State v. Carrasquillo ( 2019 )

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STATE OF CONNECTICUT v. ANGEL
CARRASQUILLO
(AC 41806)
Keller, Elgo and Bishop, Js.
Syllabus
Convicted of the crimes of murder and criminal possession of a firearm
in connection with the shooting deaths of the victims, the defendant
appealed, claiming, inter alia, that the trial court violated his rights to
due process and to a jury trial by coercing the jury to reach a verdict.
On the sixth and final day of the jury’s deliberations, the court received
five notes from the jury. The first note stated that the jury was unable
to reach a unanimous verdict. The next two notes were from two jurors,
N and D, about personal matters that conflicted with their service as
jurors. The court told the jury that it would take up the notes from N
and D later in the day after it gave the jury an instruction to continue
its deliberations in an effort to reach a unanimous verdict. The court
then gave the jury a standard Chip Smith instruction in which it directed
the jury to try to break its deadlock by continuing to deliberate, and
stated that minority view jurors should consider the logic of the majority
view jurors and that it was the jurors’ obligation as individuals to give
their own verdict without surrendering their conscientiously held views.
Defense counsel did not object to the court’s instruction. Thereafter,
the court received a note from another juror, L, in which L stated that
she was feeling attacked as a juror, thanked the court for its guidelines
and was willing to keep an open mind and continue talking. Subse-
quently, the court received the fifth note from the jury stating that it
had reached a unanimous verdict. The court thereafter summoned the
jury to the courtroom, the verdict was announced, and the jury was
polled, with each juror expressing agreement with the verdict. At sen-
tencing, the court denied the defendant’s motion for a mistrial in which
he claimed, inter alia, that the court had not fully explored the note
from L at the time it received the note during trial. On the defendant’s
appeal, held:
1. The defendant could not prevail on his unpreserved claim that he was
deprived of his rights to due process and to a jury trial because the trial
court applied improper pressure on the jury to reach a verdict when it
delivered the Chip Smith instruction: the defendant’s claim that the jury
would have believed that it would not be excused at the end of the day
if it did not reach a verdict was unavailing, as the court did not state
that the jury did not need to reach a verdict in order to be excused, the
court suggested in the Chip Smith instruction that it would wait as long
as it took the jury to reach a unanimous verdict, the jury had been
excused at the end of each of the five prior days of deliberations, the
court permitted the jury to be excused for the day on which it received
a note from a juror that stated that deliberations were getting very
heated and that continued deliberations would not be beneficial, and
the court did not state before or during the Chip Smith instruction that
the jury was expected or required to reach a verdict at any particular
time; moreover, the court’s statement in its initial jury charge that the
jury was duty bound to return a verdict with respect to each count did
not suggest that the court would not accept the jury’s failure to reach
a unanimous verdict, but merely expressed that a verdict must be unani-
mous, and the defendant was incorrect in claiming that the court did
not respond to N’s note, which simply alerted the court to the existence
of a family emergency that would require N’s absence beginning on a
certain date, as the court stated that it would address any scheduling
conflicts of jurors later that day, defense counsel, who had agreed with
the court’s response to N’s note, did not ask the court to conduct further
inquiry of N, and N’s note did not suggest that he was distracted, agitated
or likely to have felt pressured to agree or to cause other jurors to agree
with his view of the case; furthermore, the court did not, as claimed by
the defendant, sanction the pressure that L was under from other mem-
bers of the jury, as defense counsel declined the opportunity to canvass
L with respect to her note, which was not evidence of continued undue
pressure on her or any minority view juror, nothing in the note reflected
that she was unwilling to follow the court’s Chip Smith instruction, and
the court reasonably could have interpreted the note to reflect that,
after it delivered its Chip Smith instruction, L felt better about continuing
her deliberations with the rest of the jury, and the two hours of jury
deliberations after the Chip Smith instruction did not suggest that the
court coerced the jury to reach a unanimous verdict, as the jury had
spent a lengthy amount of time in the prior days of deliberation listening
to the playback of testimony, there was no mathematical formula to
determine whether the amount of time between additional deliberation
following a Chip Smith instruction and the verdict indicated that the jury
was coerced into reaching a verdict, and no juror expressed hesitation
or disagreement with respect to the verdict when the jurors were individ-
ually polled.
2. The trial court did not abuse its discretion in denying the defendant’s
motion for a mistrial: the defendant waived any claim that the court
failed to canvass L at the time it received her note, and the fact that
the jury had difficulty reaching a unanimous verdict but then did so
after further instruction and deliberation did not give rise to a concern
that the jury was coerced into reaching its verdict, as it was reasonable
to infer that L’s note was a strong indication that the court’s Chip
Smith instruction was effective and that, despite any hostility during
deliberations, she was open-minded and ready to continue talking with
the other jurors; moreover, the jury deliberated for two additional hours
after it received the Chip Smith instruction before reaching its verdict,
and, at the defendant’s request, the jurors, including L, were polled
individually and expressed not even the slightest reservation or disagree-
ment concerning the verdict.
3. The defendant could not prevail on his unpreserved claim that he was
denied his right to due process because the trial court’s response to a
note from the jury about accessorial liability as to the murder charges
against him created a reasonable possibility that the jury was misled
about the state’s burden of proof:
a. The defendant waived any objection to the court’s jury instructions
concerning accessorial liability and, thus, could not prevail under State
v. Golding (213 Conn. 233); the court provided counsel with a copy of
its proposed jury instructions, allowed a meaningful opportunity for
review of its instructions, solicited comments from counsel, and defense
counsel affirmatively stated that the defendant’s only exceptions con-
cerned other portions of the charge, and after the jury sent its note to
the court with respect to the accessorial liability instruction, defense
counsel agreed with the court’s proposed response to the note, which
was to ask the jury for further clarification regarding what it was asking
in the note, did not ask the court to take further action when the jury
did not provide the court with another note concerning the instruction at
issue, and specifically stated that further instruction was not necessary.
b. The defendant’s claim that the court’s jury instruction on accessorial
liability constituted plain error was unavailing, as the defendant failed
to demonstrate the existence of an instructional error that was so obvi-
ous that it affected the fairness and integrity of and public confidence
in the judicial proceedings; the court’s instruction did not create the
possibility of confusion in the minds of the jurors as to what evidence
the state relied on in support of the murder counts or with respect to
the mental state required for the commission of murder as an accessory,
as the court repeatedly instructed the jury that it must find that, if the
defendant intentionally aided others in the commission of the crime of
murder, he acted with the mental state necessary for the commission
of murder and that this mental state consisted of the intent to kill
another person.
Argued March 5—officially released August 6, 2019
Procedural History
Substitute information charging the defendant with
two counts each of the crimes of murder and criminal
possession of a firearm, and with the crime of conspir-
acy to commit murder, brought to the Superior Court
in the judicial district of Hartford and tried to the jury
before Bentivegna, J.; verdict of guilty of two counts
of murder and one count of criminal possession of a
firearm; thereafter, the court denied the defendant’s
motion for a mistrial and rendered judgment in accor-
dance with the verdict, from which the defendant
appealed. Affirmed.
Jennifer Bourn, supervisory assistant public
defender, for the appellant (defendant).
Bruce R. Lockwood, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Robin D. Krawczyk and Donna Mam-
brino, senior assistant state’s attorneys, for the appel-
lee (state).
Opinion
KELLER, J. The defendant, Angel Carrasquillo,
appeals from the judgment of conviction, rendered fol-
lowing a jury trial, of two counts of murder as an acces-
sory in violation of General Statutes §§ 53a-8 and 53a-
54a, and one count of criminal possession of a firearm in
violation of General Statutes § 53a-217.1 The defendant
claims that the trial court (1) deprived him of his right
to due process and his right to a jury trial by coercing
the jury to reach a verdict, (2) improperly denied his
motion for a mistrial and his request for a postverdict
inquiry into jury coercion, and (3) deprived him of his
right to due process by failing to provide the jury with
additional guidance with respect to the principle of
accessorial liability. We affirm the judgment of the
trial court.
On the basis of the evidence presented at trial, the
jury reasonably could have found that prior to and dur-
ing the events underlying this appeal, the defendant,
Luis Quintero, and Josue Burgos were members of a
street gang that was involved in the sale of illegal drugs.
On October 13, 2009, the defendant, Quintero, and
Burgos discovered that Luis Rodriguez, who was not a
gang member, was selling illegal drugs at a home on
Wethersfield Avenue in Hartford. Rodriguez engaged in
this activity despite the fact that one or more gang
members had warned him not to sell drugs in this area,
as the gang considered it to be part of its territory.
The defendant, Quintero, and Burgos confronted
Rodriguez at the home on Wethersfield Avenue. Leida
Franqui, who was not a gang member, was with Rodri-
guez. The defendant wanted a .25 caliber handgun that
he knew was in Rodriguez’ possession. He physically
struck Rodriguez, rendering him unconscious. He took
possession of Rodriguez’ cell phone and handgun. The
defendant was driven to and from the scene by his
girlfriend, Nicole Rodrick. After Rodriguez regained
consciousness, he called his cell phone and asked the
defendant to return it to him. The defendant agreed to
meet with Rodriguez to return his cell phone but not
his handgun.
In the early morning hours of October 14, 2009,
Rodrick drove the defendant, Quintero, and Burgos, all
of whom were armed, to Benton Street in Hartford to
meet with Rodriguez and Franqui, both of whom were
unarmed. At or about 2 a.m., as the group of five was
walking in the vicinity of the intersection of Franklin
Avenue and Whitmore Street in Hartford, an argument
ensued. The defendant, Quintero, and Burgos shot
Rodriguez and, soon thereafter, Franqui. By the time
that police arrived on the scene, Rodrick had driven
the defendant and his accomplices away from the scene
of the shooting, and Rodriguez and Franqui had died as
a result of multiple gunshot wounds, including gunshot
wounds to the head. Medical examiners subsequently
recovered nine millimeter and .22 caliber bullet frag-
ments from the victims’ bodies.
Rodrick drove the defendant to her East Hartford
residence. There, the defendant, who was still in posses-
sion of Rodriguez’ handgun, accidentally discharged the
handgun and thereby caused an injury to his left leg.
Rodrick tended to his injury, which was not significant.
Later that morning, the defendant went to the residence
of a fellow gang member, Rosemary Pinto. There, he
asked a fellow gang member, Juan Gonzalez, to hold
the gun for him, and he commented that he ‘‘killed them
mothafuckers.’’
The defendant subsequently made additional incrimi-
nating statements concerning the shooting. On multiple
occasions, a police detective, Luis Poma, questioned
the defendant about the events at issue. On October
15, 2009, the defendant denied that he was involved in
the shooting and stated that he had an alibi. On October
23, 2009, the defendant admitted that he had taken
Rodriguez’ gun and cell phone, and then stated that
Burgos was the shooter. On June 22, 2010, the defendant
asked Poma whether three guns had been used in the
shooting, thereby referring to information about the
shooting that was not made public. Then, the defendant
stated to Poma that he was at the scene of the shooting,
but that Quintero and Burgos had shot the victims. The
defendant admitted that he took Rodriguez’ handgun,
accidentally shot himself in the leg, and gave the hand-
gun to Gonzalez to dispose of it. On February 7, 2013,
the defendant contradicted his earlier statement that
he was present at the scene of the shooting, and that
Quintero and Burgos were the shooters. He admitted,
however, that he had taken Rodriguez’ gun and cell
phone, had accidentally shot himself with the gun, and
later had given the gun to Gonzalez.
In 2011, the defendant was incarcerated in connec-
tion with an unrelated incident. He admitted to a fellow
gang member and inmate, Luis Rojas, that the events
surrounding the shooting of Rodriguez and Franqui did
not go as he had planned. He admitted to Rojas that
he had shot Rodriguez because it appeared to him that
Rodriguez was reaching for a gun, and that he had shot
Franqui because she witnessed him shoot Rodriguez.
With respect to his shooting of Franqui, the defendant
explained to Rojas that ‘‘it was part of the game . . . .
She had to go because she seen it.’’ Additional facts
will be set forth as necessary.
I
First, the defendant claims that the court deprived
him of his right to due process and his right to a jury
trial by coercing the jury to reach a verdict. We disagree.
The following additional facts are relevant to this
claim. After jury selection was completed,2 the jury
heard evidence over the course of seven days. The pre-
sentation of evidence began on October 26, 2015, and
concluded on November 4, 2015. Following closing
arguments and the jury charge, the jury began its delib-
erations on November 5, 2015, and the deliberations
took place over the course of six days. The jury
announced its verdict on November 13, 2015. Using
written notes, the jury or members of the jury communi-
cated with the court on many occasions during the jury
deliberations. On November 5, 2015, the first day of the
jury’s deliberations, the jury requested additional copies
of the court’s written instructions and asked for clarifi-
cation with regard to the court’s instructions. In another
note, the jury also asked to see an exhibit that was
marked for identification purposes only or, in the alter-
native, to rehear certain testimony. On November 6,
2015, the second day of the jury’s deliberations, the jury
asked to rehear the testimony of three witnesses. The
court responded to these requests.
On November 10, 2015, the fourth day of the jury’s
deliberations, the jury asked the court for clarification
with respect to the court’s instructions and to rehear
certain testimony. The court responded to these
requests. At 4:13 p.m., the jury sent the court two notes.
In the first note, the jury asked whether it could begin
its deliberations at 10:45 a.m. on November 12, 2015,
to accommodate a personal commitment made by a
juror to speak at a high school. The second note stated:
‘‘The jury, while willing to deliberate, is getting very
heated, and would do well with a short stop for today.
We are willing to continue deliberating but at this time
it is not beneficial.’’ The court responded to these
requests by adjourning for the day and permitting the
jury to resume its deliberations at 10:45 a.m. on Novem-
ber 12, 2015.3
On November 12, 2015, the fifth day of the jury’s
deliberations, the jury sent the court three notes. In the
first note, the jury asked the court to rehear certain
testimony. The court complied with the request. In the
second note, the jury asked for further guidance with
respect to accessorial liability and ‘‘the separate theo-
ries of liability.’’ The court responded to the jury’s
inquiry by noting that it already had provided the jury
with an instruction concerning accessorial liability, but
invited the jury to make additional inquiries as neces-
sary. The third note was from a juror, M.P.4 During jury
selection, the court had informed M.P. that it expected
the trial to be completed by November 13, 2015. At that
time, M.P. stated that he would not be available to serve
as a juror after November 10, 2015. The court responded
that there was a ‘‘very strong likelihood’’ that the trial
would be completed by November 10, 2015, and M.P.
was selected as a juror. In the note that M.P. sent to
the court on November 12, 2015, however, M.P. stated
that he would be available to participate in the trial on
November 13, 2015. Before the court excused the jury
for the day, it explained to the jury that Attorney J.
Patten Brown III, who had represented the defendant
during the trial until this point in time, would not be
present in court on November 13, 2015, but that Brown’s
associate, Attorney Alex Glomb, would be present.5
On November 13, 2015, the sixth and final day of the
jury’s deliberations, the court received five notes from
the jury. The court received the first three notes at 10:57
a.m. In the first note, the jury stated: ‘‘We are at a place
where we are not able to come to a unanimous decision.
We have on one count but are not able to on [counts]
1-4. We would [like] guidance.’’ In the second note, juror
D.N. indicated that because of a medical emergency
involving a close relative, he would be unable to con-
tinue to serve on the jury after November 13, 2015.6 In
the third note, juror J.D. stated in relevant part: ‘‘I am
unable to be at court for jury deliberations on Monday,
[November 16, 2015] due to prior engagement in NC. I
can return for Tuesday, [November 17, 2015] for deliber-
ations if necessary. If this is not possible, I would ask
to be excused from the jury. Thank you.’’
Upon receipt of these notes, the court, in the absence
of the jury, conferred with counsel. The court made a
general observation that, if the jury’s deliberations were
to go beyond November 13, 2015, there would be an
issue concerning juror availability. Then, in response
to the jury’s note concerning its inability to reach a
verdict, it proposed delivering the standard Chip Smith7
instruction to the jury, providing the jury with copies
of the instruction, and asking the jury to continue its
deliberations. The court provided counsel with a copy
of the instruction. The court also stated that it would
‘‘indicate to the jurors who have conflicts after today
that we’ll take that up later in the day.’’ The court asked
counsel if there was any objection to proceeding in this
manner, and both the prosecutor and defense counsel
replied that there was no objection.
The court summoned the jury to the courtroom and
stated: ‘‘We’ve received three notes from the jury this
morning, and I just want to go over those and explain
what the next steps in the process are.
‘‘The first note has been marked as court exhibit 25,
and it reads: We are at a place where we are not able
to come to a unanimous decision. We have on one count
but are not able to on count one through four. And then
it says, I’m assuming, we would like guidance. The jury
instruction that you’ve been provided with is the addi-
tional guidance that I’m going to provide.
‘‘We have also received two other notes from . . .
individual jurors, which have been marked as court
exhibit 26 and court exhibit 27. At this point we’ll
address that issue later today, after I give you this
instruction and ask that you continue with your deliber-
ations.
‘‘So, this is . . . the instruction to give when the jury
is having difficulty agreeing as to a verdict:
‘‘The instructions that I shall give you now are only
to provide you with additional information so that you
may return to your deliberations and see whether you
can arrive at a verdict. Along these lines I would like
to state the following to you:
‘‘The verdict to which each of you agrees must
express your own conclusion, and not merely the acqui-
escence and the conclusion of your fellow jurors. Yet,
in order to bring your minds to a unanimous result you
should consider the question you have to decide not
only carefully but also with due regard and deference
to the opinions of each other. In conferring together
you ought to pay proper respect to each other’s opinions
and listen with an open mind to each other’s arguments.
‘‘If the much greater number of you reach a certain
conclusion, dissenting jurors should consider whether
their opinion is a reasonable one when the evidence
does not lend itself to a similar result in the minds of
so many of you who are equally honest and equally
intelligent, [and] who have heard the same evidence
with an equal desire to arrive at the truth and under
the sanctions of the same oath.
‘‘But please remember this: do not ever change your
mind just because the other jurors see things differently
or to get the case over with. As I told you before, in
the end your vote must be exactly that: your own vote.
As important as it is for you to reach a unanimous
agreement, it is just as important that you do so honestly
and in good conscience.
‘‘What I have said to you is not intended to rush you
into agreeing on a verdict. Take as much time as you
need to discuss the matter. There is no need to hurry.
‘‘All right. So, at this point I’m going to ask that you
return to the jury room to continue with your delibera-
tions and then we’ll await any additional notes. Thank
you.’’ Both the prosecutor and defense counsel affirma-
tively stated that they did not have any further
comments.
At 11:30 a.m., the court received the fourth note of
the day. The note was from juror L.D. and stated: ‘‘I
would like the court to know that I am feeling attacked
as a juror. Thank you for giving us guidelines. I am
willing to keep an open mind and continue talking but
I felt very attacked yesterday.’’ The court shared the
note with the prosecutor and defense counsel, both of
whom indicated that they did not want the court to
canvass L.D. Glomb did not state that he needed to
discuss the matter with Brown. The court did not take
any further action with respect to the note.
At 2:39 p.m., the court received the fifth note of the
day, which stated: ‘‘We have the verdict! All counts 1-
5.’’ The court summoned the jury to the courtroom, and
the foreperson announced the jury’s finding of guilt
with respect to counts one (murder), two (murder), and
five (criminal possession of a firearm). The foreperson
announced the jury’s finding of not guilty with respect
to counts three (conspiracy to commit murder) and
count four (criminal possession of a firearm). The court
accepted the verdict and ordered that it be recorded.
At the defendant’s request, the jurors were individually
polled, and each juror affirmatively expressed his or
her agreement with the verdict. The court asked the
prosecutor and defense counsel if they were in agree-
ment that a unanimous verdict had been reached. The
prosecutor and defense counsel replied affirmatively.
For the first time on appeal, the defendant claims
that in light of the unique circumstances that existed
at the time that the court delivered the Chip Smith
instruction, the court’s use of the instruction was imper-
missibly coercive and, thus, denied him his right to due
process and his right to a jury trial. His claim does not
necessarily focus on the propriety of the court’s Chip
Smith instruction, but he contends that, in the present
case, ‘‘the court’s response to the deadlock note created
pressure and exacerbated existing pressures on the
jury, particularly the minority view juror(s), and that
all the coercive circumstances denied [him of] his right
to a fair jury trial.’’ The defendant argues that the claim
is reviewable pursuant to the bypass doctrine set forth
in State v. Golding, 213 Conn. 233, 239–40, 567 A.2d
823 (1989), as modified by In re Yasiel R., 317 Conn. 773,
781, 120 A.3d 1188 (2015).8 Additionally, the defendant
invites us to conclude that reversal of the judgment is
warranted under the plain error doctrine.9 See Practice
Book § 60-5.
In the defendant’s view, the court put undue pressure
on the jury to reach a verdict10 because (1) the court
‘‘used a particularly coercive anti-deadlock instruction,
directing only minority view jurors to reconsider their
position in light of the opinion of the majority’’; (2)
during jury selection, the court told prospective jurors
that it did not believe that the trial would continue
beyond Friday, November 13, 2015, and it delivered the
Chip Smith instruction following five days of delibera-
tions and without first responding to the notes sent by
D.N. and J.D., who had informed the court that they
would be unable to continue to serve as jurors if the
trial continued to Monday, November 16, 2015; (3) ‘‘[t]he
jury was left to wonder if the court would require delib-
erations to continue beyond [November 13, 2015] and
whether it must reach a verdict to be excused’’; (4) D.N.
informed the court that he would be unable to serve
after November 13, 2015, but the court did not respond
or determine whether his circumstance was causing
him pressure to ensure that a verdict was reached; (5)
L.D. informed the court that she had felt ‘‘attacked’’
during the deliberations, but the court’s lack of
response to L.D. and its Chip Smith instruction likely
indicated to the jury that ‘‘such pressures’’ placed on
minority view jurors were ‘‘sanctioned by the court’’;
and (6) the jury had deliberated for more than five days
and was unable to reach a verdict but, following the
Chip Smith instruction, the jury deliberated for only
two additional hours before reaching a verdict.
We begin our analysis under Golding by observing
that the record affords us the ability to review the
instructions provided to the jury as well as the relevant
circumstances under which the court’s instructions
were given. Moreover, the defendant’s claim is based
on a violation of his rights to due process and a jury
trial under the federal constitution and, thus, is constitu-
tional in magnitude. Because the claim is reviewable
under Golding, we turn to an examination of whether
the alleged constitutional violation exists and whether
it deprived him of a fair trial. Because the claim presents
a question of law, our review is plenary. See, e.g., State
v. Brown, 299 Conn. 640, 650, 11 A.3d 663 (2011) (ques-
tions of law afforded plenary review).
‘‘A jury that is coerced in its deliberations deprives
the defendant of his right to a fair trial under the sixth
and fourteenth amendments to the federal constitution,
and article first, § 8, of the state constitution. Whether
a jury [was] coerced by statements of the trial judge is
to be determined by an examination of the record. . . .
The question is whether in the context and under the
circumstances in which the statements were made, the
jury [was], actually, or even probably, misled or
coerced.’’ (Citations omitted; internal quotation marks
omitted.) State v. Pinder, 250 Conn. 385, 427, 736 A.2d
857 (1999); accord State v. Daley, 161 Conn. App. 861,
866, 129 A.3d 190 (2015), cert. denied, 320 Conn. 919,
132 A.3d 1093 (2016). We recognize that ‘‘a defendant
is not entitled to an instruction that a jury may hang
. . . [but] he is entitled to a jury unfettered by an order
to decide.’’ (Internal quotation marks omitted.) State v.
Breton, 235 Conn. 206, 239, 663 A.2d 1026 (1995).
‘‘Since 1881, our Supreme Court has approved of
instructing deadlocked juries that they should continue
to deliberate, with minority view jurors considering the
logic of the majority view jurors as they did so. . . .
In State v. O’Neil, 261 Conn. 49, 59, 801 A.2d 730 (2002),
although our Supreme Court continued to uphold such
instructions, it also recognized the potential for the
coercion of minority view jurors. Specifically, our
Supreme Court concluded that instructing jurors to con-
sider the opinions of majority view jurors is an accept-
able method of facilitating the deliberative process
when faced with a deadlocked jury, but that the court
must balance the instruction with a cautionary reminder
to jurors of their obligation as individuals to give their
own verdict without surrendering their conscientiously
held views. Id., 73. Although reaching a unanimous ver-
dict is an important public policy goal; id., 74; the defen-
dant’s due process rights also must be protected, and
the defendant has the right to ‘have each and every
juror vote his or her conscience irrespective of whether
such vote results in a hung jury.’ Id., 76.
‘‘To ensure that such a cautionary reminder be given
by our trial courts in future cases, our Supreme Court
adopted the following language as a model instruction:
‘The instructions that I shall give you now are only to
provide you with additional information so that you
may return to your deliberations and see whether you
can arrive at a verdict.
‘‘ ‘Along these lines, I would like to state the following
to you. The verdict to which each of you agrees must
express your own conclusion and not merely the acqui-
escence in the conclusion of your fellow jurors. Yet, in
order to bring your minds to a unanimous result, you
should consider the question you have to decide not
only carefully but also with due regard and deference
to the opinions of each other.
‘‘ ‘In conferring together, you ought to pay proper
respect to each other’s opinions and listen with an open
mind to each other’s arguments. If the much greater
number of you reach a certain conclusion, dissenting
jurors should consider whether their opinion is a rea-
sonable one when the evidence does not lend itself to
a similar result in the minds of so many of you who
are equally honest and equally intelligent, who have
heard the same evidence with an equal desire to arrive
at the truth and under the sanctions of the same oath.
‘‘ ‘But please remember this. Do not ever change your
mind just because other jurors see things differently or
to get the case over with. As I told you before, in the
end, your vote must be exactly that—your own vote.
As important as it is for you to reach a unanimous
agreement, it is just as important that you do so honestly
and in good conscience.
‘‘ ‘What I have said to you is not intended to rush you
into agreeing on a verdict. Take as much time as you
need to discuss the matter. There is no need to hurry.’
. . . Id., 74–75.
‘‘Since O’Neil, our courts have used such cautionary
language in what has become known as a Chip Smith
charge when instructing a deadlocked jury to consider
the majority view. Such language is not required, how-
ever, when the court merely tells jurors to continue
deliberating without instructing them in a potentially
coercive manner.’’ State v. Mitchell, 170 Conn. App. 317,
324–25, 154 A.3d 528, cert. denied, 325 Conn. 902, 157
A.3d 1146 (2017). ‘‘[A] Chip Smith charge, while encour-
aging a continued search for unanimity, also stresses
that each juror’s vote must be his [or her] own conclu-
sion and not a mere acquiescence in the conclusions
of his [or her] fellows . . . . The language of the charge
does not direct a verdict, but encourages it.’’ (Citation
omitted; internal quotation marks omitted.) State v. Fel-
iciano, 256 Conn. 429, 440, 778 A.2d 812 (2001).
With respect to the court’s Chip Smith instruction,
the defendant argues both that the instruction is ‘‘[not]
always unduly coercive’’ but that he nonetheless
‘‘believes O’Neil was wrongly decided and [that] the
better approach would be not to give an instruction
singling out minority view jurors . . . .’’ We observe
that the court’s Chip Smith instruction mirrored that
approved by our Supreme Court in State v. O’Neil,
supra, 261 Conn. 59. Moreover, defense counsel did not
object to the court’s instruction.11 To the extent that
the defendant urges this court to conclude that O’Neil
was wrongly decided, we unequivocally decline to do
so. See, e.g., State v. LaFleur, 156 Conn. App. 289, 302–
303, 113 A.3d 472 (this court is unable to overrule,
reevaluate, or reexamine controlling precedent of our
Supreme Court), cert. denied, 317 Conn. 906, 114 A.3d
1221 (2015).
To the extent that the defendant argues that the cir-
cumstances in which the court delivered the Chip Smith
instruction resulted in the court’s having applied
improper pressure on the jury to reach a verdict, we
reject this argument. The defendant focuses on the fact
that the court delivered the instruction on a Friday
morning, following five days of deliberations, and that
two jurors had notified the court that they would be
unable to deliberate on Monday. Moreover, the defen-
dant focuses on the fact that, during jury selection, the
court informed the jurors that it anticipated that the
trial would be completed by November 13, 2015, the
day on which the court delivered the Chip Smith instruc-
tion and the jury reached its verdict. The court’s state-
ments during jury selection plainly were intended to
determine whether prospective jurors were available
to serve as jurors during the dates of the trial and, in
light of all of the court’s later instructions to the jury
concerning its deliberations, may not reasonably be
interpreted to suggest that a verdict by November 13,
2015, was expected or required by the court. The court
neither instructed the jury nor implied that it was
required to reach a verdict or that it was required to
reach a verdict at a particular time. See, e.g., United
States v. Badolato, 710 F.2d 1509, 1514–15 (11th Cir.
1983) (fact that court did not instruct jury that it was
required to reach verdict or that it was required to do
so at that time weighed against conclusion that jury
had been coerced).
Any concern that the jury may have believed that it
was expected or required to reach a verdict on Novem-
ber 13, 2015, was readily addressed by the court in its
Chip Smith instruction. The court did not state, in that
instruction or prior to that instruction, that the jury was
expected or required to reach a verdict on November
13, 2015, or at any particular time. Instead, the court
emphasized that each juror was expected to honestly
and in good conscience reach a conclusion, and that
no juror should change his or her mind ‘‘to get the case
over with.’’ Moreover, the court concluded its instruc-
tion by stating: ‘‘What I have said to you is not intended
to rush you into agreeing on a verdict. Take as much
time as you need to discuss the matter. There is no
need to hurry.’’ There is no basis in the record to suggest
that the jury either did not understand or did not follow
this plain instruction.
The defendant argues that ‘‘[t]he jury was left to won-
der if the court would require deliberations to continue
beyond [November 13, 2015] and whether it must reach
a verdict in order to be excused.’’ He submits that the
circumstances were coercive because ‘‘[t]he court did
not advise the jury that it need not reach a verdict in
order to be excused at the end of the day. To the con-
trary, it suggested that the court would wait as long as
it took to reach a unanimous verdict.’’ The defendant’s
argument is undermined by the fact that, prior to
November 13, 2015, the jury had deliberated for five
days. The jury did not reach a verdict on any of these
prior days, yet it was excused at the end of each day.
On November 10, 2015, the court received a note from
the jury in which it stated that deliberations were ‘‘get-
ting very heated’’ and that continued deliberations
would not be ‘‘beneficial.’’ In response to this note, the
court permitted the jury to be excused for the day. In
light of this prior experience of the jury, the defendant’s
argument that the jury would have believed that it would
not be excused if it did not reach a verdict is not per-
suasive.
The defendant correctly observes that, in its jury
charge, the court stated that the jury’s ‘‘task’’ was to
return a verdict and stated that, with respect to each
count, the jury had the option of finding the defendant
guilty or not guilty. Additionally, the defendant focuses
on the fact that, during its charge, the court stated that
the jury was ‘‘duty bound’’ to return a verdict of guilty
or not guilty with respect to each count.
These statements in the court’s charge, however, did
not impermissibly suggest that the jury was required
to reach a unanimous verdict. Reviewing the court’s
use of the phrase, ‘‘duty bound,’’ in greater context
reflects that the court did not suggest that it would not
accept the jury’s failure to reach a unanimous verdict,
but merely that a verdict of guilty or not guilty must
be unanimous. The court stated: ‘‘I impress upon you
that you are duty bound as jurors to determine the facts
on the basis of the evidence as it has been presented,
to apply the law as I have outlined it, and then to render
a verdict of guilty or not guilty as to each of the crimes
charged. When you reach a verdict, it must be unani-
mous. It is the duty of each juror to discuss and consider
the opinions of the other jurors. Despite that, in the
last analysis, it is your individual duty to make up
your own mind and to decide this case upon the basis
of your own individual judgment and conscience.’’
(Emphasis added.) In light of the fact that the jury
sent several notes to the court during the course of
its deliberations, including several notes in which it
requested further instruction, we observe that, after it
had received the Chip Smith instruction, the jury did not
ask the court for any further clarification with respect
to the instruction.
The defendant also focuses on the content of the
note sent to the court by juror D.N. See footnote 6 of
this opinion. The defendant argues that D.N.’s ‘‘circum-
stances suggest distraction, worry and pressure to fin-
ish to take care of this important and emotional family
matter. The court did not respond, determine whether
this was having a coercive effect on [D.N.] during delib-
erations—distracting or agitating him, pressuring him
to agree, or causing him to pressure others to agree
with him—or assure him that he would be excused at
the end of the day on [November 13, 2015], whether or
not there was a unanimous decision.’’
The defendant incorrectly states that the court did
not respond to D.N.’s note. The record reflects that,
after it had received the note and had summoned the
jury to the courtroom to deliver its Chip Smith instruc-
tion, the court observed that it had received notes from
D.N. and J.N., had marked them as court exhibits, and
that it would ‘‘address that issue later today, after I give
you this instruction and ask that you continue with
your deliberations.’’ The court asked the prosecutor
and defense counsel if there was any objection to
informing the jurors who had informed the court about
scheduling conflicts that it would address the issue later
that day. The prosecutor and defense counsel replied,
‘‘No, Your Honor.’’
Setting aside the fact that defense counsel agreed to
the court’s response to D.N.’s note, and that defense
counsel did not ask the court to conduct any further
inquiry, we are not persuaded that D.N.’s note suggests
that he was distracted, agitated, or likely to have felt
pressured to agree or to cause others to agree with his
view of the case. D.N.’s note simply alerted the court to
the existence of a family emergency that would require
D.N.’s absence beginning on November 16, 2015, not
sooner.
The defendant also focuses on the note that L.D. sent
to the court, after the court delivered its Chip Smith
instruction, in which she stated that she ‘‘felt very
attacked [as a juror] yesterday.’’ (Emphasis added.) The
defendant argues that, by failing to address the note,
the court somehow sanctioned the pressure that L.D.
was under by other members of the jury and that its
inaction ‘‘served to increase the pressures on the [other]
minority view jurors.’’
After the court received L.D.’s note, it shared it with
the prosecutor and defense counsel. Defense counsel
expressly declined the opportunity to canvass L.D. with
respect to the note. Setting aside the fact that defense
counsel thereby prompted the court’s alleged ‘‘inaction’’
with respect to the note, we are not persuaded that the
note reflects that, at the time L.D. sent the note to the
court, it was evidence of continued undue pressure on
L.D. or any other minority view jurors. As we have
stated previously in this opinion, L.D. began the note
by stating that she was ‘‘feeling attacked as a juror.’’
Then, alluding to the court’s Chip Smith instruction,
she thanked the court for providing the deadlocked jury
with additional guidance and indicated that she would
‘‘keep an open mind and continue talking . . . .’’ L.D.
ended the note by using the past tense, stating that
she ‘‘felt very attacked yesterday.’’ (Emphasis added.)
Viewing the note in its entirety, we conclude that the
court reasonably could have interpreted the note to
reflect that, after it delivered its Chip Smith instruction,
L.D. felt better about continuing her deliberations with
the rest of the members of the jury. Nothing about L.D.’s
note reflects that she was unwilling to follow the court’s
Chip Smith instruction. To the contrary, consistent with
the Chip Smith instruction, L.D. expressed her willing-
ness to keep an open mind and to continue engaging
in a dialogue with her fellow jurors. She did not state
that she was unwilling to continue to serve as a juror
or that she was inclined to abandon her conscience or
to rush into agreeing on a verdict. Accordingly, we are
not persuaded that L.D.’s note suggests that L.D. or any
other member of the jury felt coerced into arriving at
a verdict.
Finally, the parties agree that, following the Chip
Smith instruction, the jury deliberated for approxi-
mately two hours before arriving at a verdict. Prior to
the Chip Smith instruction, the jury indicated that it
was deadlocked with respect to counts one through
four of the state’s information (in which the defendant
was charged with two counts of murder, conspiracy to
commit murder, and criminal possession of a firearm).
The defendant argues that, because the jury deliberated
for all or part of five days prior to the Chip Smith
instruction, ‘‘the short time of additional deliberation
[following the Chip Smith instruction] suggests
coercion.’’
The defendant’s argument is based on a comparison
of the time that the jury spent deliberating following the
Chip Smith instruction and the time it spent deliberating
and listening to the playback of testimony during the
five prior days of deliberation. It suffices to observe
that, during the prior days of deliberation, the jury spent
a lengthy amount of time listening to the playback of
testimony from Rojas, Gonzalez, Rodrick, Poma, Detec-
tive Reginald Early, and Quintero. Our case law does
not furnish a mathematical formula for this court to
apply to determine whether the amount of time that
has lapsed between a jury’s additional deliberation fol-
lowing a Chip Smith instruction and its verdict indicates
that the jury was coerced into reaching a verdict. We
are not persuaded that the two hours of additional delib-
eration following the court’s Chip Smith instruction
reflected that impermissible coercion had been brought
to bear by the court in the present case.
In conclusion, we are not persuaded that the court’s
Chip Smith instruction or the circumstances in which
it was given reflect that the court coerced the jury into
reaching a verdict.12 Our conclusion is bolstered by the
fact that, at the defendant’s request, the members of
the jury were individually polled with respect to their
verdicts and that no juror expressed hesitation or dis-
agreement with respect to the verdicts.
In light of the foregoing, we are not persuaded that
the alleged constitutional violation exists and that the
defendant was deprived of a fair trial. The claim fails
under Golding’s third prong.13
II
Next, the defendant claims that the court improperly
denied his motion for a mistrial and his request for a
postverdict inquiry into juror coercion. We disagree.
The following additional facts are relevant to the
present claim. On January 21, 2016, the defendant filed
a handwritten letter with the court in which he asked
the court to set aside the verdict prior to the time of
sentencing.14 At the sentencing hearing on February 4,
2016, defense counsel, Brown, moved orally for a mis-
trial on several grounds. Defense counsel clarified that
his arguments were based on the defendant’s letter to
the court, stating that he was discussing ‘‘things my
client wanted me to state . . . all as a basis for a
mistrial.’’
First, defense counsel stated, ‘‘[a]s you know, there
was an issue with a juror note. My client doesn’t feel
that was fully explored.’’ Although defense counsel did
not explicitly state before the trial court that he was
referring to the note sent to the court from L.D. on
November 13, 2015, it appears from the prosecutor’s
arguments that she understood defense counsel’s argu-
ment to be based on L.D.’s note. Moreover, in his appel-
late brief, the defendant has clarified that his argument
was, in fact, based on L.D.’s note, which we have dis-
cussed more fully in part I of this opinion. Defense
counsel admitted that he did not remember many of
the details concerning ‘‘the juror note,’’ such as whether
it was sent before or after the court delivered its Chip
Smith instruction, but he recalled that he ‘‘was con-
sulted and . . . did speak with the court about that
. . . . I just don’t remember the substance of the con-
versation.’’ The prosecutor reminded the court and
Brown that Brown’s associate, Glomb, was present at
the time the note was sent to the court and that, at that
time, Brown was available by phone. The prosecutor
also reminded the court that, after it received the note,
it did not believe any action needed to be taken with
respect to the note and that, shortly thereafter, the jury
sent a note to the court in which it indicated that it had
reached a verdict.
Second, defense counsel argued that the defendant
was of the opinion that the jury’s verdict with respect
to the murder and conspiracy counts was inconsistent.
Third, defense counsel raised a claim seemingly based
on prosecutorial impropriety by arguing that both he
and the defendant believed that he had been ‘‘sub-
ject[ed] to many frivolous personal attacks both on and
off the record, in and out of the court’s presence, by
the prosecutors alleging ethical violations that are non-
existent.’’ With respect to these alleged attacks, defense
counsel stated that although the defendant believed
that they were ‘‘done intentionally to affect [his] perfor-
mance,’’ he disagreed with the defendant that the
attacks affected his representation of the defendant.
Defense counsel stated that the first two grounds were
‘‘viable issues’’ in support of his motion for a mistrial.
After hearing argument from the prosecutor, the court
summarily denied the motion for a mistrial.
The defendant, relying solely on the ground related
to the court’s response to the jury note sent by L.D., now
claims that the court abused its discretion in denying
the motion for a mistrial. He also argues that the court
abused its discretion in denying his request for a post-
verdict inquiry into jury coercion. The defendant argues
that ‘‘the court failed to conduct any inquiry on the
record following L.D.’s note . . . . Given the coercive
factors here, there are substantial grounds showing that
[the] defendant was denied a fair trial.’’
As a preliminary matter, we observe that although
the defendant couches the present claim as one in which
the court improperly denied his motion for a mistrial
and ‘‘abused its discretion in denying . . . [his] request
for postverdict inquiry,’’ we do not interpret the defen-
dant’s handwritten letter to the court, nor the arguments
advanced by defense counsel at the time he argued for
a mistrial, to have constituted a request for a further
inquiry of one or more members of the jury. Likewise,
the court did not explicitly state that it was denying a
motion for a further inquiry of one or more jurors.
Instead, the court stated: ‘‘If I’m going to treat this as
a motion for a mistrial and any other postconviction
motion, pursuant to Practice Book §§ 42-50 through 42-
56, I’m going to deny the motion.’’ Furthermore, in light
of the arguments set forth in the defendant’s appellate
brief, we do not interpret the defendant’s analysis of
the present claim to be based on the court’s failure to
conduct a further inquiry of L.D., either at the time of
the jury’s deliberations or following the jury’s verdict,
but rather the court’s denial of the defendant’s motion
for a mistrial based on its failure to conduct a further
inquiry of L.D. at the time of trial. Because we are
unable to review a ruling that does not exist, we will
limit our review to the court’s denial of the motion for
a mistrial.
‘‘[T]he principles that govern our review of a trial
court’s ruling on a motion for a mistrial are well estab-
lished. Appellate review of a trial court’s decision grant-
ing or denying a motion for a [mistrial] must take into
account the trial judge’s superior opportunity to assess
the proceedings over which he or she has personally
presided. . . . Thus, [a] motion for a [mistrial] is
addressed to the sound discretion of the trial court and
is not to be granted except on substantial grounds. . . .
In our review of the denial of a motion for [a] mistrial,
we have recognized the broad discretion that is vested
in the trial court to decide whether an occurrence at
trial has so prejudiced a party that he or she can no
longer receive a fair trial. The decision of the trial court
is therefore reversible on appeal only if there has been
an abuse of discretion. . . .
‘‘In reviewing a claim of abuse of discretion, we have
stated that [d]iscretion means a legal discretion, to be
exercised in conformity with the spirit of the law and
in a manner to subserve and not to impede or defeat
the ends of substantial justice. . . . In general, abuse
of discretion exists when a court could have chosen
different alternatives but has decided the matter so
arbitrarily as to vitiate logic, or has decided it based
on improper or irrelevant factors. . . . Therefore, [i]n
those cases in which an abuse of discretion is manifest
or where injustice appears to have been done, reversal
is required.’’ (Internal quotation marks omitted.) State
v. Holley, 327 Conn. 576, 628, 175 A.3d 514 (2018).
We discussed the circumstances surrounding L.D.’s
note in part I of this opinion. This includes the fact that
Glomb was present during the proceeding on behalf of
the defendant on November 13, 2015. We now set forth
more fully the colloquy that transpired between the
court, the prosecutor, and Glomb after the court
received the note:
‘‘The Court: Good afternoon. We’ve received some
notes from the jury. The first is court exhibit 28, and
it was received from one of the jurors, [L.D.] and I have
shared it with both sides. Does either side want to
canvass [L.D.] before we go any further?
‘‘[The Prosecutor]: No, Your Honor.
‘‘[Defense Counsel]: No, Your Honor.
‘‘The Court: Both parties have indicated that they
don’t see a need to canvass [L.D.], so we won’t do that
at this point.
‘‘Then, we’ve also received another note from the
jury, it’s been marked as court exhibit 30, and it indi-
cates that, we have the verdict on all counts, one
through five.
‘‘Anything before we bring the jury in?
‘‘[The Prosecutor]: No, Your Honor.
‘‘[Defense Counsel:] No, Your Honor.’’
The foregoing colloquy reflects that Glomb waived
any claim that the court failed to conduct a further
inquiry of L.D. on November 13, 2015. ‘‘The mechanism
by which a right may be waived . . . varies according
to the right at stake. . . . When a party consents to
or expresses satisfaction with an issue at trial, claims
arising from that issue are deemed waived and may
not be reviewed on appeal.’’ (Internal quotation marks
omitted.) State v. Foster, 293 Conn. 327, 337, 977 A.2d
199 (2009).
The state urges us to conclude that defense counsel
waived any claim that the court should have granted
his motion for a mistrial on the basis of L.D.’s note. We
disagree. At trial, the defendant waived any claim that
the court failed to canvass L.D. at the time it received
her note. In exercising its discretion on the motion for
a mistrial, however, the court was obliged to determine
whether, in light of the trial proceedings as a whole,
the defendant received a fair trial. Given that defense
counsel, in his role at trial, had an immediate duty to
protect the defendant’s rights, the fact that counsel
expressly agreed with the court’s response to L.D.’s
note undoubtedly was compelling evidence that the
defendant’s right to a fair trial had not been violated.
Yet, having been presented with the motion for a mis-
trial on the basis of L.D.’s note, the court could well
have decided upon its consideration of all the proceed-
ings over which it had presided, including events that
transpired after it had received L.D.’s note, that despite
defense counsel’s waiver, the defendant was entitled
to a new trial on the basis of the note. Thus, in connec-
tion with the present claim, we interpret the effect of
the waiver more narrowly than does the state.
As we have discussed in part I of this opinion, L.D.’s
note appears to have memorialized the fact that L.D.
felt ‘‘attacked’’ as a juror but, following the court’s Chip
Smith instruction, she was ready and willing to continue
to deliberate with her fellow jurors. Importantly, L.D.
thanked the court for providing the jury with additional
guidance and did not make any request of the court.
Therefore, it was reasonable to infer that her note was a
strong indication that the court’s Chip Smith instruction
was effective and that, despite any hostility during delib-
erations, she was open-minded and ready to continue
talking with the other members of the jury. After the
court’s Chip Smith instruction, the jury deliberated for
defendant’s request, the jurors, including L.D., were
polled individually—and, obviously, in the court’s pres-
ence—and no juror expressed even the slightest reser-
vation or disagreement concerning the verdict
announced by the foreperson.
Despite the difficulty experienced by the jury in
reaching its verdict, we are mindful that ‘‘[t]he alleged
demeanor of the jury during its deliberations is not an
appropriate basis on which to assess the coercive effect
of a jury instruction. More relevant is the manner in
which the jurors individually announced their unani-
mous verdict.’’ (Footnote omitted.) State v. Feliciano,
supra, 256 Conn. 444. The fact that the jury had difficulty
reaching a unanimous verdict but, following further
instruction and deliberation, was able to reach a unani-
mous verdict does not in and of itself give rise to a
concern that the jury was coerced into reaching its
verdict. ‘‘Changes of positions by jurors as a conse-
quence of deliberations are an appropriate feature of
the deliberative process.’’ United States v. Badolato,
supra, 710 F.2d 1515. In light of the foregoing, we are
not persuaded that the court abused its discretion in
denying the motion for a mistrial.
III
Finally, the defendant claims that the court deprived
him of his right to due process by failing to provide
the jury with additional guidance with respect to the
principle of accessorial liability. We disagree.
The following additional facts are relevant to this
claim. As we stated previously in this opinion, the state
charged the defendant with two counts of murder as a
principal or as an accessory in violation of §§ 53a-54a
and 53a-8.15 It does not appear that either party filed
requests to charge. On November 3, 2015, two days
prior to delivering its jury charge, the court provided
a copy of its draft jury charge to the parties. Although
the court made some further revisions to the instruc-
tions pertaining to counts one and two, it suffices to
observe that the deficiencies that the defendant now
claims to have existed in the court’s charge were
reflected in the court’s proposed charge that it provided
to the parties.
On November 4, 2015, the court held a lengthy charg-
ing conference during which the prosecutor and
defense counsel raised a number of issues concerning
specific instructions in the court’s proposed charge.
With respect to the accessorial liability instruction at
issue in the present claim, the prosecutor stated: ‘‘The
thing I was questioning is the principal versus acces-
sory. So, in the beginning of the murder charge, it says
that [the defendant is] charged under the accessory
liability statute and . . . it says separate theories of
liability, but it’s not clear what the other theory [of
liability] is. Like, later on in the instruction, it says you
can find him [guilty] as a principal or an accessory, so
I was just wondering if there’s a way that that could
be kind of explained up front.’’ The court stated that it
had based its instruction on the standard criminal jury
instruction and that it was not inclined to make any
change to it. The court noted that although the instruc-
tion was ‘‘not as clear . . . as you hope it could be,’’
it nonetheless believed that it was ‘‘an accurate state-
ment of the law.’’ Defense counsel did not raise any
objection to this portion of the court’s charge. There-
after, after the court made additional revisions to its
proposed charge on the basis of its conversations with
the parties, the court provided the parties with revised
instructions. After reviewing the revised instructions,
neither the prosecutor nor defense counsel raised any
additional objection to the court’s murder instruction.
At the conclusion of the charging conference, defense
counsel noted that he had ‘‘[j]ust one final point’’ to
make with respect to the court’s cooperating witness
instruction, noting that it was his ‘‘only thing . . . [his]
exception’’ to the charge.
In its jury charge, the court instructed the jury with
respect to the essential elements of the murder charges
and with respect to principles of accessorial liability.16
As we stated previously in this opinion, on November
12, 2015, the fifth day of the jury’s deliberations, the
court received a note from the jury, stating: ‘‘Could
we please have clarification or the definition of the
accessory liability statute? And the separate theories
of liability. Bottom pg. 25.’’17 Outside of the presence
of the jury, the court shared the contents of the jury’s
note with the prosecutor and defense counsel, and
stated: ‘‘What I would propose is that we bring the jury
in and . . . tell them that we received the note, and
we need them to be more specific as to what they’re
asking. Because I think this is basically a very general
request and it’s hard to know . . . how to answer it
otherwise. Is that agreeable?’’ The prosecutor stated:
‘‘Yes, sir.’’ Defense counsel stated: ‘‘Yes.’’
In the presence of the jury, the court read the note
aloud and stated in relevant part: ‘‘I’ve had a chance to
consult with the attorneys regarding the note, and at
this point we’re not sure what you’re asking exactly.
So, we would ask that you think about it some more,
and if you can provide us with another note indicating
if you have specific questions.
‘‘The jury instructions that were provided are consid-
ered the jury instructions for accessory liability. So,
that’s the standard criminal jury instructions. So, if you
have specific questions regarding the standard criminal
jury instructions, if you can put that in a note and then
we’ll have a better idea as to how to respond. Okay?
‘‘So . . . what I would ask that you do is, if you can
return to the jury room, consider that. If you do want
to provide us with another note, do that; otherwise, at
about . . . 4:45 or so we’re going to have to adjourn
until tomorrow.’’
After the jury exited the courtroom, the court stated:
‘‘What I would suggest is just to wait at this point; we’ll
just kind of be on standby and hopefully get a note
back from the jury.’’ Thereafter, the jury did not provide
the court with another note concerning the instruction
at issue, neither the prosecutor nor defense counsel
asked the court to take any further action with respect
to the note, and the court did not sua sponte take any
further action with respect to the note.18
For the first time on appeal, the defendant claims
that the court’s response to the jury’s note denied him
his right to due process and created a reasonable possi-
bility that the jury was misled about the state’s burden
of proof. The defendant correctly acknowledges that
this claim is unpreserved. He seeks review under the
bypass doctrine set forth in State v. Golding, supra, 213
Conn. 239–40, and the plain error doctrine. See Practice
Book § 60-5.
The state asserts, and we agree, that the defendant
waived any claim of error regarding the court’s response
to the jury’s note. ‘‘[W]aiver is [t]he voluntary relin-
quishment or abandonment—express or implied—of a
legal right or notice. . . . In determining waiver, the
conduct of the parties is of great importance. . . .
[W]aiver may be effected by action of counsel. . . .
When a party consents to or expresses satisfaction with
an issue at trial, claims arising from that issue are
deemed waived and may not be reviewed on appeal.
. . . Thus, [w]aiver . . . involves the idea of assent,
and assent is an act of understanding. . . . The rule is
applicable that no one shall be permitted to deny that
he intended the natural consequences of his acts and
conduct. . . . In order to waive a claim of law it is not
necessary . . . that a party be certain of the correct-
ness of the claim and its legal efficacy. It is enough
if he knows of the existence of the claim and of its
reasonably possible efficacy. . . . Connecticut courts
have consistently held that when a party fails to raise
in the trial court the constitutional claim presented on
appeal and affirmatively acquiesces to the trial court’s
order, that party waives any such claim.’’ (Citation omit-
ted; internal quotation marks omitted.) State v. Grasso,
189 Conn. App. 186, 225–26, 207 A.3d 33, cert. denied,
331 Conn. 928, 207 A.3d 519 (2019).
This court addressed a procedurally similar issue in
Grasso, in which the defendant claimed that, during
jury deliberations, the trial court had not adequately
responded to a jury note, thereby violating her right to
due process and her right to the effective assistance of
counsel. Id., 222. This court concluded that, at trial, the
defendant waived the constitutional claim raised on
appeal because defense counsel had not merely failed
to object to the trial court’s response, but had expressly
stated to the trial court that he did not object to the
court’s responding to the note in the manner that it
did. Id., 223. This court stated that ‘‘[p]ermitting the
defendant now to object to the court’s proposed
response, after defense counsel acquiesced in it at the
time of trial, would constitute an ambuscade of the trial
court.’’ Id., 227. The waiver analysis set forth in Grasso
applies to the claim at issue in the present case, as well.
Having concluded that the claim was waived, we like-
wise conclude that the defendant is unable to prevail
under Golding.19 ‘‘[A] constitutional claim that has been
waived does not satisfy the third prong of the Golding
test because, in such circumstances, we simply cannot
conclude that injustice [has been] done to either party
. . . .’’ (Citations omitted; emphasis omitted; internal
quotation marks omitted.) State v. Hampton, 293 Conn.
435, 448–49, 988 A.2d 167 (2009); see also Mozell v.
Commissioner of Correction, 291 Conn. 62, 70, 967 A.2d
41 (2009); State v. Frazier, 181 Conn. App. 1, 36, 185
A.3d 621, cert. denied, 328 Conn. 938, 184 A.3d 268
(2018).
To the extent that the defendant seeks reversal under
the plain error doctrine,20 we are not persuaded that
plain error exists. Generally, ‘‘[t]his court has adhered
to the view that waiver thwarts a finding that plain error
exists.’’ State v. Bialowas, 160 Conn. App. 417, 430, 125
A.3d 642 (2015), remanded, 325 Conn. 917, 163 A.3d
1204 (2017). Nonetheless, our Supreme Court has
observed that ‘‘there appears to be some tension in our
appellate case law as to whether reversal on the basis
of plain error could be available in cases where the
alleged error is causally connected to the defendant’s
own behavior.’’ State v. Darryl W., 303 Conn. 353,
371–72 n.17, 33 A.3d 239 (2012); see also State v.
McClain, 324 Conn. 802, 805, 812, 155 A.3d 209 (2017)
(waiver of claim of instructional error under State v.
Kitchens, 299 Conn. 447, 10 A.3d 942 [2011], does not
‘‘necessarily foreclose’’ or ‘‘preclude’’ reviewing court
from affording relief under plain error doctrine).
Even if we assume that consideration of plain error
is proper, the defendant has not demonstrated that plain
error exists. ‘‘If the jury, after retiring for deliberations,
requests additional instructions, the judicial authority,
after providing notice to the parties and an opportunity
for suggestions by counsel, shall recall the jury to the
courtroom and give additional instructions necessary
to respond properly to the request or to direct the jury’s
attention to a portion of the original instructions.’’ Prac-
tice Book § 42-27; see also State v. Fletcher, 207 Conn.
191, 193, 540 A.3d 370 (1988). Logically, the court’s
obligation in this regard is limited by its ability to under-
stand the jury’s request. The facts at issue are not in
dispute. The court received a note in which the jury
asked for ‘‘clarification or the definition of the acces-
sory liability statute . . . [a]nd the separate theories
of liability.’’ We agree with the court that this request
is not a model of clarity. The court did not, however,
disregard the note due to its lack of clarity. Instead, it
proposed asking for further clarification from the jury,
which had a considerable track record of communicat-
ing with the court by means of written notes. After
counsel agreed with this reasonable course of action,
the court informed the jury that it had provided it with
the standard criminal jury instruction, and asked the
jury to spend some more time thinking about the issue
and to provide it with any specific questions that it had
about the instruction. The court did not reiterate its
prior instruction, a written copy of which the jury
already had in its possession, or attempt to clarify its
prior instruction because, as it indicated, the jury had
not yet set forth with specificity questions that it had
about the instruction. The court’s appropriate response
was to ask the jury to be more specific in terms of
what, if anything, it did not understand. The court
encouraged the jury to seek whatever further guidance
it deemed necessary and, absent any indication to the
contrary, we presume that the jury followed the court’s
instructions and did not have need of further guidance.
See, e.g., State v. Helmedach, 125 Conn. App. 125, 136–
37, 8 A.3d 514 (2010), aff’d, 306 Conn. 61, 48 A.3d 664
(2012).
In light of the foregoing facts, we conclude that, with
respect to the manner in which the court responded to
the jury’s note, the defendant has failed to demonstrate
the existence of an error that is so obvious that it affects
the fairness and integrity of and public confidence in
the judicial proceedings.
We also observe that, in the context of challenging
the court’s response to the jury’s note concerning acces-
sorial liability, the defendant appears to raise a distinct
challenge to the court’s charge with respect to accesso-
rial liability. Specifically, the defendant argues that
‘‘[t]he state did not, in the information or summation,
articulate for the jury (or for [the] defendant or the
court) its theory of what constituted intentional aid in
the murders. The court did not mention any facts or
specify any alleged act in its accessory charge. The jury
was left to determine without guidance how the law
was to be applied to this evidence.’’
To the extent that the defendant challenges the
court’s instructions under Golding, the claim of instruc-
tional error fails under Golding’s third prong because
the defendant impliedly waived any objection to the
instructions under the rule set forth in State v. Kitchens,
supra, 299 Conn. 482–83. In Kitchens, our Supreme
Court concluded that ‘‘when the trial court provides
counsel with a copy of the proposed jury instructions,
allows a meaningful opportunity for their review, solic-
its comments from counsel regarding changes or modi-
fications and counsel affirmatively accepts the instruc-
tions proposed or given, the defendant may be deemed
to have knowledge of any potential flaws therein and
to have waived implicitly the constitutional right to
challenge the instructions on direct appeal.’’ Id. As our
discussion of the relevant procedural history reflects,
the court provided counsel with a copy of its proposed
jury instructions, including its instructions on the mur-
der counts, allowed a meaningful opportunity for
review of its instructions, solicited comments from
counsel, and defense counsel affirmatively stated that
the defendant’s only exceptions concerned other por-
tions of the charge. Moreover, after the jury sent its
note to the court with respect to the accessorial liability
instruction, defense counsel, Brown, indicated in rele-
vant part that, if the jury sought further guidance with
respect to the instruction in his absence on November
13, 2015, he did not object to the court simply reiterating
the instruction that it had provided to the jury in its
charge. Brown specifically stated that ‘‘further instruc-
tion’’ was unnecessary in light of the evidence. See
footnote 18 of this opinion. On this record, we conclude
that the defendant implicitly waived any claim of error
related to the court’s jury instruction concerning acces-
sorial liability.
Finally, in light of the defendant’s invocation of the
plain error doctrine, we consider whether the court’s
accessorial liability instruction reflects plain error.21
The defendant argues in relevant part: ‘‘The instructions
in this case had to provide sufficient guidance on the
law to convey to the jury what [the] state had to prove
beyond a reasonable doubt and to allow the jury to
apply the law to the facts in order to prove accessorial
liability. When the jury asked for additional guidance
during deliberations, the court erred in failing to provide
it. Without any theory articulated as to what conduct
allegedly aided in the murders, or more specifically,
what conduct [the] defendant perpetrated with the
intent to aid and that did aid in the commission of
murder, the jurors were left to create their own theories
about what [the] defendant could have done to aid in
the murders. Under the circumstances, it is reasonably
possible that the jury resorted to speculation, failed to
understand that [the] defendant had to have the intent
to kill, failed to connect whatever action it decided that
[the] defendant took with intent to kill at the time of
the shooting, or accepted the state’s invitation to
assume intent to kill based on the earlier robbery, gang
affiliation and presence [at the scene of the shooting].’’
The defendant also argues in relevant part: ‘‘The only
evidence of any act on the defendant’s part was [his]
setting up the meeting on Benton Street, asking Rodrick
to take [Quintero and Burgos] to their homes [following
the shooting], and [his] taking home [Rodriguez’] cell
phone . . . . The jury needed to understand that it had
to find that when [the] defendant set up the meeting,
he did so with [the] intent to kill the victims. An
exchange gone wrong, or an encounter turned sour,
would not suffice. Alternatively, the jury needed to
understand that it had to find that any acts that occurred
after the shooting were conducted because [the] defen-
dant had the intent to kill and [that he] committed those
acts to aid in the commission of the murders at the
time [that] the murders occurred. The temporal nexus
is never mentioned at all in the accessory instruction,
and [the] ‘intent to kill’ is never explicitly mentioned,
either. . . . Rather, the court repeatedly used the
phrase, ‘acting with the mental state required for com-
mission of murder,’ and left the jury to understand that
the intent to kill is the mental state required for murder.
The jurors could have understood the proximate cause
instruction to find that if the defendant robbed the
victims or set up the meeting on Benton [Street], and
either of those incidents led to the shooting and the
victims’ deaths, then [the] defendant is responsible even
if he did not intend for the deaths to occur.’’
Essentially, the defendant’s claim of plain error
relates to what he views as the court’s failure to marshal
the evidence such that the jury was made aware of
what evidence, if any, the state relied on to demonstrate
that he had intentionally aided one or more other per-
sons in connection with the victims’ murders. This argu-
ment is advanced on appeal despite the fact that, at
trial, defense counsel voiced his agreement with the
instruction delivered in the court’s charge and argued
that, on the basis of the evidence, ‘‘further instruction’’
was unnecessary. See footnote 18 of this opinion. The
defendant asserts that, during argument, the prosecutor
failed to provide the jury with any evidentiary theory
of accessory liability, as well. Although the defendant’s
argument is based on the premise that the ‘‘only evi-
dence’’ on which the jury might have relied in finding
guilt as an accessory consisted of his arranging the
meeting with the victims, asking Rodrick to drive
Quintero and Burgos home following the shooting, and
his possession of Rodriguez’ gun, there was compelling
evidence of the defendant’s statements to others follow-
ing the shooting. These statements reflected that the
defendant was present at the scene of the shooting,
had participated in the shooting, and believed that he
was responsible for the victims’ deaths.
During the state’s closing argument, the prosecutor
discussed the evidence surrounding the meeting
between the victims, the defendant, Quintero, and
Burgos. The argument focused on the fact that the
defendant, Burgos, and Quintero, were gang members
and that, on the night of the shootings, they were
attempting to prohibit Rodriguez from selling drugs in
territory controlled by their gang. Also, the prosecutor
drew the jury’s attention to the evidence that, after the
defendant physically struck Rodriguez, and deprived
him of his gun and cell phone, the defendant, joined
by Quintero and Burgos, all of whom were armed,
returned to the scene of the shooting to meet with
Rodriguez.
There was evidence that three guns were used in the
shootings, including a nine millimeter handgun, a .22
caliber handgun, and a shotgun. There was evidence
that the victims were struck with nine millimeter bullets
and .22 caliber bullets. The evidence was not conclu-
sive, however, with respect to whether the defendant,
Quintero, or Burgos had fired the fatal gunshots. On
the basis of the evidence, the prosecutor argued in
relevant part: ‘‘There’s no need for all of you to agree
as to whose gun fired the fatal shot or shots to other
victims when a person’s charged like this. The fact that
you have three men armed with a nine millimeter, a .22
caliber, and shotgun shooting at two unarmed, defense-
less people at least nineteen times and kill[ing] them
with many of those bullets shows that these three indi-
viduals intentionally aided each other in the murders
of . . . Rodriguez and . . . Franqui.’’22
Although there may have been evidence of other con-
duct by the defendant that intentionally aided others
in the commission of the murders, the court, like the
prosecutor, appears to have drawn the jury’s attention
not only to the evidence supporting a finding that the
defendant was an armed participant in the shootings,
but to the fact that the evidence was not conclusive
with respect to whether he had actually fired a fatal
gunshot. The court stated: ‘‘Where it cannot be deter-
mined who fired the fatal shot, beyond a reasonable
doubt, the element of murder as to who caused the
death has not been proved beyond a reasonable doubt.
However, persons acting with the mental state required
for the commission of murder, who intentionally aid
one another to engage in such conduct and cause the
death, are accessories to one another, and would be
criminally liable for such conduct as accessories to
murder.’’ See id.
On this record, we are not persuaded that there was
the possibility of any confusion in the minds of the
jurors with respect to what evidence the state relied
on in support of the murder counts. Moreover, we are
not persuaded that there was the possibility of any
confusion in the minds of the jurors with respect to the
requisite mental state required for the commission of
murder as an accessory. The court repeatedly
instructed the jury that it must find that, if the defendant
intentionally aided others in the commission of the
crime of murder, the defendant had acted with the men-
tal state necessary for the commission of murder. The
court clearly instructed the jury that this mental state
consisted of the intent to kill another person. See foot-
note 16 of this opinion.
With respect to the accessorial liability instruction,
the defendant has failed to demonstrate the existence
of an instructional error that is so obvious that it affects
the fairness and integrity of and public confidence in
the judicial proceedings.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The jury found the defendant not guilty of one count of conspiracy to
commit murder in violation of General Statutes §§ 53a-48 and 53a-54a, and
one count of criminal possession of a firearm in violation of § 53a-217. The
court imposed a total effective sentence of eighty years of incarceration.
2
During the first few days of jury selection, the court informed potential
jurors, including three persons who were chosen to serve on the jury, that
it expected the trial to commence on October 22, 2015, and be completed
by November 6, 2015. During the later days of jury selection, the court
informed potential jurors, including nine persons who were ultimately cho-
sen to serve on the jury, that it expected the trial to commence on October
26, 2015, and be completed by November 13, 2015. At no time did the court
state to potential jurors that its anticipated trial schedule was not subject
to change.
3
The trial did not resume on November 11, 2015, because the Veterans
Day holiday was observed that day.
4
In this opinion, we will refer to individual jurors by their initials to
protect their legitimate privacy interests.
5
On November 10, 2015, Brown reminded the court outside of the jury’s
presence that, due to a family medical matter that required him to travel
out of the state, he would be unable to be present in court on November
13, 2015. Brown stated that he planned on having Glomb attend the trial in
his absence and that he preferred to have an opportunity to weigh in on
any substantive issues that might arise during his absence from the trial.
The court said that it would attempt to accommodate Brown.
On November 12, 2015, the court revisited the issue of Brown’s absence.
Brown explained that Glomb would attend the trial on November 13, 2015,
and that, due to Brown’s travel plans, Glomb could reach him if necessary
by phone no earlier than 11:30 a.m. on November 13, 2015. The court stated
that it planned to have the jury resume its deliberations at 10:30 a.m. on
November 13, 2015. The court stated that if it received a note from the jury
between 10:30 a.m. and 11:30 a.m. in which it either stated that it had reached
a verdict or requested to hear additional playback, the court would take
action with respect to such notes without affording Glomb an opportunity
to consult with Brown. The court also stated that it would be helpful for
Brown to consult with Glomb with respect to its accessorial liability instruc-
tion so that, if it received an additional note from the jury related to the
instruction, Glomb would be ‘‘kind of up to speed on the instruction . . . .’’
The court stated, however, that Glomb would have the opportunity to consult
with Brown if he desired to do so. The court stated that if, during this brief
period of time, it received ‘‘any other notes’’ from the jury, it would delay
the proceeding if Glomb wanted an opportunity to consult with Brown. The
court stated that ‘‘if there’s any other notes that come up . . . that Attorney
Glomb doesn’t feel comfortable addressing, then we’ll wait until he can
reach you by phone.’’ The court, however, asked Brown to prepare Glomb
for the possibility of a verdict during his absence. Brown replied: ‘‘Yeah.
Yeah. That’s fine. It is what it is.’’
At the end of the proceeding on November 12, 2015, at Brown’s request,
the court alerted the jury to the fact that Brown would not be present on
November 13, 2015, due to ‘‘family responsibilities.’’ The court informed the
jury that Glomb would ‘‘be here’’ in Brown’s absence.
6
The note sent by D.N. states in relevant part: ‘‘I . . . will not be able
to continue with Jury Service beyond this Friday [November 13, 2015].
‘‘While I have been in attendance, my mother who lives in Chandler,
AZ, has had two emergency surgeries to address Breast Cancer. Monday
[November 16, 2015] she has to start high dose radiation treatments [two
times] daily. I have booked a flight this weekend to arrive in Arizona to
care for her during her treatment.
‘‘I apologize for the inconvenience to the court, defendant, and the co-
jurors. However, I do not intend to be back for continuing deliberations
next week.’’
7
‘‘A Chip Smith instruction reminds the jurors that they must act unani-
mously, while also encouraging a deadlocked jury to reach unanimity.’’
(Internal quotation marks omitted.) State v. O’Neil, 261 Conn. 49, 51 n.2,
801 A.2d 730 (2002).
8
Pursuant to Golding, a defendant may prevail on a claim of constitutional
error not preserved at trial only if all four of the following conditions are
satisfied: ‘‘(1) the record is adequate to review the alleged claim of error;
(2) the claim is of constitutional magnitude alleging the violation of a funda-
mental right; (3) the alleged constitutional violation . . . exists and . . .
deprived the defendant of a fair trial; and (4) if subject to harmless error
analysis, the state has failed to demonstrate harmlessness of the alleged
constitutional violation beyond a reasonable doubt.’’ (Footnote omitted.)
State v. Golding, supra, 213 Conn. 239–40; see also In re Yasiel R., supra,
317 Conn. 781 (modifying third prong of Golding by eliminating word
‘‘clearly’’ before words ‘‘exists’’ and ‘‘deprived’’).
9
‘‘[T]he plain error doctrine is reserved for truly extraordinary situations
[in which] the existence of the error is so obvious that it affects the fairness
and integrity of and public confidence in the judicial proceedings. . . . [I]n
addition to examining the patent nature of the error, the reviewing court
must examine that error for the grievousness of its consequences in order
to determine whether reversal under the plain error doctrine is appropriate.
A party cannot prevail under plain error unless it has demonstrated that
the failure to grant relief will result in manifest injustice. . . . [Previously],
we described the two-pronged nature of the plain error doctrine: [An appel-
lant] cannot prevail under [the plain error doctrine] . . . unless he demon-
strates that the claimed error is both so clear and so harmful that a failure to
reverse the judgment would result in manifest injustice.’’ (Citation omitted;
emphasis omitted; internal quotation marks omitted.) State v. McClain, 324
Conn. 802, 812, 155 A.3d 209 (2017). ‘‘It is clear that an appellate court
addressing an appellant’s plain error claim must engage in a review of the
trial court’s actions and, upon finding a patent error, determine whether
the grievousness of that error qualifies for the invocation of the plain error
doctrine and the automatic reversal that accompanies it.’’ (Emphasis in
original.) State v. Myers, 290 Conn. 278, 288–89, 963 A.2d 11 (2009).
10
We observe that the defendant does not claim that the court coerced
the jury to reach a verdict of guilt.
11
With respect to the notes sent by the jury on November 13, 2015, the
defendant states in his appellate brief: ‘‘Although the notes came during the
period when Attorney Brown was not available, the court did not delay in
deciding to give the Chip Smith instruction, both orally and in writing.’’
(Internal quotation marks omitted.) The defendant, however, has not raised
a claim of error in this regard. As we have observed previously in this opinion,
Brown informed the court that Glomb would be present on November 13,
2015, and the court made clear to Brown that, in Brown’s absence, it would
afford Glomb an opportunity to consult with Brown if Glomb wanted to do
so. See footnote 5 of this opinion. The record reflects that, after the court
proposed responding to the jury’s deadlock note by providing the jury with
a Chip Smith instruction, Glomb did not ask for an opportunity to consult
with Brown, but merely stated that he did not have an objection to the
court’s proposal.
12
The state argues that the mixed verdict returned by the jury further
supports a finding that the jury was not coerced. The state properly observes
that, in rejecting claims involving prosecutorial impropriety and evidentiary
error, Connecticut courts, in concluding that it was not likely that prosecu-
torial impropriety or evidentiary error affected the jury’s verdict, have relied
on the fact that the jury had reached a mixed verdict. See, e.g., State v.
Ancona, 270 Conn. 568, 618, 854 A.2d 718 (2004) (mixed verdict proof that
prosecutor’s improper argument did not affect verdict), cert. denied, 543
U.S. 1055, 125 S. Ct. 921, 160 L. Ed. 2d 780 (2005); State v. Gallo, 135 Conn.
App. 438, 461–62, 41 A.3d 1183 (2012) (mixed verdict proof that defendant
not harmed by improper admission of evidence), appeal dismissed, 310
Conn. 602, 78 A.3d 854 (2013) (certification improvidently granted). A mixed
verdict helps to shed light on the prejudicial effect, if any, of prosecutorial
impropriety or the improper admission of evidence because a not guilty
verdict on any charges against a defendant reflects that the argument or
evidence at issue did not so unfairly pervade the jury’s deliberations that
it affected the jury’s deliberations as a whole.
In the context of a coerciveness claim, however, a reviewing court reason-
ably could interpret a mixed verdict as evidence that the jury simply felt
pressure to reach a verdict and, thus, found the defendant guilty on some
counts but not others simply to conclude the deliberations. In other words,
in the context of a coerciveness claim, a verdict of not guilty with respect
to one or more counts does not necessarily shed light on the source of the
jury’s disagreement or whether the verdict of one or more jurors was the
result of coercion rather than conscience. See, e.g., Phelps v. Smith, 517 Fed.
Appx. 379, 384 (6th Cir. 2013) (declining to apply mixed verdicts rationale
in context of claim of jury coercion).
13
In light of our analysis under Golding, including our determination that
the defendant has not demonstrated that the court coerced the jury into
reaching its verdict, we conclude that the defendant has failed to demon-
strate that plain error exists in connection with the present claim.
14
The letter stated in relevant part: ‘‘I am writing this missive in regards
to a situation that has taken place before you in the matter of my trial. I
am sure you are aware of it because my counsel has now put it into the
attention of all involved. I ask that you as the leader of your courtroom put
my verdict aside and put me, my counsel, State Attorney and the (2) jurors
whom were intimidated in your presence to get this right. My counsel is to
put the proper motions before you before my sentencing date on [February
4, 2016]. I ask that you give me the authorization to put my motions in a
timely manner in case he does not because he tells me he is overwhelmed
with other cases. Thank you for your consideration.’’
15
General Statutes § 53a-8 (a) provides: ‘‘A person, acting with the mental
state required for commission of an offense, who solicits, requests, com-
mands, importunes or intentionally aids another person to engage in conduct
which constitutes an offense shall be criminally liable for such conduct and
may be prosecuted and punished as if he were the principal offender.’’
16
The court instructed the jury in relevant part: ‘‘The defendant is charged
in count one with the murder of Leida Franqui. The state has charged the
defendant under the accessory liability statute. This statute does not define
a separate crime, but separate theories of liability.
‘‘The statute defining the offense of murder reads in pertinent part as
follows:
‘‘A person is guilty of murder when, with intent to cause the death of
another person, he causes the death of such person or of a third person.
‘‘For you to find the defendant guilty of this charge, the state must prove the
following elements beyond a reasonable doubt: (1) the defendant intended
to cause the death of another person, and (2) in accordance with that intent,
the defendant caused the death of Leida Franqui by discharge of a firearm.
‘‘The first element is that the defendant specifically intended to cause the
death of another person. There is no particular length of time necessary for
the defendant to have formed the specific intent to kill. A person acts
intentionally with respect to a result when his conscious objective is to
cause such result.
‘‘The concept of specific intent applies to the offense of murder. Please
refer to the instructions on specific intent and evidence of intent.
‘‘The intent to cause death may be inferred from circumstantial evidence.
The type and number of wounds inflicted, as well as the instrument used,
may be considered as evidence of the perpetrator’s intent, and from such
evidence an inference may be drawn that there was intent to cause a death.
Any inference that may be drawn from the nature of the instrumentality
used and the manner of its use is an inference of fact to be drawn by
you upon consideration of these and other circumstances in the case in
accordance with my previous instructions.
‘‘Declarations and conduct of the accused before or after the infliction
of wounds may be considered if you find they tend to show the defendant’s
intent. This inference is not a necessary one; that is, you are not required
to infer intent from the defendant’s alleged conduct, but it is an inference
you may draw if you find it reasonable and logical and in accordance with
my instructions on circumstantial evidence.
‘‘The second element is that the defendant, acting with the intent to cause
the death of another person, caused the death of Leida Franqui by discharge
of a firearm.
‘‘This means that the defendant’s conduct was the proximate cause of
the decedent’s death. You must find it proved beyond a reasonable doubt
that Leida Franqui died as a result of the actions of the defendant. Please
refer to the instruction on proximate cause and firearm.
‘‘In this case, the defendant is charged under the accessorial liability
statute. The statute does not define a separate crime, but a separate theory
of liability.
‘‘A person is criminally liable for a criminal act if he directly commits it
or if he is an accessory in the criminal act of another. The statute defining
accessory liability reads in pertinent part as follows:
‘‘A person, acting with the mental state required for the commission of
an offense, who intentionally aids another person to engage in conduct
which constitutes an offense, shall be criminally liable for such conduct
and may be prosecuted and punished as if he were the principal offender.
‘‘A person is an accessory if he intentionally aids another person to engage
in conduct that constitutes an offense. Aid means to assist, help or support.
A person acts intentionally with respect to a result when his conscious
objective is to cause such result. Intentionally aid, therefore, means to act
in any manner, the conscious objective of which is to assist, help or support.
Please refer to the instructions on specific intent and evidence of intent.
‘‘If the defendant intentionally aided as specified in the statute, he is guilty
of murder as though he had directly committed it or participated in its
commission. To establish the guilt of a defendant as an accessory for
assisting in the criminal act of another, the state must prove criminality of
intent and community of individual purpose. That is, for the defendant to
be guilty as an accessory, it must be established that he acted with the
mental state necessary to commit murder, and that in furtherance of that
crime, he intentionally aided the principal to commit murder.
‘‘Evidence of mere presence as an inactive companion, or passive acquain-
tance, or the doing of innocent acts, which, in fact, aid in the commission
of a crime, is insufficient to find the defendant guilty as an accessory under
the statute. Nevertheless, it is not necessary to prove that the defendant
was actually present or actively participated in the actual commission of
the crime of murder.
‘‘Where it cannot be determined who fired the fatal shot, beyond a reason-
able doubt, the element of murder as to who caused the death has not been
proved beyond a reasonable doubt. However, persons acting with the mental
state required for the commission of murder, who intentionally aid one
another to engage in such conduct and cause the death, are accessories to
one another, and would be criminally liable for such conduct as accessories
to murder.
‘‘For you to find the defendant guilty of this charge, you must unanimously
find that the state has proved all the elements of murder beyond a reasonable
doubt. If you conclude that the defendant is guilty as a principal or as an
accessory, you do not need to be unanimous regarding whether you believe
he was a principal or accessory as long as all twelve jurors agree that at
least one method (i.e., principal or accessory) has been proved beyond a
reasonable doubt.
‘‘If you find that the state has proved beyond a reasonable doubt each of
the elements of the crime of murder, then you shall find the defendant guilty
of murder.
‘‘On the other hand, if you unanimously find that the state has failed to
prove beyond a reasonable doubt any of the elements, you shall then find
the defendant not guilty of murder.
‘‘The defendant is charged in count two with the murder of Luis Rodriguez.
‘‘The state has charged the defendant under the accessory liability statute.
I have already defined for you the crime and all the elements of murder. I
refer to the instruction on murder, and that instruction applies equally here.
‘‘In summary, the state must prove beyond a reasonable doubt that (1)
the defendant intended to cause the death of another person, and (2) in
accordance with that intent, the defendant caused the death of Luis Rodri-
guez by means of a discharge of a firearm.
‘‘In addition, I have already instructed you on the accessory liability stat-
ute. I refer you to the instruction on accessory liability, and that instruction
applies equally here.
‘‘For you to find the defendant guilty of this charge, you must unanimously
find that the state has proved all the elements of murder beyond a reasonable
doubt. If you conclude that the defendant is guilty as principal or as an
accessory, you do not need to be unanimous regarding whether you believe
he was a principal or accessory as long as all twelve jurors agree that at
least one method (i.e., principal or accessory) has been proved beyond a
reasonable doubt.
‘‘If you unanimously find that the state has proved beyond a reasonable
doubt each of the elements of the crime of murder, then you shall find the
defendant guilty of murder.
‘‘On the other hand, if you unanimously find that the state has failed to
prove beyond a reasonable doubt any of the elements, you shall then find
the defendant not guilty of murder.’’
17
The court’s instruction for count one began on page twenty-five of
its charge.
18
As we discussed previously in this opinion, after the jury exited the
courtroom, the court addressed defense counsel, Brown, with respect to
the issue of his anticipated absence from the trial on the following day,
Friday, November 13, 2015. The court asked Brown to prepare his associate,
Glomb, for the possibility that, in his absence, the jury might seek more
guidance with respect to the accessorial liability instruction. Without
objecting to the manner in which the court had responded to the jury’s note
earlier that afternoon, Brown stated that he ‘‘would just have . . . an objec-
tion to any further instruction at this point because I don’t think that there’s
any evidence of [the defendant] providing a firearm to the actor or testimony
or any argument to that point. I mean, as far as just repeating the instruc-
tions, obviously, I don’t have any problem with that.’’ (Emphasis added.)
The court replied that, without knowing what questions the jury might
present, it was not sure if any further instructions, beyond those already
provided to the jury, would be necessary.
19
See footnote 8 of this opinion.
20
See footnote 9 of this opinion.
21
Although we review this claim for plain error, we are mindful that the
defendant’s claim concerns not merely whether the court misled the jury
by failing to marshal the evidence sufficiently, such that the jury was left
to speculate about the evidence that could have constituted proof beyond
a reasonable doubt of his guilt as an accessory, but that it likely misled the
jury with respect to the mental state required for the commission of the
crime of murder as an accessory. Our consideration of whether plain error
exists is informed by well established principles.
‘‘A trial court has broad discretion to comment on the evidence adduced
in a criminal trial. . . . A trial court often has not only the right, but also
the duty to comment on the evidence. . . . The purpose of marshaling the
evidence, a more elaborate manner of judicial commentary, is to provide a
fair summary of the evidence, and nothing more; to attain that purpose, the
[trial] judge must show strict impartiality. . . . To avoid the danger of
improper influence on the jury, a recitation of the evidence should not be
so drawn as to direct the attention of the jury too prominently to the facts
in the testimony on one side of the case, while sinking out of view, or
passing lightly over, portions of the testimony on the other side, which
deserve equal attention. . . .
‘‘On review, we do not evaluate the court’s marshaling of the evidence
in isolation. Rather, [t]o determine whether the court’s instructions were
improper, we review the entire charge to determine if, taken as a whole,
the charge adequately guided the jury to a correct verdict. . . . The perti-
nent test is whether the charge, read in its entirety, fairly presents the case
to the jury in such a way that injustice is not done to either party under
the established rules of law. . . . [I]n appeals involving a constitutional
question, [the standard is] whether it is reasonably possible that the jury
[was] misled.’’ (Citation omitted; internal quotation marks omitted.) State
v. Dixon, 62 Conn. App. 643, 647–48, 772 A.2d 166 (2001).
‘‘A jury instruction is constitutionally adequate if it provides the jurors
with a clear understanding of the elements of the crime charged, and affords
them proper guidance for their determination of whether those elements
were present. . . . An instruction that fails to satisfy these requirements
would violate the defendant’s right to due process of law as guaranteed by
the fourteenth amendment to the United States constitution and article first,
§ 8, of the Connecticut constitution. . . . The test of a charge is whether
it is correct in law, adapted to the issues and sufficient for the guidance of
the jury. . . . The primary purpose of the charge is to assist the jury in
applying the law correctly to the facts which they might find to be estab-
lished. . . . The purpose of a charge is to call the attention of the members
of the jury, unfamiliar with legal distinctions, to whatever is necessary and
proper to guide them to a right decision in a particular case.’’ (Internal
quotation marks omitted.) State v. Johnson, 165 Conn. App. 255, 288–89,
138 A.3d 1108, cert. denied, 322 Conn. 904, 138 A.3d 933 (2016).
22
There was evidence that the police recovered nine millimeter shell
casings, a .22 caliber bullet fragment, and two live shotgun rounds from the
shooting scene. Moreover, there was evidence that the victims died as a
result of multiple gunshot wounds, which included gunshots fired at their
heads. Medical examiners subsequently recovered nine millimeter and .22
caliber bullet fragments from the victims’ bodies. The defendant argues that
there was no evidence, however, to support the state’s theory that either
the defendant, Quintero, or Burgos was armed with a shotgun or had used
a shotgun.
The state’s theory of the case, which was that all three men were armed
and had either used or attempted to use a firearm during the shooting, was
reasonably based on the presence of the nine millimeter and .22 caliber
bullet fragments recovered from the victims’ bodies, as well as the presence
of the live shotgun rounds found near the victims. The evidence permitted
the jury to infer, as well, that someone had attempted to fire the live shotgun
rounds, without success. In any event, the present claim does not require
us to consider whether the state’s evidentiary theory was supported by the
evidence. Instead, in resolving the present claim, we must consider whether,
as the defendant argues, neither the prosecutor nor the court set forth a
theory of liability that was based on the alleged facts of the state’s case.