State v. Mitchell

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STATE OF CONNECTICUT v. YUWELL A. MITCHELL
(AC 37394)
DiPentima C. J., and Sheldon and Schaller, Js.
Argued September 8, 2016—officially released January 17, 2017

(Appeal from Superior Court, judicial district of New
Haven, geographical area number twenty-three,
O’Keefe, J.)
Alan Jay Black, for the appellant (defendant).
Lisa Herskowitz, senior assistant state’s attorney,
with whom, on the brief, were Michael Dearington,
state’s attorney, Karen A. Roberg, assistant state’s attor-
ney, and Dennis V. Mancini, former special deputy
assistant state’s attorney, for the appellee (state).
Opinion

SCHALLER, J. The defendant, Yuwell Mitchell,
appeals from the judgment of conviction, rendered fol-
lowing 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 Depart-
ment engaged Zerline Savage as a cooperating witness1
in an attempt to make a controlled purchase of narcot-
ics.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 com-
plete 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 some-
thing, and entered the convenience store. Shortly there-
after, 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 ele-
mentary 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 instruc-
tion 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 spe-
cific 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 yester-
day 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 evi-
dence 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 delib-
erations, the jury announced that it had reached a ver-
dict.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 instruc-
tion lacked cautionary language informing jurors to bal-
ance 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 modi-
fied in In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 118
(2015), ‘‘a defendant can prevail on a claim of constitu-
tional error not preserved at trial only if all of the condi-
tions 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 omit-
ted.) 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 deter-
mination 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 defen-
dant 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 follow-
ing legal principles. ‘‘It is well settled that jury instruc-
tions 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 rea-
sonably 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 (2003), although
our Supreme Court continued to uphold such instruc-
tions, it also recognized the potential for the coercion
of minority view jurors. Specifically, our Supreme Court
concluded that instructing jurors to consider the opin-
ions 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 with-
out surrendering their conscientiously held views. Id.,
73. Although reaching a unanimous verdict is an
important public policy goal; id., 74; the defendant’s
due process rights also must be protected, and the
defendant has the right to ‘‘have each and every juror
vote his or her conscience irrespective of whether such
vote results in a hung jury.’’ Id., 76.
To ensure that such a cautionary reminder be given
by our trial courts in future cases, our Supreme Court
adopted the following language as a model instruction:
‘‘The instructions that I shall give you now are only to
provide you with additional information so that you
may return to your deliberations and see whether you
can arrive at a verdict.
‘‘Along these lines, I would like to state the following
to you. The verdict to which each of you agrees must
express your own conclusion and not merely the acqui-
escence in the conclusion of your fellow jurors. Yet, in
order to bring your minds to a unanimous result, you
should consider the question you have to decide not
only carefully but also with due regard and deference
to the opinions of each other.
‘‘In conferring together, you ought to pay proper
respect to each other’s opinions and listen with an open
mind to each other’s arguments. If the much greater
number of you reach a certain conclusion, dissenting
jurors should consider whether their opinion is a rea-
sonable one when the evidence does not lend itself to
a similar result in the minds of so many of you who
are equally honest and equally intelligent, who have
heard the same evidence with an equal desire to arrive
at the truth and under the sanctions of the same oath.
‘‘But please remember this. Do not ever change your
mind just because other jurors see things differently or
to get the case over with. As I told you before, in the
end, your vote must be exactly that—your own vote.
As important as it is for you to reach a unanimous
agreement, it is just as important that you do so honestly
and in good conscience.
‘‘What I have said to you is not intended to rush you
into agreeing on a verdict. Take as much time as you
need to discuss the matter. There is no need to hurry.’’
(Emphasis omitted.) Id., 74–75.
Since O’Neil, our courts have used such cautionary
language in what has become known as a Chip Smith
charge when instructing a deadlocked jury to consider
the majority view. Such language is not required, how-
ever, when the court merely tells jurors to continue
deliberating without instructing them in a potentially
coercive manner. In the present case, the court merely
told the jurors to continue deliberating after the jury
reported that it was unable to reach a verdict.9 Because
the instruction did not include language potentially
coercing the jurors to reach a unanimous verdict, it did
not require a cautionary reminder to the jurors of their
individual duties not to agree to a verdict unless they
personally agreed to it under the court’s instructions as
applied to the evidence before them. Thus, we conclude
that the court’s instruction to continue deliberations
did not violate the defendant’s right to a fair trial.
The record shows that, when the jury was having
difficulty reaching an agreement, the court gave a brief
instruction to the jury to continue its deliberations. The
thrust of this instruction ‘‘was not to change any juror’s
attitude or approach to the deliberations.’’ State v.
Moore, 34 Conn. App. 411, 418, 641 A.2d 804 (instruction
to jurors to continue deliberations because, in judge’s
experience, it was too soon to declare deadlock was
not Chip Smith charge), cert. denied, 230 Conn. 914,
645 A.2d 1020 (1994). In fact, none of the language in
the instruction suggested that the jurors should give
deference to other jurors’ opinions and reevaluate the
evidence and conclusions based on the majority view,
as instructed in a Chip Smith charge. Rather, the instruc-
tion simply encouraged the members of the jury to
review the evidence and the positions of each juror to
ensure that their inability to reach a verdict was not
due to an oversight or misunderstanding of the evidence
and the law. Instructing the members of the jury to take
more time to deliberate to avoid a potential misunder-
standing and oversight is patently different from the
Chip Smith charge adopted in O’Neil, where minority
view jurors were instructed to reevaluate their positions
in light of those of the majority view. State v. O’Neil,
supra, 261 Conn. 75; see State v. Colon, 37 Conn App.
635, 646, 657 A.2d 247 (instructing jurors to consider
what other jurors have to say is merely informal com-
ment for jury ‘‘to relax’’ and think about what others’
opinions were), cert. denied, 234 Conn. 911, 660 A.2d
354 (1995). Because the language in the court’s instruc-
tion to the jury to continue deliberations did not include
language directing jurors to consider why majority view
jurors reached a different conclusion, the potential to
corrode the jurors’ exercise of their independent right
to vote on the basis of their own conscientiously held
views did not exist. The court, therefore, was not
required to include a cautionary reminder to the jurors
that their decisions must be their own, and not those
of majority view jurors merely to reach a unanimous
verdict.
Moreover, the court’s decision not to instruct the
jurors that they were not compelled to reach a verdict
did not effectively coerce the jurors into reaching a
unanimous verdict. Although our Supreme Court has
approved the inclusion of cautionary language related
to reaching a verdict; State v. O’Neill, 200 Conn. 268,
283–84, 511 A.2d 321 (1986); the court has never held
it to be required. Rather, the court has stated that ‘‘a
defendant is entitled only to a jury unfettered by an
order to decide and not to an instruction that a jury
may hang.’’ (Internal quotation marks omitted.) State
v. Smith, 222 Conn 1, 22, 608 A.2d 63, cert. denied, 506
U.S. 942, 113 S. Ct. 383, 121 L. Ed. 2d 293 (1992). In the
present case, the court stated at the outset that it ‘‘sim-
ply suggest that [the jury] continue [its] deliberations’’
and it told the jurors to ‘‘continue to listen to what
each other has to say.’’ The choice of language for this
instruction convinces us that the jury never was coerced
into reaching an agreement or led to believe that it was
compelled to reach a verdict. See State v. Smith, supra,
23. Further, this court has held that ‘‘[r]equiring jurors
to return to continue deliberating is not coercive in
itself . . . .’’ State v. Daley, supra, 161 Conn. App. 880.
Accordingly, we conclude that when the court gave
its instruction to continue the deliberation process, it
neither instructed the jury that the case must be
decided, nor precluded the possibility that a disagree-
ment amongst the jurors might occur.
Furthermore, we reject the defendant’s argument that
State v. Feliciano, 256 Conn. 429, 778 A.2d 812 (2001),
compels us to reach a different conclusion. In Feliciano,
the jury reported that it was unable to come to a deci-
sion. Id., 434. In response, the jury received a brief
instruction quite similar to the one at issue in the pre-
sent case.10 Id. When the jury still could not reach a
verdict, the court delivered three Chip Smith charges.
Id., 434–38. On appeal from his conviction, the defen-
dant argued that the Chip Smith charges had been
unfairly coercive. Our Supreme Court held that the trial
court properly had delivered its Chip Smith charges,
and that the charges ‘‘properly informed the jury that
each member had the individual responsibility to con-
sider the opinion of the others and to satisfy him or
herself of the correctness of his or her opinion and
not merely to acquiesce in the conclusion of others.’’
(Emphasis in original.) Id., 442.
In the present case, the defendant claims that Felici-
ano included an incomplete Chip Smith charge allegedly
cured by subsequent appropriate Chip Smith charges
that contained language to prevent jurors from being
compelled to change their opinions. The defendant’s
reliance on Feliciano, however, is misplaced. While the
defendant correctly concludes that the language of the
charge determines whether it is coercive; id., 440, 441
(‘‘[t]he language of the charge does not direct a verdict,
but encourages it’’); he appears to misunderstand our
Supreme Court’s distinction among the various charges
given in Feliciano. Our Supreme Court did not consider
the brief instruction, similar to the one at issue here,
to be an instruction requiring a cautionary reminder,
and it did not take issue with the language used in
the brief instruction. Id., 441–42. In turn, our Supreme
Court’s discussion of balancing the encouragement of
unanimity and a cautionary reminder to not surrender
one’s beliefs did not apply to the brief instruction similar
to the one at issue here.
On the basis of our review of the court’s charge,
we conclude that the court’s instruction to continue
deliberations did not include language coercing the jury
to reach a verdict, and, therefore, the court was not
required to provide a cautionary reminder to jurors of
their individual duties to give their own verdict without
surrendering their conscientiously held beliefs. Accord-
ingly, we conclude that the defendant has failed to sat-
isfy the third prong of Golding and cannot prevail on
his claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Detective Ryan McFarland of the New Haven Police Department defined
a cooperating witness as a person who enters into a formal agreement with
the New Haven Police Department to assist in the investigation of criminal
violations occurring in the city of New Haven. The cooperating witness is
paid forty dollars for every controlled purchase of narcotics completed.
2
Testimony varied on whether the defendant was the specific target from
whom Savage was to purchase narcotics on May 6, 2012. In his testimony,
Lieutenant Doug Harkins stated that Savage was not given a specific target
from whom she was to purchase narcotics. Detective McFarland and Savage,
on the other hand, both testified that the defendant was the target. Savage,
however, also testified that it was her idea, not that of the police, to target
the defendant for the controlled purchase.
3
A detective performed a test on a small portion of the substance pur-
chased by Savage, and it tested positive for crack cocaine. A forensic science
examiner with the Connecticut Department of Emergency Services and
Public Protection later confirmed the substance as crack cocaine.
4
The court received several notes from the jury. The note relevant to this
appeal was received on May 28, 2014, at approximately 10:27 a.m. and stated:
‘‘It seems that we are unable to reach an agreement.’’
5
Judge Thomas O’Keefe presided over the trial. On May 28, 2014, however,
the day of the charge in question and the jury verdict, Judge O’Keefe could
not be there, and, as a result, Judge Brian Fischer took his place.
6
Counsel for the defendant stated: ‘‘I just want to make sure that the jury
doesn’t feel that they have to reach a verdict. If that—if you understand
what I’m saying. In other words, I don’t want them being sent back in there
in a position of thinking, you know, we’re going to be here forever until we
can come to a verdict. I don’t know what language would—would have
addressed those concerns, but it would be—from my standpoint, it would
be helpful for them to understand that sometimes, notwithstanding what
the court is instructing them to do, that there is still a possibility that—
that there can be an impasse and that they are not mandated to come up
with a—a verdict.’’
7
The jury had deliberated for approximately three hours between the
afternoon of May 27, 2014, and the morning of May 28, 2014. At 10:50 a.m.,
the jury informed the court that it could not reach an agreement. Shortly
thereafter, the court gave its instruction. The court recessed for lunch from
approximately 1 p.m. to 2 p.m. At 2:31 p.m., the jury informed the court
that it had reached a verdict.
8
Our Supreme Court has held that a defendant is entitled to review under
Golding, even if he failed to specifically request it, as long as he ‘‘[raises]
that claim in his main brief, wherein he must present a record that is
[adequate] for review and affirmatively [demonstrate] that his claim is indeed
a violation of a fundamental constitutional right.’’ (Internal quotation marks
omitted.) State v. Elson, 311 Conn. 726, 755, 91 A.3d 862 (2014) (defendant’s
claim was reviewable despite defendant’s failure in main brief to identify
issues related to reviewability, to state that any extraordinary level of review
was required, to refer to Golding opinion, or to present analysis of why
claim still was reviewable because claim ‘‘otherwise was properly briefed,
identified relevant constitutional authorities, and was founded on an ade-
quate record for review’’). In the present case, although the defendant has
not specifically requested Golding review, he has provided a record adequate
for review and has demonstrated, by a discussion of relevant substantive
law and its application to the facts of this case, that his claim implicates
his right to a fair trial. In addition, the state, in its brief, explicitly states that
it does not challenge the reviewability of the defendant’s unpreserved claim.
9
According to the court, the jury’s note indicating that it could not reach
an agreement did not mean that the jury was deadlocked. We agree with
the trial court’s conclusion. The court stated: ‘‘It’s not like we are completely
at loggerheads. There’s not a chance in the world. I mean, the language that
they sent us was very—very modest, to say the least, on the question we
normally get when there seem to be some difficulty with reaching a verdict.’’
10
The court in Feliciano instructed as follows: ‘‘Okay, folks, I have your
note. It simply reads: We are unable to come to a unanimous decision on
the first count. In response to that, let me tell you that when you subtract
the read backs and time spent in court or in breaks, you have been deliberat-
ing for less than a full day. At this point I simply suggest that you continue
your deliberations. You should review the evidence and the position 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.’’ (Internal
quotation marks omitted.) State v. Feliciano, supra, 256 Conn. 434.