State v. Migliaro

• Decision Date: 28 July 1992
• Docket Number: No. 10074,10074
• Citation: 28 Conn.App. 388,611 A.2d 422
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Gerald MIGLIARO.

Page 422

611 A.2d 422

28 Conn.App. 388

STATE of Connecticut v. Gerald MIGLIARO.

No. 10074.

Appellate Court of Connecticut.

Argued May 12, 1992.

Decided July 28, 1992.

Robert M. Casale, Branford, with whom, on the brief, was Catherine Browning, Law Student Intern, for appellant (defendant).

Carolyn K. Longstreth, Asst. State's Atty., with whom were Elpedio Vitale, Asst. State's Atty., and, on the brief, Michael Dearington, State's Atty., for appellee (state).

Before NORCOTT, HEIMAN and FREDERICK A. FREEDMAN, JJ.

HEIMAN, Judge.

The defendant appeals from a judgment of conviction, rendered after a jury verdict, of criminally negligent homicide in violation of General Statutes § 53a-58, ¹ and risk of injury to a child in violation of General Statutes § 53-21. He claims that the trial court violated his state and federal constitutional rights when it failed (1) to conduct an adequate inquiry into whether any jurors improperly relied on medical books brought to court by one of the jurors, and (2) to declare a mistrial because of the potential juror misconduct. We remand the case for an evidentiary hearing regarding potential juror misconduct.

The jury could reasonably have found the following facts. On October 8, 1989, the defendant dialed 911 and reported that Anna, his twelve week old daughter, was not breathing. Emergency medical personnel were dispatched immediately to the defendant's house, where they found the victim lying on the floor at the foot of a set of stairs. A paramedic observed that the victim's hands and lips had a bluish tinge and that her breathing was irregular. They concluded that the irregular breathing pattern was consistent with Cheyne-Stokes type respiration, a sign of brain injury. They also noted a red mark of unknown origin on her forehead. Her pulse rate was normal.

The defendant was present when the emergency medical personnel arrived. When asked what had happened, the defendant replied that the victim had been in her crib screaming and that when he went up to check on her, she stopped breathing. He further stated that he performed cardiopulmonary resuscitation on her. The defendant claimed that he had no idea how the victim got to the bottom of the stairway.

While still at the defendant's house, the paramedics inserted a tube into the victim's windpipe to assist her breathing. This was difficult because the victim's tracheal opening was so narrow. Once the victim was intubated, however, her skin became pinker, and she was brought by ambulance to Yale-New Haven Hospital. During the trip, the defendant, who accompanied the victim in the ambulance, appeared to be distraught.

At the hospital, the victim was taken to a trauma room, where she was treated by hospital personnel. The endotracheal tube still was in place and the victim appeared to be breathing in a normal pattern. Some concern was expressed regarding whether the tube had been placed in her esophagus, a circumstance that could have caused the victim's respiration to become compressed. The endotracheal tube, however, began to loosen and was removed. The victim's breathing again became labored, she was reintubated and doctors suctioned a small amount of what appeared to be baby formula from her trachea. The victim then was placed in the pediatric intensive care unit, where she died forty hours after being picked up by the emergency medical personnel.

At the time of her two month pediatric checkup, the victim was in normal physical condition. On the night of the occurrence, however, the defendant told the victim's pediatrician, who had come to the hospital, that she had vomited just before she had stopped breathing. The principal issue at trial was the cause of the victim's death. The state produced expert medical testimony indicating that the victim died as the result of a head injury caused by abuse, or shaken baby syndrome. The defendant produced an expert medical witness who opined that the victim died not from a traumatic brain injury but from either an inadequate supply of blood to her brain or an insufficiently oxygenated supply of blood to her brain, which in turn caused some of her brain tissue to die. The victim's pediatrician testified that his physical examination of her on the night of the occurrence disclosed no signs of bruises or other external injuries. Thus, the verdicts in this case necessarily were driven by the resolution of conflicting medical evidence.

The jury commenced its deliberations on January 28, 1991. Late that afternoon and again the next day, the jury sent the trial court a series of notes requesting reinstruction on certain elements of the offenses charged. The next morning, the trial court reinstructed the jury in accordance with its initial request, and reminded the jury that it was to decide the case only on the evidence presented in the courtroom. On the morning of January 29, 1991, when the jurors returned to resume their deliberations, one of the jurors brought two medical books with her, which apparently were taken by a courtroom clerk before the juror entered the deliberation room. How the books came to the attention of either the clerk or the trial court is unclear. After the trial court concluded its supplementary instruction, the following colloquy took place between Robert Casale, the defendant's attorney, Elpedio Vitale, the prosecutor, and the trial court regarding this incident.

"Mr. Casale: Judge, I would ask you just--We know that the juror dropped off a couple of medical books on the way. We just don't know if they were relied upon by that juror in any respect over the previous evening, and it's a delicate matter. And in that I don't know what the proper way to handle this is, I would imagine at this point forward the juror has been properly admonished to rely upon solely what has taken place in the courtroom. We don't know what may have taken place last night, since, as I say, the juror did come in armed with formidable medical texts this morning.

"Mr. Vitale: Mr. Casale calls them "formidable." They look like home health books that someone could purchase at a pharmacy. There's no evidence--Yesterday they were not in the courtroom for part of the jury deliberations; certainly, they are not today. So it's simply speculation on Mr. Casale's part. Chances are the juror was not aware of the fact she couldn't do that when she brought them in. And she was apprised of the fact they could not be utilized so she dropped them off.

"The Court: Certainly my guess would be she was told by someone probably upstairs that she certainly couldn't carry these into the jury room with her and she left them with the clerk. And that of course is why I gave that last admonishment, and I am confident that nothing will be made of anything that she might have read in the books. And I hate to single her out and bring her out there and then by doing that of course everyone is going to wonder why she's been brought out alone and admonished. It may have been given to her and curiosity might lead into an area that we don't want them to go into. And I frankly feel that in advising all of them that they could not base their decision on anything other than what they heard here in this courtroom, that they will confine their deliberations to that evidence that they heard here in the courtroom and only to that evidence.

"So, is there something that you're asking me to do?

"Mr. Casale: The great difficulty of course is we don't know what this juror may have learned on her own last night. And if she has acquired some independent information and that's part of the deliberation, the deliberation process being secret, we'd never know. There's no way to get at that.

"The defendant is in a difficult position. Really, the only alternative that I know of under the statute is to move for a mistrial, and for the reasons stated that's the only thing we can do to seek to protect ourselves under the circumstances.

"It's a funny thing because I don't know the information in those books, if any, was acquired and it could be fatal, it could be negative to us, it's not something we could ever know. With that caveat in mind, I think the defendant is constrained to move and we would so move.

"The Court: In that you are moving for a mistrial--let me get the book that is in question so we can make some record of what it is exactly. All right. Let the record indicate that the juror dropped off with the clerk something called, 'The Second Edition of the Complete Guide to Symptoms, Illness, and Surgery' written by H. Winter Griffith, M.D., published by the Body Press with a copyright date of 1985. The other is 'The Sixth Edition of The Complete Guide to Prescription and Nonprescription Drugs' by the same author, same press, with a copyright date of 1983. Did you wish to be heard before I make a ruling?

"Mr. Vitale: Only Mr. Casale's comments about we don't know what goes on in the jury room applies to any case. We can only presume that the jurors are going to follow the court's instructions about what they are to consider when reaching a verdict. Other than that, I have nothing else to say, Judge.

"The Court: And I would agree with your analysis. We must presume that the jurors' acts are in accordance with the instructions and the tenets of the oath. The mere fact that the books were dropped off rather than taken into the jury room indicates to me that especially after my cautionary instruction that nothing amiss can or will happen in the jury room. Your motion is, therefore, denied.

"Mr. Casale: Exception, please.

"The Court: Exception may be noted."

No evidence was taken as to whether the juror who brought the books to court had read them or whether the books contained any text that might be viewed as pertinent to the issues in the case. The jury returned verdicts as indicated previously.

The defendant claims that the trial court violated his state and federal constitutional rights when it failed...