State v. Murray (concurring)
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****************************************************** The officially released date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the officially released date appearing in the opinion. In no event will any such motions be accepted before the officially released date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** MCDONALD, C. J., with whom PALMER, J., joins, concurring in part and dissenting in part. I agree with parts I and II A of the majority opinion. I disagree, however, with part II B. In State v. Williams, 231 Conn. 235, 244, 679 A.2d 920 (1994), this court assumed, without deciding, that the mid-deliberation substitution of an alternate juror violated General Statutes § 54-82h (c) and then proceeded to employ a harmless error analysis.1 The majority now overrules this court s holding in Williams. [T]he doctrine of stare decisis counsels that a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it. (Internal quotation marks omitted.) George v. Ericson, 250 Conn. 312, 318, 736 A.2d 889 (1999). I would conclude that this is not such a case. The majority states that it is not overruling the holding of State v. Williams, supra, 231 Conn. 243 44, that the mechanisms for providing for and dismissing alternate jurors, and the circumstances under which they may be substituted for regular jurors do not implicate constitutional rights. Because, however, [i]t is impossible to say that the remaining [jurors] would be capable of disregarding their prior deliberations, even with an instruction to do so, and become receptive to the alternate s attempt to assert a view that might be nonconforming, the majority concludes that reversal must be automatic. In reaching this conclusion, the majority is at odds with this court s precedent. We have held that a jury is presumed to follow the trial court s instructions. See, e.g., State v. Griffin, 175 Conn. 155, 160, 397 A.2d 89 (1978). In this case, there is no indication that the jury failed to follow the trial court s instructions to begin deliberations anew following the seating of the alternate juror. The majority s conclusion is also at odds with the wisdom of the United States Court of Appeals for the Second Circuit, whose rulings are binding on federal courts in Connecticut. In United States v. Hillard, 701 F.2d 1052, 1058 (2d Cir. 1983), that court held that, despite the rule 24 (c) of the Federal Rules of Criminal Procedure,2 the federal equivalent to § 54-82h (c), the substitution of an alternate juror after deliberations have begun does not lead to reversal per se, absent a showing of prejudice. A great number of other Circuit Courts of Appeal have so held as well. See United States v. Quiroz-Cortez, 960 F.2d 418, 420 (5th Cir. 1992) (same); United States v. Huntress, 956 F.2d 1309, 1316 (5th Cir. 1992) (same); United States v. Gambino, 788 F.2d 938, 948 (3d Cir. 1986) (same); United States v. Josefik, 753 F.2d 585, 587 (7th Cir. 1985) (same); United States v. Kopituk, 690 F.2d 1289, 1309 (11th Cir. 1982) (same). The majority is also at odds with other states that have followed the federal approach of applying a harmless error test to claims of improper substitution of alternate jurors. See, e.g., People v. Henderson, 45 Ill. App. 3d 798, 805, 359 N.E.2d 909 (1977) (error harmless if no prejudice from late substitution); State v. Williams, 659 S.W.2d 298, 300 (Mo. App. 1983) (same); State v. Grovenstein, 335 S.C. 347, 351 52, 517 S.E.2d 216 (1999) (burden on defendant to demonstrate prejudice due to improper jury influence). Finally, in reaching this conclusion, the majority is at odds with the collective wisdom of the people of Connecticut as embodied by the legislature. Since State v. Williams, supra, 231 Conn. 235, was decided, the legislature had taken no action in response to our holding that a violation of § 54-82h (c) is subject to harmless error analysis. Although we are aware that legislative inaction is not necessarily legislative affirmation . . . we also presume that the legislature is aware of [this court s] interpretation of a statute, and that its subsequent nonaction may be understood as a validation of that interpretation. (Citation omitted; internal quotation marks omitted.) State v. Hodge, 248 Conn. 207, 262 63, 726 A.2d 531, cert. denied, U.S. , 120 S. Ct. 409, 145 L. Ed. 2d 319 (1999). The legislature, how- ever, recently amended § 54-82h (c) to permit the trial court to retain alternate jurors and to substitute an alternate juror for a regular juror after deliberations have begun. The very practice that the majority deems to be so prejudicial as to prohibit harmless error review is now permitted by statute. In this case, the record, as in Williams, indicates that the trial court had attempted to minimize any potential prejudice. The trial court questioned each of the alternate jurors as to whether they had spoken to anyone about the case. Each juror responded in the negative, without hesitation or equivocation. As a result, the trial court deemed them very credible, concluding that they were still viable, unbiased and fair jurors . . . . The trial court also instructed the jurors to begin the determination and deliberation process from ground zero. I would therefore conclude that, because the defendant has failed to establish that he was prejudiced by the needed substitution of the alternate juror, the defendant s conviction should be sustained. Accordingly, I respectfully dissent. 1 The trial court in State v. Williams, supra, 231 Conn. 240, questioned the alternate juror as to whether he had spoken to anyone about the case, and he responded that he had not. The trial court also questioned the remaining eleven jurors as to whether they would be able to begin deliberations anew. The jurors indicated that they would be able to do so. Id. Because the record indicated that the trial court in Williams had attempted to minimize any potential prejudice to the defendant resulting from the substitution of the alternate juror, this court determined that no prejudice had occurred. Id., 245. 2 In 1998, the year during which the defendant s trial in the present case took place, rule 24 (c) of the Federal Rules of Criminal Procedure provided in relevant part: Alternate jurors in the order in which they are called shall replace jurors, who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties. . . . An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict. . . .
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