State v. Fuller

178 Conn.App. 575

177 A.3d 578

STATE of Connecticut

v.Tyriece S. FULLER

AC 38166

Appellate Court of Connecticut.

Argued September 22, 2017

Officially released December 12, 2017

Lisa J. Steele, assigned counsel, for the appellant (defendant).

Melissa L. Streeto, senior assistant state's attorney, with whom, on the brief, were John Smriga, state's attorney, C. Robert Satti, senior assistant state's attorney, and Ann Lawlor, senior assistant state's attorney, for the appellee (state).

Sheldon, Prescott and Pellegrino, Js.

PELLEGRINO, J.

The defendant, Tyriece S. Fuller, appeals from the judgment of conviction rendered after a jury trial, of conspiracy to steal a firearm in violation of General Statutes §§ 53a–48 and 53a–212 ; conspiracy to commit larceny in the fourth degree in violation of General Statutes §§ 53a–48 and 53a–125 ; illegal manufacture, distribution, sale, prescription or administration of narcotics by a person who is not drug-dependent in violation of General Statutes §§ 53a–8 and 21a–278 (b) ; illegal manufacture, distribution, sale, prescription or administration of narcotics by a person who is not drug-dependent within 1500 feet of a public elementary school in violation of General Statutes §§ 21a–278 (b) and 21a–278a (b) ; and conspiracy to commit the illegal manufacture, distribution, sale, prescription or administration of narcotics by a person who is not drug-dependent in violation of General Statutes §§ 53a–48, 21a–277 (a), 21a–278 (b) and 21a–279 (a).¹

The defendant claims on appeal that the trial court, in denying his requests to personally possess a copy of the discovery items disclosed by the state pursuant to Practice Book §§ 40–10² and 40–13A :³ (1) violated his federal and state constitutional rights to counsel,⁴ a fair trial and due process; (2) abused its discretion; and (3) committed structural error. For the reasons set forth herein, we affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant's claims. The defendant was arrested following an extensive investigation by the Statewide Urban Violence Cooperative Crime Control Task Force (task force), which targeted the sale of illegal firearms and narcotics in the city of Bridgeport in 2012. The defendant was implicated in the investigation after he was involved in the sale of stolen guns and oxycodone pills to confidential informants in two separate controlled purchases in June and July, 2012. On May 22, 2013, the state filed an information charging the defendant with multiple offenses. Attorney Frederic Ury was appointed as the defendant's counsel on June 24, 2013, and represented the defendant throughout the majority of his pretrial proceedings. On February 19, 2014, Ury moved to withdraw his appearance, citing a breakdown in the attorney-client relationship. On February 26, 2014, the court granted Ury's motion to withdraw. On March 3, 2014, Attorney Miles Gerety filed an appearance on behalf of the defendant. A six-day jury trial commenced on July 15, 2014. Several members of the task force, and an alleged coconspirator, Serafettin Senel, testified. The defendant did not testify. On July 23, 2014, the defendant was found guilty on the counts tried to the jury and the count tried to the court.

On August 28, 2014, the defendant filed a handwritten motion to dismiss Gerety as his counsel. In his motion, the defendant alleged that Gerety assaulted him, coerced him into not presenting evidence or testifying at trial, and conspired with various other individuals to convict him.⁵ On October 17, 2014, the court granted Gerety's oral motion to withdraw. On October 21, 2014, Attorney Donald Cretella filed an appearance to represent the defendant with respect to sentencing. On January 26, 2015, the court sentenced the defendant to a total effective sentence of eight years of incarceration, followed by five years of special parole. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant's first claim on appeal is that the trial court violated his federal and state constitutional rights in denying his requests to personally possess a copy of the discovery items disclosed by the state pursuant to Practice Book § 40–10. The defendant contends that § 40–10"creates a presumption" that he is not permitted to possess a copy of the state's disclosure in violation of his constitutional rights. The defendant asserts that his claim was adequately preserved by his attorneys' three "motions to provide redacted reports to [him], which were denied by the trial court ...." Alternatively, the defendant seeks review pursuant to State v. Golding , 213 Conn. 233, 567 A.2d 823 (1989), as modified by In re Yasiel R. , 317 Conn. 773, 781, 120 A.3d 1188 (2015). The state argues that the defendant is not entitled to review of this claim because it is unpreserved and not constitutional in nature. We conclude that the defendant's claim was not properly preserved for our review.

The following additional facts are necessary for our resolution of this claim. On July 10, 2013, Ury orally sought permission from the court to provide the defendant with a redacted copy of a police report. The court, Devlin, J. , denied the motion. On May 28, 2014, Gerety asked for the court's permission to provide the defendant with a redacted copy of the state's disclosure. The court, Blawie, J. , deferred ruling on the motion until counsel had an opportunity to meet off the record to try and resolve the disclosure issue. On June 4, 2014, Gerety filed a motion for disclosure and production requesting that the state permit defense counsel to provide a copy of the state's disclosure to the defendant pursuant to Practice Book § 40–10. On June 5, 2014, after conducting a hearing to determine "whether or not the defendant should be entitled to have his own copies of the state's disclosure materials," Judge Blawie denied the defendant's motion.

The record indicates that the defendant, through counsel, never framed his requests as a constitutional issue.⁶ None of the requests contained any assertion that the defendant's constitutional rights to due process or the effective assistance of counsel entitled him to personally possess discovery documents. Therefore, appellate review of his unpreserved claim is subject to State v. Golding , supra, 213 Conn. at 239–40, 567 A.2d 823. "Under this standard, [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 ... 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." (Emphasis in original; internal quotation marks omitted.) State v. Biggs , 176 Conn. App. 687, 705–706, 171 A.3d 457 (2017).

We conclude that this claim is not "of constitutional magnitude alleging the violation of a fundamental right ...." State v. Golding , supra, 213 Conn. at 239, 567 A.2d 823. A criminal defendant has no general constitutional right to discovery. See Weatherford v. Bursey , 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977). This court has previously held that a criminal defendant's procedural right to the disclosure of discovery pursuant to Practice Book § 40–13"does not give rise in and of itself to a constitutional right." State v. Sewell , 95 Conn. App. 815, 822, 898 A.2d 828, cert. denied, 280 Conn. 904, 907 A.2d 94 (2006) ; see also State v. Coriano , 12 Conn. App. 196, 200, 530 A.2d 197, cert. denied, 205 Conn. 810, 532 A.2d 77 (1987) ("The right under the rules of practice to statements of witnesses ... is not a right of constitutional magnitude."). Accordingly, this argument fails under the second prong of Golding . We therefore decline to review the merits of the defendant's constitutional claims.

II

The defendant's second claim on appeal is that the trial court abused its discretion in denying his requests to personally possess a copy of the discovery items disclosed by the state pursuant to Practice Book § 40–10. We disagree.

The following additional facts are necessary for our resolution of this claim. In denying Ury's oral motion to give the defendant a redacted copy of the police report, Judge Devlin stated, "in other cases where I've authorized police reports to go into the correctional center, what they're really used for is to find out who the informants are, who the witnesses are, and sometimes those people are given a hard time. So, I don't permit that. [Ury] will go over the report with you, so you're fully informed about what the accusations are against you, what the police evidence is against you, but I'm not going to permit the actual physical copy of the report into the jail. I just don't do that because we have had bad situations come out of that."

This issue was readdressed during a June 5, 2014 hearing on the defendant's motion for disclosure and production. Gerety stated to the court that the motion was "driven by the defendant." Gerety also acknowledged that the decision to permit the defendant to possess discovery under Practice Book § 40–10 was "largely [in] the court's discretion." Gerety represented to the court that he had visited the defendant in prison on "numerous occasions."⁷ During these visits, the defendant had the opportunity to read most of the disclosure but claimed that he had not finished reading it. Gerety also brought his laptop and reviewed a series of police videos with the defendant. Gerety stated that they "spent hours going over line by line ... writing down the words that were said." The state objected to the defendant's motion, citing its interest in preventing...