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STATE OF CONNECTICUT v. JASON ANDERSON

(AC 35432)

Keller, Prescott and Schaller, Js.

Argued October 16, 2014—officially released June 30, 2015

(Appeal from Superior Court, judicial district of

Ansonia-Milford, Markle, J.)

Daniel P. Scholfield, with whom was Hugh F. Keefe,

for the appellant (defendant).

Timothy J. Sugrue, assistant state’s attorney, with

whom, on the brief, was Kevin D. Lawlor, state’s attorney, for the appellee (state).
Opinion

PRESCOTT, J. This criminal prosecution arises out

of a fatal motor vehicle accident. The defendant, Jason

Anderson, appeals from the judgment of conviction,

rendered following a jury trial, of two counts of misconduct with a motor vehicle in violation of General Statutes § 53a-571 and reckless driving in violation of

General Statutes § 14-222. The defendant claims that

the trial court improperly (1) declined to direct a judgment of acquittal on certain counts of the information

in light of the jury’s answer to an interrogatory, which

answer was inconsistent with the jury’s verdicts of

guilty with respect to those counts; (2) vacated the

jury’s verdicts and ordered the jury to resume deliberations; and (3) coerced or misled the jury into returning

guilty verdicts after it had resumed its deliberations.2

Because we agree in part with the defendant’s second

and third claims, we reverse in part the judgment of

the trial court.

The jury reasonably could have found the following

facts. At approximately 2 a.m. on June 12, 2009, the

defendant, an on-duty Milford police officer, was

returning from West Haven, where he and other officers

had earlier been dispatched to provide assistance to

the West Haven Police Department in dealing with a

public disturbance. On his return to Milford, the defendant drove his cruiser westbound on the Boston Post

Road in Orange at an extremely high rate of speed,

despite the fact that he was not responding to any calls

for assistance, and neither his emergency lights nor

siren was activated. Although the posted speed limit

was forty miles per hour, the defendant’s speed on

the Boston Post Road at times exceeded ninety miles

per hour.

As the defendant approached the intersection of Boston Post Road and Dogwood Road in Orange, a Mazda

driven by David Servin and also occupied by Ashlie

Krakowski approached the same intersection from the

opposite direction. Both Servin and Krakowski were

nineteen years of age. Servin was intoxicated, and his

blood alcohol level was 0.14 percent. Without coming

to a complete stop at the flashing red traffic signal at

the intersection or yielding to oncoming traffic, Servin

then attempted to turn left onto Dogwood Road in front

of the defendant’s cruiser. Although the defendant

applied his brakes approximately one second before

the vehicles collided, the defendant’s cruiser struck the

Mazda at a high rate of speed in the right front passenger

door. The impact caused the Mazda to roll over, and

Krakowski was ejected from the vehicle. The defendant’s cruiser also sustained extensive damage.

Both Servin and Krakowski died as a result of their

injuries sustained in the collision. The defendant was

injured, taken by ambulance to a hospital, and released
later that morning.

The defendant subsequently was charged in an information with two counts of manslaughter in the second

degree in violation of General Statutes § 53a-56 (a) (1)3

in connection with the deaths of Servin and Krakowski,

and one count of reckless driving in violation of § 14-

222. Counts one and two pertained to the deaths of

Servin and Krakowski, respectively. Following a jury

trial, the jury unanimously found the defendant not

guilty of both counts of manslaughter in the second

degree, guilty of two counts of the lesser included

offense of misconduct with a motor vehicle, and guilty

of reckless driving.

The issues raised by the defendant in this appeal arise

from a series of events that occurred primarily after

the jury began deliberations. We, therefore, set forth

the procedural history related to the jury deliberations

in detail.

Prior to the commencement of jury deliberations,

the court asked both parties whether they intended to

request any interrogatories and gave them until the next

day to submit any proposals. The following day, the

defendant submitted a proposed interrogatory. The proposed interrogatory asked: ‘‘Did the conduct of [Servin]

constitute an intervening cause of the automobile collision?’’ The interrogatory included an option for the

jury to check either ‘‘yes’’ or ‘‘no.’’ After accepting the

interrogatory without objection, the court instructed

the jury.

As to counts one and two, the court instructed the

jury on the elements of manslaughter in the second

degree and the lesser included offenses of misconduct

with a motor vehicle and negligent homicide with a

motor vehicle. The court stated: ‘‘As to the first lesser

included offense of misconduct with a motor vehicle;

again, I emphasize, if you unanimously find the defendant not guilty of the crime of manslaughter in the

second degree in both count one and count two, you

shall then go to consider the lesser offense of misconduct with a motor vehicle in violation of § 53a-57. . . .

If . . . you have unanimously found the defendant not

guilty of the crime of misconduct with a motor vehicle,

then you should go on to the next step and consider

the lesser offense of negligent homicide with a motor

vehicle, in violation of General Statutes § 14-222a. Do

not consider this offense unless and until you have

unanimously found the defendant not guilty of misconduct with a motor vehicle.’’

The court then instructed the jury on the elements

of each offense. Additionally, the court discussed the

doctrine of intervening cause and instructed the jury

to apply it to counts one and two, including each lesser

included charge it was to consider. Specifically, the

court charged the jury as follows: ‘‘The defendant, Jason
Anderson, claims that his conduct was not the proximate cause of [Servin’s] or [Krakowski’s] deaths

because his acts did not set in operation the factors

which caused the deaths. The defendant claims that

the acts of [Servin], by his operating the motor vehicle

with a blood alcohol level of 0.14 [percent] and by failing

to stop at the blinking red light and by failing to yield

the right-of-way to oncoming vehicles, constitutes an

intervening cause which caused the death of both [Servin] and [Krakowski]. Now, this is a question of fact

for you, as jurors, to determine. If you find that the

state has not proven that it was the defendant’s acts

which set in operation the factors that caused the death,

then you cannot find the defendant guilty. If you find

that it was the acts of others which have actually set

in operation the factors which caused the death in this

case, you must find these acts to be an intervening

cause. If you determine that an intervening cause exists

and caused the death in the case, then the defendant’s

conduct, reckless or not, cannot legally be the proximate cause of [Servin’s] or [Krakowski’s] death.’’

At the conclusion of the jury instructions, the court

stated: ‘‘[T]here is one other matter I almost forgot,’’

referring to the interrogatory submitted by the defendant. The court failed to explain the content or purpose

of the interrogatory, or how it related to the court’s

instructions regarding the substantive offenses. The

court simply instructed the jury as follows: ‘‘It’s going

to be marked as a court exhibit, and it’s labeled as an

interrogatory. The foreperson, on behalf of the jurors,

will answer this one question before coming out and

returning the verdict. You’ll fold that interrogatory in

half, hand it to the marshal and the marshal will hand

it to the clerk, all right. So, there will be one question

which calls for a yes or no answer, all right.’’ Jury

deliberations began shortly thereafter. The court did

not instruct the jury that its answer to the interrogatory

must be unanimous. It also did not explain, with respect

to the interrogatory, that the state had the burden to

prove beyond a reasonable doubt that Servin’s conduct

was not an intervening cause.

A short time after commencing deliberations, the jury

sent a note to the court asking whether the issue of

intervening cause was applicable only to the charge of

manslaughter in the second degree in counts one and

two, or if it also was to be considered in conjunction

with the lesser included charges of misconduct with a

motor vehicle and negligent homicide with a motor

vehicle. The court referred the jury to two pages of its

instructions. That portion of the instructions stated that

intervening cause was to be applied to counts one and

two, including each lesser included offense. The jury

then returned to its deliberations.

Sometime thereafter, the jury sent a second note to

the court stating that it had reached a verdict. The
jury returned to the courtroom and the verdicts were

announced by the foreperson. As to counts one and

two, pertaining to the respective deaths of Servin and

Krakowski, the jury found the defendant not guilty of

both counts of manslaughter in the second degree. As

to the death of Servin (count one), the jury found the

defendant not guilty of misconduct with a motor vehicle, but guilty of the lesser included offense of negligent

homicide. As to the death of Krakowski (count two),

the jury found the defendant guilty of misconduct with

a motor vehicle. With respect to count three, the jury

found the defendant guilty ofreckless driving. The court

then accepted and recorded the verdicts. The court

did not, at this time, review the jury’s answer to the

interrogatory or make any inquiries of the jury with

respect to it.

The court asked the jury to return to the deliberation

room. After the jury left the courtroom, the court then

reviewed the answer to the interrogatory and stated:

‘‘Counsel, the interrogatory came back and the question

was, did the conduct of [Servin] constitute an intervening cause of the automobile collision, and the answer

was yes.’’ The court noted a perceived conflict between

the guilty verdicts and the answer to the interrogatory:

the guilty verdicts and answer to the interrogatory

appeared to simultaneously find the defendant guilty

on the lesser included charges in counts one and two

and relieve him of criminal responsibility on those

same charges.

The defendant requested that the court vacate the

guilty verdicts on the lesserincluded charges as to count

one and two because those verdicts were inconsistent

with the jury’s answer to the interrogatory, and render

a judgment of acquittal on those charges. In response,

the state asked that the jury be reinstructed and have

the opportunity to resolve the inconsistency. After discussing these issues, the court stated that it was inclined

to vacate its order accepting the verdicts, reinstruct the

jury, and send the jury back for further deliberations

on all counts. Specifically, the court stated: ‘‘Because

the court is concerned with the inconsistency in a very

basic legal principle of causation and intervening cause,

the court feels that it is obligated to, at this point, vacate

my order accepting the verdict, and I will do that at

this point in time. I am going to vacate the acceptance

of that verdict. The court has decided that it is going

to reinstruct the jurors as to both the causation issue

and the instruction on intervening cause, and, second,

as to the inconsistency that applied between count one

and two finding a different mental state of the defendant

in each of those charges. So, those are my intentions.

I have given each side, the state and [defense counsel],

a copy of the proposed instruction. I have made some

minor changes, and I’ll say minor. I’ll hear from both

sides, first from the state.’’4
The state agreed with the court’s position.5 The defendant objected to the court’s intended plan. Specifically,

he requested that the court vacate the guilty verdicts

and render a judgment of acquittal on those charges.

The defendant further argued that reinstructing the jury

as to intervening cause would implicitly convey to the

jury that it must have made a mistake and that it could

rectify the mistake by simply changing its interrogatory

answer from ‘‘yes’’ to ‘‘no.’’ The defendant argued that

such a course would be highly prejudicial and, therefore, renewed his oral motion to vacate the guilty verdicts because of the inconsistency of the answer to the

interrogatory relative to the guilty verdicts, and asked

that the court render judgment of acquittal as to the

guilty verdicts on the lesser included charges in counts

one and two.

The court ultimately denied the motion, stating: ‘‘I

am going to deny that because of the reason that this

case went to the jurors. I feel that there is an inconsistency, but the jurors should render a decision. I am not

sure if they just do not understand the legal principle,

as I explained it to them. But certainly it is within the

province of the jury to have an opportunity to correct

and to convey to us their intentions in this case. So, I

am very reluctant to just cast aside the jurors’ verdict

in their place. I think they should be given the opportunity to explain to the court and to the parties what their

intentions were. As I said, if their intentions were to

find that [Servin], his actions, his conduct, constituted

an intervening cause of the automobile collision, then

in fact that finding would relieve the defendant of all

of the criminal offenses. That may be what they wish

to do, but the way they have rendered this verdict is

legally inconsistent, and I can’t—I am not just going

to set aside their verdict without them having a full

understanding. I believe the best way to address that

is to reinstruct them as to the principles of the law so

that they can render that decision.’’

The court then reinstructed the jury and premised

its reinstruction on the basis of its determination that

the jury’s verdict‘‘[was]inconsistent with the applicable

legal principles,’’ and therefore could not be accepted

by the court. The court first reinstructed the jury on

the doctrine of intervening cause, providing a definition

and articulating the practical implications of a yes or

no answer to the interrogatory. It stated: ‘‘[T]he answer,

yes, to the interrogatory means that the intervening

cause has relieved the defendant of criminal responsibility, and you must find the defendant not guilty as to

counts one and two of the information, and to its lesser

included offenses. . . . [I]f you have found that the

conduct of [Servin] does not constitute an intervening

cause of the accident, only then may you go on to

consider the verdict of guilty to the charges and also

to the lesser included offenses that were outlined in
counts one and two.’’

The court next turned its attention to the second

articulated inconsistency, pertaining to the inconsistent

mental states required to convict the defendant of the

lesser included offenses contained within counts one

and two. The court stated: ‘‘[I]t is inconsistent to find

the defendant guilty of criminal negligence in count one

and find misconduct with a motor vehicle in count two

because those statutes require that you make a different

finding as to the defendant’s mental state at the time

of his actions.’’ In addition, the court outlined the two

mental states and the requirements of each: ‘‘Criminal

negligence requires you to find the defendant failed to

use or exercise reasonable care under the circumstances. The misconduct with a motor vehicle statute

defines the mental state as failing to perceive a substantial and justifiable risk that will occur.’’

Following the reinstruction, the court stated, ‘‘I hope

this helps to clarify some of the inconsistencies that

has led this court not to accept your verdict. Therefore,

and simply once again, the court will not invade in your

findings of facts. However, it is very important that the

jury interrogatory as to causation is consistent with the

ultimate verdict.’’ The jury resumed its deliberations.

Sometime thereafter, the jury sent a note to the court

stating that ‘‘it could not and will not be able to’’ reach

a verdict as to counts one and two. In response, the

court delivered a Chip Smith instruction on the need

to deliberate further. See State v. O’Neil, 261 Conn. 49,

74, 801 A.2d 730 (2002).

The jury resumed deliberations and later sent another

note asking if it could ‘‘rescind’’ its earlier answer to

the interrogatory, which stated that Servin’s conduct

was an intervening cause in the accident. Over objection

from defense counsel, the court determined that the

jury had not yet answered the interrogatory and, thus,

would need to resume deliberations. Accordingly, the

court reasoned that there was nothing to rescind.6 The

court referred the jury back to the prior reinstruction

and asked it to return to its deliberations and answer

the interrogatory question.

Shortly thereafter, the jury sent another note to the

court. This note read: ‘‘Your Honor, [w]ith all due

respect, we, the jurors, still remain in agreement with

the interrogatory statement that [Servin’s] actions contributed to the accident. Our question remains if there

is a distinction between the accident and the deaths.’’

(Emphasis added.) Outside of the presence of the jury,

the court noted to counsel that the jury used the phrase

‘‘contributed to’’ rather than ‘‘intervening cause,’’ and

that the court did not understand the second portion

of the note. The court indicated that it would attempt

to answer this note the following day.

The following day, over objection from defense coun-
sel, the court stated that it intended to resubmit the

interrogatory to the jury: ‘‘I will say this to both counsel,

that it is clearthat when they sent out the note yesterday

they used an incorrect legal term. What they meant I

cannot infer, and that is the reason why I am resubmitting the jury interrogatory because it has the correct

legal term of whether or not they find an intervening

cause. So, in light of the term that they used, contributing factor, it has to be clarified, and that is the purpose

that the court is going to resubmit the interrogatory,

just so the record is clear. And once they have answered

that interrogatory, and since I had already reinstructed

them as to the law, I am giving them the opportunity

to render a verdict. If they are able to render a legally

consistent verdict, this court is bound by that verdict.

If it is not consistent, then this court is going to be

bound by the factual findings, all right.’’7

The court then, in the presence of the jury, gave the

following instruction: ‘‘So, as I indicated, in the first

part of your note you indicated that you had come to

a finding regarding [Servin’s] conduct. Now, at this point

in time the court is going to resubmit to you the jury

interrogatory. It is being resubmitted to you solely for

the purpose that your finding be recorded in writing,

whatever it may be. Now, also I want to indicate to

you—and I’ve instructed you on this on prior occasions,

and let me emphasize this to you once again. You are

the sole finders of fact and that it is only my role to

instruct you as to the law you are to apply to the case.

And because you are the sole finders of fact, you should

not be influenced by my reinstructions or the resubmission of the interrogatory to you, and you should not

interpret it as any indication of an opinion as to how

you should determine the issues of fact. That is for you

alone to decide and, as I indicated, the purpose is to

have this recorded in writing on the interrogatory form.

After you answer this interrogatory, then you should

consider my recent instructions to you, and if you are

able to render a verdict as to counts one and two, you

should send out a note indicating that you are able. If

you hand a note to the marshal—as I say, if you want

to resubmit to the first question, you may also do that.

Once you are able to answer the interrogatory and let

the marshal know if you are able to reach a verdict or

not, then I’ll call you back and we’ll read the interrogatory in open court and a verdict, if you shall have that,

all right.’’

Following its return to deliberations, the jury sent

another note stating: ‘‘[1] The jurors would like a copy

of the transcripts of [the court’s] comments and instruction to the jurors with regard to inconsistency of the

verdicts given by the jurors dated 11/6/12. [2] We would

like a copy of the original interrogatory statement completed by the jurors because it appears that it is worded

differently. [3] The reason we raised the question ‘was

there any distinction between the accident and the
deaths’ is, and based on testimonies, because SOME of

us jurors believe that [Servin’s] actions contributed to

the accident but their deaths are caused by the speed.’’

(Emphasis in original.) The court ordered that the

requested transcripts and original interrogatory be submitted to the jury, and reinstructed the jury regarding

the court’s limited role in juror deliberations as follows:

‘‘I want to emphasize again that the law that I have

given you is what the court’s duty is to do, provide you

with the applicable law. So, that applicable law you

must find to the facts of the case. Whatever you as

jurors find the facts to be, that is for you alone to decide,

all right. So, you find the facts, you take the law as I

have given it to you on the jury charge, and you take

only that law. That is the applicable law and you apply

it.’’ The court did not provide the jury with any instructions regarding whether there was a legally significant

distinction between the accident and the deaths.

Following additional deliberations, the jury sent a

note to the court indicating that it had reached a unanimous verdict. The interrogatory was read first:

‘‘The Clerk: Jury interrogatory. Did the conduct of

[Servin] constitute an intervening cause of the automobile collision? Do you want me to read their answer,

Your Honor?

‘‘The Court: Yes, please.

‘‘The Clerk: No. Signed, the foreperson . . . .’’

The foreperson then announced the verdicts. The jury

unanimously found the defendant not guilty of manslaughterin the second degree as to both counts one and

two. The jury found the defendant guilty of misconduct

with a motor vehicle in violation of § 53a-57 on both

counts one and two, as they pertained to the respective

deaths of Servin and Krakowski. The court accepted

and recorded these verdicts. The court also stated that

it would ‘‘accept the previously rendered verdict of

guilty on count three [reckless driving], and that verdict

shall be accepted and recorded at this time.’’8 The jury

was polled and the verdicts were determined to be

unanimous.

After the jury was excused, the defendant made an

oral motion, pursuant to Practice Book § 42-51, for a

judgment of acquittal. The defendant argued that the

jury had been pressured to change its interrogatory

answer by the instructions given by the court and that

double jeopardy had attached after the jury had

returned its initial verdicts.9 The state maintained that

the initial verdict was inherently flawed and that further

deliberation had been necessary. The court denied the

defendant’s motion and stated: ‘‘Well, first and foremost, I’m going to deny your motion to enter a judgment

of acquittal and to set aside the verdict for the following

reasons: One, the factual basis here was one of which

the jurors could not have legally rendered a verdict the
first time around. It was a legally inconsistent verdict

with their findings. The court, giving great deference

to the jurors who sat here, listened to the evidence,

was assigned with the duties that jurors must to make

certain finding of fact, to weigh the credibility of the

witnesses. There is deference to the jurors to do their

job and for the court not to interfere with their factfinding process. However, when they returned the verdict which was legally inconsistent with their factual

findings, this court had a duty to uphold the law and

also a duty to honor the findings. So, it was very clear

that it was a clarification that was needed to be given

to the jurors, at which time I reinstructed them, the

same instruction that was given out of the same instruction package out of the jury charge as to the meaning

of intervening cause. I think that in their questions they

clearly indicated to the court that they did not have

a clear understanding of the legal implication of the

intervening cause; otherwise, they could not have

reached that inconsistent verdict. So, for the record,

the court did not accept that verdict, that’s all. The

court just could not accept a finding that was legally

inconsistent, reinstructed them as to the law, and sent

them back to perform their duties. At this point in time,

the court now finds that their findings are consistent

after they’ve had an opportunity to re-review the jury

instruction, re-review my instruction to them, and to

consider the evidence in the case. So, the court is going

to do what it needs to do, which is to make sure that

the jurors’ intent is preserved and also honored, and it

is my duty to be bound by the findings, factual findings,

submitted by the jurors. And those are my reasons,

once again, that the verdict was not accepted the first

time around, and it was only accepted by the court

upon a return of a consistent verdict with the law.’’

Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly

declined to direct a judgment of acquittal on counts

one and two of the information and ordered the jury

to resume its deliberations, despite the fact that the

jury’s answerto the interrogatory was inconsistent with

the jury’s verdict of guilty on certain lesser included

offenses contained in those counts. Specifically, the

defendant argues that because the affirmative answer

to the interrogatory regarding intervening cause

appeared to relieve him of criminal responsibility as to

counts one and two, it should be deemed an acquittal

as a matter of law and should have prevailed over the

guilty verdicts on the lesser included offenses under

those counts.10 Accordingly, the defendant argues that

the correct course of action would have been to discharge the jury and then direct judgments of acquittal

on both counts one and two. We are not persuaded.

A
Because some types of inconsistent verdicts are

legally permissible, the defendant’s claim necessarily

requires us to first discuss whether our case law on

inconsistent verdicts required the court to accept the

verdicts as initially returned by the jury and, thus, prevented the court from ordering the jury to resume its

deliberations to eliminate any inconsistency between

the verdicts and the interrogatory. This case law is

generally divided into two categories.

The first category involves cases in which it is claimed

that two convictions are inconsistent with each other

as a matter of law or are based on a legal impossibility.

See, e.g., State v. Nash, 316 Conn. 651, 659, A.3d

(2015). Such convictions, commonly referred to as

‘‘mutually exclusive convictions,’’ are reviewable, and

cannot withstand a challenge if ‘‘the existence of the

essential elements for one offense negates the existence

of [one or more] essential elements for another offense

of which the defendant also stands convicted.’’(Internal

quotation marks omitted.) Id. The present case does

not involve such a claim.11

The second category involves cases in which the

defendant claims that one or more guilty verdicts must

be vacated because there is an inconsistency between

those guilty verdicts and a verdict of acquittal on one

or more counts, or an acquittal of a codefendant. See,

e.g., State v. Arroyo, 292 Conn. 558, 586, 973 A.2d 1254

(2009), cert. denied, 559 U.S. 911, 130 S. Ct. 1296, 175

L. Ed. 2d 1086 (2010); State v. Rosado, 178 Conn. 704,

705, 425 A.2d 108 (1979)(conviction of sale of narcotics,

acquittal of possession of narcotics); State v. Keating,

151 Conn. 592, 593–94, 200 A.2d 724 (1964) (after two

defendants were convicted of conspiracy and one was

acquitted, appealing defendants claimed that their convictions were inconsistent with acquittal of their codefendant), cert. denied sub nom. Joseph v. Connecticut,

379 U.S. 963, 85 S. Ct. 654, 13 L. Ed. 2d 557 (1965). It

is well established that such inconsistent verdicts are

notreviewable and the defendant is not entitled to relief

because ‘‘[when] the verdict could have been the result

of compromise or mistake, we will not probe into the

logic orreasoning of the jury’s deliberations or open the

door to interminable speculation.’’ (Internal quotation

marks omitted.) State v. Hinton, 227 Conn. 301, 313,

630 A.2d 593 (1993).

Our Supreme Court has further reasoned that inconsistent verdicts of this type ‘‘should not necessarily be

interpreted as a windfall to the [g]overnment at the

defendant’s expense. It is equally possible that the jury,

convinced of guilt, properly reached its conclusion [of

guilt] on [one charge], and then through mistake, compromise, or lenity, arrived at an inconsistent conclusion

on another offense. But in such situations the [g]overnment has no recourse if it wishes to correct the jury’s

error; the [g]overnment is precluded from appealing or
otherwise upsetting such an acquittal by the [c]onstitution’s [d]ouble [j]eopardy [c]lause. . . .

‘‘[A]n individualized assessment of the reason for the

inconsistency would be based either upon pure speculation, or would require inquiries into the jury’s deliberations that courts generally will not undertake. . . . [A]

criminal defendant already is afforded protection

against jury irrationality or error by the independent

review of the sufficiency of the evidence undertaken

by the trial and appellate courts.’’ (Citations omitted;

footnote omitted; internal quotation marks omitted.)

State v. Arroyo, supra, 292 Conn. 585.

The present case does not fit into this category either.

Instead, the jury’s initial answer to the interrogatory

creates a possible inconsistency with respect to each

guilty verdict without reference to any other count on

which the defendant may have been convicted or acquitted. In other words, as to each count, the jury seemingly

both convicted and acquitted the defendant. By finding

him guilty either of misconduct with a motor vehicle

or criminally negligent homicide, it must have concluded that the defendant proximately caused the death

of Servin and Krakowski, and yet, the jury simultaneously found, as expressed in the answerto the interrogatory, that the defendant was not the proximate cause

of the collision because Servin’s conduct was an

intervening cause. This apparent inconsistency does

not require any comparison of the jury’s verdict on

different counts but instead seemingly creates an internal inconsistency with respectto the jury’s guilty verdict

on any particular charge. Thus, the principles discussed

in Arroyo that underlie a court’s unwillingness to review

claims of inconsistent verdicts and instead ‘‘let the chips

fall where they may’’ do not pertain to the present case

because we, in fact, are left not knowing whether the

defendant was convicted or acquitted on any of the

charges for which the jury returned a verdict of guilty.

Accordingly, we conclude that our case law on inconsistent verdicts is not dispositive of the defendant’s claim

and does not prevent further consideration by the court

as to how to resolve the apparent inconsistency.

B

The issue whether, in a criminal case, a factual finding

expressed by a jury in an answer to an interrogatory

that relieves a defendant of criminal responsibility

trumps an inconsistent guilty verdict on one or more

of the charges is a question of first impression in this

state. The dearth of authority in Connecticut on this

issue is unsurprising because, as a general rule, jury

interrogatories have not been part of our criminal procedure. See State v. Sitaras, 106 Conn. App. 493, 501, 942

A.2d 1071, cert. denied, 287 Conn. 906, 950 A.2d 1283

(2008); see also State v. Anonymous (1971-3), 6 Conn.

Cir. Ct. 393, 397, 275 A.2d 629 (1971)(the use of interrogatories ‘‘is not appropriate in criminal jury trials’’ and
‘‘[i]t is the duty of a jury to return a general verdict

in a criminal trial’’). Nevertheless, interrogatories have

sometimes been used in criminal cases in Connecticut

and may well be appropriate or required12 in certain

limited contexts, such as when the jury is required to

find certain facts, which are not otherwise an element

of the offense, before a sentence may be enhanced. In

this case, however, neither party asserts that the use

of an interrogatory in the circumstances of this case

was improper. We, therefore, leave to another day the

question of whether a jury interrogatory is appropriate

in this or related contexts.13

To determine whether the court was required to render a judgment of acquittal on the basis of an inconsistency between the answer to the interrogatory and the

guilty verdicts, we look to established double jeopardy

principles and to guidance from other jurisdictions in

answering this thorny, and rarely decided, question.

The fifth amendment to the United States constitution

provides in relevant part: ‘‘No person shall . . . be subject for the same offense to be twice put in jeopardy

of life or limb . . . .’’ ‘‘We have recognized that the

Double Jeopardy Clause consists of several protections:

It protects against a second prosecution for the same

offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it

protects against multiple prosecutions for the same

offense.’’ (Internal quotation marks omitted.) State v.

Colon, 272 Conn. 106, 294, 864 A.2d 666 (2004), cert.

denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116

(2005). The United States Supreme Court has held that

‘‘[p]erhaps the most fundamental rule in the history of

double jeopardy jurisprudence has been that [a] verdict

of acquittal . . . could not be reviewed, on error or

otherwise, without putting [a defendant] twice in jeopardy, and thereby violating the Constitution.’’ (Internal

quotation marks omitted.) United States v. Martin

Linen Supply Co., 430 U.S. 564, 571, 97 S. Ct. 1349, 51

L. Ed. 2d 642 (1977). ‘‘A judgment of acquittal, whether

based on a jury verdict of not guilty or on a ruling by

the court that the evidence is insufficient to convict,

may not be appealed and terminates the prosecution

when a second trial would be necessitated by a reversal.’’ United States v. Scott, 437 U.S. 82, 91, 98 S. Ct.

2187, 57 L. Ed. 2d 65 (1978).

Most of the reported cases involving this species of

double jeopardy law focus on the nature and timing of

the actions by the trial court in granting a motion for

a judgment of acquittal, either in cases tried to the court

or in circumstances in which the jury is deadlocked.

In these cases, the United States Supreme Court has

‘‘emphasized that what constitutes an acquittal is not

to be controlled by the form of the judge’s action.’’

(Internal quotation marks omitted.) United States v.

Martin Linen Supply Co., supra, 430 U.S. 571. Rather,

‘‘[a]n acquittal results from a resolution, correct or not,
of some or all of the factual elements of the offense

charged . . . .’’ (Citation omitted; internal quotation

marks omitted.) State v. Paolella, 210 Conn. 110, 122–23,

554 A.2d 702 (1989), quoting United States v. Martin

Linen Supply Co., supra, 571.

The present case requires this court to analyze, not

the actions of the trial court, but, rather, the jury’s

answer to the interrogatory and determine whether it

should be deemed an acquittal because it represents a

resolution adverse to the state of some or all of the

factual elements of the offense charged. We now turn

to the reported cases that have addressed this question

in the context of an inconsistency between a jury’s

answer to an interrogatory and guilty verdict on one

or more counts of an information or indictment.

The state directs our attention to the decision by the

United States Court of Appeals for the Tenth Circuit in

United States v. Shippley, 690 F.3d 1192 (10th Cir.

2012), cert. denied, U.S. , 133 S. Ct. 901, 184 L.

Ed. 2d 698 (2013). In Shippley, the defendant was

charged with various drug offenses in connection with

his participation in a motorcycle gang. Id., 1193. The

jury returned a verdict finding the defendant guilty of

conspiracy to distribute controlled substances in violation of 21 U.S.C. § 846 but, in response to the District

Court’s special interrogatories, found that the defendant had not conspired to distribute any of the drugs

listed in the indictment. Id. Thus, as the Tenth Circuit

noted, the jury ‘‘[i]n effect . . . both convicted and

acquitted [the defendant] of the charged conspiracy.’’

(Emphasis omitted.) Id.

On appeal, the defendant in Shippley argued that

pursuant to United States v. Powell, 469 U.S. 57, 105 S.

Ct. 471, 83 L. Ed. 2d 461 (1984),14 and United States v.

Dotterweich, 320 U.S. 277, 64 S. Ct. 134, 88 L. Ed. 48

(1943),15 the District Court should have rendered a judgment of acquittal. United States v. Shippley, supra, 690

F.3d 1194. The Circuit Court in Shippley affirmed the

District Court and rejected the defendant’s reliance on

this reasoning and stated that, ‘‘[e]ven accepting for

argument’s sake [the defendant’s] premise that Powell

and Dotterweich implicitly require (rather than permit,

as they hold) a district court to accept a verdict logically

inconsistent as between counts or defendants, that still

does not speak to our case. In our case, it wasn’t just

logically incongruous to enter the jury’s verdict, it was

metaphysically impossible. Powell and Dotterweich

involved logical inconsistencies between counts and

between defendants. However illogical, the verdicts in

those cases could be given full effect. This case, by

contrast, involves an inconsistency on the same count

with the same defendant—an inconsistency that simply could not have been given full effect. Something

had to give in our case that didn’t have to give in these

other cases. To enter an acquittal, the district court
would have needed to disregard the fact that the jury

expressly found [the defendant] guilty. To enter a guilty

verdict, the court would have needed to overlook the

special verdict findings that [the defendant] did not

conspire to distribute any of the drugs at issue in the

case. . . .

‘‘If anything, Powell might even suggest the opposite

conclusion. The [c]ourt in Powell refused to undo the

defendant’s conviction on a compound offense despite

his acquittal on the underlying felony because it was

unclear whose ox ha[d] been gored: the jury’s inconsistent verdict may have favored the government, but it

was equally possible it benefitted the defendant. . . .

That same sort of problem exists here. To enter any

verdict when the jury first returned, the district court

would have had to choose to ‘gore’ one side or the

other—just what Powell suggests courts should not do.’’

(Citation omitted; emphasis altered; internal quotation

marks omitted.) Id., 1195–96. The court in Shippley

explicitly limited its decision to instances ‘‘where a jury

returns a guilty verdict but indicates in its answers to

special interrogatories that the defendant is innocent.’’

Id., 1196.

Although the logic of Shippley is appealing on its

face, we decline to follow it for the following reason.

The court in Shippley explicitly recognized that it ‘‘d[id]

not purport to address other arguments, possibly emanating from the [d]ouble [j]eopardy [c]lause or otherwise, [the defendant] doesn’t raise.’’ Id. In the absence

of a controlling legal principle, such as double jeopardy,

the court in Shippley simply could not find any principled justification for choosing to gore one party’s ox

over the other’s. In the present case, however, the state

concedes that the defendant properly raised a double

jeopardy claim at trial and, thus, Shippley does not

answer whether double jeopardy principles required

the court to gore the state’s ox in these circumstances.16

Although not cited by eitherthe state orthe defendant

in this case, we find the decision of the United States

Court of Appeals for the Eighth Circuit in United States

v. Mitchell, 476 F.3d 539 (8th Cir. 2007), and the decision

of the United States Court of Appeals for the First

Circuit in United States v. Fernandez, 722 F.3d 1 (1st

Cir. 2013), to be much more instructive. In Mitchell, the

defendant was charged with two counts of bankruptcy

fraud arising from his filing of a bankruptcy petition.

United States v. Mitchell, supra, 541. The United States

District Court for the Northern District of Iowa charged

the jury on the substantive criminal law that applied to

each count, including that, in order to be found guilty

on the second count, the government must establish

beyond a reasonable doubt that any false statements

made by the defendant regarding his petition were

‘‘material,’’ that is, the statements ‘‘had a natural tendency to influence, or were capable of influencing the
outcome of the bankruptcy petition.’’ (Internal quotation marks omitted.) Id., 542. The District Court also

submitted to the jury a series of interrogatories related

to each count, including one that specifically asked the

jury if it ‘‘unanimously [found] beyond a reasonable

doubt that one or more of the [statements] were material . . . .’’ (Internal quotation marks omitted.) Id. The

jury was asked to check ‘‘yes’’ or‘‘no’’ in response to this

interrogatory. (Internal quotation marks omitted.) Id.

The jury returned a verdict of guilty as to each count,

but checked the ‘‘no’’ box to this interrogatory, indicating ‘‘that it could not make a unanimous finding beyond

a reasonable doubt that one or more of the false statements [were] material.’’ Id. The defendant subsequently

moved for a judgment of acquittal or, in the alternative,

a new trial. Id., 542–43. The District Court vacated the

guilty verdict on the second count, concluding that

because ‘‘the jury had convicted [the defendant] of violating [the Bankruptcy Code provision] without finding

any materiality . . . the jury’s verdict . . . cannot

stand,’’ and ordered a new trial. (Internal quotation

marks omitted.) Id., 543. The defendant then moved to

dismiss the charge on double jeopardy grounds, but the

District Court denied that motion. Id.

On appeal, the defendant argued that double jeopardy

barred the government from continuing to prosecute

this charge because, in essence, the jury’s answer to

the interrogatory constituted a factual finding made

beyond a reasonable doubt that was fatal to the government’s case. Although the Eighth Circuit essentially

agreed with the defendant’s assertion that the double

jeopardy clause applies not only to verdicts of acquittal

but also to ‘‘final [adverse] adjudications of fully litigated legal issues’’; id., 544; it refused to accord the

jury’s answer to the interrogatory the legal significance

urged by the defendant. Id., 544–45.

In rejecting the defendant’s double jeopardy claim,

the court began its analysis by emphasizing that ‘‘[t]he

burden is on the defendantto demonstrate that the issue

whose relitigation he seeks to foreclose was actually

decided’’ previously by the jury. (Internal quotation

marks omitted.) Id., 544, citing Dowling v. United

States, 493 U.S. 342, 350, 110 S. Ct. 668, 107 L. Ed.

2d 708 (1990). The court then considered the precise

wording of the interrogatory and reasoned: ‘‘The

response to the interrogatory does not suggest that the

jury made a unanimous factual finding with respect to

the materiality of the misstatements. The finding means

one of two things: either(1) the jury unanimously found

the statements immaterial, or (2) some jurors found

the statements material and some jurors found the statements immaterial. In the former case, jeopardy would

attach, and in the latter case jeopardy would not attach.

The language of the interrogatory itself is not susceptible to discerning just what, specifically, the jury found;
we know merely that it was unable to unanimously

agree beyond a reasonable doubt that the statements

were material. There is nothing in the language that

suggests the jury has found beyond a reasonable doubt

that the statements were immaterial.’’ United States v.

Mitchell, supra, 476 F.3d 545. Accordingly, the Eighth

Circuit Court of Appeals concluded that the defendant

had failed to meet his burden to demonstrate that jeopardy attached and affirmed the District Court’s denial

of his motion to dismiss the indictment. Id.

We next turn to the First Circuit’s decision in United

States v. Fernandez, supra, 722 F.3d 1. Fernandez

involved two defendants, Juan Bravo Fernandez

(Bravo) and Hector Martinez Maldonado. Bravo was

found guilty by a jury of (1) conspiracy to travel in

interstate commerce in aid of racketeering (count one),

and (2) interstate travel in aid of racketeering with the

intent to promote bribery in violation of Puerto Rico

law (count two).17 Id., 7. With respect to count one, the

government had alleged that Bravo had conspired to

commit two separate offenses: bribery in violation of 18

U.S.C. § 666 (federal bribery) and traveling in interstate

commerce in violation of 18 U.S.C. § 1952 (Travel Act).

Id. In a special finding with respect to count one, the

jury rejected the federal bribery offense as an object

of the conspiracy and found that he had conspired only

to travel in interstate commerce ‘‘in aid of racketeering

. . . .’’ Id. The only ‘‘racketeering’’ conduct alleged by

the government was bribery in violation of federal and

Puerto Rico laws. Id. The jurors had not been asked to

specify the unlawful purpose of the travel. Id., 29.

With respect to count two, the substantive Travel

Act offense, the jury found Bravo guilty of traveling in

interstate commerce with the intent to commit bribery

in violation of Puerto Rico bribery law, but found that

he did not violate the Travel Act with the intent to

commit federal bribery in violation of 18 U.S.C. § 666.

Id. ‘‘Thus, in both the context of identifying the object

of the alleged conspiracy (§ 666 bribery or Travel Act)

and in the context of choosing the unlawful activity

that was the target of the Travel Act (§ 666 bribery or

bribery under Puerto Rico law), the jury rejected the

allegation that Bravo’s conduct implicated the federal

bribery statute.’’ Id.

The double jeopardy issues in Fernandez came to

the fore because the District Court had granted Bravo’s

posttrial motion for a judgment of acquittal as to count

two, the substantive Travel Act offense, on the ground

that ‘‘the repeal of the Puerto Rico bribery laws before

the trip took place made it impossible for Bravo’’ to have

engaged in conduct that violated one of the elements of

the offense. Id., 7. Accordingly, because the District

Court rejected, as a matter of law, a violation of Puerto

Rico law as a basis for the Travel Act offense, and the

jury factually rejected federal bribery law as a basis of
that offense, the defendant was entitled to a judgment

of acquittal on count two.

Bravo also moved on double jeopardy grounds for a

judgment of acquittal as to count one, the conspiracy

offense. Id., 29. ‘‘His theory was as follows: if the only

target of the Travel Act found by the jury when considering the substantive Travel Act charge (count two) was

to further a violation of the Puerto Rico statutes, and

that targeted activity was not unlawful, there could be

no unlawful conspiracy to violate the Travel Act. In

other words, he argued that the conspiracy count must

be dismissed because the jury verdicts rejecting 18

U.S.C. § 666 as an object of the conspiracy and as a

predicate forthe substantive Travel Act charge left only

the repealed Puerto Rico bribery laws as the crime

the jury could have found as the racketeering activity

alleged to be the target of the Travel Act conspiracy.

In that circumstance, there was no viable predicate

for the Travel Act conspiracy.’’ (Emphasis in original.)

Id., 30.

‘‘The district court denied the motion. It held that

the jury could have reached different conclusions about

the objective of Bravo’s travel when separately considering the conspiracy and substantive Travel Act counts.

Stated otherwise, the court found that the jury’s unelaborated finding on count one that Bravo had conspired

to travel ‘in aid of racketeering’ could have reflected a

finding that Bravo had conspired to violate the Travel

Act with the intent to promote federal program bribery.

The court considered this outcome possible even

though, when considering the substantive Travel Act

crime (count two), the jury found that Bravo did not

violate the Travel Act for that purpose and even though

the jury explicitly found (on count one) that Bravo did

not conspire to violate § 666. The court held that any

inconsistency in such a scenario was not problematic.’’

(Emphasis in original.) Id.

On appeal, the First Circuitrejected the government’s

claim that Bravo’s conviction of conspiracy could be

upheld because the inconsistencies discussed previously could be reconciled. As the appeals court reasoned, ‘‘the problem here is not merely the possibility

of inconsistent verdicts. Rather, even if we were to

assume that the jury could have relied on a § 666 theory

in finding Bravo guilty on the Travel Act conspiracy

count, we do not in fact know whether the racketeering

activity found by the jury as a predicate was bribery

under federal law or bribery under the repealed Puerto

Rico statutes. We are thus confronted with a situation

in which the verdict is supportable on one ground, but

not on another, and it is impossible to tell which ground

the jury selected. Yates v. United States, 354 U.S. 298,

312, 77 S. Ct. 1064, 1 L. Ed. 2d 1356 (1957), overruled

on other grounds by Burks v. United States, 437 U.S.

1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978). When a jury has
been presented with several bases for conviction, one

of which is legally erroneous, and it is impossible to tell

which ground the jury convicted upon, the conviction

cannot stand. United States v. Sawyer, 85 F.3d 713,

730–31 (1st Cir.1996); see also United States v. Mubayyid, 658 F.3d 35, 71 (1st Cir. 2011) [cert. denied sub

nom. Al-Mona v. United States, U.S. , 132 S.

Ct. 2378, 182 L. Ed. 2d 1052 (2012)]; United States v.

Kavazanjian, 623 F.2d 730, 739–40 (1st Cir. 1980)

(reversing verdict on multi-object conspiracy conviction under [18 U.S.C.] § 371 where one object failed

to state a crime).’’ (Internal quotation marks omitted.)

United States v. Fernandez, supra, 722 F.3d 33.

The First Circuit then turned to the question of the

appropriate remedy and determined that, although normally a new trial should be ordered if the jury may have

found guilt upon a legally invalid basis, double jeopardy

principles barred Bravo’s retrial on count one. Id., 33–

34. The court reasoned that, taken together, the jury’s

explicit finding on count one that Bravo had not conspired to violate federal bribery law and its finding on

count two that he had not violated the federal bribery

statute, constituted a necessary finding that the federal

law did not serve as a basis for the jury’s conclusion

on count one that Bravo had conspired to violate the

Travel Act ‘‘in aid of racketeering . . . .’’ Id., 34. Said

another way, the jury’s special findings on counts one

and two trumped its inconsistent general verdict of

guilty of conspiracy.

We agree with the First and Eighth Circuits18 that if

a jury in an answer to an interrogatory or in a special

finding makes a unanimous factual finding beyond a

reasonable doubt and that finding negates one or more

of the essential elements of the underlying offense, such

a finding constitutes an acquittal regardless of a general

verdict by the jury finding a defendant guilty of that

offense. This result is required because the jury’s

answer, in the parlance of the double jeopardy cases

previously discussed, constituted ‘‘a resolution, correct

or not, of some or all of the factual elements of the

offense charged . . . .’’ (Citation omitted; internal quotation marks omitted.) State v. Paolella, supra, 210

Conn. 122–23, quoting United States v. Martin Linen

Supply Co., supra, 430 U.S. 571.19

C

We turn then to analyzing the jury’s answer to the

interrogatory in this case to determine whether, in light

of all of the circumstances, it constituted a unanimous

resolution, correct or not, of some or all of the factual

elements of any of the charges of which the jury found

the defendant guilty. We also emphasize that ‘‘[t]he burden is on the defendant to demonstrate that the issue

whose relitigation he seeks to foreclose was actually

decided’’ previously by the jury. (Internal quotation

marks omitted.) United States v. Mitchell, supra, 476
F.3d 544. For the reasons that follow, we conclude that

the defendant has not met that burden.

We recognize, and the parties do not dispute, that

the state had the obligation with respect to both counts,

and any lesser included offenses thereof, of proving

beyond a reasonable doubt that the defendant was the

proximate cause of the deaths of Servin and Krakowski.

This burden, in the circumstances of this case, required

the state to disprove beyond a reasonable doubt that

Servin’s conduct constituted an intervening cause such

that the defendant’s conduct was not the proximate

cause of the deaths of Servin and Krakowski. See, e.g.,

State v. Kwaak, 21 Conn. App. 138, 146, 572 A.2d 1015

(‘‘causation element requires that the state prove

beyond a reasonable doubt, first that the death of a

person would not have occurred ‘but for’ the defendant’s [wrongful conduct], and second, that the defendant’s [wrongful conduct] substantially and materially

contributed to the death . . . in a natural and continuous sequence, unbroken by an efficient, intervening

cause’’), cert. denied, 215 Conn. 811, 576 A.2d 540

(1990). If the jury unanimously concluded that the state

had failed to meet this burden of proof beyond a reasonable doubt, then the defendant was entitled to a judgment of acquittal despite its verdict of guilty on the

lesser included offenses with respect to count one and

count two.

The jury interrogatory, which was drafted by the

defendant, asks: ‘‘Did the conduct of David Servin constitute an intervening cause of the automobile collision?

Yes ___ No ___.’’ The jury checked the ‘‘No’’ space.

First, it is highly significant that the interrogatory is

silent regarding the need for jury unanimity. It does not

ask the jury whether its conclusion with respect to this

question was reached unanimously. Thus, without the

interrogatory asking the jury about its unanimity, we are

left to speculate regarding whether the answer simply

reflects a majority vote. Even the ambiguous interrogatory in Mitchell was clear that the jury’s finding on

materiality must be unanimous. Moreover, we are

unwilling to presume unanimity because the jury was

never given any specific instructions on the meaning

of the interrogatory, how it related to its verdicts on the

various counts,20 or, most importantly, that its answerto

it must be unanimous. The court, as an afterthought,

simply told the jury to fill it out and to hand it into the

marshal. Finally, we note that the jury was never polled

on its initial answer to the interrogatory.

Second, the language of the interrogatory conflicts

with the charge the court gave the jurors on intervening

cause. The court’s charge correctly informed the jury

that it had to consider, in deciding whetherthe state had

proven proximate cause beyond a reasonable doubt,

whether Servin’s conduct was an intervening cause in

the deaths of Servin and Krakowski. See General Stat-
utes §§ 53a-56 (a) (1), 53a-57 and 14-222a; see also State

v. Lawson, 99 Conn. App. 233, 241, 913 A.2d 494, cert.

denied, 282 Conn. 901, 918A.2d 888 (2007). The interrogatory, however, asked the jury to determine whether

the conduct of Servin was an intervening cause of the

automobile collision. Thus, the jury, by answering the

interrogatory ‘‘yes,’’ did not necessarily make a determination regarding an essential element of the offenses

with which he was charged.

We recognize, of course, that if Servin’s conduct was

the intervening cause of the collision, it is difficult to

fathom how the defendant’s actions could still be the

proximate cause of the deaths. In this regard, however,

we note that the distinction between the cause of the

collision and the cause of the deaths appeared to be of

some importance to the jury. After returning its initial

verdicts, in a note to the court on November 6, 2012,

the jury asked ‘‘if there is a distinction between the

accident and the deaths.’’ The following day the jury

continued to express its struggle with the interrogatory

and the court’s charge by stating in another note: ‘‘The

reason we raised the question ‘was there any distinction

between the accident and the deaths’ is, and based on

testimonies, because SOME of us jurors believe that

[Servin’s] actions contributed to the accident but their

deaths are caused by speed.’’ (Emphasis in original.)

We decline to speculate as to why the jury believed this

distinction was significant. What is noteworthy is that

there either may have been confusion about the legal

principles of proximate and intervening cause, or individual jurors may have been wrestling with different

factual scenarios that made this distinction important

to them. In any event, the interrogatory did not ask them

unanimously to resolve, correct or not, an essential

element of the offenses charged. Accordingly, we conclude that the defendant has not met his burden ‘‘to

demonstrate that the issue whose relitigation he seeks

to foreclose was actually decided’’ previously by the

jury, and, therefore, he is not entitled to a judgment of

acquittal on either count one or two of the information.

II

Having concluded that the defendant was not entitled

to a judgment of acquittal on counts one and two, we

next turn to the issue of whether the court properly

vacated all of the verdicts and ordered the jury to

resume its deliberations on all of the charges, including

those offenses for which the jury initially found the

defendant not guilty. The state argues that, in light of

the perceived inconsistency between the jury’s answer

to the interrogatory and the verdicts of guilty, the court

properly vacated all of the verdicts and ordered the

jury to resume deliberation on all of the counts. We

conclude that, under the circumstances of this case, it

was improper for the court to vacate the verdicts of

not guilty on the two counts of manslaughter in the
second degree and the lesser included offense of misconduct with a motor vehicle under count two, and

order the jury to resume deliberations on all of the

offenses charged under counts one and two.21

A

As we have previously discussed, ‘‘[p]erhaps the most

fundamentalrule in the history of double jeopardy jurisprudence has been that [a] verdict of acquittal . . .

could not be reviewed, on error or otherwise, without

putting [a defendant] twice in jeopardy, and thereby

violating the Constitution.’’ (Internal quotation marks

omitted.) United States v. Martin Linen Supply Co.,

supra, 430 U.S. 571. In support of its argument that

double jeopardy did not barthe trial court from vacating

the verdicts of not guilty, the state principally relies on

our Supreme Court’s decision in State v. Colon, supra,

272 Conn. 106. In Colon, the defendant was found guilty

of one count of murder in violation of General Statutes

§ 53a-54a and one count of capital felony in violation

of General Statutes (Rev. to 1997) § 53a-54b (9). Id.,

127. After a jury found the defendant guilty, a separate

penalty hearing was conducted. Following deliberations, the jury sent a communication to the court and

indicated that it had reached a verdict. Id., 278. The

clerk then asked the jurors about their findings from

their special verdict form, and the jury reported that it

had unanimously agreed, among other things, that the

aggravating factor had not outweighed the mitigating

factors found by one or more members of the jury. Id.,

278–79. The initial special verdict form was then read

and accepted. Id., 279. The jury’s initial verdict would

not have permitted the imposition of the death penalty.

Immediately upon exiting the courtroom, a member

of the jury informed a sheriff that there was a problem

with the verdict. Id. At this time, the jury remained

undispersed, without any communication from or with

outside parties. Id. The court was informed of the problem and, after discussion in chambers with both sides,

a jury poll was taken and each individual jurorindicated

that his or her intent was to announce that the aggravating factor outweighed the mitigating factor or factors.

The jury was then instructed to complete another special verdict form, which indicated its intended findings.

Id. The corrected verdicttherefore called forthe imposition of the death penalty. Id., 280.

On appeal, the defendant in Colon claimed that the

‘‘ ‘enforcement’ of the jury’s second verdict violated his

rights under the double jeopardy clause because the

jury’s [initial] verdict constituted a ‘complete and final

judgment’ to which jeopardy attached.’’ Id., 294. Our

Supreme Court, after extensively reviewing precedent

from around the country, concluded that the trial

court’s acceptance of the jury’s corrected verdict, prior

to the jury’s discharge, did not violate the defendant’s

double jeopardy rights, as the jury had not been dis-
charged prior to its correction. Id., 297. Critical to the

court’s ultimate conclusion, however, was the fact that

the jury never ‘‘actually unanimously agreed that the

aggravating factor did not outweigh the mitigating factor or factors . . . and, therefore, the defendant was

not acquitt[ed] within the meaning of’’ our double jeopardy jurisprudence. (Emphasis omitted; internal quotation marks omitted.) Id., 298.

The circumstances of the present case, however, are

fundamentally different from those presented in Colon

or the cases on which Colon relied. Here, the jury never

expressed to the court that its verdicts were not what

it intended. No juror expressed to the court or court

staff at any time that he or she had truly intended to

find the defendant guilty of the offenses on which he

or she had voted not guilty. Accordingly, we conclude

that the state’s reliance on Colon is not justified.

We also emphasize that no jurorindicated to the court

that he or she had any concern regarding unanimity on

the verdicts of not guilty.22 Thus, this case is unlike

Thomas v. United States, 544 A.2d 1260 (D.C. 1988),

which is relied on by the state. In Thomas, the jury

originally returned a split verdict, which was followed

by a jury poll. Id., 1261. After only two jurors were

polled, it was evident that confusion and lack of unanimity existed. Id. Without polling the remaining jurors on

that count or any of the remaining counts, the court

concluded that there was a lack of unanimity. The court

then sent the jury back to continue its deliberations,

on all counts, until a unanimous verdict was reached.23

Id. The issue on appeal in Thomas was whether ‘‘the

[d]ouble [j]eopardy [c]lause bars a jury from engaging

in further deliberations regarding charges as to which

the foreperson has announced verdicts of not guilty but

which have not yet been accepted or recorded by the

court.’’ (Emphasis added.) Id., 1262.

Here, it was the trial court, not the jury, that raised

the issue of a possible inconsistency between the verdict and interrogatory, and sought to rectify a perceived

problem with the verdict, after it had already accepted

and recorded the initial verdicts as delivered by the

foreperson. Indeed, when the jury was asked to return

to the courtroom afterit had returned its initial verdicts,

the courttook no steps to ascertain whetherthe verdicts

returned were reflective of the jury’s true intent or were

not unanimous.

Finally, and perhaps most importantly, the jury’s

answer to the interrogatory was not inconsistent in any

way with the verdicts of not guilty. Thus, although the

apparent inconsistency between jury’s answer to the

interrogatory and the guilty verdicts may have given the

court a permissible basis to vacate the guilty verdicts, it

could not have served as a basis for vacating the not

guilty verdicts. Hypothetically, the jury may have concluded that the defendant was not guilty of manslaugh-
ter in the second degree as alleged in counts one and

two because the state failed to meet its burden of proof

on some element of that offense (such as recklessness)

otherthan the element of proximate cause.Accordingly,

we conclude that the court improperly vacated the initial verdicts of not guilty. Therefore, because the jury

on count one (Servin) ultimately returned a guilty verdict on the lesser included offense of misconduct with

a motor vehicle and the jury had previously acquitted

him of that offense as to the death of Servin, we conclude that we must direct the court to render a judgment

of acquittal as to that offense.

B

Having concluded that the court improperly vacated

the verdicts of not guilty, we turn then to whether the

court properly vacated the guilty verdicts and ordered

the jury to resume deliberations. The defendant argues

on appeal, and we have addressed in part I of this

opinion, that the court should not have vacated those

verdicts and ordered the jury to resume deliberations,

but instead, as required by double jeopardy principles,

should have rendered a judgment of acquittal on counts

one and two in their entirety. Because we have decided

that claim adverse to the defendant, we can divine no

other logical basis on which to conclude that he was

aggrieved by, or would have objected to, the court

ordering the jury to resume its deliberations on the

lesser included offenses for which the jury initially

returned verdicts of guilty. Indeed, the defendant in his

brief does not raise any independent claim that it was

improper to order further deliberations on those

offenses for which the jury initially found him guilty,

but instead relies solely on the claim that he was entitled

to a judgment of acquittal on all charges. In light of our

rejection of that claim, the defendant could only have

benefited from the jury reconsidering its guilty verdicts.

Thus, any error was harmless in these circumstances

and cannot entitle the defendant to relief. Accordingly,

no further discussion of this issue is warranted.

III

Finally, we turn to the defendant’s claim that even if

the court properly directed the jury to resume deliberations, the court’s supplemental instructions to the jury

were nevertheless improper. Specifically, the defendant

claims that while directing the jury to resume its deliberations, and at various times thereafter, the court

improperly instructed the jury on the relevant legal

principles that would inform its deliberations, and conveyed that its answer to the interrogatory should conform to its initial findings of guilty. The state argues in

response that the court’s instructions were correct and

not improperly suggestive because they emphasized the

jury’s sole role as the fact finder. We conclude that

the court’s instructions both failed to accurately and

completely instruct the jury on the principles that it
was to apply during its additional deliberations, and,

at times, implicitly suggested to the jury that it should

change its initial answer to the special interrogatory to

a conclusion that Servin’s conduct was not an intervening cause.

We begin by setting forth the applicable legal principles and standard of review that govern our analysis.

Because the court’s instructions following its rejection

of the initial verdicts related to the existence or lack

of an intervening cause, an essential element of the

state’s case, the defendant’s claim raises an issue of

constitutional magnitude. See State v. Johnson, 316

Conn. 45, 58, 111 A.3d 436 (2015) (‘‘[i]t is . . . constitutionally axiomatic that the jury be [properly] instructed

on the essential elements of a crime charged’’ [internal

quotation marks omitted]). ‘‘If an improper jury instruction is of constitutional magnitude, the burden is on

the state to prove harmlessness beyond a reasonable

doubt.’’ (Internal quotation marks omitted.) Id. ‘‘[A]n

instructional constitutional error is harmless if there is

no reasonable possibility that the jury was misled.’’

(Internal quotation marks omitted.) State v. Prioleau,

235 Conn. 274, 288 n.13, 664 A.2d 743 (1995); see id.

(perceiving ‘‘no functional difference between the two

formulations’’ [internal quotation marks omitted]). ‘‘In

performing harmless error analysis, we keep in mind

that [i]n determining whether it was indeed reasonably

possible that the jury was misled by the trial court’s

instructions, the charge to the jury is not to be critically

dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather

as to its probable effect upon the jury in guiding them

to a correct verdict in the case. . . . The charge is to

be read as a whole and individual instructions are not to

be judged in artificial isolation from the overall charge.’’

(Internal quotation marks omitted.) State v. Padua, 273

Conn. 138, 166–67, 869 A.2d 192 (2005). ‘‘In other words,

we must consider whether the instructions [in totality]

are sufficiently correct in law, adapted to the issues and

ample for the guidance of the jury. . . . A challenge to

the validity of jury instructions presents a question of

law over which [we have] plenary review.’’ (Citation

omitted; internal quotation marks omitted.) State v.

Santiago, 305 Conn. 101, 190–91, 49 A.3d 566 (2012).

With the foregoing principles in mind, we turn to

the merits of the defendant’s claim. At the outset, we

observe that the court’s supplemental instructions were

not delivered during one continuous charge, but over

the course of several separate exchanges with the jury,

many of which were prompted by questions posed to

the court by the jury during the resumed deliberations.

Mindful that we must consider the court’s instructions

in their entirety, we review each of the court’s relevant

remarks in the order and context in which they were

delivered. Because the court’s initial instructions

regarding the interrogatory established the founda-
tional principles that the jury was to apply during its

deliberations, we begin our analysis with those remarks.

At the conclusion of its charge to the jury, the court

stated: ‘‘And then there is one other matter I almost

forgot. . . . It’s going to be marked as a court exhibit,

and it’s labeled as an interrogatory. The foreperson, on

behalf of the jurors, will answerthis one question before

coming out and returning the verdict. You’ll fold that

interrogatory in half, hand it to the marshal and the

marshal will hand it to the clerk, all right. So there will

be one question which calls for a yes or no answer,

all right.’’

Although there is no requirement that the court

engage in a prolonged explanation of the considerations

that will inform the jury’s responsibilities with respect

to an interrogatory, these remarks were especially brief

and provided virtually no guidance to the jury about

the purpose of the interrogatory and how it related to

the individual offenses with which the defendant was

charged. Most significantly, the court did not explain

to the jury that the question posed in the interrogatory

should not be considered in isolation from its instructions on the specific charges upon which the jury was

to deliberate. The court also did not advise the jury

that an affirmative answer to the interrogatory would

dispose, in the defendant’s favor, of all charges in

counts one and two, and would obligate it to return a

verdict of not guilty as to those counts. The court also

failed to instruct the jury thatits answerto the interrogatory must reflect the unanimous view of the jury.

Finally, the court did not remind the jury, as previously

discussed in this opinion, that the state had the obligation to disprove beyond a reasonable doubt that Servin’s

conduct was an intervening cause in the deaths of Servin and Krakowski. In sum, at the time that the jury

first began its deliberations, it had no explanation from

the court regarding the purpose of the interrogatory,

its critical connection to the possible verdicts the jury

could lawfully return, and the other requirements, such

as unanimity, that must have been met before the jury

could return an answer. Indeed, afterthe jury first began

its initial deliberations, it sent a note to the court that

indicated thatit was already struggling with the doctrine

of intervening cause and how that doctrine related to

the various offenses upon which it was deliberating.

After the jury returned its first verdicts and answer

to the interrogatory, the court, outside of the jury’s

presence, vacated its acceptance of all of the verdicts.

It then recalled the jury and stated: ‘‘The reason why I

have called you back is that I have to advise you that the

court is unable to accept the verdict as it was rendered

because it is a verdict that is inconsistent with the

applicable legal principles with which I have instructed

you.’’ The court then stated its intention to reinstruct

the jury, and began by reviewing its prior instructions
regarding causation and intervening cause. Following

those instructions, the court turned to the interrogatory

and instructed the jury as follows: ‘‘Directly related to

that issue of causation was the interrogatory that was

posed to you: did the conduct of David Servin constitute

an intervening cause of the automobile collision? . . .

So, the answer, yes, to the interrogatory means that the

intervening cause has relieved the defendant of criminal

responsibility, and you must find the defendant not

guilty as to counts one and two of the information, and

to its lesser included offenses. Now, if you have found

that the conduct of David Servin does not constitute

an intervening cause of the accident, only then may

you go on to considerthe verdict of guilty to the charges

and also to the lesser included offenses that were outlined in count one and two.’’

The court continued: ‘‘So, in summary, I hope this

helps to clarify some of the inconsistencies that [have]

led this court not to accept your verdict. Therefore, and

simply once again, the court will not invade in your

findings of facts. However, it is very important that the

jury interrogatory as to causation is consistent with the

ultimate verdict. Therefore, I am going to direct you to

take these instructions into consideration and engage

in further deliberations, and for you to clarify what your

intentions were. Did you intend to relieve the defendant

of criminalresponsibility or did you not intend to relieve

the defendant of criminal responsibility by finding an

intervening cause? Whatever your decision is, that is

your decision to make, all right.’’

The court concluded by stating: ‘‘So, thank you. I am

going to ask you to go back to the deliberation room.

I am going to ask you to then send a note to the court

that you have reached your conclusion, at which point

I am going to have you come back down again, and I

am going to have the . . . clerk read to the jury the

jury interrogatory. Read it, you will answer it and then

go on to the verdict form again and take your response,

all right.’’

Although these instructions provided the jury with

more information about the purpose of the interrogatory, they were problematic in several other respects.

Initially, by focusing its instructions almost entirely on

the element of causation and its relationship to the

doctrine of intervening cause, the court narrowed the

scope of the jury’s redeliberations to resolving those

specific issues. The jury was free, however, to reconsider and continue deliberating on any aspect of its

verdicts, including any of the other elements of the

charges alleged in counts one and two of the information. Although it was reasonable to emphasize the issues

that most likely gave rise to the jury’s confusion, by

failing to advise the jury that it was also free to reconsider all of its findings, the court implicitly suggested

thatthe jury’s specific findings with respect to causation
and the doctrine of intervening cause should be the

focus of its attention.

Furthermore, although the court stated that it could

not accept the jury’s verdicts, it had already done so

in the jury’s presence. Thus, it was not made clear to

the jury that the verdicts had been vacated and were

no longerin effect. This lack of clarity created a substantial risk that the jury would view its task as having to

correct a defect in its original verdicts, rather than

return new verdicts altogether. A number of remarks

made by the trial court then compounded this ambiguity

by suggesting that the problem in the original verdict

was the jury’s answer to the interrogatory.

First, rather than emphasizing that the special interrogatory and verdict must be consistent with each

other, the court stated that it was ‘‘very important that

the jury interrogatory . . . is consistent with the ultimate verdict.’’ (Emphasis added.) This remark was

likely to direct the jury’s focus to the interrogatory and

the potential need to change its answer to it. In other

words, it suggested that the interrogatory could simply

be changed to match the jury’s initial verdicts of guilty

on certain of the offenses. The fact that the court

focused its supplemental instructions on the element

of causation and its interplay with the interrogatory

only further suggested that the affirmative answer to

the interrogatory, rather than both the general verdicts

of guilty and the answer to the interrogatory, was the

cause of the court’s refusal to accept its initial verdicts.

Second, the court’s query to the jury—’’[d]id you

intend to relieve the defendant of criminalresponsibility

or did you not intend to relieve the defendant of criminal

responsibility by finding an intervening cause’’—

improperly suggested that the jury’s overarching intent

to hold, or not hold, the defendant criminally responsible should govern its answer to the special interrogatory. In truth, however, the answer to the special

interrogatory constituted a factual finding that the jury

was required to make regardless of whether it desired

to hold the defendant criminally responsible or not.

By tying the answer to the interrogatory to the legal

outcome of the case, the court distracted the jury from

its primary task of deciding the factual issues put

before it.

The court next instructed the jury after the jury sent

the court another note. In the note, the jury stated: ‘‘We

would like to know if the interrogatory statement can

be rescinded.’’24 This note confirms our concern that

the court’s earlier instructions would be considered as

suggesting to the jury that it could fix the problem by

changing its answer to the interrogatory. The court then

heard argument from the state and defense counsel

outside of the jury’s presence. Defense counsel moved

for a judgment of acquittal, arguing that the jury’s question indicated that it had interpreted the court’s previ-
ous charge as an instruction to change its answer to

the interrogatory. In response, the state maintained its

position thatthe jury should be afforded the opportunity

to clarify its findings. The state also suggested that the

court should explain to the jury that the question posed

in the interrogatory ‘‘is going to be re-asked . . . .’’ The

court stated its intention to proceed as follows:

‘‘[The Court]: [Defense counsel], it was—the interrogatory was proposed by you to give to the jurors, and

you requested that they answer this question.

‘‘[Defense Counsel]: Yes, Your Honor.

‘‘[The Court]: So, I think they have not yet answered

the question. And to say, can you just rescind, is not

part of the directions. That wasn’t in any direction. It

wasn’t a possibility. They had not been instructed on

anything to rescind. So, the answer, when I pull them

out, is, I think, to say that my instructions to you prior

[were] that the clerk would read the interrogatory to

you and you would answer it. What I am going to do

is adjourn, let them deliberate for a short period of

time, call them out and, when they are ready, send a

note and the clerk will ask them the question and they

can answer yes or no and go from there, all right.’’

At that point, the court recalled the jury and provided

the following instructions: ‘‘Ladies and gentlemen, I did

receive your note. It states, we would like to know if

the interrogatory statement can be rescinded. I am just

going to refer you back to a prior instruction, which

was that what would happen is, I would call you down,

and the clerk would read the interrogatory to you and

you would then answer aloud what your decision is on

that. So, what I am going to do at this time is, I’m going

to have you just go back; stay down here. You can

deliberate, and if you can answer that interrogatory,

the first step of that, I’ll bring you back in, and the

clerk will ask you that question and the foreperson can

answer that question, once again, yes or no, the interrogatory.’’

As defense counsel and the state appeared to recognize at the time, the jury’s note is most logically interpreted as questioning whether the jury could rescind its

answer to the interrogatory. Said another way, the jury

seemed to be laboring under the impression that its

original answer remained in effect and could only be

changed if it was first rescinded. In response to the

jury’s question, the court did not provide a clear answer.

It stated only that it would recall the jury and have it

state its answer to the interrogatory in open court. The

court did not explain that the jury’s original answer to

the interrogatory was no longer in effect, and that the

jury was to reconsider and answer the interrogatory as

if it had never previously done so. This omission again

risked creating or reinforcing the impression that the

jury was not beginning its deliberations anew, both with
respect to the verdicts and the interrogatory, but that it

instead needed to undo its answer to the interrogatory.

Later in the day, the jury sent another note to the

court. This note stated, in relevant part: ‘‘Your Honor,

[w]ith all due respect, we, the jurors, still remain in

agreement with the interrogatory statement that [Servin’s] actions contributed to the accident.’’ The jury’s

note also stated: ‘‘Our question remains if there is a

distinction between the accident and the deaths.’’25 In

response, defense counsel again moved for a judgment

of acquittal, arguing that although the jury had not used

‘‘the magic words,’’ it was clear from its note that it

was affirming its prior answer to the interrogatory. The

court declined to rule on the defendant’s motion at that

time, however, instead deferring the matter until the

next day.

The following day, the court advised the state and

defense counsel that it intended to submit the interrogatory to the jury again26 and refer the jury to its previous

instructions. Specifically, the court stated that ‘‘when

[the jury] sent out the note yesterday they used an

incorrect legal term. What they meant I cannot infer,

and that is the reason why I am resubmitting the jury

interrogatory because it has the correct legal term of

whether or not they find an intervening cause. So, in

light of the term that [the jury] used, contributing factor,

it has to be clarified and that is the purpose that the

court is going to resubmit the interrogatory . . . and

since I had already reinstructed them as to the law, I

am giving them the opportunity to render a verdict.’’

The court then recalled the jury and instructed it as

follows: ‘‘Now . . . yesterday afternoon, as you’ll

recall, the court did not accept your verdict as to counts

one and two. Then I gave you the instruction on the law

pertaining to causation and the meaning of intervening

cause. So . . . in the first part of your note you indicated that you had come to a finding regarding David

Servin’s conduct. Now, at this point in time the court

is going to resubmit to you the jury interrogatory. It is

being resubmitted to you solely for the purpose that

yourfinding be recorded in writing, whateverit may be.’’

The court continued: ‘‘After you answer this interrogatory, then you should consider my recent instructions

to you, and if you are able to render a verdict as to

counts one and two, you should send out a note indicating that you are able. If you hand a note to the marshal—

as I say, if you want to resubmit to the first question,

you may also do that. Once you are able to answer the

interrogatory and let the marshal know if you are able

to reach a verdict or not, then I’ll call you back and

we’ll read the interrogatory in open court and a verdict,

if you shall have that, all right.’’ The court then directed

the jury to resume deliberations.

By asking the jury to answer the interrogatory first,
and then, ‘‘if [the jury was] able to,’’ return a verdict, the

court divorced the jury’s consideration of the question

posed by the interrogatory from the factual determinations it needed to make to return general verdicts on

the substantive charges. It thereby created the risk that

the jury would dissociate its verdicts from its answer

to the interrogatory when the two were actually inextricably intertwined. Thus, it risked exacerbating any confusion regarding the interplay between the

interrogatory answer and the verdicts. Instead, the

court only referenced its prior instructions and directed

the jury to resume deliberations. Although the court’s

prior instructions may have explained the interplay

between the verdicts and the interrogatory, the court’s

more recent instructions that the jury answer the interrogatory first and then decide on the verdicts undermined the earlier instructions and, again, unduly

focused the jury on the interrogatory rather than on

the verdicts and interrogatory together.

Moreover, at some point after the court provided

these instructions, the jury sent another note to the

court explaining its previous question asking whether

a distinction existed between Servin’s conduct constituting an intervening cause in the accident and his conduct constituting an intervening cause in his and

Krakowski’s deaths.27 See footnote 25 of this opinion.

Specifically, the jury stated: ‘‘The reason we raised the

question ‘was there any distinction between the accident and the deaths’ is, and based on the testimonies,

because SOME of us jurors believe that [Servin]’s

actions contributed to the accident but their deaths are

caused by the speed.’’ (Emphasis in original.)

In this instance, the jury may well have been raising

a very insightful concern about the incongruence

between the court’s instructions on proximate cause

with respect to the counts, and the phrasing of the

interrogatory. As discussed previously, the court’s

charge correctly informed the jury that it needed to

determine whether Servin’s conduct was an intervening

cause in the deaths, while the jury interrogatory asked

whether his conduct was an intervening cause in the

collision. Inexplicably, the court failed to answer the

jury’s question and instead responded to a separate and

largely unrelated question submitted by the jury earlier

in its deliberations. Specifically, the court stated: ‘‘I am

also going to note that court’s exhibit 7 was address[ed]:

Your Honor, while explaining the laws, can you please

describe if contributory negligence is applicable in this

matter. That was sent out very early on. The court gave

you the jury charge. You have a hard copy of it. And

contributory negligence is not contained in that jury

charge. It is not part of the law that is applicable to the

case here, all right. So, you have the charge. You must

apply only that law which the court gave you, and you

remember my instruction that it is that law that you

must apply to the case, all right.’’ This failure to address
the point of confusion raised by the jury deprived it of

proper guidance in performing its critical duty of making a factual finding on an essential element of the

charged offenses.

To summarize, the court’s initial instructions to the

jury provided it with no explanation about the purpose

of the interrogatory, its connection to the charges

alleged in counts one and two of the information, or the

important requirement that the jury return a unanimous

answer. In its supplemental instructions directing the

jury to redeliberate, it was unclear whether the court

had vacated the jury’s initial verdicts and interrogatory

answer such that the jury would need to return an

entirely new answer to the interrogatory and verdicts.

In failing to provide the jury with this clear guidance,

it is reasonably likely that the court left the jury with

the impression that its task was to ‘‘fix’’ its answer to

the interrogatory, rather than begin deliberations anew

with respect to both the verdicts and the interrogatory.

Moreover, the court’s focus in its instructions on the

doctrine of intervening cause and its relation to the

interrogatory created a substantial risk that the jury

would view its original answer to the interrogatory as

the cause of the trouble. By then advising the jury that

it was ‘‘very important’’ that its interrogatory answer be

consistent with its ‘‘ultimate verdict,’’ the court further

suggested that the original verdict of guilty was correct

and that the answer to the interrogatory was not. Similarly, the court’s instructions casting the relevant

inquiry as focusing on the jury’s intent to hold, or not

hold, the defendant ‘‘criminally responsib[le],’’ suggested that the resolution of the issue of intervening

cause should be governed by the jury’s desire to obtain

a particular overall result. Furthermore, the court’s procedural direction to answer the interrogatory first, and

then, if the jury was able to, return a verdict, conveyed

that the verdicts were severable from the interrogatory

and not inextricably intertwined with it. Finally, the

court completely failed to address a substantive question posed by the jury pertaining to a critical issue

regarding an essential element of the offenses charged

in counts one and two of the information. Thus, when

considered in their entirety, the court’s instructions did

not provide the jury with appropriate guidance on the

principles that would inform its deliberations.

The state nevertheless argues that the court

instructed the jury in such a way that it could not have

been misled; for example, by repeatedly emphasizing

that the jury was the sole fact finder and that the court

would not invade the jury’s findings. We are not persuaded that the extensive omissions and misstatements

in the court’s instructions, as well the implicit suggestion that the interrogatory answer was incorrect, could

be cured by the court’s generic reminders of the jury’s

role as the sole fact finder. We note, for instance, that

the jury specifically requested a transcript of the court’s
instructions ‘‘with regard to inconsistency of the verdicts’’; see footnote 27 of this opinion; thus suggesting

that it was experiencing some difficulty applying the

court’s instructions. Even if none of the court’s instructions, by themselves, were misleading, we conclude

that, taken together, it was reasonably possible that the

court’s instructions misled the jury.

We emphasize again that because the defendant’s

claim of instructional impropriety is of constitutional

magnitude, the burden is on the state to prove that

it was not ‘‘reasonably possible that, considering the

charge as a whole, the jury was misled.’’(Internal quotation marks omitted.) State v. Padua, supra, 273 Conn.

166; see State v. Johnson, supra, 316 Conn. 63 (‘‘[t]he

test for determining whether a constitutional error is

harmless . . . is whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained’’ [internal quotation marks

omitted]). Given the extent of the instructional improprieties, and their close relation to a heavily contested

element of the state’s case, we conclude that the state

has failed to satisfy this significant burden.

We turn next to the task of determining the appropriate remedy. The defendant argues that the proper

remedy under the circumstances is to have the case

remanded to the trial court with direction to render a

judgment of acquittal on counts one and two of the

information. ‘‘It is well established [however] that

instructional impropriety constitutes ‘trial error’ for

which the appropriate remedy is a new trial, rather than

a judgment of acquittal. As the United States Supreme

Court observed in Burks v. United States, 437 U.S. 1,

15, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978), ‘reversal for trial

error, as distinguished from evidentiary insufficiency,

does not constitute a decision to the effect that the

government has failed to prove its case. As such, it

implies nothing with respect to the guilt or innocence

of the defendant. Rather, it is a determination that a

defendant has been convicted through a judicial process

which is defective in some fundamental respect, e.g.,

incorrect receipt or rejection of evidence, incorrect

instructions, or prosecutorial misconduct. When this

occurs, the accused has a strong interest in obtaining

a fair readjudication of his guilt free from error, just as

society maintains a valid concern for insuring that the

guilty are punished.’ ’’ State v. DeJesus, 288 Conn. 418,

434–35, 953 A.2d 45 (2008). Accordingly, we conclude

that the appropriate remedy is to vacate the guilty verdicts and order a new trial, with respect to count one

(Servin), on the lesser included offense of negligent

homicide with a motor vehicle, and, with respect to

count two (Krakowski), on the lesser included offenses

of misconduct with a motor vehicle and negligent homicide with a motor vehicle.28

The judgment is reversed only with respect to counts
one and two. The case is remanded with direction to

render a judgment of acquittal on the offense of misconduct with a motor vehicle on count one of the information, and for a new trial on the lesser included offense

of negligent homicide with a motor vehicle in count

one, and on the lesser included offenses of misconduct

with a motor vehicle and negligent homicide with a

motor vehicle in count two. The judgment of guilty on

the offense ofreckless driving in count three is affirmed.

In this opinion the other judges concurred.

1 General Statutes § 53a-57 (a) provides: ‘‘A person is guilty of misconduct

with a motor vehicle when, with criminal negligence in the operation of a

motor vehicle, he causes the death of another person.’’

2 The defendant also claims that the court improperly refused to give effect

to the jury’s reaffirmation of its original answer to the jury interrogatory. We

conclude that it is unnecessary to address this claim separately because we

treat it as subsumed within our analysis of the defendant’s third claim.

3 General Statutes § 53a-56 (a) provides in relevant part: ‘‘A person is

guilty of manslaughter in the second degree when: (1) He recklessly causes

the death of another person . . . .’’

4 The court stated its intention to vacate all of the verdicts, which necessarily would have included the acquittals and verdict of guilty of reckless

driving as alleged in count three.

5 After the court expressed its intent to reinstruct the jury, the state

reiterated its support of this action when it stated, ‘‘I think that’s appropriate,

given the inconsistencies in the verdict, and obviously it seems as if there

is a basic misunderstanding of the law as given to them in Your Honor’s

jury instructions, and therefore I think it is important for the jury to receive

those instructions and then assure that the verdict is legally correct.’’

6 Specifically, the court reasoned: ‘‘[R]escind is not part of the directions.

That wasn’t in any direction. It wasn’t a possibility. They had not been

instructed on anything to rescind.’’

7 The court did not explain why it would be bound by a second inconsistent

verdict, but was not bound by that scenario after the initial verdicts.

8 The court previously vacated the jury’s initial verdict of guilty of reckless

driving on count three of the information. The court never ordered the jury

to resume its deliberations on that count. When the court ultimately accepted

the jury’s final verdicts, the court indicated that it would accept the previously vacated guilty verdict on count three. The defendant does not raise

any claim of error with respect to count three, and this court, therefore,

leaves it undisturbed.

9 The defendant renewed his previous argument and stated: ‘‘[The] verdict

was internally inconsistent with the special interrogatory that they answered

yesterday affirmatively saying that David Servin’s conduct constituted an

intervening cause of the deaths of the teenagers in that case. That was the

verdict, and at that point I made a motion for judgment of acquittal on

the lesser included offense because it was inconsistent with the special

interrogatory. Therefore, it fit a classic definition of a [Practice Book §] 42-

51 motion of acquittal in that the judge, upon motion of the defendant, shall

order the entry of a judgment of acquittal on any lesser included offense

for which the evidence does not reasonably permit a finding of guilty beyond

a reasonable doubt. That was classically the situation. I made a motion that

Your Honor enter a finding of not guilty on the lesser included offenses,

and Your Honor denied that.’’

10 In support of the claim that the court should have found the interrogatory

dispositive, the defendant also cites Ex Parte Peterson, 253 U.S. 300, 310,

40 S. Ct. 543, 64 L. Ed. 919 (1920), Seals v. Hickey, 186 Conn. 337, 351, 441

A.2d 604 (1982), State v. Alonzo, 131 Conn. App. 1, 6, 26 A.3d 109, cert.

denied, 303 Conn. 912, 32 A.3d 965 (2011), and Practice Book § 42-30 (‘‘[t]he

judicial authority shall, if the verdict is in order and technically correct,

accept it without comment’’) to bolster the proposition that questions of fact

are in the sole domain of the jury and should be made without interference by

the court.

The defendant argues that, by rejecting the jury’s initial verdict and answer

to the interrogatory, the court invaded his constitutional right to have factual

determinations made by the jury. The defendant’s brief, however, contains

little or no discussion of these authorities and makes no attempt to apply
them to the facts of this case. We, therefore, consider this claim abandoned

except to the extent that it relates to the defendant’s double jeopardy claim.

We also note that the decisions in Ex Parte Peterson and Hickey are both

civil cases and therefore provide minimal or no guidance with respect to

the complicated issues in this criminal prosecution.

11 Although the initial guilty verdicts on the lesser included offenses of

negligent homicide (count one) and misconduct with a motor vehicle (count

two) were arguably ‘‘mutually exclusive convictions,’’ the defendant has not

challenged the verdicts on this ground.

12 See, e.g., State v. Bush, 156 Conn. App. 256, 260, 263 n.4, 112 A.3d

834 (General Statutes § 53-396 [b] requires special verdict in racketeering

prosecution), cert. granted, 317 Conn. 903, A.3d (2015).

13 For a cogent discussion of why interrogatories should not be used in

most criminal cases, see State v. Simon, 79 N.J. 191, 199–200, 398 A.2d 861

(1979); id., 204 (‘‘special interrogatories as a tool in criminal trials are not

condoned, and their use [is] discouraged’’); United States v. Spock, 416 F.2d

165, 181 (1st Cir. 1969) (‘‘[t]o ask the jury special questions might be said

to infringe on its power to deliberate free from legal fetters; on its power

to arrive at a general verdict without having to support it by reasons or by

a report of its deliberations’’ [internal quotation marks omitted]).

14 Powell did not involve an inconsistency between a jury’s answer to an

interrogatory and a verdict of guilty. Instead, Powell involved an inconsistency between an acquittal on one or more counts and verdicts of guilty

on one or more other counts. The United States Supreme Court concluded

that ‘‘there is no reason to vacate [the defendant’s] conviction merely

because the verdicts cannot rationally be reconciled. [The defendant] is

given the benefit of her acquittal on the counts on which she was acquitted,

and it is neither irrational nor illogical to require her to accept the burden

of conviction on the counts on which the jury convicted.’’ United States v.

Powell, supra, 469 U.S. 69. The result in Powell is consistent with Connecticut

law on inconsistent verdicts, as discussed in part I A of this opinion.

15 Dotterweich also did not involve an inconsistency between a jury’s

answer to an interrogatory and a verdict of guilty. Instead, Dotterweich

involved inconsistent verdicts between defendants in the case, which the

United States Supreme Court concluded should be left undisturbed. This

result is also consistent with Connecticut law.

16 The state also relies heavily on State v. Searles, 113 Conn. 247, 255, 155

A. 213 (1931), in which our Supreme Court stated: ‘‘When there is uncertainty

as to the actual intent of the jury, the power of the court in a criminal case

to return them to their room to render a clear and unambiguous verdict is,

in this country, recognized as indispensable to an orderly and impartial

administration of justice.’’

We do not agree that Searles is applicable in this case. First, the court

in Searles did not discuss double jeopardy principles, and Searles was

decided long before the federal constitutional guarantee against double

jeopardy was made applicable to the states through the fourteenth amendment. See Benton v. Maryland, 395 U.S. 784, 793–98, 89 S. Ct. 2056, 23 L.

Ed. 2d 707 (1969). Moreover, Searles did not involve inconsistent verdicts

of any kind, but instead a situation in which a juror, during the announcement

of the verdict, expressed to the court that the stated verdict was not the

jury’s true verdict.

17 The jury also found Bravo guilty of a third crime that is not relevant to

our analysis. United States v. Fernandez, supra, 722 F.3d 7.

18 Our research has revealed only a few other cases that are worthy of

mention. First, in a footnote, the United States Supreme Court in Pipefitters

Local Union No. 562 v. United States, 407 U.S. 385, 400 n.11, 92 S. Ct. 2247,

33 L. Ed. 2d 11 (1972), addressed a claim by certain petitioners that a special

finding by the jury that a ‘‘willful violation of [the underlying criminal statute]

was not contemplated amounted to an acquittal’’ because it was inconsistent

with the jury’s guilty verdict. The Supreme Court rejected this claim on the

ground that the petitioners ‘‘not only failed to object to the trial court’s

requirement that the jury return a special finding as inconsistent with the

general charge, but also failed to move for acquittal on the ground now

offered once the special finding was returned.’’ Id. After essentially declining

to review this claim, the court, in dicta, indicated that even if the petitioners

were correct that there was an inconsistency between the verdict and the

special finding, the remedy would be a new trial, not an acquittal. Id., 401

n.11. This comment was made in dicta and devoid of (1) any accompanying

analysis of whether the verdict and special interrogatory were in fact inconsistent and (2) any discussion of the relevant double jeopardy principles.
Accordingly, we conclude that it lacks precedential value on this topic.

Second, the decision of the United States Court of Appeals for the Third

Circuit in Crawford v. Fenton, 646 F.2d 810 (3d Cir.), cert. denied, 454 U.S.

872, 102 S. Ct. 344, 70 L. Ed. 2d 178 (1981), a federal habeas action challenging

a state prosecution, involved a scenario in which the jury’s answers to

special interrogatories arguably conflicted with a general verdict of guilty.

Before the state court had taken steps to accept the verdict, it ordered the

jury to resume its deliberations. Id., 813. Although the Third Circuit concluded that double jeopardy did not prevent the defendant’s retrial after

the state court had declared a mistrial when the jury could not ultimately

arrive at a unanimous verdict, the federal appeals court did so on the

basis of a double jeopardy claim different from the one presented here. In

Crawford, the habeas petitioner contended that the state court had improperly declared a mistrial in violation of double jeopardy; id., 815–16; not

because the jury had necessarily acquitted him as a result of its findings in

a special interrogatory, but because he has a ‘‘valued right to have his trial

completed by a particular tribunal.’’ (Internal quotation marks omitted.) Id.,

816. The Third Circuit in Crawford then recognized that double jeopardy

prevents a second trial if a mistrial is declared because ‘‘the state, wishing

to decrease the risk of an acquittal, desires the opportunity [of a second

trial] to buttress weaknesses in [its] evidence . . . .’’ (Citation omitted;

internal quotation marks omitted.) Id., quoting Arizona v. Washington, 434

U.S. 497, 507, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978). Thus, Crawford is inapposite.

Finally, the Washington Court of Appeals, in State v. Hurley, 4 Wn. App.

781, 483 P.2d 1274, review denied, 79 Wn. 2d 1005 (1971), concluded that

a guilty verdict was void because the jury’s answer to an interrogatory

negated one of the essential elements of the offense for which the jury

returned a guilty verdict. Id., 783–84. Although the defendant requested that

the court grant a motion for a judgment of acquittal, the Washington Court

of Appeals determined that the appropriate remedy was a new trial. Id.,

784. We decline to follow Hurley because it lacks any discussion of the

relevant double jeopardy principles.

19 We also take note of the United States District Court’s decisions in

United States v. Lucarelli, 476 F. Supp. 2d 163, 166 (D. Conn. 2007) (ruling

on motion for judgment of acquittal or new trial) and United States v.

Lucarelli, 490 F. Supp. 2d 295 (D. Conn. 2007)(ruling on motion forreconsideration on judgment of acquittal). In Lucarelli, the jury’s general verdicts

of guilt were arguably inconsistent with its answer to an interrogatory that

the defendant had the specific intent to defraud, an essential element of

the offenses upon which the jury found the defendant guilty. Although the

court ultimately concluded pursuant to double jeopardy principles that the

jury’s answer to the interrogatories prevented the defendant’s retrial, part

of its reasoning was based on doubt regarding whether there was true

inconsistency between the answer and the guilty verdicts in light of erroneous jury instructions of the specific intent to defraud element of the offenses.

United States v. Lucarelli, supra, 476 F. Supp. 2d 169–70. In the absence

of true conflict, the District Court concluded that the jury’s explicit and

unambiguous answer to the interrogatory constituted an adverse factual

resolution of an essential element of the offense charged by the government

and, thus, amounted to an acquittal for double jeopardy purposes. United

States v. Lucarelli, supra, 490 F. Supp. 2d 301–302.

20 In fact, the first note sent by the jury during deliberations asked whether

intervening cause applied to all of the lesser included offenses.

21 We note again that the court did not direct the jury to redeliberate on

the charge of reckless driving alleged in count three. See footnotes 4 and

8 of this opinion.

22 Similarly, no juror expressed any concern after the verdicts that the

jury’s initial answer to the interrogatory may have been incorrect. Indeed,

after the jury resumed its deliberations, the jury attempted to reaffirm its

initial answer to the interrogatory.

23 On appeal, the court in Thomas noted that ‘‘[t]he [trial] court neither

gave additional instructions nor directed the jury to deliberate only on the

charge of assault [the charge for which a lack of unanimity was found].

Appellant raised no objection at that time to the course of action chosen

by the court. Nor did appellant ask the court to record . . . a partial verdict

on the three charges to which the foreperson had announced a verdict

of not guilty.’’ (Footnote omitted.) Thomas v. United States, supra, 544

A.2d 1261–62.

24 Prior to sending this note to the court, the jury had sent another note
indicating that it was deadlocked and would not be able to reach a verdict

on counts one and two. In response, the court provided the jury with a Chip

Smith instruction and directed it to continue deliberating.

25 In response to the second portion of the note, the court advised the

jury that it could not provide a response because it did not understand the

jury’s question.

26 This remark is particularly perplexing because it appears to suggest

that the jury did not have the interrogatory before it. This possibility is itself

problematic because the court had instructed the jury after rejecting the

initial verdicts that it must resume deliberations on the verdicts and interrogatory.

27 In this note, the jury also requested two other items. First, it requested

a copy of the transcripts of the court’s ‘‘comments and instruction to the

jurors with regard to inconsistency of the verdicts given by the jurors dated

[November 6, 2012].’’ Second, the jury requested ‘‘a copy of the original

interrogatory statement completed by the jurors because it appears that it

is worded differently.’’ The court responded to the jury’s first request by

directing the court monitor to prepare and provide a copy of the requested

portions of the court’s instructions to the jury. With respect to the second

request, the court advised the jury that the court had inspected the two

interrogatories, found them to be worded identically, and directed the clerk

to provide the jury with both of them.

28 As explained previously in footnote 8 of this opinion, the defendant

does not claim any error with regard to the guilty verdict returned on count

three, and any instructional error is unrelated to that count.