State v. Reddick ( 2014 )

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STATE OF CONNECTICUT v. MICHAEL
CARLTON REDDICK
(AC 35018)
Lavine, Keller and Schaller, Js.
Argued May 14—officially released September 23, 2014
(Appeal from Superior Court, judicial district of New
Haven, Blue, J.)
Deborah G. Stevenson, assigned counsel, for the
appellant (defendant).
Jennifer F. Miller, special deputy assistant state’s
attorney, with whom, on the brief, were Michael Dear-
ington, state’s attorney, and Roger Dobris, senior assis-
tant state’s attorney, for the appellee (state).
Opinion
SCHALLER, J. The defendant, Michael Carlton
Reddick, appeals from the judgment of conviction, ren-
dered following a jury trial, of robbery in the first degree
in violation of General Statutes § 53a-134 (a) (4) and
larceny in the third degree in violation of General Stat-
utes § 53a-124 (a) (2). On appeal, the defendant claims
that (1) there was insufficient evidence to support a
finding that he committed the crimes charged; (2) the
court failed to instruct the jury properly regarding a
key witness’ drug use and the effect it may have had
on her perception; (3) the trial court failed to instruct
the jury properly on the fallibility of eyewitness identifi-
cations; (4) the court improperly denied his motion for
a new trial; and (5) he was deprived of his right to
counsel pursuant to the federal and state constitutions
when the state received privileged materials in error
from the Department of Correction. We affirm the judg-
ment of conviction.
The jury reasonably could have found the following
facts. On March 15, 2011, the defendant’s girlfriend,
Jacqueline Crenshaw, invited her friend, Deyja Jackson,
to travel from her home in Massachusetts and stay at the
apartment she shared with the defendant in Hamden.
Following Jackson’s arrival, both she and Crenshaw
smoked phencyclidine (PCP).1 The next day, March 16,
2011, Jackson drove both Crenshaw and the defendant
to a McDonald’s restaurant located across the street
from a branch of Bank of America on Dixwell Avenue
in Hamden. They arrived at the McDonald’s at approxi-
mately 11:45 a.m. and, within minutes of their arrival,
the defendant exited the vehicle wearing a dark colored
jacket, hat, glasses, and carrying a black bag.
At approximately 12 p.m., Anita Palmieri, a teller at
the Bank of America branch, was setting aside money
from her drawer following a large deposit when a black
male wearing a hat, glasses, and a dark blue or black
pea coat approached her counter. The man told Palmieri
that he had a gun and demanded all of the money from
her drawer, which she gave to him. The man then
demanded more money, prompting Palmieri to inform
him that she only had mutilated money2 remaining. The
man took the mutilated money as well. After placing
all of the money in a bag, the man left the bank. Palmieri
pressed a panic button, which notified the Hamden
Police Department of an emergency. In addition to
describing the gender, skin color, and clothing of the
perpetrator, Palmieri later indicated to police that he
was between five feet, three inches and five feet, five
inches tall and approximately fifty years of age. Follow-
ing the robbery, Jessica Philpotts, assistant manager at
the Bank of America branch, noted in the bank’s busi-
ness records that the perpetrator stole $3405.50.
At approximately 12:03 p.m., Jackson observed the
defendant jog back to her car from the Bank of America
branch across the street. Jackson noted that less than
fifteen minutes had passed between the defendant’s
departure from her vehicle and his return. Once the
defendant was back in Jackson’s vehicle, he and Crens-
haw requested that Jackson give them a ride back to
their apartment. After dropping the defendant and Cren-
shaw off at their apartment, Jackson travelled to a
nearby parking lot and smoked PCP until she
blacked out.
Thereafter, when Jackson ‘‘came back to reality,’’ she
drove to a friend’s New Haven residence. Later that
night, Jackson watched a news story regarding a rob-
bery at the Bank of America branch on Dixwell Avenue
in Hamden. Hearing the story’s description of the perpe-
trator, Jackson deduced that it was the defendant who
had robbed the bank. Jackson subsequently contacted
the Federal Bureau of Investigation (FBI) and reported
her potential involvement in the Hamden bank robbery.
The next day, March 17, 2011, the Hamden Police
Department followed up on Jackson’s tip to the FBI
and requested that she return to Hamden. Jackson
acquiesced and travelled to the Hamden Police Depart-
ment, where she voluntarily gave a statement under
oath concerning the robbery and identified the defen-
dant as the perpetrator from a photographic array. In
addition, the police showed Jackson photographs of
the perpetrator from the bank’s surveillance camera
that recorded the robbery and, after reviewing them, she
indicated that the photographs depicted the defendant.
Following the interview with Jackson, Detective Sean
Dolan of the Hamden Police Department determined
that there was probable cause to arrest the defendant.
The Hamden Police Department subsequently alerted
area police departments of its intention to arrest the
defendant, and he was apprehended later that day. Dur-
ing his arrest, the police searched the defendant and
seized a large quantity of money, which included bills
marked consistently with the mutilated bills that Palmi-
eri had described to the police.
The state, in a long form information, charged the
defendant with robbery in the first degree, conspiracy
to commit robbery in the first degree, larceny in the
third degree, and conspiracy to commit larceny in the
third degree. Following a trial, the jury found the defen-
dant guilty of robbery in the first degree and larceny
in the third degree.3 The court imposed a total effective
sentence of twenty-five years incarceration. This appeal
followed. Additional facts and procedural history will
be set forth as necessary.
I
The defendant first claims that there was insufficient
evidence to establish his identity as the perpetrator
beyond a reasonable doubt. In support of his claim, the
defendant argues that Palmieri, the state’s key witness,
was unable to positively identify him as the perpetrator.
The defendant further argues that the testimony of Jack-
son and Channing Reynolds, a second bank teller who
witnessed the robbery, was insufficient to prove that
the defendant was the perpetrator. As a result, he con-
tends that the jury could not reasonably have concluded
that the cumulative force of the evidence established his
identity as that of the perpetrator beyond a reasonable
doubt. We disagree.
The standard of review that we apply to a claim of
insufficient evidence is well established. ‘‘In reviewing
the sufficiency of the evidence to support a criminal
conviction we apply a two-part test. First, we construe
the evidence in the light most favorable to sustaining
the verdict. Second, we determine whether upon the
facts so construed and the inferences reasonably drawn
therefrom the [finder of fact] reasonably could have
[found] that the cumulative force of the evidence estab-
lished guilt beyond a reasonable doubt.’’ (Internal quo-
tation marks omitted.) State v. Grant, 127 Conn. App.
654, 660, 14 A.3d 1070, cert. denied, 301 Conn. 910, 19
A.3d 179 (2011). ‘‘[I]t does not diminish the probative
force of the evidence that it consists, in whole or in
part, of evidence that is circumstantial rather than
direct. . . . It is not one fact, but the cumulative impact
of a multitude of facts which establishes guilt in a case
involving substantial circumstantial evidence.’’ (Inter-
nal quotation marks omitted.) State v. Lopez, 280 Conn.
779, 808, 911 A.2d 1099 (2007). ‘‘On appeal, we do not
ask whether there is a reasonable view of the evidence
that would support a reasonable hypothesis of inno-
cence. We ask, instead, whether there is a reasonable
view of the evidence that supports the . . . verdict of
guilty.’’ (Internal quotation marks omitted.) Id., 809.
On the basis of the evidence presented at trial and
the inferences drawn therefrom, we conclude that the
jury reasonably could have found that the state proved
that the defendant was the perpetrator beyond a reason-
able doubt. Even if Palmieri’s testimony alone did not
establish his identity as the perpetrator beyond a rea-
sonable doubt, as the defendant argues, her testimony
was not the only evidence presented as to the identity
of the perpetrator. The jury had before it photographs
from the bank surveillance cameras, a booking photo-
graph of the defendant, and the photographic arrays
wherein multiple witnesses identified the defendant as
the perpetrator. When determining if the defendant per-
petrated the charged robbery, the jury could have com-
pared photographs of the perpetrator from the bank
surveillance cameras with photographs of the defen-
dant and, because he was present in court, their own
observations of him. Furthermore, the jury could have
compared the surveillance photographs, the photo-
graphs of the defendant, and their own observations of
him in court with the descriptions of the defendant on
the date of the robbery provided by Jackson, Palmieri,
and Reynolds.
Additionally, the jury heard Jackson’s testimony that
the defendant left her vehicle, which was located across
the street from the Bank of America branch, just after
11:45 a.m. Palmieri testified that a man approached her
counter at approximately 12 p.m., stating that he had
a gun and demanding money. Jackson testified that, at
approximately 12:03 p.m., the defendant then jogged
back to her vehicle from the Bank of America branch
and requested that she drive him and Crenshaw to his
apartment on back roads. Moreover, Jackson testified
that the defendant exited her vehicle wearing a hat,
glasses, and a dark jacket which, according to Palmieri’s
testimony, was consistent with the clothing worn by
the perpetrator. Also during trial, Palmieri testified that
video surveillance footage from the time of the robbery,
that depicted the perpetrator as a black male wearing
a dark pea coat, hat, and glasses, was an accurate repre-
sentation of her memory from that day. Thus, notwith-
standing Palmieri’s inability to conclusively identify the
defendant as the perpetrator, the jury reasonably could
have inferred from the totality of the evidence that the
defendant exited Jackson’s vehicle, proceeded across
the street to the Bank of America branch, approached
Palmieri’s counter, told her that he had a gun, demanded
and later took money from her, and then left the bank
for Jackson’s vehicle in order to depart the scene.
The defendant also attempts to cast doubt on the
eyewitness testimony given in this case by directing
our attention to the alleged uncertainty and unreliability
of the eyewitness identifications. It is well settled, how-
ever, that ‘‘[t]he question of [the] identity of a perpetra-
tor of a crime is a question of fact that is within the
sole province of the jury to resolve’’; (internal quotation
marks omitted) State v. Felder, 99 Conn. App. 18, 24,
912 A.2d 1054, cert. denied, 281 Conn. 921, 918 A.2d
273 (2007); and we do not revisit the jury’s credibility
determinations. State v. Russell, 101 Conn. App. 298,
316, 922 A.2d 191, cert. denied, 284 Conn. 910, 931 A.2d
934 (2007). Furthermore, ‘‘[t]he rule is that the jury’s
function is to draw whatever inferences from the evi-
dence or facts established by the evidence it deems to
be reasonable and logical.’’ (Internal quotation marks
omitted.) State v. Ortiz, 71 Conn. App. 865, 881, 804 A.2d
937, cert. denied, 261 Conn. 942, 808 A.2d 1136 (2002).
Viewing the evidence in the light most favorable to
sustaining the verdict, we conclude that the cumulative
effect of the evidence, namely, the testimony of Jackson
and Palmieri and the reasonable inferences drawn
therefrom, in addition to the photographic evidence,
was sufficient to establish the identity of the defendant
as that of the perpetrator of the charged offenses
beyond a reasonable doubt.
II
The defendant next claims that the court failed to
instruct the jury properly on the drug use of Jackson,
a state’s witness, and the effect it may have had on her
ability to perceive. Specifically, the defendant argues
that the absence of a special instruction on Jackson’s
PCP use both before and after the robbery constitutes
reversible error because it was harmful beyond a rea-
sonable doubt. We disagree.
The record reveals the following additional facts and
procedural history. Prior to the empanelment of the
jury, both the state and defense counsel were provided
with the proposed jury instructions and had a meaning-
ful opportunity to review the contents thereof.4 The
court circulated the instructions on May 14, 2012, and
heard oral argument pertaining to the instructions on
May 18, 2012. Prior to argument on May 18, 2012, how-
ever, the defendant submitted a proposed charge per-
taining to Jackson, a state’s witness, and the potential
impact of her drug use on her testimony. The court
considered the proposed charge but rejected it on the
basis that it was argumentative and cumulative insofar
as it was covered by the general instruction that per-
tained to eyewitness testimony. Defense counsel stated
that he had no additional objection to the instructions
overall, but sought to maintain his continued objection
to the court’s denial of his proposed instruction.5
‘‘Our standard of review on this [nonconstitutional]
claim is whether it is reasonably probable that the jury
was misled. . . . The test of a court’s charge is not
whether it is as accurate upon legal principles as the
opinions of a court of last resort but whether it 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. . . . Therefore, jury instructions need not be
exhaustive, perfect, or technically accurate. Nonethe-
less, the trial court must correctly adapt the law to
the case in question and must provide the jury with
sufficient guidance in reaching a correct verdict.’’
(Internal quotation marks omitted.) State v. Taft, 57
Conn. App. 19, 29, 746 A.2d 813 (2000), aff’d, 258 Conn.
412, 781 A.2d 302 (2001).
‘‘It is not error for a trial court to refuse to charge a
jury in the exact words of a requested instruction, as
long as the requested charge is given in substance.’’
(Internal quotation marks omitted.) State v. Collins, 38
Conn. App. 247, 254, 661 A.2d 612 (1995). Although
the court’s instruction in this case did not mirror the
defendant’s request to charge, it did in effect cover the
substantive points that he requested. The court pro-
posed a general instruction, which was intended to
encompass the totality of the eyewitness testimony pre-
sented.6
Following his review of the proposed jury instruc-
tions, the defendant continued to take exception to
the court’s denial of his proposed specific instruction
regarding Jackson’s PCP use. The court stated that the
proposed specific instruction was argumentative and
that it was adequately covered by the credibility of
witness instruction. The proposed instruction read: ‘‘In
this case, you heard testimony from Deyja Jackson that
she had used PCP around the time of the events that
the State alleged happened on March 16 and March 17
of 2011. It was entirely proper for Deyja Jackson to
be questioned about drug use and you may use such
evidence in any way you see fit, including to determine
how credible her testimony was. You may credit none,
some, or all of her testimony given the fact that she
admitted to using PCP. You may consider if her drug
use affects her ability to recall events accurately.’’ The
state contends that the court’s jury instruction as given
substantively encompassed the defendant’s proposed
instruction. We agree.
Our review of the charge in its totality reveals that
the court’s instructions furnished adequate guidance as
to the credibility considerations afforded to eyewitness
testimony. Accordingly, we conclude that it was not
reasonably probable that the jury was misled and, there-
fore, the defendant’s claim is without merit.
III
The defendant next claims that the court failed to
instruct the jury properly on the fallibility of eyewitness
identifications. The defendant concedes that this issue
is unpreserved, but seeks review under State v. Golding,
213 Conn. 233, 567 A.2d 823 (1989), claiming that the
record is adequate for review and the error is of consti-
tutional magnitude. Alternatively, the defendant
requests that we review his claim pursuant to the plain
error doctrine. See Practice Book § 60-5. The state, in
response, contends that defendant waived this claim
during trial. We agree with the state.
We first address the defendant’s request to review
his unpreserved claim pursuant to Golding.7 ‘‘In the
usual Golding situation, the defendant raises a claim
on appeal which, while not preserved at trial, at least
was not waived at trial. . . . [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 . . . or that the alleged constitutional
violation clearly exists and clearly deprived the defen-
dant of a fair trial . . . . To reach a contrary conclu-
sion would result in an ambush of the trial court by
permitting the defendant to raise a claim on appeal that
his or her counsel expressly had abandoned in the trial
court.’’ (Citations omitted; emphasis altered; internal
quotation marks omitted.) State v. Hampton, 293 Conn.
435, 448–49, 988 A.2d 167 (2009); State v. Hudson, 122
Conn. App. 804, 813, 998 A.2d 1272, cert. denied, 298
Conn. 922, 4 A.3d 1229 (2010). Accordingly, we must
determine whether the defendant waived his claim chal-
lenging the omission of a jury instruction on the fallibil-
ity of eyewitness testimony.
The law pertaining to waivers in the context of
instructional error is well settled. A waiver may be
implied under some circumstances when the court
actively circulates and seeks review of a proposed
charge. See State v. Kitchens, 299 Conn. 447, 482–83,
10 A.3d 942 (2011). ‘‘[W]hen 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
instructions 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. ‘‘The threshold question for our implied waiver anal-
ysis is whether the trial court provided the proposed
charges to the defendant prior to delivery of its instruc-
tions to the jury.’’ State v. Davis, 311 Conn. 468, 480,
88 A.3d 445 (2014).
Our review of the record reveals that defense counsel
did not raise or suggest a general instruction pertaining
to the fallibility of eyewitness testimony at any stage
of the proceedings. The court provided defense counsel
with a copy of the proposed jury instructions, permitted
a meaningful opportunity to review such instructions,
and solicited comments pertaining to such instructions.
When defense counsel offered his comments, he did
not request a general instruction on the fallibility of
eyewitness testimony to the court, but stated that he
had no further objection to the draft instructions pre-
sented to him. In doing so, the defendant waived his
claim that the omission of such an instruction was
improper and, therefore, cannot satisfy the third prong
necessary to prevail under Golding. State v. Coleman,
304 Conn. 161, 174, 37 A.3d 713 (2013).
Finally, we also reject the defendant’s request that
we reverse the judgment of conviction on account of
plain error with respect to this claim. See Practice Book
§ 60-5. ‘‘Plain error review is reserved for truly extraor-
dinary 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.
. . . Because we have concluded that the defendant
waived any claim regarding [a general instruction on
the fallibility of eyewitness testimony], there is no error
to correct. . . . [A] valid waiver . . . thwarts plain
error review of a claim.’’ (Citations omitted; internal
quotation marks omitted.) State v. Cancel, 149 Conn.
App. 86, 102–103, 87 A.3d 618, cert. denied, 311 Conn.
954, A.3d (2014).
IV
The defendant next claims that the court abused its
discretion in denying his motion for a new trial. The
state argues that, due to the substantive inadequacy of
the defendant’s motion for a new trial, he failed to
preserve his challenge to the denial of that motion. We
agree with the state.
The record reveals the following additional proce-
dural history. On May 25, 2012, the defendant moved
for a new trial on the following basis: ‘‘Pursuant to
Practice Book § 42-51, the defendant . . . moves for a
new trial given any errors that may be apparent on the
record that entitle him to a new trial.’’ The defendant
claims that this properly preserved his claim on appeal
challenging the propriety of the court’s denial of his
motion for a new trial. We are not persuaded.
This court consistently has held that ‘‘the requirement
of Practice Book § 60-5 that the claim be raised dis-
tinctly means that it must be so stated as to bring to
the attention of the court the precise matter on which
its decision is being asked.’’ (Emphasis omitted; internal
quotation marks omitted.) State v. Faison, 112 Conn.
App. 373, 380, 962 A.2d 860, cert. denied, 291 Conn.
903, 967 A.2d 507 (2009). ‘‘It is well established that an
appellate court is under no obligation to consider a
claim that is not distinctly raised at the trial level. . . .
[B]ecause our review is limited to matters in the record,
we [also] will not address issues not decided by the
trial court.’’ (Citations omitted; internal quotation
marks omitted.) Burnham v. Karl & Gelb, P.C., 252
Conn. 153, 170–71, 745 A.2d 178 (2000); see also Practice
Book § 60-5 (‘‘[t]he court shall not be bound to consider
a claim unless it was distinctly raised at the trial or
arose subsequent to the trial’’). ‘‘The reason for the rule
is obvious: to permit a party to raise a claim on appeal
that has not been raised at trial—after it is too late for
the trial court . . . to address the claim—would
encourage trial by ambuscade, which is unfair to both
the trial court and the opposing party.’’ (Internal quota-
tion marks omitted.) Remillard v. Remillard, 297 Conn.
345, 351–52, 999 A.2d 713 (2010).
In the present case, the defendant did not apprise
the court of any particular error that warranted a new
trial. Indeed, the court, in response to the defendant’s
motion for a new trial, stated: ‘‘Let me just say . . . in
terms [of] . . . the defendant’s motion for a new trial,
it’s predicated on any errors that may be apparent on
direct or that entitle him to a new trial, and without
criticizing counsel in any way, no such errors have been
pointed out to me. In fact, I think that the rulings the
court made were correct as far as I know, and it seems
to me that the motion must be denied.’’ In failing to
bring to the court’s attention the precise matter upon
which his motion for a new trial was predicated, the
defendant failed to preserve his claim challenging the
court’s denial of his motion for a new trial.
Accordingly, we decline to review the defendant’s
unpreserved claim that the court abused its discretion
in denying the defendant’s motion for a new trial.
V
The defendant finally claims that the court failed to
provide appropriate relief for the inadvertent disclosure
to the prosecutor of attorney-client privileged commu-
nications, thereby depriving him of his constitutional
right to counsel. The defendant requests review of this
unpreserved claim pursuant to State v. Golding, supra,
213 Conn. 233, or, alternatively, for plain error. The
state, in response, contends that the defendant waived
this claim when defense counsel expressly asserted that
he trusted the prosecutor’s articulation of events and
agreed that sealing the document was an adequate pro-
tective mechanism for the privileged material moving
forward. We agree with the state.
‘‘Both our Supreme Court and this court have stated
the principle that, when a party abandons a claim or
argument before the trial court, that party waives the
right to appellate review of such claim because a con-
trary conclusion would result in an ambush of the trial
court . . . . [W]aiver is [t]he voluntary relinquishment
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.’’ (Citation omitted; internal
quotation marks omitted.) State v. McLaughlin, 135
Conn. App. 193, 198, 41 A.3d 694, cert. denied, 307 Conn.
904, 53 A.3d 219 (2012).
The record reveals the following additional facts and
procedural history. On May 8, 2012, during a preliminary
proceeding, the prosecutor alerted the court to an inad-
vertent disclosure of attorney-client privileged materi-
als, specifically, a letter that was sent to the state’s
attorney’s office by the Department of Correction. The
prosecutor asserted that once he identified the letter
in question as privileged, he immediately stopped read-
ing it. Following that incident, the prosecutor put the
letter into an envelope, sealed, dated, and signed it,
and put it in a safe in the state’s attorney’s office. The
prosecutor represented, as an officer of the court and
as a state’s attorney, that neither he nor anyone else
in his office reviewed the letter. The court offered an
opportunity for defense counsel to speak on the matter,
at which time he stated: ‘‘I don’t think that the oath as
an attorney was necessary. I don’t have any trouble at
all accepting his representation that he sealed the letter
and didn’t read it or stopped reading it as soon as he
realized what it was.’’ Defense counsel requested that
the letter remained sealed in the possession of the court.
The court granted defense counsel’s request.
Relying on State v. Lenarz, 301 Conn. 417, 22 A.3d
536 (2011), cert. denied, U.S. , 132 S. Ct. 1095, 181
L. Ed. 2d 977 (2012), the defendant argues that this
claim was not waived and, in fact, was preserved for
appellate review because ‘‘the trial court, sua sponte,
is required to provide appropriate relief to prevent prej-
udice to the defendant . . . .’’ The state, however,
argues that Lenarz is factually inapposite to the present
case. In Lenarz, despite court orders to the contrary, the
prosecutor received and read attorney-client privileged
materials, which specifically addressed trial strategy.
Id., 420–22. Moreover, ‘‘the prosecutor not only failed to
inform the defendant and the trial court of the invasion
immediately, but also continued to handle the case, to
meet repeatedly with witnesses and investigators and
ultimately to try the case to conclusion more than one
year after the invasion occurred.’’ Id., 451. Although the
defendant claims that the facts of Lenarz are analogous
here, we find them wholly distinguishable. There is no
dispute in the present case as to whether the prosecutor
was in possession of the letter. The prosecutor immedi-
ately alerted the court as to his inadvertent receipt of
the letter. In addition, the prosecutor took steps to
mitigate the inadvertent disclosure by sealing the letter
and recording the chain of custody upon identifying it
as privileged. Defense counsel accepted the statement
of the prosecutor that he had not read the letter and
sealed it once he identified it as privileged. Thus, not
only is Lenarz distinguishable, but it was the defendant
who specifically requested the safety mechanism to
rectify the inadvertent disclosure of the privileged let-
ter. In failing to request further relief, the defendant
assented to the relief that he originally requested,
thereby waiving any claim with regard to additional
relief that he now claims was warranted.
For the same reasons set forth in part III of this
opinion, the waiver of this claim forecloses both relief
under Golding and plain error analysis. See State v.
McLaughlin, supra, 135 Conn. App. 198 (‘‘claim that
has been waived does not satisfy the third prong of . . .
Golding’’ [internal quotation marks omitted]); State v.
Corona, 69 Conn. App. 267, 274, 794 A.2d 565 (‘‘a valid
waiver . . . thwarts plain error review of a claim’’),
cert. denied, 260 Conn. 935, 802 A.2d 88 (2002).
The judgment is affirmed.
In this opinion the other judges concurred.
1
The drug phencyclidine is defined as ‘‘a piperidine derivative C17H25N
used chiefly in the form of its hydrochloride [especially] as a veterinary
anesthetic and sometimes illicitly as a psychedelic drug—called also angel
dust, PCP.’’ (Emphasis in original.) Merriam-Webster’s Collegiate Dictionary
(11th Ed. 2003).
2
During trial, Palmieri testified that mutilated money refers to bills that
are torn, worn-out, colored, or for any other reason, would not be distributed
to customers. Mutilated money is returned to The Federal Reserve per Bank
of America company policy.
3
The jury found the defendant not guilty of conspiracy to commit robbery
in the first degree and conspiracy to commit larceny in the third degree.
4
The following colloquy occurred between the court and defense counsel
four days after the proposed charge was distributed:
‘‘The Court: Prior to the opening of court, I have had a very productive
chambers conference concerning the charge, and just for the record, I’m
not sure if the record is explicit on this, so I’ll make it explicit: I gave, I
believe, on Monday copies of a draft charge to counsel. Am I correct there?
‘‘[Defense Counsel]: Yes.’’
The defendant therefore was provided with a meaningful opportunity to
review the proposed charge. See, e.g., State v. Webster, 308 Conn. 43, 63,
60 A.3d 259 (2013).
5
The following colloquy occurred between the court and defense counsel:
‘‘The Court: And addressing defense counsel, obviously, you have taken
an exception concerning the specific proposed charge we have already
discussed, but that aside, is there any proposed additions, subtractions,
modification, any exception you wish to make to the Court’s charge?
‘‘[Defense Counsel]: No, your honor.’’
6
The final charge to the jury on the credibility of eyewitness testimony
was as follows: ‘‘The credibility of witnesses and the weight to be given to
their testimony are matters for you to determine. However, there are some
principles you should keep in mind. You may believe, all, none, or any part
of any witness’ testimony. In making that determination, you may wish to
consider the following factors: (1) Was the witness able to see, hear, or
know the things about which that witness testified? (2) How well was the
witness able to recall and describe those things? (3) What was the witness’
manner while testifying? (4) Did the witness have an interest in the outcome
of the case or any bias or prejudice concerning any party or any matter
involved in the case? (5) How reasonable was the witness’ testimony consid-
ered in light of all of the evidence in the case? (6) Was the witness’ testimony
contradicted by what that witness had said or done at another time or by
the testimony of other witnesses or by other evidence? If you find that a
witness has deliberately testified falsely in some respect, you should care-
fully consider whether you should rely on any of that witness’ testimony.
In deciding whether or not to believe a witness, keep in mind that people
sometimes forget things. You should consider whether a contradiction is
an innocent lapse of memory or an intentional falsehood. That may depend
on whether it has to do with an important fact or only a small detail. The
weight of evidence does not depend on the number of witnesses testifying
on one side or the other. It is the quality and not the quantity of the evidence
that controls. All of these are factors that you may consider in finding
the facts.’’
7
Pursuant to Golding, ‘‘a defendant can prevail on a claim of constitutional
error not preserved at trial only if all of the following conditions are met:
(1) the record is adequate to review the alleged claim of error; (2) the claim
is of constitutional magnitude alleging the violation of a fundamental right;
(3) the alleged constitutional violation clearly exists and clearly 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. In the absence of any one of these
conditions, the defendant’s claim will fail. The appellate tribunal is free,
therefore, to respond to the defendant’s claim by focusing on whichever
condition is most relevant in the particular circumstances.’’ (Empahsis omit-
ted; footnote omitted.) State v. Golding, supra, 213 Conn. 239–40.