State v. Anderson ( 2015 )

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STATE OF CONNECTICUT v. JASON ANDERSON
(AC 35432)
Keller, Prescott and Schaller, Js.
Argued October 16, 2014—officially released June 30, 2015
(Appeal from Superior Court, judicial district of
Ansonia-Milford, Markle, J.)
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 attor-
ney, for the appellee (state).
Opinion
PRESCOTT, J. 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 miscon-
duct with a motor vehicle in violation of General Stat-
utes § 53a-571 and reckless driving in violation of
General Statutes § 14-222. The defendant claims that
the trial court improperly (1) declined to direct a judg-
ment 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 delibera-
tions; and (3) coerced or misled the jury into returning
guilty verdicts after it had resumed its deliberations.2
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 defen-
dant 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 Bos-
ton 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
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 defen-
dant’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 infor-
mation with two counts of manslaughter in the second
degree in violation of General Statutes § 53a-56 (a) (1)3
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
request any interrogatories and gave them until the next
day to submit any proposals. The following day, the
defendant submitted a proposed interrogatory. The pro-
posed interrogatory asked: ‘‘Did the conduct of [Servin]
constitute an intervening cause of the automobile colli-
sion?’’ 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 defen-
dant 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 miscon-
duct 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 miscon-
duct 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 proxi-
mate cause of [Servin’s] or [Krakowski’s] deaths
because his acts did not set in operation the factors
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 [Ser-
vin] 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 proxi-
mate 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 defen-
dant. 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
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 vehi-
cle, 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
was, did the conduct of [Servin] constitute an interven-
ing 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 dis-
cussing 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.’’4
The state agreed with the court’s position.5 The defen-
dant 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, there-
fore, renewed his oral motion to vacate the guilty ver-
dicts 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 inconsis-
tency, 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 opportu-
nity 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
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 responsi-
bility, 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
use or exercise reasonable care under the circum-
stances. The misconduct with a motor vehicle statute
defines the mental state as failing to perceive a substan-
tial 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.6 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 con-
tributed to the accident. Our question remains if there
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 coun-
sel, 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 resubmit-
ting 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, contribut-
ing 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.’’7
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,
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 resubmis-
sion 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 marshal—as I say, if you want
to resubmit to the first question, you may also do that.
Once you are able to answer the interrogatory and let
the marshal know if you are able to reach a verdict or
not, then I’ll call you back and we’ll read the interroga-
tory in open court and a verdict, if you shall have that,
all right.’’
Following its return to deliberations, the jury sent
another note stating: ‘‘[1] The jurors would like a copy
of the transcripts of [the court’s] comments and instruc-
tion to the jurors with regard to inconsistency of the
verdicts given by the jurors dated 11/6/12. [2] We would
like a copy of the original interrogatory statement com-
pleted by the jurors because it appears that it is worded
differently. [3] The reason we raised the question ‘was
there any distinction between the accident and the
deaths’ is, and based on testimonies, because SOME of
us jurors believe that [Servin’s] actions contributed to
the accident but their deaths are caused by the speed.’’
(Emphasis in original.) The court ordered that the
requested transcripts and original interrogatory be sub-
mitted to the jury, and reinstructed the jury regarding
the court’s limited role in juror deliberations as follows:
‘‘I want to emphasize again that the law that I have
given you is what the court’s duty is to do, provide you
with the applicable law. So, that applicable law you
must find to the facts of the case. Whatever you as
jurors find the facts to be, that is for you alone to decide,
all right. So, you find the facts, you take the law as I
have given it to you on the jury charge, and you take
only that law. That is the applicable law and you apply
it.’’ The court did not provide the jury with any instruc-
tions regarding whether there was a legally significant
distinction between the accident and the deaths.
Following additional deliberations, the jury sent a
note to the court indicating that it had reached a unani-
mous verdict. The interrogatory was read first:
‘‘The Clerk: Jury interrogatory. Did the conduct of
[Servin] constitute an intervening cause of the automo-
bile collision? Do you want me to read their answer,
Your Honor?
‘‘The Court: Yes, please.
‘‘The Clerk: No. Signed, the foreperson . . . .’’
The foreperson then announced the verdicts. The jury
unanimously found the defendant not guilty of man-
slaughter in the second degree as to both counts one and
two. The jury found the defendant guilty of misconduct
with a motor vehicle in violation of § 53a-57 on both
counts one and two, as they pertained to the respective
deaths of Servin and Krakowski. The court accepted
and recorded these verdicts. The court also stated that
it would ‘‘accept the previously rendered verdict of
guilty on count three [reckless driving], and that verdict
shall be accepted and recorded at this time.’’8 The jury
was polled and the verdicts were determined to be
unanimous.
After the jury was excused, the defendant made an
oral motion, pursuant to Practice Book § 42-51, for a
judgment of acquittal. The defendant argued that the
jury had been pressured to change its interrogatory
answer by the instructions given by the court and that
double jeopardy had attached after the jury had
returned its initial verdicts.9 The state maintained that
the initial verdict was inherently flawed and that further
deliberation had been necessary. The court denied the
defendant’s motion and stated: ‘‘Well, first and fore-
most, I’m going to deny your motion to enter a judgment
of acquittal and to set aside the verdict for the following
reasons: One, the factual basis here was one of which
the jurors could not have legally rendered a verdict the
first time around. It was a legally inconsistent verdict
with their findings. The court, giving great deference
to the jurors who sat here, listened to the evidence,
was assigned with the duties that jurors must to make
certain finding of fact, to weigh the credibility of the
witnesses. There is deference to the jurors to do their
job and for the court not to interfere with their fact-
finding process. However, when they returned the ver-
dict which was legally inconsistent with their factual
findings, this court had a duty to uphold the law and
also a duty to honor the findings. So, it was very clear
that it was a clarification that was needed to be given
to the jurors, at which time I reinstructed them, the
same instruction that was given out of the same instruc-
tion package out of the jury charge as to the meaning
of intervening cause. I think that in their questions they
clearly indicated to the court that they did not have
a clear understanding of the legal implication of the
intervening cause; otherwise, they could not have
reached that inconsistent verdict. So, for the record,
the court did not accept that verdict, that’s all. The
court just could not accept a finding that was legally
inconsistent, reinstructed them as to the law, and sent
them back to perform their duties. At this point in time,
the court now finds that their findings are consistent
after they’ve had an opportunity to re-review the jury
instruction, re-review my instruction to them, and to
consider the evidence in the case. So, the court is going
to do what it needs to do, which is to make sure that
the jurors’ intent is preserved and also honored, and it
is my duty to be bound by the findings, factual findings,
submitted by the jurors. And those are my reasons,
once again, that the verdict was not accepted the first
time around, and it was only accepted by the court
upon a return of a consistent verdict with the law.’’
Additional facts will be set forth as necessary.
I
The defendant first claims that the court improperly
declined to direct a judgment of acquittal on counts
one and two of the information and ordered the jury
to resume its deliberations, despite the fact that the
jury’s answer to the interrogatory was inconsistent with
the jury’s verdict of guilty on certain lesser included
offenses contained in those counts. Specifically, the
defendant argues that because the affirmative answer
to the interrogatory regarding intervening cause
appeared to relieve him of criminal responsibility as to
counts one and two, it should be deemed an acquittal
as a matter of law and should have prevailed over the
guilty verdicts on the lesser included offenses under
those counts.10 Accordingly, the defendant argues that
the correct course of action would have been to dis-
charge the jury and then direct judgments of acquittal
on both counts one and two. We are not persuaded.
A
Because some types of inconsistent verdicts are
legally permissible, the defendant’s claim necessarily
requires us to first discuss whether our case law on
inconsistent verdicts required the court to accept the
verdicts as initially returned by the jury and, thus, pre-
vented the court from ordering the jury to resume its
deliberations to eliminate any inconsistency between
the verdicts and the interrogatory. This case law is
generally divided into two categories.
The first category involves cases in which it is claimed
that two convictions are inconsistent with each other
as a matter of law or are based on a legal impossibility.
See, e.g., State v. Nash, 316 Conn. 651, 659, A.3d
(2015). Such convictions, commonly referred to as
‘‘mutually exclusive convictions,’’ are reviewable, and
cannot withstand a challenge if ‘‘the existence of the
essential elements for one offense negates the existence
of [one or more] essential elements for another offense
of which the defendant also stands convicted.’’ (Internal
quotation marks omitted.) Id. The present case does
not involve such a claim.11
The second category involves cases in which the
defendant claims that one or more guilty verdicts must
be vacated because there is an inconsistency between
those guilty verdicts and a verdict of acquittal on one
or more counts, or an acquittal of a codefendant. See,
e.g., State v. Arroyo, 292 Conn. 558, 586, 973 A.2d 1254(2009), cert. denied, 559 U.S. 911, 130 S. Ct. 1296, 175
L. Ed. 2d 1086 (2010); State v. Rosado, 178 Conn. 704,
705, 425 A.2d 108 (1979) (conviction of sale of narcotics,
acquittal of possession of narcotics); State v. Keating,
151 Conn. 592, 593–94, 200 A.2d 724 (1964) (after two
defendants were convicted of conspiracy and one was
acquitted, appealing defendants claimed that their con-
victions were inconsistent with acquittal of their code-
fendant), cert. denied sub nom. Joseph v. Connecticut,
379 U.S. 963, 85 S. Ct. 654, 13 L. Ed. 2d 557 (1965). It
is well established that such inconsistent verdicts are
not reviewable and the defendant is not entitled to relief
because ‘‘[when] the verdict could have been the result
of compromise or mistake, we will not probe into the
logic or reasoning of the jury’s deliberations or open the
door to interminable speculation.’’ (Internal quotation
marks omitted.) State v. Hinton, 227 Conn. 301, 313,
630 A.2d 593 (1993).
Our Supreme Court has further reasoned that incon-
sistent verdicts of this type ‘‘should not necessarily be
interpreted as a windfall to the [g]overnment at the
defendant’s expense. It is equally possible that the jury,
convinced of guilt, properly reached its conclusion [of
guilt] on [one charge], and then through mistake, com-
promise, or lenity, arrived at an inconsistent conclusion
on another offense. But in such situations the [g]overn-
ment has no recourse if it wishes to correct the jury’s
error; the [g]overnment is precluded from appealing or
otherwise upsetting such an acquittal by the [c]onstitu-
tion’s [d]ouble [j]eopardy [c]lause. . . .
‘‘[A]n individualized assessment of the reason for the
inconsistency would be based either upon pure specula-
tion, or would require inquiries into the jury’s delibera-
tions that courts generally will not undertake. . . . [A]
criminal defendant already is afforded protection
against jury irrationality or error by the independent
review of the sufficiency of the evidence undertaken
by the trial and appellate courts.’’ (Citations omitted;
footnote omitted; internal quotation marks omitted.)
State v. Arroyo, supra, 292 Conn. 585.
The present case does not fit into this category either.
Instead, the jury’s initial answer to the interrogatory
creates a possible inconsistency with respect to each
guilty verdict without reference to any other count on
which the defendant may have been convicted or acquit-
ted. In other words, as to each count, the jury seemingly
both convicted and acquitted the defendant. By finding
him guilty either of misconduct with a motor vehicle
or criminally negligent homicide, it must have con-
cluded that the defendant proximately caused the death
of Servin and Krakowski, and yet, the jury simultane-
ously found, as expressed in the answer to the interroga-
tory, that the defendant was not the proximate cause
of the collision because Servin’s conduct was an
intervening cause. This apparent inconsistency does
not require any comparison of the jury’s verdict on
different counts but instead seemingly creates an inter-
nal inconsistency with respect to the jury’s guilty verdict
on any particular charge. Thus, the principles discussed
in Arroyo that underlie a court’s unwillingness to review
claims of inconsistent verdicts and instead ‘‘let the chips
fall where they may’’ do not pertain to the present case
because we, in fact, are left not knowing whether the
defendant was convicted or acquitted on any of the
charges for which the jury returned a verdict of guilty.
Accordingly, we conclude that our case law on inconsis-
tent verdicts is not dispositive of the defendant’s claim
and does not prevent further consideration by the court
as to how to resolve the apparent inconsistency.
B
The issue whether, in a criminal case, a factual finding
expressed by a jury in an answer to an interrogatory
that relieves a defendant of criminal responsibility
trumps an inconsistent guilty verdict on one or more
of the charges is a question of first impression in this
state. The dearth of authority in Connecticut on this
issue is unsurprising because, as a general rule, jury
interrogatories have not been part of our criminal proce-
dure. See State v. Sitaras, 106 Conn. App. 493, 501, 942
A.2d 1071, cert. denied, 287 Conn. 906, 950 A.2d 1283(2008); see also State v. Anonymous (1971-3), 6 Conn.
Cir. Ct. 393, 397, 275 A.2d 629 (1971) (the use of interrog-
atories ‘‘is not appropriate in criminal jury trials’’ and
‘‘[i]t is the duty of a jury to return a general verdict
in a criminal trial’’). Nevertheless, interrogatories have
sometimes been used in criminal cases in Connecticut
and may well be appropriate or required12 in certain
limited contexts, such as when the jury is required to
find certain facts, which are not otherwise an element
of the offense, before a sentence may be enhanced. In
this case, however, neither party asserts that the use
of an interrogatory in the circumstances of this case
was improper. We, therefore, leave to another day the
question of whether a jury interrogatory is appropriate
in this or related contexts.13
To determine whether the court was required to ren-
der a judgment of acquittal on the basis of an inconsis-
tency between the answer to the interrogatory and the
guilty verdicts, we look to established double jeopardy
principles and to guidance from other jurisdictions in
answering this thorny, and rarely decided, question.
The fifth amendment to the United States constitution
provides in relevant part: ‘‘No person shall . . . be sub-
ject for the same offense to be twice put in jeopardy
of life or limb . . . .’’ ‘‘We have recognized that the
Double Jeopardy Clause consists of several protections:
It protects against a second prosecution for the same
offense after acquittal. It protects against a second pros-
ecution for the same offense after conviction. And it
protects against multiple prosecutions for the same
offense.’’ (Internal quotation marks omitted.) State v.
Colon, 272 Conn. 106, 294, 864 A.2d 666 (2004), cert.
denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116(2005). The United States Supreme Court has held that
‘‘[p]erhaps the most fundamental rule in the history of
double jeopardy jurisprudence has been that [a] verdict
of acquittal . . . could not be reviewed, on error or
otherwise, without putting [a defendant] twice in jeop-
ardy, and thereby violating the Constitution.’’ (Internal
quotation marks omitted.) United States v. Martin
Linen Supply Co., 430 U.S. 564, 571, 97 S. Ct. 1349, 51
L. Ed. 2d 642 (1977). ‘‘A judgment of acquittal, whether
based on a jury verdict of not guilty or on a ruling by
the court that the evidence is insufficient to convict,
may not be appealed and terminates the prosecution
when a second trial would be necessitated by a rever-
sal.’’ United States v. Scott, 437 U.S. 82, 91, 98 S. Ct.
2187, 57 L. Ed. 2d 65 (1978).
Most of the reported cases involving this species of
double jeopardy law focus on the nature and timing of
the actions by the trial court in granting a motion for
a judgment of acquittal, either in cases tried to the court
or in circumstances in which the jury is deadlocked.
In these cases, the United States Supreme Court has
‘‘emphasized that what constitutes an acquittal is not
to be controlled by the form of the judge’s action.’’
(Internal quotation marks omitted.) United States v.
Martin Linen Supply Co., supra, 430 U.S. 571. Rather,
‘‘[a]n acquittal results from a resolution, correct or not,
of some or all of the factual elements of the offense
charged . . . .’’ (Citation omitted; internal quotation
marks omitted.) State v. Paolella, 210 Conn. 110, 122–23,
554 A.2d 702 (1989), quoting United States v. Martin
Linen Supply Co., supra, 571.
The present case requires this court to analyze, not
the actions of the trial court, but, rather, the jury’s
answer to the interrogatory and determine whether it
should be deemed an acquittal because it represents a
resolution adverse to the state of some or all of the
factual elements of the offense charged. We now turn
to the reported cases that have addressed this question
in the context of an inconsistency between a jury’s
answer to an interrogatory and guilty verdict on one
or more counts of an information or indictment.
The state directs our attention to the decision by the
United States Court of Appeals for the Tenth Circuit in
United States v. Shippley, 690 F.3d 1192 (10th Cir.
2012), cert. denied, U.S. , 133 S. Ct. 901, 184 L.
Ed. 2d 698 (2013). In Shippley, the defendant was
charged with various drug offenses in connection with
his participation in a motorcycle gang. Id., 1193. The
jury returned a verdict finding the defendant guilty of
conspiracy to distribute controlled substances in viola-
tion of 21 U.S.C. § 846 but, in response to the District
Court’s special interrogatories, found that the defen-
dant had not conspired to distribute any of the drugs
listed in the indictment. Id. Thus, as the Tenth Circuit
noted, the jury ‘‘[i]n effect . . . both convicted and
acquitted [the defendant] of the charged conspiracy.’’
(Emphasis omitted.) Id.On appeal, the defendant in Shippley argued that
pursuant to United States v. Powell, 469 U.S. 57, 105 S.
Ct. 471, 83 L. Ed. 2d 461 (1984),14 and United States v.
Dotterweich, 320 U.S. 277, 64 S. Ct. 134, 88 L. Ed. 48(1943),15 the District Court should have rendered a judg-
ment of acquittal. United States v. Shippley, supra, 690
F.3d 1194. The Circuit Court in Shippley affirmed the
District Court and rejected the defendant’s reliance on
this reasoning and stated that, ‘‘[e]ven accepting for
argument’s sake [the defendant’s] premise that Powell
and Dotterweich implicitly require (rather than permit,
as they hold) a district court to accept a verdict logically
inconsistent as between counts or defendants, that still
does not speak to our case. In our case, it wasn’t just
logically incongruous to enter the jury’s verdict, it was
metaphysically impossible. Powell and Dotterweich
involved logical inconsistencies between counts and
between defendants. However illogical, the verdicts in
those cases could be given full effect. This case, by
contrast, involves an inconsistency on the same count
with the same defendant—an inconsistency that sim-
ply could not have been given full effect. Something
had to give in our case that didn’t have to give in these
other cases. To enter an acquittal, the district court
would have needed to disregard the fact that the jury
expressly found [the defendant] guilty. To enter a guilty
verdict, the court would have needed to overlook the
special verdict findings that [the defendant] did not
conspire to distribute any of the drugs at issue in the
case. . . .
‘‘If anything, Powell might even suggest the opposite
conclusion. The [c]ourt in Powell refused to undo the
defendant’s conviction on a compound offense despite
his acquittal on the underlying felony because it was
unclear whose ox ha[d] been gored: the jury’s inconsis-
tent verdict may have favored the government, but it
was equally possible it benefitted the defendant. . . .
That same sort of problem exists here. To enter any
verdict when the jury first returned, the district court
would have had to choose to ‘gore’ one side or the
other—just what Powell suggests courts should not do.’’
(Citation omitted; emphasis altered; internal quotation
marks omitted.) Id., 1195–96. The court in Shippley
explicitly limited its decision to instances ‘‘where a jury
returns a guilty verdict but indicates in its answers to
special interrogatories that the defendant is innocent.’’
Id., 1196.
Although the logic of Shippley is appealing on its
face, we decline to follow it for the following reason.
The court in Shippley explicitly recognized that it ‘‘d[id]
not purport to address other arguments, possibly ema-
nating from the [d]ouble [j]eopardy [c]lause or other-
wise, [the defendant] doesn’t raise.’’ Id. In the absence
of a controlling legal principle, such as double jeopardy,
the court in Shippley simply could not find any princi-
pled justification for choosing to gore one party’s ox
over the other’s. In the present case, however, the state
concedes that the defendant properly raised a double
jeopardy claim at trial and, thus, Shippley does not
answer whether double jeopardy principles required
the court to gore the state’s ox in these circumstances.16
Although not cited by either the state or the defendant
in this case, we find the decision of the United States
Court of Appeals for the Eighth Circuit in United States
v. Mitchell, 476 F.3d 539 (8th Cir. 2007), and the decision
of the United States Court of Appeals for the First
Circuit in United States v. Fernandez, 722 F.3d 1 (1st
Cir. 2013), to be much more instructive. In Mitchell, the
defendant was charged with two counts of bankruptcy
fraud arising from his filing of a bankruptcy petition.
United States v. Mitchell, supra, 541. The United States
District Court for the Northern District of Iowa charged
the jury on the substantive criminal law that applied to
each count, including that, in order to be found guilty
on the second count, the government must establish
beyond a reasonable doubt that any false statements
made by the defendant regarding his petition were
‘‘material,’’ that is, the statements ‘‘had a natural ten-
dency to influence, or were capable of influencing the
outcome of the bankruptcy petition.’’ (Internal quota-
tion marks omitted.) Id., 542. The District Court also
submitted to the jury a series of interrogatories related
to each count, including one that specifically asked the
jury if it ‘‘unanimously [found] beyond a reasonable
doubt that one or more of the [statements] were mate-
rial . . . .’’ (Internal quotation marks omitted.) Id. The
jury was asked to check ‘‘yes’’ or ‘‘no’’ in response to this
interrogatory. (Internal quotation marks omitted.) Id.The jury returned a verdict of guilty as to each count,
but checked the ‘‘no’’ box to this interrogatory, indicat-
ing ‘‘that it could not make a unanimous finding beyond
a reasonable doubt that one or more of the false state-
ments [were] material.’’ Id. The defendant subsequently
moved for a judgment of acquittal or, in the alternative,
a new trial. Id., 542–43. The District Court vacated the
guilty verdict on the second count, concluding that
because ‘‘the jury had convicted [the defendant] of vio-
lating [the Bankruptcy Code provision] without finding
any materiality . . . the jury’s verdict . . . cannot
stand,’’ and ordered a new trial. (Internal quotation
marks omitted.) Id., 543. The defendant then moved to
dismiss the charge on double jeopardy grounds, but the
District Court denied that motion. Id.On appeal, the defendant argued that double jeopardy
barred the government from continuing to prosecute
this charge because, in essence, the jury’s answer to
the interrogatory constituted a factual finding made
beyond a reasonable doubt that was fatal to the govern-
ment’s case. Although the Eighth Circuit essentially
agreed with the defendant’s assertion that the double
jeopardy clause applies not only to verdicts of acquittal
but also to ‘‘final [adverse] adjudications of fully liti-
gated legal issues’’; id., 544; it refused to accord the
jury’s answer to the interrogatory the legal significance
urged by the defendant. Id., 544–45.
In rejecting the defendant’s double jeopardy claim,
the court began its analysis by emphasizing that ‘‘[t]he
burden is on the defendant to demonstrate that the issue
whose relitigation he seeks to foreclose was actually
decided’’ previously by the jury. (Internal quotation
marks omitted.) Id., 544, citing Dowling v. United
States, 493 U.S. 342, 350, 110 S. Ct. 668, 107 L. Ed.
2d 708 (1990). The court then considered the precise
wording of the interrogatory and reasoned: ‘‘The
response to the interrogatory does not suggest that the
jury made a unanimous factual finding with respect to
the materiality of the misstatements. The finding means
one of two things: either (1) the jury unanimously found
the statements immaterial, or (2) some jurors found
the statements material and some jurors found the state-
ments immaterial. In the former case, jeopardy would
attach, and in the latter case jeopardy would not attach.
The language of the interrogatory itself is not suscepti-
ble to discerning just what, specifically, the jury found;
we know merely that it was unable to unanimously
agree beyond a reasonable doubt that the statements
were material. There is nothing in the language that
suggests the jury has found beyond a reasonable doubt
that the statements were immaterial.’’ United States v.
Mitchell, supra, 476 F.3d 545. Accordingly, the Eighth
Circuit Court of Appeals concluded that the defendant
had failed to meet his burden to demonstrate that jeop-
ardy attached and affirmed the District Court’s denial
of his motion to dismiss the indictment. Id.We next turn to the First Circuit’s decision in United
States v. Fernandez, supra, 722 F.3d 1. Fernandez
involved two defendants, Juan Bravo Fernandez
(Bravo) and Hector Martinez Maldonado. Bravo was
found guilty by a jury of (1) conspiracy to travel in
interstate commerce in aid of racketeering (count one),
and (2) interstate travel in aid of racketeering with the
intent to promote bribery in violation of Puerto Rico
law (count two).17 Id., 7. With respect to count one, the
government had alleged that Bravo had conspired to
commit two separate offenses: bribery in violation of 18
U.S.C. § 666 (federal bribery) and traveling in interstate
commerce in violation of 18 U.S.C. § 1952 (Travel Act).
Id. In a special finding with respect to count one, the
jury rejected the federal bribery offense as an object
of the conspiracy and found that he had conspired only
to travel in interstate commerce ‘‘in aid of racketeering
. . . .’’ Id. The only ‘‘racketeering’’ conduct alleged by
the government was bribery in violation of federal and
Puerto Rico laws. Id. The jurors had not been asked to
specify the unlawful purpose of the travel. Id., 29.
With respect to count two, the substantive Travel
Act offense, the jury found Bravo guilty of traveling in
interstate commerce with the intent to commit bribery
in violation of Puerto Rico bribery law, but found that
he did not violate the Travel Act with the intent to
commit federal bribery in violation of 18 U.S.C. § 666.
Id. ‘‘Thus, in both the context of identifying the object
of the alleged conspiracy (§ 666 bribery or Travel Act)
and in the context of choosing the unlawful activity
that was the target of the Travel Act (§ 666 bribery or
bribery under Puerto Rico law), the jury rejected the
allegation that Bravo’s conduct implicated the federal
bribery statute.’’ Id.
The double jeopardy issues in Fernandez came to
the fore because the District Court had granted Bravo’s
posttrial motion for a judgment of acquittal as to count
two, the substantive Travel Act offense, on the ground
that ‘‘the repeal of the Puerto Rico bribery laws before
the trip took place made it impossible for Bravo’’ to have
engaged in conduct that violated one of the elements of
the offense. Id., 7. Accordingly, because the District
Court rejected, as a matter of law, a violation of Puerto
Rico law as a basis for the Travel Act offense, and the
jury factually rejected federal bribery law as a basis of
that offense, the defendant was entitled to a judgment
of acquittal on count two.
Bravo also moved on double jeopardy grounds for a
judgment of acquittal as to count one, the conspiracy
offense. Id., 29. ‘‘His theory was as follows: if the only
target of the Travel Act found by the jury when consider-
ing the substantive Travel Act charge (count two) was
to further a violation of the Puerto Rico statutes, and
that targeted activity was not unlawful, there could be
no unlawful conspiracy to violate the Travel Act. In
other words, he argued that the conspiracy count must
be dismissed because the jury verdicts rejecting 18
U.S.C. § 666 as an object of the conspiracy and as a
predicate for the substantive Travel Act charge left only
the repealed Puerto Rico bribery laws as the crime
the jury could have found as the racketeering activity
alleged to be the target of the Travel Act conspiracy.
In that circumstance, there was no viable predicate
for the Travel Act conspiracy.’’ (Emphasis in original.)
Id., 30.
‘‘The district court denied the motion. It held that
the jury could have reached different conclusions about
the objective of Bravo’s travel when separately consid-
ering the conspiracy and substantive Travel Act counts.
Stated otherwise, the court found that the jury’s unelab-
orated finding on count one that Bravo had conspired
to travel ‘in aid of racketeering’ could have reflected a
finding that Bravo had conspired to violate the Travel
Act with the intent to promote federal program bribery.
The court considered this outcome possible even
though, when considering the substantive Travel Act
crime (count two), the jury found that Bravo did not
violate the Travel Act for that purpose and even though
the jury explicitly found (on count one) that Bravo did
not conspire to violate § 666. The court held that any
inconsistency in such a scenario was not problematic.’’
(Emphasis in original.) Id.
On appeal, the First Circuit rejected the government’s
claim that Bravo’s conviction of conspiracy could be
upheld because the inconsistencies discussed pre-
viously could be reconciled. As the appeals court rea-
soned, ‘‘the problem here is not merely the possibility
of inconsistent verdicts. Rather, even if we were to
assume that the jury could have relied on a § 666 theory
in finding Bravo guilty on the Travel Act conspiracy
count, we do not in fact know whether the racketeering
activity found by the jury as a predicate was bribery
under federal law or bribery under the repealed Puerto
Rico statutes. We are thus confronted with a situation
in which the verdict is supportable on one ground, but
not on another, and it is impossible to tell which ground
the jury selected. Yates v. United States, 354 U.S. 298,
312, 77 S. Ct. 1064, 1 L. Ed. 2d 1356 (1957), overruled
on other grounds by Burks v. United States, 437 U.S.
1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978). When a jury has
been presented with several bases for conviction, one
of which is legally erroneous, and it is impossible to tell
which ground the jury convicted upon, the conviction
cannot stand. United States v. Sawyer, 85 F.3d 713,
730–31 (1st Cir.1996); see also United States v. Mubay-
yid, 658 F.3d 35, 71 (1st Cir. 2011) [cert. denied sub
nom. Al-Mona v. United States, U.S. , 132 S.
Ct. 2378, 182 L. Ed. 2d 1052 (2012)]; United States v.
Kavazanjian, 623 F.2d 730, 739–40 (1st Cir. 1980)
(reversing verdict on multi-object conspiracy convic-
tion under [18 U.S.C.] § 371 where one object failed
to state a crime).’’ (Internal quotation marks omitted.)
United States v. Fernandez, supra, 722 F.3d 33.
The First Circuit then turned to the question of the
appropriate remedy and determined that, although nor-
mally a new trial should be ordered if the jury may have
found guilt upon a legally invalid basis, double jeopardy
principles barred Bravo’s retrial on count one. Id., 33–
34. The court reasoned that, taken together, the jury’s
explicit finding on count one that Bravo had not con-
spired to violate federal bribery law and its finding on
count two that he had not violated the federal bribery
statute, constituted a necessary finding that the federal
law did not serve as a basis for the jury’s conclusion
on count one that Bravo had conspired to violate the
Travel Act ‘‘in aid of racketeering . . . .’’ Id., 34. Said
another way, the jury’s special findings on counts one
and two trumped its inconsistent general verdict of
guilty of conspiracy.
We agree with the First and Eighth Circuits18 that if
a jury in an answer to an interrogatory or in a special
finding makes a unanimous factual finding beyond a
reasonable doubt and that finding negates one or more
of the essential elements of the underlying offense, such
a finding constitutes an acquittal regardless of a general
verdict by the jury finding a defendant guilty of that
offense. This result is required because the jury’s
answer, in the parlance of the double jeopardy cases
previously discussed, constituted ‘‘a resolution, correct
or not, of some or all of the factual elements of the
offense charged . . . .’’ (Citation omitted; internal quo-
tation marks omitted.) State v. Paolella, supra, 210
Conn. 122–23, quoting United States v. Martin Linen
Supply Co., supra, 430 U.S. 571.19
C
We turn then to analyzing the jury’s answer to the
interrogatory in this case to determine whether, in light
of all of the circumstances, it constituted a unanimous
resolution, correct or not, of some or all of the factual
elements of any of the charges of which the jury found
the defendant guilty. We also emphasize that ‘‘[t]he bur-
den is on the defendant to demonstrate that the issue
whose relitigation he seeks to foreclose was actually
decided’’ previously by the jury. (Internal quotation
marks omitted.) United States v. Mitchell, supra, 476
F.3d 544. For the reasons that follow, we conclude that
the defendant has not met that burden.
We recognize, and the parties do not dispute, that
the state had the obligation with respect to both counts,
and any lesser included offenses thereof, of proving
beyond a reasonable doubt that the defendant was the
proximate cause of the deaths of Servin and Krakowski.
This burden, in the circumstances of this case, required
the state to disprove beyond a reasonable doubt that
Servin’s conduct constituted an intervening cause such
that the defendant’s conduct was not the proximate
cause of the deaths of Servin and Krakowski. See, e.g.,
State v. Kwaak, 21 Conn. App. 138, 146, 572 A.2d 1015(‘‘causation element requires that the state prove
beyond a reasonable doubt, first that the death of a
person would not have occurred ‘but for’ the defen-
dant’s [wrongful conduct], and second, that the defen-
dant’s [wrongful conduct] substantially and materially
contributed to the death . . . in a natural and continu-
ous sequence, unbroken by an efficient, intervening
cause’’), cert. denied, 215 Conn. 811, 576 A.2d 540(1990). If the jury unanimously concluded that the state
had failed to meet this burden of proof beyond a reason-
able doubt, then the defendant was entitled to a judg-
ment of acquittal despite its verdict of guilty on the
lesser included offenses with respect to count one and
count two.
The jury interrogatory, which was drafted by the
defendant, asks: ‘‘Did the conduct of David Servin con-
stitute an intervening cause of the automobile collision?
Yes ___ No ___.’’ The jury checked the ‘‘No’’ space.
First, it is highly significant that the interrogatory is
silent regarding the need for jury unanimity. It does not
ask the jury whether its conclusion with respect to this
question was reached unanimously. Thus, without the
interrogatory asking the jury about its unanimity, we are
left to speculate regarding whether the answer simply
reflects a majority vote. Even the ambiguous interroga-
tory in Mitchell was clear that the jury’s finding on
materiality must be unanimous. Moreover, we are
unwilling to presume unanimity because the jury was
never given any specific instructions on the meaning
of the interrogatory, how it related to its verdicts on the
various counts,20 or, most importantly, that its answer to
it must be unanimous. The court, as an afterthought,
simply told the jury to fill it out and to hand it into the
marshal. Finally, we note that the jury was never polled
on its initial answer to the interrogatory.
Second, the language of the interrogatory conflicts
with the charge the court gave the jurors on intervening
cause. The court’s charge correctly informed the jury
that it had to consider, in deciding whether the state had
proven proximate cause beyond a reasonable doubt,
whether Servin’s conduct was an intervening cause in
the deaths of Servin and Krakowski. See General Stat-
utes §§ 53a-56 (a) (1), 53a-57 and 14-222a; see also State
v. Lawson, 99 Conn. App. 233, 241, 913 A.2d 494, cert.
denied, 282 Conn. 901, 918 A.2d 888 (2007). The interrog-
atory, however, asked the jury to determine whether
the conduct of Servin was an intervening cause of the
automobile collision. Thus, the jury, by answering the
interrogatory ‘‘yes,’’ did not necessarily make a determi-
nation regarding an essential element of the offenses
with which he was charged.
We recognize, of course, that if Servin’s conduct was
the intervening cause of the collision, it is difficult to
fathom how the defendant’s actions could still be the
proximate cause of the deaths. In this regard, however,
we note that the distinction between the cause of the
collision and the cause of the deaths appeared to be of
some importance to the jury. After returning its initial
verdicts, in a note to the court on November 6, 2012,
the jury asked ‘‘if there is a distinction between the
accident and the deaths.’’ The following day the jury
continued to express its struggle with the interrogatory
and the court’s charge by stating in another note: ‘‘The
reason we raised the question ‘was there any distinction
between the accident and the deaths’ is, and based on
testimonies, because SOME of us jurors believe that
[Servin’s] actions contributed to the accident but their
deaths are caused by speed.’’ (Emphasis in original.)
We decline to speculate as to why the jury believed this
distinction was significant. What is noteworthy is that
there either may have been confusion about the legal
principles of proximate and intervening cause, or indi-
vidual jurors may have been wrestling with different
factual scenarios that made this distinction important
to them. In any event, the interrogatory did not ask them
unanimously to resolve, correct or not, an essential
element of the offenses charged. Accordingly, we con-
clude that the defendant has not met his burden ‘‘to
demonstrate that the issue whose relitigation he seeks
to foreclose was actually decided’’ previously by the
jury, and, therefore, he is not entitled to a judgment of
acquittal on either count one or two of the information.
II
Having concluded that the defendant was not entitled
to a judgment of acquittal on counts one and two, we
next turn to the issue of whether the court properly
vacated all of the verdicts and ordered the jury to
resume its deliberations on all of the charges, including
those offenses for which the jury initially found the
defendant not guilty. The state argues that, in light of
the perceived inconsistency between the jury’s answer
to the interrogatory and the verdicts of guilty, the court
properly vacated all of the verdicts and ordered the
jury to resume deliberation on all of the counts. We
conclude that, under the circumstances of this case, it
was improper for the court to vacate the verdicts of
not guilty on the two counts of manslaughter in the
second degree and the lesser included offense of mis-
conduct with a motor vehicle under count two, and
order the jury to resume deliberations on all of the
offenses charged under counts one and two.21
A
As we have previously discussed, ‘‘[p]erhaps the most
fundamental rule in the history of double jeopardy juris-
prudence has been that [a] verdict of acquittal . . .
could not be reviewed, on error or otherwise, without
putting [a defendant] twice in jeopardy, and thereby
violating the Constitution.’’ (Internal quotation marks
omitted.) United States v. Martin Linen Supply Co.,
supra, 430 U.S. 571. In support of its argument that
double jeopardy did not bar the trial court from vacating
the verdicts of not guilty, the state principally relies on
our Supreme Court’s decision in State v. Colon, supra,
272 Conn. 106. In Colon, the defendant was found guilty
of one count of murder in violation of General Statutes
§ 53a-54a and one count of capital felony in violation
of General Statutes (Rev. to 1997) § 53a-54b (9). Id.,
127. After a jury found the defendant guilty, a separate
penalty hearing was conducted. Following delibera-
tions, the jury sent a communication to the court and
indicated that it had reached a verdict. Id., 278. The
clerk then asked the jurors about their findings from
their special verdict form, and the jury reported that it
had unanimously agreed, among other things, that the
aggravating factor had not outweighed the mitigating
factors found by one or more members of the jury. Id.,
278–79. The initial special verdict form was then read
and accepted. Id., 279. The jury’s initial verdict would
not have permitted the imposition of the death penalty.
Immediately upon exiting the courtroom, a member
of the jury informed a sheriff that there was a problem
with the verdict. Id. At this time, the jury remained
undispersed, without any communication from or with
outside parties. Id. The court was informed of the prob-
lem and, after discussion in chambers with both sides,
a jury poll was taken and each individual juror indicated
that his or her intent was to announce that the aggravat-
ing factor outweighed the mitigating factor or factors.
The jury was then instructed to complete another spe-
cial verdict form, which indicated its intended findings.
Id. The corrected verdict therefore called for the imposi-
tion of the death penalty. Id., 280.
On appeal, the defendant in Colon claimed that the
‘‘ ‘enforcement’ of the jury’s second verdict violated his
rights under the double jeopardy clause because the
jury’s [initial] verdict constituted a ‘complete and final
judgment’ to which jeopardy attached.’’ Id., 294. Our
Supreme Court, after extensively reviewing precedent
from around the country, concluded that the trial
court’s acceptance of the jury’s corrected verdict, prior
to the jury’s discharge, did not violate the defendant’s
double jeopardy rights, as the jury had not been dis-
charged prior to its correction. Id., 297. Critical to the
court’s ultimate conclusion, however, was the fact that
the jury never ‘‘actually unanimously agreed that the
aggravating factor did not outweigh the mitigating fac-
tor or factors . . . and, therefore, the defendant was
not acquitt[ed] within the meaning of’’ our double jeop-
ardy jurisprudence. (Emphasis omitted; internal quota-
tion marks omitted.) Id., 298.
The circumstances of the present case, however, are
fundamentally different from those presented in Colon
or the cases on which Colon relied. Here, the jury never
expressed to the court that its verdicts were not what
it intended. No juror expressed to the court or court
staff at any time that he or she had truly intended to
find the defendant guilty of the offenses on which he
or she had voted not guilty. Accordingly, we conclude
that the state’s reliance on Colon is not justified.
We also emphasize that no juror indicated to the court
that he or she had any concern regarding unanimity on
the verdicts of not guilty.22 Thus, this case is unlike
Thomas v. United States, 544 A.2d 1260 (D.C. 1988),
which is relied on by the state. In Thomas, the jury
originally returned a split verdict, which was followed
by a jury poll. Id., 1261. After only two jurors were
polled, it was evident that confusion and lack of unanim-
ity existed. Id. Without polling the remaining jurors on
that count or any of the remaining counts, the court
concluded that there was a lack of unanimity. The court
then sent the jury back to continue its deliberations,
on all counts, until a unanimous verdict was reached.23
Id. The issue on appeal in Thomas was whether ‘‘the
[d]ouble [j]eopardy [c]lause bars a jury from engaging
in further deliberations regarding charges as to which
the foreperson has announced verdicts of not guilty but
which have not yet been accepted or recorded by the
court.’’ (Emphasis added.) Id., 1262.
Here, it was the trial court, not the jury, that raised
the issue of a possible inconsistency between the ver-
dict and interrogatory, and sought to rectify a perceived
problem with the verdict, after it had already accepted
and recorded the initial verdicts as delivered by the
foreperson. Indeed, when the jury was asked to return
to the courtroom after it had returned its initial verdicts,
the court took no steps to ascertain whether the verdicts
returned were reflective of the jury’s true intent or were
not unanimous.
Finally, and perhaps most importantly, the jury’s
answer to the interrogatory was not inconsistent in any
way with the verdicts of not guilty. Thus, although the
apparent inconsistency between jury’s answer to the
interrogatory and the guilty verdicts may have given the
court a permissible basis to vacate the guilty verdicts, it
could not have served as a basis for vacating the not
guilty verdicts. Hypothetically, the jury may have con-
cluded that the defendant was not guilty of manslaugh-
ter in the second degree as alleged in counts one and
two because the state failed to meet its burden of proof
on some element of that offense (such as recklessness)
other than the element of proximate cause. Accordingly,
we conclude that the court improperly vacated the ini-
tial verdicts of not guilty. Therefore, because the jury
on count one (Servin) ultimately returned a guilty ver-
dict on the lesser included offense of misconduct with
a motor vehicle and the jury had previously acquitted
him of that offense as to the death of Servin, we con-
clude that we must direct the court to render a judgment
of acquittal as to that offense.
B
Having concluded that the court improperly vacated
the verdicts of not guilty, we turn then to whether the
court properly vacated the guilty verdicts and ordered
the jury to resume deliberations. The defendant argues
on appeal, and we have addressed in part I of this
opinion, that the court should not have vacated those
verdicts and ordered the jury to resume deliberations,
but instead, as required by double jeopardy principles,
should have rendered a judgment of acquittal on counts
one and two in their entirety. Because we have decided
that claim adverse to the defendant, we can divine no
other logical basis on which to conclude that he was
aggrieved by, or would have objected to, the court
ordering the jury to resume its deliberations on the
lesser included offenses for which the jury initially
returned verdicts of guilty. Indeed, the defendant in his
brief does not raise any independent claim that it was
improper to order further deliberations on those
offenses for which the jury initially found him guilty,
but instead relies solely on the claim that he was entitled
to a judgment of acquittal on all charges. In light of our
rejection of that claim, the defendant could only have
benefited from the jury reconsidering its guilty verdicts.
Thus, any error was harmless in these circumstances
and cannot entitle the defendant to relief. Accordingly,
no further discussion of this issue is warranted.
III
Finally, we turn to the defendant’s claim that even if
the court properly directed the jury to resume delibera-
tions, the court’s supplemental instructions to the jury
were nevertheless improper. Specifically, the defendant
claims that while directing the jury to resume its deliber-
ations, and at various times thereafter, the court
improperly instructed the jury on the relevant legal
principles that would inform its deliberations, and con-
veyed that its answer to the interrogatory should con-
form to its initial findings of guilty. The state argues in
response that the court’s instructions were correct and
not improperly suggestive because they emphasized the
jury’s sole role as the fact finder. We conclude that
the court’s instructions both failed to accurately and
completely instruct the jury on the principles that it
was to apply during its additional deliberations, and,
at times, implicitly suggested to the jury that it should
change its initial answer to the special interrogatory to
a conclusion that Servin’s conduct was not an interven-
ing cause.
We begin by setting forth the applicable legal princi-
ples and standard of review that govern our analysis.
Because the court’s instructions following its rejection
of the initial verdicts related to the existence or lack
of an intervening cause, an essential element of the
state’s case, the defendant’s claim raises an issue of
constitutional magnitude. See State v. Johnson, 316
Conn. 45, 58, 111 A.3d 436 (2015) (‘‘[i]t is . . . constitu-
tionally axiomatic that the jury be [properly] instructed
on the essential elements of a crime charged’’ [internal
quotation marks omitted]). ‘‘If an improper jury instruc-
tion is of constitutional magnitude, the burden is on
the state to prove harmlessness beyond a reasonable
doubt.’’ (Internal quotation marks omitted.) Id. ‘‘[A]n
instructional constitutional error is harmless if there is
no reasonable possibility that the jury was misled.’’
(Internal quotation marks omitted.) State v. Prioleau,
235 Conn. 274, 288 n.13, 664 A.2d 743 (1995); see id.(perceiving ‘‘no functional difference between the two
formulations’’ [internal quotation marks omitted]). ‘‘In
performing harmless error analysis, we keep in mind
that [i]n determining whether it was indeed reasonably
possible that the jury was misled by the trial court’s
instructions, the charge to the jury is not to be critically
dissected for the purpose of discovering possible inac-
curacies of statement, but it is to be considered rather
as to its probable effect upon the jury in guiding them
to a correct verdict in the case. . . . The charge is to
be read as a whole and individual instructions are not to
be judged in artificial isolation from the overall charge.’’
(Internal quotation marks omitted.) State v. Padua, 273
Conn. 138, 166–67, 869 A.2d 192 (2005). ‘‘In other words,
we must consider whether the instructions [in totality]
are sufficiently correct in law, adapted to the issues and
ample for the guidance of the jury. . . . A challenge to
the validity of jury instructions presents a question of
law over which [we have] plenary review.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Santiago, 305 Conn. 101, 190–91, 49 A.3d 566 (2012).
With the foregoing principles in mind, we turn to
the merits of the defendant’s claim. At the outset, we
observe that the court’s supplemental instructions were
not delivered during one continuous charge, but over
the course of several separate exchanges with the jury,
many of which were prompted by questions posed to
the court by the jury during the resumed deliberations.
Mindful that we must consider the court’s instructions
in their entirety, we review each of the court’s relevant
remarks in the order and context in which they were
delivered. Because the court’s initial instructions
regarding the interrogatory established the founda-
tional principles that the jury was to apply during its
deliberations, we begin our analysis with those remarks.
At the conclusion of its charge to the jury, the court
stated: ‘‘And then there is one other matter I almost
forgot. . . . 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.’’
Although there is no requirement that the court
engage in a prolonged explanation of the considerations
that will inform the jury’s responsibilities with respect
to an interrogatory, these remarks were especially brief
and provided virtually no guidance to the jury about
the purpose of the interrogatory and how it related to
the individual offenses with which the defendant was
charged. Most significantly, the court did not explain
to the jury that the question posed in the interrogatory
should not be considered in isolation from its instruc-
tions on the specific charges upon which the jury was
to deliberate. The court also did not advise the jury
that an affirmative answer to the interrogatory would
dispose, in the defendant’s favor, of all charges in
counts one and two, and would obligate it to return a
verdict of not guilty as to those counts. The court also
failed to instruct the jury that its answer to the interroga-
tory must reflect the unanimous view of the jury.
Finally, the court did not remind the jury, as previously
discussed in this opinion, that the state had the obliga-
tion to disprove beyond a reasonable doubt that Servin’s
conduct was an intervening cause in the deaths of Ser-
vin and Krakowski. In sum, at the time that the jury
first began its deliberations, it had no explanation from
the court regarding the purpose of the interrogatory,
its critical connection to the possible verdicts the jury
could lawfully return, and the other requirements, such
as unanimity, that must have been met before the jury
could return an answer. Indeed, after the jury first began
its initial deliberations, it sent a note to the court that
indicated that it was already struggling with the doctrine
of intervening cause and how that doctrine related to
the various offenses upon which it was deliberating.
After the jury returned its first verdicts and answer
to the interrogatory, the court, outside of the jury’s
presence, vacated its acceptance of all of the verdicts.
It then recalled the jury and stated: ‘‘The reason why I
have called you back is that I have to advise you that the
court is unable to accept the verdict as it was rendered
because it is a verdict that is inconsistent with the
applicable legal principles with which I have instructed
you.’’ The court then stated its intention to reinstruct
the jury, and began by reviewing its prior instructions
regarding causation and intervening cause. Following
those instructions, the court turned to the interrogatory
and instructed the jury as follows: ‘‘Directly related to
that issue of causation was the interrogatory that was
posed to you: did the conduct of David Servin constitute
an intervening cause of the automobile collision? . . .
So, the 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. Now, if you have found
that the conduct of David 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 out-
lined in count one and two.’’
The court continued: ‘‘So, in summary, I hope this
helps to clarify some of the inconsistencies that [have]
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. Therefore, I am going to direct you to
take these instructions into consideration and engage
in further deliberations, and for you to clarify what your
intentions were. Did you intend to relieve the defendant
of criminal responsibility or did you not intend to relieve
the defendant of criminal responsibility by finding an
intervening cause? Whatever your decision is, that is
your decision to make, all right.’’
The court concluded by stating: ‘‘So, thank you. I am
going to ask you to go back to the deliberation room.
I am going to ask you to then send a note to the court
that you have reached your conclusion, at which point
I am going to have you come back down again, and I
am going to have the . . . clerk read to the jury the
jury interrogatory. Read it, you will answer it and then
go on to the verdict form again and take your response,
all right.’’
Although these instructions provided the jury with
more information about the purpose of the interroga-
tory, they were problematic in several other respects.
Initially, by focusing its instructions almost entirely on
the element of causation and its relationship to the
doctrine of intervening cause, the court narrowed the
scope of the jury’s redeliberations to resolving those
specific issues. The jury was free, however, to recon-
sider and continue deliberating on any aspect of its
verdicts, including any of the other elements of the
charges alleged in counts one and two of the informa-
tion. Although it was reasonable to emphasize the issues
that most likely gave rise to the jury’s confusion, by
failing to advise the jury that it was also free to recon-
sider all of its findings, the court implicitly suggested
that the jury’s specific findings with respect to causation
and the doctrine of intervening cause should be the
focus of its attention.
Furthermore, although the court stated that it could
not accept the jury’s verdicts, it had already done so
in the jury’s presence. Thus, it was not made clear to
the jury that the verdicts had been vacated and were
no longer in effect. This lack of clarity created a substan-
tial risk that the jury would view its task as having to
correct a defect in its original verdicts, rather than
return new verdicts altogether. A number of remarks
made by the trial court then compounded this ambiguity
by suggesting that the problem in the original verdict
was the jury’s answer to the interrogatory.
First, rather than emphasizing that the special inter-
rogatory and verdict must be consistent with each
other, the court stated that it was ‘‘very important that
the jury interrogatory . . . is consistent with the ulti-
mate verdict.’’ (Emphasis added.) This remark was
likely to direct the jury’s focus to the interrogatory and
the potential need to change its answer to it. In other
words, it suggested that the interrogatory could simply
be changed to match the jury’s initial verdicts of guilty
on certain of the offenses. The fact that the court
focused its supplemental instructions on the element
of causation and its interplay with the interrogatory
only further suggested that the affirmative answer to
the interrogatory, rather than both the general verdicts
of guilty and the answer to the interrogatory, was the
cause of the court’s refusal to accept its initial verdicts.
Second, the court’s query to the jury—’’[d]id you
intend to relieve the defendant of criminal responsibility
or did you not intend to relieve the defendant of criminal
responsibility by finding an intervening cause’’—
improperly suggested that the jury’s overarching intent
to hold, or not hold, the defendant criminally responsi-
ble should govern its answer to the special interroga-
tory. In truth, however, the answer to the special
interrogatory constituted a factual finding that the jury
was required to make regardless of whether it desired
to hold the defendant criminally responsible or not.
By tying the answer to the interrogatory to the legal
outcome of the case, the court distracted the jury from
its primary task of deciding the factual issues put
before it.
The court next instructed the jury after the jury sent
the court another note. In the note, the jury stated: ‘‘We
would like to know if the interrogatory statement can
be rescinded.’’24 This note confirms our concern that
the court’s earlier instructions would be considered as
suggesting to the jury that it could fix the problem by
changing its answer to the interrogatory. The court then
heard argument from the state and defense counsel
outside of the jury’s presence. Defense counsel moved
for a judgment of acquittal, arguing that the jury’s ques-
tion indicated that it had interpreted the court’s previ-
ous charge as an instruction to change its answer to
the interrogatory. In response, the state maintained its
position that the jury should be afforded the opportunity
to clarify its findings. The state also suggested that the
court should explain to the jury that the question posed
in the interrogatory ‘‘is going to be re-asked . . . .’’ The
court stated its intention to proceed as follows:
‘‘[The Court]: [Defense counsel], it was—the interrog-
atory was proposed by you to give to the jurors, and
you requested that they answer this question.
‘‘[Defense Counsel]: Yes, Your Honor.
‘‘[The Court]: So, I think they have not yet answered
the question. And to say, can you just rescind, is not
part of the directions. That wasn’t in any direction. It
wasn’t a possibility. They had not been instructed on
anything to rescind. So, the answer, when I pull them
out, is, I think, to say that my instructions to you prior
[were] that the clerk would read the interrogatory to
you and you would answer it. What I am going to do
is adjourn, let them deliberate for a short period of
time, call them out and, when they are ready, send a
note and the clerk will ask them the question and they
can answer yes or no and go from there, all right.’’
At that point, the court recalled the jury and provided
the following instructions: ‘‘Ladies and gentlemen, I did
receive your note. It states, we would like to know if
the interrogatory statement can be rescinded. I am just
going to refer you back to a prior instruction, which
was that what would happen is, I would call you down,
and the clerk would read the interrogatory to you and
you would then answer aloud what your decision is on
that. So, what I am going to do at this time is, I’m going
to have you just go back; stay down here. You can
deliberate, and if you can answer that interrogatory,
the first step of that, I’ll bring you back in, and the
clerk will ask you that question and the foreperson can
answer that question, once again, yes or no, the inter-
rogatory.’’
As defense counsel and the state appeared to recog-
nize at the time, the jury’s note is most logically interpre-
ted as questioning whether the jury could rescind its
answer to the interrogatory. Said another way, the jury
seemed to be laboring under the impression that its
original answer remained in effect and could only be
changed if it was first rescinded. In response to the
jury’s question, the court did not provide a clear answer.
It stated only that it would recall the jury and have it
state its answer to the interrogatory in open court. The
court did not explain that the jury’s original answer to
the interrogatory was no longer in effect, and that the
jury was to reconsider and answer the interrogatory as
if it had never previously done so. This omission again
risked creating or reinforcing the impression that the
jury was not beginning its deliberations anew, both with
respect to the verdicts and the interrogatory, but that it
instead needed to undo its answer to the interrogatory.
Later in the day, the jury sent another note to the
court. This note stated, in relevant part: ‘‘Your Honor,
[w]ith all due respect, we, the jurors, still remain in
agreement with the interrogatory statement that [Ser-
vin’s] actions contributed to the accident.’’ The jury’s
note also stated: ‘‘Our question remains if there is a
distinction between the accident and the deaths.’’25 In
response, defense counsel again moved for a judgment
of acquittal, arguing that although the jury had not used
‘‘the magic words,’’ it was clear from its note that it
was affirming its prior answer to the interrogatory. The
court declined to rule on the defendant’s motion at that
time, however, instead deferring the matter until the
next day.
The following day, the court advised the state and
defense counsel that it intended to submit the interroga-
tory to the jury again26 and refer the jury to its previous
instructions. Specifically, the court stated that ‘‘when
[the jury] 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 [the jury] used, contributing factor,
it has to be clarified and that is the purpose that the
court is going to resubmit the interrogatory . . . and
since I had already reinstructed them as to the law, I
am giving them the opportunity to render a verdict.’’
The court then recalled the jury and instructed it as
follows: ‘‘Now . . . yesterday afternoon, as you’ll
recall, the court did not accept your verdict as to counts
one and two. Then I gave you the instruction on the law
pertaining to causation and the meaning of intervening
cause. So . . . in the first part of your note you indi-
cated that you had come to a finding regarding David
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.’’
The court continued: ‘‘After you answer this interrog-
atory, 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 indicat-
ing that you are able. If you hand a note to the marshal—
as I say, if you want to resubmit to the first question,
you may also do that. Once you are able to answer the
interrogatory and let the marshal know if you are able
to reach a verdict or not, then I’ll call you back and
we’ll read the interrogatory in open court and a verdict,
if you shall have that, all right.’’ The court then directed
the jury to resume deliberations.
By asking the jury to answer the interrogatory first,
and then, ‘‘if [the jury was] able to,’’ return a verdict, the
court divorced the jury’s consideration of the question
posed by the interrogatory from the factual determina-
tions it needed to make to return general verdicts on
the substantive charges. It thereby created the risk that
the jury would dissociate its verdicts from its answer
to the interrogatory when the two were actually inextri-
cably intertwined. Thus, it risked exacerbating any con-
fusion regarding the interplay between the
interrogatory answer and the verdicts. Instead, the
court only referenced its prior instructions and directed
the jury to resume deliberations. Although the court’s
prior instructions may have explained the interplay
between the verdicts and the interrogatory, the court’s
more recent instructions that the jury answer the inter-
rogatory first and then decide on the verdicts under-
mined the earlier instructions and, again, unduly
focused the jury on the interrogatory rather than on
the verdicts and interrogatory together.
Moreover, at some point after the court provided
these instructions, the jury sent another note to the
court explaining its previous question asking whether
a distinction existed between Servin’s conduct consti-
tuting an intervening cause in the accident and his con-
duct constituting an intervening cause in his and
Krakowski’s deaths.27 See footnote 25 of this opinion.
Specifically, the jury stated: ‘‘The reason we raised the
question ‘was there any distinction between the acci-
dent and the deaths’ is, and based on the testimonies,
because SOME of us jurors believe that [Servin]’s
actions contributed to the accident but their deaths are
caused by the speed.’’ (Emphasis in original.)
In this instance, the jury may well have been raising
a very insightful concern about the incongruence
between the court’s instructions on proximate cause
with respect to the counts, and the phrasing of the
interrogatory. As discussed previously, the court’s
charge correctly informed the jury that it needed to
determine whether Servin’s conduct was an intervening
cause in the deaths, while the jury interrogatory asked
whether his conduct was an intervening cause in the
collision. Inexplicably, the court failed to answer the
jury’s question and instead responded to a separate and
largely unrelated question submitted by the jury earlier
in its deliberations. Specifically, the court stated: ‘‘I am
also going to note that court’s exhibit 7 was address[ed]:
Your Honor, while explaining the laws, can you please
describe if contributory negligence is applicable in this
matter. That was sent out very early on. The court gave
you the jury charge. You have a hard copy of it. And
contributory negligence is not contained in that jury
charge. It is not part of the law that is applicable to the
case here, all right. So, you have the charge. You must
apply only that law which the court gave you, and you
remember my instruction that it is that law that you
must apply to the case, all right.’’ This failure to address
the point of confusion raised by the jury deprived it of
proper guidance in performing its critical duty of mak-
ing a factual finding on an essential element of the
charged offenses.
To summarize, the court’s initial instructions to the
jury provided it with no explanation about the purpose
of the interrogatory, its connection to the charges
alleged in counts one and two of the information, or the
important requirement that the jury return a unanimous
answer. In its supplemental instructions directing the
jury to redeliberate, it was unclear whether the court
had vacated the jury’s initial verdicts and interrogatory
answer such that the jury would need to return an
entirely new answer to the interrogatory and verdicts.
In failing to provide the jury with this clear guidance,
it is reasonably likely that the court left the jury with
the impression that its task was to ‘‘fix’’ its answer to
the interrogatory, rather than begin deliberations anew
with respect to both the verdicts and the interrogatory.
Moreover, the court’s focus in its instructions on the
doctrine of intervening cause and its relation to the
interrogatory created a substantial risk that the jury
would view its original answer to the interrogatory as
the cause of the trouble. By then advising the jury that
it was ‘‘very important’’ that its interrogatory answer be
consistent with its ‘‘ultimate verdict,’’ the court further
suggested that the original verdict of guilty was correct
and that the answer to the interrogatory was not. Simi-
larly, the court’s instructions casting the relevant
inquiry as focusing on the jury’s intent to hold, or not
hold, the defendant ‘‘criminally responsib[le],’’ sug-
gested that the resolution of the issue of intervening
cause should be governed by the jury’s desire to obtain
a particular overall result. Furthermore, the court’s pro-
cedural direction to answer the interrogatory first, and
then, if the jury was able to, return a verdict, conveyed
that the verdicts were severable from the interrogatory
and not inextricably intertwined with it. Finally, the
court completely failed to address a substantive ques-
tion posed by the jury pertaining to a critical issue
regarding an essential element of the offenses charged
in counts one and two of the information. Thus, when
considered in their entirety, the court’s instructions did
not provide the jury with appropriate guidance on the
principles that would inform its deliberations.
The state nevertheless argues that the court
instructed the jury in such a way that it could not have
been misled; for example, by repeatedly emphasizing
that the jury was the sole fact finder and that the court
would not invade the jury’s findings. We are not per-
suaded that the extensive omissions and misstatements
in the court’s instructions, as well the implicit sugges-
tion that the interrogatory answer was incorrect, could
be cured by the court’s generic reminders of the jury’s
role as the sole fact finder. We note, for instance, that
the jury specifically requested a transcript of the court’s
instructions ‘‘with regard to inconsistency of the ver-
dicts’’; see footnote 27 of this opinion; thus suggesting
that it was experiencing some difficulty applying the
court’s instructions. Even if none of the court’s instruc-
tions, by themselves, were misleading, we conclude
that, taken together, it was reasonably possible that the
court’s instructions misled the jury.
We emphasize again that because the defendant’s
claim of instructional impropriety is of constitutional
magnitude, the burden is on the state to prove that
it was not ‘‘reasonably possible that, considering the
charge as a whole, the jury was misled.’’ (Internal quota-
tion marks omitted.) State v. Padua, supra, 273 Conn.
166; see State v. Johnson, supra, 316 Conn. 63 (‘‘[t]he
test for determining whether a constitutional error is
harmless . . . is whether it appears beyond a reason-
able doubt that the error complained of did not contrib-
ute to the verdict obtained’’ [internal quotation marks
omitted]). Given the extent of the instructional impro-
prieties, and their close relation to a heavily contested
element of the state’s case, we conclude that the state
has failed to satisfy this significant burden.
We turn next to the task of determining the appro-
priate remedy. The defendant argues that the proper
remedy under the circumstances is to have the case
remanded to the trial court with direction to render a
judgment of acquittal on counts one and two of the
information. ‘‘It is well established [however] that
instructional impropriety constitutes ‘trial error’ for
which the appropriate remedy is a new trial, rather than
a judgment of acquittal. As the United States Supreme
Court observed in Burks v. United States, 437 U.S. 1,
15, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978), ‘reversal for trial
error, as distinguished from evidentiary insufficiency,
does not constitute a decision to the effect that the
government has failed to prove its case. As such, it
implies nothing with respect to the guilt or innocence
of the defendant. Rather, it is a determination that a
defendant has been convicted through a judicial process
which is defective in some fundamental respect, e.g.,
incorrect receipt or rejection of evidence, incorrect
instructions, or prosecutorial misconduct. When this
occurs, the accused has a strong interest in obtaining
a fair readjudication of his guilt free from error, just as
society maintains a valid concern for insuring that the
guilty are punished.’ ’’ State v. DeJesus, 288 Conn. 418,
434–35, 953 A.2d 45 (2008). Accordingly, we conclude
that the appropriate remedy is to vacate the guilty ver-
dicts and order a new trial, with respect to count one
(Servin), on the lesser included offense of negligent
homicide with a motor vehicle, and, with respect to
count two (Krakowski), on the lesser included offenses
of misconduct with a motor vehicle and negligent homi-
cide with a motor vehicle.28
The judgment is reversed only with respect to counts
one and two. The case is remanded with direction to
render a judgment of acquittal on the offense of miscon-
duct with a motor vehicle on count one of the informa-
tion, and for a new trial on the lesser included offense
of negligent homicide with a motor vehicle in count
one, and on the lesser included offenses of misconduct
with a motor vehicle and negligent homicide with a
motor vehicle in count two. The judgment of guilty on
the offense of reckless driving in count three is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 53a-57 (a) provides: ‘‘A person is guilty of misconduct
with a motor vehicle when, with criminal negligence in the operation of a
motor vehicle, he causes the death of another person.’’
2
The defendant also claims that the court improperly refused to give effect
to the jury’s reaffirmation of its original answer to the jury interrogatory. We
conclude that it is unnecessary to address this claim separately because we
treat it as subsumed within our analysis of the defendant’s third claim.
3
General Statutes § 53a-56 (a) provides in relevant part: ‘‘A person is
guilty of manslaughter in the second degree when: (1) He recklessly causes
the death of another person . . . .’’
4
The court stated its intention to vacate all of the verdicts, which necessar-
ily would have included the acquittals and verdict of guilty of reckless
driving as alleged in count three.
5
After the court expressed its intent to reinstruct the jury, the state
reiterated its support of this action when it stated, ‘‘I think that’s appropriate,
given the inconsistencies in the verdict, and obviously it seems as if there
is a basic misunderstanding of the law as given to them in Your Honor’s
jury instructions, and therefore I think it is important for the jury to receive
those instructions and then assure that the verdict is legally correct.’’
6
Specifically, the court reasoned: ‘‘[R]escind is not part of the directions.
That wasn’t in any direction. It wasn’t a possibility. They had not been
instructed on anything to rescind.’’
7
The court did not explain why it would be bound by a second inconsistent
verdict, but was not bound by that scenario after the initial verdicts.
8
The court previously vacated the jury’s initial verdict of guilty of reckless
driving on count three of the information. The court never ordered the jury
to resume its deliberations on that count. When the court ultimately accepted
the jury’s final verdicts, the court indicated that it would accept the pre-
viously vacated guilty verdict on count three. The defendant does not raise
any claim of error with respect to count three, and this court, therefore,
leaves it undisturbed.
9
The defendant renewed his previous argument and stated: ‘‘[The] verdict
was internally inconsistent with the special interrogatory that they answered
yesterday affirmatively saying that David Servin’s conduct constituted an
intervening cause of the deaths of the teenagers in that case. That was the
verdict, and at that point I made a motion for judgment of acquittal on
the lesser included offense because it was inconsistent with the special
interrogatory. Therefore, it fit a classic definition of a [Practice Book §] 42-
51 motion of acquittal in that the judge, upon motion of the defendant, shall
order the entry of a judgment of acquittal on any lesser included offense
for which the evidence does not reasonably permit a finding of guilty beyond
a reasonable doubt. That was classically the situation. I made a motion that
Your Honor enter a finding of not guilty on the lesser included offenses,
and Your Honor denied that.’’
10
In support of the claim that the court should have found the interrogatory
dispositive, the defendant also cites Ex Parte Peterson, 253 U.S. 300, 310,
40 S. Ct. 543, 64 L. Ed. 919 (1920), Seals v. Hickey, 186 Conn. 337, 351, 441
A.2d 604 (1982), State v. Alonzo, 131 Conn. App. 1, 6, 26 A.3d 109, cert.
denied, 303 Conn. 912, 32 A.3d 965 (2011), and Practice Book § 42-30 (‘‘[t]he
judicial authority shall, if the verdict is in order and technically correct,
accept it without comment’’) to bolster the proposition that questions of fact
are in the sole domain of the jury and should be made without interference by
the court.
The defendant argues that, by rejecting the jury’s initial verdict and answer
to the interrogatory, the court invaded his constitutional right to have factual
determinations made by the jury. The defendant’s brief, however, contains
little or no discussion of these authorities and makes no attempt to apply
them to the facts of this case. We, therefore, consider this claim abandoned
except to the extent that it relates to the defendant’s double jeopardy claim.
We also note that the decisions in Ex Parte Peterson and Hickey are both
civil cases and therefore provide minimal or no guidance with respect to
the complicated issues in this criminal prosecution.
11
Although the initial guilty verdicts on the lesser included offenses of
negligent homicide (count one) and misconduct with a motor vehicle (count
two) were arguably ‘‘mutually exclusive convictions,’’ the defendant has not
challenged the verdicts on this ground.
12
See, e.g., State v. Bush, 156 Conn. App. 256, 260, 263 n.4, 112 A.3d
834 (General Statutes § 53-396 [b] requires special verdict in racketeering
prosecution), cert. granted, 317 Conn. 903, A.3d (2015).
13
For a cogent discussion of why interrogatories should not be used in
most criminal cases, see State v. Simon, 79 N.J. 191, 199–200, 398 A.2d 861(1979); id., 204 (‘‘special interrogatories as a tool in criminal trials are not
condoned, and their use [is] discouraged’’); United States v. Spock, 416 F.2d
165, 181 (1st Cir. 1969) (‘‘[t]o ask the jury special questions might be said
to infringe on its power to deliberate free from legal fetters; on its power
to arrive at a general verdict without having to support it by reasons or by
a report of its deliberations’’ [internal quotation marks omitted]).
14
Powell did not involve an inconsistency between a jury’s answer to an
interrogatory and a verdict of guilty. Instead, Powell involved an inconsis-
tency between an acquittal on one or more counts and verdicts of guilty
on one or more other counts. The United States Supreme Court concluded
that ‘‘there is no reason to vacate [the defendant’s] conviction merely
because the verdicts cannot rationally be reconciled. [The defendant] is
given the benefit of her acquittal on the counts on which she was acquitted,
and it is neither irrational nor illogical to require her to accept the burden
of conviction on the counts on which the jury convicted.’’ United States v.
Powell, supra, 469 U.S. 69. The result in Powell is consistent with Connecticut
law on inconsistent verdicts, as discussed in part I A of this opinion.
15
Dotterweich also did not involve an inconsistency between a jury’s
answer to an interrogatory and a verdict of guilty. Instead, Dotterweich
involved inconsistent verdicts between defendants in the case, which the
United States Supreme Court concluded should be left undisturbed. This
result is also consistent with Connecticut law.
16
The state also relies heavily on State v. Searles, 113 Conn. 247, 255, 155
A. 213 (1931), in which our Supreme Court stated: ‘‘When there is uncertainty
as to the actual intent of the jury, the power of the court in a criminal case
to return them to their room to render a clear and unambiguous verdict is,
in this country, recognized as indispensable to an orderly and impartial
administration of justice.’’
We do not agree that Searles is applicable in this case. First, the court
in Searles did not discuss double jeopardy principles, and Searles was
decided long before the federal constitutional guarantee against double
jeopardy was made applicable to the states through the fourteenth amend-
ment. See Benton v. Maryland, 395 U.S. 784, 793–98, 89 S. Ct. 2056, 23 L.
Ed. 2d 707 (1969). Moreover, Searles did not involve inconsistent verdicts
of any kind, but instead a situation in which a juror, during the announcement
of the verdict, expressed to the court that the stated verdict was not the
jury’s true verdict.
17
The jury also found Bravo guilty of a third crime that is not relevant to
our analysis. United States v. Fernandez, supra, 722 F.3d 7.
18
Our research has revealed only a few other cases that are worthy of
mention. First, in a footnote, the United States Supreme Court in Pipefitters
Local Union No. 562 v. United States, 407 U.S. 385, 400 n.11, 92 S. Ct. 2247,
33 L. Ed. 2d 11 (1972), addressed a claim by certain petitioners that a special
finding by the jury that a ‘‘willful violation of [the underlying criminal statute]
was not contemplated amounted to an acquittal’’ because it was inconsistent
with the jury’s guilty verdict. The Supreme Court rejected this claim on the
ground that the petitioners ‘‘not only failed to object to the trial court’s
requirement that the jury return a special finding as inconsistent with the
general charge, but also failed to move for acquittal on the ground now
offered once the special finding was returned.’’ Id. After essentially declining
to review this claim, the court, in dicta, indicated that even if the petitioners
were correct that there was an inconsistency between the verdict and the
special finding, the remedy would be a new trial, not an acquittal. Id., 401
n.11. This comment was made in dicta and devoid of (1) any accompanying
analysis of whether the verdict and special interrogatory were in fact incon-
sistent and (2) any discussion of the relevant double jeopardy principles.
Accordingly, we conclude that it lacks precedential value on this topic.
Second, the decision of the United States Court of Appeals for the Third
Circuit in Crawford v. Fenton, 646 F.2d 810 (3d Cir.), cert. denied, 454 U.S.
872, 102 S. Ct. 344, 70 L. Ed. 2d 178 (1981), a federal habeas action challenging
a state prosecution, involved a scenario in which the jury’s answers to
special interrogatories arguably conflicted with a general verdict of guilty.
Before the state court had taken steps to accept the verdict, it ordered the
jury to resume its deliberations. Id., 813. Although the Third Circuit con-
cluded that double jeopardy did not prevent the defendant’s retrial after
the state court had declared a mistrial when the jury could not ultimately
arrive at a unanimous verdict, the federal appeals court did so on the
basis of a double jeopardy claim different from the one presented here. In
Crawford, the habeas petitioner contended that the state court had improp-
erly declared a mistrial in violation of double jeopardy; id., 815–16; not
because the jury had necessarily acquitted him as a result of its findings in
a special interrogatory, but because he has a ‘‘valued right to have his trial
completed by a particular tribunal.’’ (Internal quotation marks omitted.) Id.,
816. The Third Circuit in Crawford then recognized that double jeopardy
prevents a second trial if a mistrial is declared because ‘‘the state, wishing
to decrease the risk of an acquittal, desires the opportunity [of a second
trial] to buttress weaknesses in [its] evidence . . . .’’ (Citation omitted;
internal quotation marks omitted.) Id., quoting Arizona v. Washington, 434
U.S. 497, 507, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978). Thus, Crawford is inap-
posite.
Finally, the Washington Court of Appeals, in State v. Hurley, 4 Wn. App.
781, 483 P.2d 1274, review denied, 79 Wn. 2d 1005 (1971), concluded that
a guilty verdict was void because the jury’s answer to an interrogatory
negated one of the essential elements of the offense for which the jury
returned a guilty verdict. Id., 783–84. Although the defendant requested that
the court grant a motion for a judgment of acquittal, the Washington Court
of Appeals determined that the appropriate remedy was a new trial. Id.,
784. We decline to follow Hurley because it lacks any discussion of the
relevant double jeopardy principles.
19
We also take note of the United States District Court’s decisions in
United States v. Lucarelli, 476 F. Supp. 2d 163, 166 (D. Conn. 2007) (ruling
on motion for judgment of acquittal or new trial) and United States v.
Lucarelli, 490 F. Supp. 2d 295 (D. Conn. 2007) (ruling on motion for reconsid-
eration on judgment of acquittal). In Lucarelli, the jury’s general verdicts
of guilt were arguably inconsistent with its answer to an interrogatory that
the defendant had the specific intent to defraud, an essential element of
the offenses upon which the jury found the defendant guilty. Although the
court ultimately concluded pursuant to double jeopardy principles that the
jury’s answer to the interrogatories prevented the defendant’s retrial, part
of its reasoning was based on doubt regarding whether there was true
inconsistency between the answer and the guilty verdicts in light of errone-
ous jury instructions of the specific intent to defraud element of the offenses.
United States v. Lucarelli, supra, 476 F. Supp. 2d 169–70. In the absence
of true conflict, the District Court concluded that the jury’s explicit and
unambiguous answer to the interrogatory constituted an adverse factual
resolution of an essential element of the offense charged by the government
and, thus, amounted to an acquittal for double jeopardy purposes. United
States v. Lucarelli, supra, 490 F. Supp. 2d 301–302.
20
In fact, the first note sent by the jury during deliberations asked whether
intervening cause applied to all of the lesser included offenses.
21
We note again that the court did not direct the jury to redeliberate on
the charge of reckless driving alleged in count three. See footnotes 4 and
8 of this opinion.
22
Similarly, no juror expressed any concern after the verdicts that the
jury’s initial answer to the interrogatory may have been incorrect. Indeed,
after the jury resumed its deliberations, the jury attempted to reaffirm its
initial answer to the interrogatory.
23
On appeal, the court in Thomas noted that ‘‘[t]he [trial] court neither
gave additional instructions nor directed the jury to deliberate only on the
charge of assault [the charge for which a lack of unanimity was found].
Appellant raised no objection at that time to the course of action chosen
by the court. Nor did appellant ask the court to record . . . a partial verdict
on the three charges to which the foreperson had announced a verdict
of not guilty.’’ (Footnote omitted.) Thomas v. United States, supra, 544
A.2d 1261–62.
24
Prior to sending this note to the court, the jury had sent another note
indicating that it was deadlocked and would not be able to reach a verdict
on counts one and two. In response, the court provided the jury with a Chip
Smith instruction and directed it to continue deliberating.
25
In response to the second portion of the note, the court advised the
jury that it could not provide a response because it did not understand the
jury’s question.
26
This remark is particularly perplexing because it appears to suggest
that the jury did not have the interrogatory before it. This possibility is itself
problematic because the court had instructed the jury after rejecting the
initial verdicts that it must resume deliberations on the verdicts and inter-
rogatory.
27
In this note, the jury also requested two other items. First, it requested
a copy of the transcripts of the court’s ‘‘comments and instruction to the
jurors with regard to inconsistency of the verdicts given by the jurors dated
[November 6, 2012].’’ Second, the jury requested ‘‘a copy of the original
interrogatory statement completed by the jurors because it appears that it
is worded differently.’’ The court responded to the jury’s first request by
directing the court monitor to prepare and provide a copy of the requested
portions of the court’s instructions to the jury. With respect to the second
request, the court advised the jury that the court had inspected the two
interrogatories, found them to be worded identically, and directed the clerk
to provide the jury with both of them.
28
As explained previously in footnote 8 of this opinion, the defendant
does not claim any error with regard to the guilty verdict returned on count
three, and any instructional error is unrelated to that count.