State v. Angel A. (Concurrence)

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State v. Angel A.

KELLER, J., concurring. I am in agreement with, and
join the analysis contained in, the well reasoned major-
ity opinion in this case, but I have reservations regarding
the suggestion that the trial court possibly could have
brought the jurors back into the courtroom for individ-
ual polling after the judge had met and conversed with
them in the deliberation room. In my view, the judge’s
meeting with the members of the jury effectively termi-
nated the ability to conduct a poll, as such an event
amounted to what the United States Court of Appeals
for the Second Circuit has described as an ‘‘outside
factor’’ that renders the reliability of any jury poll on
recall problematic. See, e.g., United States v. Rojas, 617
F.3d 669, 678 (2d Cir. 2010); see also United States v.
Marinari, 32 F.3d 1209, 1214 (7th Cir. 1994) (jury
remains undischarged and may be recalled only where
it remains as undispersed unit within control of court
and with no opportunity to mingle with or discuss case
with others); Summers v. United States, 11 F.2d 583,
586 (4th Cir.) (same), cert. denied, 271 U.S. 681, 46
S. Ct. 632, 70 L. Ed. 1149 (1926). Stated differently,
‘‘intervening comments by a judge can undermine the
defendant’s right to poll the jury.’’ United States v. Har-
low, 444 F.3d 1255, 1267 (10th Cir. 2006).
Additionally, it is unclear what conduct the jurors
had participated in after being dismissed by the trial
judge in the courtroom. As stated in the majority opin-
ion, the jurors’ oath, as set forth in General Statutes
§ 1-25, obligates the members of a jury to ‘‘not talk to
each other about this case until instructed to do so;
[and] not speak to anyone else, or allow anyone else
to speak to you, about this case until you have been
discharged by the court . . . .’’ See footnote 10 of the
majority opinion. After accepting and recording the ver-
dict, the judge told the jury, ‘‘I want to let you know
that your jury service is ended. You’re free from your
oath at this point.’’ At that point, she said nothing to
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State v. Angel A.

the jurors about speaking to them in the deliberation
room. She only asked them to wait there for the court-
room clerk to bring them some documentation, most
likely juror evaluation forms. Her statements on the
record to the jurors after the verdict was recorded and
accepted were effectively a discharge of the jury, even
if the jurors were asked to wait when they got back to
the deliberation room. In the absence of a full-blown
hearing, there is no way of knowing what behaviors
the jurors engaged in before the judge’s entry into the
deliberation room. They were free to speak about the
case and their verdict on their cell phones with nonju-
rors, potentially with relatives, friends, the jury alter-
nates, employers, the courtroom clerk who was ordered
to bring some documents to them, courthouse marshals,
and groups comprised of only some, not all, members
of the jury.1 The jurors also were free to look up news
and social media reports concerning the case.2
1
In its instructions to the jury after counsel’s closing arguments, the court
stated: ‘‘You may only deliberate when all six of you are present in the
jury room.’’
2
I am mindful of our Supreme Court’s discussion in State v. Pare, 253
Conn. 611, 755 A.2d 180 (2000), of when a jury has been discharged. In that
case, the court observed that the discharge of a jury occurs when its members
are relieved from any further responsibilities in the case. See id., 628. This
does not necessarily occur when the members of a jury depart from the
courtroom. Id., 629. Rather, our Supreme Court explained: ‘‘When a jury
remains as an undispersed unit within the control of the court and with
no opportunity to mingle with or discuss the case with others, it is undis-
charged and may be recalled.’’ (Emphasis added; internal quotation marks
omitted.) Id., 630, 633–34. In the present case, advances in technology have
made it possible for the members of a jury to now communicate almost
instantly with others once the trial court has released them from the juror
oath and its corresponding obligations. That presents issues that were not
before the court in Pare.
This court has observed that modern cell phones are a pervasive and
insistent part of daily life, and that ‘‘these devices are in fact minicomputers
that also happen to have the capacity to be used as a telephone. They could
just as easily be called cameras, video players, [R]olodexes, calendars, tape
recorders, libraries, diaries, albums, televisions, maps, or newspapers.’’
(Internal quotation marks omitted.) State v. Sayles, 202 Conn. App. 736, 742
n.7, 246 A.3d 1010 (2021), aff’d, 348 Conn. 669, 310 A.3d 929 (2024). I note
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State v. Angel A.

Moreover, we do not know the substance of the full
conversation the judge exchanged with the jurors in
the deliberation room. What questions were asked?
How did she answer them? The influence of any of
these behaviors irrevocably taints any attempted poll.
The reason counsel must request a poll before the jurors
are discharged from their oath is to preserve the protec-
tive bubble of isolation that every trial judge strives to
preserve throughout the trial. See, e.g., United States
v. Figueroa, 683 F.3d 69, 73 (3d Cir. 2012) (trial courts
impose protective shield throughout proceeding to pre-
vent members of jury from influence of outside factors).
Because we have no way of ascertaining what behaviors
all of the jurors may have engaged in after they left the
courtroom, and their potential influence, I do not see
how any subsequent poll would not have been suspect.
I also write separately to express my own view that,
although it may be a ‘‘common practice’’ for a trial judge
to enter the jury room to converse with the members
of the jury about their experience and thank them for
their service after a verdict has been returned; State v.
Kamel, 115 Conn. App. 338, 349 n.2, 972 A.2d 780 (2009);
this case provides a concrete example of the inherent
dangers of doing so. I recognize that our appellate
courts have observed that a trial judge may engage in
an ex parte meeting with a jury after it has returned a
verdict for the purpose of thanking the jurors for their
that the ubiquitous nature and the constantly expanding capabilities of cell
phones are vastly different from those found in such devices at the time
Pare was decided. Specifically, the use of a present day cell phone affords
a member of a jury a greater ability to communicate almost instantly with
nonjurors, whether by voice or by text, and to use the Internet, including
social media, to access information regarding the subject of the trial while
remaining part of the ‘‘undispersed unit within the control of the court
. . . .’’ State v. Pare, supra, 253 Conn. 630. These concerns were not present
twenty-five years ago. In other words, despite the jury remaining as an
undispersed unit in the courthouse, it is far more difficult to ensure that a
jury today remains ‘‘untainted by any outside conduct.’’ Id., 631.
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State v. Angel A.

service, answering questions unrelated to the delibera-
tive process, promoting good public relations, and solic-
iting feedback regarding the administration of the jury
process as a permissible exercise of a judge’s adminis-
trative functions. See, e.g., Tessmann v. Tiger Lee Con-
struction Co., 228 Conn. 42, 56–57, 634 A.2d 870 (1993);
State v. Durant, 94 Conn. App. 219, 231–32, 892 A.2d
302 (2006), aff’d, 281 Conn. 548, 916 A.2d 2 (2007);
see generally Gillingham Construction, Inc. v. Newby-
Wiggins Construction, Inc., 142 Idaho 15, 25–26, 121
P.3d 946 (2005) (after verdict but before posttrial mat-
ters have concluded, judge may thank members of jury
for their service and address issues of juror convenience
but door between bench and jury must remain closed
while case remains pending). While I do not question
the benefits of such exchanges, the corresponding unin-
tended risks that could result from a stray remark made
by a juror to the judge who has presided over a trial
may prove to be too great and result in the otherwise
unnecessary expenditure of judicial resources, includ-
ing an additional hearing, or even a new trial.
I urge my colleagues to be vigilant and to exercise
great caution when speaking with a jury after it has
returned a verdict. First, the judge should request that
a clerk be present with him or her when the discussion
occurs. Prior to any discussion, the judge should
unequivocally advise the jury that it will not entertain
any questions, and no one should comment concerning
the merits of the case, the verdict, or the deliberations
of the jury, just as the trial judge attempted to do in
the present case, to no avail. Frankly, I would suggest
a more cautionary approach. After the acceptance of
the verdict, I would directly ask counsel if they want
to have the jury polled, not just generally inquire: ‘‘Any-
thing else, counsel?’’ A trial judge might sua sponte
consider polling the jurors individually if such a poll is
not requested by counsel pursuant to Practice Book
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State v. Angel A.

§ 42-31. Then, provided counsel have no further issues
to raise, I would remain on the record, with counsel
present, and advise the jurors that they are discharged
from their service, relieved of their oath, and are free
to discuss the case with nonjurors only if they want to
do so. I would then thank them for their service and
release them.
I respectfully concur in the reasoning and judgment
of the majority opinion.