State v. McCall

• Court: Supreme Court of Connecticut
• Writing for the Court: Before SPEZIALE; SHEA; SPEZIALE; In this opinion PETERS
• Citation: 187 Conn. 73,444 A.2d 896
• Parties: STATE of Connecticut v. Stephen McCALL.
• Decision Date: 11 May 1982

Page 896

444 A.2d 896 187 Conn. 73 STATE of Connecticut
v.
Stephen McCALL. Supreme Court of Connecticut. Argued Jan. 6, 1982.
Decided May 11, 1982.

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[187 Conn. 74] Joette K. Rubin, Asst. Public Defender, with whom, on the brief, was Jerrold H. Barnett, Public Defender, for appellant (defendant).

Linda K. Lager, Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty., and John J. Kelly, Asst. State's Atty., for appellee (state).

Before [187 Conn. 73] SPEZIALE, C. J., and PETERS, ARTHUR H. HEALEY, PARSKEY and SHEA, JJ.

[187 Conn. 74] SHEA, Associate Justice.

The defendant was found guilty by a jury of the crimes of sexual assault in the second degree in violation of General Statutes § 53a-71 and of risk of injury to the health or morals of a minor in violation of General Statutes § 53-21. From the judgment rendered in accordance with the verdict, he has appealed, claiming errors in the judge's failure to declare a mistrial after an ex parte conversation between a juror and the judge; in the charge on insanity; in the admission of evidence of prior misconduct of the defendant and of disclosure of the result of a former competency determination; in the charge on expert testimony; and in the subjection of the defendant to double jeopardy by his conviction on both counts. We find no error.

The jury might reasonably have found the following facts: The victim's father drove the defendant and Laurna Bell, a twenty-five year old woman, in his car from New Haven to Stratford [187 Conn. 75] on the morning of

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January 6, 1977, so that they could apply for jobs at the Sikorsky Aircraft plant. During the trip, the driver repeatedly stopped the car to put air in a leaky tire. In his absence the defendant made suggestive remarks to Bell, proclaiming his expertise in oral sex. She rejected his advances, expressing her disgust. At 11:30 a. m., while the defendant and Bell were still in the car, the driver picked up his five-year-old daughter from school. Before Bell was dropped off, she observed the defendant eyeing the little girl "like a little pervert." The victim's father drove his daughter and the defendant to his apartment where all three had lunch. Shortly thereafter, the father went out to purchase a pack of cigarettes. The defendant took the little girl to a bedroom, pulled down her pants, and performed cunnilingus for a minute until she told him to stop. When her father returned, she was crying, and forty-five minutes later the defendant admitted what he had done and said that he "got the vibes that said he should do this to all young black girls." The father called the police and the defendant was arrested. He gave the police a statement admitting the sexual assault, but subsequently refused to sign it.

The defendant filed notice of intent to use mental disease or defect as a defense pursuant to Practice Book § 758 (formerly § 2169).

I

The defendant claims that his motion for a mistrial, occasioned by the events surrounding a conversation between a juror and the judge in the absence of counsel, was improperly denied. The facts relating to the conversation are not disputed. The juror, who professed to be the foreman, [187 Conn. 76] approached the judge in the hall during a recess to express his concern, shared with three other jurors, that a fifth member of the jury, Anne Norcross, was not capable of being impartial. The judge asked him to come into his chambers. The juror then told the judge that, after hearing the testimony of the psychiatrists, Norcross had told the other jurors that her son had symptoms similar to those of the defendant. When the foreman left the chambers, the judge called in counsel to inform them of the meeting. The judge told them what the foreman had said and that he had simply thanked the foreman for giving him the information. Counsel for each party suggested that the substance of the incident be put on the record and this was done accordingly. After a weekend recess, counsel for the defendant moved for a mistrial on the grounds that the defendant's right to trial by an impartial jury and to due process of law had been violated in that (1) deliberations had taken place prior to the close of evidence; (2) an alternate may have participated in those deliberations; (3) extrinsic evidence supplied by a juror had been considered; and (4) the meeting between the foreman and the judge had taken place without the presence of counsel.

"[I]t is improper for jurors to discuss a case among themselves until all the evidence has been presented ... and the case has been submitted to them after final instructions by the trial court." State v. Washington, 182 Conn. 419, ---, 438 A.2d 1144 (42 Conn.L.J., No. 24, pp. 4, 6) (1980); 89 C.J.S., Trial §§ 457(e) and 460(b); 75 Am.Jur.2d, Trial § 994. An instruction authorizing such premature discussion is reversible error. Ibid.; Winebrenner v. United States, 147 F.2d 322, 329 (8th Cir.), cert. denied, 325 U.S. [187 Conn. 77] 863, 65 S.Ct. 1197, 89 L.Ed.2d 1983 (1945). Where, however, there has been no authorization, a discussion among jurors prior to the trial charge has been held not to be fatal. United States v. Klee, 494 F.2d 394, 396 (9th Cir. 1974); Pleasant Hill v. First Baptist Church, 1 Cal.App.3d 384, 427-28, 82 Cal.Rptr. 1 (1969); Wilson v. California Cab Co., 125 Cal.App. 383, 386, 13 P.2d 758 (1932); Glasgow Realty Co. v. Metcalfe, 482 S.W.2d 750, 757 (Ky.1972); Higgins v. Dean Gas Engine & Foundry Co., 140 Ky. 44, 45, 130 S.W. 800 (1910); St. Louis Southwestern Ry. Co. v. Gregory, 387 S.W.2d 27, 31 (Tex.1965).

The test is "whether or not the misconduct has prejudiced the defendant to

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the extent that he has not received a fair trial." United States v. Klee, supra, 396. A trial court has a large measure of discretion in dealing with a motion for a mistrial; State v. Martinez, 173 Conn. 541, 544, 378 A.2d 517 (1977); and its decision as to the fairness of the trial must be afforded great weight. United States v. Klee, supra, 396. The foreman's recapitulation of the discussion among the jurors did not contain assertions that any juror had made up his mind. See United States v. Klee, supra, 396. The record indicates only that four jurors felt a fifth could not serve impartially because of her familiarity with schizophrenia, a disease for which her son had been treated and which manifested itself by ideation similar to that exhibited by the defendant. The court declared its belief that there had not been "any extended discussions so that opinions have been reached by the other members of the jury."

It could be reasonably inferred that Norcross' personal experience made her more sympathetic to [187 Conn. 78] the defendant. Neither party requested her removal from the jury and the substitution of an alternate juror. The defendant's contention that the jurors would not be able "to pay proper respect to each other's opinions, and listen with candor to each other's arguments"; see State v. Smith, 49 Conn. 376, 386 (1881); because of the skeptical view which four of them may have entertained concerning the impartiality of Norcross is not persuasive. The defendant made no request for an examination of any of the jurors concerning bias or premature formation of opinions. Nothing related by the foreman to the court indicated any prejudice against the defendant on the part of any of these jurors. We conclude that the denial of the motion for mistrial was within the reasonable exercise of the trial court's discretion. See Genuario v. Finkler, 136 Conn. 500, 503, 72 A.2d 57 (1950).

There is nothing in the record to support the claim of the defendant that alternate jurors may have participated in the discussions involving Norcross. Since General Statutes § 51-243(c) ¹ expressly provides that alternate jurors shall not be segregated from the regular panel until the [187 Conn. 79] case is submitted for deliberations, the possibility that the alternates were present during the luncheon conversation which gave rise to this problem cannot be regarded as an outside influence upon the jury violative of their oath and of the statute. General Statutes § 1-25; ² General Statutes § 51-245. ³ Furthermore, "objections

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based on contacts between an alternate juror and the original jurors ... prior to the jury's retirement have usually been unsuccessful, especially in the situation where none of the original jurors is excused and the alternate is not needed to provide a full jury for deliberations." 75 Am.Jur.2d, Trial § 999, p. 840; see Ruffin v. State, 11 Terry 83, 93-94, 50 Del. 83, 93-94, 123 A.2d 461 (1956).

[187 Conn. 80] The defendant also claims that the resemblance Norcross saw between her son and the defendant was tantamount to the introduction of extrinsic evidence which fatally tainted the jury. The state argues that the defendant should be precluded from raising this claim since he knew of Norcross' son's affliction from the voir dire and, nevertheless, chose not to challenge her for cause. He did not, however, know that she would discuss the subject with other jurors in contravention of the judge's instruction not to discuss the case with anyone. It is reasonable to presume that jurors will adhere to the court's instructions. See Gorham v. Farmington Motor Inn, Inc., 159 Conn. 576, 581, 271 A.2d 94 (1970). The defendant cannot be said to have waived his objection and we, therefore, address the issue.

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. See, e.g., United States v. Winkle, 587 F.2d 705, 714 (5th Cir. 1979). "[A]ny 'prejudicial factual intrusion' denies a defendant his rights to trial by an impartial jury and to challenge the facts adverse to him that are made known to the jury. United States v. Howard, 506 F.2d 865 (5th Cir. 1975)." United States v. Winkle, supra,...