State v. Gullette

• Decision Date: 22 December 1964
• Docket Number: No. CR,CR
• Citation: 209 A.2d 529,3 Conn.Cir.Ct. 153
• Parties: STATE of Connecticut v. George E. GULLETTE. 2-14185.
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division

Page 529

209 A.2d 529

3 Conn.Cir.Ct. 153

STATE of Connecticut v. George E. GULLETTE.

No. CR 2-14185.

Circuit Court of Connecticut, Appellate Division.

Argued Aug. 17, 1964.

Decided Dec. 22, 1964.

Louis I. Gladstone, Bridgeport, for appellant (defendant).

John D. Ward, Asst. Prosecuting Atty., for appellee (state).

KOSICKI, Judge.

The defendant was found guilty, after a trial before a jury, of an attempt to break and enter with criminal intent, in violation of § 53-77 of the General Statutes. In his appeal, the defendant has assigned nine errors which we shall examine in detail, after first considering what appears to be the principal issue, that is, whether the court should have declared a mistrial when, upon a poll of the jury, one juror signified her verdict as being 'Not Guilty.' The factual situation pertaining to that issue is not in dispute.

The case was tried before a jury of eleven, which procedure, we assume, was by stipulation. After one hour of deliberation, following the court's charge, the jury returned and announced that they were unable to reach a unanimous verdict. The court then instructed the jury in accordance with the approved language in the court's instructions pertaining to a juror's deliberative duties in State v. Smith, 49 Conn. 376, 386, and returned the jury for further consideration. One and one-half hours later, the jury made known, through their foreman, that they had arrived at a verdict, and thereupon they reconvened in open court. The following then took place:

'The court: Do you gentlemen agree that all jurors are present? Mr. Gladstone: Yes, your Honor. The court: Inquire of the verdict, if they have reached a verdict. The clerk: Are you agreed upon a verdict in the case of State versus George E. Gullette? What say you, is he guilty or not guilty of the crime charged in the complaint? The foreman: Guilty as charged. The court: You may accept and record the verdict. Mr. Gladstone: May I request that the jury be polled? The court: Yes. Call the roll and ask the jury whether the verdict is guilty or not guilty.' The first nine jurors announced their verdict as 'Guilty.' When the tenth juror was asked the question whether she found the defendant guilty or not guilty, the following took place: 'Mrs. Ferguson: It's difficult for me. I came---- Verdict came unanimous. I was the last one that held out. The court: Madam, you are asked whether the verdict is guilty or not guilty. Mrs. Ferguson: Not guilty. Mr. Gladstone: If your Honor please, under the circumstances I would move for a mistrial. The court: Well, I thought the court made it clear that your verdict, of course, must be a unanimous verdict. Now, at this hour I am not going to ask you to go back because it's getting very late. I know you can't have a very good schedule for tomorrow. Mr. Gladstone: That's correct. I have to be in the Legislature tomorrow. The court: Could you have an associate from your office come down? Mr. Gladstone: Well, if your Honor please, in view of the fact that the jury has been polled and they have reported a verdict and I asked that the jury be polled and one juror, Mrs. Ferguson, indicated that her decision was not guilty, under the circumstances I would think that a mistrial is in order. The court: Well, I am not certain that that follows. Have you completed the poll of the jury? The clerk: Mrs. Mary Malis guilty or not guilty? Mrs. Malis: Guilty. The clerk: That completes it, your Honor.

'The court: All right. I am going to read this again to you members of the jury. Although the verdict to which each juror must, of course, agree it must be his own conclusion and not a mere acquiescence in the conclusion of his fellows. Yet, in order to bring twelve minds to a unanimous result, the jury should examine with candor the questions submitted to them and with true regard in deference to the opinions of each other. In conferring together the jury ought to pay proper respect to each other's opinions and listen with candor to each other's arguments. If much the larger number of the panel are for conviction, a dissenting juror should consider whether the doubt in his or her mind is a reasonable one which makes no impression upon the minds of so many men and women equally honest, equally intelligent who have heard the same evidence with the same attention and with equal desire to arrive at the truth under the sanction of the same oath. On the other hand, if a majority are for acquittal, the minority ought seriously to ask themselves whether they may not reasonably or ought not to doubt the conclusion of a judgment which is not concurred in by most of those with whom they are associated and distrust the weight or sufficiency of that evidence which fails to carry conviction to the mind of their fellows. So, to boil it all down I reiterate your verdict must be a unanimous verdict. I am sorry. I know it's not a happy lot for any of us at this late hour, but I have to ask the jury again to return to the deliberating room and reconsider their verdict. If they can't arrive, then, of course, they should say so through their foreman.'

After this instruction to the jury, considerable colloquy ensued between the court and defense counsel, in which objection was made against further consideration of the case by the jury. This discussion took place before the jury. The foreman of the jury then interrupted, stating that when the jury left the deliberating room the verdict was unanimous, and the following took place: 'Mr. Gladstone: If your Honor please, I am going to object to this. The foreman: Absolutely. It was agreed upon. The court: Wait a minute. Let's not argue in the presence of the jury. The jury may retire to their room.' The defendant again objected to the procedure and took an exception to the court's adverse ruling. He then moved for a mistrial, and the motion was denied. Four minutes after the jury retired they returned to the courtroom to announce their verdict, which was 'Guilty.' The jury was again polled and each juror announced his verdict to be 'Guilty.' The court then inquired of the jurors: 'Is this your verdict of guilty and so say you all?' The response does not appear, but evidently there was no dissenting voice, otherwise the transcript should disclose it or defense counsel would have objected. The verdict was then ordered accepted and recorded.

The question before us is apparently one of first impression in Connecticut. The decisions we have examined all present a situation where the request to poll the jury had been denied. There is no disagreement as to the rule which prevails in our state, that a defendant in a criminal case is not entitled to an individual poll of the jury as a matter of right. State v. Tucker, 146 Conn. 410, 415, 151 A.2d 876; State v. DiPietro, 120 Conn. 537, 540, 181 A. 716; State v. Hoyt, 47 Conn. 518, 533. Under our practice, the presiding judge has absolute discretionary power to grant or deny a motion for a poll of the individual jurors. State v. Hoyt, supra; note, 49 A.L.R.2d 619, 627. Where the motion is granted, as in this case, the precise question arises as to what action the court is empowered or obliged to take when, after there was an announcement of a unanimous verdict by the foreman, and after the verdict had been accepted and ordered recorded by the presiding judge, an individual juror, on being polled, announced a contrary verdict. Or, to state the question more exactly: Where such an individual announcement is made which is inconsistent with the verdict first stated, is it mandatory on the court to declare a mistrial, or is it within the discretion of the court to have the jury retire for further consideration and for a new announcement of their verdict?

On the question before us there appears to be considerable conflict of authority. In Bruce v. Chestnut Farms-Chevy Chase Dairy, 75 U.S.App.D.C. 192, 126 F.2d 224, 225, the rule is stated as follows: 'There can be no question of the right of a juror, when polled, to dissent from a verdict to which he has agreed in the jury room, and when this happens, the jury should either be discharged or returned to their room for further deliberation.' To the same effect is Solar v. United States, 86 A.2d 538, 541 (D.C.Mun.App.), and Emmert v. State, 127 Ohio St. 235, 237, 187 N.E. 862, 90 A.L.R. 242. In case of such dissent, 'it is generally held that the jury should be sent out to deliberate further although there is also authority to the effect that under such circumstances the court must declare a mistrial.' 50 Am.Jur. 705, Trial § 1019, and cases cited.

In certain other jurisdictions the strict common-law rule appears to be followed and no reconsideration is permitted after the verdict was announced in court and a dissent expressed by one or more jurors after an individual poll. See such cases as Kramer v. Kister, 187 Pa. 227, 40 A. 1008, 44 L.R.A. 432; Commonwealth v. Zierenberg, 133 Pa.Super. 112, 1 A.2d 918; Mattice v. Maryland Casualty Co., D.C. Wash., 5 F.2d 233; Commonwealth v. Lemley, 158 Pa.Super. 125, 44 A.2d 317. In each of these cases, it was declared generally, as a guiding principle, that a verdict obtained upon a reconsideration, after lack of unanimity appeared when the verdict was first announced, would be likely to subject such verdict to suspicion of coercion or improper influences, and that the integrity of the verdict as well as the preservation of secrecy in jury deliberations required that a mistrial be directed and a new trial ordered.

Although our Supreme Court of Errors has not decided the particular question before us, it may be said fairly that the import of our state decisions dealing with irregularities affecting verdicts and jury deliberations would seem to indicate that in such situations the common law is not strictly followed. That would certainly be the case where no prejudice is shown to the losing party and no advantage indicated in favor of the...