State v. JR

• Decision Date: 14 May 2002
• Docket Number: (AC 21053)
• Citation: 69 Conn. App. 767,797 A.2d 560
• Parties: STATE OF CONNECTICUT v. J.R.
• Court: Connecticut Court of Appeals

69 Conn. App. 767

797 A.2d 560

STATE OF CONNECTICUT v. J.R.¹

(AC 21053)

Appellate Court of Connecticut.

Argued February 22, 2002.

Officially released May 14, 2002.

Dranginis, Bishop and Daly, Js.

Joseph Visone, special public defender, for the appellant (defendant). Bruce R. Lockwood, assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Cara F. Eschuk, senior assistant state's attorney, for the appellee (state).

Opinion

BISHOP, J.

The defendant, J.R., appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70, three counts of sexual assault in the second degree in violation of General Statutes § 53a-71, two counts of sexual assault in the third degree in violation of General Statutes § 53a-72a and two counts of risk of injury to a child in violation of General Statutes § 53-21. The defendant claims that the court improperly (1) denied his timely request to poll the jury and (2) admitted into evidence hearsay testimony. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. During her early childhood, the victim, a biological daughter of the defendant, lived in Puerto Rico with her grandmother. At the age of eight, the victim moved to Waterbury and lived with the defendant, her stepmother and her two half-siblings. In 1992, when she was eleven years old, the victim was sexually abused by the defendant. The sexual abuse continued over the next four years while her stepmother was at work.

In 1997, the victim reported the abuse to a counselor at her school. The counselor contacted investigators at the department of children and families (department), who notified the police. The defendant subsequently was arrested and charged with nine counts of sexual misconduct. Thereafter, a jury found the defendant guilty of all nine counts, and the court sentenced him to a total effective sentence of forty-three years imprisonment, execution suspended after twenty-three years, and fifteen years probation. This appeal followed.

I

The defendant first claims that the court improperly denied his timely request to poll the jury. We disagree.

On December 3, 1999, after the jury returned a verdict finding the defendant guilty of all nine counts, the court queried the foreman regarding the defendant's guilt on each separate count. The clerk then asked the jurors to listen to their verdict as it was accepted and recorded, and the following colloquy ensued:

"The Clerk: So say you, Mr. Foreperson?

"[Foreperson]: Yes.

"The Clerk: So say you all?

"The Jury: Yes.

"The Clerk: Thank you. You may be seated.

"The Court: You may be seated, Mr. [R.] On behalf of the state of Connecticut and the defense, we thank you very much for your diligent performance of your duties as jurors in this case. You are now excused. I ask you for the final time to adjourn to the jury deliberation room, and I will excuse you and have you escorted from the courthouse momentarily."

After the jury left the courtroom, the following exchange took place:

"[Prosecutor]: Your Honor, I'd like to place on [the] record as your clerk asked the final question, `[S]o say you, Mr. Foreperson, so say you all,' that I personally observed each of the jurors individually answering aloud, `yes.'

"[Defense Counsel]: Your Honor, under the Practice Book, I'm entitled to have them polled individually.

"[Prosecutor]: Your Honor, that is correct, but the jury is now being dismissed, and that's— "The Court: You did not request that. And after the verdict was rendered, before I accepted it and ordered it recorded, I specifically paused and watched you in order to give you an opportunity to do that.

"[Prosecutor]: But I would just indicate as I said for the record that I did—I particularly took note of that because of the issue of jury polling, and I was able to observe each of the jurors verbally say, `yes.' I'm not sure that that would have been picked up by the monitor, and that's why I wanted to put it on the record.

"The Court: Thank you.

"[Prosecutor]: Your Honor, may we go on from that? The state has a motion in this case.

"The Court: Yes."

The defendant did not object and made no further comment on the matter.

On February 13, 2001, the defendant filed a motion seeking to rectify a portion of the trial transcript concerning the verdict. The defendant requested that the court reporter be ordered to listen to the audiotapes of the December 3, 1999 proceedings "to clarify if the jurors were still in the jury deliberation room, waiting to be excused by the judge and escorted from the court[house]... when defense counsel stated that he was `entitled to have them polled individually.'" The court denied the motion because the defendant did not allege that the transcript was incorrect and because he was improperly seeking "an order of the court directing the court reporter to create a record based upon her personal recollection of the proceedings of December 3, 1999."

On February 15, 2001, the defendant filed a motion for articulation requesting that the court "articulate [its] decision denying defense counsel's request for a polling of the jury that was made after the jury had returned its verdict in open court and before the jury had been dispersed." The court responded in a written memorandum of decision that "the defendant never asked the court to poll the jury, either before or after the verdict was rendered. Therefore, the court has nothing to articulate...."

Practice Book § 42-31 provides in relevant part: "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...." "[P]ursuant 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, 253 Conn. 611, 621, 755 A.2d 180 (2000).

The issue of whether the court correctly concluded that the defendant never requested a jury poll presents a mixed question of fact and law. State v. Cobb, 251 Conn. 285, 357, 743 A.2d 1 (1999). The court was in a unique position to draw its factual impressions from its observation of the demeanor of counsel and the flow of conversation during the colloquy after the jury had left the courtroom. See State v. Lipscomb, 258 Conn. 68, 74, 779 A.2d 88 (2001). The determination, however, of whether the words used by counsel constituted a clear and unambiguous request for a jury poll presents a legal question. The scope of our review of the court's determination that counsel did not request a jury poll is, therefore, plenary. State v. Cobb, supra, 357-59.

We begin by noting that the prosecutor initially raised the issue of how the individual jurors may have voted when she stated that she had "personally observed each of the jurors individually answering aloud yes." Only then did defense counsel comment that under the rules of practice he was "entitled" to have the jurors polled individually. We conclude that, under the circumstances, the court's response to defense counsel's remark was not the denial of a request to poll the jury, but merely reflected the court's understanding that counsel never asked the court to poll the jury after the verdict was rendered and before it was accepted and recorded. Moreover, nothing further was said to indicate that defense counsel's remark should be construed as a request. Counsel for the defendant did not ask to bring the jury back, did not ask for a ruling and did not take issue with the court's response. There also is no evidence in the record that defense counsel requested a poll at any other time during the proceedings.

Furthermore, the court's conclusion comports with long-standing principles of statutory construction that require a statute to be applied according to its plain meaning and as its words direct. Wendt v. Wendt, 59 Conn. App. 656, 682, 757 A.2d 1225, cert. denied, 255 Conn. 918, 763 A.2d 1044 (2000); Interlude, Inc. v. Skurat, 67 Conn. App. 505, 516, 787 A.2d 631, cert. granted on other grounds, 259 Conn. 925, 793 A.2d 251 (2002). The principles of statutory construction apply with equal force to the rules of practice. State v. Pare, supra, 253 Conn. 622.

The term "request," as used in Practice Book § 42-31, is not defined in our rules of practice. "It is well established that, when determining the meaning of a word, it is appropriate to look to the common understanding of the term as expressed in a dictionary.... This precept ... pertains primarily to the situation where no statutory definition is available." (Citation omitted; internal quotation marks omitted.) State v. Spillane, 255 Conn. 746, 755, 770 A.2d 898 (2001). We, therefore, look to Webster's Third New International Dictionary, which defines the word "request" as "[t]he act of asking for something ... an expression of a desire or wish...."

In construing the language of Practice Book § 42-31 according to its plain and ordinary meaning, we conclude that the defendant was required to make a clear and unambiguous request to poll the jury. An expression of entitlement, without more, is not the equivalent of such a request.²

Our reasoning in Solomon v. Hall-Brooke Foundation, Inc., 30 Conn. App. 129, 619 A.2d 863 (1993), is applicable here. In Solomon, the court determined that the plaintiffs request for "such other relief as the court deems necessary and just" was too amorphous to constitute a claim for money damages. (Internal quotation marks omitted.) Id., 134. In reaching that conclusion, the court relied on Practice Book § 285A, now § 5-2, which provides in relevant part that "[a]ny party intending to raise any question of law which...