State v. Leach

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STATE OF CONNECTICUT v. KAREEM LEACH
(AC 37018)
Prescott, Mullins and Pellegrino, Js.
Argued January 6—officially released April 26, 2016

(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Comerford, J.)
Glenn W. Falk, assigned counsel, for the appellant
(defendant).
Laurie N. Feldman, special deputy assistant state’s
attorney, with whom, on the brief, were David I. Cohen,
state’s attorney, and James Bernardi, supervisory assis-
tant state’s attorney, for the appellee (state).
Opinion

PELLEGRINO, J. The defendant, Kareem Leach,
appeals from the judgment of conviction, rendered fol-
lowing a jury trial, of assault in the first degree in viola-
tion of General Statutes § 53a-59 (a) (5) and robbery in
the first degree in violation of General Statutes § 53a-
134 (a) (2). The defendant claims that the court’s jury
instructions were one-sided, favoring the state, and
deprived him of a fair trial. We conclude that the defen-
dant implicitly waived this unpreserved claim. Accord-
ingly, we affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. On January 13, 2013, the defendant met with his
acquaintance, Anthony Jean-Pierre, and proposed that
they rob a drug dealer. Jean-Pierre thought that another
acquaintance, Leah Socci, would be an easy target
because she was a female and unlikely to call the police.
Socci received a text message from Jean-Pierre, indicat-
ing that he was interested in purchasing an ounce of
marijuana. Jean-Pierre designated a meeting place to
complete the purchase. Socci’s friend, Julian Serrano,
agreed to obtain the marijuana and insisted on accom-
panying Socci to the meeting place. Allison Marucci,
another friend of Socci, drove Socci and Serrano to
meet Jean-Pierre, with Socci in the front passenger seat
and Serrano in the backseat. Upon arriving at the meet-
ing place, Jean-Pierre walked up to the car and joined
Serrano in the backseat. Serrano then showed Jean-
Pierre the marijuana and indicated the price. Jean-
Pierre told Serrano that his cousin was waiting in the
parking lot and would complete the purchase. Marucci
drove to the parking lot and approached the defendant.
Jean-Pierre exited the vehicle, and the defendant
entered the backseat with Serrano. As Serrano was
preparing the marijuana, the defendant pointed a gun
at him and told him to ‘‘give it up.’’ As Serrano attempted
to push the gun away, the men struggled, and the defen-
dant shot Serrano in the leg, warning him not to move
or he would shoot again. The defendant took Serrano’s
marijuana and money, exited the car, and ran out of
sight with Jean-Pierre.
Socci and Marucci identified Jean-Pierre to the police
as the man who had accompanied the defendant. Jean-
Pierre was arrested the day after the shooting, and he
identified the defendant as the gunman. At trial, Jean-
Pierre testified against the defendant with the expecta-
tion that he would receive leniency in the current case
and another case in exchange for giving truthful tes-
timony.
The defendant was convicted of robbery in the first
degree with a deadly weapon and assault in the first
degree by means of the discharge of a firearm. The
defendant was sentenced to a total effective term of
fourteen years imprisonment and six years special
parole. This appeal followed.
On appeal, the defendant claims that the court gave
imbalanced jury instructions that (1) warned against
sympathy for the defendant but not against sympathy
for the victim, (2) instructed the jury that it should not
be concerned with the punishment of the accused, but
then told the jury that the state is concerned with having
‘‘a guilty person punished,’’ (3) instructed the jury that
the state is looking for it to act firmly, fairly, and hon-
estly in upholding the law of the land by rendering a
guilty verdict, but not by rendering a not guilty verdict,
and (4) suggested that the state alone is interested in
the safety and well-being of all citizens and in the protec-
tion of life and property, and that these interest can
only be served by a guilty verdict. The defendant con-
cedes that these specific claims were not preserved.
According to the defendant, the court’s imbalanced
instructions deprived him of a fair trial. The state con-
tends that the defendant waived these claims. We agree
with the state and conclude that, pursuant to State v.
Kitchens, 299 Conn. 447, 480, 10 A.3d 942 (2011), the
defendant waived any claim regarding the court’s
jury instructions.
‘‘Connecticut courts have deemed a claim of instruc-
tional error implicitly waived when the defense failed
to take exception to, and acquiesced in, the jury instruc-
tions following one or more opportunities to review
them.’’ Id. ‘‘Whether a defendant waives the right to
challenge jury instructions is a question of law over
which we exercise plenary review. . . . Relevant to
the issue of waiver in the context of jury instruction
claims, our Supreme Court stated that when the trial
court provides counsel with a copy of the proposed
jury instructions, allows a meaningful opportunity for
their review, solicits comments from counsel regarding
changes or modifications and counsel affirmatively
accepts the instructions proposed or given, the defen-
dant may be deemed to have knowledge of any potential
flaws therein and to have waived implicitly the constitu-
tional right to challenge the instructions on direct
appeal. Such a determination by the reviewing court
must be based on a close examination of the record
and the particular facts and circumstances of each case.
. . . To determine whether . . . the defendant implic-
itly waived his claim of instructional error, we . . .
turn to a close examination of the record and the partic-
ular facts and circumstances of [the] case.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Bialowas, 160 Conn. App. 417, 426, 125 A.3d 642 (2015).
The record reveals that the court provided counsel
with a draft of the proposed jury charge on either March
20 or March 21, 2014. Before adjourning on March 25,
2014, at the end of the second day of evidence, the
trial court had a discussion with counsel regarding the
proposed jury charge. Defense counsel stated to the
court that he had looked at the proposed charge.
Two days later, after the defense rested on March
27, 2014, the court went through its proposed instruc-
tions with counsel, and defense counsel commented on
various changes, none of which involved the particular
instructions that the defendant challenges on appeal.
The court stated that it had received a marked up draft
of the proposed charge from defense counsel. The court
further stated that counsel had ‘‘been kind enough to
review the draft provided and make commentary
thereon, made whatever changes they deemed appro-
priate within the confines of the law.’’
When the court reached the portion of the charge
that the defendant now contests, the following colloquy
took place:
‘‘The Court: And then my conclusory statement has
always been the same with some minor modifications
over the years to comply with . . . the law the
Supreme Court has directed trial judges to omit or add.
And I think it’s pretty straightforward. Is there anything
else that should remain part of the record? Any addi-
tions, deletions, subject to exceptions being taken on
delivery?
‘‘Defense Counsel: No, Your Honor.’’
The following day, after closing arguments, the court
delivered the charge to the jury, after which it asked
defense counsel if he had any exceptions to the charge
and counsel took a nonspecific, general exception to
the charge.1
Although our case law does not provide an exact
definition of what constitutes a meaningful opportunity
for review under Kitchens, prior decisions of this court
have held that an opportunity to review a proposed
charge overnight amounts to an opportunity for mean-
ingful review. See, e.g., State v. Bialowas, supra, 160
Conn. App. 427–28; State v. Lee, 138 Conn. App. 420,
453–54, 52 A.3d 736 (2012); State v. Fontaine, 134 Conn.
App. 224, 231, 40 A.3d 331, cert. denied, 304 Conn. 926,
41 A.3d 1052 (2012).
Here, we are persuaded that the defense had a mean-
ingful opportunity to review the court’s proposed
charge. The court gave defense counsel a copy of the
proposed charge on or about March 21, 2014, and gave
the charge to the jury on March 28, 2014. On March 25,
2014, defense counsel indicated that he had looked at
the charge. On March 27, 2014, six days after defense
counsel initially received the proposed charge, the court
asked him whether there were ‘‘[a]ny additions, dele-
tions, subject to exceptions being taken on delivery?’’
and defense counsel responded, ‘‘[n]o.’’
‘‘The mechanism by which a right may be waived
. . . varies according to the right at stake. . . . For
certain fundamental rights, the defendant must person-
ally make an informed waiver. . . . For other rights,
however, waiver may be effected by action of counsel.
. . . This court has stated that among the rights that
may be waived by the action of counsel in a criminal
proceeding is the right of a defendant to proper jury
instructions.’’ (Citation omitted; internal quotation
marks omitted.) State v. Kitchens, supra, 299 Conn.
467. Defense counsel was given several days to review
the proposed charge and had multiple opportunities to
object. Counsel showed his familiarity with the charge,
indicated the concerns he had, and requested changes
he deemed appropriate. After a close examination of
the record, we conclude that the representations of
defense counsel, and his failure to request additional
time to examine the instructions as proposed, reflected
an acquiescence to those instructions. See State v. Bia-
lowas, supra, 160 Conn. App. 428–29. Accordingly, the
defendant implicitly waived all objections that he did
not raise, including his claim that the court delivered
one-sided jury instructions that deprived him of a fair
trial.
The defendant further argues that although he did
not preserve his claim, he is entitled to review pursuant
to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).
‘‘A constitutional claim that has been waived does not
satisfy the third prong of the Golding test because, in
such circumstances, we simply cannot conclude that
injustice [has been] done to either party . . . or that
the alleged constitutional violation . . . exists and
. . . deprived the defendant of a fair trial . . . .’’ (Inter-
nal quotation marks omitted.) State v. Kitchens, supra,
299 Conn. 467; see State v. Mungroo, 299 Conn. 667,
675, 11 A.3d 132 (2011) (‘‘the defendant has waived her
claim of instructional error and, therefore . . . it fails
under the third prong of Golding’’). Thus, the defen-
dant’s claim fails under Golding’s third prong.
The defendant also seeks review pursuant to this
court’s supervisory authority over the administration
of justice. We decline to invoke our supervisory powers
to review the defendant’s claim. ‘‘[B]ypass doctrines
permitting the review of unpreserved claims such as
[Golding] and plain error, are generally adequate to
protect the rights of the defendant and the integrity of
the judicial system . . . . [T]he supervisory authority
of this state’s appellate courts is not intended to serve
as a bypass to the bypass, permitting the review of
unpreserved claims of case specific error—constitu-
tional or not—that are not otherwise amenable to relief
under Golding or the plain error doctrine. Rather, the
integrity of the judicial system serves as a unifying
principle behind the seemingly disparate use of our
supervisory powers. . . . Thus, a defendant seeking
review of an unpreserved claim under our supervisory
authority must demonstrate that his claim is one that,
as a matter of policy, is relevant to the perceived fair-
ness of the judicial system as a whole, most typically
in that it lends itself to the adoption of a procedural rule
that will guide the lower courts in the administration of
justice in all aspects of the criminal process.’’ (Citations
omitted; footnote omitted; internal quotation marks
omitted.) State v. Elson, 311 Conn. 726, 768, 91 A.3d 862
(2014). We see no reason to exercise our supervisory
powers to review the defendant’s claim because the
trial court’s jury instructions do not create a perception
that our judicial system is unfair.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Such a general exception is not enough to disavow waiver. ‘‘[W]e unequiv-
ocally reject as legally unsupportable the assertion that counsel may
expressly disavow waiver by informing the trial court that he is unaware
of any constitutional infirmities in the jury instructions.’’ (Internal quotation
marks omitted.) State v. Kitchens, supra, 299 Conn. 488 n.25.