is unclear what the trial court meant by this comment. Nonetheless,
as we explain in this opinion; see footnote 25 of this opinion; the differences
in the definitions could not have prejudiced the defendant under the circum-
stances of the present case.
17
The defendant identifies three tests applicable to the present circum-
stances, which he characterizes as follows: (1) a ‘‘[d]efinitional’’ test, which
compares the statutory requirement or legal definition provided by the trial
court to the dictionary definition and assesses whether application of the
dictionary definition could have been harmful to the defendant; see, e.g.,
Commonwealth v. Wood, 230 S.W.3d 331, 333–34 (Ky. App. 2007); State v.
Abell, 383 N.W.2d 810, 812–13 (N.D. 1986); (2) a ‘‘typical juror’’ test, which,
in recognition of the fact that the trial court is precluded from eliciting
evidence regarding the actual effect of the extrinsic information on the
jurors, applies an objective, multifactor test to determine whether there is
a reasonable possibility that the extrinsic information influenced the verdict
to the defendant’s detriment; see, e.g., People v. Harlan, 109 P.3d 616, 625–26
(Colo.), cert. denied, 546 U.S. 928, 126 S. Ct. 399, 163 L. Ed. 2d 277 (2005);
and (3) the ‘‘Mayhue’’ test; see Mayhue v. St. Francis Hospital of Wichita,
Inc., 969 F.2d 919 (10th Cir. 1992), which sets forth a multifactor, nonexclu-
sive test to assess prejudice from jurors’ use of dictionary definitions. Id.,
924; see also United States v. Lawson, 677 F.3d 629, 646–51 (4th Cir.)
(applying Mayhue factors), cert. denied sub nom. Hutto v. United States,
568 U.S. 889, 133 S. Ct. 393, 184 L. Ed. 2d 162 (2012).
Although this court previously has indicated that the effect of juror miscon-
duct or external influences would be assessed under an objective test; see
Sawicki v. New Britain General Hospital, 302 Conn. 514, 523–24, 29 A.3d
453 (2011); State v. Johnson, supra, 288 Conn. 263 n.26; see also State v.
Berrios, 320 Conn. 265, 287 and n.20, 129 A.3d 696 (2016) (citing with
approval objective standard of Second Circuit Court of Appeals); we have
not yet had occasion to adopt any particular test.
18
Because we conclude that the trial court properly relied on the jurors’
testimony, we need not consider whether the defendant is entitled to review
of his claim regarding the various objective tests he proposes. Insofar as
the state suggests that the defendant is not entitled to review of his claim
that the trial court improperly placed the burden of proof on him, we see
no preservation problem in light of the state’s concession before the trial
court that it had the burden of proof.
19
Although we apply a presumption that the trial court properly allocated
the burden of proof when the court’s decision is silent on that matter; see
Bisson v. Wal-Mart Stores, Inc., 184 Conn. App. 619, 630 n.11, 195 A.3d 707(2018); the decision in the present case has statements that appear to conflict
on this matter without resolving that conflict. We acknowledge that these
ambiguities in the trial court’s decision are a reflection of a lack of clarity
in our own case law. The trial court quoted this court’s case law stating
that, ‘‘[i]f . . . the trial court is not at fault for the alleged juror misconduct
. . . [the] defendant . . . bears the burden of proving that actual prejudice
resulted from the misconduct’’; (internal quotation marks omitted) State v.
Roman, 320 Conn. 400, 409, 133 A.3d 441 (2016); as well as case law stating
that ‘‘[c]onsideration of extrinsic evidence is presumptively prejudicial
. . . .’’ State v. Asherman, supra, 193 Conn. 736.
20
We underscore that the court’s decision potentially could satisfy either
standard because it rested on evidence that the court credited, not the
defendant’s failure to present evidence.
21
This is not to say that courts have uniformly approached this issue.
Some courts distinguish extrinsic information that may be relied on to decide
the facts of the case from information that implicates the law in the case.
Compare United States v. Cheyenne, 855 F.2d 566, 568 (8th Cir. 1988) (factual
and legal information do not raise same concerns), with United States v.
Lawson, 677 F.3d 629, 645–46 (4th Cir.) (many of same concerns arise when
juror uses dictionary as when juror consults with third party), cert. denied
sub nom. Hutto v. United States, 568 U.S. 889, 133 S. Ct. 393, 184 L. Ed. 2d
162 (2012). Some courts distinguish between information obtained from a
‘‘standard’’ dictionary, deeming it reflective of common meaning that jurors
may be presumed to know and thus not extrinsic information, and informa-
tion obtained from a legal dictionary. See, e.g., Rutland v. State, 60 So. 3d
137, 144 (Miss. 2011); see also Ryser v. State, supra, 453 S.W.3d 41.
22
See, e.g., American Heritage College Dictionary (4th Ed. 2007) p. 694
(defining ‘‘impartial’’ to mean ‘‘[n]ot partial or biased; unprejudiced’’).
23
It is significant that the defendant does not contend either that the trial
court should not have inquired about whether the jurors used the dictionary
definition (i.e., outside information) in their deliberations or that negative
responses to such inquiries are per se an improper consideration. See State
v. Suschank, 595 S.W.2d 295, 298 (Mo. App. 1979) (because defendant did
not object to questioning of jury after verdict, trial court could properly
consider testimony of jurors in determining prejudicial effect of use of
dictionary). Some jurisdictions do not permit the trial court to inquire
whether the jurors actually relied on the definition in deciding the case,
viewing such questions as intruding on the deliberative process. See, e.g.,
State v. Duncan, 3 Kan. App. 2d 271, 275, 593 P.2d 427 (1979) (‘‘[i]t is not
permissible to inquire whether . . . the dictionary definition of ‘assault’
was given weight by the jury’’); Commonwealth v. Wood, 230 S.W.3d 331,
333 (Ky. App. 2007) (court should consider juror testimony concerning any
overt acts of misconduct but not ‘‘secret thoughts of jurors’’). In such cases,
the court would proceed to an objective inquiry as to whether consideration
of the definition would affect the verdict of a typical juror.
24
The testimony adduced at the hearing in Berrios established that the
defendant’s mother had approached one of the jurors during a recess from
presentation of evidence, that she had made a negative comment about the
truthfulness of one of the state’s witnesses, and that all of the jurors became
aware of that contact. See State v. Berrios, supra, 320 Conn. 269–70. The
trial court rejected the defendant’s suggestion that the impropriety was
extraordinarily prejudicial because it could lead jurors to suspect that the
defendant had instigated the jury tampering and had done so in an effort
to cause a mistrial, which would cause the jurors to regard him unfavorably
in their deliberations. Id., 277, 299. In concluding that the trial court properly
could credit the jurors’ assurances that they could be impartial despite the
improper contact, we pointed to the fact that J, the juror who was
approached by the defendant’s mother, had reported the incident to the
court, whereas, ‘‘[h]ad the actions of the defendant’s mother left [J] inclined
to be less than fair and impartial toward the defendant, [J] likely would have
kept that information to himself in an attempt to ensure that he remained
on the jury to vote to convict the defendant.’’ (Internal quotation marks
omitted.) Id., 297–98. We also noted that, because jurors J and L had
expressed understanding for the actions of the defendant’s mother, given
her obvious concern for the defendant’s future, such expressions supported
the trial court’s determination that the jurors were not biased against the
defendant as a result of his mother’s actions. Id., 298.
25
We note that the defendant would not be entitled to a new trial even
if the trial court should have discounted the jurors’ assurances. See United
States v. Chanthadara, 230 F.3d 1237, 1251 (10th Cir. 2000) (‘‘prejudice
presumed, even if not cured by subsequent instructions and juror assurances
of impartiality, may be proven harmless if the government can establish
there was overwhelming evidence of the defendant’s guilt’’), cert. denied,
534 U.S. 992, 122 S. Ct. 457, 151 L. Ed. 2d 376 (2001). The defendant’s
complaint is that the dictionary definition of manslaughter omitted two
elements of the statutory definition—that he must have acted recklessly
and under circumstances evincing an extreme indifference to human life. See
General Statutes § 53a-55 (a) (3). These elements, however, were effectively
uncontested. It was undisputed that the defendant fired his gun multiple
times at the victim in a dark parking lot where others were present. Defense
counsel conceded during his closing argument that the jury could find the
defendant guilty of either murder or manslaughter but that such a finding
was immaterial because the state could not prove that he had not acted in
self-defense. See State v. Singleton, 292 Conn. 734, 749, 974 A.2d 679 (2009)
(‘‘self-defense is a justification for engaging in otherwise criminal conduct’’
(emphasis omitted; internal quotation marks omitted)). The defendant can-
not, therefore, establish prejudice. See, e.g., United States v. Cheyenne, 855
F.2d 566, 568 (8th Cir. 1988) (no prejudice when dictionary definition was
not relevant to only disputed issue); State v. Duncan, 3 Kan. App. 2d 271,
275, 593 P.2d 427 (1979) (‘‘[w]e agree that the difference in definitions is
substantial, but the evidence of [the] defendant’s guilt of aggravated assault
. . . was overwhelming if not irrefutable’’); cf. State v. Padua, 273 Conn.
138, 167, 869 A.2d 192 (2005) (‘‘a jury instruction that improperly omits an
essential element from the charge constitutes harmless error if a reviewing
court concludes beyond a reasonable doubt that the omitted element was
uncontested and supported by overwhelming evidence, such that the jury
verdict would have been the same absent the error’’ (emphasis omitted;
internal quotation marks omitted)).