State v. Davis, 11603

• Decision Date: 13 July 1993
• Docket Number: No. 11603,11603
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. James R. DAVIS.

Page 11

628 A.2d 11

32 Conn.App. 21

STATE of Connecticut v. James R. DAVIS.

No. 11603.

Appellate Court of Connecticut.

Argued May 7, 1993.

Decided July 13, 1993.

Jacques J. Parenteau, New London, for appellant (defendant).

Carolyn K. Longstreth, Asst. State's Atty., with whom were Peter McShane, Asst. State's Atty., and, on the brief, C. Robert Satti, Sr., State's Atty., for appellee (state).

Before FOTI, LANDAU and SCHALLER, JJ.

FOTI, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134(a)(4) and larceny in the second degree in violation of General Statutes § 53a-123(a)(3). He claims that the trial court (1) improperly failed to declare a mistrial (a) following a claim of juror misconduct and (b) after a violation of a court order on a motion in limine, ¹ and (2) improperly instructed the jury regarding (a) identification, (b) flight and consciousness of guilt, and (c) the limited purpose for which they could consider a witness' prior inconsistent statement. We affirm the trial court's judgment.

The jury reasonably could have found the following facts. Shortly before midnight on June 14, 1990, the defendant, wearing a ski mask and armed with a .45 caliber semiautomatic pistol, entered Dino's Pizza in Norwich. A restaurant employee, Arthur Patsouris, was alone and about to secure the establishment for the night. The defendant, dressed in jeans and a hip length, olive green army jacket, pointed the weapon at Patsouris and told him not to "do anything stupid." The defendant, who spoke with a southern accent, then demanded to be shown the safe. After Patsouris told him that there was no safe, the defendant took approximately $1000 from Patsouris. The money included the day's cash receipts, as well as personal money of the victim. The defendant then asked Patsouris where he could put him. Patsouris suggested the handicapped bathroom, but, because it had to be secured from the inside, the defendant instead ordered Patsouris into a cooler. He told Patsouris he did not want him to freeze. After Patsouris said that he would be fine, the defendant stated that he would leave the cooler unlocked. He ordered Patsouris to remain in the cooler for ten minutes and threatened to come back and kill him if he called the police. After waiting three minutes, Patsouris left the cooler and called 911.

Although Patsouris could make no identification of the man who robbed him, he did describe the man as a six foot tall caucasian with dirty blond or light brown hair.

On June 14, 1990, the defendant was living at the Starlight Motel in Niantic with his girlfriend, Dani Carlson, her two children and a friend, Sue Donadio. That evening, the defendant and Carlson went on his motorcycle to Great Oak Pizza in Norwich, where he had planned a robbery. The defendant and Carlson argued about the way he was operating the motorcycle. They went to Dino's Pizza and turned around in the parking lot several times. Carlson got off of the motorcycle and began walking along the road. The defendant drove back toward Dino's Pizza. Sometime thereafter, the defendant drove back to Carlson and told her to get on the motorcycle. After getting on, Carlson felt bulges on both sides of the defendant's waist that she had not felt earlier. As they left Norwich, the defendant threw something from the motorcycle.

The defendant and Carlson returned to the motel in Niantic, where the defendant removed a .45 caliber semiautomatic pistol from his coat and put it on a dresser. He then stated that he had robbed someone of $1000. The defendant told Carlson that he had argued with the victim when he had been told that there was no safe, and that he had locked the victim in a bathroom or a freezer.

The next morning the defendant told Carlson to pack. After leaving her five month old daughter with her sister, Carlson, her son and Donadio went to the bus station and boarded a bus for Florida. The defendant was with them until they boarded and then followed the bus on his motorcycle. The defendant is from Florida and speaks with a southern accent.

I

A

The defendant first claims that the trial court improperly failed to declare a mistrial sua sponte after a juror was exposed to a newspaper article that mentioned the defendant.

The pertinent facts are as follows. The jury began deliberations on Thursday, April 16, 1992. On the following Monday, shortly before the court adjourned for the day, the jury sent a message to the court that it was deadlocked. Over the weekend, the defendant had attempted an escape from the prison at Somers. Because there had been news articles regarding the escape attempt on Tuesday, the court summoned the jurors and inquired whether any of them had "read, heard or seen anything involving any of the parties." One juror, the foreperson, answered affirmatively. After excusing the remaining jurors, the court conducted a voir dire.

The juror stated that when she opened the New London Day, she saw a headline about an escape attempt and started to read the article. She stopped reading when she saw the defendant's name. She added that she did not know whether the defendant had been involved in the escape because she did not read any further than his name. The trial court then advised the juror that this case had to be decided only on the evidence presented at trial and then asked her what effect, if any, the portion of the article she had read would have on her decision in this case. The following colloquy ensued:

"[Juror]: It hasn't yet--well, let me put it this way. Discussions that we've had in the jury, a lot of discussions people have tried to speculate on his character or past practices and--

"[The Court]: I don't think you have to tell us what was going on in there.

"[Juror]: --I'm a firm believer of this case is what we are looking at no matter what other circumstances there are in his life have no bearing on this particular case. So, I don't feel that seeing his name in that--attached to that headline has anything to do with this case.

"[The Court]: Okay, so, in other words, you feel confident that you could decide this--even though, no matter what, the little bit you know about that, that would have nothing to do with this case.

"[Juror]: I don't know enough to even think about it.

"[The Court]: What I would request that you do then is this. In your discussions with your fellow jurors on this particular case would you be able not to discuss this aspect of the situation at all? In other words, just not bring this up at all?

"[Juror]: Yes.

"[The Court]: So, that no matter what your discussions, even somebody ask you, you would not--

"[Juror]: No, it doesn't bear on this case.

"[The Court]: --Okay. And you feel confident that you could decide the case without--irrespective of reading this portion of the article. And you wouldn't bring that into the case at all with your fellow jurors?

"[Juror]: No."

The court then allowed the juror to return to the deliberations. The court stated: "I'm not going to excuse her or declare a mistrial at this time." Although defense counsel conferred with the defendant, no exception was taken and no motions or requests for further inquiry or curative instructions were made. After additional instructions, ² the jury deliberated and then returned its verdict.

"Due process requires that a criminal defendant be given a fair trial before an impartial jury. U.S. Const., amend XIV; Conn. Const., art. 1, § 8. State v. Brigandi, 186 Conn. 521, 542, 442 A.2d 927 (1982). A new trial, however, is not required every time ' "a juror has been placed in a potentially compromising situation ... [because] it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote." ' Rushen v. Spain, 464 U.S. 114, 118, 104 S.Ct. 453, 455, 78 L.Ed.2d 267 (1983), quoting Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982).

"The general rule in Connecticut is that a mistrial is granted only where it is apparent to the court that as a result of some occurrence during trial a party has been denied the opportunity for a fair trial. State v. Hancich, 200 Conn. 615, 624-25, 513 A.2d 638 (1986); State v. Gaston, 198 Conn. 490, 495-96, 503 A.2d 1157 (1986); State v. Ubaldi, 190 Conn. 559, 562, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S.Ct. 280, 78 L.Ed.2d 259 (1983). State v. Gooch, 186 Conn. 17, 25, 438 A.2d 867 (1982); State v. Turcio, 178 Conn. 116, 143, 422 A.2d 749 (1979), cert. denied, 444 U.S. 1013, 100 S.Ct. 661, 62 L.Ed.2d 642 (1980). The trial court enjoys wide discretion in deciding whether a mistrial is warranted; Speed v. DeLibero, 215 Conn. 308, 315, 575 A.2d 1021 (1990); State v. Nowakowski, 188 Conn. 620, 624, 452 A.2d 938 (1982); and its evaluation as to events occurring before the jury is to be accorded the highest deference. United States v. Grasso, 600 F.2d 342, 343 (2d Cir.1979). Every reasonable presumption will be given in favor of the trial court's ruling; State v. Rodriguez, 10 Conn.App. 176, 179, 522 A.2d 299 (1987); because the trial court, which has a firsthand impression of the jury, is in the best position to evaluate the critical question of whether the juror's or jurors' exposure has prejudiced a defendant. See, e.g., United States v. Wiley, 846 F.2d 150, 157 (2d Cir.1988); State v. Asherman, 193 Conn. 695, 736, 478 A.2d 227, cert. denied, 470 U.S. 1050, 105 S.Ct. 1749, 84 L.Ed.2d 814 (1985). 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. State v. Rodriguez, 210 Conn. 315, 326, 554 A.2d 1080 (1989); State v. Fleming, 198 Conn. 255, 264, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S.Ct. 1797, 90 L.Ed.2d 342 (1986)." State v. Harvey, 27 Conn.App. 171, 177-78, 605 A.2d...