State v. Anderson

• Citation: 163 Conn.App. 783,134 A.3d 741
• Decision Date: 15 March 2016
• Docket Number: No. 36245.,36245.
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Stephanie ANDERSON.

163 Conn.App. 783

134 A.3d 741

STATE of Connecticut

v.Stephanie ANDERSON.

No. 36245.

Appellate Court of Connecticut.

Argued Jan. 4, 2016.

Decided March 15, 2016.

Gwendolyn S. Bishop, assigned counsel, Windsor Locks, for the appellant (defendant).

Lisa A. Riggione, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Robert Diaz, senior assistant state's attorney, for the appellee (state).

DiPENTIMA, C.J., and GRUENDEL and KELLER, Js.^*

KELLER, J.

The defendant, Stephanie Anderson, appeals from the judgment of conviction, rendered following a jury trial, of one count of operating a motor vehicle while under the influence of alcohol in violation of General Statutes § 14–227a (1), and one count of operating a motor vehicle while her operator's license was under suspension in violation of General Statutes § 14–215(c). Additionally, the defendant pleaded guilty under apart B information to being a third time offender pursuant to General Statutes § 14–227a (g)(3). On appeal, the defendant claims that the trial court, Bentivegna, J., erred when it denied her motion for a mistrial, which was based on a communication that occurred during the trial between the defendant's daughter and a juror. We affirm the judgment of conviction.

The following facts and procedural history are relevant to this appeal. On March 13, 2012, a Hartford police officer arrested the defendant, who was charged with driving while under the influence of alcohol and operating a motor vehicle while her license was under suspension. The defendant pleaded not guilty and elected to be tried by a jury. The defendant was tried by a jury before the court, McWeeny, J., on April 25, 2013. At the conclusion of the trial, the jury returned a verdict of guilty on both counts. Also, the defendant pleaded guilty, under a part B information, to being a third time offender under § 14–227a (g)(3).

On June 10, 2013, Judge McWeeny sentenced the defendant and, at the time of sentencing, delayed execution of the sentence. On July 29, 2013, Judge Bentivegna¹ lifted the stay and clarified the sentence imposed. The defendant was sentenced to a total effective term of three years incarceration, suspended after one year of mandatory incarceration, followed by three years of probation.

The defendant filed a motion for a mistrial on July 26, 2013. In the motion, the defendant represented that she was deprived of a fair trial because one of the jurors had interacted with her daughter during a lunch recess at trial. Specifically, the defendant alleged that she had been deprived of a fair trial because that interaction made it probable that the juror became biased, given that the juror knew who her daughter was, her daughter smelled of alcohol, and one of the charges against her pertained to her alleged intoxication by means of alcohol.

On August 19, 2013, Judge Bentivegna held an evidentiary hearing on the defendant's motion. At the hearing, the defendant presented the testimony of her daughter, her son, and D,² the juror with whom the defendant's daughter allegedly had interacted during the trial. The state did not call any witnesses at the hearing, but both the state and the defendant presented oral arguments. According to the testimony of the defendant's three witnesses at the hearing, the defendant's daughter—who was an observer in the courtroom at the trial and who was eighteen years of age at the time—approached D during the lunch recess while she was standing with another juror outside of the courthouse. The witnesses testified that the defendant's daughter asked D if she could borrow her cell phone and D allowed her to do so. According to the witnesses' testimony, after the defendant's daughter completed her phone call, she thanked D and gave her the phone.³ The defendant's son testified that he and the defendant were able to observe the defendant's daughter interacting with D outside of the courthouse and that the defendant became "mad" because she knew that D was a juror. The defendant's daughter testified that although she knew at the time of the interaction that D was a juror in her mother's trial, she did not talk about the case at all with D. D also testified that she did not talk about the case with anyone, including the defendant's daughter, during the recess.

According to the testimony of the defendant's daughter and the defendant's son, the defendant's daughter had been drinking alcohol on the night before her interaction with D. The defendant's daughter also testified that she "probably" smelled of alcohol "a little bit" when she interacted with D, but that although, in her own estimate, she had been close enough to D so that she could have smelled alcohol, the entire encounter was "really fast" and D had not made any comments about her smelling of alcohol. D testified that the defendant's daughter neither seemed intoxicated nor smelled of alcohol during their interaction. She also testified that she did not notice that the defendant's daughter had been sitting in the courtroom during the course of the trial, but only had observed her in the courtroom after the conclusion of the trial. Furthermore, when asked if she knew that the young woman who had asked her to borrow her cell phone was the defendant's daughter, D testified that she neither knew that the defendant had a daughter, nor knew that the young woman was related to the defendant in any way.

At the conclusion of the hearing, the court made the following factual findings: "As to whether the proof that the incident occurred, I think—the evidence reflects that there was a contact between the defendant's daughter ... and the juror, [D].

"And ... I think that it's clear that [the daughter] approached [D] and asked [D] to borrow her cell phone and that [D] allowed [the daughter] to use the cell phone to make a call.

"I think that the evidence reflects that that whole ... incident probably ... wasn't ... very long.... And the record reflects [the daughter's] testimony is that they—and—[D's] testimony was that they didn't talk about the case.

"They didn't talk about anything relating [to] the jury ... or the jury deliberations. And then, there is some dispute about whether or not [D] asked [the daughter] to borrow [the daughter's] lighter.

"That [the daughter] says yes.... [The son] said, yes. [D] said no. She had her own lighter. But, even if ... it was true, assume, for the sake that it was true, that [the daughter] loaned ... [D] the lighter, there was still no discussion of the jury trial.

"There's no indication that there was any discussion of the case.... I think that those are the facts that relate to the first element [of juror misconduct], you know, proof that an incident occurred.

"The second element is proof that the misconduct resulted in actual prejudice or bias. And there has not been really any evidence that demonstrates that ... [D] was—that this contact that ... [D] had with the defendant's daughter, in any way rose to that level. So, this really was a limited conversation in front of the courthouse....

"There was no discussion of the trial. There was no discussion of a jury's deliberation. I think that ... [D's] testimony was credible in terms of her testimony. And as I indicated, there was really no proof that this incident had any effect or influence on ... [D's] ability to be [a] fair and impartial juror.

"There was no indication that ... [D] shared anything regarding the encounter with any other member of the ... jury. There's no indication that ... [D] said to another juror that she had this encounter with [the daughter] and [the daughter] smelled of alcohol.

"I mean, there was no proof of that. There was really no evidence adduced at trial—at the hearing that the defendant has been prejudiced in any way by ... [D's] conduct. And the evidence failed to show that ... [D's] misconduct was such as [to] make [it] probable that ... [D's] mind was influenced by it so as to render ... [her] an unfair and prejudicial juror. So, the court's going to find that the defense failed to prove any actual prejudice or bias."

Accordingly, the court denied the defendant's motion from the bench. This appeal followed.

On appeal, the defendant claims that the court abused its discretion in denying her motion for a mistrial because it improperly required her to prove that the interaction between her daughter and D subjected her right to a fair trial to "actual prejudice" instead of "probable prejudice." In opposition, the state argues that the court held the defendant to the correct burden of proof on her motion.⁴ Alternatively, the state argues that even assuming that the court imposed an improper burden of proof upon the defendant, "the absence of any evidence of an effect on [D] establishes that the defendant could not prevail under any standard." We agree with the state that the defendant could not prevail under the correct legal standard and, thus, we conclude that the court did not abuse its discretion in denying her motion for a mistrial.

We begin our analysis by setting forth the appropriate standard of review. "The decision as to whether to grant a motion for a mistrial ... is one that requires the trial court to exercise its judicial discretion.... Our review of the trial court's exercise of its discretion is limited to questions of whether the court correctly applied the law and could reasonably have concluded as it did.... Every reasonable presumption will be given in favor of the trial court's ruling.... It is only when an abuse of discretion is manifest or where an injustice appears to have been done that a reversal will result from the trial court's exercise of discretion....

"[Although] the remedy of a mistrial is permitted under the rules of practice, it is not favored.... If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided.... The general rule in Connecticut is that a mistrial is granted only where it is apparent to the...