STATE v. KEITH MICHAEL FOSTER, SC 17780

Judicial District of Litchfield

 Criminal; Hearsay Testimony; Juror Misconduct; Whether Testimony Concerning Deceased Victim's Prior Criminal Complaint Against Defendant Constituted Inadmissible Hearsay; Whether Trial Court should have Questioned Jurors Individually to Determine the Impact of an Excused Juror's Improper Comments.  The defendant was charged in connection with the kidnapping, sexual assault and killing of a thirteen year old girl.  At trial, the state sought to introduce the testimony of the victim's mother and a police investigator to prove that prior to the incident in question, the victim alleged that the defendant and another individual had sexually assaulted her.  The defendant objected on the ground that such testimony constituted inadmissible hearsay.  The trial court overruled the objection, concluding that the state was attempting to establish not that the allegation was true, but that the allegation had been made and that the defendant therefore had a motive to commit the crimes.  Thereafter, the court was informed that a juror had complained to a courtroom clerk that the trial conduct of the defendant's attorney had been improper.  In response, the court questioned the juror, who admitted making the comment and stated that she told the other jurors, without providing any details, that she had made a complaint regarding the defendant's attorney.  After the court excused the juror, it summoned the other jurors to the courtroom and asked them as a group if the excused juror expressed her opinions to them regarding the conduct of the trial.  The jurors gave no response, and the court then proceeded to explain to them that the defendant's attorney had been properly fulfilling his role as an advocate in an adversarial system.  After the close of the evidence, the court provided instructions to the jury regarding, among other things, an alibi defense that the defendant had pursued.  The jury subsequently found the defendant guilty of, among other things, felony murder, kidnapping in the first degree and sexual assault in the first degree.  Thereafter, the defendant filed a motion for a new trial, contending that the admission of the testimony concerning the victim's sexual assault allegation violated his constitutional right of confrontation.  The court denied the motion, and the defendant now appeals, arguing that the admission of the victim's allegation was improper.  He also contends that the court should have questioned the jurors individually to determine the impact that the excused juror's complaint may have had upon them and that the court improperly failed to instruct the jury that the state had the burden to disprove the defendant's alibi defense beyond a reasonable doubt.