State v. Mucha, No. 32395.

137 Conn.App. 173

47 A.3d 931

STATE of Connecticut

v.Gerald W. MUCHA.

No. 32395.

Appellate Court of Connecticut.

Argued April 16, 2012.

Decided July 31, 2012.

James B. Streeto, assistant public defender, for the appellant (defendant).

Ronald G. Weller, senior assistant state's attorney, with whom, on the brief, were David S. Shepak, state's attorney, and Cynthia Palermo, senior assistant state's attorney, for the appellee (state).

BEAR, SHELDON and PETERS, Js.

SHELDON, J.

The defendant, Gerald W. Mucha, appeals from the judgment of conviction, rendered against him following a jury trial, of one count of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14–227a (a)(1).¹ On appeal, the defendant claims that: (1) the trial court erred in denying his motion to voir dire the jurors concerning a newspaper article that was published during trial; (2) the trial court erred in denying his motion to suppress the statements he made to state troopers at the scene of the automobile accident which led to his arrest in this case; and (3) improprieties in the prosecutor's rebuttal closing argument deprived him of his due process right to a fair trial.² We disagree and, thus, affirm the judgment of the trial court.

The jury reasonably could have found the following relevant facts. On June 26, 2008, Trooper Michael Burke of the Connecticut state police was called to an accident scene at 387 Scoville Hill Road in Harwinton. Burke determined that an automobile driven by Julie Moore had rear-ended the defendant's parked automobile at that location. He thus concluded that Moore was at fault for the accident and ticketed her accordingly. Burke testified that during his investigation, while speaking with the defendant, he noted that the defendant had an odor of alcohol about him, a disheveled appearance and glassy, bloodshot eyes. Suspicious that the defendant, who had just driven his automobile to the location where Moore struck it, may have been operating under the influence of intoxicating liquor, Burke asked another state trooper, Shawn Prusinowski, to stay with the defendant during the accident investigation.

Near the end of the accident investigation, Burke questioned the defendant as to whether he had been driving under the influence of intoxicating liquor. When asked if he had consumed alcohol that day, the defendant answered in the affirmative and indicated that he started drinking between 9:30 and 10 a.m. that morning.³ Burke then asked the defendant to perform three field sobriety tests: the horizontal gaze nystagmus test; the walk and turn test; and the one leg stand test. According to Burke, the defendant took and failed the first two tests but refused to take the third, claiming that he could not perform it because he had had surgery on both of his knees. On the basis of the defendant's appearance, statements and field sobriety test results, Burke arrested him for operating a motor vehicle while under the influence of intoxicating liquor and transported him to the state police barracks in Litchfield, where he was given his Miranda⁴ warnings. There, after trying but failing to contact two attorneys by telephone, the defendant refused to take a Breathalyzer test.

The defendant was charged with operating a motor vehicle while under the influence of intoxicating liquor, in violation of § 14–227a (a)(1). Following a jury trial, the defendant was found guilty. The trial court subsequently imposed a total effective sentence of three years incarceration, execution suspended after eighteen months, followed by three years of probation.⁵ This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the trial court erred in denying his motion to voir dire the jurors concerning a newspaper article that was published during trial. He contends that the trial court was required, when the article was brought to its attention, to inquire of the jurors as to their exposure to the article to determine if one or more of them had read and been tainted by it. We disagree.

The following additional facts are relevant to this claim. On February 9 and 23, 2010, the parties engaged in voir dire of potential jurors. On both days, during its preliminary charge to the jury panel, the trial court informed the venirepersons that, if they were selected for the jury, they would be required to decide the case solely on the basis of the evidence, and thus that, “[i]f there is anything regarding this case on the radio, or television, or newspaper, you can't listen to it, watch it, or read it.” On March 2, 2010, moreover—the first day of trial, when the state presented most of its witnesses—the court gave the following cautionary instruction before releasing the jury for the day: “[S]tay away from the media. I know there's a proclivity among all of us, at least some of us at a certain age bracket and less so with those that are a little older to engage in that. And it's important that you stay away from anything of that nature and you know what that is, the blogs, as I mentioned in my early instructions, and anything to do with blogging or any kind of e-mailing or any of the Facebook things or any of those media. Please do not engage in that.”

On the next day of evidence, March 4, 2010, defense counsel moved the court to voir dire the jurors regarding an article about the case that had appeared in the March 3, 2010 edition of the Waterbury Republican–American newspaper. The eleven paragraph article appeared on the front page of section B, the local news section, of the newspaper. The first eight paragraphs discussed the facts of the case and recited testimony from witnesses Burke, Prusinowski and Moore. The last three paragraphs discussed the plea agreements that the defendant had rejected, which would have involved incarceration and lifetime revocation of his license, as well as the defendant's criminal history, which included three prior arrests for and a pending out-of-state charge of operating under the influence. The information in the last three paragraphs would not have been provided to the jury during trial.

In support of this motion, defense counsel argued that the article contained “information ... that the jury is not supposed to have” about the case that had the “potential of infecting the jury.” The defendant asked the court to inquire of the jurors if any of them had read any newspaper article or been exposed to any other media coverage about the case. Defense counsel presented no evidence that any juror had seen or read the article, or otherwise disregarded the court's instruction to “stay away from the media.” In opposition to the defendant's motion, the state argued that any inquiry by the court was unnecessary because the jurors had been “warned ... [and] admonished by Your Honor that they should not get involved or be subject to any media.” The court ultimately denied the defendant's motion. At the end of the day, however, explaining to the jury that “there's been some print media publicity involving this case ... [that] wasn't brought to my attention until today,” the court instructed the jury “not to read any newspaper articles” and to avoid “anything of the print media or either by print in the sense of newspapers and/or things coming in by electronic media” concerning the case.

Before addressing the merits of the defendant's claim, we must set forth the applicable standard of review and identify the legal principles governing our analysis. “The law relating to alleged juror misconduct is well settled.... Jury impartiality is a core requirement of the right to trial by jury guaranteed by the constitution of Connecticut, article first, § 8, and by the sixth amendment to the United States constitution.... [T]he right to a jury trial guarantees to the criminally accused a fair trial by a panel of impartial, indifferent jurors.... The modern jury is regarded as an institution in our justice system that determines the case solely on the basis of the evidence and arguments given [it] in the adversary arena after proper instructions on the law by the court....

“A court is required to conduct a preliminary inquiry, on the record, whenever it is presented with information tending to indicate the possibility of juror misconduct or partiality.... Any assessment of the form and scope of the inquiry that a trial court must undertake when it is presented with allegations of jury [bias or] 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.... Consequently, the trial court has wide latitude in fashioning the proper response to allegations of juror bias.... We [therefore] have limited our role, on appeal, to a consideration of whether the trial court's review of alleged jury misconduct can fairly be characterized as an abuse of its discretion.... Although we recognize that trial [c]ourts face a delicate and complex task whenever they undertake to investigate reports of juror misconduct or bias ... we nevertheless have reserved the right to find an abuse of discretion in the highly unusual case in which such an abuse has occurred.... Ultimately, however, [t]o succeed on a claim of [juror misconduct] the defendant must raise his contention of [misconduct] from the realm of speculation to the realm of fact.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Camera, 81 Conn.App. 175, 179–80, 839 A.2d 613, cert. denied, 268 Conn. 910, 845 A.2d 412 (2004).

In State v. Merriam, 264 Conn. 617, 674–75, 835 A.2d 895 (2003), our Supreme Court addressed the issue of prejudicial publicity and its effect on jury impartiality. In Merriam, “the defendant informed the court that two newspaper articles regar...