254 Conn. 472 | Conn. | 2000
Lead Opinion
Opinion
The dispositive issues in this appeal are whether: (1) the trial court violated General Statutes § 54-82h (c)
Following a jury trial, the defendant, Tyson Murray, was convicted of attempted murder in violation of General Statutes §§ 53a-49 (a) (2) and 58a-54a,
On appeal, the defendant claims that: (1) the trial court improperly substituted an alternate juror for a regular juror after deliberations had begun in violation of § 54-82h (c); (2) the trial court improperly failed to declare a mistrial after one juror, prior to being excused by the court, made certain remarks to the other jurors; (3) the trial court abused its discretion when it admitted testimony from a police officer concerning his investigative efforts; (4) the trial court abused its discretion when, under the rule adopted in State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), it admitted a prior written statement that a state’s witness had made to the police; and (5) the state failed to present sufficient evidence that the defendant had intended to kill the victim when he fired a shotgun at him, and that, in the alternative, if the evidence was sufficient to support his conviction for attempted murder, there was insufficient evidence that the defendant simultaneously had intended to cause physical injury short of death when he fired the shotgun.
We reject the defendant’s claims regarding the insufficiency of the evidence of his mental state. We agree,
The jury reasonably could have found the following facts. On May 4,1996, Tyrell Boyd was riding in a motor vehicle driven by his friend Daniel Henry. At approximately 6:30 p.m., Henry parked his vehicle on Bedford Street, near the intersection of Bedford and Albany Avenue in Hartford, so that he could purchase cigarettes. When Henry came out of the store, he got into a heated conversation with someone he knew as “Lucius.” When Lucius turned toward Boyd and asked him what he was looking at, Boyd got out of the vehicle and a fight began. A crowd of a dozen or more persons gathered around, and someone gave Lucius a baseball bat, which he proceeded to use to chase Boyd around Henry’s car. As Boyd attempted to avoid Lucius by keeping Henry’s car- between them, he saw the defendant raise a shotgun and, from a distance of ten to twelve feet, fire it at him, striking Boyd’s left upper thigh. Boyd stumbled into the car and Henry proceeded to drive him to St. Francis Hospital. When they arrived at the hospital, Boyd was bleeding profusely and had no blood pressure. The shotgun blast had blown away skin, muscle and tissue, had destroyed a major vein in Boyd’s leg and had tom open a ten centimeter section of his femoral artery. Boyd required immediate surgery and a vein from his right leg had to be harvested for use in his left leg. Boyd received ten units of blood and other blood products during the operation. He was placed in the intensive care unit, and, after four additional surgeries, was released. Thereafter, his wounds
Following his release from the hospital, Boyd, who knew the defendant prior to the shooting, selected the defendant’s photograph from an array of eight photographs shown to him by the police. He was positive of his identification. Approximately six months before trial, Boyd saw the defendant on the street, at which time the defendant offered to pay him not to appear in court. Additional facts will be provided as needed.
I
Because the defendant’s challenge to the sufficiency of evidence, if successful, would necessitate the entry of a judgment of acquittal; State v. Wolff, 37 Conn. App. 500, 507, 657 A.2d 650 (1995), rev’d on other grounds, 237 Conn. 633, 678 A.2d 1369 (1996); we address this claim first. In the present case, the defendant claims that there was insufficient evidence to support his conviction for attempted murder. In particular, he asserts that the evidence does not support a finding that, when he shot the victim, he bore a specific intent to kill rather than a specific intent to cause physical injury short of death. In the alternative, the defendant asserts that there was insufficient evidence to support his conviction for first degree assault. Specifically, he contends that if we conclude that the evidence supported the conclusion that, in firing a single gunshot, the defendant had intended to kill the victim, that same evidence could not also establish that he had acted with the specific intent to cause physical injury short of death, an essential element of the first degree assault charge.
We first articulate the standard of review applicable to this claim. “In reviewing a sufficiency [of the evidence] claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether
We next define the essential element that is involved in this appeal and that is integral to the crimes of which the defendant stands convicted. Although §§ 53a-54a and 53a-59 (a) (5) require the same mental state, namely, a specific intent; see State v. Hinton, 227 Conn. 301, 318-19, 630 A.2d 593 (1993); the particular specific intents required to violate these statutes are not identical. For each intent, a distinct conscious objective is sought. A verdict of guilty of attempted murder requires a finding of the specific intent to cause death. See General Statutes §§ 53a-49, 53a-54aand 53a-3 (11). A verdict of guilty of assault in the first degree in violation of § 53a-59 (a) (5), in contrast, requires a finding of the specific intent to cause physical injury. See General Statutes §§ 53a-59 (a) (5) and 53a-3 (3); see also State v. Williams, 237 Conn. 748, 753-54, 679 A.2d 920 (1996) (discussing §§ 53a-54a and 53a-59 [a] [1]).
A
With this background in mind, we embark upon our analysis, beginning with the more serious charge. The specific intent to kill is an essential element of the crime of murder. “To act intentionally, the defendant must have had the conscious objective to cause the death of the victim. General Statutes § 53a-3 (11) . . . .” (Internal quotation marks omitted.) State v. Raguseo, 225 Conn. 114, 120, 622 A.2d 519 (1993). Because direct evidence of the accused’s state of mind is rarely available, intent is generally proven by circumstantial evidence. Therefore, intent is often inferred from conduct, as well as from the cumulative effect of the circumstan
The defendant claims that the evidence that he had fired a shotgun only once into Boyd’s upper thigh, from a distance of ten to twelve feet, does not support a finding that he had the specific intent to kill because the upper thigh is not a vital portion of the body. The state contends that, because there is no direct evidence that the defendant deliberately targeted Boyd’s upper thigh, the jury reasonably might have concluded that he was simply a poor shooter who had actually targeted Boyd’s torso generally. The state also argues that, even if the defendant had targeted Boyd’s thigh, the jury reasonably could have concluded that he had the intent to kill. We agree with the state that regardless of whether the thigh was the defendant’s target when he fired the shotgun, the jury’s finding of intent to kill was well founded.
The only direct evidence of the defendant’s intended target came from Boyd, who testified that the defendant had “raised the rifle and shot me” from a distance of approximately ten feet, and from Henry’s written state
B
In State v. Montanez, 219 Conn. 16, 21, 592 A.2d 149 (1991), we concluded that, although the evidence in that case permitted the inference that the defendant had intended only to injure the victim, “[it] did not preclude the equally permissible inference that the defendant [had] intended to kill the victim . . . .” The converse is equally true. As we have determined previously, under some circumstances, the intent to cause death and the intent to cause serious physical injury may be possessed simultaneously.
The defendant acknowledges that it is legally possible for a person to act both with an intent to kill and an intent to injure, but argues that the evidence in this case failed to prove that he “actually acted with this complex mental state.” The state makes two arguments in response. First, the state contends that the intent to kill necessarily encompasses the intent to injure. Second, the state argues that, even if the convictions of attempted murder and of assault require proof that the defendant simultaneously harbored independent intents to injure and to kill Boyd, such proof was provided to the jury. We are persuaded by the state’s arguments.
First, physical injury is defined as “impairment of physical condition or pain . . . .” General Statutes § 53a-3 (3). It is difficult to imagine how the intent to cause death does not encompass an intent to injure when death is the ultimate impairment of one’s physical
Second, even if we were to assume that the convictions of attempted murder and assault require proof that the defendant simultaneously harbored independent intents to injure and to kill Boyd, such evidence was established. It was entirely reasonable, under the facts of this case, for the jury to have found that the defendant intended to inflict physical injuiy to Boyd while also intending to cause his death. A defendant “ ‘can intend both to cause the victim a . . . physical injury and to kill the victim. No temporal separation is required for the intent, but obviously one is required for the result. A possible factual scenario would have a defendant intending to kill a person but first causing serious physical injuiy or disfigurement, so as to make the victim suffer before dying. The intent is simultaneous, as the conscious objective to cause the requisite results is simultaneous, while the results themselves are separated by time.’ ” State v. Williams, supra, 237 Conn. 755, quoting State v. Williams, 39 Conn. App. 18, 26, 663 A.2d 436 (1995) (Foil, J., dissenting). In this case, the jury reasonably could have inferred from the defendant’s conduct of firing the shotgun from ten to twelve feet away, thereby creating a substantial risk of death and serious impairment of Boyd’s health, that he had possessed the intent, simultaneously, both to cause Boyd’s death and to cause him physical injury during the process.
II
We next address the dispositive issue in this appeal, namely, whether General Statutes § 54-82h (c) (Rev. to
The following additional facts are pertinent to this issue. On Thursday, June 11, 1998, after the jury had been given its final instructions by the trial court, the jurors retired to the jury room to deliberate and the alternate jurors were sent home.
Juror M was called into the courtroom for a brief voir dire examination so that the court could ascertain whether she had communicated her concerns to her fellow jurors.
On June 16, 1998, the trial court questioned the two alternates and determined that they were both eligible to deliberate. The clerk then randomly selected the name of one of the alternates. The trial court then entertained argument by counsel on how best to proceed. The defendant objected to seating an alternate after the regular jurors had begun deliberation. He further argued that the trial court should declare a mistrial because the procedure contemplated by the trial court was a violation of § 54-82h (c), and because juror M had tainted the other jurors by sharing with them information about her level of discomfort in continuing to sit on the case. The trial court denied the motion for a mistrial, stating that it did not believe that the other jurors had been influenced improperly by juror M. The trial court further stated that, although it was “concerned that it is basically committing an error by” substituting an alternate juror for a regular juror after deliberations had already begun, it nonetheless determined that this procedure was proper.
The state argues, for the first time on appeal, that § 54-82h (c) authorizes the substitution of an alternate juror even after deliberations have begun. In the alternative, the state argues that the violation of § 54-82h (c) is subject to the harmless error doctrine and that the defendant’s failure to demonstrate harm requires that we affirm his convictions. The defendant contends that, by substituting an alternate juror for a regular juror after jury deliberations had begun, the trial court violated § 54-82h (c).
A
Our analysis of this issue is guided by well established legal principles. “Statutory construction is a question of law and therefore our review is plenary.” Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d 1221 (1995).
With this background in mind, we turn to the statute at issue. General Statutes § 54-82h (c) provides in relevant part: “Alternate jurors shall attend at all times upon trial of the cause. ... If, at any time, any juror shall, for any reason, become unable to further perform his duty, the court may excuse him and, if any juror is so excused or dies, the court may order that an alternate juror who is designated by lot to be drawn by the clerk shall become a part of the regular panel and the trial shall then proceed as though such juror had been a member of the regular panel from the time when it was begun. A juror who has been selected to serve as an alternate shall not be segregated from the regular panel except when the case is given to the regular panel for deliberation at which time he shall be dismissed from further service on said case.”
The state argues that the plain language of the statute authorizes the trial court to substitute an alternate juror for a member of the original panel “at any time,” and therefore, does not preclude it from doing so once deliberations have begun. Consistent with this proposed interpretation, the state also reads the statute’s language that the trial court “shall” dismiss alternate jurors once deliberations have begun as merely a directory,
“The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience. ... If it is a matter of substance, the statutory provision is mandatory. If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words. . . . Doe v. Statewide Grievance Committee, 240 Conn. 671, 680-81, 694 A.2d 1218 (1997).” (Citation omitted; internal quotation marks omitted.) State v. Pare, 253 Conn. 611, 622-23, 755 A.2d 180 (2000).
Looking first to the words of § 54-82h (c), it would appear that the language requires a trial court to dismiss an alternate juror once deliberations have begun, and thereby prohibits the mid-deliberation replacement of regular panel members. As stated previously, the statute provides that, when the jury begins deliberations, the alternates “shall be dismissed from further service on said case.” General Statutes § 54-82h (c). “Definitive words, such as must or shall, ordinarily express legislative mandates of a nondirectory nature. State v. Metz, 230 Conn. 400, 410, 645 A.2d 965 (1994); Lo Sacco v. Young, 210 Conn. 503, 507, 555 A.2d 986 (1989) ....
The geneology of § 54-82h (c) supports our interpretation of the statute’s language. As originally enacted in 1939, our alternate juror statute, which then applied to both civil and criminal trials, authorized the trial court to replace a regular juror with an alternate if, for any reason, that juror became unable to further perform his or her duties “before the case shall be committed to the jury.” See General Statutes (Cum. Sup. 1939) § 1406e. Subsequent statutory revisions retained that same language, thereby specifically prohibiting the mid-deliberation substitution of alternate jurors. See, e.g., General Statutes (1949 Rev.) § 7911.
In 1959, the alternate juror statute, General Statutes § 51-243, allowed the substitution of an alternate if, “at any time,” a regular juror became unable to fulfill his or her official duties. The statute also provided that alternates “shall be dismissed when the case is given to the regular panel for deliberations.” Thereafter, in 1969, House Bill No. 6809 was introduced in the General Assembly as an amendment to § 51-243 (c) that, inter alia, would have permitted the replacement of regular jurors with alternates after deliberations had begun. The proposal was intended “[t]o prevent the unnecessary retrial of cases . . . thereby saving the state thousands of dollars by eliminating early dismissal of alternate jurors.” House Bill No. 6809, statement of purpose. The bill, as later modified, provided in relevant part: “If, at any time, any juror shall, for any reason, become unable to further perform his [or her] duty . . .
The bill was passed by the House of Representatives as drafted, but was amended significantly when it reached the Senate. Like the House of Representatives version of the bill, the Senate version authorized the trial court to dismiss a juror “at any time” if that juror became unable to complete his or her duties, but deleted the very language that expressly would have allowed for the mid-deliberation substitution of alternates. Specifically, the Senate deleted the bill’s reference to the continuation of “deliberations” after an alternate had joined the panel, and the dismissal of alternates “at the same time as the regular panel.” See 13 S. Proc., Pt. 5,1969 Sess., p. 2318. Instead, the Senate version authorized the continuation, after an alternate had joined the panel, of “the trial” only, and the dismissal of alternates “once the case is given to the regular panel for deliberation.” Id. Only after this amendment was adopted by the Senate was the bill passed by the full General Assembly. See 13 H.R. Proc., Pt. 9, 1969 Sess., pp. 4315-17; see also Public Acts 1969, No. 518. Representative Lawrence J. Merly, the sponsor of the bill in the House of Representatives, described the effect of the Senate amendments as “return[ing] the [original] bill ... to the existing law of alternate jurors,” that is, requiring that alternates be dismissed upon submission of the case to the jury, thereby precluding the mid-deliberation substitution of alternate jurors. 13 H.R. Proc., supra, pp. 4315-16. The rejection by the Senate, and ultimately the full General Assembly,
In 1980, the legislature severed § 51-243 into two separate provisions. The substitution of alternate jurors in civil trials continued to be governed by § 51-243, whereas the substitution of alternate jurors in criminal trials was governed by § 54-82h (c). See Public Acts 1980, No. 80-313, §§ 41 and 56. The text of § 54-82h (c) mirrored that of § 51-243, as amended in 1969, regarding the substitution during trial of an alternate juror for a juror unable to continue in service, and the dismissal of alternates upon submission of the case for deliberation to the jury. Consistent with § 51-243, therefore, we read the language of § 54-82h (c), as originally drafted, as prohibiting the mid-deliberation substitutions of alternate jurors in criminal trials. See Cotto v. United Technologies Corp., 251 Conn. 1, 13, 738 A.2d 623 (1999) (presumption that legislature has created consistent body of law warrants interpretation of statute that conforms with existing statutes).
Our interpretation that, pursuant to § 54-82h (c), alternate jurors cannot be recalled to replace an excused juror once deliberations have begun, allows for a complete reading of the statute that gives meaning to each independent clause. See Rydingsword v. Liberty Mutual Ins. Co., 224 Conn. 8, 16, 615 A.2d 1032 (1992) (every word and phrase is presumed to have meaning; statutes not construed to render terms surplusage); West Haven v. Hartford Ins. Co., 221 Conn. 149, 157, 602 A.2d 988 (1992) (“we do not interpret some
Finally, a recent amendment to § 54-82h (c) supports our conclusion that the statute, as enacted, requires the dismissal of alternates upon submission of the case to the jury, and prohibits the mid-deliberation substitution of alternates. See Weinberg v. ARA Vending, Co., 223 Conn. 336, 344-45, 612 A.2d 1203 (1992) (“[w]e have previously considered subsequent enactments in order to illuminate the legislature’s intent with respect to a prior legislative action”); see also Velez v. Commissioner of Correction, 250 Conn. 536, 546, 738 A.2d 604 (1999); State v. McVeigh, 224 Conn. 593, 621, 620 A.2d 133 (1993); In re Valerie D., 223 Conn. 492, 520-24, 613 A.2d 748 (1992). Number 00-116, § 6, of the 2000 Public Acts, which codified Substitute Senate Bill No. 58, amended § 54-82h (c) to provide in relevant part as follows: “If, at any time, any juror shall, for any reason, become unable to perform the duty of a juror, the court may excuse such juror and . . . the court may order that an alternate juror . . . shall become a part of the regular panel and the trial or deliberation shall then
Public Act 00-116 reflects the legislature’s understanding that, as originally enacted, § 54-82h (c) does not allow for the mid-deliberation substitution of jurors. The deliberate substitution of the word “may” for the word “shall,” in relation to the dismissal of alternates once deliberations have begun, coupled with the express authorization of substituting alternates after the case is submitted to the regular panel for deliberations, confirms that until P.A. 00-116 takes effect, § 54-82h (c) requires that, upon submission of the case to the jury, the trial court must dismiss the alternate jurors, stripping it of the authority to recall them should a regular juror be excused thereafter.
In the present case, as dictated by § 54-82h (c), the alternates were discharged by the trial court when the case was given to the regular jury for deliberations. Three days later, the trial court received the letter in which juror M expressed concerns for her safety should she be required to continue her service on the case. After considering the contents of the letter, the trial court determined, upon consent of the parties, that juror M should be excused. The defendant declined to proceed with only five jurors. The court recalled the two alternates, conducted a brief voir dire and concluded that neither had been tainted by outside contacts. Thereafter, the trial court instructed the clerk to select randomly the name of one of the alternates to replace juror M.
As we have stated previously, § 54-82h (c) mandates the dismissal of alternate jurors once deliberations have begun, and thereby prohibits the mid-deliberation substitution of alternate jurors. Thus, the trial court’s decision to recall a dismissed alternate to replace juror M was improper.
The remaining question is whether the trial court’s violation of § 54-82h (c) is subject to harmless error analysis. We conclude that it is not.
The defendant argues that this court should order a new trial pursuant to its supervisory authority over the administration of justice; see State v. Santiago, 245 Conn. 301, 332-34, 715 A.2d 1 (1998); because the trial court “deliberately and knowingly” disregarded the Appellate Court’s directive in State v. Walton, supra, 41 Conn. App. 831, that a mistrial must be granted whenever the trial court violates § 54-82h (c). Because the defendant claims that a new trial is necessary whenever § 54-82h (c) has been violated, he in essence requests that we overrule that portion of State v. Williams, supra, 231 Conn. 235, invoking a harmless error analysis. The state counters that the record fails to support the claim that the trial court intentionally violated § 54-82h (c), and therefore, pursuant to this court’s decision in State v. Williams, supra, 242, the defendant bears the burden of demonstrating the harm of that violation. Finally, the state contends that the defendant has failed to make any showing of harm.
As stated previously, we held in Williams, that a violation of § 54-82h (c) was subject to harmless error analysis, and that, because the improper substitution of an alternate juror did not implicate the defendant’s constitutional right to a trial by jury, the defendant bore the burden of demonstrating the harmfulness of that substitution. Id., 242. In Williams, we did not examine the contours of § 54-82h (c), but, rather, assumed, without deciding, that the mid-deliberation substitution of an alternate violated the statute.
In the present case, we have resolved the question left open by Williams, concluding that General Statutes § 54-82h (c) did not permit the mid-deliberation substi
“We realize the burdens that are imposed on the trial courts when a juror suddenly becomes . . . disqualified from service during the deliberative process, especially where the trial has been lengthy and complex in nature. But however cumbersome the process may be, we do not believe it is appropriate to substitute our judgment as to guilt or innocence for that of the jury, which we must necessarily do in applying the harmless error analysis. It is impossible to say that the remaining [jurors] would be capable of disregarding their prior deliberations, even with an instruction to do so, and become receptive to the alternate’s attempt to assert a
The judgment is reversed and the case is remanded for a new trial.
In this opinion BORDEN, NORCOTT, SULLIVAN and VERTEFEUILLE, Js, concurred.
General Statutes § 54-82h provides: “Alternate jurors in criminal cases. Peremptory challenges, (a) In any criminal prosecution to be tried to the jury in the Superior Court if it appears to the court that the trial is likely to be protracted, the court may, in its discretion, direct that, after a jury has been selected, two or more additional jurors shall be added to the jury panel, to be known as ‘alternate jurors’. Such alternate jurors shall have the same qualifications and be selected and subject to examination and challenge in the same manner and to the same extent as the jurors constituting the regular panel, provided, in any case when the court directs the selection of alternate jurors, the number of peremptory challenges allowed shall be as follows: In any criminal prosecution the state and the accused may each peremptorily challenge thirty jurors if the offense for which the accused is arraigned is punishable by death, eighteen jurors if the offense is punishable by life imprisonment, eight jurors if the offense is punishable by imprisonment for more than one year and for less than life, and four jurors in any other case.
“(b) Alternate jurors shall be sworn separately from those constituting the regular panel, and the oaths to be administered shall be as provided in section 1-25.
“(c) Alternate jurors shall attend at all times upon trial of the cause. They shall be seated when the case is on trial with or near the jurors constituting the regular panel, with equal opportunity to see and hear all matters adduced in the trial of the case. If, at any time, any juror shall, for any reason, become unable to further perform his duty, the court may excuse him and, if any juror is so excused or dies, the court may order that an alternate juror who is designated by lot to be drawn by the clerk shall become a part of the regular panel and the trial shall then proceed as though such juror had been a member of the regular panel from the time when it was begun. A juror who has been selected to serve as an alternate shall not be segregated from the regular panel except when the case is given to the regular panel for deliberation at which time he shall be dismissed from further service on said case.”
General Statutes § 53a-49 provides in relevant part: “Criminal attempt: Sufficiency of conduct; renunciation as defense, (a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumsl anees were as he believes them to be; or (2) intentionally does or omü s to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
“(b) Conduct shall not be held to constitute a substantial step under subdivision (2) of subsection (a) of this section unless it is strongly corroborative of the actor’s criminal purpose. Without negating the sufficiency of other conduct, the following, if strongly corroborative of the actor’s criminal purpose, shall not be held insufficient as a matter of law: (1) Lying in wait, searching for or following the contemplated victim of the crime; (2) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission; (3) reconnoitering the place contemplated for the commission of the crime; (4) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed; (5) possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances; (6) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances; (7) soliciting an innocent agent to engage in conduct constituting an element of the crime. ...”
General Statutes § 53a-54a provides in relevant part: “Murder (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime. . . .”
General Statutes § 53a-59 provides in relevant part: “Assault in the first degree: Class B felony: Nonsuspendable sentences, (a) A person is guilty of assault in the first degree when ... (5) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of the discharge of a firearm. . . .”
The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1, and General Statutes § 51-199 (c).
When the alternate jurors and the regular jurors were first sworn, the trial court stated that, although it was its practice to send the alternates home when the deliberations started, it does not dismiss the alternates at that time.
Juror M indicated that she had related some of her feelings of discomfort to her fellow jurors. Although the court and counsel engaged in a colloquy about whether to question the remaining jurors in an effort to ascertain
The defendant also asserts that the trial court improperly failed to follow the directive of the Appellate Court in State v. Walton, 41 Conn. App. 831, 843 n.5, 678 A.2d 986 (1996), to declare a mistrial when, in the middle of deliberations, a juror is excused and the parties do not waive their right to a jury of six. According to the defendant, because Walton was decided two years before the trial in the present case, the trial court’s failure to follow this binding precedent mandates that we exercise our supervisory authority and order a new trial, i.e., the mistrial that the trial court was required, but refused, to declare. To the extent that the defendant’s argument asks us to reject the harmless error analysis that we employed in State v. Williams, supra, 231 Conn. 244-45, we deem it a request to overrule that case. For the reasons set forth in part IIB of this opinion, we agree with the defendant that harmless error analysis is not appropriate, and accordingly, we overrule that part of Williams.
We do not, however, overrule that part of State v. Williams, supra, 231 Conn. 243-44, wherein we concluded that “the mechanisms for providing for and dismissing alternate jurors, and the circumstances under which they may be substituted for regular jurors . . . does not implicate constitutional rights” and are thus for the legislature to decide. The idea of alternate jurors was unknown at common law and came into existence only as a creation of the legislature in 1939. See General Statutes (Cum. Sup. 1939) § 1406e. Accordingly, we reject the state’s contention that an interpretation of § 54-82h (c), requiring a mistrial when a juror has been dismissed during deliberations, is “constitutionally precarious” because it runs afoul of the constitutional doctrine of the separation of powers. See Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 521, 461 A.2d 938 (1983) (“[i]n the context of challenges to statutes whose constitutional infirmity is claimed to flow from impermissible intrusion upon the judicial power, we have refused to find constitutional impropriety in a statute ‘simply because it affects the judicial function, so long as it is an exercise of power assigned by the constitution to the legislature’ ”).
We do not dispute the contention raised by the dissent, that a jury is presumed, absent evidence to the contrary, to have properly followed the trial court’s instructions throughout its deliberations. This contention, however, assumes the existence of a legally constituted jury which, in this case, ceased to exist once the “noiyuror,” that is, the former alternate, was recalled to contribute to the deliberative process.
Concurrence in Part
with whom PALMER, J., joins, concurring in part and dissenting in part. I agree with parts I and II A of the majority opinion. I disagree, however, with part II B.
In State v. Williams, 231 Conn. 235, 244, 679 A.2d 920 (1994), this court assumed, without deciding, that the mid-deliberation substitution of an alternate juror violated General Statutes § 54-82h (c) and then proceeded to employ a harmless error analysis.
The majority states that it is not overruling the holding of State v. Williams, supra, 231 Conn. 243-44, that
The majority’s conclusion is also at odds with the wisdom of the United States Court of Appeals for the Second Circuit, whose rulings are binding on federal courts in Connecticut. In United States v. Hillard, 701 F.2d 1052, 1058 (2d Cir. 1983), that court held that, despite the rule 24 (c) of the Federal Rules of Criminal Procedure,
The majority is also at odds with other states that have followed the federal approach of applying a harmless error test to claims of improper substitution of alternate jurors. See, e.g., People v. Henderson, 45 Ill. App. 3d 798, 805, 359 N.E.2d 909 (1977) (error harmless if no prejudice from late substitution); State v. Williams, 659 S.W.2d 298, 300 (Mo. App. 1983) (same); State v. Grovenstein, 335 S.C. 347, 351-52, 517 S.E.2d 216 (1999) (burden on defendant to demonstrate prejudice due to improper jury influence).
Finally, in reaching this conclusion, the majority is at odds with the collective wisdom of the people of Connecticut as embodied by the legislature. Since State v. Williams, supra, 231 Conn. 235, was decided, the legislature had taken no action in response to our holding that a violation of § 54-82h (c) is subject to harmless error analysis. Although “we are aware that legislative inaction is not necessarily legislative affirmation . . . we also presume that the legislature is aware of [this court’s] interpretation of a statute, and that its subsequent nonaction may be understood as a validation of that interpretation.” (Citation omitted; internal quotation marks omitted.) State v. Hodge, 248 Conn. 207, 262-63, 726 A.2d 531, cert. denied, 528 U.S. 969, 120 S. Ct. 409, 145 L. Ed. 2d 319 (1999). The legislature, however, recently amended § 54-82h (c) to permit the trial court to retain alternate jurors and to substitute an alternate juror for a regular juror after deliberations have begun. The very practice that the majority deems to be so prejudicial as to prohibit harmless error review is now permitted by statute.
In this case, the record, as in Williams, indicates that the trial court had attempted to minimize any potential
Accordingly, I respectfully dissent.
The trial court in State v. Williams, supra, 231 Conn. 240, questioned tlie alternate juror as to whether he had spoken to anyone about the ease, and he responded that he had not. The trial court also questioned the remaining eleven jurors as to whether they would be able to begin deliberations anew. The jurors indicated that they would be able to do so. Id. Because the record indicated that the trial court in Williams had attempted to minimize any potential prejudice to the defendant resulting from the substitution of the alternate juror, this court determined that no prejudice had occurred. Id., 245.
In 1998, the year during which the defendant’s trial in the present case took place, rule 24 (c) of the Federal Rules of Criminal Procedure provided in relevant part: “Alternate jurors in the order in which they are called shall replace jurors, who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties. ... An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict. . . .”