Wiseman v. ArmstrongWiseman v. Armstrong
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Lead Opinion
Opinion
The plaintiff, Elaine Wiseman, in her capacity as administratrix of the estate of her deceased son, Bryant Wiseman (decedent),
The case was tried to a jury, which returned a verdict for the defendants, and the trial court accepted the verdict. Thereafter, pursuant to
On appeal, the plaintiff claims that the trial court improperly denied her motion to set aside the verdict. Specifically, the plaintiff asserts that the trial court violated the mandatory provisions of § 16-32 by refusing to poll the jury and improperly concluded that the failure to poll was harmless. The plaintiff contends that a failure to poll always causes harm, and therefore constitutes per se reversible error. The defendants respond that § 16-32 is discretionary, and the failure to poll should be subject to harmless error review by this court. We agree with the plaintiff that § 16-32 imposes a mandatory duty on the trial court to poll the jury when requested to do so by a party, but we also agree with the defendants that the failure to poll should be subject to review for harmlessness. Because we agree with the trial court’s conclusion that there was no harm in the present case, we affirm the judgment of the trial court.
The plaintiff first claims that the trial court violated § 16-32 by denying her request to poll the jury. Specifically, the plaintiff contends that because § 16-32 has language identical to
As a preliminary matter, we set forth the applicable standard of review. “The interpretive construction of the rules of practice is to be governed by the same principles as those regulating statutory interpretation.” Commissioner of Social Services v. Smith, 265 Conn. 723, 733-34, 830 A.2d 228 (2003); see also State v. Pare, supra, 253 Conn. 622 (“principles of statutory construction apply ‘with equal force to Practice Book rules’ ”). The interpretation and application of a statute, and thus a Practice Book provision, involves a question of law over which our review is plenary. Commissioner of Social Services v. Smith, supra, 734.
“The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case .... When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case .... In seeking to determine that meaning . . . [General Statutes] § 1-2z6 directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles
In accordance with § l-2z, we first turn to the relevant language of the rule of practice at issue, § 16-32, which provides that “after a verdict has been returned and before the jury have been discharged, the jury shall be polled at the request of any party or upon the judicial authority’s own motion.” (Emphasis added.)
In applying these principles to § 16-32, we focus on the text stating that “the jury shall be polled . . . .” This language juxtaposes “shall” with the verb “polled.” Polling the jury, moreover, is the purpose of this provision, and is not a matter of convenience. As a result, we conclude that the poll is a substantive right established by this rule of practice and thus imposes a mandatory duty on the trial court.
The history of § 16-32 provides interpretive guidance that buttresses our textual analysis. When this rule was in the process of being adopted in 1997, provisionally codified as
Pursuant to § l-2z, we next consider
Even though § 16-32, unlike § 42-31, is not based on a substantive statute or constitutional provision, we nevertheless determine that the plain language of § 16-32 imposes a mandatory obligation on the trial court to poll the jury when requested. Cf. State v. Pare, supra, 253 Conn. 624 (interpreting § 42-31 as mandatory partly because it is “a mechanism for preserving an essential characteristic of both the state and federal constitutions”). Accordingly, we conclude that the trial court improperly refused the plaintiffs request to poll the jury
n
We next must address whether the trial court’s failure to poll the jury in violation of the mandatory provisions of § 16-32 requires us to reverse the trial court’s judgment. The trial court based its decision denying the plaintiffs motion to set aside the verdict on the legal determination that even if its failure to poll constituted error, the failure was harmless. On appeal, the plaintiff claims that the trial court should have concluded that its failure to poll the jury constituted reversible error. Specifically, the plaintiff contends that because there is no means of ascertaining the result of a poll not taken, a failure to poll the jury in violation of § 16-32 always causes harm. The defendants respond that the trial court correctly concluded that its failure to poll the jury caused no harm. We agree with the defendants.
The following additional facts are relevant to our resolution of this issue. After a trial that spanned the coruse of approximately twenty-one days and included more than eighty exhibits and testimony from more than twenty-five witnesses, the trial court charged the jury and provided them with an eleven page verdict form containing specific interrogatories that addressed liability and damages with regard to the multiple defendants. During its deliberations, the jury did not seek clarifying instructions; the only requests that the jury made were for permission to view a digital video disc that had been admitted into evidence and for assistance in getting that disc to play.
After deliberating for approximately three hours, the jury announced that it had reached a verdict. The jury entered the courtroom, and the clerk called the roll of jurors to ensure that all members of the jury were present. The trial court formally asked the jury whether they had reached a verdict, to which the foreperson responded “yes.” The foreperson, who had signed the verdict form on behalf of the jury, then handed it to the clerk, who then read the full verdict form to the jury. The trial court accepted the verdict and asked that it be recorded, and the clerk, for a second time, read the full verdict to the jury. None of the jurors indicated that they had any problem with the verdict as read. The trial court then thanked the jury for their service and stated: “The case has been lengthy. It has been complicated. You have been punctual. You have been very attentive. And your deliberations indicate a thoughtful verdict.”11 The plaintiffs counsel then asked the trial comí; to poll the jury, which it refused to do.12 Following its denial of that request, the trial court adjourned court.
We begin our analysis with the applicable standard of review, as well as a brief review of background principles relating to harmless error review. A trial court’s legal determination is a question of law and is subject to plenary review. Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008); Hartford Courant Co. v. Freedom of Information Commission, 261 Conn. 86, 96-97, 801 A.2d 759 (2002). We therefore have plenary review over the trial court’s decision to undertake harmless error review rather than apply per se reversible error. “The harmless error standard in a civil case is whether the improper ruling would likely affect the result.” (Internal quotation marks omitted.) Desrosiers v. Henne, 283 Conn. 361, 366, 926 A.2d 1024 (2007). Generally, a trial court’s “ruling will result in a new trial only if the ruling was both wrong and harmful.” (Emphasis in original.) Prentice v. Dalco Electric, Inc., 280 Conn. 336, 358, 907 A.2d 1204 (2006), cert. denied, 549 U.S. 1266, 127 S. Ct. 1494, 167 L. Ed. 2d 230 (2007).
Following the turn of the twentieth century, harmless error review became the applicable standard in American jurisprudence, in reaction to the prior, rigid application of per se reversible error. Before the harmless error reform, the American legal system had followed what was known in the English courts as the “Exchequer Rule,” which created the presumption that prejudice accompanies every trial court error and new trials were required to remedy all instances of error. As one scholar noted: “[T]he American courts did not change the rule and even in the early twentieth century were still leaving no error unremedied, no matter how inconsequential. . . . Cases were often tried more than once .... One particularly glaring example of delay involved a widow who, twenty-three years after filing suit for the proceeds of her husband’s life insurance, appeared before the Supreme Court for the second time.”13 S. Goldberg, “Harmless Error: Constitutional Sneak Thief,” 71 J. Crim. L. & Criminology 421, 422 (1980).
Attorneys, knowing that any error, no matter how inconsequential, would result in a new trial, “placed error in the record as a hedge against losing the verdict.” Id. As the United States Supreme Court explained, “[trials had become] a game for sowing reversible error in the record, only to have repeated the same matching of wits when a new trial had thus been obtained.” Kotteakos v. United States, 328 U.S. 750, 759, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946). A frustrated judge similarly noted that appellate courts “tower above the trials
With frustration and backlog mounting in the trial courts, harmless error review became the new standard for reviewing errors that had occurred during trial. The purpose of harmless error review was “[t]o substitute judgment for automatic application of rules . . . [and] to preserve review as a check upon arbitrary action and essential unfairness in trials, but at the same time to make the process perform that function without giving men fairly convicted [or held civilly liable] the multiplicity of loopholes which any highly rigid and minutely detailed scheme of errors, especially in relation to procedure, will engender and reflect in a printed record.” Kotteakos v. United States, supra, 328 U.S. 760. The United States Supreme Court additionally noted that the goal of harmless error review was “to prevent matters concerned with the mere etiquette of trials and with the formalities and minutiae of procedure from touching the merits of a verdict.” Bruno v. United States, 308 U.S. 287, 294, 60 S. Ct. 198, 84 L. Ed. 257 (1939). As one former member of this court noted, “[t]he doctrine of harmless error is a very elastic one. It has been adopted by courts to avoid ordering new trials because of judicial errors that would not have a substantial impact on the truth finding process and result in an injustice.” State v. Valentine, 240 Conn. 395, 422, 692 A.2d 727 (1997) (McDonald, J., dissenting).
These principles embody the concept of judicial economy. By requiring parties to show harm resulting from error, courts avoid the cost, delay and burden of a new trial when the error failed to affect the underlying fairness of the trial proceeding. See, e.g., Powell v. Infinity Ins. Co., 282 Conn. 594, 601, 922 A.2d 1073 (2007) (judicial economy “minimiz[es] repetitive litigation”); Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 663, 904 A.2d 149 (2006) (Zarella, J., dissenting) (“Harmless error is error which does not prejudice the substantial rights of a party. It affords no basis for a reversal of a judgment and must be disregarded.” [Internal quotation marks omitted.]). Additionally, requiring the complaining party to demonstrate harm promotes equity. We have noted that “[i]t is axiomatic . . . that not every error is harmful. . . . [W]e have often stated that before a party is entitled to a new trial . . . he or she has the burden of demonstrating that the error was harmful.” (Internal quotation marks omitted.) PSE Consulting, Inc. v. Frank Mercede & Sons, Inc., 267 Conn. 279, 295, 838 A.2d 135 (2004). Allowing a party to receive a new trial as a result of an error that had no effect on the fairness of the original trial would be inequitable to the opposing party. See, e.g., Kotteakos v. United States, supra, 328 U.S. 760 (explaining harmless error review as encouraging courts “not [to] be technical, where technicality does not really hurt the party whose rights in the trial and in its outcome the technicality affects” [internal quotation marks omitted]); Duffy v. Vogel, 49 App. Div. 3d 22, 26, 849 N.Y.S.2d 52 (2007) (“To deprive defendants of the benefit of [their] verdict — one that was fairly earned and entered — for an error not of their making or one for which they bear any responsibility, would, on these facts, be grossly unfair. Moreover, the integrity of this entire [civil trial] process would, in our view, be ill-served by this [c] ourt’s sanction of such a result.”), rev’d, 12 N.Y.3d 169, 905 N.E.2d 1175, 878 N.Y.S.2d 246 (2009). This is particularly relevant in the present case, where the defendants may be subjected to a second protracted trial for an error they neither committed nor induced.
In the present case, we see no reason to deviate from our well settled use of harmless error review in civil cases in this jury polling case where multiple additional considerations mitigate against such a change. First, the right to poll a jury in civil cases is not based on a statutory right or a constitutional provision. Rather, the right to a jury poll is established solely by the rules of practice. “It has long been understood that Practice Book provisions are not intended to enlarge or abrogate substantive rights. See
To examine the common-law status of civil jury polling, we turn to the United
Second, jury polling rights are not so vital or necessary as to be a required element in a trial.15 Connecticut does not mandate polling the jury in every civil or criminal case; we simply give the parties the right to a poll if they so request. Failing to request a jury poll is not deemed per se ineffective assistance of counsel in criminal cases. A habeas court recently has noted that “[criminal] defense counsel is [not] required in all circumstances to poll the jury, absent some indication that the verdict was not unanimous.” J.R. v. Commissioner of Correction, 105 Conn. App. 827, 843, 941 A.2d 348, cert. denied, 286 Conn. 915, 945 A.2d 976 (2008). If a failure to request a poll does not constitute per se ineffective assistance of counsel in a criminal case, it should not be per se reversible error in a civil case. See Logan v. Greenwich Hospital Assn., 191 Conn. 282, 307, 465 A.2d 294 (1983) (“[w]e see no reason to demand stricter compliance with the standard procedure for delivering and recording a jury verdict in a civil case [than in a criminal case], where there is the additional safeguard of a written form signed by the foreman”). The fact that jury polling in a criminal matter is not so essential as to be a required element of a criminal verdict informs our reading of § 16-32.
Third, this court has noted that “[t]he stability of jury verdicts is and has been of concrete substance to our justice system and, in turn, to the role that system occupies in our society. Thus, courts have held
Fourth, as a practical matter, jury polling rarely reveals anything but unanimity among jurors. The purpose of a jury poll is to ensure that “no juror has been coerced or induced to agree to a verdict to which he [or she] has not fully assented.” (Internal quotation marks omitted.) State v. Pare, supra, 253 Conn. 631; see also Duffy v. Vogel, supra, 12 N.Y.3d 173-74 (describing common-law origins and purpose of jury poll).16 In theory, a poll gives a timid juror who was pressured into reaching a certain verdict the opportunity to express his or her dissent from the verdict. This timid juror must do so, however, on the record, in open court and in front of the judge, parties, attorneys, court clerks and his fellow jurors. As this court previously has noted, “rarely does an individual poll reveal that a juror assented to a verdict despite reservation regarding the defendant’s guilt . . . .” State v. Pare, supra, 639. Other courts similarly have noted that jury polls rarely reveal a lack of unanimity. “In almost every case, the poll will confirm the verdict [that is] announced by the foreperson. There are experienced trial lawyers who have never seen a verdict upset by a jury poll — and others who have seen it once, and tell the story to the end of their days.” Duffy v. Vogel, supra, 179 (Smith, J., dissenting); see also Jaca Hernandez v. Delgado, supra, 375 F.2d 586 (not likely “that members of a jury would listen to, or speak collectively in support of, their foreman and immediately thereafter contradict themselves if asked to speak individually”). We are therefore disinclined to apply per se reversible error to a rule of practice that rarely reveals the error it was designed to detect.17
Fifth, a significant number of other states with mandatory polling provisions do not apply per se reversible error to a trial court’s failure to poll. These states include California, Illinois, Missouri, Montana, New Jersey, New Mexico, Texas, and Wyoming.18 Cf. Duffy v. Vogel, supra, 12 N.Y.3d 169 (applying per se reversible error); Sandford v. Chevrolet Division of General Motors, 52 Or. App. 579, 586-87, 629 P.2d 407 (1981) (trial court must conduct poll correctly or be subjected to per se reversible error), aff‘d, 292 Or. 590, 642 P.2d 624 (1982).
For all of these reasons, we reject the plaintiffs claim that we should return to our pre-twentieth century standard of per se reversible error solely for the failure to grant a request for a jury poll. We conclude, instead, that a trial court’s refusal to poll a jury in violation of the mandatory provisions of § 16-32 is subject to harmless error review.
The plaintiff and the dissenting justices encourage us to rely on the reasoning of Duffy v. Vogel, supra, 12 N.Y.3d 169, and State v. Pare, supra, 253 Conn. 611, in order to conclude that a trial court’s denial of a request to poll a civil jury constitutes per se reversible error. Both of these cases are readily distinguishable from the present one, however, thereby rendering adoption of their analysis inappropriate.
In Duffy, the New York Court of Appeals’ decision to apply per se reversible error rested heavily on its determination that civil jury polling had a lengthy and strong common-law history in New York. The court explained that “we have long recognized that affording jurors a last opportunity individually to express agreement or disagreement with the reported verdict, is, when requested by a litigant, indispensable to a properly published, and thereby perfected, verdict .... That a verdict may not be deemed finished or perfected until it is recorded, and that it may not be validly recorded without a jury poll where one has been sought . . . have been uncontroversial propositions. . . . [T]hey have been applied over the years with axiomatic force by New York’s intermediate appellate courts . . . .” (Citations omitted; internal quotation marks omitted.) Duffy v. Vogel, supra, 12 N.Y.3d 174-75. The court relied on New York case law spanning more than 150 years, from 1851 through 2005, emphasizing both the historical and continued significance of civil jury polling in New York state. Id. In rendering its decision, the Court of Appeals was quite conscious that it was not “writing upon a clean slate.” Id., 177. Connecticut, however, lacks this lengthy and prevalent common-law tradition favoring mandatory civil jury polling. As previously set forth herein, jury polling in a civil proceeding is a right created by a fairly recently
In State v. Pare, supra, 253 Conn. 635-36, this court had the opportunity to consider whether a denial of a request to poll a jury in a criminal trial constituted per se reversible error. The defendant in Pare was charged with murder. Id., 612. At the close of trial, the trial court “instructed the jury at length, enumerating seven possible verdicts that might be returned,” and also instructed the jury on the mitigating factor of extreme emotional disturbance. Id., 616. The jury requested a number of readbacks of both trial testimony and the jury charge, including the instruction on extreme emotional disturbance. Id. “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.” Id. Finally, after the jury indicated its inability to reach a unanimous verdict, the trial corut gave a “Chip Smith” charge reminding the jury that it must act unanimously and encouraging the members of the jury to reach unanimity. Id., 616 and n.4. Soon after receiving that instruction, the jury returned a verdict of guilty. Id., 617.19
The trial court denied a subsequent request by the defendant to poll the jury. Id., 619-20. On appeal, the defendant argued that the denial of his request constituted per se reversible error. Id., 613, 620. This court concluded that the “weighty interests] ” and constitutional concerns inherent in criminal trials required application of per se reversible error. Id., 639. The court explicitly stated that “because the purpose of permitting an individual poll is to protect the accused’s constitutional right to an acquittal in the absence of the full consensus of each juror, the denial of a timely request to poll is of substantial and unique magnitude. . . . [T]he action of the court [in denying a timely request to poll the jury] work[s] a denial of a right of the accused so fundamental as to require a retrial .... [I]t is better that the case be tried again than that a precedent impairing a defendant’s right to a poll of the jury be engrafted on our criminal procedure.” (Emphasis added; internal quotation marks omitted.) Id., 636. The court’s analysis thus centered on the fundamental and constitutional rights of a defendant in a criminal proceeding.20
The criminal concerns underlying Pare are inapplicable, however, in the civil context. Criminal litigation, which adjudicates guilt and liberty, is inherently and functionally distinct from civil litigation, which incorporates notions of equity. See, e.g., Foucha v. Lousiana, 504 U.S. 71, 93, 112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992) (Kennedy, J., dissenting) (noting “heightened due process scrutiny” given to criminal cases). These foundational differences
Despite this court’s reliance in Pare23 on the important criminal rights of a defendant, the plaintiff encourages us to rely on its reasoning that because we cannot know the results of a poll not taken, a failure to poll is never harmless. State v. Pare, supra, 253 Conn. 639. We disagree. The fact that a court cannot divine the intention of civil jurors does not warrant per se reversal of their verdicts.24 Harmless error review is
We now must determine whether the trial court’s refusal to poll the jury in the present case was harmless. As we previously have stated herein, the trial court reasoned that “even if the provisions of . . . § [16-32] are mandatory, the court finds that its denial of the plaintiffs request to poll the jury was harmless. The jury in this case did not indicate any confusion regarding the charge or lack of unanimity in the course of their deliberations and the eleven page form containing the interrogatories and verdict shows no indication of any inconsistencies. The plaintiff has made no argument that the denial of her request to poll the jury affected the outcome of the trial.”
We agree that there is no evidence in the record indicative of any harm to the plaintiff resulting from the trial court’s failure to conduct a poll of the jury because there is no evidence suggesting that the jury was in any way divided. The jury did not send the trial judge any notes indicating a lack of agreement and the jury completely answered eleven pages of interrogatories without any inconsistencies. Despite a long and complex trial with multiple defendants, the jury required only three hours of deliberation, which suggests that the deliberations were focused and harmonious. See, e.g., People v. Masajo, 41 Cal. App. 4th 1335, 1340, 49 Cal. Rptr. 2d 234 (1996) (“[s]uch swift deliberation is indicative of unanimity of opinion — not lengthy coercion of a holdout juror”). Moreover, we are mindful of the trial court’s comments that the jury was “attentive” and that it delivered a “thoughtful verdict.” The trial court had the distinct advantage of observing the jury throughout the entire trial, including the return of its verdict, and in no instance noted uncertainty from any juror.25 There is nothing in the record that indicates that a poll would have revealed anything other than unanimity among the jurors. As a result, the plaintiff has failed to show that she suffered any harm resulting from the trial court’s refusal to poll the jury.
The judgment is affirmed.
In this opinion NORCOTT, PALMER, ZARELLA and McLACHLAN, Js., concurred.
Notes
The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to
The additional defendants for whom judgment was rendered were Reginald Hoffler, a psychiatrist, and correctional officers Michael A. Pace, Kevin Cowser, James E. Reilly, Donald J. Hebert, Robert G. Stack, Jose Zayas, Kevin J. Dandolini, Angelo P. Gizzi, Edwin Myers, William Smith, Vaughn Willis and Frank Mirto. For purposes of this opinion, we refer to Armstrong and these additional parties as the defendants.
The plaintiff originally had named other parties as defendants as well, but the claims against those parties either were withdrawn or dismissed, and those parties are not involved in this appeal.
The plaintiff asserts that § 16-32 imposes a mandatory obligation upon the trial court to poll the jury only when a timely request is made. In the present case there is no dispute that the plaintiff’s request to poll was timely.
General Statutes § l-2z provides: “The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.”
The proposed language of
We are mindful that § 16-32 is a rule of civil practice, while § 42-31 is a rule of criminal practice. As a result, § 42-31 necessarily incorporates and codifies substantive criminal principles that are not applicable within the civil context. Nonetheless, the substantive components of the two rules do not affect our textual analysis.
We note that a new provision to the Federal Rules of Civil Procedure recently was enacted. On December 1, 2009, rule 48 (c) of the Federal Rules of Civil Procedure became effective, imposing a mandatory duty on the trial court to poll the jury upon request. Rule 48 (c) provides in relevant part: “After a verdict is returned but before the jury is discharged, the court must on a party’s request, or may on its own, poll the jurors individually. . . .” According to the minutes of the Civil Rules Advisory Committee, which discussed the rule change in its draft proposal form, rule 48 (c) is “nearly verbatim” to rule 31 (d) of the Federal Rules of Criminal Procedure, thus “honoring the preference to avoid discrepancies between parallel provisions that may generate unwarranted implications.” Civil Rule Advisory Committee Minutes, May 22 and 23, 2006, p. 27.
The jury correctly followed the instructions on the interrogatory sheet. For instance, the jury left blank several questions pursuant to the included instructions. There were, therefore, no irregularities in the manner in which the jury completed the verdict form.
“[The Plaintiffs Counsel]: If the court please, may the jury just be individually polled, Your Honor?
“The Court: That motion is denied.”
See Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 12 S. Ct. 909, 36 L. Ed. 706 (1892); Connecticut Mutual Life Ins. Co. v. Hillmon, 188 U.S. 208, 23 S. Ct. 294, 14 L. Ed. 446 (1903); see also Pressley v. Bloomington & Normal Railway & Light Co., 271 Ill. 622, 111 N.E. 511 (1916) (retried four times despite no substantial error).
A structural error is “a defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself. . . . Such errors infect the entire trial process . . . .” (Internal quotation marks omitted.) State v. Lopez, 271 Conn. 724, 733, 859 A.2d 898 (2004).
The hypothetical posited by the United States Supreme Court in Humphries v. District of Columbia, supra, 174 U.S. 194-95, makes a telling point: “Suppose, after the jury, at the end of a protracted trial, have agreed upon the verdict and come into court to announce it, and after it has been read in open court but before a poE can be had one of the jurors is suddenly stricken dead, can it be that the whole proceeding theretofore had become thereby a nuEity? Can it be that after each of the jurors has signed the verdict and after it has been returned and each is present ready to respond to a poE, the mere inabiEty to complete the poE and
Pursuant to
The dissent, citing Pare, acknowledges that a jury poll rarely reveals a lack of unanimity. It nevertheless argues that the failure to poll on request should be reversible per se. We fail to see the wisdom in automatically ordering a new trial for the failure to follow a procedure that rarely reveals a defect in the trial process.
Redo Y CIA v. First National Bank, 200 Cal. 161, 167, 252 P. 587 (1926) (“Assuming that error was committed by the trial court in refusing the appellant’s request for a poll of the jury, we think no prejudice resulted therefrom. . . . [T]he polling of the jury would have been a ‘mere useless ceremony.’ ”); Roth v. Meeker, 72 Ill. App. 3d 66, 79-80, 389 N.E.2d 1248 (1979) (trial court’s refusal to poll jury to determine whether jurors influenced by newspaper articles did not constitute reversible error); Walton Construction Co. v. MGM Masonry, Inc., 199 S.W.3d 799, 806 (Mo. App. 2006) (refusing to hold that failure to poll jury in civil case constitutes per se reversible error, instead noting that reversal is not required where refusal was not prejudicial); Martello v. Darlow, 151 Mont. 232, 235-36, 441 P.2d 175 (1968) (lower court abused discretion in granting new trial on ground that it improperly refused request for jury poll since any error was harmless); Ragusa v. Lau, 119 N.J. 276, 283-84, 575 A.2d 8 (1990) (failure to conduct poll in correct manner subject to harmless error); Levine v. Gallup Sand & Gravel Co., 82 N.M. 703, 704, 487 P.2d 131 (1971) (“the mere failure to poll the jury upon proper request does not in itself constitute reversible error”); Suggs v. Fitch, 64 S.W.3d 658, 661 (Tex. App. 2001) (“[failure to separately and individually poll each juror is subject to harmless error analysis”); Garnick v. Teton County School District No. 1, 39 P.3d 1034, 1047 (Wyo. 2002) (concluding trial court did not abuse discretion in denying motion for new trial based on refusal to poll jury when complaining party failed to object or ask for poll).
This evidence of lack of unanimity is in stark contrast with the present case, where there was no indication at all of a lack of unanimity.
The dissent attempts to minimize the true constitutional underpinnings of Pare. As the quotation from State v. Pare, supra, 253 Conn. 636, that we set forth in the text of the opinion indicates, however, Pare rests expressly on the defendant’s constitutional right to an acquittal if the jurors are not unanimous.
The dissent asserts that the scope of interests protected by a jury poll in a civil trial is the same as in a criminal trial. To strengthen this claim, it notes that the present case is a wrongful death action brought pursuant to
Given the risk of convicting an innocent person in a criminal trial; see United States v. Cronic, 466 U.S. 648, 665, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984) (“the ultimate objective [of criminal law is] that the guilty be convicted and the innocent go free” [internal quotation marks omitted]); State v. Sawyer, 279 Conn. 331, 354, 904 A.2d 101 (2006) (“[the] fundamental purpose of our criminal justice system [is] . . . to convict the guilty and acquit the innocent”); forty-nine states require a criminal jury’s verdict to be unanimous. In contrast, thirty states allow less than unanimous verdicts in civil cases. See D. Rottman & S. Strickland, State Court Organization 2004 (U.S. Dept. of Justice, Bureau of Justice Statistics, 2006), table 42, available at http://www.ojp.usdoj.gov/bjs/.
Additionally, the court in Pare cited extensive precedent from other state and federal jurisdictions that similarly adopted per se reversible error for a trial court’s refusal to conduct a jury poll in a criminal trial. State v. Pare, supra, 253 Conn. 636-37. As we have noted previously, a large number of our sister courts apply standards less stringent than reversible error when considering civil jury polls. Further, the Federal Rules of Civil Procedure recently were amended to create a mandatory right to poll the jury; see footnote 8 of this opinion; but as of now, there is no case law determining the appropriate standard of review to apply to violations of this rale. See
Moreover, the court in State v. Pare, supra, 253 Conn. 622, relied on the well settled maxim that in interpreting criminal statutes and the rules of practice, ambiguities are resolved in favor of the defendant. This maxim is inapplicable to civil provisions.
Given that this is an issue of first impression in our court despite the application of § 16-32 for more than twenty years, we think it is likely that trial courts do not often deny a timely request to poll the jury in a civil case. Additionally, given our clarification in this opinion that the right to poE under § 16-32 is mandatory, we axe confident that trial courts in the future wiE honor timely requests pursuant to § 16-32. Unlike the dissent, we trust that trial judges wiE not violate the rule “with impunity.”
We find it troubling that the dissent gives no apparent deference to the firsthand observations of the trial court. In the present case, a thoroughly experienced trial judge had the unique advantage of observing the jury for more than four weeks and saw no indication of confusion or lack of unanimity. We credit the trial court’s observations.
Dissenting Opinion
joins, dissenting. I agree with the conclusion in part I of the majority opinion that
In general, jury polls are a simple and important means of reinforcing confidence in a jury’s verdict by confirming, in open court, that each individual juror assents to the verdict.2 A typical jury poll should occupy no more of the trial court’s time than the minute or two it takes the court to ask the jurors individually whether each one agrees with the verdict. See Duffy v. Vogel, 12 N.Y.3d 169, 180, 905 N.E.2d 1175, 878 N.Y.S.2d 246 (2009) (Smith, J., dissenting) (noting jury polls are “short and simple”). Thus, the benefits associated with providing each party the opportunity to test a verdict for irregularities far outweigh the slight burden associated with conducting a jury poll.
In State v. Pare, 253 Conn. 611, 637, 755 A.2d 180 (2000), this court held that, in a criminal case, a trial court’s refusal to honor a timely request to poll the jury is not amenable to harmless error. See id., 639 (“in light of the weighty interest protected by a jury poll, and the impracticality of gauging the results of a poll not taken, we conclude that a violation of a party’s timely polling request requires automatic reversal of the judgment”). We based our decision in Pare on two considerations: (1) the nature of the interests implicated by the trial court’s refusal to poll the jury; and (2) the
In reaching its conclusion that the refusal to poll a jury in a civil case should not result in an automatic reversal, the majority considered a number of factors beyond the primary considerations underlying our decision in Pare. The majority fails, however, to acknowledge that many of those additional factors apply equally in both the criminal and civil contexts.
First, the majority notes that the right to a jury poll in a civil case is not based on a statutory right or constitutional provision. No statute or constitutional provision establishes a right to a jury poll in the criminal context, either. In both contexts, the right to poll the jury is established by a rule of practice. See
Second, the majority notes that jury polling rights are not so vital or necessary as to be a required element in a civil trial. Again, this is also true in the criminal context. Whether in a civil or criminal case, a party must request a jury poll, and a party can waive the right to a jury poll by failing to make a timely request. See State v. Pare, supra, 253 Conn. 627 (“[f]ailure to make a timely demand or request for a poll, where there has been reasonable opportunity to do so, operates as a waiver of the right”); see also 75B Am. Jur. 2d 320, Trial § 1528 (2007) (“[t]he right to poll may be waived by failure to exercise it at the proper time”). Thus, there is no independent obligation on the court in either a civil or a criminal case to poll the jury in the absence of a timely request.
Third, the majority notes that jury polling rarely reveals anything but unanimity among jurors. Again, there is nothing to suggest that a jury poll is more likely to reveal a lack of unanimity in the criminal context than in the civil context. Indeed, in Pare, this court specifically recognized that jury polls rarely uncover a lack of unanimity. See State v. Pare, supra, 253 Conn. 639 (“rarely does an individual poll reveal that a juror assented to a verdict despite reservation”).
Although all three factors weigh against the utility or importance of jury polls in both the criminal and civil contexts, none of these factors precluded this court from concluding, in the criminal context, that “a violation of a party’s timely polling request requires automatic reversal of the judgment.” Id. The majority simply identifies these factors without addressing why, although the factors are present in a criminal context, they should lead to a contrary result when this court is faced with a refusal to poll in the civil context.
The majority also emphasizes the strong presumption of regularity that “attaches to every step of a civil proceeding, including jury deliberations . . . .” (Internal quotation marks omitted.) Because the very purpose of a jury poll is to uncover an undisclosed irregularity in a jury’s verdict, however, the fact that
According to the majority, our decision in Pare was based on concern for the fundamental constitutional rights of criminal defendants. I would note, however, that if the concern in Pare was solely the criminal defendant’s fundamental constitutional rights, we would not have held that “a trial court is required to conduct an individual poll of the jury pursuant to a timely request by either party.” (Emphasis added.) State v. Pare, supra, 253 Conn. 625; id., 639 (“a violation of a party’s timely polling request requires automatic reversal” [emphasis added]). A fair reading of Pare suggests that our conclusion that certain interests are substantial enough to establish an absolute right to poll the jury— the violation of which requires automatic reversal— was based on the interests of both the criminal defendant and the interests of the state.
Additionally, as the facts of this case demonstrate, civil actions frequently involve extremely important interests. The plaintiff has brought a wrongful death action pursuant to § 1983 of title 42 of the United States Code. See
The majority also minimizes the extent to which Pare considered the impracticality of subjecting a trial court’s refusal to poll the jury to harmless error analysis. In light of this impracticality, by subjecting atrial court’s refusal to poll the jury to harmless error analysis, we effectively allow a trial court to violate the rule with impunity. The conclusion that
The majority concludes that the trial court’s failure to poll the jury was harmless because “there is no evidence suggesting that the jury was in any way divided.” Thus, the majority suggests that a requesting party might show harm by pointing to evidence of juror confusion or protracted deliberations. In Pare, however, this court rejected the contention that a reviewing court can assess the harm of a failure to poll by looking for outward manifestations of a lack of unanimity.6 See State v. Pare, supra, 253 Conn. 637 (rejecting state’s argument that “in the absence of any indication of dissent, the jury’s affirmative responses as a body provides a sufficient guarantee of unanimity to render the lack of individual interrogation harmless”); see also Judson v. Brown, 98 Conn. App. 381, 383, 908 A.2d 1142 (2006) (“[t]he length of time that a jury deliberates has no bearing on nor does it directly correlate to the strength or correctness of its conclusions or the validity of its verdict” [internal quotation marks omitted]).
Jury polls, moreover, verify not only that a verdict is unanimous, but also that it is free from coercion. See State v. Allen, 289 Conn. 550, 572, 958 A.2d 1214 (2008) (“[p]olling enables the court to ascertain with certainty that a unanimous verdict has in fact been recorded and that no juror has been coerced or induced to agree to a verdict to which he [or she] has not fully assented” [internal quotation marks omitted]); see also United States v. Gambino, 951 F.2d 498, 502 (2d Cir. 1991) (“[t]he purpose of a jury poll is to test the uncoerced unanimity of the verdict by requiring each juror to answer for himself, thus creating individual responsibility, eliminating any uncertainty as to the verdict announced by the foreman” [internal quotation marks omitted]), cert. denied sub nom. D‘Amico v. United States, 504 U.S. 918, 112 S. Ct. 1962, 118 L. Ed. 2d 563 (1992). Because we so carefully protect jury deliberations by limiting intrusions into the secrecy of the process, it is doubtful that a party outside of the jury could ever point to evidence of juror coercion.7
By applying harmless error review in this case, the majority has effectively interpreted
In my view, we do not promote any notion of fairness when we allow a trial court to ignore a mandatory rule of practice, thereby depriving the requesting party of the opportunity to test the validity of a verdict, and then conclude that the violation was harmless because the requesting party has not produced any evidence that the verdict was tainted. Cf. S. Goldberg, “Harmless Error: Constitutional Sneak Thief,” 71 J. Crim. L. & Criminology 421, 442 (1980) (“[l]awyers should pause at the proposition that government can violate a basic restriction upon itself and, through a court, tell the individual who was the beneficiary of the restriction: ‘no harm-no foul’ ”). For the foregoing reasons, I respectfully dissent.
The plaintiff appeals in her capacity as administratrix of the estate of her deceased son, Bryant Wiseman.
Although this is our first opportunity to consider whether the need for a remedy for the denial of a party’s right to poll a civil jury established in
The majority also points to the fact that New York and Oregon are the only other states with mandatory polling provisions whose courts have found the failure to poll in a civil case to be per se reversible error. Duffy v. Vogel, supra, 12 N.Y.3d 177 (“[hjarmless error analysis in this context would amount to no more than a speculative exercise, impermissibly substituting the judgments of judges for those that would have been made and disclosed by jurors had their verdict been properly pronounced in open court”); Sandford v. Chevrolet Division of General Motors, 292 Or. 590, 614, 642 P.2d 624 (1982) (impossible to determine whether failure to correctly poll jury was harmless).
Connecticut is distinguishable from many of the other states to which the majority refers. First, this court has previously held that the violation of the right to poll the jury in the criminal context is grounds for automatic reversal. See State v. Pare, supra, 253 Conn. 639. Second, one of the purposes of jury polls is to ensure unanimity, and we are among the minority of states that require verdicts in civil actions to be unanimous. See
If there is a logical or consequential distinction between the state’s interest in securing a criminal conviction and a plaintiffs interest in a § 1983 action in redressing alleged constitutional violations resulting in the death of an individual in state custody, the majority has failed to explain what that distinction might be. Moreover, even if Pare was based solely on the criminal defendant’s interest in protecting his constitutional right to a unanimous verdict, the right to a unanimous verdict is no less important in a civil case. Indeed, the majority makes no attempt to explain why a criminal defendant’s liberty interest is substantially more important than an individual’s interests in remaining free from excessive physical force and receiving adequate medical care while in state custody.
At least one state has accounted for the difficulty in showing what harm a refusal to poll may cause by easing the burden of proof. See Levine v. Gallup Sand & Gravel Co., 82 N.M. 703, 704, 487 P.2d 131 (1971) (“[w]e will accept the slightest evidence of prejudice, and all doubt will be resolved in favor of the party claiming prejudice” [internal quotation marks omitted]); see also Duffy v. Vogel, supra, 12 N.Y.3d 180 (Smith, J., dissenting) (discussing risk that trial judges “will be tempted to reject requests for jury polls, knowing that the harmlessness of the error will protect them from reversal” and considering, as precaution, “limiting the application of the harmless error doctrine to cases where there is a particularly strong reason to think the jury poll would not have changed the result”).
A Chip Smith instruction is given when the jury cannot reach a unanimous verdict. State v. O’Neil, 261 Conn. 49, 60, 801 A.2d 730 (2002) (“[Chip Smith instruction] makes clear the necessity, on the one hand, of unanimity among the jurors in any verdict, and on the other hand the duty of careful consideration by each juror of the views and opinions of each of his fellow jurors” [internal quotation marks omitted]). That instruction is given in both civil and criminal cases. Tough v. Ives, 162 Conn. 274, 278, 294 A.2d 67 (1972); see Wheeler v. Thomas, 67 Conn. 577, 580, 35 A. 499 (1896) (approving Chip Smith instruction in civil case). Yet, in Pare, we implicitly rejected the proposition that the need for such an instruction would demonstrate harm from a failure to poll the jury.
The majority’s harmless error analysis focuses on the absence of any indication that the jury lacked unanimity without ever addressing or considering the possibility of juror coercion. Indeed, the majority fails to acknowledge that jury polls also serve to ensure that verdicts are free from coercion.