State v. Tarver ( 2016 )

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STATE OF CONNECTICUT v. TYRONE TARVER
(AC 38306)
Keller, Mullins and Pellegrino, Js.
Argued February 29—officially released June 21, 2016
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, White, J.)
Glenn W. Falk, assigned counsel, for the appellant
(defendant).
Kathryn W. Bare, assistant state’s attorney, with
whom, on the brief, were David I. Cohen, former state’s
attorney, and Joseph Valdes, senior assistant state’s
attorney, for the appellee (state).
Opinion
MULLINS, J. The defendant, Tyrone Tarver, appeals
from the judgment of conviction, rendered after a jury
trial, of felony murder in violation of General Statutes
§ 53a-54c, robbery in the first degree in violation of
General Statutes § 53a-134 (a) (2), and conspiracy to
commit robbery in the third degree in violation of Gen-
eral Statutes §§ 53a-48 and 53a-136 (a). On appeal, the
defendant raises two separate claims. First, he claims
that ‘‘the unauthorized ex parte excusal of a juror by
an unidentified person without notice and a hearing
violated [General Statutes] § 54-82h (c)1 and various
state and federal constitutional rights, including the
right to be present during jury selection to ensure an
impartial jury of one’s peers, and the right to a public
trial.’’ (Footnote added.) In his second claim, he alleges
that ‘‘the trial court abused its discretion in refusing to
rule on the motion in limine and in denying a mistrial
after [a] witness testified, just as defense counsel had
anticipated, that the defendant went to jail for robbery.’’
We disagree with both claims, and, accordingly, affirm
the judgment of the trial court.
The jury reasonably could have found the following
facts. In late October, 2009, the defendant asked the
victim, Denny Alcantara, to give him some marijuana
without payment up front. The victim refused the defen-
dant’s request. As a result of the victim refusing his
request for marijuana on credit, the defendant told his
friend Shari Johnson that he planned to set up a mari-
juana transaction with the victim so that he could rob
the victim.
Shortly thereafter, the defendant set in motion his
plan to rob the victim. Specifically, on November 4,
2009, the defendant arranged for the victim to meet him
and two of his friends, Darryl Bonds and Joshua McNeil,
at 62 Stillwater Avenue in Stamford, the home of
Anthony Lacrete. The victim arrived at the designated
location, retrieved six bags of marijuana that he had
stored at Lacrete’s apartment, and waited for the defen-
dant on the front porch. Meanwhile, Ivania Collazo,
Bonds’ cousin, gave the defendant, Bonds, and McNeil
a ride to a parking lot on Stillwater Avenue.
While the victim waited on the porch for the defen-
dant, Richard Patterson, a mutual acquaintance of the
defendant and the victim, walked by. Patterson stopped
and spoke briefly with the victim. After they conversed,
Patterson continued walking down the block, and he
encountered the defendant and his friends. Patterson
told them that the victim was awaiting them. Patterson
then telephoned the victim to tell him that the defendant
was on his way to meet him.
On arriving at the meeting point, the defendant and
at least one of his friends took from the victim the
marijuana, some cash, his cell phone, and the leather
jacket and gold chain he was wearing. In the process,
the victim was shot twice in the abdomen. The victim
died shortly thereafter. Cell phone call details and cell
tower location data placed the defendant at the scene
during the foregoing events.
The defendant, Bonds, and McNeil returned to Col-
lazo’s car, which she drove away from the area. In the
car, as they discussed the events that had just unfolded,
Bonds said that the victim had marijuana and a cell
phone, and the defendant said that the victim had a
black leather jacket, a gold chain, and some money.
The defendant was wearing the victim’s leather jacket.
At a nearby store, McNeil left the car and Elvis Battista,
Collazo’s brother, got in. The defendant told Battista
that he had robbed the victim, specifying that he had
taken the leather jacket, the gold chain, the marijuana,
and some cash.
En route to Collazo’s apartment in Bridgeport, Bonds
received a call on the victim’s cell phone, which he
answered before throwing the phone out of the window.
The defendant and Bonds spent the night at Collazo’s
apartment, smoking the victim’s marijuana.
After a trial, on January 18, 2013, the jury returned
a verdict of guilty on all of the charges. Thereafter, the
court sentenced the defendant to a total effective term
of fifty years imprisonment and ten years special parole.
This appeal followed. Additional facts will be provided
as necessary.
I
The defendant claims that ‘‘the unauthorized ex parte
excusal of a juror by an unidentified person without
notice and a hearing violated . . . § 54-82h (c) and vari-
ous state and federal constitutional rights, including the
right to be present during jury selection to ensure an
impartial jury of one’s peers, and the right to a public
trial.’’ Specifically, he contends that a ‘‘reversal [of his
conviction] is required since an unidentified person,
not the court, excused the juror, and the court did not
make a reliable, independent determination that the
juror could not perform her duty, as required by statute;
the defendant was deprived of his right to be present,
his right to individual voir dire, his right to be heard
by himself and by counsel, his right to due process of
law, and his right to a public trial; and the harm from
the statutory and constitutional violations must be pre-
sumed.’’ We disagree.
The following procedural history pertains to this
claim. Jury selection in the defendant’s trial occurred
over five days between November 28, 2012, and Decem-
ber 11, 2012. The parties selected a total of twelve
regular and four alternate jurors. In the course of select-
ing jurors, on December 4, 2012, venireperson E.A.2 was
selected as the seventh regular juror, and venireperson
L.C. was selected as the twelfth regular juror. By the
conclusion of jury selection, the defendant had not
exhausted all of his allotted peremptory challenges:
he had exercised thirteen of his allotment of sixteen
peremptory challenges and had three remaining.
Trial was set to begin on the morning of January 7,
2013, at approximately 10 a.m. As of 10:41 a.m. on that
date, however, three regular jurors, including L.C., and
one alternate juror had not yet reported to the court-
house. The court noted, in addition, that L.C. had
reported previously that he knew someone in the case.
The court stated that it therefore was going to bring
him in for voir dire when he arrived. The court then
asked the clerk to telephone the missing jurors.
Then, at approximately 11:29 a.m., the court stated:
‘‘The clerk has informed me that [E.A.] was released
downstairs in the jury assembly room. She claimed that
she has the flu and could not remain. And she is not
in the building. I don’t know who told her she could
leave. Nobody informed the court. So, the parties didn’t
get a chance to voir dire her. . . . [E.A.] was released,
and [L.C.] is the one who claims he knows somebody.’’
Defense counsel immediately stated: ‘‘Your honor
. . . I’m requesting that the court have the clerk call
[E.A.] back. We went through careful voir dire of [E.A.].
. . . She indicated that she was fully aware of this pro-
cess [and] wanted to serve. She’s an African-American
lady and, while my client, under the guise of a jury of
his peers, that doesn’t mean people that are African-
American like he is or his same age, but I think the
panel benefits from a cross [section] of people. [E.A.]
was an African-American lady, sixty-five years old, and
seemed to be very well open to serving. And typically,
as in the case of State v. Apodaca [303 Conn. 378, 33
A.3d 224 (2012)] . . . if a jury member has an issue, it
was incumbent upon us to bring that person into the
courtroom, as I’m sure Your Honor probably adopts
that theory, voir dire the person . . . and make a deter-
mination.
‘‘I don’t know who in the building just let this person
go. It doesn’t sound like it’s above board. And, just
to make sure we’re beyond reproach and nothing is
questionable, I think the court—I’m asking the court
to have the clerk call that person back so we can at
least have that person brought into the courtroom.
Because as we stand here, no one, not even Your Honor,
knows who let her go and why . . . . There was some
representation that she might have had a cold. That’s
all we have so far. So, now we have a panel member
that’s just let go, and we ask that she be brought back.’’
Following defense counsel’s argument, the court asked
the prosecutor if he had anything to say, and he
responded: ‘‘No, Your Honor.’’
Then, the court brought in L.C. for voir dire, and,
following questioning, the prosecutor indicated that he
would like the juror released from duty, while defense
counsel stated that he would like the juror to remain
seated. The court ultimately determined that L.C.
should be released, and that it would pick an alternate
juror to replace him.
The court then took up the matter of E.A., stating
the following: ‘‘And let me just deal with the issue of
[E.A.] while we’re at it. Again, I didn’t give permission
for that juror to be released. I’m not sure who did give
permission. I take it, it was our jury clerk, and I’m told
that the juror represented that she had the flu and was
unable to serve. And I’m not going to delay the trial.
We have jurors waiting. We have witnesses. We’re ready
to proceed. So, we’re going to use the statutory proce-
dure for choosing two of the alternates who will be
seated as regular jurors. I’m going to give them my
preliminary instructions, and we’re going to proceed
with the trial.’’
L.C. was brought back into the courtroom and
released from service. Two alternate jurors were then
chosen by the clerk by lot to be sworn in as regular
members of the jury. The court asked defense counsel if
he had anything else, to which he responded: ‘‘Nothing,
nothing.’’ The court then swore in the jury panel, after
which trial commenced at approximately 11:45 a.m.
A
We first address the defendant’s argument that the
court violated § 54-82h (c). ‘‘Our standard of review
for a trial court’s decision to excuse a juror is well
established. Section 54-82h (c) permits trial courts to
excuse a juror [i]f, at any time, any juror shall, for any
reason, become unable to further perform [his or her]
duty . . . . The power to excuse a juror under this
section is expressly premised on a finding of cause.
. . . Whether in the circumstances just cause exists to
excuse a juror is a matter within the discretion of the
. . . court. . . . State v. Apodaca, [supra, 303 Conn.
386]; see also State v. Cubano, 203 Conn. 81, 88–89, 523
A.2d 495 (1987) ([t]he trial court is vested with wide
discretion in determining the competency of jurors to
serve, and that judgment will not be disturbed absent a
showing of an abuse of discretion).’’ (Internal quotation
marks omitted.) State v. Gonzalez, 315 Conn. 564, 576,
109 A.3d 453, cert. denied, U.S. , 136 S. Ct. 84, 193
L. Ed. 2d 73 (2015). ‘‘We have recognized that unavail-
ability due to illness may constitute cause to excuse a
juror.’’ Id., 583.
In this case, the defendant’s appeal suffers from a
misapprehension of the procedural history that must
be remedied before we properly can address his claims.
That misapprehension centers on precisely when E.A.
was excused from her jury service for purposes of § 54-
82h (c). The defendant argues that E.A. was improperly
excused from her jury service when the ‘‘unauthorized’’
person permitted her to leave the courthouse. In light
of the record, it is our view that, for purposes of § 54-
82h (c), E.A. was not excused from her jury service at
that point, but rather she was excused from jury service
after the court heard from counsel and decided to
replace her with an alternate.
We acknowledge that it was not the trial judge who
initially permitted E.A. to leave the courthouse. It was,
however, the trial judge who ultimately made the deci-
sion to excuse her from her jury service. Indeed, after
learning from the jury clerk that E.A. had been told she
could leave the court, the trial judge sought input from
the parties regarding how it should proceed. The defen-
dant argued for the court to bring E.A. back. The court
certainly could have opted to do so. Given her reported
illness and the time that already had been lost that
morning, however, the court opted instead to excuse
her and then selected an alternate as required by § 54-
82h (c).
Therefore, although the court specifically noted, with
respect to E.A. initially being permitted to leave the
courthouse, that ‘‘I didn’t give permission for that juror
to be released,’’ the court did not simply select an alter-
nate without giving the parties an opportunity to be
heard. After giving the parties that opportunity, the
court appears to have credited the report from the clerk
that E.A. had told someone that she was too ill to
remain. The court then effectively excused E.A. when
it announced its intent ‘‘to use the statutory procedure
for choosing two of the alternates who will be seated
as regular jurors.’’ Accordingly, E.A. was excused from
her service as a juror when the court did so after receiv-
ing input from the parties. With the point of E.A.’s excu-
sal clarified, we now turn to the defendant’s
statutory claim.
Although the defendant’s statutory claim is not
entirely clear and seems to be inextricably intertwined
with his constitutional claims, he appears to be claiming
that the court violated § 54-82h (c) in the following
ways. First, he argues, the court did not make a reliable,
independent determination that E.A. could not perform
her duty because an unidentified person, not the court,
excused E.A. Second, he appears to argue that the stat-
ute requires the court to give the defendant notice and
hold a hearing to be able to make an informed decision
regarding a juror’s ability to serve before it may excuse
the juror. In essence, he appears to be claiming that
the court failed to exercise its discretion altogether
because the unidentified person, rather than the court,
actually excused E.A. Third, he argues that the statute
was violated because he was not permitted an opportu-
nity to ask questions of E.A. or assess the credibility
of the person who excused her. We reject each of
these contentions.
As to the defendant’s first argument in support of
his statutory claim, that the court did not determine
independently that there was cause to excuse E.A., it
fails because, as we already have explained, it was in
fact the court, not an unidentified person, who excused
E.A. from jury service. The court accepted the represen-
tation that E.A. was ill. As we have noted, illness is
good cause to excuse a juror. State v. Gonzalez, supra,
315 Conn. 583.
Next, as to the defendant’s contention that E.A. was
excused without notice and a hearing, this too fails. The
record clearly demonstrates that after learning from a
member of the courthouse staff that E.A. reportedly
was suffering from the flu, the court held a discussion
on the record before deciding to replace her. Thus, after
announcing what it had learned from the clerk, the
court gave the parties an opportunity to be heard on
the matter. Defense counsel took that opportunity to
place on the record numerous objections to excusing
E.A. After hearing these objections, the court decided
to excuse E.A. and replace her with an alternate. The
court further explained that the trial already had been
delayed that morning, that witnesses were waiting, and
that it did not want to delay the start of trial any further.
Therefore, given the information that E.A. was ill and
having received input from both parties, the court prop-
erly exercised its discretion in deciding not to delay
the trial and to replace E.A. with an alternate.
Finally, to the extent that the defendant argues that
he was entitled personally or through counsel to assess
the credibility of E.A.’s excuse, neither § 54-82h (c) nor
the cases that have construed it require an opportunity
for the parties to question a juror before the court may
excuse her. See, e.g., id., 582–84 (court’s excusal and
replacement of juror who reported to court clerk by
telephone that she would be unavailable that day
because of medical condition was not abuse of discre-
tion). Therefore, on the basis of the plain language of
the statute and Gonzalez, the defendant’s reliance on
State v. Apodaca, supra, 303 Conn. 384, for the proposi-
tion that the court must hold a hearing during which
the parties can question a juror, is misplaced.
In Apodaca, on the fifth day of evidence, at approxi-
mately 10:30 a.m., the trial court informed the parties
that a juror had reported to the caseflow coordinator
by telephone that she was suffering from the flu. Id.,
383. After hearing the parties’ positions on whether it
should dismiss the juror, the court deferred decision
on the matter. Id., 384. In the meantime, at the court’s
request, the caseflow coordinator telephoned the juror,
who reported that she was not sure when she would
feel well enough to return to jury duty. Id. Approxi-
mately one hour later, the court ‘‘reason[ed] that [the
juror] presently was ill, that the court was not optimistic
that she would be well enough by 2 p.m. to resume her
duties and that, even if she did return, [the juror] might
spread her illness to other jurors due to the close prox-
imity that they shared. The court further reasoned that
a delay could result in the loss of other jurors because
the trial already had exceeded the estimated time frame
that had been given to the jury and protracted testimony
still lay ahead. Accordingly, the court ruled that it was
excusing [the juror] for the aforementioned reasons
and that an alternate juror would be selected by lot.’’
Id., 384–85.
Our Supreme Court held that the trial court’s decision
was ‘‘well founded, and therefore cannot be deemed
an abuse of discretion’’; id., 387; because ‘‘[t]he trial
court articulated the basis of its . . . decision to
excuse [the juror]: she was ill; unable to confirm when
she would be well enough to return, and still potentially
infectious; and a delay risked the loss of other jurors
due to the trial having already exceeded its projected
completion date.’’ Id., 386.
Unlike the defendant in this case, we do not read
Apodaca to require the trial court to conduct a credibil-
ity assessment of a juror’s report of illness as a prerequi-
site to finding cause to excuse the juror. Neither the
trial court nor the parties in Apodaca personally ques-
tioned the juror regarding her symptoms. After solicit-
ing additional information through the caseflow
coordinator, the trial court based its decision to excuse
the juror on the potential delay that would arise from
the uncertain time of her return as well as the possibility
that, when she did return, she might be contagious.
Although the court in this case did not follow up with
E.A. to obtain more specific information regarding her
reported illness, it, like the trial court in Apodaca, based
its decision to excuse E.A. on proper considerations of
efficiency and the other jurors’ and witness’ time. Nei-
ther the clear language of § 54-82h (c) nor Apodaca
required more.
For the foregoing reasons, we do not conclude that
the court abused its discretion by crediting the report
of E.A.’s illness, deciding that it was not going to delay
any further the start of the trial in order to bring her
back to the courthouse, and determining accordingly
that there was cause to excuse her.
Even if we were to conclude that the court abused
its discretion when it excused E.A. and replaced her
with an alternate juror, the defendant has not shown
that he was harmed as a result. The defendant argues
that harm should be presumed. He also contends that,
even though harm should be presumed, he still has
demonstrated harm in this case because the unautho-
rized excusal of E.A. decreased the racial diversity of
the jury panel. We disagree.
This court has stated that a ‘‘violation [of § 52-84h
(c)] does not necessarily implicate the defendant’s con-
stitutional rights and a reversal of conviction is not
automatic.’’ State v. Walton, 41 Conn. App. 831, 843,
678 A.2d 986 (1996); see also State v. LaBrec, 270 Conn.
548, 558, 854 A.2d 1 (2004) (‘‘the mechanisms for provid-
ing for and dismissing alternate jurors, and the circum-
stances under which they may be substituted for regular
jurors, do not implicate . . . constitutional rights’’
[internal quotation marks omitted]); State v. Williams,
231 Conn. 235, 244, 645 A.2d 999 (1994) (‘‘a violation
of § 54-82h [c] does not implicate the defendant’s consti-
tutional rights’’), overruled in part on other grounds by
State v. Murray, 254 Conn. 472, 487 and n.9, 757 A.2d
578 (2000).
‘‘Rather, the defendant bears the burden of proving
that he was harmed by the substitution of the regular
juror with an alternate.’’ State v. Walton, supra, 41 Conn.
App. 843. The defendant must show ‘‘how the dismissal
of the juror created unfairness to the defendant.’’ State
v. Mills, 57 Conn. App. 356, 365, 748 A.2d 891 (2000);
see also State v. Bowens, 62 Conn. App. 148, 157, 773
A.2d 977 (‘‘even if the court had abused its discretion,
the defendant cannot show that the dismissal of [the
juror] resulted in any harm to him’’), cert. denied, 256
Conn. 907, 772 A.2d 600 (2001). In other words, the
defendant must show that ‘‘the rulings of the trial court
resulted in a jury that could not judge his guilt impar-
tially.’’ (Internal quotation marks omitted.) State v.
Mills, supra, 364.
Although our case law is clear that the defendant
must prove that the substitution of a juror resulted in
harm, the defendant nevertheless argues that ‘‘[p]reju-
dice must be presumed under the circumstances of this
case . . . .’’ On the basis of numerous nonbinding
cases, he posits that because the excusal of E.A. took
place by a ‘‘secret proceeding’’ that excluded him from
a critical stage of the prosecution and produced no
record for review, this court must presume prejudice.
We disagree.
As we previously have discussed, the factual premise
of a secret proceeding on which the defendant’s argu-
ment rests is incorrect. In particular, although an
unnamed individual dismissed E.A. from the jury assem-
bly room, E.A. was not excused from jury service until
the court subsequently determined that it would follow
the applicable statutory procedure for choosing an
alternate to replace her. The court did not make this
determination in secret; it decided to replace E.A. on
the record, after notifying counsel that E.A. reportedly
was ill and providing counsel with the opportunity to
present argument. The court then followed the proper
procedure for choosing an alternate by lot. As a result,
the nonbinding cases on which the defendant relies are
factually distinguishable. E.g., Scott v. State, 219 Ga.
App. 798, 799–800, 466 S.E.2d 678 (1996) (reversal
required where trial court, relying on jury foreperson’s
representation that juror had become ill during delibera-
tions, replaced ill juror without consulting counsel for
either party); Bruckshaw v. Frankford Hospital of Phil-
adelphia, 619 Pa. 135, 154–55, 58 A.3d 102 (2012) (‘‘[t]he
removal of a presumptively competent juror, by a court
officer, without notice to the court, without notice to
the parties, and the substitution with the last alternate
juror [instead of the first, as required by statute] is so
inimical to the integrity of our jury system that the
presumption of prejudice arising therefrom is con-
clusive’’).
In addition to declining the defendant’s invitation to
presume harm under the circumstances of this case,
we conclude that the defendant has not demonstrated
that he was harmed by the replacement of E.A. with
an alternate juror. The defendant, who is African-Ameri-
can, argues that he was harmed by the loss of racial
diversity of the jury when E.A., an African-American
woman, was excused. This court previously has consid-
ered and rejected a similar argument.
In State v. Diaz, 94 Conn. App. 582, 588–89, 893 A.2d
495, cert. denied, 280 Conn. 901, 907 A.2d 91 (2006),
this court concluded that the defendant failed to demon-
strate that he was harmed by a juror’s excusal when
he argued only that the dismissed juror was the lone
Hispanic juror and the defendant was Hispanic. See
also State v. Lane, 101 Conn. App. 540, 549–50, 922 A.2d
1107 (where African-American juror failed to appear
for trial at required time, court’s substitution of alter-
nate was permissible, nondiscriminatory basis for
juror’s removal and did not violate defendant’s right to
equal protection or fair trial), cert. denied, 283 Conn.
910, 928 A.2d 538 (2007).
Here, as in Diaz, the defendant does not allege that
the remaining jurors were unable to judge his guilt
impartially. State v. Diaz, supra, 94 Conn. App. 589.
Indeed, ‘‘[a]lternate jurors, by statute, must have the
same qualifications and be selected in the same manner
as regular jurors.’’ State v. Williams, 108 Conn. App.
556, 566, 948 A.2d 1085 (2008). Additionally, by not
having exhausted his allotment of peremptory chal-
lenges, the defendant implicitly conveyed his accep-
tance of the alternate jurors available to replace E.A.
‘‘Unless all his peremptory challenges have been exer-
cised before the completion of jury selection, it is pre-
sumed that no juror was permitted to serve whom the
defendant regarded as biased or unsuitable, although
he might have preferred others.’’ State v. Vitale, 190
Conn. 219, 225, 460 A.2d 961 (1983). Thus, in essence,
the court here simply substituted for one acceptable
juror another equally acceptable juror. Accordingly, the
defendant has not demonstrated that he was harmed
by the court’s substitution of an alternate for E.A.
For the foregoing reasons, we conclude that the court
did not violate § 54-82h (c) when, after learning that
E.A. reportedly was ill and holding a hearing, it excused
E.A. and replaced her with an alternate juror.
B
Next, we address the defendant’s argument, which
he asserts for the first time on appeal, that the court
violated various constitutional rights when it excused
E.A. and replaced her with an alternate. We conclude
that this unpreserved claim is unreviewable because,
despite the constitutional label he has affixed to this
claim, the defendant has failed to allege a claim of
constitutional magnitude.
The defendant claims on appeal that ‘‘the excusal of
the juror E.A. by a clerk or some other unauthorized
person outside of the courtroom violated . . . the fol-
lowing interrelated and overlapping constitutional
rights: the right to be present, the right to individual
voir dire, the right to be heard by the defendant himself
and by counsel, the right to due process of law, and
the right to a public trial.’’ Because the defendant con-
cedes that he did not raise this claim at trial, we consider
his claim pursuant to State v. Golding, 213 Conn. 233,
239–40, 567 A.2d 823 (1989). ‘‘Under Golding, a defen-
dant may prevail on an unpreserved claim only if 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 viola-
tion . . . 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.’’ (Internal quotation marks omitted.) State v.
Wright, 319 Conn. 684, 688, 127 A.3d 147 (2015). ‘‘[T]he
first two [prongs of Golding] involve a determination
[as to] whether the claim is reviewable; the second
two . . . involve a determination [as to] whether the
defendant may prevail.’’ (Internal quotation marks omit-
ted.) State v. LaBrec, supra, 270 Conn. 555.
The defendant’s unpreserved claim fails under the
second prong of Golding. ‘‘This court previously has
held . . . that the process for selecting and dismissing
alternate jurors, including § 54-82h (c), does not impli-
cate constitutional rights.’’ State v. Alston, 272 Conn.
432, 456, 862 A.2d 817 (2005); see also State v. LaBrec,
supra, 270 Conn. 558–59 (Golding review of defendant’s
claim that trial court violated § 54-82h [c] unavailable
because claim was not of constitutional magnitude).
Although the record is adequate for review, the defen-
dant’s claim, which is predicated on the court’s alleg-
edly improper excusal and replacement of E.A., is not
of constitutional magnitude and, therefore, does not
warrant Golding review.3
II
The defendant next claims that ‘‘the trial court abused
its discretion in refusing to rule on the motion in limine
and in denying a mistrial after [a] witness testified, just
as defense counsel had anticipated, that the defendant
went to jail for robbery.’’ We disagree.
The following additional facts pertain to this claim.
The defendant filed a motion in limine in which he
sought an order prohibiting the state from introducing
evidence of his 2007 arrest and robbery charge.4 On
January 7, 2013, the court held a hearing on the motion.
At the hearing, it was undisputed that the defendant
had been convicted of the 2007 robbery charge. The
state represented that it did not intend to introduce any
evidence of the defendant’s robbery conviction during
its case-in-chief. The court then stated that it would
‘‘hold this motion in abeyance until such time as the
defense puts on a case and you decide to put [the
defendant] on the stand or somebody else. And it will
be relevant at that moment since the state just told me
it’s not going to put on evidence of . . . his prior rob-
bery conviction in its case-in-chief.’’
Defense counsel expressed concern that certain wit-
nesses who had talked about the defendant’s prior bad
acts at the defendant’s hearing on probable cause would
do so again at his trial. The court replied, ‘‘[i]f somebody
says something objectionable, object and I’ll hear your
objection. I don’t know what the witnesses are going
to say. I’m not even sure who all the witnesses are going
to be. I’m not going to anticipate something. I’m going
to wait until it happens.’’
Nevertheless, defense counsel then asked the court
to instruct the state to direct Johnson, one of the afore-
mentioned witnesses at the probable cause hearing,5
not to mention the defendant’s robbery conviction in
her trial testimony. The court declined this invitation,
concluding the matter by stating that ‘‘the state’s attor-
ney just told me he wasn’t going to ask or raise issues
about [the defendant’s] robbery conviction in the case-
in-chief. If somebody says something objectionable,
object.’’
At the defendant’s trial, Johnson testified during the
state’s case-in-chief. Twice during her testimony, John-
son referred to the defendant’s prior robbery convic-
tion.6 After the first instance, which occurred on direct
examination, the defendant objected, and the court
excused the jury. Defense counsel then made an oral
motion for a mistrial, which the court denied. The court
solicited from defense counsel a suggestion for a cura-
tive instruction to the jury, indicating that in the absence
of a suggestion it would ‘‘tell the jury [to] ignore the
last statement that was made,’’ and would order the
statement stricken from the record. Defense counsel
declined to suggest a curative instruction. When the
jury returned to the courtroom, the court directed the
jurors to ignore Johnson’s mention of the defendant’s
robbery conviction.7
Thereafter, during a recess, defense counsel obtained
the court’s permission to reduce the motion for a mis-
trial to writing and submit it. The court then explained
the basis for its prior denial of the oral motion for a
mistrial—namely, the lack of detail that Johnson had
provided regarding the defendant’s prior conviction.
The court also noted that, in the absence of a suggested
curative instruction from the defendant, the court
‘‘thought it was better not to mention the statement
itself because all that would do is highlight it. And I
struck it from the record . . . .’’
Although after Johnson first mentioned the defen-
dant’s prior conviction the court twice instructed her
not to volunteer any information beyond the call of
counsel’s questions,8 the court’s instructions proved
ineffective. During the state’s redirect examination,
Johnson unresponsively referred to the defendant hav-
ing been released from jail. See footnote 6 of this opin-
ion. Immediately thereafter, the court said ‘‘I’m going
to order that last comment stricken. Ignore it. Let’s
proceed.’’ Defense counsel then made a second oral
motion for a mistrial, which the court denied. In its
final instructions to the jury, the court directed jurors
not to consider evidence that had been stricken from
the record.
Our review of a trial court’s ruling on a motion in
limine is limited to determining whether the court prop-
erly exercised its discretion. ‘‘It is axiomatic that [t]he
trial court’s ruling on the admissibility of evidence is
entitled to great deference. . . . In this regard, the trial
court is vested with wide discretion in determining the
admissibility of evidence . . . . Accordingly, [t]he trial
court’s ruling on evidentiary matters will be overturned
only upon a showing of a clear abuse of the court’s
discretion. . . . [I]n determining whether there has
been an abuse of discretion, every reasonable presump-
tion should be made in favor of the correctness of the
trial court’s ruling . . . .’’ (Internal quotation marks
omitted.) State v. Creech, 127 Conn. App. 489, 495, 14
A.3d 434, cert. denied, 301 Conn. 906, 17 A.3d 1045
(2011).
Our review of a court’s denial of a motion for a mis-
trial is similarly curtailed. ‘‘It is only when an abuse of
discretion is manifest or where an injustice appears to
have been done that a reversal will result from the trial
court’s exercise of discretion. . . .
‘‘[Although] the remedy of a mistrial is permitted
under the rules of practice, it is not favored. . . . If
curative action can obviate the prejudice, the drastic
remedy of a mistrial should be avoided. . . . The trial
court enjoys wide discretion in deciding whether a mis-
trial is warranted . . . and its evaluation as to events
occurring before the jury is to be accorded the highest
deference. . . . Every reasonable presumption will be
given in favor of the trial court’s ruling . . . because
the trial court, which has a firsthand impression of
the jury, is in the best position to evaluate the critical
question of whether the . . . jurors’ exposure has prej-
udiced a defendant.’’ (Internal quotation marks omit-
ted.) State v. Anderson, 163 Conn. App. 783, 791, 134
A.3d 741, cert. denied, 321 Conn. 909, A.3d
(2016).
We turn first to the defendant’s claim that the court
abused its discretion by refusing to rule on his motion
in limine. The court characterized its action as holding
the motion in abeyance. We conclude that the court
reserved decision on the motion with regard to the
defendant’s request to preclude the state from offering
evidence regarding the prior robbery conviction9 when
it accepted the state’s representation that it was not
going to offer any such evidence in its case-in-chief,
ruling that the defendant would have to wait until
‘‘somebody says something objectionable’’ and then
object. We further conclude that the court’s reservation
of decision on the motion was a proper exercise of
its discretion. See Practice Book § 42-15 (court may
reserve decision on motion in limine).
The defendant argues that the foreseeability both of
the state calling Johnson as a witness and of Johnson’s
mentioning the defendant’s prior conviction, in light of
her divulgence of the same at the probable cause hear-
ing, indicates that the court abused its discretion. Put
differently, he argues that the court vitiated the very
purpose of a good faith motion in limine, which is to
exclude anticipated evidence. For several reasons, we
disagree with the defendant that Johnson’s disclosures
were so foreseeable that the court’s failure to order
that she be warned against making them10 was arbitrary
or unreasonable.
At the hearing on the defendant’s motion in limine,
the state represented that it did not intend to offer
evidence of the defendant’s prior conviction during its
case-in-chief. Additionally, the mere fact that Johnson
would testify did not require the court to anticipate that
she would divulge the defendant’s criminal history; as
the court noted, in each instance Johnson’s disclosure
was wholly unresponsive to the prosecutor’s line of
questioning. Finally, we cannot say, in this case, that
an order to the prosecutor to warn Johnson against
making these disclosures would have been successful.
As the record reveals, the court’s two warnings to John-
son following the first disclosure proved ineffective:
shortly thereafter, she again mentioned that the defen-
dant previously had been in jail. For these reasons, we
cannot say that the court’s election to reserve decision
on the defendant’s motion in limine was an abuse of dis-
cretion.
We next turn to the defendant’s claim that the court
abused its discretion by denying his motions for a mis-
trial. Again, the defendant argues that the court could
have avoided the harm to the defendant flowing from
Johnson’s reference to the defendant’s robbery convic-
tion because it was foreseeable. Specifically, he argues
that the court and the state had ample time to warn
Johnson in advance not to refer to the conviction in
her trial testimony as she had done at the probable
cause hearing. The defendant also argues that he suf-
fered prejudice because the jury readily could infer
that he had gone to jail for robbery in the recent past:
Contrary to the court’s characterization of Johnson’s
testimony as lacking in detail, the prejudice to the defen-
dant was not minimized by the jury not knowing the
degree of the charged robbery, when it occurred, when
the defendant went to jail for it, and how much jail
time he received. We disagree.
As we already have noted, the giving of a curative
instruction, such as the court gave here, carries great
weight in our determination of whether the court’s
denial of a motion for mistrial was an abuse of discre-
tion. See State v. Anderson, supra, 163 Conn. App. 791.
Here, after both of Johnson’s unresponsive disclosures
that the defendant had been convicted of robbery and
had previously been in jail, the court promptly gave the
jury a curative instruction directing jurors to ignore
each statement and informing them that each statement
would be stricken from the record. Additionally, in its
final instructions, the court instructed the jurors that
they were not to consider as evidence any testimony
that had been stricken from the record.
‘‘It is well established that, [i]n the absence of an
indication to the contrary, the jury is presumed to have
followed [the trial court’s] curative instructions. . . .
The burden is on the defendant to establish that, in the
context of the proceedings as a whole, the challenged
testimony was so prejudicial, notwithstanding the
court’s curative instructions, that the jury reasonably
cannot be presumed to have disregarded it.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Nash, 278 Conn. 620, 659–60, 899 A.2d 1 (2006); see
also State v. Doehrer, 200 Conn. 642, 654, 513 A.2d 58
(1986) (‘‘[a]ny possible prejudice stemming from the
portion of the question that the jury did hear was cured
by the prompt curative instruction and the further
instruction given by the judge in his final charge’’); State
v. Williams, 64 Conn. App. 512, 539–40, 781 A.2d 325
(denial of motion for mistrial not abuse of discretion
where, immediately following prosecutor’s question
‘‘[d]o you recall [the defendant] going to jail back in
October of 1996?’’ court instructed jury to ‘‘[p]lease
ignore that, ladies and gentlemen’’ and directed prose-
cutor to discontinue line of questioning), cert. granted
on other grounds, 258 Conn. 911, 782 A.2d 1251 (2001)
(appeal dismissed April 24, 2003).
Here, the defendant has not carried his burden to
demonstrate that the prejudicial effect of Johnson’s
testimony exceeded the ameliorative effect of the
court’s curative instructions. Indeed, each curative
instruction that the court gave was carefully calculated
to mitigate any prejudice. As the court told defense
counsel, it had opted generally to direct jurors to ignore
Johnson’s foregoing statement rather than possibly to
highlight the statement by specifically mentioning it.
Although invited to suggest the language in which the
court should have couched the curative instruction,
‘‘[t]he defendant . . . neither submitted a request to
charge nor took exception to the court’s charge on this
point. He cannot now be heard to complain that the
trial court failed to cure any prejudice caused by [the
offending] remark.’’ State v. Moye, 199 Conn. 389, 396,
507 A.2d 1001 (1986) (where court gave curative instruc-
tion couched in general terms to avoid undue emphasis
on remark and defendant failed to suggest alternative
or object to court’s instruction, denial of motion for
mistrial was not abuse of discretion).11
Additionally, the state’s case against the defendant
was otherwise strong. The state presented ample evi-
dence on the basis of which the jury reasonably could
have found that the defendant committed these crimes.
The robbery of the victim took place in the same manner
in which the defendant had told Johnson he planned
to carry it out. The testimony of numerous witnesses,
corroborated by cell phone evidence, placed the defen-
dant at the scene during the events in question. After-
ward, the defendant was wearing the victim’s leather
jacket and boasting of having taken the victim’s mari-
juana, cash, gold chain, and cell phone.
In sum, on the record before us, it does not appear
that an injustice has been done. The court acted within
its wide discretion in determining that its curative
instructions had so obviated any prejudice flowing from
Johnson’s remarks that a mistrial was unwarranted.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 54-82h (c) provides in relevant part: ‘‘If, at any time,
any juror shall, for any reason, become unable to further perform the duty
of a juror, the court may excuse such juror and, if any juror is so excused
or dies, the court may order that an alternate juror who is designated by
lot to be drawn by the clerk shall become a part of the regular panel and
the trial or deliberation shall then proceed with appropriate instructions
from the court as though such juror had been a member of the regular panel
from the time when the trial or deliberation began. . . .’’
2
We refer to the jurors by initials to protect their legitimate privacy
interests. State v. Williams, 108 Conn. App. 556, 558 n.2, 948 A.2d 1085 (2008).
3
Additionally, the defendant’s claims that E.A. was excused off the record,
in secret, and outside his presence or the presence of counsel, in violation
of his constitutional rights, rest on the factual premise that E.A. was excused
when she was dismissed from the jury assembly room instead of when the
court decided to employ the statutory procedure to replace her. As we
previously have discussed in part I A of this opinion, this premise is incorrect.
After learning that E.A. had been dismissed from the jury assembly room,
the court excused her on the record, after giving counsel notice of her
reported illness and the opportunity to be heard.
4
The defendant also sought to preclude the state from introducing evi-
dence regarding his ‘‘previous involvement in a domestic violence case.’’
That portion of the motion in limine is not at issue in this appeal.
5
The defendant requested the same instruction with regard to Patterson,
another witness who had mentioned the defendant’s criminal history at the
probable cause hearing. Patterson did not mention the defendant’s prior
conviction in his trial testimony.
6
In the first instance, Johnson was testifying regarding her relationships
with the defendant and the victim. Johnson testified that the defendant, a
friend, had introduced her to the victim, ‘‘and he and I instantly hit it off.
I was just like oh he’s mad cool. We exchanged phone numbers and then
we became friends as well. And then later, [the defendant] went to jail for
robbery—’’
In the second instance, Johnson referred to the defendant having been
released from jail in the following exchange that occurred between the
prosecutor and Johnson:
‘‘Q. Okay. The timeline—when did [the defendant] live in your mother’s
house? Do you remember? Was it before November of 2009 or after?
‘‘A. Yeah. During the . . . duration of time when he just came home
from jail.’’
7
The court stated the following: ‘‘Okay, members of the jury, just before
you were excused a moment ago, the witness made a statement that was
unresponsive to the question that was asked. You are to ignore that state-
ment. The statement is stricken from the record. Let’s proceed.’’
8
After denying the defendant’s first oral motion for a mistrial, the court
admonished Johnson outside the presence of the jury, stating ‘‘just don’t
volunteer things, okay?’’ Shortly thereafter, again outside the presence of
the jury, the court reiterated its admonition during the following exchange
among the court, the prosecutor, and Johnson:
‘‘The Court: [I] take it you had an opportunity to speak to your witness
about making voluntary statements regarding criminal conduct by this
defendant?
‘‘[The Prosecutor]: [S]he came in late this morning and I was unable to.
And the first time she responded to the subpoena was Monday morning. I
was remiss.
‘‘The Court: Okay. Well I think I indicated on the record before, ma’am,
if you’re asked a question about what [the defendant] said, you can say
what [the defendant] said but just don’t volunteer stuff that you’re not asked
about, all right?
‘‘The Witness: All right.’’
9
We note that the court did reserve decision on the motion in limine with
regard to the state’s use of the defendant’s prior conviction for impeachment
purposes ‘‘until such time as the defense puts on a case and you decide to
put [the defendant] on the stand. . . . And it will be relevant at that moment
since the state just told me it’s not going to put on evidence of . . . his
prior robbery conviction in its case-in-chief.’’ Because the defendant elected
not to testify, the state had no occasion to introduce impeachment evidence.
See State v. Crumpton, 202 Conn. 224, 230, 520 A.2d 226 (1987) (prior
conviction may be admissible if defendant testifies, putting credibility in
issue).
10
Insofar as the specific basis of the defendant’s claim on appeal is the
court’s denial of his request for an instruction to Johnson not to testify as
to the defendant’s robbery conviction, we note that the defendant did not
include this request in his written motion in limine but only requested it
orally at the hearing on that motion. The state argues that the court was
entitled to disregard the motion because it did not comply with Practice
Book § 42-15, which states that a motion in limine ‘‘shall be in writing . . . .’’
Nevertheless, the state neither objected to the defendant’s request on this
ground nor argues before this court that it was deprived of notice or other-
wise prejudiced by the oral motion. Accordingly, we will consider the denial
of the defendant’s oral request as a basis for this appeal. Cf. State v. Andrews,
313 Conn. 266, 273 n.4, 96 A.3d 1199 (2014) (rejecting defendant-appellant’s
claim that court should have denied state’s oral motion in limine summarily
as procedurally improper where defendant did not object to motion on
procedural grounds or claim on appeal that he was deprived of adequate
notice to respond or otherwise was harmed, and cited no authority).
11
We note briefly the defendant’s argument that the court’s denial of his
motions for a mistrial was an abuse of discretion because Johnson referred
to ‘‘the specific legal consequences attendant to [the defendant’s prior]
conduct.’’ State v. Nash, supra, 278 Conn. 659. In Nash, one of our Supreme
Court’s reasons for affirming the trial court’s denial of the defendant’s motion
for mistrial was that ‘‘the allegedly improper statement . . . that [the wit-
ness] knew the defendant ‘from previous related police intervention in the
area in the past’ is vague as to whether the defendant had engaged in any
misconduct to prompt the police intervention. [The witness’] statement
conceivably could have been a reference to a situation in which the defendant
had been a victim, a witness or an innocent bystander.’’ Id., 658. In particular,
the statement ‘‘[did] not reference explicitly a notorious criminal past . . .
specific facts concerning improper conduct by the defendant [or] the specific
legal consequences attendant to such conduct.’’ (Citation omitted.) Id.,
658–59.
Although the court in Nash observed that the absence of these references
weighed in favor of concluding that the court properly had denied the motion
for a mistrial in that case, Nash does not stand for the proposition that the
presence of any such reference requires a mistrial. Furthermore, in the
present case, as in Nash, ‘‘[t]o the extent that the jury arguably could have
interpreted the isolated statement to mean that the defendant had engaged
in prior misconduct . . . and thus it potentially could have relied on that
statement as improper propensity evidence, it is significant that the trial
court provided a curative instruction to the jury.’’ Id., 659. Accordingly, the
defendant’s reliance on Nash is misplaced.