State v. Mekoshvili ( 2020 )

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STATE OF CONNECTICUT v. SHOTA MEKOSHVILI
(AC 42144)
Lavine, Devlin and Beach, Js.
Syllabus
Convicted, following a jury trial, of the crime of murder in connection with
the stabbing death of the victim, the defendant appealed, claiming, inter
alia, that the trial court erred by admitting certain testimony from the
victim’s wife and the victim’s business partner, A. The victim, a taxi cab
driver, was stabbed to death during his evening shift on a Tuesday night,
and money was stolen from the taxi’s glove compartment. During the
trial, the victim’s wife stated that on the night of the victim’s murder,
he returned home briefly to retrieve money to pay for his portion of a
certain taxi fee and to send money to his family overseas. A testified
that the victim regularly placed his portion of the taxi fee in the glove
compartment on Tuesday nights for A to pay the following day. Held:
1. The defendant could not prevail on his claim that the wife’s testimony
regarding statements made to her by the victim was irrelevant as to
whether the defendant killed the victim or whether he acted with crimi-
nal intent; the wife’s testimony regarding the victim’s statements reason-
ably could have made it more likely that the defendant had a financial
motive in killing the victim and less likely that the killing was the result
of self-defense, as claimed by the defendant, and the defendant’s claim
that the victim’s statements to his wife were self-serving and backward
looking and, thus, did not satisfy the state of mind exception to the
hearsay rule was unavailing, as the victim’s statement to his wife indi-
cated his intention to take money to pay the taxi company in the immedi-
ate future, and although the part of the statement indicating that he had
taken money for that purpose was retrospective, it provided context as
for the expression of his intention to pay his taxi fees and send money
to his family, and at the time the victim made those statements to his
wife, no crime had been committed nor was one foreseeable.
2. The defendant could not prevail on his claim that the trial court improperly
allowed testimony from A, pursuant to the habit exception of the hearsay
rule, regarding the victim’s customary habit of leaving his portion of
the taxi fee in the glove compartment of the taxi on Tuesday nights, as
A’s testimony was relevant to the issue of motive for the defendant to
kill the victim; the jury reasonably could have inferred from A’s testimony
that the victim had placed money in the glove compartment of the taxi
that was, thereafter, taken by the defendant, and that financial gain
could have been the motive for murder, and the defendant’s claim that
the state failed to provide an adequate foundation for the admission of
A’s testimony regarding habit evidence was unavailing, as there is no
particular numerical threshold that must be met in order for a person’s
conduct to rise to the level of habit, and A’s testimony established that
the victim’s specific conduct of leaving his portion of the taxi fee in
the glove compartment of the taxi on Tuesday nights constituted a
sufficiently regular practice.
3. The trial court properly instructed the jury with a general unanimity
charge and did not err in failing to grant the defendant’s request for
a specific unanimity charge as to the claim of self-defense; the jury
instructions, viewed in their totality, were correct in law and fairly
presented the case to the jury, as each of the four elements of a claim
of self-defense were explained in detail and in accordance with the
model jury charge, the factual scenario in the present case was not
especially complex and the defendant’s course of conduct did not com-
prise separate incidents, and because the trial court did not sanction a
nonunanimous verdict, a unanimity instruction on the claim of self-
defense was not required.
Argued September 23, 2019—officially released January 7, 2020
Procedural History
Substitute information charging the defendant with
the crime of murder, brought to the Superior Court in
the judicial district of Stamford and tried to the jury
before Blawie, J.; verdict and judgment of guilty, from
which the defendant appealed. Affirmed.
Norman A. Pattis, with whom, on the brief, was
Kevin Smith, for the appellant (defendant).
Ronald G. Weller, senior assistant state’s attorney,
with whom, on the brief, were Richard J. Colangelo,
Jr., state’s attorney, and James Bernardi, supervisory
assistant state’s attorney, for the appellee (state).
Opinion
BEACH, J. The defendant, Shota Mekoshvili, appeals
from the judgment of conviction, rendered on a jury
verdict of murder in violation of General Statutes § 53a-
54a. He claims that the trial court erred by (1) admitting
testimony under the state of mind exception to the
hearsay rule, (2) admitting testimony regarding the vic-
tim’s habit, and (3) refusing to include in the jury
instructions a unanimity charge as to whether the state
had disproven an element of the defendant’s self-
defense claim. We affirm the judgment of the trial court.
The following facts, which the jury reasonably could
have found from the evidence presented and the reason-
able inferences drawn therefrom, and procedural his-
tory are relevant on appeal. The victim, Mohammed
Kamal, operated a taxi with his business partner, Jean
Antoine. Antoine worked the day shift, generally from
6 a.m. to 6 p.m., and the victim worked the night shift,
generally from 6 p.m. to 6 a.m. The cab was registered
with Stamford Taxi (company), and the partners paid
a weekly fee totaling $475 to the company. The fee was
due on Wednesdays at noon. The victim customarily
placed his share of the fee in the glove compartment of
the vehicle during his Tuesday night shift, and Antoine
removed the money and delivered it to the company
on Wednesday mornings.
On the evening of Tuesday, August 26, 2014, the victim
left home for his shift in the taxi between 9 p.m. and
10 p.m. At approximately 12:30 a.m. on August 27, the
victim briefly returned home and told his wife that he
had forgotten to take the money for his share of the
fee that he needed to leave in the taxi; he said he also
planned to send some money to his family in Bangla-
desh. The victim’s wife observed him take money out
of an armoire, after which the victim returned to his
shift. At approximately 3 a.m., the defendant hailed the
victim’s taxi and directed the victim to drive to Doolittle
Road, in Stamford. While on Doolittle Road, the defen-
dant began to stab the victim repeatedly. At some point,
the defendant opened the glove compartment, stole the
money that the victim had set aside for the taxi fee and
for his family in Bangladesh, took the victim’s credit
card, and fled the scene toward the defendant’s
apartment.
While fleeing from the scene, the defendant called a
friend, Eugene Goldshtyen, several times and offered
Goldshtyen $100 to pick him up. Goldshtyen met the
defendant at the defendant’s apartment and asked
whether the defendant received his injuries during a
burglary. The defendant falsely replied ‘‘yeah’’ and
explained that he encountered the homeowner during
the burglary and started fighting with the homeowner,
whom he stabbed multiple times. The defendant said
that ‘‘[w]hen the homeowner ‘kept yelling’ despite the
defendant’s order to ‘shut up,’ the defendant ‘just kept
stabbing him and stabbing him.’ ’’ Not believing the
defendant’s story, Goldshtyen called the police.
Later that morning, Stamford Police located the vic-
tim’s body and the taxi at 150 Doolittle Road. The vic-
tim’s body was found on the ground, and an autopsy
revealed that the victim had been stabbed 127 times.
The taxi’s glove compartment was open and no money
was found inside. The victim’s and the defendant’s
blood was found on the rear driver’s side passenger
seat and door. The police arrested the defendant and
charged him with murder in violation of § 53a-54a. The
money, which the state claimed had been stolen, was
not recovered.
Prior to trial, the state filed a motion in limine seeking
to introduce the testimony of two witnesses: (1) testi-
mony from the victim’s wife that when the victim
returned home briefly from his shift at 12:30 a.m., she
saw him retrieve money from the armoire, and the vic-
tim then told her that ‘‘he intended to use this money
to pay his dispatch fees and to send money home to
Bangladesh’’; and (2) testimony from the victim’s taxi
partner, Antoine, that it ‘‘was [the victim’s] habit and
custom to leave his share [of the taxi fee] in the glove
compartment’’ for Antoine to give to the company the
next morning. The trial court held a hearing on the
matter and subsequently admitted the testimony of
both witnesses.
The jury returned a verdict finding the defendant
guilty of murder in violation of § 53a-54a. Thereafter,
the court imposed a total effective sentence of sixty
years of incarceration. The defendant filed an appeal
in our Supreme Court, and the appeal was transferred
to this court on September 24, 2018.
‘‘Our standard of review for evidentiary matters
allows the trial court great leeway in deciding the admis-
sibility of evidence. The trial court has wide discretion
in its rulings on evidence and its rulings will be reversed
only if the court has abused its discretion or an injustice
appears to have been done. . . . The exercise of such
discretion is not to be disturbed unless it has been
abused or the error is clear and involves a misconcep-
tion of the law.’’ (Internal quotation marks omitted.)
State v. Russo, 62 Conn. App. 129, 133, 773 A.2d 965
(2001). In reviewing for an abuse of discretion, ‘‘the
ultimate issue is whether the court could reasonably
conclude as it did.’’ DiPalma v. Wiesen, 163 Conn. 293,
299, 303 A.2d 709 (1972).
I
We first address the defendant’s claim that the trial
court erred in allowing testimony from the victim’s wife
that the victim told her, after briefly returning home
during his shift, that he was getting money to leave
inside the taxi to pay his share of the taxi fee and to
send to his family in Bangladesh after his shift. Specifi-
cally, the defendant claims that such statements (1)
were irrelevant and (2) did not satisfy the state of mind
exception to the hearsay rule because they were self-
serving and backward looking. We disagree.
The following additional facts are relevant to this
issue. At trial, the state called the victim’s wife as a
witness. She testified about statements that the victim
had made to her when he briefly returned home during
his night shift. She testified: ‘‘He took the money and
he told me that he had to take the money because the
next day, he had to make the taxi payment. The taxi
payment was done once a week. The payment for the
taxi was done once a week. And he also said to me
that he needed more money to send to Bangladesh and
the banks were closed at night, when he was on duty,
so he was taking the money at night, so that the next
day, when he got off duty, he was going to go to the
bank and send some money to Bangladesh.’’
The defendant first claims that the victim’s state-
ments to his wife ‘‘had no relevant connection to a fact
in issue.’’ According to the defendant, the only facts at
issue were whether the defendant had killed the victim
and, if he had done so, whether he acted with criminal
intent and without justification. He further asserts that
‘‘whether [the victim] had intended or planned to pay
taxi related expenses the next day was simply inappo-
site to the matters to be decided by the jury, and to
admit such evidence could only lead to confusion and
speculation.’’ We disagree.
The Connecticut Code of Evidence provides that
‘‘[a]ll relevant evidence is admissible, except as other-
wise provided by the constitution of the United States,
the constitution of the state of Connecticut, the Code,
the General Statutes or the common law.’’ Conn. Code
Evid. § 4-2. Relevant evidence is defined as ‘‘evidence
having any tendency to make the existence of any fact
that is material to the determination of the proceeding
more probable or less probable than it would be without
the evidence.’’ Conn. Code Evid. § 4-1. ‘‘The materiality
of evidence turns upon what is at issue in the case,
which generally will be determined by the pleadings
and the applicable substantive law.’’ Conn. Code Evid.
§ 4-1, commentary. ‘‘The trial court is given broad dis-
cretion in determining the relevancy of evidence and
its decision will not be disturbed absent a clear abuse
of that discretion.’’ State v. Holliman, 214 Conn. 38, 50,
570 A.2d 680 (1990).
In the state’s motion in limine, the state addressed
the relevancy of the statements and claimed that it
sought to introduce this evidence to controvert the
defendant’s claim of self-defense. The state explained:
‘‘[The defendant] claims he was fending off the aggres-
sive sexual overtures of the victim. In such case the
unexplained absence of valuables is of utmost rele-
vance. The state intends to offer the [victim’s] state-
ments concerning his intent to bring sufficient money
to satisfy his cab fees in order to show robbery as
the motive.’’ The proffered statements reasonably could
have tended to make it more likely that the defendant
had a financial motive in killing the victim and to make
it less likely that the killing was a result of self-defense.
The defendant next claims that the statements by the
victim to his wife were both backward looking and self-
serving and, therefore, did not satisfy the state of mind
hearsay exception. The Connecticut Code of Evidence
provides exceptions to the hearsay rule, among them:
‘‘A statement of the declarant’s then existing mental or
emotional condition, including a statement indicating a
present intention to do a particular act in the immediate
future, provided that the statement is a natural expres-
sion of the condition and is not a statement of memory
or belief to prove the fact remembered or believed.’’
Conn. Code Evid. § 8-3 (4). ‘‘The hearsay statements of
an unavailable declarant, made in good faith and not for
a self-serving purpose, that express his or her present
intentions to [do something] in the immediate future
are admissible and allow the trier of fact reasonably
to infer that the declarant’s expressed intention was
carried out.’’ State v. Santangelo, 205 Conn. 578, 592,
534 A.2d 1175 (1987). ‘‘[F]orward-looking statements of
intention are admitted while backward-looking state-
ments of memory or belief are excluded because the
former do not present the classic hearsay dangers of
memory and narration.’’ State v. Saucier, 283 Conn.
207, 225, 926 A.2d 633 (2007), citing 2 C. McCormick,
Evidence (6th Ed. 2006) § 276, p. 279.
In its ruling on the motion in limine, the trial court
explained that the victim’s statement was ‘‘a declaration
of an intention casting light upon the future, it is distin-
guishable from any declaration of memory pointing
backward to the past and this is not the case here.’’ We
agree. The victim’s statement to his wife indicated his
intention to take money to pay the taxi company in the
immediate future. It is true that part of the statement,
to the effect that the victim had taken the money for
that purpose, was retrospective, but his having taken
the money only provided context for the expression of
his intention. We also are unpersuaded by the defen-
dant’s claim that the victim’s statement was self-serving.
At that point, no crime had been committed nor was
one foreseeable.
The trial court did not abuse its discretion in admit-
ting the wife’s testimony as to statements made to her
by the victim pursuant to the Connecticut Code of Evi-
dence § 8-3 (4).1
II
We next address the defendant’s claim that the trial
court improperly allowed testimony from the victim’s
business partner, Antoine, pursuant to the habit excep-
tion to the hearsay rule, that the victim routinely put
his share of the taxi fees in the glove compartment of
the vehicle before Antoine’s day shift on Wednesdays.
The defendant claims that such evidence was (1) irrele-
vant and (2) insufficient to establish a ‘‘habit’’ pursuant
to the hearsay exception.
The following facts, as previously set forth, are rele-
vant to this issue. Antoine testified about his business
relationship with the victim and their arrangement for
payment of the taxi fees to the company that were due
weekly. According to Antoine, he and the victim jointly
owned and operated a cab beginning approximately a
year and a half to two years prior to the victim’s murder,
and that they paid a weekly fee to the company. He
explained that they would each contribute $237.50 for
the fees every week. Antoine further testified that the
victim would always leave his half of the fees in the
glove compartment, and when Antoine picked up the
car on Wednesday mornings, he would take the money
from the glove compartment and drop it off at the com-
pany, along with his half.
The defendant claims that Antoine’s testimony was
not relevant to any material issue; the only material
issues were whether the victim was murdered by the
defendant and, if so, whether the defendant was justi-
fied in killing the victim. The defendant contends that
Antoine’s testimony allowed the state to ‘‘confuse the
jury and inject the specter of robbery into a case where
it had charged none.’’ The state, however, asserts that
‘‘evidence that the victim’s habit was to leave money in
the taxi’s glove compartment for pick up on Wednesday
mornings, coupled with the fact that the murder took
place early Wednesday morning inside the taxi and that,
after the murder, the glove compartment was found
open without any money . . . allowed the jury to infer
that the motive for the murder was to take the victim’s
money.’’ We are persuaded by the state’s claim that
Antoine’s testimony was relevant to the issue of motive
for the defendant to kill the victim.
In State v. Williams, 90 Conn. 126, 96 A. 370 (1916),
our Supreme Court upheld a trial court’s admission of
habit evidence regarding the victim’s habit of carrying
money in his pocketbook to show the defendants’
motive for murdering the victim. Id., 130. It concluded
that, based on the habit evidence, ‘‘the jury would be
justified in presuming that [the victim] had his pocket-
book where he usually carried it, in his pocket . . .
and it was there found, and thence taken by the [defen-
dants].’’ Id. In the present case, the jury reasonably
could have inferred from Antoine’s testimony that the
victim had placed money in the glove compartment of
the taxi that was thereafter taken by the defendant.
Although robbery was not charged, financial gain could
well have been the motive for murder. Accordingly, we
conclude that the trial court properly found that such
evidence was relevant.
Next, we turn to the defendant’s claim that the state
failed to provide an adequate foundation for the admis-
sion of the habit evidence. Specifically, he claims that
the proffered evidence did not rise to the level of habit
because there was insufficient evidence as to the num-
ber of times that the victim engaged in the conduct.
According to the defendant, ‘‘[it] was not truly evidence
of the decedent’s personal habit of leaving money in
the shared glovebox, so much as it was evidence of
Antoine’s personal experience of having regularly paid
taxi related expenses on a certain day of the week.’’
The Connecticut Code of Evidence provides that
‘‘[e]vidence of the habit of a person . . . is admissible
to prove that the conduct of the person . . . on a par-
ticular occasion was in conformity with the habit
. . . .’’ Conn. Code Evid. § 4-6. ‘‘[H]abit is a person’s
regular practice of responding to a particular kind of
situation with a specific type of conduct. . . . [H]abit
. . . refer[s] to a course of conduct that is fixed, invari-
able, and unthinking, and generally pertain[s] to a very
specific set of repetitive circumstances.’’ (Citations
omitted.) Conn. Code Evid. § 4-6, commentary.
We are unpersuaded by the defendant’s contention
that there is a particular numerical threshold that must
be met in order for a person’s conduct to rise to the
level of a habit. Here, Antoine’s testimony established
that the victim’s specific conduct of leaving his portion
of the taxi fee in the glove compartment of the taxi on
Tuesday nights constituted a sufficiently regular prac-
tice. As such, we conclude that the trial court properly
admitted Antoine’s testimony regarding the victim’s
habit, pursuant to Connecticut Code of Evidence § 4-6.2
III
Finally, we address the defendant’s claim that the
trial court improperly refused to instruct the jury that
it could not reach a verdict of guilty unless it was unani-
mous as to the basis for rejecting the defendant’s self-
defense claim. He claims that the general unanimity
instruction was insufficient and that the trial court’s
charge violated his state constitutional right to be con-
victed by the unanimous verdict of the jury. We
disagree.
‘‘[I]ndividual jury instructions should not be judged
in artificial isolation . . . but must be viewed in the
context of the overall charge. . . . The pertinent 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.
. . . Thus, [t]he whole charge must be considered from
the standpoint of its effect on the [jurors] in guiding
them to the proper verdict . . . and not critically dis-
sected in a microscopic search for possible error. . . .
Accordingly, [i]n reviewing a constitutional challenge
to the trial court’s instruction, we must consider the jury
charge as a whole to determine whether it is reasonably
possible that the instruction misled the jury. . . . In
other words, we must consider whether the instructions
[in totality] are sufficiently correct in law, adapted to
the issues and ample for the guidance of the jury. . . .
A challenge to the validity of jury instructions presents
a question of law over which [we have] plenary review.’’
State v. Berrios, 187 Conn. App. 661, 705–706, 203 A.3d
571, cert. denied, 331 Conn. 917, 204 A.3d 1159 (2019).
The following additional facts are necessary for our
discussion. The defendant testified at trial and pre-
sented a claim of self-defense. The following is the
defendant’s account of the events that transpired on
the night of the murder. The victim invited him to ride
along for free while he picked up another fare. The
victim then instructed him to move into the front seat
to allow the paying fare to ride in the back. At some
point, the victim stopped the car and indicated to the
defendant that he wanted to ‘‘have some fun.’’ The vic-
tim subsequently grabbed the defendant’s genitalia, and
the defendant reacted by punching the victim in the
face. The victim then grabbed a knife and began
attacking the defendant. A struggle between them
ensued, and the victim threatened to kill the defendant.
The defendant managed to wrestle the knife away from
the victim and stabbed him repeatedly.
On May 10, 2017, the defendant’s attorney filed a
request to charge, requiring unanimity on whichever
element of self-defense the jury might find to have been
disproven.3 The trial court held a hearing on the matter
and denied the defendant’s request.4 In the course of
its instructions, the court explained in detail each of
the four elements of self-defense, pursuant to General
Statutes § 53a-19, and in accordance with the model
jury charge. See Connecticut Criminal Jury Instructions
§ 2.8-1, available at https://jud.ct.gov/JI/Criminal/Crimi-
nal.pdf (last visited November 1, 2019). The elements
were: (1) the defendant actually believed that the victim
was using or about to use physical force against him; (2)
the defendant’s belief was reasonable; (3) the defendant
actually believed that the degree of force he used was
necessary to repel the attack; and (4) the defendant’s
belief was reasonable. Subsequently, the court
explained that ‘‘the state can defeat the defense of self-
defense by disproving any one of the four elements of
self-defense beyond a reasonable doubt to your unani-
mous satisfaction.’’
The defendant relies, in part, on the holdings in
United States v. Gipson, 553 F.2d 453 (5th Cir. 1977),
and State v. Diggs, 219 Conn. 295, 592 A.2d 949 (1991),
to support his claim that a more specific unanimity
instruction was required. Where alternative ways to
commit an offense are alleged, Gipson set out a ‘‘con-
ceptual distinctiveness’’ criterion, specifying that a
charge requiring unanimity as to the specific act found
proved by the jury is required only if the alternative acts
are conceptually distinct from each other. See United
States v. Gipson, supra, 458.
Applying Gipson to this case, the defendant claims
that each ‘‘element’’ of self-defense is analogous to a
conceptually distinct basis of liability. Noting that the
unanimity challenge in Gipson was raised as to an
offense charged, as opposed to a defense, our Supreme
Court, in State v. Bailey, 209 Conn. 322, 334–35, 551
A.2d 1206 (1988), declined to require an instruction that
the jury must agree unanimously on the element it found
disproved in rejecting a claim of self-defense. Our
Supreme Court did, however, leave open the possibility
that, under certain circumstances, such an instruction
may be warranted even in the context of self-defense.
Id., 336. ‘‘Despite serious reservation about the applica-
bility of the unanimity requirement to self-defense, we
do not, at this juncture, express the opinion that a
specific unanimity charge would never be required for
claims of self-defense, for it is clear that the requirement
as refined by case law in the wake of Gipson does not
apply to the facts of the present case.’’ Id., 336.
Our Supreme Court was presented with the same
issue in State v. Diggs, supra, 219 Conn. 302, and con-
cluded: ‘‘As in Bailey, the defendant here is unable to
provide us with any authority for the proposition that
a unanimity instruction was required as to the factual
basis for the jury’s rejection of his self-defense claim,
nor have we been able to locate any. A determination
of that issue, however, is not necessary for the resolu-
tion of the instant case.’’ Our Supreme Court noted that
‘‘the encounter between the victim and the defendant
was a single incident, which was brief and took place
within a small area. . . . We do not perceive in the
record a complexity of evidence or any other factors
creating jury confusion and a consequent need for a
specific unanimity charge. . . . We are, therefore, not
persuaded that the trial court was required to deliver
such an instruction concerning the statutory exemp-
tions to the defendant’s self-defense claim.’’ (Citations
omitted.) Id., 302–303.
The defendant addresses the notion of complexity
and the policy considerations arising therefrom. First,
he suggests that the determining consideration is not
necessarily the complexity of the case or its underlying
facts, but the complexity of the instructions. He con-
tends that analyzing the four different ‘‘elements’’
involved in a self-defense claim is a complex task for
a jury to undertake. As such, the defendant claims that
the best policy is to require a specific unanimity charge
to guide the jurors and to ensure that they fully under-
stand the state’s burden, and, further, that they must
be unanimous in finding which element(s) of the
defense the state has disproven. He highlights the risk
that, absent the instruction, individual jurors may find
different elements of the defense disproven. ‘‘Simply
put, it would be intellectually dishonest, logically incon-
sistent, and factually incoherent to say that a jury was
unanimous as to the factual basis of the offense, and
the conduct committed by the defendant, if some jurors
concluded that the defendant did not actually believe
that he was under attack, while other jurors concluded
that the defendant actually believed he was under attack
but that such belief was unreasonable. Similarly, it
would be no less problematic if some jurors concluded
that the defendant reasonably believed he was under
attack but that he either did not actually believe the
degree of force he used was necessary, or that such
belief was unreasonable.’’ He notes the well established
law that only the state has a burden of persuasion
regarding a self-defense claim; it must disprove the
defense beyond a reasonable doubt. State v. Pauling,
102 Conn. App. 556, 571, 925 A.2d 1200, cert. denied,
284 Conn. 924, 933 A.2d 727 (2007). The defendant posits
a logical inconsistency in explicitly requiring unanimity
on each element of a state’s charged offense, but not
the ‘‘elements’’ of a defense that the state must disprove,
given that it has the same burden of persuasion.
Our Supreme Court held in State v. Rivera, 221 Conn.
58, 76, 602 A.2d 571 (1992), however, that ‘‘where, as
here, the trial court did not sanction a nonunanimous
verdict, a unanimity instruction on self-defense is not
required.’’ At oral argument, the defendant conceded
that the trial court did not sanction a nonunanimous
verdict. As Rivera makes clear, because the trial court
in this case did not sanction such a nonunanimous
verdict, ‘‘that ends the matter.’’ Id.
In light of Rivera, we cannot, then, hold that a specific
unanimity charge should have been given. The jury
instructions, viewed in their totality, were correct in
law and fairly presented the case to the jury. As in
Diggs, the factual scenario was not especially complex;
as in State v. Bailey, supra, 209 Conn. 336, the defen-
dant’s course of conduct did not comprise ‘‘separate
incidents.’’5 Accordingly, we conclude that the trial
court properly instructed the jury with a general una-
nimity charge and did not err in failing to grant the
defendant’s request for a specific unanimity charge as
to the claim of self-defense.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The state also claimed in its brief on appeal that any error in introducing
the evidence was harmless. In light of our conclusion that the evidence was
properly admitted, we need not discuss harmless error. See State v. Scott,
191 Conn. App. 315, 320 n.4, 214 A.3d 871, cert. denied, 333 Conn. 917, 216
A.3d 651 (2019).
2
See footnote 1 of this opinion.
3
The defendant requested the court to charge as follows: ‘‘The state has
the burden of disproving self-defenses, as I have instructed. To meet its
burden as to this disproof, the state must persuade you unanimously as to
any of the four elements on which I have instructed you. Thus, it is not
enough for some of you to find the first element disproved while others
find a different element disproved. Unless you unanimously agree that the
state has disproven the same element, the state has failed to disprove
self-defense.’’
4
The court ruled: ‘‘I am going to be delivering a general unanimity charge
instructing the jury that its verdict must be unanimous. And as in Bailey
and Diggs, the court had serious reservations about the applicability of the
unanimity requirement to self-defense.
‘‘I believe the general instruction as drafted is sufficient to ensure that a
unanimous verdict is reached. The encounter here between the defendant
and the cab driver was a single incident which took place within a small
area. While there are, obviously, some conflicts in the testimony, I don’t
believe that the issues this jury has to resolve with respect to what happened
are so complicated that jury confusion would result if I did not give a specific
unanimity charge.’’
5
Bailey may be read to suggest a reasonable distinction between the need
for a specific unanimity instruction when separate incidents are material
and the lack of need for the instruction when only one course of conduct
is considered. Id.