State v. Berrios ( 2016 )

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STATE OF CONNECTICUT v. ORLANDO
BERRIOS, JR.
(SC 19494)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued October 16, 2015—officially released January 26, 2016
Richard E. Condon, Jr., senior assistant public
defender, for the appellant (defendant).
Rita M. Shair, senior assistant state’s attorney, with
whom, on the brief, were Michael Dearington, state’s
attorney, and Roger Dobris, senior assistant state’s
attorney, for the appellee (state).
Opinion
ROBINSON, J. This appeal requires us to consider
the continuing vitality of the presumption of prejudice
in jury tampering cases articulated by the United States
Supreme Court in Remmer v. United States, 347 U.S.
227, 74 S. Ct. 450, 98 L. Ed. 654 (1954) (Remmer I),
which is a question that has divided state and federal
courts for more than thirty years in the wake of Smith
v. Phillips, 455 U.S. 209, 102 S. Ct. 940, 71 L. Ed. 2d 78
(1982), and United States v. Olano, 507 U.S. 725, 113
S. Ct. 1770, 123 L. Ed. 2d 508 (1993). The defendant,
Orlando Berrios, Jr., appeals1 from the judgment of the
trial court convicting him, following a jury trial, of rob-
bery in the first degree in violation of General Statutes
§ 53a-134 (a) (4). On appeal, the defendant claims that
the trial court improperly denied his motion for a mis-
trial on the ground that his mother2 had tampered with
the jury by approaching a juror outside the courthouse
and speaking to him about the evidence in this case.
Relying on the presumption of prejudice articulated
in Remmer I (Remmer presumption), the defendant
contends that his mother’s jury tampering violated his
constitutional right to a fair trial because the state failed
to carry its ‘‘ ‘heavy burden’ ’’ of proving that her actions
did not affect the jury’s impartiality. Although we con-
clude that the Remmer presumption remains good law
in cases of external interference with the jury’s delibera-
tive process via private communication, contact, or tam-
pering with jurors about the pending matter, we also
conclude that the state proved that there was no reason-
able possibility that the actions of the defendant’s
mother affected the jury’s ability to decide this case
fairly and impartially. Accordingly, we affirm the judg-
ment of the trial court.
The record reveals the following background facts,
which the jury reasonably could have found, and proce-
dural history. On December 4, 2011, at approximately
7:20 a.m., the defendant and another man, Bernard
Gardner, were driving in a black Hyundai Santa Fe (car)
on Cedar Street in the city of New Haven when they
came upon the victim, Javier Ristorucci, who was out
for a walk. The defendant stopped and exited the car,
and while Gardner watched, robbed the victim at gun-
point. The victim gave the defendant his cell phone,
cash, and the gray hooded sweatshirt and black jacket
that he was wearing at the time. After being flagged
down by Leonardo Ayala, a friend of the victim who
had just left the scene, Francisco Ortiz, an officer in
the New Haven Police Department, saw the car stopped
in the middle of the street with its brake lights on; the
defendant was sitting in the driver’s seat smoking crack.
The victim then told Ortiz that a man in the car with a
gun had robbed him.
When Ortiz attempted to stop the car, the defendant
drove away, causing a high speed pursuit through the
streets of New Haven onto Interstate 91, which ended
when the car came to a rest against the guardrail near
exit 11 in North Haven. After a brief foot pursuit, Ortiz
and several other police officers apprehended the
defendant, who had been driving the car. In the mean-
time, other police officers apprehended Gardner, who
was pinned against the highway guardrail in the passen-
ger seat. Following a showup identification, the victim
identified the defendant by his hat, clothing, and face
as the person who had robbed him. Ortiz found the
victim’s gray sweatshirt and black jacket when he
searched the car; the gun, cash, and cell phone were
not recovered.
The state charged the defendant with robbery in the
first degree in violation of § 53a-134 (a) (4), and the
case was tried to a jury. During trial, a juror, J,3 informed
the trial court that the defendant’s mother had
approached him on the street outside the courthouse
and commented on the veracity of one of the witnesses.
Following voir dire of J and the rest of the jurors, the
defendant moved for a mistrial on the ground of jury
tampering. The trial court denied that motion. The jury
subsequently returned a verdict finding the defendant
guilty of robbery in the first degree. The trial court
rendered a judgment of guilty in accordance with the
jury’s verdict, and sentenced the defendant to a total
effective sentence of fifteen years imprisonment, fol-
lowed by five years of special parole. This appeal
followed.
The record reveals the following additional facts and
procedural history relevant to the defendant’s claim
that the trial court abused its discretion in denying
his motion for a mistrial on the ground that the jury’s
impartiality had been compromised by jury tampering.
On the third day of evidence, the clerk informed the
trial court that J had reported to the clerk that the
defendant’s mother had approached him ‘‘and some
communication had occurred.’’ The trial court then read
a note from J in which he stated that he had been
‘‘approached by the defendant’s mother in the parking
lot yesterday . . . [at] approximately 3:30 p.m. She
attempted to engage me in conversation. I did not
respond to her comments.’’ The trial court then ques-
tioned J in open court about the note and he stated: ‘‘I
guess [the defendant’s mother] was concerned for
which way we were leaning and [she] was asking me
if I . . . realized that that last cop was lying. And I
made no comment to her and I told her [to] be careful
of the gateway that we were walking over so she didn’t
trip, and I said have a nice evening. So, that was the
total.’’4 J further testified that he had informed the rest
of the jury about that encounter while he was preparing
the note. J assured the trial court that his ability to
decide the case based solely on the evidence had not
been compromised as a result of the encounter.5
In response to voir dire questions from the defendant,
J testified that he did not tell any friends or family what
had happened, and had informed only the other jurors.
When asked whether the conversation would affect his
ability to ‘‘continu[e] to be fair and impartial to the state
and to the defendant,’’ J responded, ‘‘[n]o, not at all.’’
J further testified that he viewed the actions of the
defendant’s mother as those of ‘‘a concerned mother.’’
When asked whether he would ‘‘decide this case based
on anything that happened yesterday [at] about 3:30
[p.m.] outside of this courtroom,’’ J responded, ‘‘[n]o.’’
J also testified that he had learned from the other jurors
that one juror, E, had witnessed the encounter with the
defendant’s mother.
Before questioning the other jurors, the trial court
excluded the defendant’s mother from the courtroom.
E then testified that, while stopped on his bicycle at
the intersection of Orange and Grove Streets, he saw
a woman, who he recognized from the courtroom,
approach J from behind while talking. E further testified
that he did not see or hear J communicate with her. E
also testified, in response to questions from the trial
court and the defendant, that the incident would not
affect his ability to decide the case based solely on the
evidence presented in court.
Having interviewed the two witnesses to the incident,
the trial court then summoned the remaining members
of the jury for individual questioning.6 The next juror,
M, testified that J had told the other members of the jury
that ‘‘he was approached by the defendant’s mother, but
he didn’t say anything, he just walked off.’’ When asked
by the trial court whether she would ‘‘decide [the] case
based 100 percent on the evidence,’’ M responded,
‘‘[y]es.’’ M offered a similar assurance in response to
questions from the defendant, agreeing that what she
heard from J had not affected her ability to be ‘‘fair
and impartial in this matter,’’ and that her impartiality
remained the ‘‘[s]ame as it was when [she was] sworn
in . . . .’’
Another juror, S, testified that J had said ‘‘he was
approached by the defendant’s [mother].’’ S stated that
she ‘‘believe[d]’’ J had spoken about ‘‘two young ladies
behind him’’ at that time ‘‘with cell phones and [J] wasn’t
. . . sure whether he was being taped or not, so he
needed to tell [the trial court].’’ S similarly assured the
trial court that her ability to discharge her sworn duty
to decide the case impartially ‘‘based 100 percent on
the evidence in court’’ had not been compromised. In
response to further questions from the defendant, S
stated that J ‘‘wasn’t sure’’ about being recorded
because the two young women ‘‘had cell phones out,
so he wasn’t sure whether he was being taped, you
know, for a mistrial, he wasn’t sure, so he wanted to
tell the [trial court] because he wasn’t sure about being
taped or not. He saw the two young ladies, I guess,
with cell phones, and he wanted to tell it just in case.’’7
When asked by defense counsel whether anything had
‘‘changed since the day [she was] sworn in’’ with respect
to her ability to decide the case fairly in accord with
her oath, S responded, ‘‘[n]o.’’
Another juror, D, testified that she wrote the note
for J at his request after he told the other members of
the jury that ‘‘he had been approached by [who] he
believed to be the defendant’s mother in the parking
lot and that he didn’t engage in conversation with her.’’
D testified, in response to questions from the defendant,
that, being an educator, she wrote the note for J because
‘‘[h]e [had] expressed that his writing skills were not
as good as he hoped them to be.’’ D stated that J had
been ‘‘fairly vague in his sharing’’ and had not provided
any ‘‘details or anything to that nature. It was merely
that he had been approached and he didn’t respond,
and that was essentially the end of it.’’ When asked by
the trial court whether she could keep an open mind
and ‘‘decide the case based fairly and squarely 100 per-
cent on the evidence in court,’’ D responded in the affir-
mative.
The final juror, L testified that J had ‘‘said that he
was approached by a person that he figured was the
mother of the defendant, and that he did not pay atten-
tion to what she said, and did not respond to anything
she said, he did not report to us what she said. And [J]
said that his only concern was that somebody might be
watching the encounter and videotaping it so that they
could sort of say, hey, look, the jury has been tampered
with and call for a mistrial, that was his concern, and
that is why he wanted to report it . . . .’’ When asked
by the trial court whether his ability to decide the case
‘‘based 100 percent on the evidence presented in court’’
had been compromised, L responded, ‘‘I don’t think so
at all.’’ When asked whether he would ‘‘continue to
be open-minded and fair and decide this case based
exclusively on the evidence presented in court,’’ L
responded, ‘‘absolutely.’’8 L further explained, in
response to questioning by defense counsel, that J did
not explain his understanding of the terms ‘‘tampering’’
or ‘‘mistrial’’ in expressing his concerns to the other
jurors, that L believed that the defendant’s mother
‘‘must be very upset and very concerned’’ about this
case, and that J appeared concerned about the effect
of the encounter. L stated that he had not discussed
anything else about the case with the other jurors.
The defendant then moved for a mistrial. He argued
that a mistrial was ‘‘in the interest of justice’’ because
the other jurors’ voir dire testimony indicated that J
had not been completely forthcoming with the details
about his encounter with the defendant’s mother, in
particular, his failure to inform the trial court about the
presence of the two young women who might have
recorded the encounter with their cell phones, and his
use of legal terminology such as ‘‘mistrial’’ in explaining
his concerns to the other members of the jury. The trial
court denied the defendant’s motion, stating that ‘‘the
idea that the defendant’s mother can approach a mem-
ber of the jury with this kind of communication and
then the defendant can get a mistrial out of this is just
outrageous. It’s outrageous. Obviously, if the jury had,
in fact, been contaminated, then that would be another
story, but the court and counsel have interviewed each
of the six members of the jury and it’s very apparent
that they are very fair and they are very committed to
deciding this case based 100 percent on what is said
in court, on the evidence presented in court.’’9 The trial
court then excluded the defendant’s mother from the
courtroom for the remainder of the trial, noting that
any prosecution decisions with respect to her conduct
lay with the state.
Before turning to the defendant’s specific claims on
appeal, we note the following general principles. ‘‘We
begin with the standard of review that governs this
case. In our review of the denial of a motion for mistrial,
we have recognized the broad discretion that is vested
in the trial court to decide whether an occurrence at
trial has so prejudiced a party that he or she can no
longer receive a fair trial. The decision of the trial court
is therefore reversible on appeal only if there has been
an abuse of discretion.’’ (Internal quotation marks omit-
ted.) State v. Anderson, 255 Conn. 425, 435, 773 A.2d
287 (2001).
‘‘Potential juror bias is considered akin to other mis-
conduct that similarly might affect a juror’s impartiality,
thus potentially violating a core requirement of the right
to trial by jury guaranteed by the constitution of Con-
necticut, article first, § 8, and by the sixth amendment
to the United States constitution.’’ (Internal quotation
marks omitted.) State v. Osimanti, 299 Conn. 1, 32, 6
A.3d 790 (2010); see also, e.g., State v. Brown, 235 Conn.
502, 522, 668 A.2d 1288 (1995). Judicial inquiry into jury
tampering is governed by the same standards as other
possible instances of jury bias. See, e.g., State v. Dixon,
318 Conn. 495, 507, 122 A.3d 542 (2015). Thus, ‘‘[w]ith
respect to allegations that a juror potentially may be
biased, [e]ven where a juror has formed some precon-
ceived opinion as to the guilt of an accused, a juror is
sufficiently impartial if he or she can set aside that
opinion and render a verdict based on evidence in the
case. . . . Only where a juror has indicated a refusal to
consider testimony and displayed evidence of a closed
mind concerning [the] defendant’s innocence can it be
said that [the court] abused its discretion in refusing
to [remove] a juror [from the panel]. . . . It is enough
if a juror is able to set aside any preconceived notions
and decide the case on the evidence presented and the
instructions given by the court. . . . While we recog-
nize that a juror’s assurances that he or she is equal to
the task are not dispositive of the rights of an accused
. . . we are aware of the broad discretion of a trial
judge which includes his determination of the credibil-
ity to be given a juror’s statement in this context. . . .
‘‘The trial court’s assessment of the juror’s assur-
ances, while 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. . . . The inquiry need not, however, be
lengthy, so long as the questions, viewed in the context
of the juror’s answers, are adequate for the trial court
to determine that the juror can indeed serve fairly and
impartially. . . . The nature and quality of the juror’s
assurances is of paramount importance; the juror must
be unequivocal about his or her ability to be fair and
impartial.’’ (Internal quotation marks omitted.) Id.
In this appeal, the defendant contends that: (1) under
Remmer I, supra, 347 U.S. 229, jury tampering in the
form of a communication to a juror by a third party,
here, his mother, was presumptively prejudicial; and
(2) the record demonstrates that the state failed to carry
its ‘‘ ‘heavy burden’ ’’ of proving that the jury tampering
did not lead to the ‘‘reasonable possibility that [J] or
any juror ‘was . . . affected in his freedom of action
as a juror.’ ’’10 We address each claim in turn.
I
We begin with the defendant’s claim that the pre-
sumption of prejudice articulated in Remmer I, supra,
347 U.S. 229, continues to apply in cases concerning
jury tampering, thus shifting the burden to the state to
prove that there was no reasonable possibility that any
juror was ‘‘affected in his [or her] freedom of action as
a juror.’’ Remmer v. United States, 350 U.S. 377, 381,
76 S. Ct. 425, 100 L. Ed. 435 (1956) (Remmer II).
Acknowledging an apparent inconsistency in our case
law on this point; see, e.g., State v. Osimanti, supra,
299 Conn. 38–39 n.32; the defendant also notes a split
among federal Circuit Courts about whether the
Remmer presumption remains good law in light of the
Supreme Court’s subsequent decisions in Smith v. Phil-
lips, supra, 455 U.S. 209, and United States v. Olano,
supra, 507 U.S. 725. The defendant then urges us to
follow the vast majority of the federal Circuit Courts,
which continue to employ the Remmer presumption in
cases of significant jury misconduct, including tamper-
ing, thus requiring the state to prove harmlessness at
an evidentiary hearing. Relying on United States v. Dut-
kel, 192 F.3d 893, 895–96 (9th Cir. 1999), the defendant
emphasizes that the presumption is particularly applica-
ble in cases concerning jury tampering, which is a ‘‘seri-
ous intrusion into the jury’s processes and poses an
inherently greater risk to the integrity of the verdict,’’
because tampering is an act likely to give rise to resent-
ment of the defendant by the jurors.
In response, the state relies on the line of this court’s
cases cited in State v. Rhodes, 248 Conn. 39, 48, 726
A.2d 513 (1999), which follow Smith v. Phillips, supra,
455 U.S. 215, for the proposition that, under Remmer
I, supra, 347 U.S. 229, claims of juror misconduct require
only ‘‘a hearing where the focus of the inquiry must be
whether the intrusion affected the jury’s deliberation
and thereby its verdict.’’ This line of cases places the
burden on the defendant to prove that: (1) misconduct
occurred; and (2) that misconduct resulted in actual
prejudice.11 We, however, agree with the defendant that
the Remmer presumption remains good law and was
triggered once the trial court determined that jury tam-
pering had occurred in this case, thus requiring the
state to prove that there was no reasonable possibility
that the tampering affected the impartiality of the jury.
We begin by reviewing the trilogy of United States
Supreme Court cases giving rise to this issue on appeal,
namely, Remmer I, supra, 347 U.S. 227, Smith v. Phil-
lips, supra, 455 U.S. 209, and United States v. Olano,
supra, 507 U.S. 725. In Remmer I, supra, 228, the defen-
dant was convicted by a jury of several counts of tax
evasion. After the trial, the defendant and his attorneys
learned from a newspaper article that the trial judge
and the prosecutors had acted ex parte to have the
Federal Bureau of Investigation (FBI) investigate the
potential offer of a bribe to a juror, and then did nothing
further after the FBI determined that the offer had been
made in jest. Id. The Supreme Court held that the Dis-
trict Court improperly failed to afford the defendant a
hearing with respect to the potential jury tampering,
stating that: ‘‘In a criminal case, any private communi-
cation, contact, or tampering, directly or indirectly,
with a juror during a trial about the matter pending
before the jury is, for obvious reasons, deemed pre-
sumptively prejudicial, if not made in pursuance of
known rules of the court and the instructions and direc-
tions of the court made during the trial, with full knowl-
edge of the parties. The presumption is not conclusive,
but the burden rests heavily upon the [g]overnment to
establish, after notice to and hearing of the defendant,
that such contact with the juror was harmless to the
defendant.’’ (Emphasis added.) Id., 229. Accordingly,
the Supreme Court remanded the case to the District
Court for a hearing to ‘‘determine the circumstances,
the impact thereof upon the juror, and whether or not
it was prejudicial . . . .’’12 Id., 229–30.
We next turn to Smith v. Phillips, supra, 455 U.S.
212, which arose from a federal habeas corpus petition
claiming that the petitioner had been deprived of a fair
trial by the fact that one of jurors had, at the time of
the trial, an application pending for employment as an
investigator with the Office of the District Attorney that
was prosecuting him. Although the trial prosecutors
became aware of the juror’s pending employment appli-
cation, they did not inform the petitioner or the trial
court of that fact until after the trial ended with a guilty
verdict. Id., 212–13. After a hearing, the state trial court
found that the juror’s application ‘‘ ‘was indeed an indis-
cretion’ but that it ‘in no way reflected a premature
conclusion as to the [habeas petitioner’s] guilt, or preju-
dice against [him], or an inability to consider the guilt
or innocence of the [habeas petitioner] solely on the
evidence.’ ’’ Id., 213–14. In holding that the petitioner
was not entitled to a new trial, the Supreme Court cited
Remmer I, supra, 347 U.S. 229, as illustrative of the
proposition that it ‘‘has long held that the remedy for
allegations of juror partiality is a hearing in which the
defendant has the opportunity to prove actual bias,’’13
and the court stated that Remmer I ‘‘recognized the
seriousness not only of the attempted bribe, which it
characterized as ‘presumptively prejudicial,’ but also of
the undisclosed investigation,’’ but nevertheless ‘‘did
not require a new trial like that ordered in this case.
Rather, the [Supreme] Court instructed the trial judge
to ‘determine the circumstances, the impact thereof
upon the juror, and whether or not [they were] prejudi-
cial, in a hearing with all interested parties permitted to
participate.’ . . . In other words, the [Supreme] Court
ordered precisely the remedy which was accorded by
[the state court] in this case.’’14 (Citation omitted;
emphasis altered.) Smith v. Phillips, supra, 215–16.
The final case in this trilogy is United States v. Olano,
supra, 507 U.S. 737, wherein the Supreme Court con-
cluded that the presence of alternate jurors during jury
deliberations, in violation of rule 24 (c) of the Federal
Rules of Criminal Procedure, was ‘‘not the kind of error
that ‘affect[s] substantial rights,’ ’’ and, thus, did not
require reversal under the federal plain error rule. See
Fed. R. Crim. P. 52 (b). In so concluding, the Supreme
Court observed that ‘‘[w]e generally have analyzed out-
side intrusions upon the jury for prejudicial impact,’’
describing Remmer I, supra, 347 U.S. 227, as a ‘‘prime
example,’’ and citing Smith v. Phillips, supra, 455 U.S.
217, for a ‘‘summar[y]’’ of the court’s ‘‘ ‘intrusion’ juris-
prudence,’’ particularly the proposition that ‘‘ ‘[d]ue pro-
cess does not require a new trial every time a juror has
been placed in a potentially compromising situation.’ ’’
United States v. Olano, supra, 738. In Olano, the
Supreme Court stated that ‘‘[t]here may be cases where
an intrusion should be presumed prejudicial . . . but
a presumption 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?’’ (Citations omitted.) Id., 739; see also id. (‘‘[w]e
cannot imagine why egregious comments by a bailiff
to a juror [Parker v. Gladden, 385 U.S. 363, 87 S. Ct. 468,
17 L. Ed. 2d 420 [1966] or an apparent bribe followed by
an official investigation [Remmer I, supra, 277] should
be evaluated in terms of ‘prejudice,’ while the mere
presence of alternate jurors during jury deliberations
should not’’ [emphasis omitted]). In Olano, the Supreme
Court held that the presence of the alternate jurors did
not require reversal under the federal plain error rule
because, although the alternates might ‘‘[i]n theory . . .
prejudice a defendant’’ by ‘‘ ‘chilling’ ’’ deliberations or
improperly participating therein, there was no evidence
on the record that they did so, particularly given the
presumption that they would have followed the trial
judge’s instruction not to participate. United States v.
Olano, supra, 739–41. The court also stated that it did
not ‘‘think that the mere presence of alternate jurors
entailed a sufficient risk of ‘chill’ to justify a presump-
tion of prejudice . . . .’’ Id., 741; see also id.
(‘‘[w]hether the [g]overnment could have met its burden
of showing the absence of prejudice . . . if [the]
respondents had not forfeited their claim of error, is
not at issue here’’).
The Supreme Court’s decisions in Phillips and Olano
created a great deal of uncertainty with respect to the
continuing viability of the Remmer presumption, lead-
ing to a split among the federal Circuit Courts nation-
ally, and to inconsistencies in our own case law. This
conflict was brought to the fore locally in State v.
Rhodes, supra, 248 Conn. 40, wherein the defendant
sought a new trial on the ground of juror misconduct,
namely, multiple conversations about the trial between
a juror and her incarcerated boyfriend. The defendant
in Rhodes argued that, under Remmer I and State v.
Rodriguez, 210 Conn. 315, 325–26, 554 A.2d 1080 (1989),
the federal due process clause ‘‘requires the state to
establish the harmlessness of any juror misconduct
beyond a reasonable doubt.’’15 State v. Rhodes, supra,
48. In so arguing, the defendant invited the court to
‘‘reconsider our precedent that places the burden on
the defendant to show that he or she was actually preju-
diced by the juror misconduct when the trial court is
in no way responsible for the impropriety.’’16 Id.; see,
e.g., State v. Newsome, 238 Conn. 588, 628, 682 A.2d
972 (1996); Asherman v. State, 202 Conn. 429, 442, 521
A.2d 578 (1987). In response, the state relied on Smith
v. Phillips, supra, 455 U.S. 215, for the proposition that
‘‘more recently, the United States Supreme Court has
indicated that [Remmer I] stands only for the proposi-
tion that a defendant is entitled to a hearing at which
the defendant bears the burden of proving actual preju-
dice.’’ State v. Rhodes, supra, 49; see also id., 49–50
n.16 (describing circuit split on this issue). This court,
however, declined ‘‘to revisit [its] prior case law regard-
ing the burden or standard of proof in juror misconduct
cases because the defendant cannot prevail, even under
the rule he urges us to adopt.’’ Id., 50. We subsequently
declined similar invitations to address this issue in two
recent cases. See State v. Dixon, supra, 318 Conn. 507–
508; State v. Osimanti, supra, 299 Conn. 38–39 n.32;
see also State v. Walker, 80 Conn. App. 542, 557 and n.8,
835 A.2d 1058 (2003) (discussing Rhodes and collecting
cases), cert. denied, 268 Conn. 902, 845 A.2d 406 (2004).
In resolving this conflict in our case law, we review
other jurisdictions’ approaches to the continuing viabil-
ity of the Remmer presumption in light of Phillips and
Olano. Three federal Circuit Courts, namely, the United
States Courts of Appeals for the Sixth, Fifth, and District
of Columbia Circuits, hold that the Remmer presump-
tion has been significantly modified or overruled. The
Sixth Circuit takes the most extreme position, conclud-
ing that the Remmer presumption is a completely dead
letter because Smith v. Phillips, supra, 455 U.S. 215,
stands for the proposition that ‘‘[Remmer I] does not
govern the question of the burden of proof where poten-
tial jury partiality is alleged. Instead, [Remmer I] only
controls the question of how the [D]istrict [C]ourt
should proceed where such allegations are made, i.e.,
a hearing must be held during which the defendant is
entitled to be heard. . . . In light of Phillips, the bur-
den of proof rests upon a defendant to demonstrate
that unauthorized communications with jurors resulted
in actual juror partiality. Prejudice is not to be pre-
sumed.’’17 (Citation omitted.) United States v. Pennell,
737 F.2d 521, 532 (6th Cir. 1984), cert. denied, 469 U.S.
1158, 105 S. Ct. 906, 83 L. Ed. 2d 921 (1985); see also,
e.g., United States v. Orlando, 281 F.3d 586, 597–98 (6th
Cir.) (reaching same conclusion), cert. denied sub nom.
Daniels v. United States, 537 U.S. 947, 123 S. Ct. 411,
154 L. Ed. 2d 290 (2002). The Fifth Circuit does not
take such an extreme approach, but nonetheless has
significantly circumscribed the Remmer presumption
within its borders, stating that it ‘‘cannot survive Phil-
lips and Olano,’’ and that its use is a discretionary
decision for the trial court, upon a showing of sufficient
prejudice.18 United States v. Sylvester, 143 F.3d 923, 934
(5th Cir. 1998). The District of Columbia Circuit Court
of Appeals has adopted a similar approach. See United
States v. Williams-Davis, 90 F.3d 490, 495–97 (D.C. Cir.
1996) (observing that Phillips and Olano ‘‘narrow[ed]’’
Remmer I, thus affording trial court discretion to deter-
mine whether ‘‘any particular intrusion showed enough
of a likelihood of prejudice to justify assigning the gov-
ernment a burden of proving harmlessness’’ in case
concerning encouragement from juror’s husband to
‘‘nail’’ defendant [internal quotation marks omitted]),
cert. denied, 519 U.S. 1128, 117 S. Ct. 986, 136 L. Ed.
2d 867 (1997).
In our view, these courts’ understanding of Phillips
to alter or eviscerate the Remmer presumption is wholly
inconsistent with the context of the Phillips opinion
and well established norms for the reading of judicial
opinions. As aptly noted by the United States Court
of Appeals for the Fourth Circuit in United States v.
Lawson, 677 F.3d 629, 642 (4th Cir.), cert. denied sub
nom. Gibert v. United States, U.S. , 133 S. Ct.
393, 184 L. Ed. 2d 162 (2012), Phillips is factually and
procedurally distinct from Remmer I. Factually, Phil-
lips concerned juror impairment or predisposition,
rather than third-party jury tampering or extrinsic influ-
ences on the jury, and legally, Phillips was a federal
habeas corpus review of a state court proceeding rather
than direct appellate review of a trial court’s actions.
See Smith v. Phillips, supra, 455 U.S. 215–18. Moreover,
although the Supreme Court stated in Phillips that ‘‘the
remedy for allegations of juror partiality is a hearing
in which the defendant has the opportunity to prove
actual bias’’ it did so after acknowledging the Remmer
presumption and citing Remmer I approvingly as requir-
ing only a hearing, rather than a new trial, as a remedy
for claims of improper juror influence. Id., 215–17. Noth-
ing at issue before the Supreme Court in Phillips con-
cerned the allocation of the burden of proof or
production at such hearings. Indeed, to read Phillips
as categorically eliminating the Remmer presumption is
inconsistent with the Supreme Court’s later recognition
that ‘‘[t]here may be cases where an intrusion should
be presumed prejudicial . . . .’’ (Citations omitted;
emphasis added.) United States v. Olano, supra, 507
U.S. 739.
Particularly given its factually and legally inapposite
nature, interpreting the Supreme Court’s absolute
silence on this point in Phillips as categorically elimi-
nating the Remmer presumption contravenes the well
established maxim that, ‘‘absent clear indications from
the Supreme Court itself, lower courts should not lightly
assume that a prior decision has been overruled sub
silentio merely because its reasoning and result appear
inconsistent with later cases.’’ Williams v. Whitley, 994
F.2d 226, 235 (5th Cir.), cert. denied, 510 U.S. 1014, 114
S. Ct. 608, 126 L. Ed. 2d 572 (1993); see also, e.g., Shalala
v. Illinois Council on Long Term Care, Inc., 529 U.S.
1, 18, 120 S. Ct. 1084, 146 L. Ed. 2d 1 (2000) (Supreme
Court ‘‘does not normally overturn, or so dramatically
limit, earlier authority sub silentio’’); United States v.
Mitchell, 690 F.3d 137, 143–45 (3d Cir. 2012) (concluding
that, despite some courts’ determinations to contrary,
silence in Phillips did not foreclose use of implied bias
doctrine because conclusion otherwise would have
‘‘Supreme Court abandon a centuries-old doctrine
sub silentio’’).
Indeed, the majority of the federal Circuit Courts hold
that the Remmer presumption is still good law with
respect to egregious external interference with the
jury’s deliberative process via private communication,
contact, or tampering with jurors about the matter. In
particular, we observe that the United States Court of
Appeals for the Second Circuit19 has consistently fol-
lowed Remmer I and considers it ‘‘well-settled that any
extra-record information of which a juror becomes
aware is presumed prejudicial. . . . A government
showing that the information is harmless will overcome
this presumption.’’20 (Citation omitted.) United States
v. Greer, 285 F.3d 158, 173 (2d Cir. 2002); see also, e.g.,
United States v. Farhane, 634 F.3d 127, 168–69 (2d Cir.)
(government rebutted Remmer presumption in case
arising from juror’s Google search that revealed code-
fendant’s guilty plea), cert. denied sub nom. Sabir v.
United States, U.S. , 132 S. Ct. 833, 181 L. Ed. 2d
542 (2011); United States v. Weiss, 752 F.2d 777, 782–83
(2d Cir.) (government rebutted Remmer presumption
with respect to contamination allegations arising from
juror bringing accounting textbook excerpt into deliber-
ations), cert. denied, 474 U.S. 944, 106 S. Ct. 308, 88 L.
Ed. 2d 285 (1985); but see United States v. Morrison,
580 Fed. Appx. 20, 21 n.1 (2d Cir. 2014) (summary order
noting that government conceded applicability of
Remmer presumption and declining to address circuit
split ‘‘[b]ecause that issue has not been presented’’).
Similarly, the Fourth Circuit holds that ‘‘once a defen-
dant introduces evidence that there was an extrajudicial
communication that was more than innocuous, the
Remmer presumption is triggered automatically, and
[t]he burden then shifts to the [government] to prove
that there exists no reasonable possibility that the jury’s
verdict was influenced by an improper communica-
tion.’’ (Internal quotation marks omitted.) United States
v. Lawson, supra, 677 F.3d 642; see also id., 641–43
(discussing circuit cases holding Remmer presumption
applicable in cases concerning attempts to bribe jurors,
comments made by restaurant owner to dining jurors
about case, and juror’s contact of media outlets during
penalty phase of capital trial, in applying presumption
to juror’s unauthorized use of Internet encyclopedia
during deliberations).
The United States Courts of Appeals for the First,
Third, Seventh, Eighth, Ninth, and Tenth Circuits accord
with the approaches of the Second and Fourth Circuits
with respect to serious, or not ‘‘innocuous’’ claims of
external influence, such as jury tampering, bribery, or
use of extra-record evidence.21 See, e.g., Stouffer v.
Trammell, 738 F.3d 1205, 1214 n.5 (10th Cir. 2013);
United States v. Honken, 541 F.3d 1146, 1167 (8th Cir.
2008), cert. denied, 558 U.S. 1091, 130 S. Ct. 1011, 175
L. Ed. 2d 618 (2009); United States v. Al-Shahin, 474
F.3d 941, 949 (7th Cir. 2007); United States v. Ruther-
ford, 371 F.3d 634, 643 (9th Cir. 2004); United States
v. Lloyd, 269 F.3d 228, 238–39 (3d Cir. 2001); United
States v. Boylan, 898 F.2d 230, 261 (1st Cir.), cert.
denied, 498 U.S. 849, 111 S. Ct. 139, 112 L. Ed. 2d 106
(1990); see also United States v. Tejeda, 481 F.3d 44,
48–52 (1st Cir.) (declining to apply Remmer presump-
tion when older man, later identified to be defendant’s
grandfather, made throat-slitting gesture in courtroom
that was witnessed by two jurors because gesture did
not pertain to evidence in case and court did ‘‘not want
to create an incentive for such gesturing’’ by individuals
associated with criminal defendants), cert. denied, 552
U.S. 1021, 128 S. Ct. 612, 169 L. Ed. 2d 393 (2007); United
States v. Boylan, supra, 261 (limiting applicability of
Remmer presumption ‘‘to cases of significant ex parte
contacts with sitting jurors or those involving aggra-
vated circumstances’’).
Finally, many of our sister states that have considered
the issue22 hold that the Remmer presumption remains
good law in addressing claims of extrajudicial commu-
nications or jury tampering.23 See State v. Miller, 178
Ariz. 555, 559 n.2, 875 P.2d 788 (1994); People v. Runge,
234 Ill. 2d 68, 103–104, 917 N.E.2d 940 (2009), cert.
denied, 559 U.S. 1108, 130 S. Ct. 2402, 176 L. Ed. 2d 925
(2010); Ramirez v. State, 7 N.E.3d 933, 936–38 (Ind.
2014); Jenkins v. State, 375 Md. 284, 317–19, 825 A.2d
1008 (2003); Meyer v. State, 119 Nev. 554, 564–65, 80
P.3d 447 (2003); Trice v. Baldwin, 140 Or. App. 300,
304–306, 915 P.2d 456 (1996); see also Hill v. United
States, 622 A.2d 680, 684 (D.C. 1993) (‘‘[W]here, follow-
ing a hearing, the defendant has established a substan-
tial likelihood of actual prejudice from the unauthorized
contact . . . all reasonable doubts [about the juror’s
ability to render an impartial verdict must] be resolved
in favor of the accused. . . . In this sense [the] alloca-
tion of the burden [of proving harmlessness to the gov-
ernment in Remmer I] remains the law . . . .’’
[Citations omitted; internal quotation marks omitted.]);
Greer v. Thompson, 281 Ga. 419, 421, 637 S.E.2d 698
(2006) (questions continued viability of Remmer pre-
sumption, but notes similar presumption as matter of
state criminal procedure with respect to unauthorized
communication to juror).
Having considered these authorities in light of our
reading of the United States Supreme Court opinions,
we conclude 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 tampering24 with jurors that relates directly to
the matter being tried.25 We agree with the observation,
made by the Court of Appeals of Maryland in rejecting
the argument that ‘‘the Remmer presumption . . . has
been eroded in cases where egregious juror and witness
misconduct occurs,’’ that the Remmer presumption
ensures ‘‘that a criminal defendant receives adequate
due process. A right as fundamental as the right to an
impartial jury cannot be compromised by even the hint
of possible bias or prejudice that is not affirmatively
rebutted.’’ (Emphasis omitted.) Jenkins v. State, supra,
375 Md. 319; see id., 321–25 (applying presumption and
requiring new trial when juror and witness sought each
other out at weekend religious retreat held midtrial,
had lunch together, and sat next to each other during
seminar, particularly given court’s no contact instruc-
tions, despite lack of evidence that they had discussed
case). Thus, the ‘‘burden properly rests on the state for
several reasons: the overarching importance of pro-
tecting the defendant’s constitutional right to a fair trial,
the continuing maintenance of the integrity of the jury
system and the necessity of continuing to preserve the
trust reposed in criminal jury verdicts.’’ State v. Rodri-
guez, supra, 210 Conn. 328.
We emphasize, however, that the burden remains on
the defendant to show prima facie entitlement to the
Remmer presumption; evidence, rather than specula-
tion, is required to shift the burden of proof to the
state.26 See State v. Savage, 161 Conn. 445, 450, 290 A.2d
221 (1971) (declining to apply Remmer presumption
when ‘‘the trial court fully developed the facts by inter-
rogating the jurors in question, and as a result of this
interrogation the court concluded that there had been
no conversation between these jurors, the complainant
and her mother’’); State v. Zapata, 119 Conn. App. 660,
686–87, 989 A.2d 626 (declining to apply Remmer pre-
sumption because ‘‘[t]here are no factual findings in
the record—indeed, no facts in the record—to support
the contention that [the juror’s] sibling knew the victim’’
and defendant’s argument was ‘‘predicated on assump-
tions’’), cert. denied, 296 Conn. 906, 922 A.2d 1136
(2010), overruled on other grounds by State v. Dixon,
318 Conn. 495, 509 n.4, 122 A.3d 542 (2015); see also
Ramirez v. State, supra, 7 N.E.3d 939 (defendant enti-
tled to presumption of prejudice ‘‘only after making
two showings, by a preponderance of the evidence:
[1] [extrajudicial] contact or communications between
jurors and unauthorized persons occurred, and [2] the
contact or communications pertained to the matter
before the jury’’). Accordingly, because there is no dis-
pute in the present case that the comments made by
the defendant’s mother to J concerned the veracity of
a witness and, therefore, directly related to the matter
before the jury, we conclude that the Remmer presump-
tion was triggered in this case.
Finally, the Remmer presumption is ‘‘not conclusive.
The burden rests heavily on the government to establish
that the contact was harmless.’’ United States v. Moore,
641 F.3d 812, 828 (7th Cir.), cert. denied, U.S. ,
132 S. Ct. 436, 181 L. Ed. 2d 283 (2011). The state bears
this ‘‘heavy burden’’ of proving that there was no ‘‘ ‘rea-
sonable possibility’ ’’ that the tampering or misconduct
affected the jury’s impartiality. United States v. Ruther-
ford, supra, 371 F.3d 641; accord United States v. Cheek,
94 F.3d 136, 142 (4th Cir. 1996); State v. Asherman, 193
Conn. 695, 741–42, 478 A.2d 227 (1984) (state proved
improper experimentation by jury harmless beyond rea-
sonable doubt), cert. denied, 470 U.S. 1050, 105 S. Ct.
1749, 84 L. Ed. 2d 814 (1985).
II
Accordingly, we now turn to the defendant’s claim
that the state did not meet its ‘‘ ‘heavy burden’ ’’ of
rebutting the Remmer presumption in this case. The
defendant argues that the trial court improperly relied
on J’s assurances of impartiality in finding that the
misconduct in the present case did not deprive him of
a trial before a fair and impartial jury. Specifically, the
defendant claims that the record demonstrates that J
was not candid with the court when he failed to disclose
numerous ‘‘critical’’ details about his encounter with
the defendant’s mother, namely, his concern about the
presence of the two young women with cell phones
who might record the incident to prove jury tampering
and cause a mistrial. The defendant also contends that
the ‘‘close familial relationship’’ between himself and
the person who tampered with the jury was ‘‘extraordi-
narily prejudicial’’ because it would lead jurors to sus-
pect that the defendant instigated the jury tampering
in an effort to cause a mistrial, leading them to resent
him in their deliberations. The defendant further argues
that the jury itself committed misconduct by discussing
the encounter among themselves prior to the court sum-
moning them for voir dire. He also posits that, ‘‘where
[J] and [the] other jurors had already discussed the
matter, there is reason to believe [the] jurors would
disregard the court’s instruction during the hearing not
to discuss the matter, if only briefly and reference [the]
defendant’s mother.’’
In response, the state argues that it satisfied its bur-
den of proving that the encounter between J and the
defendant’s mother did not violate the defendant’s right
to a fair trial before an impartial jury. The state empha-
sizes that J’s credibility was a matter for the trial court
to assess, and that the record does not indicate that he
intentionally withheld information from the court. The
state maintains that J was not sure whether the two
women outside the courthouse were videotaping the
encounter, thus, furnishing a reason for not conveying
that fact to the trial court. We agree with the state, and
conclude that the record and the findings of the trial
court demonstrate that the state carried its burden of
proving that there was no reasonable possibility that
the actions of the defendant’s mother affected the
jury’s impartiality.
Having reviewed the record in this case, we are satis-
fied that the trial court did not abuse its discretion in
denying the defendant’s motion for a mistrial.27 The
trial court, with its superior vantage point to assess
the credibility of the testifying jurors, reasonably could
have believed the testimony of J and the other jurors
that the actions of the defendant’s mother did not affect
their impartiality or their ability to decide the case based
solely on the evidence admitted at trial. ‘‘The nature
and quality of the juror’s assurances is of paramount
importance; the juror must be unequivocal about his
or her ability to be fair and impartial.’’ State v. Osimanti,
supra, 299 Conn. 36. Thus, we note that the transcript
does not reveal any equivocation by the jurors in
attesting to their continued impartiality. Evaluation of
any equivocation evinced in tone or manner remains
in the province of the trial judge.28 See, e.g., State v.
Newsome, supra, 238 Conn. 631; State v. Cubano, 203
Conn. 81, 92, 523 A.2d 495 (1987); see also United States
v. Farhane, supra, 634 F.3d 169–70 (The trial court
reasonably concluded that a juror’s discovery of a code-
fendant’s guilty plea through an impermissible Internet
search did not require a mistrial when ‘‘no juror indi-
cated that he or she would have a problem following
. . . instructions’’ to consider only evidence admitted
at trial and not to ‘‘ ‘draw any inference, favorable or
unfavorable, toward the government or the defendant
from the fact that any person in addition to the defen-
dant is not on trial here. You also may not speculate
as to the reasons why other persons are not on trial.’ ’’).
Further, J’s act of coming forward on his own supports
the trial court’s assessment of his credibility and lack
of animus toward the defendant. Had 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.’’ State v. Osimanti, supra, 37. To the
extent that the defendant relies on J’s failure to mention
during voir dire the presence of the two young women
with cell phones or his concern for a mistrial, the trial
court reasonably could have attributed those omissions
to J’s lack of certitude on that point, given that cell
phones with cameras are ubiquitous, and the testimony
of S and L that J’s observations about the women were
vague and speculative.
Finally, some of the jurors, specifically, J himself
and L, expressed understanding for the actions of the
defendant’s mother, given her obvious concern for the
defendant’s future. This strongly supports the trial
court’s determination that the jurors were not biased
against the defendant as a result of his mother’s
actions.29 Cf. State v. Rhodes, supra, 248 Conn. 50–51
(The juror’s improper conversations with her boyfriend
‘‘were not prejudicial to the defendant’’ because they
‘‘provided [her] with reasons to view the state’s case
with suspicion. [The boyfriend’s] other trial-related
comments to [the juror] also could not reasonably be
construed as harmful or otherwise unfavorable to the
defendant.’’). We, therefore, conclude that the state has
established that there is no reasonable possibility that
the actions of the defendant’s mother affected the jury’s
ability to act fairly and impartially in deciding this case.
Accordingly, the trial court did not abuse its discretion
in denying the defendant’s motion for a mistrial.
The judgment is affirmed.
In this opinion the other justices concurred.
1
The defendant appealed from the judgment of the trial court to the
Appellate Court, and we transferred the appeal to this court pursuant to
General Statutes § 51-199 (c) and Practice Book § 65-1.
2
We note that the name of this individual is not apparent from the record.
3
In accordance with our usual practice, we identify jurors by initial in
order to protect their privacy interests. See, e.g., State v. Osimanti, 299
Conn. 1, 30 n.28, 6 A.3d 790 (2010).
4
Additional voir dire questioning by the state established that the encoun-
ter occurred on the street near the courthouse parking lot, and that J recog-
nized the defendant’s mother from the courtroom. After describing her
appearance, J testified that he walked ‘‘slower’’ because of his physical
limitations, and that ‘‘[s]he came up behind me and she said, boy, I hope
everything turns out okay, and then I looked and then I recognized her.’’
5
The trial court and J engaged in the following colloquy:
‘‘The Court: I’ll probably have to interview each of [the other jurors], but
speaking only for you, let me ask you this: As you know, the rule in this
and in every case, civil or criminal, the jury must make its decision based
exclusively on the evidence presented in court.
‘‘[J]: Of course.
‘‘The Court: I, of course, wish lots of things, it’s certainly not proper that
anybody connected with any side approach you and tell you anything. We
know from sad experience this has happened prior times in the history of
the world, and the question, you are still under sworn duty to decide the
case based entirely on the evidence and only on the evidence presented in
court, so do you feel that your ability to do so has in any way been com-
promised?
‘‘[J]: Not at all.
‘‘The Court: You feel that you could—you haven’t heard all the evi-
dence yet?
‘‘[J]: No.
‘‘The Court: You could make your decision fair and square based upon
the evidence?
‘‘[J]: Correct.’’
6
The trial court advised the jury that: ‘‘Ladies and gentlemen, I am sorry
to delay things here, but there is something that I have to do. This won’t
come as any surprise to you from what I understand, but I understand [J]
may—and no criticism of him at all—may have made some statement to
you about an incident that apparently happened yesterday. I need to question
each of you about it to ensure that you could be fair, continue to be fair
and impartial jurors and decide the case based exclusively on the evidence
presented in court, and I have talked with [J] and [E], and I’m going to try
to briefly individually voir dire each of the rest of you. In the meantime,
and, in fact, throughout the rest of this proceeding, please do not discuss
this incident among yourselves or with anyone else.’’
7
In further questioning by defense counsel about whether J had ‘‘said
something about a mistrial,’’ S stated: ‘‘He didn’t, he wasn’t sure whether
that—what they were—you know, he wasn’t sure whether he was being
taped so they could say mistrial because of him talking to the [defendant’s
mother], so he wanted to say something this morning.’’ S stated that J did
not explain his understanding of the term ‘‘mistrial’’ to the other members
of the jury.
8
In assuring the trial court that he would decide the case based solely
on the evidence presented in court in accordance with the juror’s oath, L
acknowledged his assumption that ‘‘everybody involved in the case has very
high emotions about it and, you know, has a lot of skin in the game, has
big stakes in their lives concerning it, but that’s not what we’re being pre-
sented. We’re being presented with the evidence of what happened and
that’s what we have to decide on.’’
9
In denying the defendant’s renewed motion for a mistrial premised on
his disagreement with the findings underlying its initial ruling, the trial court
emphasized that it did not find or suggest that the defendant or his mother
had intentionally tried to provoke a mistrial, but rather, that the defendant
‘‘shouldn’t be the beneficiary if his mother approaches a member of the jury
with this kind of communication.’’ The trial court reiterated its view that
the actions of the defendant’s mother were ‘‘an outrageous act,’’ and that
‘‘for a mistrial to result . . . would be outrageous unless the jury had, in
fact, been contaminated. And I have found, after a thorough voir dire by
both court and counsel that the jury has not, in fact, been contaminated.’’
10
We note that the defendant does not appear to challenge the manner
or scope of the hearing in which the trial court considered the allegation
of jury tampering in accordance with State v. Brown, supra, 235 Conn. 526,
under which a ‘‘trial court must conduct a preliminary inquiry, on the record,
whenever it is presented with any allegations of jury misconduct in a criminal
case, regardless of whether an inquiry is requested by counsel. Although
the form and scope of such an inquiry lie within a trial court’s discretion,
the court must conduct some type of inquiry in response to allegations of
jury misconduct. That form and scope may vary from a preliminary inquiry
of counsel, at one end of the spectrum, to a full evidentiary hearing at the
other end of the spectrum, and, of course, all points in between. Whether
a preliminary inquiry of counsel, or some other limited form of proceeding,
will lead to further, more extensive, proceedings will depend on what is
disclosed during the initial limited proceedings and on the exercise of the
trial court’s sound discretion with respect thereto.’’ (Footnote omitted.)
‘‘We recognize that the trial judge has a superior opportunity to assess the
proceedings over which he or she personally has presided . . . and thus
is in a superior position to evaluate the credibility of allegations of jury
misconduct, whatever their source. There may well be cases, therefore, in
which a trial court will rightfully be persuaded, solely on the basis of the
allegations before it and the preliminary inquiry of counsel on the record,
that such allegations lack any merit. In such cases, a defendant’s constitu-
tional rights may not be violated by the trial court’s failure to hold an
evidentiary hearing, in the absence of a timely request by counsel.’’ (Citations
omitted.) Id., 527–28; see also State v. Dixon, supra, 318 Conn. 506.
11
The state further argues that the hearing held by the trial court in this
case complied with the mandates of Remmer I, supra, 347 U.S. 229, because
‘‘all parties were aware of the approach by the defendant’s mother to [J]
immediately after it occurred,’’ and the court ‘‘conducted a thorough hearing
in the defendant’s presence and with his participation in order to determine
whether the defendant’s right to an unbiased jury was compromised.’’ As
noted previously; see footnote 10 of this opinion; the defendant does not
challenge the scope of the hearing in this case, beyond the allocation of the
burden of proof.
12
On appeal after remand, the Supreme Court concluded that the bribe
offer and subsequent FBI investigation deprived the defendant of a fair trial.
Remmer II, supra, 350 U.S. 382. After reviewing the entire record, the
Supreme Court emphasized that the evidence showed that the juror had
been under ‘‘ ‘terrific pressure,’ ’’ and that the ‘‘evidence, covering the total
picture, reveals such a state of facts that neither [the juror] nor anyone else
could say that he was not affected in his freedom of action as a juror. From
[the juror’s] testimony it is quite evident that he was a disturbed and troubled
man from the date of the [bribe offer] until after the trial. Proper concern
for protecting and preserving the integrity of our jury system dictates against
our speculating that the [FBI] agent’s interview with [the juror], whatever
the [g]overnment may have understood its purpose to be, dispersed the
cloud created by [the bribe offer].’’ Id., 381; see also id., 382 (observing that
juror ‘‘had been subjected to extraneous influences to which no juror should
be subjected, for it is the law’s objective to guard jealously the sanctity of
the jury’s right to operate as freely as possible from outside unauthorized
intrusions purposefully made’’).
13
To this end, the Supreme Court rejected the petitioner’s reliance on the
doctrine of imputed bias in support of his contention that ‘‘a court cannot
possibly ascertain the impartiality of a juror by relying solely upon the
testimony of the juror in question.’’ Smith v. Phillips, supra, 455 U.S. 215.
14
The court further observed that, if due process required ‘‘a new trial
every time a juror has been placed in a potentially compromising situation
. . . few trials would be constitutionally acceptable. The safeguards of juror
impartiality, such as voir dire and protective instructions from the trial
judge, are not infallible; it is virtually impossible to shield jurors from every
contact or influence that might theoretically affect their vote. Due process
means a jury capable and willing to decide the case solely on the evidence
before it, and a trial judge ever watchful to prevent prejudicial occurrences
and to determine the effect of such occurrences when they happen. Such
determinations may properly be made at a hearing like that ordered in
[Remmer I] and held in this case.’’ (Emphasis added.) Smith v. Phillips,
supra, 455 U.S. 217.
15
This court applied the Remmer presumption in numerous cases of jury
misconduct or tampering through the 1989 decision in State v. Rodriguez,
supra, 210 Conn. 319–27, which held that the state had rebutted the presump-
tion of prejudice arising from a sexual assault defendant’s act of approaching
a known juror at a food truck outside the courthouse before the trial began.
See also, e.g., State v. Asherman, 193 Conn. 695, 736, 478 A.2d 227 (1984)
(The court cited Remmer I and stated 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. . . . A presump-
tion of prejudice may also arise in cases involving communications between
a juror and third persons. . . . But unless the nature of the misconduct on
its face implicates [the defendant’s] constitutional rights the burden is on
[him] to show that the error of the trial court is harmful.’’ [Citations omit-
ted.]), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985).
Interestingly, in State v. Rodriguez, supra, 327–28, when applying the pre-
sumption of prejudice, this court also cited Smith v. Phillips, supra, 455
U.S. 215, and State v. Almeda, 189 Conn. 303, 313, 455 A.2d 1326 (1983), for
the proposition that ‘‘the United States Supreme Court [has] ‘long held that
the remedy for allegations of juror partiality is a hearing in which the
defendant has the opportunity to prove actual bias.’ ’’ (Emphasis added.)
16
This line of cases cited Smith v. Phillips, supra, 455 U.S. 215, as standing
for the proposition that the defendant bears the burden of proving actual
bias at a hearing considering allegations of juror misconduct, presuming
prejudice only when the misconduct was ‘‘authorized by the trial court,’’
whose instructions the jurors are presumed to follow. State v. Castonguay,
194 Conn. 416, 435–36 n.19, 481 A.2d 56 (1984); compare id., 435–36
(remanding for hearing at which state would bear burden of proving harm-
lessness beyond reasonable doubt after trial court improperly instructed
jury that it could discuss case prior to deliberations), with State v. Newsome,
238 Conn. 588, 628–30, 682 A.2d 972 (1996) (citing, inter alia, Castonguay
and Phillips in requiring defendant to prove prejudice arising from presub-
mission discussion by jury and single juror’s views of crime scene), and
State v. Almeda, 189 Conn. 303, 311–14, 455 A.2d 1326 (1983) (citing Phillips
in remanding case for hearing at which defendant would have opportunity
to prove actual bias arising from jury foreman’s failure to disclose during
voir dire his significant connections with law enforcement).
17
Rejecting the defendant’s attempt to distinguish Smith v. Phillips, supra,
455 U.S. 218, as arising from a federal habeas corpus challenge to a state
court proceeding, rather than a direct review of a federal proceeding as in
Remmer I, the Sixth Circuit emphasized that ‘‘[Remmer I] placed a heavy
burden of proof upon the government. Accordingly, Phillips worked a sub-
stantive change in the law.’’ United States v. Pennell, 737 F.2d 521, 532–34
and n.10 (6th Cir. 1984), cert. denied, 469 U.S. 1158, 105 S. Ct. 906, 83 L.
Ed. 2d 921 (1985).
18
The Fifth Circuit requires that ‘‘the trial court . . . first assess the sever-
ity of the suspected intrusion; only when the court determines that prejudice
is likely should the government be required to prove its absence. This rule
comports with our [long-standing] recognition of the trial court’s consider-
able discretion in investigating and resolving charges of jury tampering.’’
United States v. Sylvester, 143 F.3d 923, 934 (5th Cir. 1998); see also id.,
934–35 (concluding that trial court improperly conducted ex parte inquiry
into jury tampering and remanding case for ‘‘a hearing to determin[e]
whether the jury was prejudiced by the outside contacts’’ when multiple
jurors received telephone calls about case); compare United States v. Smith,
354 F.3d 390, 395–96 (5th Cir. 2003) (trial court properly declined to impose
presumption given ‘‘de minimis intrusion’’ when jury learned of existence
of transcript that was not in evidence because they did not review transcript,
and its content was cumulative of trial testimony), cert. denied, 541 U.S.
953, 124 S. Ct. 1698, 158 L. Ed. 2d 386 (2004), with United States v. Mix,
791 F.3d 603, 608–11 (5th Cir. 2015) (defendant showed sufficient likelihood
of prejudice to justify shift of burden to government when juror overheard
information in elevator about prosecutions of defendant’s colleagues).
19
‘‘In considering this circuit split, we note that it is well settled that
decisions of the Second Circuit, while not binding upon this court, neverthe-
less carry particularly persuasive weight in the resolution of issues of federal
law when the United States Supreme Court has not spoken on the point.’’
(Internal quotation marks omitted.) Dayner v. Archdiocese of Hartford, 301
Conn. 759, 783, 23 A.3d 1192 (2011).
20
In assessing the severity of the harm ‘‘[w]here an extraneous influence
is shown,’’ the Second Circuit requires the court to ‘‘apply an objective test,
assessing for itself the likelihood that the influence would affect a typical
juror. . . . A trial court’s [postverdict] determination of extra-record preju-
dice must be an objective one, focusing on the information’s probable effect
on a hypothetical average juror.’’ (Citation omitted; internal quotation marks
omitted.) United States v. Greer, 285 F.3d 158, 173 (2d Cir. 2002); see also
id. (rule 606 [b] of Federal Rules of Evidence precludes court from inquiring
about or considering degree to which extra-record information influenced
deliberations themselves, although court can consider circumstances under
which external interference occurred).
21
We note that the Eleventh Circuit has continued to apply the Remmer
presumption, while acknowledging, but declining to resolve, questions con-
cerning its continued viability. See, e.g., United States v. Siegelman, 640
F.3d 1159, 1182 n.33 (11th Cir. 2011); United States v. Ronda, 455 F.3d 1273,
1299 and n.36 (11th Cir. 2006).
22
Our research indicates that the courts of the following states apply the
Remmer presumption without having specifically considered its continuing
vitality in light of Phillips and Olano. See Smith v. State, Docket No. A-
5636, 1996 WL 596942, *4–5 (Alaska App. October 9, 1996); In re Price, 51
Cal. 4th 547, 560, 247 P.3d 929, 121 Cal. Rptr. 3d 572 (2011); Black v. State,
3 A.3d 218, 220–21 and n.8 (Del. 2010); Amazon v. State, 487 So. 2d 8, 11
(Fla.), cert. denied, 479 U.S. 914, 107 S. Ct. 314, 93 L. Ed. 2d 288 (1986);
State v. Chin, 135 Haw. 437, 446–47, 353 P.3d 979 (2015); Hodge v. Common-
wealth, 68 S.W.3d 338, 342 (Ky. 2001); State v. Compton, 66 So. 3d 619,
637–39 (La. App.), writ denied, 76 So. 3d 1177 (La. 2011); Commonwealth
v. Dixon, 395 Mass. 149, 152, 479 N.E.2d 159 (1985); State v. Erickson, 610
N.W.2d 335, 338–39 (Minn. 2000); State v. Rideout, 143 N.H. 363, 367, 725
A.2d 8 (1999); State v. Scherzer, 301 N.J. Super. 363, 487, 694 A.2d 196, cert.
denied, 151 N.J. 466, 700 A.2d 878 (1997); People v. Anderson, 123 A.D.
2d 770, 773, 507 N.Y.S.2d 246 (1986), appeal denied, 69 N.Y.2d 824, 506
N.E.2d 541, 513 N.Y.S.2d 1030 (1987); Bruckshaw v. Frankford Hospital,
619 Pa. 135, 155–56 and n.7, 58 A.3d 102 (2012); State v. Adams, 405 S.W.3d
641, 650–51 (Tenn. 2013); State v. McKeen, 165 Vt. 469, 474, 685 A.2d 1090
(1996); Lenz v. Warden, 267 Va. 318, 329, 593 S.E.2d 292, cert. denied sub
nom. Lenz v. True, 542 U.S. 953, 124 S. Ct. 2933, 159 L. Ed. 2d 836 (2004);
In the Matter of Woods, 154 Wash. 2d 400, 414, 114 P.3d 607 (2005); State v.
Babiak, Docket No. 2007AP169-CR, 2008 WL 786530, *4–5 (Wis. App. March
26, 2008), review denied, 310 Wis. 2d 707, 754 N.W.2d 850 (2008); Martinez
v. State, 128 P.3d 652, 665 and n.15 (Wyo. 2006); see also People v. Budzyn,
456 Mich. 77, 88–89, 566 N.W.2d 229 (1997) (applying burden shift as matter
of state law, requiring state to prove extraneous influence harmless beyond
reasonable doubt once defendant proves that jury was exposed to extrane-
ous influence that ‘‘created a real and substantial possibility that they could
have affected the jury’s verdict’’ by being ‘‘substantially related to a material
aspect of the case and that there is a direct connection between the extrinsic
material and the adverse verdict’’); People v. France, 436 Mich. 138, 157–58
and n.26, 461 N.W.2d 621 (1990) (describing Remmer I as ‘‘leading’’ case
and characterizing Sixth Circuit’s decision in Pennell as outlier); Robinson
v. State, 851 S.W.2d 216, 230 (Tex. Crim. App. 1991) (applying rebuttable
presumption as matter of state law), cert. denied, 512 U.S. 1246, 114 S. Ct.
2765, 129 L. Ed. 2d 879 (1994); Mize v. State, 754 S.W.2d 732, 738–39 (Tex.
App. 1988) (citing Remmer I in accord with Texas law), petition for discre-
tionary review refused (Tex. Crim. App. April 5, 1989).
The highest courts of Maine and New Jersey have identified, but not yet
resolved this issue. See State v. Cheney, 55 A.3d 473, 480–81 (Me. 2012);
State v. Harris, 181 N.J. 391, 505–506, 859 A.2d 364 (2004), cert. denied,
545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).
23
We note that some of our sister states have concluded that the Remmer
presumption no longer is good law. We note that Kansas and Ohio follow
the Sixth Circuit’s unpersuasive reading of Remmer I and Phillips. See State
v. Jones, 283 Kan. 186, 206–207, 151 P.3d 22 (2007); State v. Phillips, 74
Ohio St. 3d 72, 88–89, 656 N.E.2d 643 (1995), cert. denied, 517 U.S. 1213,
116 S. Ct. 1835, 134 L. Ed. 2d 938 (1996). Colorado, New Mexico, and Idaho
deem the Remmer presumption superfluous and outdated, instead adopting
an objective analysis centered on the hypothetical average juror in assessing
the severity of juror misconduct or tampering. These state courts focus on
rules of evidence that render the presumption difficult to rebut by prohibiting
examination of jurors about their thought processes or deliberations. See
People v. Wadle, 97 P.3d 932, 935–36 (Colo. 2004); Roll v. Middleton, 115
Idaho 833, 838–39, 771 P.2d 54 (App. 1989); Kilgore v. Fuji Heavy Industries,
Ltd., 148 N.M. 561, 569, 240 P.3d 648 (2010). The South Carolina Supreme
Court appears to hold that the burden is on the defendant to approve
actual bias, but does not mention the presumption, despite citations to both
Remmer I and Phillips. State v. Bryant, 354 S.C. 390, 395, 581 S.E.2d 157
(2003) (per curiam).
South Dakota’s most recent decision appears to abandon the Remmer
presumption without saying so, which conflicts with an earlier decision on
point. Compare White v. Weber, 768 N.W.2d 144, 146 (S.D. 2009) (citing
Remmer I and Phillips, but stating that defendant bears burden of proof
at hearing without discussing apparent conflict), with State v. Boykin, 432
N.W.2d 60, 62–63 (S.D. 1988) (stating that ‘‘[t]he standard set forth by the
United States Supreme Court in [Remmer I], is controlling . . . [i]n a crimi-
nal case’’ and that ‘‘South Dakota case law is entirely consistent with
[Remmer I]’’ [internal quotation marks omitted]).
Finally, West Virginia severely limits the presumption under Remmer by
reconciling it and Smith v. Phillips, supra, 455 U.S. 209, with state case law
holding that the presumption of prejudice only applies when misconduct,
including extraneous influence, is induced by an interested party to litigation,
specifically, the state, the defendant, or their attorneys. See State v. Sutphin,
195 W. Va. 551, 559–60, 466 S.E.2d 402 (1995); State v. Daniel, 182 W. Va.
643, 647–48, 391 S.E.2d 90 (1990); see also State v. Trail, W. Va. , 778
S.E.2d 616, 627 and n.13 (2015) (‘‘a person’s concern for a defendant does
not make them an ‘interested party’ to the litigation’’).
24
We note that, ‘‘[i]n this context, the term ‘jury tampering’ refers to
improper external communication with a juror about a matter pending before
the jury.’’ Stouffer v. Trammell, supra, 738 F.3d 1213.
25
In determining whether the presumption is triggered, ‘‘we refer back to
the factors the Supreme Court deemed important in [Remmer I] itself. . . .
Those factors are: any private communication; any private contact; any
tampering; directly or indirectly with a juror during trial; about the matter
before the jury.’’ (Citation omitted; internal quotation marks omitted.)
Barnes v. Joyner, 751 F.3d 229, 245 (4th Cir. 2014), cert. denied, U.S. ,
135 S. Ct. 2643, 192 L. Ed. 2d 944 (2015); see also id. (cataloging ‘‘[e]xtrajudi-
cial communications or contact with a juror’’ sufficient to ‘‘trigger’’ Remmer
presumption such as bribe offers, suggestions or pressure to vote certain
way from third parties such as spouses or local citizens, and commentary
about case from court personnel such as bailiffs). Put differently, the
improper contact must pertain directly to the merits of the matter, rather
than merely relate to the trial more topically. See, e.g., Wisehart v. Davis,
408 F.3d 321, 326 (7th Cir. 2005) (The Remmer presumption must be consid-
ered in ‘‘context’’ because ‘‘it is so easy to imagine situations in which a
‘private communication . . . with a juror during a trial about the matter
pending before the jury’ would not create a rational presumption of preju-
dice. Suppose a juror’s spouse said to the juror, ‘I saw you on television in
the jury box, and you looked great.’ That would be a private communication
concerning the case, but it would not be suggestive of jury tampering.’’),
cert. denied sub nom. Buss v. Wisehart, 547 U.S. 1050, 126 S. Ct. 1617, 164
L. Ed. 2d 353 (2006).
26
The defendant may, of course, make this prima facie showing in the
context of a hearing conducted by the trial court in response to its obligation,
‘‘when presented with any allegations of jury misconduct, [to] conduct a
preliminary inquiry, sua sponte if necessary, in order to assure itself that a
defendant’s constitutional right to a trial before an impartial jury has been
fully protected.’’ State v. Brown, supra, 235 Conn. 528; see also id., 529
(noting trial court’s discretion to determine scope of hearing in light of
nature of allegations).
27
We acknowledge the trial court’s view that it was ‘‘outrageous’’ that the
defendant conceivably could benefit from jury tampering by his mother,
but emphasize that the trial court properly conducted a full voir dire of the
jury when it learned of her improper actions. As the United States Court
of Appeals for the Fifth Circuit stated in rejecting the government’s request
to ‘‘categorically dismiss’’ a claim of jury tampering on the ground that it
was the defendant ‘‘himself who initiated the contact that may have poisoned
the jury,’’ the court observed that the defendant ‘‘has been convicted of jury
tampering and for that misconduct is subject to punishment. That is an
entirely discrete matter. At issue in his trial in this case was whether [the
defendant] had dealt in stolen goods, not whether he had tried to corrupt
the judicial system. A fair and impartial jury cannot be permitted to draw
the conclusion that, because a defendant attempted to fix his trial, he is
guilty of the offense for which he is being tried. It is conceivable that a
defendant, innocent of the charge being tried, might attempt to tamper with
a jury to assure a favorable verdict. Some may suggest that our holding
today will encourage defendants to tamper with juries, furnishing defendants
with a ‘heads-I-win, tails-you-lose’ proposition: a successful effort secures
an acquittal, an unsuccessful effort secures reversal on appeal. We reject
that suggestion. The possibility of attempts at jury tampering are ever pres-
ent. The penalties for that misconduct are serious and can markedly com-
pound a defendant’s punishment.’’ United States v. Forrest, 620 F.2d 446,
458 (5th Cir. 1980); see also, e.g., United States v. Dutkel, supra, 192 F.3d
897 (Remmer presumption ‘‘arises automatically’’ when ‘‘the intrusion is [or
is suspected to be] on behalf of the defendant raising the claim of prejudice
. . . because jurors will no doubt resent a defendant they believe has made
an improper approach to them’’).
28
The defendant also argues that E’s assurances of impartiality were
equivocal and conditional on his understanding that the woman involved
in the encounter was not the defendant’s mother. To this end, the defendant
states that E had ample time after being released from questioning, but
before the trial court instructed the jury not to discuss the matter further,
to learn that the woman who approached J was in fact the defendant’s
mother. The trial court and E engaged in the following colloquy:
‘‘The Court: . . . [B]ased upon what you personally saw yesterday and
what you heard from [J] today, has your impartiality been compromised in
any way?
this woman and the defendant, but after thinking about it, I don’t really
know how, if they are related or if there is a relationship at all.
‘‘The Court: I see.
‘‘[E]: So, you know, I don’t think so.’’
In the absence of an articulation from the trial court finding to the contrary,
we disagree with the defendant’s reading of E’s testimony. We read E’s
testimony on this point as avoiding jumping to conclusions as to the identity
of the woman who approached J, particularly given his consistent testimony
later, upon questioning by defense counsel and the court, that the incident
would not affect his impartiality or ability to decide the case fairly and
impartially in accordance with the evidence.
29
To this end, we disagree with the defendant’s reliance on United States
v. Moore, supra, 641 F.3d 830, for the proposition that J’s belief that the
defendant tampered with the jury to cause a mistrial ‘‘demonstrates that [J]
harbored ‘notion[s] of perceived guilt,’ ’’ and that he ‘‘contaminated other
jurors by suggesting the same to them.’’ First, nothing in J’s testimony
evinces a belief that the defendant’s mother acted at his direction. Second,
although it would have been misconduct for the jurors to discuss the evi-
dence in this case before deliberations in violation of the trial court’s instruc-
tion to that effect; see, e.g., State v. Washington, 182 Conn. 419, 428–29,
438 A.2d 1144 (1980); as in Moore, there is no indication in the record that
J ‘‘discussed the facts of the case against [the defendant], or any notion of
perceived guilt or innocence.’’ United States v. Moore, supra, 830.