Opinion
No. CR00-105095
January 27, 2005
MEMORANDUM OF DECISION ON DEFENDANT'S MOTIONS CONCERNING ALLEGEDLY IMPROPER JUROR DELIBERATIONS
Sentencing in this case was scheduled for December 15, 2004. Pursuant to three motions dated December 9, 2004, defendant claimed that the verdict during the penalty phase was tainted. The three motions — styled "Motion for a New Penalty Phase Hearing," "Motion for Hearing on Improper Jury Considerations During Penalty Phase," and "Motion to Impose Life Sentence Based on Jury's Improper Consideration of Aggravating Factors Not Alleged by the State and Improper Exclusion of Mitigating Factor Alleged by the Defense" — request the Court to enter a judgment acquitting the defendant of the death penalty and imposing a sentence of life imprisonment without the possibility of release. All three motions assert the following in pertinent part:
1. Counsel Jack Franckling spoke to deliberating juror (Ms. X) in the above-captioned matter on Friday, December 3, 2004 after the motions hearing in the above matter.
2. Ms. X deliberated in both the guilt and penalty phases of the trial.
3. Ms. X stated to Attorney Franckling that the jurors used two boards during the penalty phase deliberations. On one board they listed the mitigating factors. On a second board, initially, was written the sole aggravating factor alleged by the State.
4. Some jurors expressed disappointment that there were many more mitigating factors than aggravating factors and that such an imbalance was unfair. CT Page 1347
5. Subsequently, more aggravating factors were added to the second board including, but not limited to:
The number of times the defendants went to the victim's home
Practicing with the rifle prior to the commission of the murder
The defendant was sick
It was cruel
It was cold-hearted
It was heartless
Victim was shot in his own bed
Victim was asleep
Victim was a stranger
6. The defense proposed a mitigating factor concerning lingering doubt about the identity of the shooter. The jury was swayed by the consideration that since the defense did not prove that Mr. Santiago was not the shooter, then the mitigating factor concerning doubt about the identity of the shooter could not be considered.
In sum, the jury improperly considered factors as aggravants which were not alleged by the State and which were used in the weighing process. In addition, the jury improperly excluded from the list of mitigating the [sic] factors such factors which alleged uncertainty about the identity of the shooter. That factor was subsequently excluded from the weighing process.
Pursuant to a January 3, 2005 motion and a supporting memorandum, defendant moves for a hearing on potential juror misconduct. Defendant asks the Court to require two jurors to provide testimony about their understanding and application of the Court's instructions.
In its January 19, 2005, Memorandum in Opposition to Defense's Request For a Hearing on Potential Juror Misconduct, the State opposes the defendant's motions. The State argues that defendant's claim that a juror or jurors erroneously misunderstood and misapplied jury instructions does not warrant a further hearing. The State also contends that the surrender by a juror of conscientiously held beliefs because of claimed weariness does not require a further hearing. Finally, the State argues that the allegation that jurors supplanted the sole aggravating factor alleged by the State with other non-statutory aggravating factors is unsupported by the evidence and requires no further investigation.
On January 21, 2005, following oral arguments, the Court denied all of the defendant's pending motions, for reasons stated on the record. This memorandum provides further explanation of the Court's ruling. As previously stated, the Court agrees with the arguments of the State and concludes that no additional inquiry, or hearing, is warranted in this case.
Analysis
It is important to understand what is not being asserted by defendant.
Defendant makes no claim that the jury was influenced by extraneous or extrinsic influences; or that improper racial or ethnic factors entered into the deliberation; or that the Court's instructions were erroneous or misstated the law.
Practice Book Section 42-33 states as follows:
Upon an inquiry into the validity of a verdict, no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror nor any evidence concerning mental processes by which the verdict was determined. Subject to these limitations, a juror's testimony or affidavit shall be received when it concerns any misconduct by which law permits a jury to be impeached. (Emphasis added.)
In Aillon v. State, 168 Conn. 541, 549-50, n. 3 (1975), our Supreme Court stated as follows:
Accordingly, it is today universally agreed that on a motion to set aside a verdict and grant a new trial the verdict cannot be affected, either favorably or unfavorably, by the circumstances: that one or more jurors misunderstood the judge's instruction; or were influenced by an illegal paper or by an improper remark of a fellow juror; or assented because of weariness or illness or importunities; or assented under an erroneous belief that the judge would use clemency or have the legal right to vary the sentence; or had been influenced by inadmissible evidence; or had decided upon grounds which rendered newly discovered evidence immaterial; or had omitted to consider important evidence or issues; or had miscalculated accounts by errors of fact or of law; or had by any other motive or belief been led to their decision. 8 Wigamore (McNaughton Rev.), Evidence § 23-49, and cases cited therein. (Emphasis added.)
See also Tanner v. United States, 483 U.S. 107, 117-28 (1987); State v. Asherman, 193 Conn. 695, 735-42 (1984); State v. Scruggs, 2004 Ct.Sup. 8150 (March 8, 2004) ( 37 Conn. L. Rptr. 109).
Following receipt of the defense motions, and with Practice Book Section 42-33 as well as Tanner, Aillon, Asherman, Scruggs, and related cases in mind, the Court consulted State v. Brown, 235 Conn. 502 (1995), in which our Supreme Court states as follows in relevant part:
Exercising our inherent supervisory power over the administration of justice, we now hold that henceforth a trial court must conduct a preliminary inquiry, on the record, whenever it is presented with any allegations of jury misconduct in a criminal case, regardless of whether an inquiry is requested by counsel. Although the form and scope of such an inquiry lie within a trial court's discretion, the court must conduct some type of inquiry in response to allegations of jury misconduct. That form and scope may vary from a preliminary inquiry of counsel, at one end of the spectrum, to a full evidentiary hearing at the other end of the spectrum, and, of course, all points in between. Whether a preliminary inquiry of counsel, or some other limited form of proceeding, will lead to further, more extensive, proceedings will depend on what is disclosed during the initial limited proceedings and on the exercise of the trial court's sound discretion with respect thereto. "A great deal is at stake in a criminal trial. The interests involved go beyond the private interests at stake in the ordinary civil case. They involve significant public interests. `The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction.' In re Winship, 397 U.S. 358, 363, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Indeed, the criminal jury trial has a role in protecting not only the liberty of the accused, but also the entire citizenry from overzealous or overreaching state authority. Duncan v. Louisiana, 391 U.S. 145, 156, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). In addition, the state has a valid and weighty interest in convicting the guilty. Summerville v. Warden, 229 Conn. 397, 427, 641 A.2d 1356 (1994); State v. Sawyer, 227 Conn. 566, 579, 630 A.2d 1064 (1993)." State v. Patterson, 230 Conn. 385, 398, 645 A.2d 535 (1994). The trial judge plays a crucial role in ensuring that a criminal defendant receives a fair trial by an impartial jury, and must be ever vigilant, throughout the course of the trial, to guard against jury partiality. "In a criminal trial, the judge is more than a mere moderator of the proceedings. It is [the judge's] responsibility to have the trial conducted in a manner which approaches an atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding. State v. Echols, 170 Conn. 11, 13, 364 A.2d 225 (1975)." (Internal quotation marks omitted.) State v. Brigandi, supra, 186 Conn. 543; see State v. Bausman, 162 Conn. 308, 312, 294 A.2d 312 (1972). "The jury room cannot be guarded with too much vigilance and jealousy. Courts must reject all evidence not received on the trial, and must repel every foreign influence, which may affect the minds of the jury." Esaw v. Friedman, 217 Conn. 553, 559, 586 A.2d 1164 (1991), quoting Clark v. Whitaker, 18 Conn. 543, 549 (1847). We recognize that the trial judge has a superior opportunity to assess the proceedings over which he or she personally has presided; State v. Ross, supra, 230 Conn. 227; State v. Rodriguez, supra, 210 Conn. 326; and thus is in a superior position to evaluate the credibility of allegations of jury misconduct, whatever their source. There may well be cases, therefore, in which a trial court will rightfully be persuaded, solely on the basis of the allegations before it and the preliminary inquiry of counsel on the record, that such allegations lack any merit. In such cases, a defendant's constitutional rights may not be violated by the trial court's failure to hold an evidentiary hearing, in the absence of a timely request by counsel. Even in the absence of constitutional violations, however, this court has supervisory authority over the administration of justice to direct trial courts to adopt judicial procedures that will address matters that are of "utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole." State v. Holloway, 209 Conn. 636, 645, 553 A.2d 166, cert. denied, 490 U.S. 1071, 109 S.Ct. 2078, 104 L.Ed.2d 643 (1989), quoting State v. Gonzalez, 206 Conn. 391, 394, 538 A.2d 210 (1988). In each case in which we have invoked our supervisory authority, we have acted to provide additional procedural safeguards for some salient aspect of the right to a trial before an impartial jury. See State v. Breton, supra, 235 Conn. 250 (special jury verdict form in death penalty cases); State v. Jones, 234 Conn. 324, 346-47, 662 A.2d 1199 (1995) (bifurcation of jury proceedings in some death penalty cases); State v. Patterson, supra, 230 Conn. 397-98 (personal judicial supervision of voir dire); State v. Holloway, supra, 645-46 (judicial inquiry into bias claims at voir dire). Similarly, in this case we are persuaded that a trial court must, when presented with any allegations of jury misconduct, conduct a preliminary inquiry, sua sponte if necessary, in order to assure itself that a defendant's constitutional right to a trial before an impartial jury has been fully protected. Our requirement that any allegations of jury misconduct necessitate some type of a preliminary inquiry still leaves the form and scope of such an inquiry to be determined by the trial court within the exercise of its discretion. See State v. Rodriguez, supra, 210 Conn. 326; see also State v. Ross, supra, 230 Conn. 227-28; State v. Cubano, supra, 203 Conn. 88-89; State v. Asherman, supra, 193 Conn. 735-36. In the proper circumstances, the trial court may discharge its obligation simply by notifyng the defendant and the state of the allegations, providing them with an adequate opportunity to respond and stating on the record its reasons for the limited form and scope of the proceedings held. In other circumstances, the trial court itself may need to cause an investigation of the allegations of jury misconduct to be conducted through informal or formal means. 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. See generally Marshall v. United States, 360 U.S. 310, 312, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959); Remmer v. United States, [ 347 U.S. 227, 229-30, 74 S.Ct. 450, 98 L.Ed. 654 (1954)]; United States v. Hillard, 701 F.2d 1052, 1064 (2d Cir.), cert. denied, 461 U.S. 958, 103 S.Ct. 2431, 77 L.Ed.2d 1318 (1983)]." State v. Rodriguez, supra, 326; see State v. Savage, 161 Conn. 445, 449-50, 290 A.2d 221 (1971). Any form of proceeding, of course, must be on the record. See State v. Savage, supra, 450. In future cases, a trial court may find it helpful to be guided by the following factors in exercising its discretion as to the form and scope of an inquiry into allegations of jury misconduct. By analogy to the law of procedural due process, the court should consider the following: "[f]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." (Internal quotation marks omitted.) Chmielewski v. Aetna Casualty Surety Co., 218 Conn. 646, 662, 591 A.2d 101 (1991); see State v. Morales, 232 Conn. 707, 721, 657 A.2d 585 (1995); Harkless v. Rowe, 232 Conn. 599, 625, 657 A.2d 562 (1995). The first factor, the private interest involved, focuses on the criminal defendant. Because the interest at stake is the defendant's constitutional right to a trial before an impartial jury, this "private interest" is always substantial. In assessing this interest, the trial court should give proper weight to the defendant's response, expressed through counsel, to the allegations of jury misconduct. See State v. McCall, supra, 187 Conn. 82 n. 4. If the defendant requests only a minimal type of proceeding, the trial court should honor the defendant's request, unless the court is persuaded that other factors warrant a more extensive inquiry. Before the trial court may honor the defendant's request, however, it must fully inform the defendant of the allegations and provide the defendant with an adequate opportunity to respond thereto, and the defendant must, through counsel, state on the record his or her preference for a minimal proceeding. In contrast, although the defendant can request an evidentiary hearing, the trial court should not hold such a proceeding if it is persuaded that a less extensive inquiry is more appropriate in light of all the circumstances. The second factor, the risk of deprivation of a defendant's constitutional right to a trial before an impartial jury, varies with the seriousness and the credibility of the allegations of jury misconduct. The more obviously serious and credible the allegations, the more extensive an inquiry is required; frivolous or incredible allegations may be disposed of summarily. A proper assessment of the seriousness of allegations will require the trial court to take into account the prejudicial nature of the alleged misconduct as well as the nature and degree of the jury's alleged involvement in the misconduct. See State v. Asherman, supra, 193 Conn. 736; State v. McCall, supra, 187 Conn. 80-82. A proper assessment of the credibility of the allegations will require the trial court to weigh the source of the allegations. Allegations made by identifiable and reliable sources, such as court personnel and jurors, are presumably entitled to more credit than are similar allegations made by an anonymous source. At the same time, however, corroboration and other indicia of reliability may enhance the credibility of even anonymous allegations. The third factor focuses on the state's interest. Although both the state and a criminal defendant have an interest in impartial jury trials; see State v. Patterson, supra, 230 Conn. 398; after a jury verdict has been accepted, other state interests emerge that favor proceedings limited in form and scope. The state has a strong interest in the finality of judgments; see Summerville v. Warden, supra, 229 Conn. 428; Myers v. Manson, 192 Conn. 383, 387, 472 A.2d 759 (1984); and in protecting the privacy and integrity of jury deliberations, preventing juror harassment and maintaining public confidence in the jury system. See generally Tanner v. United States, 483 U.S. 107, 120-21, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987). Any assessment of the form and scope of the inquiry that a trial court must undertake when it is presented with allegations of jury misconduct will necessarily be fact specific. No one factor is determinative as to the proper form and scope of a proceeding. It is the trial court that must, in the exercise of its discretion, weigh the relevant factors and determine the proper balance between them.
Because the pending defense motions appeared to raise issues relating almost entirely to the nature of the jurors' mental operations and the jurors' understanding and application of the jury charge, and not to external or extraneous influences, the Court was concerned that the claims being asserted did not rise to the level of the sort of cognizable jury misconduct claims that permitted further inquiry pursuant to Practice Book Section 42-33, controlling case law, and the general principle, dating back to Lord Mansfield, that a juror is incompetent to testify in impeachment of his own verdict. See, e.g., Mattox v. United States, 146 U.S. 140 (1892); State v. Aillon, supra; Josephine v. Meyers, 180 Conn. 302, 310-11 (1980) ("[S]uch affidavit . . . may not be received to show any matter which does not essentially inhere in the verdict itself, as that the juror did not assent to the verdict; that he misunderstood the instructions of the court, the statements of the witnesses or the pleadings in the case; that he was unduly influenced by the statements or otherwise of his fellow jurors, or mistaken in his calculation of judgment, or other matters resting alone in the juror's breast."). See also Williams v. Salamone, 192 Conn. 116, 122 n. 7 (1984) ("The trial court is not concerned with mental processes of the jurors, but the nature and quantity of the misconduct.")
Nonetheless, consistent with the general requirements of State v. Brown, and mindful of the fact that "death is different" and that a sentence of death was to be imposed, the Court ordered a preliminary hearing, which was held on December 14, 2004. The hearing consisted of representations made by one of the defendant's counsel, Attorney Jack Franckling; legal argument by counsel for the state and the defense; and testimony from defense investigator Wendy R. Clapp, who had spoken with juror Kerry Patches. Following the hearing, the Court ordered defense counsel to file a memorandum of law further explicating the arguments being asserted, and ordered a response from the State. Additional oral argument was heard on January 21.
At the hearing, Attorney Franckling described the circumstances relating to the receipt of the information from Mrs. Patches which led to the filing of the pending motions. Attorney Franckling explained that letters were sent to all of the jurors in late September. One of the letters was marked Defendant's Exhibit A. The letter stated in part that it was Attorney Franckling's practice to have his investigator briefly interview jurors willing to participate. The letter also stated: "The purpose is to prepare for post-trial motions as well as my own edification and professional growth."
Investigator Wendy R. Clapp testified. Copies of her file were introduced into evidence. A document from her file, an October 27, 2004, Investigator's Report relating to her interview of Kerry Patches, was admitted into evidence. So was the subsequently obtained unsworn statement provided by Kerry Patches, upon which the defense motions are largely based.
Review of the Investigator's Report alongside the unsworn statement substantially undercuts the force of defendant's motions.
The October 27, 2004 Investigator's Report includes the following statements, among others:
Patches expressed that she is still very upset over the Santiago trial and sentencing the man to death.
Patches stated, to this day she does not think that the defendant deserves to die because he was `stupid' and made a bad decision. She said she only agreed and gave into the death penalty because she could no longer come up with any `legal' reasons why not to. All of her reasons were personal reasons and the other jurors shot them down as soon as she said them.
Patches said the fact that this murder was a `murder for hire' situation was the only reason she used in order to sentence the defendant to death.
Patches said if there was anything throughout the appeal process that she can do to help then she is very willing.
Ms. Patches' unsworn statement includes the following statements, among others:
During the deliberations we, (the jury) had two boards put up. One board was Aggravating and the other was Mitigating. There were several issues listed under each title.
Aggravating
Santiago didn't know the victim. He bought a bat, Gloves and Ski Mask Number of times defendant met prior to the murder Number of trips to the murder scene prior because payment was [sic] disgussed the weapon was provided the etching on the bullets Murder for Hire
Mitigating
We didn't know who pulled the trigger Santiago had been taken from his home 22 times Mother's suicide Father's attempt and then committing suicide He only identified with dead father No prior convictions Santiago had been Hospitalized for Mental Illness.
I thought it was important that the State had not proven that Santiago had pulled the trigger, especially because the two others involved were not facing the death penalty.
I thought the defense had to prove that Santiago more likely than not was not the shooter, and if they didn't prove there was doubt, then we couldn't even consider it.
Legal Analysis
The threshold question facing the Court is whether the defendant has presented enough evidence to warrant further investigation and evaluation by the Court. The Court believes that the issues raised by the defendant's motions do not rise to the level of what is commonly denominated "juror misconduct" warranting further investigation by the Court. The Court concludes that what is being alleged, essentially — with the exception of the claim that one juror voted as she did due to fatigue — is that the juror or jurors misunderstood the instructions and/or misapplied them during the penalty phase deliberations. These assertions do not rise to the level of cognizable claims warranting further investigation, such as an allegation of racial or ethnic bias, or a claim that the jury improperly considering extraneous, prejudicial information. The Court concludes that further inquiry into these claims would inevitably enmesh the Court into an evaluation of the mental processes of the jurors, which is prohibited by Practice Book Section 42-33 and applicable law. In the alternative, the Court concludes that even if defendant's arguments are deemed to raise cognizable claims of "jury misconduct," the defendant's motions should be denied.
Two different sorts of arguments are being raised with respect to Kerry Patches. The first is that Ms. Patches — and Ms. Schoenagle, as well — inappropriately weighed factors that they should not have. The first claim appears to be that the jury should not have considered aggravating aspects of the case — such as the fact that the killing was cold-hearted, or the fact that the victim was murdered in his own bed, or the fact that the victim was a stranger — as part of the weighing process, in which it weighed the sole aggravant against any mitigating factors it found. The second claim is that Ms. Patches thought she could not consider the fact that Santiago might not have been the shooter while engaging in the weighing.
The first claim is not persuasive. The jury was instructed in detail what steps were required in their deliberations. The verdict form instructed them to first address whether the State had proven the aggravating factor alleged; whether one or more juror had found that the defendant had proven one or more mitigating factor; and then to engage in the weighing process required by law. The record — including the Investigator's Report as well as Kerry Patches' unsworn statement — reflects that the jury did exactly what it was told: first determine if the sole aggravant claimed by the State had been proven; and then later in the process engage in the required weighing. The totality of the record — including the Investigator's Report, the verdict forms, the Court's instructions on the law, closing arguments, and questioning during voir dire — indicates that the jurors knew and understood that the State was relying upon only one statutory aggravating factor. The argument that the jury did something improper by considering aggravating aspects of the crime, as part of its overall weighing, is unsupported by the record. An integral part of the jury's task in the weighing phase is to assign weight to the factors it is weighing. The jury cannot engage in the weighing in a factual vacuum. The jury was instructed to consider the evidence in both phases in reaching its decision as to penalty. It was entirely proper for the jury to consider all of the evidence, including aggravating aspects, as part of the evaluative process it undertook in the weighing stage.
The second claim is also rejected. Defense counsel, throughout both phases, made it abundantly clear that their client denied having actually committed the shooting. Number 24 of Defendant's Notice of Mitigating Factors, which went to the jury, stated "Lingering doubt about who committed shooting."
Included among the list of mitigating factors in Ms. Patches' unsworn statement is the following: "We didn't know who pulled the trigger." In that same statement, she states "I thought it was important that the State had not proven that Santiago had pulled the trigger, especially because the two others involved were not facing the death penalty."
With respect to this mitigating factor #24, see Penalty Phase Court Exhibit 18, the jury specifically asked the following question:
With regard to mitigating factor #24:
We are trying to determine if we consider this to be a viable mitigating factor.
Our understanding is that a factor is mitigating if, by a preponderance of the evidence, it is proven and believed to be more likely true than not true.
If the factor has neither been proven to be true or proven not to be true, does the law dictate that it is a mitigating factor, or should it be dismissed as a mitigating factor?
The Court responded to this question, in relevant part as follows:
Good morning to you all, ladies and gentlemen of the jury, Now I received your note yesterday afternoon and I've been working on a response . . . What I've done is come up with a response and I'm going to read it to you and I thought it would make it easier if I gave you copies of the response to follow along . . . This instruction I'm now giving you is no more or less important than any of the instructions I've all ready given you. They're all equally important.
Let me try to respond to each part of the note. The first part of your note reads that with regard to mitigating factor number 24, lingering doubt about who committed the shooting, quote, we are trying to determine if we consider this to be a viable mitigating factor, end quote. Of course, I've already told you in my instructions, whether something constitutes a mitigating factor is entirely within your power consistent with my instructions. By the way, I also remind you, as I've told you in my instructions that if any one or more of you conclude that a mitigating factor or factors has been proven, then you must all proceed to the weighing stage. With respect to the concern voiced in paragraph 2 of your note, and I quote your note again, Our understanding is that a factor is mitigating if by a preponderance of the evidence, it is proven and believed to be more likely true then not true. Let me clarify how the law requires you to go about deciding whether a mitigating factor has been proven. In determining whether a mitigating factor exists concerning the defendant's character, background, or history, or the nature and circumstances of the crime under our law, you must undertake a two step process. You must first determine whether a particular factor concerning the defendant's character, background or history, or the nature and circumstances of the crime has been established by a preponderance of the evidence. If you find a particular factor has been proven by a preponderance of the evidence. then you must determine secondly whether that factor is mitigating in nature considering all the facts and circumstances of the case as I have instructed you. The defendant bears the burden of proving the existence of any mitigating factor by a preponderance of the evidence . . . Your third paragraph states as follows. Quote, If the factor has neither been proven to be true or proven not to be true, does the law dictate that it is a mitigating factor or should it be dismissed as a mitigating factor, end quote. Because the defendant bears the burden of proving a mitigating factor by a preponderance of the evidence, if you unanimously find that the defendant has failed to prove a mitigating factor, then you may not conclude that it has been proven. I repeat whether something constitutes a mitigating factor is entirely up to you jurors consistent with the law as I've explained it to you. And if you look at page 40 of my instructions, you'll see that I explain what is meant by a preponderance of the evidence . . . So consistent with these instructions . . . if one or more of you has a lingering doubt about who committed the shooting and that lingering doubt has been proven to one or more of you by a preponderance of the evidence, then you would move on to the second stage to determine if this lingering doubt is mitigating in nature considering all the facts and circumstances of the case.
If both steps are proven, then the mitigating factor must be considered in the weighing stage. If, however, you unanimously find that the defendant has failed to prove either or both of the steps, you may not consider mitigating factor number 24 in the weighing stage . . . Now I hope this clarifies what you are asking about.
Don't hesitate to send out further notes if you need further instruction.
Defense counsel concurred in this instruction, and voiced no objection to it.
The jury was given a copy of the above instruction. As indicated, the jury was also invited to send out further notes if further instruction was needed. Notwithstanding the concurrence of defense counsel in the giving of this instruction, the above response will in all likelihood be reviewed by our Supreme Court on appeal.
It should be noted that mitigating factor #24 did not state: "Defendant did not commit the shooting." It was phased more advantageously to defendant by stating: "Lingering doubt about who committed shooting." Therefore, in the context of the full record, including both phases — in which the issue of who committed the shooting was continuously before the jury — the Court concludes that it was apparent to the jury that if they had lingering doubt about who committed the shooting, they could consider such lingering doubt in their penalty phase deliberations.
It should be recalled that included on the list of Defendant's Notice of Mitigating Factors — a list that was provided to the jury, and that was included in the jury instructions, which all 12 twelve jurors had, during the penalty phase — were the following claimed mitigating factors, in addition to number 24 ("Lingering doubt about who committed the shooting") —
23. Any factor the jury finds, whether or not enumerated, concerning Eduardo Santiago's character, background or history, or the nature and circumstances of the crime which in fairness and mercy constitutes a basis for a sentence [sic] imprisonment without the possibility of release.
25. The cumulative or combined effect of all of the mitigating evidence concerning Eduardo Santiago's character, background or history or the nature and circumstances of the offense which you find in fairness and mercy is mitigating and constitutes a basis for a sentence of life imprisonment without the possibility of release.
These two claimed mitigating factors also permitted the jury to consider the fact, in the penalty phase, that the jury may have had lingering doubt about whether Eduardo Santiago was the shooter.
In actuality, no matter how it is styled, the defendant's claim rests primarily on the argument that two jurors misunderstood and misapplied the Court's instructions. Such a claim, in the Court's view, does not raise a cognizable claim of "jury misconduct." The Court has failed to find any Connecticut law supporting these claims.
From a practical standpoint, as the cases emphasize, there are strong policy reasons why courts should hesitate to inquire into a jurors' deliberative or reasoning process in the absence of a claim that something extrinsic (e.g., a dictionary, a view of the scene, an experiment by jurors) or something deeply offensive to justice (e.g., remarks by a juror indicating racial bias) occurred. Such claims could be raised in every case in which a juror expresses second thoughts, or remorse, about having reached a verdict. Such claims are inherently difficult to prove. Merely delving into them would expose jurors to a searching inquiry into their thinking and reasoning processes, in contravention of Practice Book Section 42-33 and the clear directive of the case law, including State v. Brown. Logically, once one juror's understanding of the deliberation was subjected to inquiry, other jurors' thinking processes would also have to be invaded, because they would become witnesses to the deliberation and the veracity of the claim being made by the juror claiming to have misunderstood instructions. This would create a spectacle of one juror testifying against another and, inevitably, a hearing centering on the jury's deliberations. That in turn would undermine the finality of verdicts. It would provide losing counsel strong incentive to litigate the jury's deliberations. All of this would chill the free exchange of jurors' opinions and the privacy so necessary to the jury trial process.
There is also the reality that over time, a juror's view of what they once knew, or once thought, or once believed, could change, or be subject to a wide variety of subtle — or not so subtle — influences. The time for jurors to claim they don't understand the Court's instructions is during the deliberation, when the Court can take steps to clarify governing legal principles, not after a verdict has been reached.
Federal Rules of Evidence 606(b) states as follows in relevant part:
Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict . . . a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or to dissent from the verdict . . . or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to bear on any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.
For a detailed and thoughtful discussion of the rule prohibiting jurors from impeaching their own verdicts in federal proceedings, see Mueller, "Juror's Impeachment of Verdicts and Indictments in Federal Court Under Rule 606(b)," 57 Neb. L. Rev. 920, 923-24. (1979). Mueller states that the United States Supreme Court long ago singled out two powerful reasons which support the principle excluding courts from impeaching their own verdicts, citing to McDonald v. Pless, 238 Conn. 264, 267 (1915). The first reason is to prevent jurors from being harassed by the defeated party to secure evidence which might undermine the verdict. The second is to prevent what were intended to be private deliberations from public scrutiny, which would undermine the willingness of jurors to engage in frank deliberations. Mueller adds a third and fourth rationale: the need to protect the finality of verdicts, and the need to prevent losing parties from tampering with the process by appealing to the sympathies of reluctant jurors. States Mueller at page 924: "A single juror who reluctantly joined in a verdict is likely to be sympathetic to the overtures of defeated parties, and to be persuadable to the view that his own consent rested upon false or impermissible considerations; the truth will be hard to ascertain. In the process, the trier itself will be tried, all at the behest of a dissatisfied party aided by the second thoughts of a vaguely uncomfortable juror."
In the penalty phase in this case, in fact, the jury did send out notes — in addition to the note referenced above — requesting additional guidance from the Court. If jurors did not understand anything else concerning their deliberations, the Court concludes, they would have sent out a note during the deliberations.
The cases cited by defendant in his January 7, 2005, memorandum of law do not alter the Court's conclusion. The defendant cites to the case of State v. Tomasko, 242 Conn. 505, 513, n. 12 (1997) for the proposition that it is not improper for the Court to ask a juror if confusion over jury instructions influenced his desire to return a guilty verdict. But in Tomasko, what was at issue was the potential influence of an extraneous factor on the jury's deliberations. In Tomasko, a juror stated to other jurors that he had heard that the judge was preparing to give a "Chip Smith" instruction to the jury. The jury then spent a substantial amount of time discussing the meaning of such a charge. The trial court then inquired into what impact, if any, the jury's improper speculation about the possibility of a Chip Smith charge had on the verdict. In footnote 12, the court states that one of the jurors questioned, Schmidt, "testified that his vote to convict the defendant was not influenced by any misunderstanding of the `Chip Smith' instruction." What was being inquired into, therefore, was the extent to which extraneous and improper speculation may have influenced the jury. No such claim is being made in this case.
Finally, the Court's ruling is influenced by the following additional factors.
First, if the Court's instructions to the jury were not adequate, that claim can and should be raised in the appropriate post-conviction forum. The entire record of this case, including all of the Court's instructions, are sure to be carefully scrutinized given the significance of the issues involved.
Second, the claims being raised by defendant's motions are surfacing in response to inquiries by the defense, who are, understandably, searching for an infirmity in the process.
Third, the claims being raised are being raised well after the verdict was accepted and recorded. Cf. State v. Feliciano, 256 Conn. 429, 444-50 (2001). ("Fortunately, this issue arose before the jury had reached a verdict. Consequently, the trial court was permitted to call each juror individually to receive face-to-face assurances that the defendant's failure to testify would play no role in the deliberations.") The delay in raising these claims significantly weakens them.
Conclusion
The Court concludes that the defendant's motions have failed to raise a cognizable claim of jury impropriety requiring further action or inquiry by the Court In the alternative, the Court concludes that even if a cognizable claim were being raised, under governing precedents, including State v. Asherman, 193 Conn. 695, 736-37, as defendant conceded at oral argument on January 21, 2005, the defendant bears the burden of showing prejudice resulting from the alleged misconduct. The Court concludes, having considered the full record, that defendant has not met this burden.
By letter of December 16, 2004, Attorney Randolph informed the Court as follows:
On this date, I received a call from Fran Schoenagle, a juror who deliberated in the Santiago penalty phase. She told me she called because she saw the article in the Hartford Courant concerning Kerry Patches. At this point, I would expect more calls and did not know any other jurors would call after the hearing on December 14th.
Thank you.
In defendant's January 7, 2005, Memorandum of Law in Support of Motion for Hearing on Potential Juror Misconduct, Attorney Randolph states as follows, on page 4:
On December 16, 2004 juror Fran Schoenagle contacted the undersigned. She stated that she understood that any mitigating factors that were proposed `were not part of the nature and circumstances of the crime up to the time of the shooting and burglary' [sic] could not be considered. She stated that the mitigating factor alleging equal culpability fell into that category. Additionally, she stated that she surrendered her position because-if she had not `she would still be sitting there.' Ms. Schoenagle contacted the undersigned after the hearing on December 14th in response to a newspaper article about the hearing.
These representations by counsel do not, in the Court's view in light of the full record, require further inquiry or investigation by the Court. To the extent that Ms. Schoenagle now claims to have misunderstood the instructions, further inquiry is prohibited for the reasons stated above in connection with the statements made by Kerry Patches. To the extent Ms. Schoenagle "surrendered her position" because if she hadn't "she would still be sitting there," this, too, provides no further basis for inquiry. See State v. Aillon, supra. There is no claim that she was coerced or forced to decide as she did or that her decision was not the product of her free choice. In its instructions, the Court emphatically informed the jury that they must base their decisions on their own consciences.
Having reviewed the Investigator's Report and the unsworn statement and considered counsel's representations concerning Ms. Schoenagle, the Court further concludes that Ms. Patches and Ms Schoenagle are in all likelihood remorseful about having reached the verdict they did and would now like to assist the defendant in obtaining a different result. From a human standpoint, such remorse is entirely understandable, given the enormity of the decision the jurors unanimously made when they decided to return a verdict which requires the imposition of the penalty of death under Connecticut law. From a legal standpoint, however, such remorse offers no basis to inquire further or to grant any of the defendant's pending motions.
Perhaps our Supreme Court will someday rule that further inquiry is required when claims like these are raised relative to penalty phase deliberations in a death penalty case, but it has yet to do so. Consequently, in the Court's view, no further inquiry is warranted. All of the defendant's pending motions are denied.
Douglas S. Lavine Judge, Superior Court