State v. Lewis

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****************************************************** The officially released date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the officially released date appearing in the opinion. In no event will any such motions be accepted before the officially released date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** STATE OF CONNECTICUT v. ANDREAS P. LEWIS, JR. (AC 33198) Alvord, Bear and West, Js. Argued February 8 officially released March 13, 2012 (Appeal from Superior Court, judicial district of Waterbury, Crawford, J.) James B. Streeto, assistant public defender, for the appellant (defendant). Rocco A. Chiarenza, deputy assistant state s attorney, with whom, on the brief, were Maureen Platt, state s attorney, Susan C. Marks, supervisory assistant state s attorney, and David A. Gulick, senior assistant state s attorney, for the appellee (state). Opinion PER CURIAM. The defendant, Andreas P. Lewis, Jr., appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and breach of the peace in the second degree in violation of General Statutes § 53a-181 (a) (1).1 On appeal, the defendant claims that the court improperly denied his timely request to poll the jury.2 We agree and, therefore, reverse the judgment of the trial court. The following facts are necessary for our disposition of the defendant s claim. Following deliberations, the jury returned a guilty verdict and the court then ordered the verdict accepted and recorded. After the jury returned its verdict, the court provided further instructions to the jury and thanked it for its service. During those instructions, the defendant interjected to request a poll of the jury. Despite the defendant s request to conduct a poll pursuant to Practice Book § 42-31,3 the court stated that the jury already had been discharged, declined to poll the jury and dismissed the jury to the assembly room. The defendant asked that the record reflect that the jury still was present in the courtroom when the defendant made his request to poll the jury, and the court replied that the record would so reflect. Clearly, the record reflects that the defendant requested that the jury be polled and that the court denied the request. Our review of the defendant s claim necessarily includes consideration of [whether the defendant made] a timely request to poll the jury. A request to poll the jury is timely within the parameters of Practice Book § 42-31 if it is submitted prior to the jury s discharge. [T]he discharge of a jury is not triggered by its departure from the courtroom, but, rather, by the separation and dispersal of its individual members. State v. Pare, [253 Conn. 611, 629 30, 755 A.2d 180 (2000)]. Prior to the time jurors separate and disperse, they are unlikely to come into contact with outside influences that could taint any subsequent poll. (Emphasis in original.) State v. James P., 96 Conn. App. 93, 100, 899 A.2d 649, cert. denied, 280 Conn. 910, 908 A.2d 540 (2006). In making his claim, the defendant relies on our Supreme Court s decision in State v. Pare, supra, 253 Conn. 611, in which it held that pursuant to [Practice Book] § 42-31, a trial court s obligation to poll the jury upon a timely request from either party is mandatory ; State v. Pare, supra, 621; and that a violation of that rule of practice requires automatic reversal of the judgment. Id., 639. The state concedes that the defendant made a timely request to poll the jury while the jury remained in the courtroom, which mandated that the court order the clerk of the court to poll the jurors individually. Further, the state concedes that in accor- dance with Pare, the court s refusal to poll the jury after a timely request is not subject to harmless error analysis and requires automatic reversal. See id., 638 39. We agree and therefore conclude that the court s denial of the defendant s timely request to poll the jurors individually requires automatic reversal of the judgment. The judgment is reversed and the case is remanded for a new trial. 1 The court sentenced the defendant to a total effective sentence of thirteen years incarceration, suspended after eight years, and five years probation. 2 On appeal, the defendant also claims that (1) the court failed to take steps to ensure that the defendant received a proper night s sleep during the trial, therefore depriving him of his constitutional rights, (2) the court improperly barred the defendant from presenting a critical witness under a sequestration order and (3) the state s attorney committed prosecutorial impropriety during the trial and in his closing argument to the jury. We do not reach the merits of the defendant s other claims because they are unlikely to arise on retrial. See State v. Jones, 289 Conn. 742, 769 n.25, 961 A.2d 322 (2008). 3 Practice Book § 42-31 provides: 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. The poll shall be conducted by the clerk of the court by asking each juror individually whether the verdict announced is such juror s verdict. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or they may be discharged. We note that § 42-31 applies only in criminal trials.

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