State v. Pare

253 Conn. 611

755 A.2d 180

STATE OF CONNECTICUT v. JOSEPH PARE

(SC 15931)

Supreme Court of Connecticut.

Argued March 14, 2000.

Officially released July 11, 2000.

McDonald, C. J., and Borden, Katz, Sullivan and Vertefeuille, JS. Martin Zeldis, senior assistant public defender, with whom, on the brief, was Neal Cone, assistant public defender, for the appellant (defendant).

Denise B. Smoker, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Gary Nicholson, senior assistant state's attorney, for the appellee (state).

Opinion

KATZ, J.

The defendant, Joseph Pare, was convicted, after a jury trial, of the crime of murder in violation of General Statutes § 53a-54a.¹ Following two days of deliberations, the jury returned a guilty verdict and, in accordance with the trial court's instructions, retired to the jury room to await the judge's arrival so that he could speak with them further. Despite the defendant's request to recall the jury to conduct a poll pursuant to Practice Book § 42-31,² the trial court declined, and rendered judgment consistent with the verdict. This appeal followed.

This appeal raises several issues. The defendant claims that compliance with § 42-31 is mandatory, and that his request to poll the jury was timely. The defendant further claims that the trial court's failure to honor that request constituted a violation of § 42-31 that is not subject to harmless error analysis. Therefore, we first must determine whether § 42-31 imposes a mandatory obligation upon the trial court to conduct an individual poll of the jury upon a timely request by either party. Second, we must determine when a jury is "discharged" for the purposes of § 42-31, such that a party effectively waives the right to poll by failing to submit a proper request prior thereto. Finally, we must determine whether a violation of § 42-31 is subject to harmless error analysis. On the basis of our determinations regarding these questions, we reverse the judgment and remand the case for a new trial.

The jury reasonably could have found the following facts. In April, 1996, the defendant began living with Michelle Devine shortly after the two had met at an outpatient group therapy session. The defendant suffered from a history of psychiatric problems, including depression, drug addiction and alcohol abuse. Devine also suffered from psychiatric problems and alcohol abuse. From the beginning of the couple's relationship, Devine's excessive drinking was a source of contention that became the subject of frequent arguments. In an effort to keep Devine from drinking, the defendant would often hide alcohol from her, give it away, or pour it out. He would also urge her to seek treatment from a local Alcoholics Anonymous group.

During the summer of 1996, the couple's relationship continued to deteriorate. By that time, the defendant, who had been sober for several months, went back to using drugs. He was eventually admitted to the Yale Psychiatric Institute for depression, suicidal ideation and a nervous disorder. After being released, he continued to receive outpatient medication, and attended Narcotics Anonymous meetings and weekly group therapy sessions. At the same time, Devine's alcohol consumption increased to the point where she was drinking on a daily basis. She withdrew from her outpatient counseling program in July, 1996, and refused to seek alternative treatment.

On September 9, 1996, while the defendant was at work, Devine and a neighbor, Audrey Valentin, engaged in a drinking binge at home. When the defendant returned home, he found Devine and Valentin intoxicated, and a large bottle of vodka on the kitchen table. The defendant became upset and left the apartment. Valentin returned to her apartment upstairs. When the defendant returned about one hour later, Devine was still intoxicated. He and Devine drank beer, and eventually engaged in sexual intercourse. Thereafter, Devine fell asleep, and the defendant retired to the living room to watch television.

Devine awoke around 10 p.m., calling for the defendant and looking for the vodka that, by that time, the defendant had hidden. Following a heated argument, the defendant returned the vodka to Devine. Devine immediately began to consume the alcohol, at which point the defendant knocked the drinking glass from her hand. The defendant then took the vodka bottle from Devine, at which time she grabbed for him, screaming that she was not going to allow him to dump the alcohol. Devine began pulling the defendant's hair, grabbing his arms, and punching him, all in an attempt to retrieve the alcohol. The defendant grabbed Devine by the neck and began choking her. When he released her, she grabbed her bathrobe belt, wrapped it around her own neck, and threatened to kill herself. At that point, the defendant grabbed the belt and pulled it tightly around Devine's neck until she fell to the floor, dead from strangulation. He then carried Devine's body to the bedroom, covered her with blankets, and put a pillow under her head.

After remaining in the living room for approximately one hour, the defendant left the apartment in search of drugs. When he returned around 2 a.m., he found Devine unresponsive and lying in the same position as when he had left her. It was then that he noticed the ligature marks around her neck and realized that she was either dead or seriously injured. Approximately two hours later, the defendant left the apartment to go to the New Haven police department. Upon arriving at the station, he was crying, upset and visibly distraught. He told the desk sergeant that he had never hurt a woman before, but that he had just "choked the shit out of [his girlfriend]." Thereafter, the defendant was escorted to an interview room where he signed a consent to search form, and a waiver of his Miranda³ rights. He then gave a formal statement in which he confessed to having strangled Devine.

Pursuant to the consent and the information given to them by the defendant, detectives searched the defendant's apartment and found Devine's body lying in the bed where the defendant had left her. There was no sign of a struggle in the apartment and the only visible injuries on Devine's body were red markings around her neck and a small bruise on her upper left arm. The detectives seized a maroon bathrobe belt from near Devine's body. A subsequent autopsy indicated that the markings on Devine's neck were ligature markings, and that the cause of death was strangulation. It also revealed that Devine's blood alcohol level at the time of her death was O.13, the equivalent of having digested six alcoholic drinks in the previous hour.

At the close of the trial, the court instructed the jury at length, enumerating seven possible verdicts that might be returned. The court also instructed the jury on the defense of extreme emotional disturbance. During the course of its deliberations, the jury requested a number of readbacks of trial testimony and instructions by the court, including a request pertaining to the definition of extreme emotional disturbance. The jury also sought clarification on the effect of its inability to reach a unanimous verdict on the defense of extreme emotional disturbance, questioning whether, under that circumstance, the jury becomes deadlocked or the verdict reverts to murder. Finally, following a statement by the jury that it could not agree on whether the defendant had proven extreme emotional disturbance, the court read a "Chip Smith" instruction⁴ and ordered the jury to continue deliberating. Soon thereafter, the jury announced that it had reached a verdict. At that point, defense counsel requested a sidebar with the trial court, which was conducted off the record. Following the sidebar, the jury was escorted into the courtroom to announce the verdict. The jury found the defendant guilty of murder. The clerk then asked the jury collectively whether "each of you do say unanimously that the defendant is guilty of the crime of murder, this is your verdict and so say you all?" The jury collectively responded, "[y]es." The court then addressed the jury by questioning both the unanimity of the verdict, and the process that they had followed in reaching it. The court explained that "because there were so many verdicts and to avoid any question in the future, I'll just review the process that you necessarily would have had to have gone through to reach this verdict.⁵ This verdict, I'll ask if you agree on. This verdict means that you found the defendant guilty of intentionally causing the death of Michelle Devine, then you went on to consider the affirmative defense of extreme emotional disturbance and found unanimously that the defendant had not proven that defense by a preponderance of the evidence, is that correct?" The jury collectively responded, "[y]es." The court continued that "[t]he record can reflect that the entire jury nodded in agreement with that statement and also answered orally to that question and the result was that you unanimously agree that the defendant is guilty of murder?" Again, the jury responded, "[y]es." The court then stated: "All right. Once again, the same can be noted for the record, the agreement of the jury both orally and by nodding affirmatively. The jury can retire now and if you wait for a moment, I'll be in to speak to you very shortly."

Immediately after the jury exited the courtroom, defense counsel addressed the court by stating that, "[a]long the lines of the request that I made at the bench, I do understand that Your Honor spoke to them as a group, but basically I would be asking for those questions to be asked to each juror individually and that Your Honor poll every one of them." The court denied this request and ruled as follows: "I was looking right at the jury and I know you're doing what you think is necessary to protect your client's rights, but I was looking right at...