Aillon v. State

• Decision Date: 03 June 1975
• Citation: 363 A.2d 49,168 Conn. 541
• Parties: Guillermo AILLON v. STATE of Connecticut.
• Court: Connecticut Supreme Court

Page 49

363 A.2d 49

168 Conn. 541

Guillermo AILLON v. STATE of Connecticut.

Supreme Court of Connecticut.

June 3, 1975.

Jerrold H. Barnett, Asst. State's Attorney, with whom was Robert E. Beach, Jr., Woodbridge, for appellant (state).

Howard A. Jacobs, Sp. Public Defender, for appellee (plaintiff).

Before HOUSE, C.J., and LOISELLE, MacDONALD, BOGDANSKI and LONGO, JJ.

BOGDANSKI, Associate Justice.

The plaintiff, Guillermo Aillon, was found guilty of three counts of murder after a jury trial. In November of 1973, the plaintiff learned from certain newspaper articles that the judge who presided at his trial had engaged in an ex parte conversation with a juror after the case had been submitted to the jury. The plaintiff thereupon filed a petition for a new trial pursuant to § 52-270 of the General Statutes. After a hearing on that petition, the court concluded that a new trial should be granted and from the judgment rendered the state has appealed to this court. The state has assigned error in the court's refusal to find material facts claimed to be admitted or undisputed, in finding certain facts without evidence, in finding facts of doubtful meaning, in the conclusions reached, in rulings on evidence, and in the overruling of its claims of law.

The finding ¹ discloses that the voir dire of prospective jurors for the plaintiff's trial began on May 18, 1973. On June 26, 1973, the selection of twelve jurors and two alternates was completed. The actual trial commenced on July 5, 1973, and the presentation of evidence, including the testimony of sixty witnesses, lasted until August 22, 1973. On August 27, 1973, the jury heard the closing arguments and, the next day, the court charged the jury. The two alternates were then dismissed and the jury began its deliberations. Those deliberations lasted until 8:20 p.m. on August 28, 1973, and continued on the next two days from 10:00 a.m. until 10:00 p.m. and from 10:00 a.m. until 10:55 p.m., respectively. On Friday, August 31, the jury again resumed their deliberations at 10:00 a.m. and at 7:45 p.m. were recalled to the courtroom after the jury foreman had written a note to the trial judge which stated that the jury was unable to 'come to a unanimous decision.'

The trial court then gave the jury supplemental 'Chip Smith' instructions; see State v. Smith, 49 Conn. 376, 386; concluding with the following charge: 'Ladies and gentlemen of the jury, I now ask you to return to the jury room and to return a verdict if at all possible, whether tonight, tomorrow or the next day, but to continue your honest deliberations, as you have in the past and try to arrive at a conclusion.' Counsel for the plaintiff objected to the giving of the 'Chip Smith' charge, but he raised no objection to the resumption of deliberations by the jury.

Two hours later, there was a discussion in the jury room concerning whether the jurors should remain and continue their deliberations or whether they should adjourn and return the next day. The procedure used by the jury on previous evenings to determine when they would adjourn was to reach an informal consensus, rather than to take a formal, written vote. One of the jurors, Kathleen Read, who had moved to Massachusetts during the course of the trial, wished to continue deliberations that evening in the hope of reaching a verdict so that she might return home to her family. At 10:00 p.m. she asked to see the judge and the jury foreman wrote a note stating that one of the jurors wished to speak with him 'with regard to a personal matter.' A short time later, the trial judge, accompanied by the sheriff, appeared at the doorway of the jury room, and juror Read started to relate her problem to the judge. The judge, however, requested that she step out and he escorted her to the back of the jury box. The ensuing conversation lasted only a few minutes. Juror Read, who appeared nervous and upset, explained that she wanted to go home to Massachusetts but that some of the jurors wanted to adjourn for the evening although she and others wanted to continue deliberating. She then asked the judge, 'Can we stay?' The judge responded, 'Yes you can stay.'

The other jurors could not hear the conversation, although one juror testified that he thought he heard the trial judge say, 'You have to stay.' What juror Read said on her return to the jury room is disputed, but some jurors felt that she said the judge had told them to remain; others felt that the judge merely indicated that they could stay. At any rate, when the foreman asked what the trial judge had said, juror Read responded, in the presence and hearing of the other jurors, 'We can stay or we can go home but if we go home we come back tomorrow, the next day and the next day.' The jury thereupon continued deliberating. Six hours later, at 4:25 a.m. on Saturday, September 1, 1973, the jury reached its verdict of guilty on each of the three counts of murder.

Although the plaintiff and his counsel were present in the courthouse at all times on the evening in question, the trial judge did not inform them of either the note or the ensuing conversation with juror Read.

On the basis of the foregoing, the court concluded that any communication between a trial judge and members of a jury in the absence of an accused and his counsel is an extraneous influence which is presumptively prejudicial to the accused unless the state can overcome the presumption by showing that the communication was 'harmless beyond a reasonable doubt.' In determining that the state had failed to meet its burden of proof, the court stated its ultimate conclusion as follows: 'Considering the length of time the jury had been deliberating, the reference to deliberating the following day and the next in the supplemental instructions, the lateness of the hour and the obvious weariness and strain some of the jurors must have felt, the court was not satisfied beyond a reasonable doubt that the conduct of the judge did not lead the jury to follow a course which was prejudicial to the plaintiff.'

The state has assigned error in those conclusions, claiming that not all communications between the trial judge and the jury in the absence of the accused are presumptively prejudicial. The state argues that the judge merely repeated his previous instructions to the jury that they should continue their deliberations, and that any error in so doing was harmless.

It has long been the law of this state that jurors shall not converse with any person, not a member of the jury, regarding the cause under consideration; Bennett v. Howard, 3 Day 219, 223; Tomlinson v. Derby, 41 Conn. 268, 274; and that no person may be present with or speak to the jurors when they are assembled for deliberation; Cook v. Miller, 103 Conn. 267, 273, 130 A. 571. General Statutes § 51-245. Those rules are of vital importance to assure that the jury will decide the case free from external influences that might interfere with the exercise of deliberate and unbiased judgment. 'Nor can any ground of suspicion that the administration of justice has been interfered with be tolerated.' Mattox v. United States, 146 U.S. 140, 149, 13 S.Ct. 50, 53, 36 L.Ed. 917.

It has thus become a universally accepted principle that communications between a judge and a jury, especially after the jury has begun deliberations, should be made only in open court in the presence of the parties. See 75 Am.Jur.2d, Trial, § 1001; annot., 41 A.L.R.2d 227. In a criminal trial this rule takes on constitutional dimensions since the accused has a right to be present at every stage of the trial and to have the assistance of counsel for his defense. U.S.Const., amends. VI, XIV; Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 25 L.Ed.2d 353; United States v. Wade, 388 U.S. 218, 226, 87 S.Ct. 1926, 18 L.Ed.2d 1149; State v. Ralls,167 Conn. 408, 419, 356 A.2d 147; See Shields v. United States, 273 U.S. 583, 588, 47 S.Ct. 478, 71 L.Ed. 787. Moreover, the accused's right to a fair trial in a fair tribunal is the very foundation of due process. '(T)he requirement of due process of law in judicial procedure is not satisfied by the argument that men of the highest honor and the greatest self-sacrifice could carry it on without danger of injustice. Every procedure which would offer a possible temptation to the average man . . . to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law.' Tumey v. Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 445, 71 L.Ed. 749; Estes v. Texas, 381 U.S. 532, 543, 85 S.Ct. 1628, 14 L.Ed.2d 543.

To preserve those rights of the accused, some jurisdictions have held that any communication between the trial judge and a deliberating jury in the absence of the accused and his counsel requires a new trial, whether or not the communication was prejudicial. See, e.g., Hoberg v. State, 3 Minn. 262, 269-70, 3 Gil. 181, overruled, Oswald v. Minneapolis & N.W. Ry. Co., 29 Minn. 5, 11 N.W. 112; State v. Murphy, 17 N.D. 48, 61, 115 N.W. 84; 58 Am.Jur.2d 316, New Trial, § 110, and cases cited therein. See also State v. Werring, 111 Ariz. 68, 523 P.2d 499; State v. Cowman, 212 N.W.2d 420, 424 (Iowa). In other jurisdictions the accused must show that he was prejudiced in order to obtain a new trial. See, e.g., People v. Lee, 38 Cal.App.3d 749, 755, 113 Cal.Rptr. 641; People v. Davis, 516 P.2d 120, 121 (Colo.); People ex rel. Walker v. Pate, 53 Ill.2d 485, 505, 292 N.E.2d 387; State v. Schifsky, 243 Minn. 533, 543, 69 N.W.2d 89.

In this state, an improper act of a judge does not automatically justify a new trial unless there has been prejudice to the unsuccessful party; Wood v. Holah, 80 Conn. 314, 316, 68 A. 323; and ordinarily the burden of establishing that an error of the trial court is harmful rests on the appellant. State v. L'Heureux, 166 Conn. 312, 323,...