State of Connecticut v. Terry Herring (2012)

MEMORANDUM OF DECISION RE POST–TRIAL MOTIONS

On February 9, 2010, the defendant, Terry Herring (hereinafter “Herring” or “defendant”), was arrested and charged with one count of conspiracy to distribute one or more Kilogram of marijuana in violation of Conn. Gen.Stat. §§ 53a–48 and 21a–278(b);  and one count of accessory to possession of one or more Kilogram of marijuana with intent to sell or dispense in violation of Conn. Gen.Stat. §§ 53a–8 and 21a–278(b).  On November 3, 2011, a jury found the defendant guilty of both counts.   On November 8, 2011, the defendant filed written motions for acquittal and a new trial.   On November 22, 2011, the court heard oral argument on defendant's motions.

FINDINGS OF FACT

The jury could have reasonably found, based on the evidence presented, that the following facts existed.   On February 3, 2010, the Drug Enforcement Agency (“DEA”) received information that there would be 5 shipments of large amounts of marijuana to be sent out to four destinations.   Law enforcement later learned that one package was to be shipped to defendant's address at 21 Austin Street in New Britain, Connecticut.

Prior to the delivery, New Britain police officers drove by the defendant's home a few times.   On February 8, 2010, officers noticed a garage sign stating “Jim's Garage” was placed on the front lawn of the residence.   The sign was not seen on the residence until the day before the anticipated delivery.

On February 9, 2010, in anticipation of a controlled delivery, officers began surveillance of the defendant's home at approximately 9:00 am.   Shortly thereafter, officers noticed a male, later identified as the defendant, sitting in a vehicle some distance away from the home and further down the street.   Based on their experience and training, the officers believed the individual was conducting surveillance on the home where the controlled delivery was expected.

At approximately 12:00 p.m., two officers, dressed in plain clothes and in an unmarked vehicle, intentionally drove over the “garage” sign that was located in front of the home to see if the defendant would react.   The defendant went to the front of the house and yelled at the officers.   He asked them what they were doing and told them “this is my sign and my house.”   The defendant replaced the sign in front of his home and returned to his surveillance location.   At approximately 2:00 p.m., a truck pulled up in front of the house and the driver opened the back of the truck.   The defendant along with a co-defendant were observed helping to remove a crate from the truck and pushing it towards the garage.   The defendant was arrested on the scene.

At the scene, Officer Farrell advised the defendant of his rights prescribed in Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).   At the station, the defendant was processed and placed in a separate interview room.   The defendant was interviewed by Agent Buckles, who took some notes and then Agent Buckles and Officer Anderson completed and printed a formal statement which the defendant read and signed.

The evidence introduced at trial established that the contents of the crate were in fact marijuana.   The total weight of the marijuana was approximately 110 pounds and had a street value of approximately $400,000.

DISCUSSION

1. Motion for Judgment of Acquittal

Defendant has renewed his motion for judgment of acquittal, pursuant to PB § 42–51, claiming that there was no evidence, direct or circumstantial, to establish that the defendant had the specific intent to possess or distribute one kilogram or more of marijuana.   Under PB § 42–51, “the court shall order the entry of a judgment of acquittal as to any offense specified in the verdict ․ for which evidence does not reasonably permit a finding of guilty beyond a reasonable doubt.”

“The issue to be determined is whether the jury [reasonably could have] concluded, from the facts established and the reasonable inferences which could be drawn from those facts, that the cumulative effect was to establish guilt beyond a reasonable doubt ․ The facts and the reasonable inferences stemming from the facts must be given a construction most favorable to sustaining the jury's verdict ․ It is established case law that when a defendant challenges the sufficiency of the evidence, we apply a twofold test.   We first review the evidence in the light most favorable to sustaining the jury's verdict.   We then determine whether, upon the facts thus established and the inferences reasonably drawn ․ the jury [reasonably could] have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt ․ In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.”  (Internal quotation marks omitted.)   (Citations omitted).  State v. Nero, 122 Conn.App. 763, 794–95, 1A.3d 184 (2010);  see also State v. Edwards, 247 Conn. 318, 322, 721 A.2d 519 (1998) (applying same test).

The evidence introduced at trial reasonably permits a jury finding of guilty beyond a reasonable doubt of both conspiracy to distribute and accessory to possession with intent to sell one kilogram or more of a cannabis-type substance.   The jury was instructed that they would have to find that the defendant specifically intended to distribute and possess one kilogram or more of marijuana.   The jury was also instructed on knowledge, intent and specifically advised that they could rely on circumstantial evidence.   The defendant's conduct prior to the delivery of the crate of marijuana was among the strong circumstantial evidence before the jury of defendant's knowledge and guilt.

Prior to the delivery, the defendant placed a “Jim's Garage” sign on his lawn and conducted surveillance on his own home by sitting in his car on the opposite side of the street and a few houses away from his home.   He drove around the area several times as part of the counter surveillance.   When undercover officers drove over the garage sign, he drove to his house and yelled at them for taking down his sign.   He replaced the sign and returned to his surveillance position.   Once the crate arrived, he assisted in pushing it into his garage and kept the garage door opener in his hand inside his pocket.   The defendant's actions were sufficient from which the jury could reasonably have inferred his intent to conspire to distribute and possess one kilogram or more of marijuana.

In addition to his conduct prior to the delivery, the jury heard evidence of the statements made by the defendant at the time of his arrest.   Once approached by law enforcement officers, the defendant hung his head low and stated “I knew this wasn't going to be good.”   Later that afternoon he gave a written statement that the co-defendant, Christopher Watson, had agreed to pay him $1,400.00 to receive the package and that “there was something that shouldn't be in it.”   The jury heard testimony that what it contained was 110 pounds of marijuana with a street value of approximately $400,000.

“The intent of the actor is a question for the trier of fact, and the conclusion of the trier in this regard should stand unless it is an unreasonable one.”  State v. Edwards, supra at 322, quoting, State v. Avcollie, 178 Conn. 450, 466, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S.Ct. 667, 62 L.Ed.2d 645 (1980).   The evidence of defendant's intent to engage in the conduct of which he was convicted was strong and the jury had ample evidence from which to find him guilty beyond a reasonable doubt of both counts of the information.

2. Motion for a New Trial

The defendant has also renewed his motion for a new trial by claiming that the court should have dismissed the two remaining jurors who were present on the elevator when a court intern made an inappropriate comment about the evidence.

A. Findings of Fact

The following findings of fact are relevant to this motion.   On October 24, 2011, the jury was sworn in and the evidence began in this case and continued until November 1, 2011.¹  The defense concluded its case with the last witness just prior to the luncheon recess.   The jury was excused for lunch and asked to return at 2:00 p.m. for closing arguments and jury charge.   During the luncheon recess the court was advised by a clerk that a juror had some concerns about an inappropriate comment made by an intern.   The court instructed the clerk to ask the juror to express any concerns in writing to the court.   At approximately 1:55 p.m., the court received a note from Juror T,² an alternate juror, which stated as follows:

In the elevator after the morning break, the staff intern said that today supposed to be a short day but who knows considering [defense counsel] kept asking the witness if he saw anything in the garage even though he couldn't have because the van was in his way (paraphrasing these remarks).   There were four jurors in the elevator at this time.   When we entered the jury room, I commented that the intern's remarks were totally inappropriate to which a couple of people immediately agreed.   Jury [DW] who has everyday mentioned his not understanding why we can't talk about this case, said, That was even worse than my comment about TH (Terry Herring confessing).   He proceeded to mention again how aggravating it is that we can't discuss.   I said, “because of exactly what happened in the elevator and because why would we talk about the testimony until it has all been heard!!”

Court Exhibit # 9.

Immediately upon receiving the note, the court asked the court clerk assigned to the case to remove the intern ³ from the courtroom and call the Deputy Chief Clerk to alert him of the allegation.   After reading the note and marking it as a court exhibit, the court took the following actions:  1) immediately suspended the trial to initiate a full hearing;  2) instructed the jury clerk to segregate Juror T, who wrote the note, from all other jurors;  and 3) instructed the jury clerk to segregate Juror DW, the other juror mentioned in the note.

After taking those actions, the court immediately initiated a full hearing, on the record and in the presence of counsel.   The first juror called was T, who testified about the contents of her note.   The court thanked her for bringing the matter to court's immediate attention and asked her to identify the four jurors present on the elevator.   Juror T identified juror DW and juror LW as two male jurors on the elevator.   As to the fourth juror, juror T was not able to recall her name but attempted to describe the juror as the woman who had traveled to Florida over the weekend.   After further questioning of the jurors, it was determined that the fourth juror was not juror C, the woman described by juror T, but rather juror G. Nonetheless, the court called first each of the four jurors identified by juror T. as being present on the elevator, as well as, juror G.

Of the four jurors on the elevator, both juror LW and juror G indicated that they were not paying attention and did not hear the substance of what the intern stated.   They understood that it was inappropriate and heard the other two jurors comment that the intern's remarks were inappropriate.   Both jurors LW and G further indicated that they had not been privy to any other discussions throughout the trial by either staff or jurors relating to the evidence in this case.   They assured the court that they understood the importance of the rules and that they could remain fair and impartial in this case.

Based on their testimony, both jurors T and DW heard the substance of the intern's comments on the elevator.   They also indicated that despite hearing the substance of the comments, they could remain fair and impartial.   Juror T also noted that the reference to “THC” or Terry Herring confessing was a comment made by juror DW in the jury room the previous week after a court recess and after the defendant's statement was admitted into evidence.   Specifically, both claimed that he commented on the form in which he took notes and that he thought it was a funny play on words.   Both acknowledged that juror DW's comment was also inappropriate.   Juror T indicated that she was not affected by juror DW's comment and could remain fair and impartial.   She was annoyed that juror DW repeatedly complained that he did not understand why the jurors could not discuss the case.

The court then called each of the remaining jurors, individually, to inquire whether they had become aware of any inappropriate remarks by staff, fellow jurors or anyone else.   The court inquired generally about whether they have heard any discussions by anyone, including their fellow jurors, about the evidence or substance of the case.   All remaining jurors were not aware of the substance of either the intern's comment that day or juror DW's comment about “THC” the previous week.   They all assured the court that they had not participated in or heard any inappropriate discussions and that they would be fair and impartial.   The court also reminded all jurors, individually, that they should not discuss what had been discussed in court with any jurors or anyone else.

At the conclusion of the hearing, after hearing from both counsel, the court excused jurors T and DW because they were the two jurors who had heard the substance of the intern's remarks.   While they both indicated that they could remain fair and impartial, in an over abundance of caution, the court excused them both.   Their testimony, along with that of all the other jurors, led the court to conclude that they were the only jurors exposed to the intern's comments.   The court also excused juror DW because of his “THC” comment and apparent inability to accept or follow the court's repeated instructions.   The court noted its reasons on the record.   Prior to excusing the remaining jurors for the day, the court advised them that they could not discuss the case with other jurors or anyone else and any violations should be immediately reported to the court in writing.

The court denied the defendant's motion for a mistrial and continued the case until November 3, 2011.   The court ordered an expedited transcript.   On November 3, 2011, the defendant renewed his motion for a mistrial by requesting that the court dismiss the two additional jurors on the elevator, jurors LW and G. After reviewing the transcript of the hearing and the applicable case law, the court denied the request and the trial continued with closing arguments and jury charge.   After approximately one and one-half hours of deliberations, the jury returned a verdict of guilty on both counts.

Thereafter the defendant filed a motion for a new trial and requested oral argument.   At the hearing on November 22, 2011, defense counsel argued that juror T had reported that “many jurors” commented in the jury room that they agreed that the intern's comment was inappropriate.   Since that statement was inconsistent with both juror T's note and testimony, which indicated that two jurors (DW and LW) agreed the comment was inappropriate, the court inquired where counsel had obtained that information.   Defense counsel then disclosed that he had obtained that information, post-trial, directly from juror T. He indicated that he had searched on the internet for juror T and identified her employer and work email.   He admitted to contacting her by email and subsequently meeting with her.   Counsel indicated he had prepared and emailed her a draft affidavit which she returned with revisions.   He was waiting for the final affidavit.

Defense counsel had not obtained or reviewed a copy of the hearing or juror T's testimony.   In fact, despite the court's suggestion, neither side had obtained a copy of the transcript of the hearing in anticipation of oral argument.   The court ordered defense counsel to submit to the court a copy of all communications with the juror on or about November 23, 2011 and continued the matter to December 5, 2011.   The court also strongly encouraged all parties to obtain a copy of the transcript of the hearing previously ordered and received by the court.

Prior to the December 5, 2011 hearing, defense counsel submitted the communications with juror T, under seal in two separate envelopes, along with a motion for a protective order requesting that the court not review the contents of their communications.   Counsel also submitted a signed affidavit from juror T. At the hearing, defense counsel could not identify a legal basis as to why the court should not review the contents of his communications with the juror but only that he did not act inappropriately.   Since defense counsel had not yet obtained a copy of the transcript of the hearing conducted by the court, he could not identify any material differences between the affidavit and juror T's testimony.   The court continued the hearing yet again.

On December 14, 2011, the court once again heard oral argument on the motion for new trial.   At that time, defense counsel conceded that juror T's affidavit did not differ from her testimony and, as such, the court need not review the contents of defense counsel's communications with the juror.   The court then denied the motion for a protective order as moot and indicated that it would keep the envelopes sealed and not review their contents unless and until a claim was made that juror T's post-trial statements differed from her testimony during the hearing.   Defense counsel further indicated that he did not intend to raise and would waive such a claim on appeal.   He requested that the court return the sealed items.   The court denied the request noting that the exhibits would be preserved for appeal or any further hearings required on this matter.

B. Discussion

When allegations of juror misconduct arise, the court should “conduct a preliminary hearing, sua sponte if necessary, in order to assure itself that the defendant's constitutional right to a trial before an impartial jury has been fully protected.   If the trial court determines that a proper assessment of allegations requires an evidentiary hearing, it possesses 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 of it ․ Any form of proceeding, of course, must be on the record.”  State v. Brown, 235 Conn. 502, 528, 668 A.2d 1288 (1995).

If the trial court is no way responsible for the misconduct by a juror, then the defendant bears the burden of proving actual prejudice resulted from that misconduct.  State v. Rhodes, 248 Conn. 39, 47, 726 A.2d 513 (1999);  see also State v. West, 274 Conn. 605, 649, 877 A.2d 787 (2005).   However, “where the trial court is directly implicated in juror misconduct, the state bears the burden of proving the misconduct was harmless error.”  State v. Rhodes, supra, 248 Conn. at 47.  “The defendant has been prejudiced if the misbehavior is such to make it probable that the juror's mind was influenced by it so as to render him or her an unfair and prejudicial juror.”  Id. The trial court should, as part of its inquiry, make every reasonable effort to assess the credibility of each witness (including jurors) and make factual findings on the record in support of its conclusion.  State v. Walker, 80 Conn.App. 542, 558, 835 A.2d 1058 (2003), cert. denied, 268 Conn. 902, 845 A.2d 406 (2004) (trial court “is in best position to evaluate the assurances by the jurors, the trial court's credibility assessment in entitled to substantial weight”).

In this case, there are allegations of misconduct by both court personnel and a juror.   The first allegation relates to the comments made by the intern while escorting four jurors during a late morning recess.   The defendant claims that the intern disclosed extrajudicial or extrinsic information.   However, the record does not support such a finding.   The intern's comments, while reprehensible, related directly to the testimony that had been elicited on direct and cross examination of the defense's last witness.⁴  The second allegation of misconduct relates to the comment made by juror DW, which was also inappropriate and contrary to the court's repeated instructions to jurors not to discuss the case or evidence in the case.

Immediately after learning of the allegations, the court notified counsel of the allegations, segregated the jurors, suspended the trial and conducted a full hearing by questioning each juror individually on the record and in the presence of counsel.   At the conclusion of the hearing and after consulting with counsel on the record, the court dismissed jurors T and DW, the two jurors who were on the elevator at the time of the intern's comments and aware of the nature of her comments.   The remaining two jurors who were on the elevator did not hear and could not relate the substance of the intern's comments.

Defendant's claim that the affidavit from juror T further substantiates his request to dismiss the two additional jurors lacks merit.   Other than providing the name of the fourth juror,⁵ the affidavit does not differ from juror T's testimony immediately after the incident.   At oral argument, defense counsel could not identify any additional material information that was contained in the affidavit that was not known at the time the court conducted the full hearing.⁶

Nor does juror T's testimony or affidavit support a finding that other jurors were compromised by either the intern or juror DW's comments.   Each juror was asked about whether they were privy to any discussions about the evidence or any inappropriate comments by staff or other jurors throughout the trial.   The court credits the testimony of all remaining jurors who assured the court that they did not hear or participate in any discussions or inappropriate conduct.   Each remaining juror also assured the court that he or she could be fair and impartial in this case.   The court concluded that the state had met its burden of establishing, beyond a reasonable doubt,⁷ that the misconduct by the intern had not prejudiced the defendant's right to an impartial jury with the remaining jurors.   The court also concluded that the defendant had not established that the conduct of juror DW had prejudiced the defendant.

In sum, the defendant's post-trial motions lack merit and are denied.

BY THE COURT

MARIA ARAUJO KAHN, Judge

FOOTNOTES

FN1. It should be noted that while the evidentiary portion of this trial was presented over 6 days, on most trial days, the court was only in session for half a day in order to accommodate the various scheduling requests of the parties and to address evidentiary issues raised by the parties..  FN1. It should be noted that while the evidentiary portion of this trial was presented over 6 days, on most trial days, the court was only in session for half a day in order to accommodate the various scheduling requests of the parties and to address evidentiary issues raised by the parties.

FN2. The court will refer to each juror by initials..  FN2. The court will refer to each juror by initials.

FN3. The intern was not employed by the State of Connecticut but rather a student from a local community college who was participating in a school administered internship program with the clerk's office..  FN3. The intern was not employed by the State of Connecticut but rather a student from a local community college who was participating in a school administered internship program with the clerk's office.

FN4. Specifically, the intern commented that the case was taking longer because defense counsel “kept asking the witness if he saw anything in the garage even though he couldn't have because the van was in his way.”   In an effort to lay a foundation for the admission of photographs of the contents of the garage, there were many questions asked of the witness about what he could observe inside the garage.   During the witness' testimony, he explained that law enforcement would not allow him to walk up to the driveway beyond the back of the van parked in the driveway and, on voir dire, he also admitted that he could not see in the garage.   The intern's comments did not introduce any extra judicial evidence but commented on the evidence elicited..  FN4. Specifically, the intern commented that the case was taking longer because defense counsel “kept asking the witness if he saw anything in the garage even though he couldn't have because the van was in his way.”   In an effort to lay a foundation for the admission of photographs of the contents of the garage, there were many questions asked of the witness about what he could observe inside the garage.   During the witness' testimony, he explained that law enforcement would not allow him to walk up to the driveway beyond the back of the van parked in the driveway and, on voir dire, he also admitted that he could not see in the garage.   The intern's comments did not introduce any extra judicial evidence but commented on the evidence elicited.

FN5. According to her affidavit, juror T states that she was later told that the name of the fourth juror on the elevator was juror G..  FN5. According to her affidavit, juror T states that she was later told that the name of the fourth juror on the elevator was juror G.

FN6. Defense counsel pointed to juror T's new statement that it was not she but juror LW who made the comment in the jury room that what the intern did was “inappropriate.”   However, immediately after the events in question, juror T stated both in writing and during her testimony that it was she who “commented that the intern's remarks were totally inappropriate to which a couple of people immediately agreed.”   Tr. at pg.9 and Court Exhibit # 9.   This distinction is not significant.   When asked by the court as to who agreed, juror T stated she believed it was “[LW and DW].” First, the statement in her affidavit is not inconsistent with her testimony that juror LW agreed that what the intern did was inappropriate.   Even if juror T's subsequent recollection was more accurate, the fact that juror LW either directly stated or simply agreed that what the intern did was inappropriate, does not affect the court's decision.   Juror LW's comment or agreement about the impropriety of a staff comment does not mean that he heard or understood the content of the intern's comment.   Any comment by a staff person about the trial would be inappropriate regardless of its substance.   Juror LW was clear in his responses, and the court credits his testimony, that he was not paying attention and did not know the content of the intern's statements..  FN6. Defense counsel pointed to juror T's new statement that it was not she but juror LW who made the comment in the jury room that what the intern did was “inappropriate.”   However, immediately after the events in question, juror T stated both in writing and during her testimony that it was she who “commented that the intern's remarks were totally inappropriate to which a couple of people immediately agreed.”   Tr. at pg.9 and Court Exhibit # 9.   This distinction is not significant.   When asked by the court as to who agreed, juror T stated she believed it was “[LW and DW].” First, the statement in her affidavit is not inconsistent with her testimony that juror LW agreed that what the intern did was inappropriate.   Even if juror T's subsequent recollection was more accurate, the fact that juror LW either directly stated or simply agreed that what the intern did was inappropriate, does not affect the court's decision.   Juror LW's comment or agreement about the impropriety of a staff comment does not mean that he heard or understood the content of the intern's comment.   Any comment by a staff person about the trial would be inappropriate regardless of its substance.   Juror LW was clear in his responses, and the court credits his testimony, that he was not paying attention and did not know the content of the intern's statements.

FN7. Defendant, citing State v. Aillon, 168 Conn. 541, 545 (1975), argues that the state must establish harmlessness beyond a reasonable doubt.   However, the proper standard of proof to be applied is not entirely clear from the case law.   In State v. Rhodes, the Supreme Court noted that since the court had found the state satisfied the higher burden of proof urged by the defendant, it saw “no reason to revisit our prior case law regarding the burden or standard of proof in juror misconduct.”   State v. Rhodes, 248 Conn. 39, 50, 726 A.2d 513 (1999)..  FN7. Defendant, citing State v. Aillon, 168 Conn. 541, 545 (1975), argues that the state must establish harmlessness beyond a reasonable doubt.   However, the proper standard of proof to be applied is not entirely clear from the case law.   In State v. Rhodes, the Supreme Court noted that since the court had found the state satisfied the higher burden of proof urged by the defendant, it saw “no reason to revisit our prior case law regarding the burden or standard of proof in juror misconduct.”   State v. Rhodes, 248 Conn. 39, 50, 726 A.2d 513 (1999).

Kahn, Maria Araujo, J.