State v. Harris

• Decision Date: 03 December 1993
• Docket Number: No. 11325,11325
• Citation: 32 Conn.App. 831,632 A.2d 50
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Anthony HARRIS.

Page 50

632 A.2d 50

32 Conn.App. 831

STATE of Connecticut v. Anthony HARRIS.

No. 11325.

Appellate Court of Connecticut.

Argued Sept. 14, 1993.

Decided Oct. 19, 1993.

Certification Granted Limited to the

Following Issue Dec. 3, 1993.

Donald D. Dakers, with whom, on the brief, was Christine Perra, Sp. Public Defenders, for appellant (defendant).

John A. East III, Deputy Asst. State's Atty., with whom, on the brief, were John M. Bailey, Chief State's Atty., and Michael D. Glowa, Asst. State's Atty., for appellee (State).

Before DALY, EDWARD Y. O'CONNELL and HEIMAN, JJ.

HEIMAN, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of one count of accessory to the sale of narcotics in violation of General Statutes §§ 21a-278(b) ¹ and 53a-8, ² and one count of employing a person under eighteen years of age in the sale of narcotics in violation of General Statutes § 21a-278a(c). ³ The defendant claims that the trial court improperly (1) denied his motion for a new trial based on his claim of jury misconduct and (2) failed to protect his state and federal constitutional rights to due process by failing to instruct the jury properly as to the elements of the crime of employing a person under eighteen years of age in the sale of narcotics. The defendant claims that the trial court improperly instructed the jury by charging that the elements of that crime were the same as those of the crime of being an accessory to the sale of narcotics except for the additional element that the person employed must be under eighteen years of age.

The jury could reasonably have found the following facts. On May 15, 1990, the Bristol police department conducted an undercover police operation on Davis Drive. The operation was aimed at arresting drug dealers in the Cambridge Park area of Bristol. The police employed a "cop in a box operation." ⁴ On the evening of May 15, 1990, the police used two informants, one as a passenger and the other to drive a pickup truck into the Cambridge Park area with an officer concealed inside a box in the bed of the truck. The defendant, Anthony Harris, flagged down the vehicle. He approached the vehicle and asked the driver what she wanted.

The driver stated that she wanted "rock" or "powder." ⁵ The defendant walked away from the vehicle. He returned with his uncle, John Gains. Gains, at the time of this incident, was sixteen years of age and the defendant was twenty. The defendant then instructed Gains to "serve her." The defendant walked away and Gains produced a Newport cigarette pack from which he removed a small blue bag containing white powder. He handed it to the driver, who handed it to the passenger. The passenger then yelled "two." Gains produced another bag of white powder and the informants gave Gains $40. The powder later tested positive for cocaine. The police arrested both the defendant and Gains on June 22, 1990.

I

The defendant first asserts that the trial court improperly denied his motion for a new trial based on alleged juror misconduct. The defendant claims that the trial court incorrectly placed the burden on him of proving that extrinsic evidence actually prejudiced the defendant. Further, the defendant claims that the decision by the trial court was clearly erroneous. We are unpersuaded.

The consideration of certain additional facts is necessary for a proper resolution of this issue. The record discloses that on October 18, 1991, the jury found the defendant guilty. On January 3, 1992, the defendant filed a motion for a new trial. The motion claimed that after the verdict alternate juror Eva Michaud approached defense counsel and revealed that she had conducted an "experiment" at home to assess the degree to which a person could see through a quarter size hole in a cardboard box. The motion also claimed that the juror discussed this experiment with other jurors.

The trial court held a full evidentiary hearing on February 6, 1992. At the hearing, defense counsel called several jurors to testify. Michaud testified that she did perform a "cop in a box" type experiment during the trial. She further testified that she did not talk with the other jurors about the experiment. Juror Merrimon Hunt testified that a male juror did tell the jury, in the jury room, that he performed a "cop in a box" experiment. Next, juror Nancy Tinker testified that a juror named Sal told the jury that he had performed an experiment outside the jury room regarding the cop in a box theory. Tinker did state, however, that the information did not affect her decision in the case. ⁶ Juror Salvadore Larosa then testified that he never performed a cop in a box experiment nor did he discuss any experiments with any of the jurors. Juror Joseph Primich also testified that no juror had discussed a cop in a box experiment performed outside the jury room. Juror Robert Tatters testified that no discussions transpired about a cop in a box experiment. After a full hearing, the trial court found that the defense had presented no credible evidence that any demonstration was performed by any of the regular jurors that had "interfered with, or participated in, or aided, or assisted the jury in coming to [its] decision on the merits of the case." Further, the trial court stated: "The court makes a factual determination that there is no evidence, based on the witnesses that the court heard, that the jury at any time took into consideration any concept of a demonstration of the claimed position by the defendant, that one of the jurors set up a box and sat inside of it and looked out to see what he could see."

The trial court correctly placed the burden on the defendant to prove actual prejudice. "[T]he right to a jury trial guarantees to the criminally accused a fair trial by a panel of impartial indifferent jurors. Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639 [1642], 6 L.Ed.2d 751 (1961)." (Internal quotation marks omitted.) State v. Migliaro, 28 Conn.App. 388, 395, 611 A.2d 422 (1992); State v. Davis, 32 Conn.App. 21, 28, 628 A.2d 11 (1993); State v. Leonard, 31 Conn.App. 178, 194, 623 A.2d 1052, cert. granted, 226 Conn. 912, 628 A.2d 985 (1993). "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 instruction on the law by the court.' " State v. Migliaro, supra, quoting State v. Rodriguez, 210 Conn. 315, 325, 554 A.2d 1080 (1992). Consideration by the jury of extrinsic evidence can violate the constitutional right to a trial by an impartial jury. State v. McCall, 187 Conn. 73, 80, 444 A.2d 896 (1982); State v. Migliaro, supra.

The trial court must conduct a hearing to determine whether jury misconduct occurred. State v. Davis, supra, 32 Conn.App. at 28-29, 628 A.2d 11; State v. Migliaro, supra. The hearing allows the trial court to assess the credibility of witnesses and the weight to be accorded their testimony. State v. Leonard, supra, 31 Conn.App. at 195, 623 A.2d 1052. Once the trial court finds that consideration of extrinsic evidence occurred, the court must then determine whether the misconduct actually prejudiced the defendant. ⁷ Asherman v. State, 202 Conn. 429, 442, 521 A.2d 578 (1987); State v. Leonard, supra; State v. Migliaro, supra, 28 Conn.App. at 396, 611 A.2d 422.

The trial court followed the proper procedure for determining the motion for a new trial based on juror misconduct. It first held a hearing to determine whether juror misconduct occurred. The trial court then found that juror misconduct did not actually prejudice the defendant.

The determination that the misconduct did not actually prejudice the defendant is not clearly erroneous. "[T]he trial court enjoys broad discretion in determining whether jury misconduct occurred, and, if so, whether such misconduct prejudiced the defendant...." State v. Migliaro, supra, 28 Conn.App. at 395, 611 A.2d 422; State v. McCall, supra, 187 Conn. at 77, 444 A.2d 896. "The trial judge is in the best position and is uniquely qualified to appraise the probable effect of information on the jury, the materiality of the extraneous material, and its prejudicial nature." (Internal quotation marks omitted.) State v. Leonard, supra. This court will reverse the trial court only if it determines that the factual findings were clearly erroneous. Id. " 'A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed....' " (Citations omitted.) Dalia v. Lawrence, 226 Conn. 51, 71, 627 A.2d 392 (1993); Central Connecticut Teachers Federal Credit Union v. Grant, 27 Conn.App. 435, 437-38, 606 A.2d 729 (1992). On the basis of the record, we are unable to conclude that the trial court's finding of no actual prejudice is clearly erroneous.

II

The defendant next claims that the trial court improperly instructed the jury that the elements of the crime of using or employing a person under the age of eighteen to sell cocaine in violation of General Statutes § 21a-278a(c) were identical to the elements of being an accessory to the sale of cocaine in violation of General Statutes §§ 53a-8 and 21a-278(b) except for the additional element that the person used or employed must have been under the age of eighteen. The defendant admits that this claim was not properly preserved in the trial court, but contends that it is nonetheless reviewable under the doctrine of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We agree.

" 'Our standard of review in cases when the defendant claims that the instructions violate constitutional due process protections is whether the jury instructions were so deficient that it was reasonably possible that the jury was misled.' " State v. Allen, 28...