State v. Brown

• Decision Date: 24 February 1994
• Docket Number: No. 11067,11067
• Citation: 33 Conn.App. 339,635 A.2d 861
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Lionel BROWN.

Page 861

635 A.2d 861

33 Conn.App. 339

STATE of Connecticut v. Lionel BROWN.

No. 11067.

Appellate Court of Connecticut.

Argued Sept. 20, 1993.

Decided Dec. 28, 1993.

Certification Granted Limited to the Following Issues Feb. 24, 1994.

Lauren Weisfeld, Asst. Public Defender, for appellant (defendant).

Carolyn K. Longstreth, Asst. State's Atty., with whom were Philip D'Eramo, Asst. State's Atty., and, on the brief, Eugene J. Callahan, State's Atty., for appellee (State).

Before FOTI, LAVERY and FREDERICK A. FREEDMAN, JJ.

FREDERICK A. FREEDMAN, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of attempted larceny in the third degree in violation of General Statutes §§ 53a-124(a)(2) and 53a-49(a), conspiracy to commit larceny in the third degree in violation of General Statutes §§ 53a-48(a) and 53a-124(a)(2), criminal impersonation in violation of General Statutes § 53a-130(a)(1) and forgery in the third degree in violation of General Statutes § 53a-140(a). ¹ The defendant claims that (1) the trial court improperly denied his motion for a new trial because (a) the trial court failed to hold a hearing once it received information alleging jury misconduct, and (b) the order to sequester the witnesses had been violated, ² (2) the evidence was insufficient to support the defendant's conviction for forgery in the third degree, (3) the evidence was insufficient to support the defendant's conviction of attempted larceny in the third degree, and (4) the conviction of attempted larceny in the third degree together with the conviction of conspiracy to commit larceny in the third degree constitutes double jeopardy. ³ We reverse the judgment of the trial court in part and affirm it in part.

The jury could have reasonably found the following facts. On May 8, 1991, at approximately 2:45 p.m., the defendant entered the Gateway Bank in Wilton. He identified himself as Clifford Sailor and attempted to make a split deposit ⁴ involving two checks. One check for deposit was made out to and endorsed by Clifford Sailor in the amount of $728; the other check, in the amount of $960 made payable to and endorsed by Sailor, was to be cashed.

The teller was suspicious of the defendant because she was acquainted with Sailor, who is white, and the defendant is black. According to the teller, the endorsements on the checks appeared to be Sailor's. Because the defendant could not produce any identification, the teller refused to make the transactions. The defendant then left the bank, taking the checks with him. The teller notified the bank manager of the incident and the manager put an alert signal into the bank computer system.

Soon thereafter, a man, who identified himself as Robert Black, attempted to make a split deposit involving three checks: two for deposit in the amounts of $776.10 and $78, and the third to be cashed in the amount of $880. All three were payable to Robert Black and endorsed in general on the back. He too lacked identification. The bank manager refused to make the transactions and the second man left. The bank manager then observed this man join the defendant and a woman in a car. The bank manager wrote down the license plate number of the car and called the Wilton police.

Shortly thereafter, Officer Gary Garuder of the Wilton police department stopped the car and arrested the three occupants. The driver, the woman, had identification in several names, along with $600 in cash. One of the men, the second man to enter the bank, had $453. The defendant had valid identification, $32, a deposit slip with Clifford Sailor's address written on it, a paper on which another name and address were written, and two checks totaling $1192 made out to Barbara Matison. Garuder seized a manila envelope from the car. Among the items in the envelope were various bank papers, checks, checkbooks, torn signature cards, customer receipts, and change of name forms.

After the verdict, the defendant filed a motion for a new trial and moved for a judgment of acquittal on all charges. These motions were denied by the court.

I

The defendant first claims that the trial court improperly denied his motion for a new trial because his state and federal constitutional rights ⁵ were violated when the trial court failed to conduct a hearing regarding allegations of jury misconduct and the violation of the order sequestering the witnesses. ⁶ We disagree.

A

The following additional facts are relevant to the claim of jury misconduct. The trial court received an anonymous note after the verdict was returned but before sentencing. The note was from "a concerned citizen and a discenchanted [sic] friend." The author was concerned about a recent trial and related that, while out with friends, a friend named Dana ⁷ told of being on a jury in the trial of "a black man ... on trial for cashing bad checks." According to the letter, Dana reported that the jurors overheard the sheriffs "betting that the defendant would be found guilty because he was black and from New York." In addition, the letter stated that Dana told the author that she had overheard one sheriff tell another that a Wilton detective showed one of the witnesses some pictures because "the witness couldn't remember what the guy looked like."

The trial court gave the letter to the chief sheriff who directed a copy to the state's attorney. The trial court did not direct a copy to defense counsel. Defense counsel did not learn of the letter until the day of sentencing. ⁸ At that time, the defendant orally amended his motion for a new trial to include the alleged jury misconduct and violation of the sequestration order. The court heard brief argument on both the motion for judgment of acquittal and the motion for a new trial. The court denied both motions and an exception was taken.

"[T]he right to a jury trial guarantees to the criminally accused a fair trial by a panel of impartial, 'indifferent' jurors.... A necessary component of the right to an impartial jury is the right to have the jury decide the case solely on the basis of the evidence and arguments given them in the adversary arena after proper instructions on the law by the court.... Consideration of extrinsic evidence is jury misconduct and has been found to be sufficient to violate the constitutional right to trial by an impartial jury.... Whether juror consideration of extrinsic evidence was prejudicial to a defendant depends on the magnitude of the juror's deviation from his proper role, the degree to which the accused was deprived of the benefits of the constitutional and statutory safeguards, and the likelihood that the impropriety influenced the jury's verdict....

"Although the trial court enjoys broad discretion in determining whether jury misconduct occurred, and, if so, whether such misconduct prejudiced the defendant ... the court must have some factual basis on which to exercise that discretion...." (Citations omitted; internal quotation marks omitted.) State v. Migliaro, 28 Conn.App. 388, 395, 611 A.2d 422 (1992).

In Migliaro, a juror brought two medical books to court during jury deliberations. The books were taken from the juror before she entered the deliberation room. The trial court declined to conduct a hearing of any kind. We remanded the matter to the trial court to determine whether jury misconduct had occurred and, if so, whether the defendant was prejudiced thereby. State v. Migliaro, supra, at 397, 611 A.2d 422.

Likewise, in State v. Gonzalez, 25 Conn.App. 433, 596 A.2d 443 (1991), aff'd, 222 Conn. 718, 609 A.2d 1003 (1992), we remanded the matter to the trial court to determine whether there was jury misconduct and, if so, whether the defendant was prejudiced thereby. In Gonzalez, a juror sent a note to the judge that read: " 'Your Honor, something was said by [another juror] that may have prejudiced the jury. May I speak to you about it?' " Id., at 437, 596 A.2d 443. The court refused to discuss it with the juror or to inquire into the "something said."

In Migliaro, the trial court had no way of knowing whether the "juror or any other juror had utilized information from the books during the course of deliberations." State v. Migliaro, supra, 28 Conn.App. at 396, 611

A.2d 422. In addition, the "medical evidence was critical to the jury's resolution of the issue" in the case and the medical testimony concerned the "most hotly contested issue in the case." Id.

In Gonzalez, the note stated only that there was "something" said that may have been prejudicial. State v. Gonzalez, supra. Therefore, the trial court had no information as to what constituted the possible misconduct.

Here, unlike Migliaro and Gonzalez, the note itself set forth with specificity what the author alleged to be the misconduct. The trial court knew that the alleged misconduct was that the jurors overheard the sheriffs betting on the outcome of the case and that the jurors also overheard one sheriff tell another that a Wilton detective had shown a picture to a witness. No hearing was necessary, therefore, to determine what had occurred or what the jurors may have overheard.

The trial court had a sufficient factual basis on which to determine whether jury misconduct had occurred and, if so, whether such misconduct had prejudiced the defendant. While the trial court did not articulate its decision, it is obvious that it either found that no jury misconduct had occurred, or, if it had, that there was no prejudice to the defendant. The fact that a sheriff may have bet that the defendant would be convicted because of his race or that a witness was coached could be helpful to the defendant in that it would tend to discredit the merits of the case and the credibility of the witness.

"A trial court has wide discretion in deciding how to pursue an inquiry into the nature and effect of information that comes to a juror improperly as well as its potential effect upon the jury if it learns...