Date: 04-12-2016

Case Style: STATE OF CONNECTICUT v. ORLANDO BERRIOS, JR.

Case Number: SC 19494

Judge: Richard A. Robinson

Court: Connecticut Appellate Court

Plaintiff's Attorney: Rita M. Shair, Michael Dearington, Roger Dobris

Defendant's Attorney: Richard E. Condon, Jr.

Description: This appeal requires us to consider the continuing vitality of the presumption of prejudice injurytamperingcasesarticulated bytheUnitedStates Supreme Court in Remmer v. United States, 347 U.S. 227, 74 S. Ct. 450, 98 L. Ed. 654 (1954) (Remmer I), which is a question that has divided state and federal courts for more than thirty years in the wake of Smith v. Phillips, 455 U.S. 209, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982), and United States v. Olano, 507 U.S. 725, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993). The defendant, Orlando Berrios, Jr., appeals1 from the judgment of the trial court convicting him, following a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). On appeal, the defendant claims that the trial court improperly denied his motion for a mistrial on the ground that his mother2 had tampered with the jury by approaching a juror outside the courthouse and speaking to him about the evidence in this case. Relying on the presumption of prejudice articulated in Remmer I (Remmer presumption), the defendant contends that his mother’s jury tampering violated his constitutionalrighttoafairtrialbecausethestatefailed tocarryits‘‘ ‘heavyburden’ ’’ofprovingthatheractions did not affect the jury’s impartiality. Although we conclude that the Remmer presumption remains good law incasesofexternalinterferencewiththejury’sdeliberativeprocessviaprivatecommunication,contact,ortampering with jurors about the pending matter, we also concludethatthestateprovedthattherewasnoreasonable possibility that the actions of the defendant’s mother affected the jury’s ability to decide this case fairly and impartially. Accordingly, we affirm the judgment of the trial court. The record reveals the following background facts, whichthejuryreasonablycouldhavefound,andprocedural history. On December 4, 2011, at approximately 7:20 a.m., the defendant and another man, Bernard Gardner,weredrivinginablackHyundaiSantaFe(car) on Cedar Street in the city of New Haven when they came upon the victim, Javier Ristorucci, who was out for a walk. The defendant stopped and exited the car, and while Gardner watched, robbed the victim at gunpoint. The victim gave the defendant his cell phone, cash, and the gray hooded sweatshirt and black jacket that he was wearing at the time. After being flagged down by Leonardo Ayala, a friend of the victim who had just left the scene, Francisco Ortiz, an officer in theNewHavenPoliceDepartment,sawthecarstopped in the middle of the street with its brake lights on; the defendantwassittinginthedriver’sseatsmokingcrack. The victim then told Ortiz that a man in the car with a gun had robbed him. When Ortiz attempted to stop the car, the defendant drove away, causing a high speed pursuit through the
streets of New Haven onto Interstate 91, which ended when the car came to a rest against the guardrail near exit 11 in North Haven. After a brief foot pursuit, Ortiz and several other police officers apprehended the defendant, who had been driving the car. In the meantime, other police officers apprehended Gardner, who waspinnedagainstthehighwayguardrailinthepassenger seat. Following a showup identification, the victim identified the defendant by his hat, clothing, and face as the person who had robbed him. Ortiz found the victim’s gray sweatshirt and black jacket when he searched the car; the gun, cash, and cell phone were not recovered. The state charged the defendant with robbery in the first degree in violation of § 53a-134 (a) (4), and the casewastriedtoajury.Duringtrial,ajuror,J,3informed the trial court that the defendant’s mother had approached him on the street outside the courthouse andcommentedontheveracityofoneofthewitnesses. Following voir dire of J and the rest of the jurors, the defendant moved for a mistrial on the ground of jury tampering. The trial court denied that motion. The jury subsequently returned a verdict finding the defendant guilty of robbery in the first degree. The trial court rendered a judgment of guilty in accordance with the jury’s verdict, and sentenced the defendant to a total effective sentence of fifteen years imprisonment, followed by five years of special parole. This appeal followed. The record reveals the following additional facts and procedural history relevant to the defendant’s claim that the trial court abused its discretion in denying his motion for a mistrial on the ground that the jury’s impartiality had been compromised by jury tampering. On the third day of evidence, the clerk informed the trial court that J had reported to the clerk that the defendant’s mother had approached him ‘‘and some communicationhadoccurred.’’Thetrialcourtthenread a note from J in which he stated that he had been ‘‘approached by the defendant’s mother in the parking lot yesterday . . . [at] approximately 3:30 p.m. She attempted to engage me in conversation. I did not respond to her comments.’’ The trial court then questioned J in open court about the note and he stated: ‘‘I guess [the defendant’s mother] was concerned for which way we were leaning and [she] was asking me if I . . . realized that that last cop was lying. And I made no comment to her and I told her [to] be careful of the gateway that we were walking over so she didn’t trip, and I said have a nice evening. So, that was the total.’’4 J further testified that he had informed the rest ofthejuryaboutthatencounterwhilehewaspreparing the note. J assured the trial court that his ability to decide the case based solely on the evidence had not been compromised as a result of the encounter.5
Inresponsetovoirdirequestionsfromthedefendant, J testifiedthat hedid nottell anyfriends orfamily what had happened, and had informed only the other jurors. When asked whether the conversation would affect his abilityto‘‘continu[e]tobefairandimpartialtothestate and to the defendant,’’ J responded, ‘‘[n]o, not at all.’’ J further testified that he viewed the actions of the defendant’s mother as those of ‘‘a concerned mother.’’ When asked whether he would ‘‘decide this case based on anything that happened yesterday [at] about 3:30 [p.m.] outside of this courtroom,’’ J responded, ‘‘[n]o.’’ Jalsotestifiedthathehadlearnedfromtheotherjurors that one juror, E, had witnessed the encounter with the defendant’s mother. Before questioning the other jurors, the trial court excluded the defendant’s mother from the courtroom. E then testified that, while stopped on his bicycle at the intersection of Orange and Grove Streets, he saw a woman, who he recognized from the courtroom, approachJfrombehindwhiletalking.Efurthertestified that he did not see or hear J communicate with her. E also testified, in response to questions from the trial court and the defendant, that the incident would not affect his ability to decide the case based solely on the evidence presented in court. Havinginterviewedthetwowitnessestotheincident, the trial court then summoned the remaining members of the jury for individual questioning.6 The next juror, M,testifiedthatJhadtoldtheothermembersofthejury that‘‘hewasapproachedbythedefendant’smother,but he didn’t say anything, he just walked off.’’ When asked by the trial court whether she would ‘‘decide [the] case based 100 percent on the evidence,’’ M responded, ‘‘[y]es.’’ M offered a similar assurance in response to questions from the defendant, agreeing that what she heard from J had not affected her ability to be ‘‘fair and impartial in this matter,’’ and that her impartiality remained the ‘‘[s]ame as it was when [she was] sworn in . . . .’’ Another juror, S, testified that J had said ‘‘he was approached by the defendant’s [mother].’’ S stated that she ‘‘believe[d]’’ J had spoken about ‘‘two young ladies behindhim’’atthattime‘‘withcellphonesand[J]wasn’t . . . sure whether he was being taped or not, so he needed to tell [the trial court].’’ S similarly assured the trial court that her ability to discharge her sworn duty to decide the case impartially ‘‘based 100 percent on the evidence in court’’ had not been compromised. In response to further questions from the defendant, S stated that J ‘‘wasn’t sure’’ about being recorded because the two young women ‘‘had cell phones out, so he wasn’t sure whether he was being taped, you know, for a mistrial, he wasn’t sure, so he wanted to tell the [trial court] because he wasn’t sure about being taped or not. He saw the two young ladies, I guess,
with cell phones, and he wanted to tell it just in case.’’7 When asked by defense counsel whether anything had ‘‘changedsincetheday[shewas]swornin’’withrespect to her ability to decide the case fairly in accord with her oath, S responded, ‘‘[n]o.’’ Another juror, D, testified that she wrote the note for J at his request after he told the other members of the jury that ‘‘he had been approached by [who] he believed to be the defendant’s mother in the parking lot and that he didn’t engage in conversation with her.’’ Dtestified,inresponsetoquestionsfromthedefendant, that,beinganeducator,shewrotethenoteforJbecause ‘‘[h]e [had] expressed that his writing skills were not as good as he hoped them to be.’’ D stated that J had been ‘‘fairly vague in his sharing’’ and had not provided any ‘‘details or anything to that nature. It was merely that he had been approached and he didn’t respond, and that was essentially the end of it.’’ When asked by the trial court whether she could keep an open mind and ‘‘decide the case based fairly and squarely 100 percentontheevidenceincourt,’’Drespondedintheaffirmative. The final juror, L testified that J had ‘‘said that he was approached by a person that he figured was the mother of the defendant, and that he did not pay attention to what she said, and did not respond to anything she said, he did not report to us what she said. And [J] said that his only concern was that somebody might be watching the encounter and videotaping it so that they could sort of say, hey, look,the jury has been tampered with and call for a mistrial, that was his concern, and that is why he wanted to report it . . . .’’ When asked by the trial court whether his ability to decide the case ‘‘based100percentonthe evidencepresentedincourt’’ had been compromised, L responded, ‘‘I don’t think so at all.’’ When asked whether he would ‘‘continue to be open-minded and fair and decide this case based exclusively on the evidence presented in court,’’ L responded, ‘‘absolutely.’’8 L further explained, in response to questioning by defense counsel, that J did not explain his understanding of the terms ‘‘tampering’’ or ‘‘mistrial’’ in expressing his concerns to the other jurors, that L believed that the defendant’s mother ‘‘must be very upset and very concerned’’ about this case, and that J appeared concerned about the effect of the encounter. L stated that he had not discussed anything else about the case with the other jurors. The defendant then moved for a mistrial. He argued that a mistrial was ‘‘in the interest of justice’’ because the other jurors’ voir dire testimony indicated that J had not been completely forthcoming with the details about his encounter with the defendant’s mother, in particular, his failure to inform the trial court about the presence of the two young women who might have recorded the encounter with their cell phones, and his
useoflegalterminologysuchas‘‘mistrial’’inexplaining his concerns to the other membersof the jury. The trial court denied the defendant’s motion, stating that ‘‘the idea that the defendant’s mother can approach a member of the jury with this kind of communication and then the defendant can get a mistrial out of this is just outrageous. It’s outrageous. Obviously, if the jury had, in fact, been contaminated, then that would be another story, but the court and counsel have interviewed each of the six members of the jury and it’s very apparent that they are very fair and they are very committed to deciding this case based 100 percent on what is said in court, on the evidence presented in court.’’9 The trial court then excluded the defendant’s mother from the courtroom for the remainder of the trial, noting that any prosecution decisions with respect to her conduct lay with the state. Before turning to the defendant’s specific claims on appeal, we note the following general principles. ‘‘We begin with the standard of review that governs this case.Inourreviewofthedenialofamotionformistrial, we have recognized the broad discretion that is vested in the trial court to decide whether an occurrence at trial has so prejudiced a party that he or she can no longerreceive afairtrial.The decisionofthe trialcourt is therefore reversible on appeal only if there has been anabuseofdiscretion.’’(Internalquotationmarksomitted.) State v. Anderson, 255 Conn. 425, 435, 773 A.2d 287 (2001). ‘‘Potential juror bias is considered akin to other misconductthatsimilarlymightaffectajuror’simpartiality, thuspotentiallyviolatingacorerequirementoftheright to trial by jury guaranteed by the constitution of Connecticut, article first, § 8, and by the sixth amendment to the United States constitution.’’ (Internal quotation marks omitted.) State v. Osimanti, 299 Conn. 1, 32, 6 A.3d790(2010);seealso,e.g.,Statev.Brown,235Conn. 502, 522, 668A.2d 1288 (1995). Judicialinquiry into jury tampering is governed by the same standards as other possibleinstances ofjury bias.See, e.g., State v. Dixon, 318 Conn. 495, 507, 122 A.3d 542 (2015). Thus, ‘‘[w]ith respect to allegations that a juror potentially may be biased, [e]ven where a juror has formed some preconceived opinion as to the guilt of an accused, a juror is sufficiently impartial if he or she can set aside that opinion and render a verdict based on evidence in the case. . . . Only where a juror has indicated a refusal to consider testimony and displayed evidence of a closed mind concerning [the] defendant’s innocence can it be said that [the court] abused its discretion in refusing to [remove] a juror [from the panel]. . . . It is enough if a juror is able to set aside any preconceived notions and decide the case on the evidence presented and the instructions given by the court. . . . While we recognize that a juror’s assurances that he or she is equal to the task are not dispositive of the rights of an accused
. . . we are aware of the broad discretion of a trial judge which includes his determination of the credibility to be given a juror’s statement in this context. . . . ‘‘The trial court’s assessment of the juror’s assurances,whileentitledtodeference,mustberealisticand informed by inquiries adequate in the context of the casetoascertainthenatureandimportofanypotential juror bias. . . . The inquiry need not, however, be lengthy, so long as the questions, viewed in the context of the juror’s answers, are adequate for the trial court to determine that the juror can indeed serve fairly and impartially. . . . The nature and quality of the juror’s assurances is of paramount importance; the juror must be unequivocal about his or her ability to be fair and impartial.’’ (Internal quotation marks omitted.) Id. Inthisappeal,thedefendantcontendsthat:(1)under Remmer I, supra, 347 U.S. 229, jury tampering in the form of a communication to a juror by a third party, here, his mother, was presumptively prejudicial; and (2)therecorddemonstratesthatthestatefailedtocarry its ‘‘ ‘heavy burden’ ’’ of proving that the jury tampering did not lead to the ‘‘reasonable possibility that [J] or any juror ‘was . . . affected in his freedom of action as a juror.’ ’’10 We address each claim in turn. I We begin with the defendant’s claim that the presumption of prejudice articulated in Remmer I, supra, 347 U.S. 229, continues to apply in cases concerning jury tampering, thus shifting the burden to the state to prove that there was no reasonable possibility that any juror was ‘‘affected in his [or her] freedom of action as a juror.’’ Remmer v. United States, 350 U.S. 377, 381, 76 S. Ct. 425, 100 L. Ed. 435 (1956) (Remmer II). Acknowledging an apparent inconsistency in our case law on this point; see, e.g., State v. Osimanti, supra, 299 Conn. 38–39 n.32; the defendant also notes a split among federal Circuit Courts about whether the Remmer presumption remains good law in light of the SupremeCourt’ssubsequentdecisionsinSmithv.Phillips, supra, 455 U.S. 209, and United States v. Olano, supra, 507 U.S. 725. The defendant then urges us to follow the vast majority of the federal Circuit Courts, which continue to employ the Remmer presumption in cases of significant jury misconduct, including tampering, thus requiring the state to prove harmlessness at anevidentiaryhearing.RelyingonUnitedStatesv.Dutkel, 192 F.3d 893, 895–96 (9th Cir. 1999), the defendant emphasizesthatthepresumptionisparticularlyapplicableincasesconcerningjurytampering,whichisa‘‘serious intrusion into the jury’s processes and poses an inherently greater risk to the integrity of the verdict,’’ because tamperingis anact likelyto give riseto resentment of the defendant by the jurors. In response, the state relies on the line of this court’s
cases cited in State v. Rhodes, 248 Conn. 39, 48, 726 A.2d 513 (1999), which follow Smith v. Phillips, supra, 455 U.S. 215, for the proposition that, under Remmer I,supra,347U.S.229,claimsofjurormisconductrequire only ‘‘a hearing where the focus of the inquiry must be whether the intrusion affected the jury’s deliberation and thereby its verdict.’’ This line of cases places the burden on the defendant to prove that: (1) misconduct occurred; and (2) that misconduct resulted in actual prejudice.11 We,however,agreewiththedefendantthat the Remmer presumption remains good law and was triggered once the trial court determined that jury tampering had occurred in this case, thus requiring the state to prove that there was no reasonable possibility that the tampering affected the impartiality of the jury. We begin by reviewing the trilogy of United States SupremeCourtcasesgivingrisetothisissueonappeal, namely, Remmer I, supra, 347 U.S. 227, Smith v. Phillips, supra, 455 U.S. 209, and United States v. Olano, supra, 507 U.S. 725. In Remmer I, supra, 228, the defendant was convicted by a jury of several counts of tax evasion. After the trial, the defendant and his attorneys learned from a newspaper article that the trial judge and the prosecutors had acted ex parte to have the Federal Bureau of Investigation (FBI) investigate the potentialofferofabribetoajuror,andthendidnothing furtheraftertheFBIdeterminedthattheofferhadbeen made in jest. Id. The Supreme Court held that the District Court improperly failed to afford the defendant a hearing with respect to the potential jury tampering, statingthat:‘‘Inacriminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of knownrulesofthecourtandtheinstructionsanddirectionsofthecourtmadeduringthetrial,withfullknowledgeoftheparties.The presumption is not conclusive, but the burden rests heavily upon the [g]overnment to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant.’’ (Emphasis added.) Id., 229. Accordingly, the Supreme Court remanded the case to the District Court for a hearing to ‘‘determine the circumstances, the impact thereof upon the juror, and whether or not it was prejudicial . . . .’’12 Id., 229–30. We next turn to Smith v. Phillips, supra, 455 U.S. 212, which arose from a federal habeas corpus petition claiming that the petitioner had been deprived of a fair trial by the fact that one of jurors had, at the time of the trial, an application pending for employment as an investigatorwiththeOfficeoftheDistrictAttorneythat was prosecuting him. Although the trial prosecutors becameawareofthejuror’spendingemploymentapplication, they did not inform the petitioner or the trial court of that fact until after the trial ended with a guilty
verdict. Id., 212–13. After a hearing, the state trial court foundthatthejuror’sapplication‘‘ ‘wasindeedanindiscretion’ but that it ‘in no way reflected a premature conclusionastothe[habeaspetitioner’s]guilt,orprejudice against [him], or an inability to consider the guilt or innocence of the [habeas petitioner] solely on the evidence.’ ’’ Id., 213–14. In holding that the petitioner wasnot entitledtoanew trial,theSupreme Courtcited Remmer I, supra, 347 U.S. 229, as illustrative of the proposition that it ‘‘has long held that the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias,’’13 and the court stated that Remmer I ‘‘recognized the seriousness not only of the attempted bribe, which it characterized as ‘presumptively prejudicial,’but also of the undisclosed investigation,’’ but nevertheless ‘‘did not require a new trial like that ordered in this case. Rather, the [Supreme] Court instructed the trial judge to ‘determine the circumstances, the impact thereof upon the juror, and whether or not [they were] prejudicial,inahearingwithallinterestedpartiespermittedto participate.’ . . . In other words, the [Supreme] Court ordered precisely the remedy which was accorded by [the state court] in this case.’’14 (Citation omitted; emphasis altered.) Smith v. Phillips, supra, 215–16. ThefinalcaseinthistrilogyisUnitedStatesv.Olano, supra, 507 U.S. 737, wherein the Supreme Court concluded that the presence of alternate jurors during jury deliberations, in violation of rule 24 (c) of the Federal RulesofCriminalProcedure,was‘‘notthekindoferror that ‘affect[s] substantial rights,’ ’’ and, thus, did not require reversal under the federal plain error rule. See Fed. R. Crim. P. 52 (b). In so concluding, the Supreme Court observed that ‘‘[w]e generally have analyzed outside intrusions upon the jury for prejudicial impact,’’ describing Remmer I, supra, 347 U.S. 227, as a ‘‘prime example,’’ and citing Smith v. Phillips, supra, 455 U.S. 217, for a ‘‘summar[y]’’ of the court’s ‘‘ ‘intrusion’ jurisprudence,’’particularlythepropositionthat‘‘ ‘[d]ueprocess does not require a new trial every time a juror has been placed in a potentially compromising situation.’ ’’ United States v. Olano, supra, 738. In Olano, the SupremeCourtstatedthat‘‘[t]here maybecaseswhere an intrusion should be presumed prejudicial . . . but a presumption of prejudice as opposed to a specific analysis does not change the ultimate inquiry: Did the intrusion affect the jury’s deliberations and thereby its verdict?’’(Citationsomitted.)Id.,739;seealsoid.(‘‘[w]e cannot imagine why egregious comments by a bailiff toajuror[Parkerv.Gladden,385U.S.363,87S.Ct.468, 17L.Ed.2d420[1966]oranapparentbribefollowedby an official investigation [Remmer I, supra, 277] should be evaluated in terms of ‘prejudice,’ while the mere presence of alternate jurors during jury deliberations shouldnot’’[emphasisomitted]).InOlano,theSupreme Court held that the presence of the alternate jurors did
not require reversal under the federal plain error rule because, although the alternates might ‘‘[i]n theory . . . prejudice a defendant’’ by ‘‘ ‘chilling’ ’’ deliberations or improperlyparticipatingtherein,therewasnoevidence on the record that they did so, particularly given the presumption that they would have followed the trial judge’s instruction not to participate. United States v. Olano, supra, 739–41. The court also stated that it did not ‘‘think that the mere presence of alternate jurors entailed a sufficient risk of ‘chill’ to justify a presumption of prejudice . . . .’’ Id., 741; see also id. (‘‘[w]hetherthe[g]overnmentcouldhavemetitsburden of showing the absence of prejudice . . . if [the] respondents had not forfeited their claim of error, is not at issue here’’). TheSupremeCourt’sdecisionsinPhillips andOlano created a great deal of uncertainty with respect to the continuing viability of the Remmer presumption, leading to a split among the federal Circuit Courts nationally, and to inconsistencies in our own case law. This conflict was brought to the fore locally in State v. Rhodes, supra, 248 Conn. 40, wherein the defendant sought a new trial on the ground of juror misconduct, namely, multiple conversations about the trial between a juror and her incarcerated boyfriend. The defendant in Rhodes argued that, under Remmer I and State v. Rodriguez,210Conn.315,325–26,554A.2d1080(1989), the federal due process clause ‘‘requires the state to establish the harmlessness of any juror misconduct beyond a reasonable doubt.’’15 State v. Rhodes, supra, 48. In so arguing, the defendant invited the court to ‘‘reconsider our precedent that places the burden on thedefendanttoshowthatheorshewasactuallyprejudiced by the juror misconduct when the trial court is in no way responsible for the impropriety.’’16 Id.; see, e.g., State v. Newsome, 238 Conn. 588, 628, 682 A.2d 972 (1996); Asherman v. State, 202 Conn. 429, 442, 521 A.2d 578 (1987). In response, the state relied on Smith v. Phillips, supra, 455 U.S. 215, for the proposition that ‘‘more recently, the United States Supreme Court has indicated that [Remmer I] stands only for the proposition that a defendant is entitled to a hearing at which the defendant bearsthe burden of provingactual prejudice.’’ State v. Rhodes, supra, 49; see also id., 49–50 n.16 (describing circuit split on this issue). This court, however,declined‘‘torevisit[its]priorcaselawregardingtheburdenorstandardofproofinjurormisconduct casesbecausethedefendantcannotprevail,evenunder the rule he urges us to adopt.’’ Id., 50. We subsequently declined similar invitations to address this issue in two recent cases. See State v. Dixon, supra, 318 Conn. 507– 508; State v. Osimanti, supra, 299 Conn. 38–39 n.32; seealsoState v. Walker,80Conn.App.542,557andn.8, 835 A.2d 1058 (2003) (discussing Rhodes and collecting cases),cert.denied,268Conn.902,845A.2d406(2004). In resolving this conflict in our case law, we review
otherjurisdictions’approachestothecontinuingviability of the Remmer presumption in light of Phillips and Olano.ThreefederalCircuitCourts,namely,theUnited StatesCourtsofAppealsfortheSixth,Fifth,andDistrict of Columbia Circuits, hold that the Remmer presumption has been significantly modified or overruled. The Sixth Circuittakes themost extremeposition, concluding that the Remmer presumption is a completely dead letter because Smith v. Phillips, supra, 455 U.S. 215, stands for the proposition that ‘‘[Remmer I] does not governthequestionoftheburdenofproofwherepotential jury partiality is alleged. Instead, [Remmer I] only controls the question of how the [D]istrict [C]ourt should proceed where such allegations are made, i.e., a hearing must be held during which the defendant is entitled to be heard. . . . In light of Phillips, the burden of proof rests upon a defendant to demonstrate thatunauthorizedcommunicationswithjurorsresulted in actual juror partiality. Prejudice is not to be presumed.’’17 (Citation omitted.) United States v. Pennell, 737 F.2d 521, 532 (6th Cir. 1984), cert. denied, 469 U.S. 1158, 105 S. Ct. 906, 83 L. Ed. 2d 921 (1985); see also, e.g.,UnitedStatesv.Orlando,281F.3d586,597–98(6th Cir.)(reachingsameconclusion),cert.deniedsubnom. Daniels v. United States, 537 U.S. 947, 123 S. Ct. 411, 154 L. Ed. 2d 290 (2002). The Fifth Circuit does not take such an extreme approach, but nonetheless has significantly circumscribed the Remmer presumption within its borders, stating that it ‘‘cannot survive Phillips and Olano,’’ and that its use is a discretionary decisionforthetrialcourt,uponashowingofsufficient prejudice.18 UnitedStatesv.Sylvester,143F.3d923,934 (5th Cir. 1998). The District of Columbia Circuit Court of Appeals has adopted a similar approach. See United States v. Williams-Davis,90F.3d490,495–97(D.C.Cir. 1996) (observing that Phillips and Olano ‘‘narrow[ed]’’ RemmerI,thusaffordingtrialcourtdiscretiontodeterminewhether ‘‘anyparticularintrusion showedenough of a likelihood of prejudice to justify assigning the government a burden of proving harmlessness’’ in case concerning encouragement from juror’s husband to ‘‘nail’’ defendant [internal quotation marks omitted]), cert. denied, 519 U.S. 1128, 117 S. Ct. 986, 136 L. Ed. 2d 867 (1997). In our view, these courts’ understanding of Phillips toalterorevisceratetheRemmerpresumptioniswholly inconsistent with the context of the Phillips opinion and well established norms for the reading of judicial opinions. As aptly noted by the United States Court of Appeals for the Fourth Circuit in United States v. Lawson, 677 F.3d 629, 642 (4th Cir.), cert. denied sub nom. Gibert v. United States, U.S. , 133 S. Ct. 393, 184 L. Ed. 2d 162 (2012), Phillips is factually and procedurally distinct from Remmer I. Factually, Phillips concerned juror impairment or predisposition, ratherthanthird-partyjurytamperingorextrinsicinflu
ences on the jury, and legally, Phillips was a federal habeascorpusreviewofastatecourtproceedingrather than direct appellate review of a trial court’s actions. SeeSmithv.Phillips,supra,455U.S.215–18.Moreover, althoughtheSupremeCourtstated in Phillips that‘‘the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias’’ it did so after acknowledging the Remmer presumptionandcitingRemmerIapprovinglyasrequiring only a hearing, rather than a new trial, as a remedy forclaimsofimproperjurorinfluence.Id.,215–17.Nothing at issue before the Supreme Court in Phillips concerned the allocation of the burden of proof or production at such hearings. Indeed, to read Phillips ascategoricallyeliminatingtheRemmerpresumptionis inconsistentwiththeSupremeCourt’slaterrecognition that ‘‘[t]here may be cases where an intrusion should be presumed prejudicial . . . .’’ (Citations omitted; emphasis added.) United States v. Olano, supra, 507 U.S. 739. Particularly given its factually and legally inapposite nature, interpreting the Supreme Court’s absolute silence on this point in Phillips as categorically eliminating the Remmer presumption contravenes the well established maxim that, ‘‘absent clear indications from theSupremeCourtitself,lowercourtsshouldnotlightly assume that a prior decision has been overruled sub silentio merely because its reasoning and result appear inconsistent with later cases.’’ Williams v. Whitley, 994 F.2d 226, 235 (5th Cir.), cert. denied, 510 U.S. 1014, 114 S.Ct.608,126L.Ed.2d572(1993);seealso,e.g.,Shalala v. Illinois Council on Long Term Care, Inc., 529 U.S. 1, 18, 120 S. Ct. 1084, 146 L. Ed. 2d 1 (2000) (Supreme Court ‘‘does not normally overturn, or so dramatically limit, earlier authority sub silentio’’); United States v. Mitchell,690F.3d137,143–45(3dCir.2012)(concluding that, despite some courts’ determinations to contrary, silence in Phillips did not foreclose use of implied bias doctrine because conclusion otherwise would have ‘‘Supreme Court abandon a centuries-old doctrine sub silentio’’). Indeed,themajorityofthefederalCircuitCourtshold that the Remmer presumption is still good law with respect to egregious external interference with the jury’s deliberative process via private communication, contact, or tampering with jurors about the matter. In particular, we observe that the United States Court of Appeals for the Second Circuit19 has consistently followed Remmer I and considers it ‘‘well-settled that any extra-record information of which a juror becomes aware is presumed prejudicial. . . . A government showingthattheinformationisharmlesswillovercome this presumption.’’20 (Citation omitted.) United States v. Greer, 285 F.3d 158, 173 (2d Cir. 2002); see also, e.g., UnitedStatesv.Farhane,634F.3d127,168–69(2dCir.) (government rebutted Remmer presumption in case
arising from juror’s Google search that revealed codefendant’s guilty plea), cert. denied sub nom. Sabir v. United States, U.S. , 132 S. Ct. 833, 181 L. Ed. 2d 542(2011); UnitedStates v. Weiss,752F.2d777,782–83 (2d Cir.) (government rebutted Remmer presumption with respect to contamination allegations arising from jurorbringingaccountingtextbookexcerptintodeliberations), cert. denied, 474 U.S. 944, 106 S. Ct. 308, 88 L. Ed. 2d 285 (1985); but see United States v. Morrison, 580Fed.Appx.20,21n.1(2dCir.2014)(summaryorder noting that government conceded applicability of Remmer presumption and declining to address circuit split ‘‘[b]ecause that issue has not been presented’’). Similarly,theFourthCircuitholdsthat‘‘onceadefendantintroducesevidencethattherewasanextrajudicial communication that was more than innocuous, the Remmer presumption is triggered automatically, and [t]he burden then shifts to the [government] to prove thatthereexistsnoreasonablepossibilitythatthejury’s verdict was influenced by an improper communication.’’(Internalquotationmarksomitted.)UnitedStates v. Lawson, supra, 677 F.3d 642; see also id., 641–43 (discussing circuit cases holding Remmer presumption applicableincasesconcerningattemptstobribejurors, comments made by restaurant owner to dining jurors about case, and juror’s contact of media outlets during penalty phase of capital trial, in applying presumption to juror’s unauthorized use of Internet encyclopedia during deliberations). The United States Courts of Appeals for the First, Third,Seventh,Eighth,Ninth,andTenthCircuitsaccord with the approaches of the Second and Fourth Circuits with respect to serious, or not ‘‘innocuous’’ claims of external influence, such as jury tampering, bribery, or use of extra-record evidence.21 See, e.g., Stouffer v. Trammell, 738 F.3d 1205, 1214 n.5 (10th Cir. 2013); United States v. Honken, 541 F.3d 1146, 1167 (8th Cir. 2008), cert. denied, 558 U.S. 1091, 130 S. Ct. 1011, 175 L. Ed. 2d 618 (2009); United States v. Al-Shahin, 474 F.3d 941, 949 (7th Cir. 2007); United States v. Rutherford, 371 F.3d 634, 643 (9th Cir. 2004); United States v. Lloyd, 269 F.3d 228, 238–39 (3d Cir. 2001); United States v. Boylan, 898 F.2d 230, 261 (1st Cir.), cert. denied, 498 U.S. 849, 111 S. Ct. 139, 112 L. Ed. 2d 106 (1990); see also United States v. Tejeda, 481 F.3d 44, 48–52 (1st Cir.) (declining to apply Remmer presumption when older man, later identified to be defendant’s grandfather, made throat-slitting gesture in courtroom that was witnessed by two jurors because gesture did not pertain to evidence in case and court did ‘‘not want tocreateanincentiveforsuchgesturing’’byindividuals associated with criminal defendants), cert. denied, 552 U.S.1021,128S.Ct.612,169L.Ed.2d393(2007);United States v. Boylan, supra, 261 (limiting applicability of Remmer presumption ‘‘to cases of significant ex parte contacts with sitting jurors or those involving aggra
vated circumstances’’). Finally,manyofoursisterstatesthathaveconsidered the issue22 hold that the Remmer presumption remains good law in addressing claims of extrajudicial communications or jury tampering.23 See State v. Miller, 178 Ariz. 555, 559 n.2, 875 P.2d 788 (1994); People v. Runge, 234 Ill. 2d 68, 103–104, 917 N.E.2d 940 (2009), cert. denied, 559 U.S. 1108, 130 S. Ct. 2402, 176 L. Ed. 2d 925 (2010); Ramirez v. State, 7 N.E.3d 933, 936–38 (Ind. 2014); Jenkins v. State, 375 Md. 284, 317–19, 825 A.2d 1008 (2003); Meyer v. State, 119 Nev. 554, 564–65, 80 P.3d 447 (2003); Trice v. Baldwin, 140 Or. App. 300, 304–306, 915 P.2d 456 (1996); see also Hill v. United States, 622 A.2d 680, 684 (D.C. 1993) (‘‘[W]here, following a hearing, the defendant has established a substantiallikelihoodofactualprejudicefromtheunauthorized contact . . . all reasonable doubts [about the juror’s ability to render an impartial verdict must] be resolved in favor of the accused. . . . In this sense [the] allocation of the burden [of proving harmlessness to the government in Remmer I] remains the law . . . .’’ [Citations omitted; internal quotation marks omitted.]); Greer v. Thompson, 281 Ga. 419, 421, 637 S.E.2d 698 (2006) (questions continued viability of Remmer presumption, but notes similar presumption as matter of state criminal procedure with respect to unauthorized communication to juror). Having considered these authorities in light of our reading of the United States Supreme Court opinions, weconcludethatthe Remmerpresumptionisstillgood lawwithrespecttoexternalinterferencewiththejury’s deliberative process via private communication, contact, or tampering24 with jurors that relates directly to the matter being tried.25 We agree with the observation, made by the Court of Appeals of Maryland in rejecting the argument that ‘‘the Remmer presumption . . . has beenerodedincaseswhereegregiousjurorandwitness misconduct occurs,’’ that the Remmer presumption ensures ‘‘that a criminal defendant receives adequate due process. A right as fundamental as the right to an impartial jury cannot be compromised by even the hint of possible bias or prejudice that is not affirmatively rebutted.’’ (Emphasis omitted.) Jenkins v. State, supra, 375 Md. 319; see id., 321–25 (applying presumption and requiring new trial when juror and witness sought each other out at weekend religious retreat held midtrial, had lunch together, and sat next to each other during seminar, particularly given court’s no contact instructions, despite lack of evidence that they had discussed case). Thus, the ‘‘burden properly rests on the state for several reasons: the overarching importance of protectingthedefendant’sconstitutionalrighttoafairtrial, the continuing maintenance of the integrity of the jury system and the necessity of continuing to preserve the trust reposed in criminal jury verdicts.’’ State v. Rodriguez, supra, 210 Conn. 328.
We emphasize, however, that the burden remains on the defendant to show prima facie entitlement to the Remmer presumption; evidence, rather than speculation, is required to shift the burden of proof to the state.26 SeeStatev.Savage,161Conn.445,450,290A.2d 221 (1971) (declining to apply Remmer presumption when ‘‘the trial court fully developed the facts by interrogating the jurors in question, and as a result of this interrogation the court concluded that there had been no conversation between these jurors, the complainant and her mother’’); State v. Zapata, 119 Conn. App. 660, 686–87, 989 A.2d 626 (declining to apply Remmer presumption because ‘‘[t]here are no factual findings in the record—indeed, no facts in the record—to support thecontentionthat[thejuror’s]siblingknewthevictim’’ and defendant’s argument was ‘‘predicated on assumptions’’), cert. denied, 296 Conn. 906, 922 A.2d 1136 (2010), overruled on other grounds by State v. Dixon, 318 Conn. 495, 509 n.4, 122 A.3d 542 (2015); see also Ramirez v. State, supra, 7 N.E.3d 939 (defendant entitled to presumption of prejudice ‘‘only after making two showings, by a preponderance of the evidence: [1] [extrajudicial] contact or communications between jurors and unauthorized persons occurred, and [2] the contact or communications pertained to the matter before the jury’’). Accordingly, because there is no dispute in the present case that the comments made by the defendant’s mother to J concerned the veracity of a witness and, therefore, directly related to the matter beforethejury,weconcludethattheRemmerpresumption was triggered in this case. Finally, the Remmer presumption is ‘‘not conclusive. Theburdenrestsheavilyonthegovernmenttoestablish thatthecontactwasharmless.’’ United States v. Moore, 641 F.3d 812, 828 (7th Cir.), cert. denied, U.S. , 132 S. Ct. 436, 181 L. Ed. 2d 283 (2011). The state bears this ‘‘heavy burden’’ of proving that there was no ‘‘ ‘reasonable possibility’ ’’ that the tampering or misconduct affectedthejury’simpartiality.UnitedStatesv.Rutherford,supra,371F.3d641;accordUnitedStatesv.Cheek, 94 F.3d 136, 142 (4th Cir. 1996); State v. Asherman, 193 Conn. 695, 741–42, 478 A.2d 227 (1984) (state proved improperexperimentationbyjuryharmlessbeyondreasonable doubt), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985). II Accordingly, we now turn to the defendant’s claim that the state did not meet its ‘‘ ‘heavy burden’ ’’ of rebutting the Remmer presumption in this case. The defendant argues that the trial court improperly relied on J’s assurances of impartiality in finding that the misconduct in the present case did not deprive him of a trial before a fair and impartial jury. Specifically, the defendant claims that the record demonstrates that J wasnotcandidwiththecourtwhenhefailedtodisclose
numerous ‘‘critical’’ details about his encounter with the defendant’s mother, namely, his concern about the presence of the two young women with cell phones who might record the incident to prove jury tampering and cause a mistrial. The defendant also contends that the ‘‘close familial relationship’’ between himself and the person who tampered with the jury was ‘‘extraordinarily prejudicial’’ because it would lead jurors to suspect that the defendant instigated the jury tampering in an effort to cause a mistrial, leading them to resent himintheirdeliberations.Thedefendantfurtherargues thatthejuryitselfcommittedmisconductbydiscussing theencounteramongthemselvespriortothecourtsummoning them for voir dire. He also posits that, ‘‘where [J] and [the] other jurors had already discussed the matter, there is reason to believe [the] jurors would disregard the court’s instruction during the hearing not to discuss the matter, if only briefly and reference [the] defendant’s mother.’’ In response, the state argues that it satisfied its burden of proving that the encounter between J and the defendant’smotherdidnotviolatethedefendant’sright to a fair trial before an impartial jury. The state emphasizes that J’s credibility was a matter for the trial court to assess, and that the record does not indicate that he intentionally withheld information from the court. The state maintains that J was not sure whether the two women outside the courthouse were videotaping the encounter, thus, furnishing a reason for not conveying that fact to the trial court. We agree with the state, and conclude that the record and the findings of the trial court demonstrate that the state carried its burden of proving that there was no reasonable possibility that the actions of the defendant’s mother affected the jury’s impartiality. Havingreviewed therecordin thiscase,we aresatisfied that the trial court did not abuse its discretion in denying the defendant’s motion for a mistrial.27 The trial court, with its superior vantage point to assess the credibility of the testifying jurors, reasonably could have believed the testimony of J and the other jurors thattheactionsofthedefendant’smotherdidnotaffect theirimpartialityortheirabilitytodecidethecasebased solely on the evidence admitted at trial. ‘‘The nature and quality of the juror’s assurances is of paramount importance; the juror must be unequivocal about his orherabilitytobefairandimpartial.’’Statev.Osimanti, supra, 299 Conn. 36. Thus, we note that the transcript does not reveal any equivocation by the jurors in attesting to their continued impartiality. Evaluation of any equivocation evinced in tone or manner remains in the province of the trial judge.28 See, e.g., State v. Newsome, supra, 238 Conn. 631; State v. Cubano, 203 Conn.81,92,523A.2d495(1987);seealsoUnitedStates v. Farhane, supra, 634 F.3d 169–70 (The trial court reasonablyconcludedthatajuror’sdiscoveryofacode
fendant’s guilty plea through an impermissible Internet search did not require a mistrial when ‘‘no juror indicated that he or she would have a problem following . . . instructions’’ to consider only evidence admitted at trial and not to ‘‘ ‘draw any inference, favorable or unfavorable, toward the government or the defendant from the fact that any person in addition to the defendant is not on trial here. You also may not speculate astothereasonswhyotherpersonsarenotontrial.’ ’’). Further, J’s act of coming forward on his own supports the trial court’s assessment of his credibility and lack of animus toward the defendant. Had the actions of the defendant’s mother ‘‘left [J] inclined to be less than fair and impartial toward the defendant, [J] likely would have kept that information to himself in an attempt to ensure that he remained on the jury to vote to convict the defendant.’’ State v. Osimanti, supra, 37. To the extentthatthedefendantreliesonJ’sfailuretomention during voir dire the presence of the two young women with cell phones or his concern for a mistrial, the trial courtreasonablycouldhaveattributedthoseomissions to J’s lack of certitude on that point, given that cell phones withcameras are ubiquitous, andthe testimony of S and L that J’s observations about the women were vague and speculative. Finally, some of the jurors, specifically, J himself and L, expressed understanding for the actions of the defendant’s mother, given her obvious concern for the defendant’s future. This strongly supports the trial court’s determination that the jurors were not biased against the defendant as a result of his mother’s actions.29 Cf. State v. Rhodes, supra, 248 Conn. 50–51 (Thejuror’simproperconversationswithherboyfriend ‘‘were not prejudicial to the defendant’’ because they ‘‘provided [her] with reasons to view the state’s case with suspicion. [The boyfriend’s] other trial-related comments to [the juror] also could not reasonably be construed as harmful or otherwise unfavorable to the defendant.’’).

Outcome: We, therefore,concludethatthe statehas established that there is no reasonable possibility that theactionsofthedefendant’smotheraffectedthejury’s abilityto actfairly andimpartially indecidingthis case. Accordingly, the trial court did not abuse its discretion in denying the defendant’s motion for a mistrial. The judgment is affirmed.

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