State v. Mitchell

170 Conn.App. 317

154 A.3d 528

STATE of Connecticut

v.Yuwell A. MITCHELL

AC 37394

Appellate Court of Connecticut.

Argued September 8, 2016

Officially released January 17, 2017

Alan Jay Black, for the appellant (defendant).

Lisa Herskowitz, Rocky Hill, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, New Haven, state's attorney, Karen A. Roberg, assistant state's attorney, and Dennis V. Mancini, former special deputy assistant state's attorney, for the appellee (state).

DiPentima C.J., and Sheldon and Schaller, Js.

SCHALLER, J.

The defendant, Yuwell Mitchell, appeals from the judgment of conviction, rendered following a jury trial, on the charges of sale of a narcotic substance in violation of General Statutes § 21a–278 (b) and sale of a narcotic substance within 1500 feet of a school in violation of General Statutes § 21a–278a (b). On appeal, the defendant claims that the trial court's jury instruction to continue deliberations after the jury reported that it was unable to reach a verdict violated his right to a fair trial by coercing the jurors to reach a unanimous verdict without providing a cautionary reminder of their duties as individual jurors not to agree to a verdict unless they personally agree to it under the court's instructions as applied to the evidence before them. We affirm the judgment of the trial court.

The jury was presented with evidence of the following facts. On May 6, 2012, the New Haven Police Department engaged Zerline Savage as a cooperating witness¹ in an attempt to make a controlled purchase of narcotics.² Officers of the New Haven Police Department and Savage met at the predetermined location of Science Park. After Savage was searched to ensure that she did not have any money or drugs on her person, the officers gave her department issued money with which to complete a controlled purchase. In addition, the officers gave her an audio-video recording device disguised as a key fob that she was to carry in her hand when she made the controlled purchase.

Savage was sent to buy narcotics. She made contact with the defendant outside of a convenience store in the area, and asked him if "he [had] anything." The defendant appeared upset to Savage, muttered something, and entered the convenience store. Shortly thereafter, the defendant exited the convenience store and walked away. At some point thereafter, Savage entered a motor vehicle in which the defendant was sitting in the driver's seat. While sitting in the motor vehicle, Savage purchased crack cocaine from the defendant.³ This exchange, which took place while the witness' hidden recording device was operating, occurred within 1500 feet of Celentano Museum Academy, a public elementary school. Following the purchase, Savage returned to the location of the officers, where she handed them the crack cocaine and the recording device. The officers again searched Savage, and then they and Savage viewed the recording together on a computer located in the officers' vehicle.

The defendant was arrested on June 30, 2012, and charged with sale of a narcotic substance in violation of § 21a–278 (b) and sale of a narcotic substance within 1500 feet of a school in violation of § 21a–278a (b). A jury trial commenced on May 22, 2014, and deliberations began on May 27, 2014. On May 28, 2014, the jury informed the court that it could not reach an agreement.⁴ In response, the court⁵ proposed an instruction that the jury continue deliberating, and review the evidence and the position of each juror to ensure that nothing had been misunderstood or overlooked. Defense counsel objected to the proposed instruction, stating that he was concerned that the jury, if so instructed, would feel compelled to reach a verdict.⁶ Defense counsel, however, did not recommend any specific language that would satisfy his concern.

The court determined that its proposed instruction would not suggest to the jury that it had to reach a verdict and that the instruction was an appropriate response to the jury's note. It therefore delivered the following instruction at approximately 11 a.m.: "I'm going to say the following to you, ladies and gentlemen, and then you will continue with your deliberations. By the court's estimation, you have been deliberating for approximately three hours. I know you started yesterday afternoon, and you came in here a little bit after 10:00 today. At this point, I simply suggest that you continue your deliberations. You should review the evidence and the positions of each juror to determine if any evidence has been overlooked or any juror's position misunderstood with respect to either the evidence or the law. Please continue to listen to what each other has to say. Thank you, ladies and gentlemen. You will continue with your deliberations."

After approximately five and one-half hours of deliberations, the jury announced that it had reached a verdict.⁷ It found the defendant guilty on both charges. He was sentenced to a total effective sentence of five years of imprisonment, execution suspended after one year, followed by three years of probation. The defendant filed this appeal.

The defendant claims that the court's jury instruction to continue deliberations violated his right to a fair trial. Specifically, he contends that the court's jury instruction lacked cautionary language informing jurors to balance their duty to listen to their fellow jurors against their duty not to surrender their own conscientiously held views of the evidence merely to reach a unanimous verdict. The defendant further contends that, by not informing the jury that it was not compelled to reach a verdict, the court effectively informed the jury that it was required to reach a verdict. The defendant claims that these instructional errors operated to coerce the jury in conducting its deliberations and in reaching a guilty verdict. We disagree.

At the outset, we must address whether the defendant failed to preserve his claim at trial. We conclude that the defendant's claim was not preserved. Accordingly, a Golding analysis is required.⁸ Under Golding , as modified in In re Yasiel R. , 317 Conn. 773, 781, 120 A.3d 1188 (2015), "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the 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 omitted.) State v. Golding , 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified in In re Yasiel R. , supra, 773. "The first two [Golding ] requirements involve a determination of whether the claim is reviewable; the second two requirements involve a determination of whether the defendant may prevail." State v. George B. , 258 Conn. 779, 784, 785 A.2d 573 (2001).

The defendant's claim is reviewable inasmuch as it satisfies the first two prongs of Golding , as the record is adequate for review of the defendant's claim, and the claim is of constitutional magnitude. See State v. Hampton , 293 Conn. 435, 450, 988 A.2d 167 (2009). We conclude, however, that the claim fails under the third prong of Golding because the alleged constitutional violation does not exist and did not deprive the defendant of a fair trial. Thus, the defendant cannot prevail.

Our resolution of the defendant's claim with regard to the third prong of Golding is pursuant to the following legal principles. "It is well settled that jury instructions are to be reviewed in their entirety.... When the challenge to a jury instruction is of constitutional magnitude, the standard of review is whether it is reasonably possible that the jury [was] misled.... In determining whether it was ... reasonably possible that the jury was misled by the trial court's instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement .... Individual instructions also are not to be judged in artificial isolation .... Instead, [t]he test to be applied ... is whether the charge ... as a whole, presents the case to the jury so that no injustice will result." (Internal quotation marks omitted.) State v. Alonzo , 131 Conn.App. 1, 4–5, 26 A.3d 109, cert. denied, 303 Conn. 912, 32 A.3d 965 (2011). "Whether a jury [was] coerced by statements of the trial judge is to be determined by an examination of the record.... The question is whether in the context and under the circumstances in which the statements were made, the jury [was], actually, or even probably, misled or coerced." (Internal quotation marks omitted.) State v. Daley , 161 Conn.App. 861, 866, 129 A.3d 190 (2015), cert. denied, 320 Conn. 919, 132 A.3d 1093 (2016).

Since 1881, our Supreme Court has approved of instructing deadlocked juries that they should continue to deliberate, with minority view jurors considering the logic of the majority view jurors as they did so. See State v. Smith , 49 Conn. 376, 386 (1881). In State v. O'Neil , 261 Conn. 49, 59, 801 A.2d 730 (2002), although our Supreme Court continued to uphold such instructions, it also recognized the potential for the coercion of minority view jurors. Specifically, our Supreme Court concluded that instructing jurors to consider the opinions of majority view jurors is an acceptable method of facilitating the deliberative process when faced with a deadlocked jury, but that the court must balance the instruction with a cautionary reminder to jurors of their obligation as individuals to give their own verdict without surrendering their conscientiously held views. Id., at 73, 801 A.2d 730. Although reaching a unanimous verdict is an important public policy goal; id., at 74, ...