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STATE v. JONES—CONCURRENCE

McDONALD, J., concurring. I concur in the judgment

of the majority affirming the judgment of the Appellate

Court, and I join in parts I A and II of the majority

opinion. With respect to part I B, I agree with the majority that the trial court has discretion, pursuant to its

inherent authority to manage the trial process, to determine how and where the jury shall study an exhibit

during its deliberations. I write separately, however,

because I disagree with the majority’s conclusion that

the trial court properly exercised its discretion in this

case when it determined that the jury would have to

review an exhibit of a digital video recording (video)

in open court because there was no equipment in the

jury room for reviewing such videos. Instead, I would

conclude that the trial court abused its discretion

because the record reveals that the trial court did not

make any effort to determine if the proper equipment

could be secured in order for the jury to review the

video in private. Nevertheless, I would conclude that

the trial court’s error was harmless and, therefore, that

the Appellate Court’s judgment should stand. Accordingly, I concur in the judgment.

The majority concludes that the trial court properly

exercised its discretion in this case because the request

by the defendant, William T. Jones, to have suitable

equipment made available to the jury, and the lack of

basic trial technology in the courthouse ‘‘to play the

video in the jury room left the trial court with little

choice but to require the jury to view the video in open

court.’’ Notwithstanding the fact that the video was

introduced as an exhibit by the state at trial,1

the majority faults the defendant for not procuring any equipment

to facilitate the jury’s review of the video in the jury

room, as the state’s laptop computer used to play the

video during trial could not properly be sent into the

jury room because it contained information not admitted into evidence. Therefore, the majority posits that

the trial court was under no obligation to delay deliberations while the court or the parties secured equipment

needed to play the video in the jury room. Unlike the

majority, I believe that despite the timing of the defendant’s request, the trial court abused its discretion

because the trial court did not make any effort to find

a way for the jury to review the video in the jury room

other than asking the state if its laptop was clean.2 The

trial court could have asked its clerk to undertake a

basic inquiry as to whether the proper equipment to

play the video was available somewhere else in the

courthouse, or whether it could be readily secured by

court operations staff members. Alternatively, the trial

court could have asked whether either party had the

ability to find alternative equipment and to provide it

within a reasonable period of time.3

It did not pursue
any of these options. Instead, the trial court simply

stated that it did not ‘‘have anything to send into them

for them to play the video,’’ and asked whether the

state’s laptop was clean. Therefore, the majority’s assertion that the trial court was left with ‘‘little choice’’ but

to require the jury to review the video in open court is

not predicated upon any facts in the record. See United

States v. Saunders, 553 F.3d 81, 87 (1st Cir.) (holding

trial court did not commit error in proposing that jury

review audio and video exhibits in courtroom when

technical difficulties arose with prosecutor’s clean laptop because ‘‘the judge worked diligently to cause the

requested materials to be provided to the jury,’’ and

‘‘moved expeditiously’’ when problem arose), cert.

denied, 558 U.S. 864, 130 S. Ct. 170, 175 L. Ed. 2d 108

(2009); United States v. Rose, 522 F.3d 710, 715 (6th Cir.)

(approving of trial court’s decision to convert digital

recording to compact disc format so jury could listen

to admitted evidence in privacy of jury room), cert.

denied, 555 U.S. 890, 129 S. Ct. 194, 172 L. Ed. 2d 155

(2008). Like the majority, I recognize that it may not

be feasible for a jury to review some types of exhibits

in the privacy of the jury room, such as toxic substances

or unusually large exhibits, or even video or audio tapes

where they contain other material that has been

excluded as part of the relevant evidence. The concerns,

however, associated with such exhibits, namely, that

due to their very nature or content they cannot fit or

be safely utilized in the jury room, were not present in

this case. Accordingly, I would conclude that the trial

court abused its discretion in making its determination

without undertaking any effort to make suitable

arrangements to allow the jury to review and discuss

the video in the privacy of the jury room.

Furthermore, although I hereinafter conclude that

the trial court’s error was harmless, I agree with the

defendant’s observation thatrequiring the jury to review

a recorded exhibit such as the one in the present case

in open court could impede the jury deliberation process, as jurors would be hindered in closely examining

and contemporaneously discussing the evidence among

themselves due to the presence of the judge, counsel,

members of the public audience, and the defendant.

See State v. West, 274 Conn. 605, 650, 877 A.2d 787 (‘‘the

primary if not exclusive purpose of jury privacy and

secrecy is to protect the jury’s deliberations from

improper influence’’ [internal quotation marks omitted]), cert. denied, 546 U.S. 1049, 126 S. Ct. 775, 163 L.

Ed. 2d 601 (2005); Clark v. Whitaker, 18 Conn. 543,

549 (1847) (courts ‘‘must repel every foreign influence,

which may affect the minds of the jury’’); see also Johnson v. Duckworth, 650 F.2d 122, 125 (7th Cir.) (‘‘jury

privacy is not a constitutional end in itself; it is, rather,

a means of ensuring the integrity of the jury trial’’),

cert. denied, 454 U.S. 867, 102 S. Ct. 332, 70 L. Ed. 2d

169 (1981). I believe that requiring the jury to review
the video that was admitted into evidence in the present

case in open court and then return to the jury room to

deliberate is more than ‘‘perhaps a little more burdensome,’’ as the majority asserts. The jury’s ability to

review evidence and contemporaneously discuss it,

rewind it, pause it or otherwise scrutinize it is an invaluable part of our judicial process and should not be

understated. The jury certainly should not be compelled

to conduct its business in open court where courtroom

attendees would be able to observe the jury’s deliberative process. Because of this understanding, our courts

have a long-standing practice of providing all exhibits

to juries to review in the privacy of the jury room. See,

e.g., State v. Wood, 208 Conn. 125, 129–30, 545 A.2d

1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L.

Ed. 2d 225 (1988); Capone v. Sloan, 149 Conn. 538, 544,

182 A.2d 414 (1962); State v. Wallace, 78 Conn. 677, 678,

63 A. 448 (1906).

Having concluded that the trial court abused its discretion in failing to make any effort to provide the jury

with the video and with the equipment needed in order

to watch it in the privacy of the jury room, I now examine whetherthis error was harmful.4

‘‘When an improper

evidentiary ruling is not constitutional in nature, the

defendant bears the burden of demonstrating that the

error was harmful. . . . [W]hether [an improper ruling]

is harmless in a particular case depends upon a number

of factors, such as the importance of the witness’ testimony in the prosecution’s case, whether the testimony

was cumulative, the presence or absence of evidence

corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination

otherwise permitted, and, of course, the overall strength

of the prosecution’s case. . . . Most importantly, we

must examine the impact of the . . . evidence on the

trier of fact and the result of the trial. . . . [T]he proper

standard for determining whether an erroneous evidentiary ruling is harmless should be whether the jury’s

verdict was substantially swayed by the error. . . .

Accordingly, a nonconstitutional error is harmless

when an appellate court has a fair assurance that the

error did not substantially affect the verdict.’’ (Internal

quotation marks omitted.) State v. Favoccia, 306 Conn.

770, 808–809, 51 A.3d 1002 (2012).

The defendant argues that the trial court’s error was

harmful because the video was central to his defense

in that it contradicted Officer Christian Rodriguez’ testimony that he fired at the defendant’s motor vehicle, a

Dodge Charger, as it ran over his foot. The defendant

claims that the procedure for reviewing the video likely

affected the weight the jury placed on the contents

of the video and thus substantially affected the jury’s

verdict because: (1) the jury was unable to review the

video up close, under its control, and on a small screen;

and (2) there was an additional burden on the jury of

having to come into the courtroom to review the video
without being able to discuss it simultaneously. In

response, the state argues that any error by the trial

court was harmless because there is nothing in the

record to indicate that the jury had any desire to review

the video during its deliberations and the jury viewed

the video during the trial eight times in its entirety and

viewed selected portions of the video approximately

eight additional times. The state further notes that the

defendant was able to use the video during his crossexamination of allthree officers involved in the accident

to exploit his claimed discrepancy in Rodriguez’ testimony, and that he had also replayed the video during

his summation of his theory that Rodriguez had lied

about how he was injured. Lastly, the state argues that

the error was harmless because its case against the

defendant was strong for the following reasons: (1)

the state corroborated Rodriguez’ testimony that the

defendant’sChargerran over his foot with the testimony

of Officer Jose Rivera, who heard Rodriguez cry out in

pain and saw him limping away as the Charger sped

away; (2) an independent witness heard the gunfire,

looked out his office window, and saw Rodriguez ‘‘hobbling’’ back toward his vehicle; (3) Rodriguez was taken

to the hospital, treated for a ‘‘crush’’ injury and placed

on light duty for one month; (4) the defendant fled the

scene, and eventually was apprehended in Rochester,

New York; and (5) the defendant made a request to

another person that she misreport that the Charger had

been stolen.

I agree with the state. Although the video should have

been given to the jury to review in the privacy of the

jury room, the defendant has not shown that its exclusion had a substantial impact on the jury’s verdict.

Despite being given the opportunity to review the video

in open court, the jury never asked to do so. Further,

given the short length of the video and the numerous

opportunities that the jury had to view it during trial,

the defendant has not provided this court with a fair

assurance that the inability to review the video in the

privacy of the jury room substantially affected the verdict. Notably, the state’s case was strong. The state

presented testimony of multiple witnesses to corroborate Rodriguez’ account that the defendant’s Charger

ran over his foot, and the defendant’s actions following

the incident further weigh in favor of the strength of the

state’s case against the defendant. Therefore, I would

conclude that it is doubtful that the jury’s inability to

watch the video in the privacy of the jury room influenced the jury’s verdict in any appreciable way.

I therefore respectfully concur in the judgment.

1 The lack of basic trial practice technology in our courtrooms is remarkable. Until our state courts begin to approach the level of technological

capabilities that are available in the federal courts in Connecticut, it is my

opinion that the proponent of the evidence should be required to provide

the means by which an exhibit can be reviewed in the jury room in the

same manner as he or she presented it during the trial. In other words, the

proponent of video evidence should provide the jury with the proper play-
back equipment. Such a bright line rule would provide clear guidance to

our state’s courts and members of the bar, and, as a result, would avoid

the very problem that is present in this case. In this increasingly modern

era where digital exhibits are becoming more prevalent, the lack of proper

equipment for such evidence impedes the well established ‘‘policy of the

law that every tribunal for the trial of civil or criminal causes should have

open to it the best legitimate means of acquiring such knowledge of the

law and the facts as will enable it to decide the cases before it fairly and

intelligently.’’ (Internal quotation marks omitted.) State v. Gould, 241 Conn.

1, 13, 695 A.2d 1022 (1997). I agree with the majority, however, that the

creation of such a bright line rule is best left to the Rules Committee of the

Superior Court, which is vested with the power to establish rules of procedure for our trial courts. See, e.g., Statewide Grievance Committee v. Spirer,

247 Conn. 762, 779, 725 A.2d 948 (1999); Oakley v. Commission on Human

Rights & Opportunities, 237 Conn. 28, 30, 675 A.2d 851 (1996).

2 The defendant summarily asks this court, without any analysis or citation

to relevant authority, to consider whether the trial court’s withholding of

the video from the jury room violated his constitutional rights to a fair trial

and due process. As the Appellate Court noted; see State v. Jones, 140 Conn.

App. 455, 460 n.1, 59 A.3d 320 (2013); and the defendant appears to concede

to this court, these claims were not preserved at trial. As such, not only is

this court ‘‘notrequired to review issues that have been improperly presented

to this court through an inadequate brief’’;(internal quotation marks omitted)

Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 300 n.9, 852 A.2d

703 (2004); but the defendant has failed to show that his claim even remotely

satisfies the four prongs of State v. Golding, 213 Conn. 233, 239–40, 567

A.2d 823 (1989). Accordingly, I decline to review the defendant’s constitutional claim. See State v. Osbourne, 138 Conn. App. 518, 539–40, 53 A.3d

284 (holding defendant’s claim that trial court improperly restricted viewing

of video exhibit to courtroom during deliberations failed to meet second

prong of Golding and was not manifest injustice constituting plain error),

cert. denied, 307 Conn. 937, 56 A.3d 716 (2012).

3 The record is unclear as to whether a computer was required to play

the video or if it could have simply been played in a digital video disc player.

As noted by the majority and the Appellate Court; see footnote 2 of the

majority opinion; State v. Jones, 140 Conn. App. 455, 462 n.2, 59 A.3d 320

(2013); the following exchange took place during the predeliberation colloquy between the court and the parties:

‘‘The Court: Well, my con—they need—they need—would need the laptop

to play the video, is—right? I assume that’s right, correct?

‘‘[The Prosecutor]: Uh, hum.

‘‘The Court: Is—is the—and I—does the laptop have any—other stuff on

it besides the video?

‘‘[The Prosecutor]: Yes.’’ (Internal quotation marks omitted.) State v.

Jones, supra, 462 n.2.

On appeal to this court, neither party makes an argument that a specific

piece of equipment was necessary to play the video. In light of my conclusion

that the trial court abused its discretion due to its apparent lack of effort

to accommodate the jury, the exact nature of the equipment needed to

review the video is not critical to the resolution of this appeal.

4 The defendant contends that allowing only for the replaying of the video

in the courtroom in front of the court, both attorneys, and the defendant

constituted structural error. This contention is without merit because not

only does the defendant fail to show that his claim is of constitutional

magnitude, he also has failed to show how the trial court’s error infected

the entire trial process through extrinsic factors. See State v. Latour, 276

Conn. 399, 411, 886 A.2d 404 (2005) (‘‘[Structural error] cases do not involve

trial error occurring during the presentation of the case to the jury but

involve extrinsic factors not occurring in the courtroom. . . . These cases

recognize that violation of some constitutional rights, such as the right to

a trial by an impartial jury, may require reversal without regard to the

evidence in the particular case.’’); see also Vasquez v. Hillery, 474 U.S. 254,

263–64, 106 S. Ct. 617, 88 L. Ed. 2d 598 (1986) (structural error due to

systematic exclusion from grand jury of individuals based on race); Whitus

v. Georgia, 385 U.S. 545, 549–50, 87 S. Ct. 643, 17 L. Ed. 2d 599 (1967)

(structural error due to purposeful discrimination in selection of jurors);

Tumey v. Ohio, 273 U.S. 510, 535, 47 S. Ct. 437, 71 L. Ed. 749 (1927)(structural

error when judge has financial interest in outcome of trial).