February 29, 2016
from Superior Court, judicial district of Stamford-Norwalk,
W. Falk, assigned counsel, for the appellant (defendant).
Kathryn W. Bare, assistant state’s attorney, with whom,
on the brief, were David I. Cohen, former state’s
attorney, and Joseph Valdes, senior assistant state’s
attorney, for the appellee (state).
Keller, Mullins and Pellegrino, Js.
defendant, Tyrone Tarver, appeals from the judgment of
conviction, rendered after a jury trial, of felony murder in
violation of General Statutes § 53a-54c, robbery in the
first degree in violation of General Statutes § 53a-134
(a) (2), and conspiracy to commit robbery in the third degree
in violation of General Statutes §§ 53a-48 and
53a-136 (a). On appeal, the defendant raises two separate
claims. First, he claims that ‘‘the unauthorized
ex parte excusal of a juror by an unidentified person without
notice and a hearing violated [General Statutes] §
54-82h (c) and various state and federal
constitutional rights, including the right to be present
during jury selection to ensure an impartial jury of
one’s peers, and the right to a public
trial.’’ (Footnote added.) In his second claim,
he alleges that ‘‘the trial court abused its
discretion in refusing to rule on the motion in limine and in
denying a mistrial after [a] witness testified, just as
defense counsel had anticipated, that the defendant went to
jail for robbery.’’ We disagree with both claims,
and, accordingly, affirm the judgment of the trial court.
jury reasonably could have found the following facts. In late
October, 2009, the defendant asked the victim, Denny
Alcantara, to give him some marijuana without payment up
front. The victim refused the defendant’s request. As a
result of the victim refusing his request for marijuana on
credit, the defendant told his friend Shari Johnson that he
planned to set up a marijuana transaction with the victim so
that he could rob the victim.
thereafter, the defendant set in motion his plan to rob the
victim. Specifically, on November 4, 2009, the defendant
arranged for the victim to meet him and two of his friends,
Darryl Bonds and Joshua McNeil, at 62 Stillwater Avenue in
Stamford, the home of Anthony Lacrete. The victim arrived at
the designated location, retrieved six bags of marijuana that
he had stored at Lacrete’s apartment, and waited for
the defendant on the front porch. Meanwhile, Ivania Collazo,
Bonds’ cousin, gave the defendant, Bonds, and McNeil a
ride to a parking lot on Stillwater Avenue.
the victim waited on the porch for the defendant, Richard
Patterson, a mutual acquaintance of the defendant and the
victim, walked by. Patterson stopped and spoke briefly with
the victim. After they conversed, Patterson continued walking
down the block, and he encountered the defendant and his
friends. Patterson told them that the victim was awaiting
them. Patterson then telephoned the victim to tell him that
the defendant was on his way to meet him.
arriving at the meeting point, the defendant and at least one
of his friends took from the victim the marijuana, some cash,
his cell phone, and the leather jacket and gold chain he was
wearing. In the process, the victim was shot twice in the
abdomen. The victim died shortly thereafter. Cell phone call
details and cell tower location data placed the defendant at
the scene during the foregoing events.
defendant, Bonds, and McNeil returned to Collazo’s car,
which she drove away from the area. In the car, as they
discussed the events that had just unfolded, Bonds said that
the victim had marijuana and a cell phone, and the defendant
said that the victim had a black leather jacket, a gold
chain, and some money. The defendant was wearing the
victim’s leather jacket. At a nearby store, McNeil left
the car and Elvis Battista, Collazo’s brother, got in.
The defendant told Battista that he had robbed the victim,
specifying that he had taken the leather jacket, the gold
chain, the marijuana, and some cash.
route to Collazo’s apartment in Bridgeport, Bonds
received a call on the victim’s cell phone, which he
answered before throwing the phone outof the window. The
defendant and Bonds spent the night at Collazo’s
apartment, smoking the victim’s marijuana.
trial, on January 18, 2013, the jury returned a verdict of
guilty on all of the charges. Thereafter, the court sentenced
the defendant to a total effective term of fifty years
imprisonment and ten years special parole. This appeal
followed. Additional facts will be provided as necessary.
defendant claims that ‘‘the unauthorized ex parte
excusal of a juror by an unidentified person without notice
and a hearing violated . . . § 54-82h (c) and various
state and federal constitutional rights, including the right
to be present during jury selection to ensure an impartial
jury of one’s peers, and the right to a public
trial.’’ Specifically, he contends that a
‘‘reversal [of his conviction] is required since
an unidentified person, not the court, excused the juror, and
the court did not make a reliable, independent determination
that the juror could not perform her duty, as required by
statute; the defendant was deprived of his right to be
present, his right to individual voir dire, his right to be
heard by himself and by counsel, his right to due process of
law, and his right to a public trial; and the harm from the
statutory and constitutional violations must be
presumed.’’ We disagree.
following procedural history pertains to this claim. Jury
selection in the defendant’s trial occurred over five
days between November 28, 2012, and December 11, 2012. The
parties selected a total of twelve regular and four alternate
jurors. In the course of selecting jurors, on December 4,
2012, venireperson E.A. was selected as the seventh regular
juror, and venireperson L.C. was selected as the twelfth
regular juror. By the conclusion of jury selection, the
defendant had not exhausted all of his allotted peremptory
challenges: he had exercised thirteen of his allotment of
sixteen peremptory challenges and had three remaining.
was set to begin on the morning of January 7, 2013, at
approximately 10 a.m. As of 10:41 a.m. on that date, however,
three regular jurors, including L.C., and one alternate juror
had not yet reported to the courthouse. The court noted, in
addition, that L.C. had reported previously that he knew
someone in the case. The court stated that it therefore was
going to bring him in for voir dire when he arrived. The
court then asked the clerk to telephone the missing jurors.
at approximately 11:29 a.m., the court stated:
‘‘The clerk has informed me that [E.A.] was
released downstairs in the jury assembly room. She claimed
that she has the flu and could not remain. And she is not in
the building. I don’t know who told her she could
leave. Nobody informed the court. So, the parties
didn’t get a chance to voir dire her. . . . [E.A.] was
released, and [L.C.] is the one who claims he knows
counsel immediately stated: ‘‘Your honor . . .
I’m requesting that the court have the clerk call
[E.A.] back. We went through careful voir dire of [E.A.]. . .
. She indicated that she was fully aware of this process
[and] wanted to serve. She’s an African-American lady
and, while my client, under the guise of a jury of his peers,
that doesn’t mean people that are African-American like
he is or his same age, but I think the panel benefits from a
cross [section] of people. [E.A.] was an African-American
lady, sixty-five years old, and seemed to be very well open
to serving. And typically, as in the case of State
v. Apodaca [303 Conn. 378, 33 A.3d 224 (2012)]
. . . if a jury member has an issue, it was incumbent upon us
to bring that person into the courtroom, as I’m sure
Your Honor probably adopts that theory, voir dire the person
. . . and make a determination.
don’t know who in the building just let this person go.
It doesn’t sound like it’s above board. And, just
to make sure we’re beyond reproach and nothing is
questionable, I think the court-I’m asking the court to
have the clerk call that person back so we can at least have
that person brought into the courtroom. Because as we stand
here, no one, not even Your Honor, knows who let her go and
why . . . . There was some representation that she might have
had a cold. That’s all we have so far. So, now we have
a panel member that’s just let go, and we ask that she
be brought back.’’ Following defense
counsel’s argument, the court asked the prosecutor if
he had anything to say, and he responded: ‘‘No,
the court brought in L.C. for voir dire, and, following
questioning, the prosecutor indicated that he would like the
juror released from duty, while defense counsel stated that
he would like the juror to remain seated. The court
ultimately determined that L.C. should be released, and that
it would pick an alternate juror to replace him.
court then took up the matter of E.A., stating the following:
‘‘And let me just deal with the issue of [E.A.]
while we’re at it. Again, I didn’t give
permission for that juror to be released. I’m not sure
who did give permission. I take it, it was our jury clerk,
and I’m told that the juror represented that she had
the flu and was unable to serve. And I’m not going to
delay the trial. We have jurors waiting. We have witnesses.
We’re ready to proceed. So, we’re going to use
the statutory procedure for choosing two of the alternates
who will be seated as regular jurors. I’m going to give
them my preliminary instructions, and we’re going to
proceed with the trial.’’
was brought back into the courtroom and released from
service. Two alternate jurors were then chosen by the clerk
by lot to be sworn in as regular members of the jury. The
court asked defense counsel if he had anything else, to which
he responded: ‘‘Nothing, nothing.’’
The court then swore in the jury panel, after which trial
commenced at approximately 11:45 a.m.
first address the defendant’s argument that the court
violated § 54-82h (c). ‘‘Our standard of
review for a trial court’s decision to excuse a juror
is well established. Section 54-82h (c) permits trial courts
to excuse a juror [i]f, at any time, any juror shall, for any
reason, become unable to further perform [his or her] duty .
. . . The power to excuse a juror under this section is
expressly premised on a finding of cause. . . . Whether in
the circumstances just cause exists to excuse a juror is a
matter within the discretion of the . . . court. . . .
State v. Apodaca, [supra, 303
Conn. 386]; see also State v. Cubano, 203
Conn. 81, 88–89, 523 A.2d 495 (1987) ([t]he trial court
is vested with wide discretion in determining the competency
of jurors to serve, and that judgment will not be disturbed
absent a showing of an abuse of discretion).’’
(Internal quotation marks omitted.) State v.
Gonzalez, 315 Conn. 564, 576, 109 A.3d 453, cert.
denied, U.S., 136 S.Ct. 84, 193 L.Ed.2d 73 (2015).
‘‘We have recognized that unavailability due to
illness may constitute cause to excuse a juror.’’
case, the defendant’s appeal suffers from a
misapprehension of the procedural history that must be
remedied before we properly can address his claims. That
misapprehension centers on precisely when E.A. was excused
from her jury service for purposes of § 54-82h (c). The
defendant argues that E.A. was improperly excused from her
jury service when the
‘‘unauthorized’’ person permitted her
to leave the courthouse. In light of the record, it is our
view that, for purposes of § 54-82h (c), E.A. was not
excused from her jury service at that point, but rather she
was excused from jury service after the court heard from
counsel and decided to replace her with an alternate.
acknowledge that it was not the trial judge who initially
permitted E.A. to leave the courthouse. It was, however, the
trial judge who ultimately made the decision to excuse her
from her jury service. Indeed, after learning from the jury
clerk that E.A. had been told she could leave the court, the
trial judge sought input from the parties regarding how it
should proceed. The defendant argued for the court to bring
E.A. back. The court certainly could have opted to do so.
Given her reported illness and the time that already ...