STATE v. ORLANDO BERRIOS, JR., SC 19494

Judicial District of New Haven

 

      Criminal; Whether Improper Juror Contact Presumptively Prejudicial; Whether State Bears Burden of Proving that Improper Contact did not Prejudice Defendant and Deny a Fair Trial.  During the defendant's trial on a robbery charge, the defendant's mother attempted to communicate with a juror, J.D., outside the courtroom.  J.D. submitted a note to the court about the incident.  In the ensuing inquiry into potential juror bias, J.D. told the court that the mother asked him whether he realized that the last police officer who testified was lying and that he did not respond to her question.  During the questioning of other jurors, additional details were elicited, including that, during the incident, J.D. had seen two girls with their cell phones out and that he was concerned that the encounter might have been recorded in an attempt to show jury tampering and cause a mistrial.  All the jurors, however, assured the court that the incident would not affect their ability to render a fair verdict.  The defendant moved for a mistrial.  The trial court denied the motion, finding that the jurors would be able to decide the case solely on the evidence presented.  The defendant was convicted and he appeals, claiming that the court abused its discretion in denying his motion for a mistrial and that he was denied his right to a fair trial before an impartial jury.  He argues that United States v. Remmer, 347 U.S. 227, 229 (1954), established that any private communication, contact, or tampering with a juror during trial in a criminal case is deemed presumptively prejudicial and that the burden is on the state to establish that the juror contact was harmless to the defendant.  While acknowledging that the ongoing validity of the Remmer presumption has been questioned by some federal courts of appeal, the defendant asserts that the majority of federal courts of appeal have continued to apply the presumption, at least where, as here, there was an improper attempt to influence the decision of the jury during the course of the trial.  The defendant also points out that, while the Connecticut Supreme Court has noted an inconsistency in Connecticut law regarding the applicability of the Remmer presumption, it has yet to resolve the issue.  He contends that, because J.D. did not fully disclose matters that bore on his partiality and improperly told other jurors about the attempted jury tampering, the state did not and could not rebut the presumption by proving harmlessness beyond a reasonable doubt.  The defendant argues that, even if the Remmer presumption of prejudice does not apply, the trial court improperly denied his motion for a mistrial because actual prejudice resulted from the external influence on the jury.  He contends that the court improperly relied on J.D.'s assurances that he could be impartial and failed to take action to ensure that the jurors did not assume that the defendant did not instigate the tampering to cause a mistrial.  The state argues that the Connecticut Supreme Court has consistently held that a defendant bears the burden of proving that he or she was actually prejudiced by improper juror contact, that United States Supreme Court precedent following Remmer has expressed uncertainty as to the continuing vitality of the rebuttable presumption of prejudice and that, even if the state bears the burden of proving harmlessness, it successfully bore that burden here.