State v. Lyons, 11299
| Decision Date | 15 November 1994 |
| Docket Number | No. 11299,11299 |
| Citation | 36 Conn.App. 177,649 A.2d 1046 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. Mark C. LYONS. |
Jerome J. Rosenblum, Asst. Public Defender, for appellant (defendant).
James M. Ralls, Asst. State's Attorney, with whom, on the brief, were Eugene Callahan, State's Atty., and Bruce Hudock, Asst. State's Atty., for appellee (State).
Before HEIMAN, SCHALLER and FREEDMAN, JJ.
The defendant appeals from a judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 1 and burglary in the third degree in violation of General Statutes § 53a-103. 2 The defendant was found not guilty of a separate count of sexual assault in the first degree. On appeal, the defendant claims that the trial court improperly (1) failed to conduct an inquiry into alleged jury misconduct and (2) twice gave the jury a so called "Chip Smith" charge. 3 The defendant's claim concerning the absence of the trial judge from the bench during the voir dire was withdrawn at the time of the oral argument. 4
The jury could reasonably have found the following facts. In September, 1990, the victim met the defendant at a nightclub in Port Chester, New York. Thereafter, a relationship developed between them, and for the next three weeks the defendant and the victim saw each other almost daily. At that time, the victim and the defendant began a voluntary sexual relationship.
In October, 1990, the defendant began looking for an apartment with a friend. In the interim, the victim allowed the defendant to move into her apartment in Greenwich, which she occupied with two roommates. By December, the defendant had stopped working and the relationship began to deteriorate. The financial strain of supporting herself and the defendant eventually became unbearable for the victim. In addition, the defendant began to show signs of jealousy and would become outraged when male friends or exboyfriends called the victim. In order to alleviate their situation, the victim encouraged the defendant to look for work and often loaned him her vehicle so that he could get to job interviews.
By January, 1991, the relationship between the defendant and the victim had become more strained. They fought frequently and the victim decided that she wanted the defendant to leave the apartment, but the defendant refused. On or about February 20, 1991, the victim received a telephone call from the White Plains, New York, police department. She was informed that the defendant had been arrested and that her car had been used in the commission of a crime. The news of the defendant's criminal activities upset the victim sufficiently for her to tell the defendant that their relationship was at an end. The victim collected the defendant's belongings from her apartment and had them removed by a friend of the defendant.
Throughout February, the defendant continued to call the victim, attempting a reconciliation. He claimed that if she would not see him at her apartment, he would follow her to work or to her parents' house. He began sleeping in the victim's basement, and the victim became frightened of the defendant's obsessive behavior.
On three occasions in March, 1991, the defendant appeared uninvited at the victim's apartment and forced her to have sexual intercourse with him. The victim did not report any of these instances to the police because she was afraid of the defendant and because she believed that the defendant would soon be going to jail for the incident in White Plains. She did, however, tell the police that the defendant had been physically abusive and that he had come into her apartment uninvited. On March 27, 1991, she obtained a restraining order against the defendant.
On April 15, 1991, the defendant entered the victim's apartment through a window while she was asleep. The victim awoke to see the defendant standing in the doorway of her bedroom. The defendant entered the room and locked the door. He then turned on the radio and turned up the volume. The victim hurried to pull on a pair of jeans that were on the floor by her bed, but the defendant restrained her from getting dressed. When the victim reminded the defendant that she had a restraining order against him, he laughed and said, When she asked him if he was going to rape her, he replied, "Yes."
The victim curled herself into a ball on the bed so that the defendant could not touch her in a sexual manner. The defendant grabbed her from behind and covered her mouth. He then pulled off her shirt and brassiere, climbed on top of her, and had sexual intercourse with her.
After the defendant ejaculated, he got up from the bed while the victim lay crying. When she got up to go to the bathroom, the defendant followed her and watched her. He then walked her back into the bedroom and had sexual intercourse with her again, despite her sobbing and asking him to stop. As soon as the defendant left, the victim called the police to report that she had been sexually assaulted.
Jury deliberations commenced on November 19, 1991. On November 21, 1991, at approximately 12:10 p.m., the trial court received a note from the jury foreperson stating: As a result of the indication of possible jury deadlock, the trial court gave the jury a "Chip Smith" charge. 5 State v. Smith, 49 Conn. 376, 386 (1881).
At approximately 2:20 p.m., the proceedings resumed and the jury foreperson presented the trial court with another note. This note read as follows: The trial court instructed the jurors that they were not to consider anything not in evidence. The trial court stated in part:
The trial court then repeated the Chip Smith charge and concluded, "Now with that additional instruction I would ask you to retire to the deliberating room and see if you can't agree on a unanimous verdict on all three counts." Once the jury had retired, the trial court asked counsel whether there were any exceptions to its answer to the jury's questions. Counsel for the defendant took exception only to the reference of the court to the case's not being a "popularity contest" between the lawyers but offered no objection to the second Chip Smith charge. 6
At approximately 4:38, the jury returned with a verdict, finding the defendant guilty of one count of sexual assault in the first degree and one count of burglary in the third degree. The jury returned a not guilty verdict on the second count of sexual assault in the first degree. This appeal followed.
The defendant first asserts that the trial court improperly failed to make an inquiry into possible jury misconduct, thereby violating his constitutional right to a fair trial by an impartial jury. The defendant contends that the court should have made such an inquiry, sua sponte, upon receipt of the note concerning possible jury misconduct. Because the issue was not properly preserved at trial and does not meet the requirements for review enumerated in State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), we decline to review the defendant's claim.
Generally, when evidence of possible juror misconduct is brought to the attention of the trial court, the court should determine whether the defendant has been prejudiced. State v. Migliaro, 28 Conn.App. 388, 396, 611 A.2d 422 (1992). " " Id., quoting United States v. Savage, 701 F.2d 867, 871 (11th Cir.1983).
Counsel for the defendant did not, however, request any inquiry of the jury. Upon receipt of the note that a juror considered basing her decision on the absence of specific testimony, the trial court repeated its instruction that the jury consider only that evidence that had been properly admitted at trial. After dismissing the jury for further deliberations, the trial court gave counsel an opportunity to object to its response to the note. Counsel for the defendant objected only to a comment by the trial court that the trial was not a "popularity contest" between the lawyers and that the jury's decision should not turn on which lawyer the jury thought did a better job. Counsel did not request that the jury be polled or that the court make further inquiry into what the juror was considering.
The defendant posits, however, that an inquiry into the possible misconduct should have been undertaken by the trial court sua sponte, thus relieving him of his burden to request such action. In support of this contention, the defendant relies on State v. Migliaro, supra, 28 Conn.App. 388, 611 A.2d 422, and State v. Gonzalez, 25 Conn.App. 433, 596 A.2d 443 (1991), aff'd, 222 Conn. 718, 609 A.2d 1003 (1992). Although both cases...
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State v. Jackson
...defendant's arguments that the instruction as given was imbalanced and lacked critical addition instructions. In State v. Lyons, 36 Conn. App. 177, 188, 649 A.2d 1046 (1994), we stated that the "Chip Smith" charge "in no way coerces dissenting jurors into subverting their opinions to those ......
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State v. Anderson
...has decided that the ''Chip Smith'' charge does not coerce the minority into following the majority verdict. State v. Lyons, 36 Conn. App. 177, 188, 649 A.2d 1046 (1994). Our Supreme Court recently upheld the repeated delivery of a ''Chip Smith'' charge in a situation where alleged jury mis......
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State v. Davis
...that it suggested to the jury that a majority rule should be given some kind of greater weight. Our decision in State v. Lyons, 36 Conn. App. 177, 188, 649 A.2d 1046 (1994), is dispositive of this claim. In Lyons, we stated: ''[The Chip Smith charge] in no way coerces dissenting jurors into......
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State v. Colon, 13022
...elements of a crime, but deals only with the role of the jurors and their duties during the deliberative process." State v. Lyons, 36 Conn.App. 177, 189, 649 A.2d 1046 (1994). In Lyons, this court concluded that a challenge to a similar charge, given twice, fails the second prong of Golding......