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State v. Tarver

Court of Appeals of Connecticut

June 21, 2016

STATE OF CONNECTICUT
v.
TYRONE TARVER

          Argued February 29, 2016

         Appeal from Superior Court, judicial district of Stamford-Norwalk, White, J.

          Glenn 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.

          OPINION

          MULLINS, J.

         The 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)[1] 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.

         The 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.

         Shortly 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.

         While 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.

         On 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.

         The 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.

         En 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.

         After a 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.

         I

         The 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.

         The 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.[2] 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.

         Trial 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.

         Then, 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 somebody.’’

         Defense 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.

         ‘‘I 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, Your Honor.’’

         Then, 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.

         The 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.’’

         L.C. 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.

         A

         We 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.’’ Id., 583.

         In this 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.

         We 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 ...


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