Argued October 16, 2014
Substitute information charging the defendant with two counts of the crime of manslaughter in the second degree and with the offense of reckless driving, brought to the Superior Court in the judicial district of Ansonia-Milford and tried to the jury before Markle, J.; verdict and judgment of guilty of two counts of the lesser included offense of misconduct with a motor vehicle and of reckless driving, from which the defendant appealed to this court.
Convicted of the crimes of misconduct with a motor vehicle and reckless driving, the defendant police officer appealed to this court. The defendant's conviction stemmed from an incident in which his police cruiser, while traveling at a high rate of speed, collided with a vehicle driven by S, which had not come to a complete stop at a red traffic signal and attempted to turn left in front of the defendant's vehicle. S and a passenger in his vehicle, K, died as a result of injuries sustained in the accident. Thereafter, the defendant was charged in a three count information with two counts of manslaughter in the second degree as to the deaths of S and K, and one count of reckless driving. The jury found the defendant guilty of reckless driving, and not guilty of both counts of manslaughter in the second degree as to S and K, but guilty of the lesser included offenses of negligent homicide as to S and misconduct with a motor vehicle as to K. The trial court accepted and recorded the jury's verdict, and then stated that the jury had answered " yes" to a written interrogatory that asked if S's conduct constituted an intervening cause of the collision. The court stated, outside the jury's presence, that the interrogatory answer conflicted with the guilty verdict, and denied the defendant's request to vacate the guilty verdict and for a judgment of acquittal as to the lesser included offenses. The court then vacated its acceptance of the verdict, reinstructed the jury on, inter alia, causation and intervening cause, and ordered the jury to resume deliberations. After the jury sent several notes to the court pertaining to the interrogatory, the jury returned a second verdict of not guilty on both counts of manslaughter in the second degree as to S and K, but guilty of the lesser included offense of misconduct with a motor vehicle as to S and K. The jury also answered " no" to the interrogatory about whether S's conduct had been an intervening cause of the automobile collision. The court thereafter denied the defendant's motion for a judgment of acquittal and rendered judgment in accordance with the second verdict, from which the defendant appealed to this court. He claimed, inter alia, that the trial court improperly declined to direct a judgment of acquittal on both counts of manslaughter in the second degree and improperly ordered the jury to resume deliberations after the court had vacated the jury's initial verdict.
1. The defendant could not prevail on his claim that the trial court should have directed a judgment of acquittal on both counts of manslaughter in the second degree because the jury's initial answer to the interrogatory was inconsistent with the jury's guilty verdict on the lesser included offenses contained in those counts and relieved him of criminal responsibility as to those counts: the defendant did not meet his burden of demonstrating that the jury's initial answer to the interrogatory constituted a unanimous resolution of whether S's conduct was an intervening cause of the automobile collision, as the interrogatory was silent about the need for jury unanimity, the jury was not polled on its initial answer to the interrogatory, and the language of the interrogatory asking if S's conduct was an intervening cause of the collision conflicted with the court's instruction that the jury was to consider, in deciding if the state had proven proximate cause beyond a reasonable doubt, whether S's conduct was an intervening cause in the victims' deaths, which was an essential element of the offenses charged; moreover, this court was unwilling to presume unanimity because the jury was never instructed about the interrogatory's meaning, its relation to the verdict on the various counts, or that the jury's answer to the interrogatory had to be unanimous.
2. The trial court improperly vacated the jury's initial verdict of not guilty on both counts of manslaughter in the second degree as to S and K, and the lesser included offense of misconduct with a motor vehicle as to S, and improperly ordered the jury to resume deliberations on all the offenses charged under the manslaughter counts; the court took no steps to ascertain if the initial verdict was the jury's true intent or if the verdict was unanimous, the jury's initial answer to the interrogatory was not inconsistent with its verdict of not guilty, and the inconsistency between the interrogatory answer and the guilty verdict could not serve as a basis for vacating the not guilty verdict; accordingly, because the jury ultimately returned a guilty verdict on the lesser included offense of misconduct with a motor vehicle as to S but previously had acquitted the defendant of that offense, this court directed the trial court on remand to render a judgment of acquittal as to the lesser included offense of misconduct with a motor vehicle as to S.
3. This court concluded that the trial court's supplemental instructions to the jury were improper, as they did not provide the jury with appropriate guidance, and they were unclear about whether the jury's initial verdict and interrogatory answer had been vacated and whether the jury would need to return a new interrogatory answer and a new verdict: the court's instructions suggested that the initial verdict of guilty was correct and that the interrogatory answer was not correct, and that the resolution of the issue of intervening cause should be governed by the jury's desire to obtain a particular overall result; moreover, the court's direction that the jury answer the interrogatory first and then return a verdict conveyed that the verdict and interrogatory were severable and not intertwined, and the court failed to address a question from the jury about an essential element of the offenses charged; accordingly, this court directed the trial court to vacate the guilty verdict as to counts one and two and ordered a new trial on the lesser included offense of negligent homicide with a motor vehicle as to S, and on the lesser included offenses of misconduct with a motor vehicle and negligent homicide with a motor vehicle as to K.
Daniel P. Scholfield, with whom was Hugh F. Keefe, for the appellant (defendant).
Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, was Kevin D. Lawlor, state's attorney, for the appellee (state).
Keller, Prescott and
[158 Conn.App. 317] This criminal prosecution arises out of a fatal motor vehicle accident. The defendant, Jason Anderson, appeals from the judgment of conviction, rendered following a jury trial, of two counts of misconduct with a motor vehicle in violation of General Statutes § 53a-57 and reckless driving in violation of General Statutes § 14-222. The defendant claims that [158 Conn.App. 318] the trial court improperly (1) declined to direct a judgment of acquittal on certain counts of the information in light of the jury's answer to an interrogatory, which answer was inconsistent with the jury's verdicts of guilty with respect to those counts; (2) vacated the jury's verdicts and ordered the jury to resume deliberations; and (3) coerced or misled the jury into returning guilty verdicts after it had resumed its deliberations. Because we agree in part with the defendant's second and third claims, we reverse in part the judgment of the trial court.
The jury reasonably could have found the following facts. At approximately 2 a.m. on June 12, 2009, the defendant, an on-duty Milford police officer, was returning from West Haven, where he and other officers had earlier been dispatched to provide assistance to the West Haven Police Department in dealing with a public disturbance. On his return to Milford, the defendant drove his cruiser westbound on the Boston Post Road in Orange at an extremely high rate of speed, despite the fact that he was not responding to any calls for assistance, and neither his emergency lights nor siren was activated. Although the posted speed limit was forty miles per hour, the defendant's speed on the Boston Post Road at times exceeded ninety miles per hour.
As the defendant approached the intersection of Boston Post Road and Dogwood Road in Orange, a Mazda driven by David Servin and also occupied by Ashlie Krakowski approached the same intersection from the opposite direction. Both Servin and Krakowski were nineteen years of age. Servin was intoxicated, and his blood alcohol level was 0.14 percent. Without coming [158 Conn.App. 319] to a complete stop at the flashing red traffic signal at the intersection or yielding to oncoming traffic, Servin then attempted to turn left onto Dogwood Road in front of the defendant's cruiser. Although the defendant applied his brakes approximately one second before the vehicles collided, the defendant's cruiser struck the Mazda at a high rate of speed in the right front passenger door. The impact caused the Mazda to roll over, and Krakowski was ejected from the vehicle. The defendant's cruiser also sustained extensive damage.
Both Servin and Krakowski died as a result of their injuries sustained in the collision. The defendant was injured, taken by ambulance to a hospital, and released later that morning.
The defendant subsequently was charged in an information with two counts of manslaughter in the second degree in violation of General Statutes § 53a-56(a)(1) in connection with the deaths of Servin and Krakowski, and one count of reckless driving in violation of § 14-222. Counts one and two pertained to the deaths of Servin and Krakowski, respectively. Following a jury trial, the jury unanimously found the defendant not guilty of both counts of manslaughter in the second degree, guilty of two counts of the lesser included offense of misconduct with a motor vehicle, and guilty of reckless driving.
The issues raised by the defendant in this appeal arise from a series of events that occurred primarily after the jury began deliberations. We, therefore, set forth the procedural history related to the jury deliberations in detail.
Prior to the commencement of jury deliberations, the court asked both parties whether they intended to [158 Conn.App. 320] request any interrogatories and gave them until the next day to submit any proposals. The following day, the defendant submitted a proposed interrogatory. The proposed interrogatory asked: " Did the conduct of [Servin] constitute an intervening cause of the automobile collision?" The interrogatory included an option for the jury to check either " yes" or " no." After accepting the interrogatory without objection, the court instructed the jury.
As to counts one and two, the court instructed the jury on the elements of manslaughter in the second degree and the lesser included offenses of misconduct with a motor vehicle and negligent homicide with a motor vehicle. The court stated: " As to the first lesser included offense of misconduct with a motor vehicle; again, I emphasize, if you unanimously find the defendant not guilty of the crime of manslaughter in the second degree in both count one and count two, you shall then go to consider the lesser offense of misconduct with a motor vehicle in violation of § 53a-57. . . . If . . . you have unanimously found the defendant not guilty of the crime of misconduct with a motor vehicle, then you should go on to the next step and consider the lesser offense of negligent homicide with a motor vehicle, in violation of General Statutes § 14-222a. Do not consider this offense unless and until you have unanimously found the defendant not guilty of misconduct with a motor vehicle."
The court then instructed the jury on the elements of each offense. Additionally, the court discussed the doctrine of intervening cause and instructed the jury to apply it to counts one and two, including each lesser included charge it was to consider. Specifically, the court charged the jury as follows: " The defendant, Jason Anderson, claims that his conduct was not the proximate cause of [Servin's] or [Krakowski's] deaths because his acts did not set in operation the factors [158 Conn.App. 321] which caused the deaths. The defendant claims that the acts of [Servin], by his operating the motor vehicle with a blood alcohol level of 0.14 [percent] and by failing to stop at the blinking red light and by failing to yield the right-of-way to oncoming vehicles, constitutes an intervening cause which caused the death of both [Servin] and [Krakowski]. Now, this is a question of fact for you, as jurors, to determine. If you find that the state has not proven that it was the defendant's acts which set in operation the factors that caused the death, then you cannot find the defendant guilty. If you find that it was the acts of others which have actually set in operation the factors which caused the death in this case, you must find these acts to be an intervening cause. If you determine that an intervening cause exists and caused the death in the case, then the defendant's conduct, reckless or not, cannot legally be the proximate cause of [Servin's] or [Krakowski's] death."
At the conclusion of the jury instructions, the court stated: " [T]here is one other matter I almost forgot," referring to the interrogatory submitted by the defendant. The court failed to explain the content or purpose of the interrogatory, or how it related to the court's instructions regarding the substantive offenses. The court simply instructed the jury as follows: " It's going to be marked as a court exhibit, and it's labeled as an interrogatory. The foreperson, on behalf of the jurors, will answer this one question before coming out and returning the verdict. You'll fold that interrogatory in half, hand it to the marshal and the marshal will hand it to the clerk, all right. So, there will be one question which calls for a yes or no answer, all right." Jury deliberations began shortly thereafter. The court did not instruct the jury that its answer to the interrogatory must be unanimous. It also did not explain, with respect to the interrogatory, that the state had the burden to [158 Conn.App. 322] prove beyond a reasonable doubt that Servin's conduct was not an intervening cause.
A short time after commencing deliberations, the jury sent a note to the court asking whether the issue of intervening cause was applicable only to the charge of manslaughter in the second degree in counts one and two, or if it also was to be considered in conjunction with the lesser included charges of misconduct with a motor vehicle and negligent homicide with a motor vehicle. The court referred the jury to two pages of its instructions. That portion of the instructions stated that intervening cause was to be applied to counts one and two, including each lesser included offense. The jury then returned to its deliberations.
Sometime thereafter, the jury sent a second note to the court stating that it had reached a verdict. The jury returned to the courtroom and the verdicts were announced by the foreperson. As to counts one and two, pertaining to the respective deaths of Servin and Krakowski, the jury found the defendant not guilty of both counts of manslaughter in the second degree. As to the death of Servin (count one), the jury found the defendant not guilty of misconduct with a motor vehicle, but guilty of the lesser included offense of negligent homicide. As to the death of Krakowski (count two), the jury found the defendant guilty of misconduct with a motor vehicle. With respect to count three, the jury found the defendant guilty of reckless driving. The court then accepted and recorded the verdicts. The court did not, at this time, review the jury's answer to the interrogatory or make any inquiries of the jury with respect to it.
The court asked the jury to return to the deliberation room. After the jury left the courtroom, the court then reviewed the answer to the interrogatory and stated: " Counsel, the interrogatory came back and the question [158 Conn.App. 323] was, did the conduct of [Servin] constitute an intervening cause of the automobile collision, and the answer was yes." The court noted a perceived conflict between the guilty verdicts and the answer to the interrogatory: the guilty verdicts and answer to the interrogatory appeared to simultaneously find the defendant guilty on the lesser included charges in counts one and two and relieve him of criminal responsibility on those same charges.
The defendant requested that the court vacate the guilty verdicts on the lesser included charges as to count one and two because those verdicts were inconsistent with the jury's answer to the interrogatory, and render a judgment of acquittal on those charges. In response, the state asked that the jury be reinstructed and have the opportunity to resolve the inconsistency. After discussing these issues, the court stated that it was inclined to vacate its order accepting the verdicts, reinstruct the jury, and send the jury back for further deliberations on all counts. Specifically, the court stated: " Because the court is concerned with the inconsistency in a very basic legal principle of causation and intervening cause, the court feels that it is obligated to, at this point, vacate my order accepting the verdict, and I will do that at this point in time. I am going to vacate the acceptance of that verdict. The court has decided that it is going to reinstruct the jurors as to both the causation issue and the instruction on intervening cause, and, second, as to the inconsistency that applied between count one and two finding a different mental state of the defendant in each of those charges. So, those are my intentions. I have given each side, the state and [defense counsel], a copy of the proposed instruction. I have made some minor changes, and I'll say minor. I'll hear from both sides, first from the state." 
[158 Conn.App. 324] The state agreed with the court's position. The defendant objected to the court's intended plan. Specifically, he requested that the court vacate the guilty verdicts and render a judgment of acquittal on those charges. The defendant further argued that reinstructing the jury as to intervening cause would implicitly convey to the jury that it must have made a mistake and that it could rectify the mistake by simply changing its interrogatory answer from " yes" to " no." The defendant argued that such a course would be highly prejudicial and, therefore, renewed his oral motion to vacate the guilty verdicts because of the inconsistency of the answer to the interrogatory relative to the guilty verdicts, and asked that the court render judgment of acquittal as to the guilty verdicts on the lesser included charges in counts one and two.
The court ultimately denied the motion, stating: " I am going to deny that because of the reason that this case went to the jurors. I feel that there is an inconsistency, but the jurors should render a decision. I am not sure if they just do not understand the legal principle, as I explained it to them. But certainly it is within the province of the jury to have an opportunity to correct and to convey to us their intentions in this case. So, I am very reluctant to just cast aside the jurors' verdict in their place. I think they should be given the opportunity to explain to the court and to the parties what their intentions were. As I said, if their intentions were to find that [Servin], his actions, his conduct, constituted an intervening cause of the automobile collision, then in fact that finding would relieve the defendant of all of the criminal offenses. That may be what they wish [158 Conn.App. 325] to do, but the way they have rendered this verdict is legally inconsistent, and I can't--I am not just going to set aside their verdict without them having a full understanding. I believe the best way to address that is to reinstruct them as to the principles of the law so that they can render that decision."
The court then reinstructed the jury and premised its reinstruction on the basis of its determination that the jury's verdict " [was] inconsistent with the applicable legal principles," and therefore could not be accepted by the court. The court first reinstructed the jury on the doctrine of intervening cause, providing a definition and articulating the practical implications of a yes or no answer to the interrogatory. It stated: " [T]he answer, yes, to the interrogatory means that the intervening cause has relieved the defendant of criminal responsibility, and you must find the defendant not guilty as to counts one and two of the information, and to its lesser included offenses. . . . [I]f you have found that the conduct of [Servin] does not constitute an intervening cause of the accident, only then may you go on to consider the verdict of guilty to the charges and also to the lesser included offenses that were outlined in counts one and two."
The court next turned its attention to the second articulated inconsistency, pertaining to the inconsistent mental states required to convict the defendant of the lesser included offenses contained within counts one and two. The court stated: " [I]t is inconsistent to find the defendant guilty of criminal negligence in count one and find misconduct with a motor vehicle in count two because those statutes require that you make a different finding as to the defendant's mental state at the time of his actions." In addition, the court outlined the two mental states and the requirements of each: " Criminal negligence requires you to find the defendant failed to [158 Conn.App. 326] use or exercise reasonable care under the circumstances. The misconduct with a motor vehicle statute defines the mental state as failing to perceive a substantial and justifiable risk that will occur."
Following the reinstruction, the court stated, " I hope this helps to clarify some of the inconsistencies that has led this court not to accept your verdict. Therefore, and simply once again, the court will not invade in your findings of facts. However, it is very important that the jury interrogatory as to causation is consistent with the ultimate verdict." The jury resumed its deliberations. Sometime thereafter, the jury sent a note to the court stating that " it could not and will not be able to" reach a verdict as to counts one and two. In response, the court delivered a Chip Smith instruction on the need to deliberate further. See State v. O'Neil, 261 Conn. 49, 74, 801 A.2d 730 (2002).
The jury resumed deliberations and later sent another note asking if it could " rescind" its earlier answer to the interrogatory, which stated that Servin's conduct was an intervening cause in the accident. Over objection from defense counsel, the court determined that the jury had not yet answered the interrogatory and, thus, would need to resume deliberations. Accordingly, the court reasoned that there was nothing to rescind. The court referred the jury back to the prior reinstruction and asked it to return to its deliberations and answer the interrogatory question.
Shortly thereafter, the jury sent another note to the court. This note read: " Your Honor, [w]ith all due respect, we, the jurors, still remain in agreement with the interrogatory statement that [Servin's] actions contributed to the accident. Our question remains if there [158 Conn.App. 327] is a distinction between the accident and the deaths." (Emphasis added.) Outside of the presence of the jury, the court noted to counsel that the jury used the phrase " contributed to" rather than " intervening cause," and that the court did not understand the second portion of the note. The court indicated that it would attempt to answer this note the following day.
The following day, over objection from defense counsel, the court stated that it intended to resubmit the interrogatory to the jury: " I will say this to both counsel, that it is clear that when they sent out the note yesterday they used an incorrect legal term. What they meant I cannot infer, and that is the reason why I am resubmitting the jury interrogatory because it has the correct legal term of whether or not they find an intervening cause. So, in light of the term that they used, contributing factor, it has to be clarified, and that is the purpose that the court is going to resubmit the interrogatory, just so the record is clear. And once they have answered that interrogatory, and since I had already reinstructed them as to the law, I am giving them the opportunity to render a verdict. If they are able to render a legally consistent verdict, this court is bound by that verdict. If it is not consistent, then this court is going to be bound by the factual findings, all right." 
The court then, in the presence of the jury, gave the following instruction: " So, as I indicated, in the first part of your note you indicated that you had come to a finding regarding [Servin's] conduct. Now, at this point in time the court is going to resubmit to you the jury interrogatory. It is being resubmitted to you solely for the purpose that your finding be recorded in writing, whatever it may be. Now, also I want to indicate to you--and I've instructed you on this on prior occasions, [158 Conn.App. 328] and let me emphasize this to you once again. You are the sole finders of fact and that it is only my role to instruct you as to the law you are to apply to the case. And because you are the sole finders of fact, you should not be influenced by my reinstructions or the resubmission of the interrogatory to you, and you should not interpret it as any indication of an opinion as to how you should determine the issues of fact. That is for you alone to decide and, as I indicated, the purpose is to have this recorded in writing on the interrogatory form. After you answer this interrogatory, then you should consider my recent instructions to you, and if you are able to render a verdict as to counts one and two, you should send out a note indicating that you are able. If you hand a note to the ...