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State v. Biggs

Court of Appeals of Connecticut

September 26, 2017

STATE OF CONNECTICUT
v.
FRANK EDWARD BIGGS

          Argued January 30, 2017

          David B. Bachman, assigned counsel, for the appellant (defendant).

          Rita M. Shair, senior assistant state's attorney, with whom were Brian Preleski, state's attorney, and, on the brief, David Clifton, assistant state's attorney, for the appellee (state).

          Sheldon, Prescott and Bear, Js.

         Syllabus

         Convicted, following a jury trial, of the crimes of larceny in the second degree, conspiracy to commit larceny in the second degree, larceny in the third degree as an accessory, conspiracy to commit larceny in the third degree, and engaging police in pursuit, and, following a plea of nolo contendere, of being a persistent felony offender and a persistent serious felony offender, the defendant appealed to this court. He claimed, inter alia, that the trial court violated his right to an impartial jury by failing to conduct an adequate investigation into a claim of juror misconduct that he had brought to the court's attention on the date originally scheduled for his sentencing. The claim involved an incident in which a juror made a comment to H, the defendant's friend, about the defendant's trial while the trial was ongoing, in violation of the court's order to the jurors not to discuss the case with anyone. The trial court conducted a preliminary inquiry into the claim but did not hold an evidentiary hearing, as the defendant requested, to hear testimony from the juror involved in the alleged misconduct because the court found, on the basis of H's testimony during the preliminary inquiry, that the defendant had not been prejudiced by the juror's conversation with H, in which the juror indicated that the state's case against the defendant was weak. Held:

1. The defendant could not prevail on his unpreserved claim that, pursuant to Remmer v. United States (347 U.S. 227), the trial court improperly failed to accord him a presumption that the juror's communication to H was prejudicial in determining whether the defendant met his burden of proving that he had been prejudiced by the juror's communication, there having been no constitutional violation; the defendant was not entitled to the Remmer presumption of prejudice, he having failed to prove that the court was implicated in the juror misconduct, or that there was an external interference with the jury's deliberative process via a private communication, contact or tampering with jurors that related directly to the case being tried.
2. The trial court did not abuse its discretion when it declined, after conducting its preliminary inquiry into the defendant's claim of juror misconduct, to hold a further evidentiary hearing to receive the juror's testimony because it was persuaded by the evidence from its preliminary inquiry that the defendant had not been prejudiced by the juror's misconduct; the court properly determined, on the basis of H's testimony during the preliminary inquiry, that the juror's conversation with H was largely nonsubstantive and did not involve extrinsic information that might have interfered with the jury's deliberative process or caused the juror to develop an allegiance to either party.
3. The trial court violated the defendant's right against double jeopardy by sentencing him on separate charges of conspiracy to commit larceny in the second degree and conspiracy to commit larceny in the third degree, which both stemmed from a single, unlawful agreement to steal money from the victim; accordingly, the defendant's separate sentence and conviction of conspiracy to commit larceny in the third degree could not stand and had to be vacated.

         Procedural History

         Two part substitute information charging the defendant, in the first part, with the crimes of larceny in the second degree, conspiracy to commit larceny in the second degree, larceny in the third degree, conspiracy to commit larceny in the third degree and engaging police in pursuit, and, in the second part, with being a persistent felony offender and a persistent serious felony offender, brought to the Superior Court in the judicial district of New Britain, geographical area number fifteen, where the first part of the information was tried to the jury before Alander, J.; verdict of guilty; thereafter, the defendant was presented to the court, D'Addabbo, J., on a plea of nolo contendere to the second part of the information; judgment of guilty; subsequently, the court, Alander, J., denied the defendant's motion for a hearing regarding allegations of juror misconduct and rendered judgment in accordance with the verdict and plea, from which the defendant appealed to this court. Reversed in part; judgment directed.

          OPINION

          SHELDON, J.

         The defendant, Frank Edward Biggs, appeals from the judgment of conviction rendered against him following a jury trial in the judicial district of New Britain on charges of larceny in the second degree as an accessory in violation of General Statutes §§ 53a-123 (a) (3)[1] and 53a-8 (a); conspiracy to commit larceny in the second degree in violation of General Statutes §§ 53a-48 (a) and 53a-123 (a) (3); larceny in the third degree as an accessory in violation of General Statutes §§ 53a-124 (a) (2)[2] and 53a-8 (a); conspiracy to commit larceny in the third degree in violation of General Statutes §§ 53a-48 (a) and 53a-124 (a) (2); and engaging police in pursuit in violation of General Statutes § 14-223 (b). After the jury returned its guilty verdict, the trial court found the defendant guilty on additional charges of being a persistent felony offender in violation of General Statutes (Rev. to 2011) § 53a-40 (f) and being a persistent serious felony offender in violation of General Statutes § 53a-40 (c), upon his plea of nolo contendere to those charges under a part B information. The defendant ultimately was given a separate sentence on each of the seven charges for a total effective term of nine years of incarceration followed by five years of special parole.[3]

         The defendant claims on appeal that the court (1) abused its discretion and violated his right to an impartial jury by failing to conduct an adequate investigation as to a claim of juror misconduct that he brought to its attention on the date originally scheduled for his sentencing and (2) violated his constitutional right against double jeopardy by imposing separate sentences upon him on two counts of conspiracy that were based upon a single conspiratorial agreement. The state disputes the defendant's juror misconduct claim, contending that the court adequately investigated and properly disposed of that claim. It agrees with the defendant, however, that the court violated his right against double jeopardy by imposing separate sentences upon him on two counts of conspiracy that were based upon a single conspiratorial agreement. We agree with the state, and therefore we affirm the trial court's judgment on all charges except for conspiracy to commit larceny in the third degree, and remand this case to the court with direction that the defendant's sentence and resulting conviction on that charge be vacated pursuant to State v. Polanco, 308 Conn. 242, 259-60, 61 A.3d 1084 (2013).

         On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. During the early afternoon of August 27, 2011, James Peterson, the eighty-eight year old uncle of the owner of Hooters Restaurant in Wethersfield, transported two bags of daily proceeds from Hooters to the TD Bank in Berlin to make a cash deposit in the amount of $7242. In the parking lot outside of the bank, Peterson encountered and briefly chatted with a friend, Dean Clemens. After their conversation was over, and while Clemens was returning to his truck, he saw a man in the entrance to the bank grab the deposit bags in from Peterson and run away. Peterson first screamed at the man, who ran north, around the bank, and then cut through the neighboring Dunkin' Donuts parking lot. Thereafter, while attempting to follow the man in his truck, Clemens saw the man enter the passenger side of a newer black or dark blue Cadillac in the parking lot adjacent to the Dunkin' Donuts parking lot. As soon as the man entered the Cadillac, Clemens saw it speed out of the parking lot and turn east onto Farmington Avenue. Due to traffic in the bank parking lot, Clemens was initially unable to follow the Cadillac directly. He did, however, immediately notify the local police of what he had just seen by calling 911. Clemens told the 911 operator that there had been a ‘‘bank robbery'' at the TD Bank and he was then pursuing the robbers' getaway vehicle. After accelerating to catch up to the Cadillac, he eventually was able to see its license plate number, which he relayed to the 911 operator. The license plate was registered to Whitney L. Johnson of Hamden. When Clemens was stopped behind the Cadillac at a stop light, he saw someone sit up in its backseat. He also noticed that the driver of the Cadillac was wearing a Boston Red Sox hat. After police officers joined in the pursuit of the Cadillac, Clemens returned to the bank and gave a statement to the officers from the Berlin Police Department who had responded to that location after the incident occurred.

         Kelly Waas was getting coffee at the Dunkin' Donuts next to TD Bank when the incident occurred. While seated in her car in the drive-through lane, she saw a dark Cadillac driving back and forth in the adjacent parking lot. She noticed that the driver of the Cadillac was a black man with a husky build who was wearing a red baseball cap. She then saw a young black man run past her car and get into the rear passenger seat of the Cadillac, after which the Cadillac ‘‘took off like a bullet.'' Waas also reported her observations to the Berlin police officers who had responded to the bank after the incident was reported.

         Also on the morning of the incident, patrol Officer Eric Chase of the Berlin Police Department was on duty in his marked police cruiser when his dispatcher radioed a ‘‘BOLO''[4] for a Cadillac that had reportedly been involved in a ‘‘robbery'' at TD Bank. Recalling that a Cadillac matching the dispatcher's description had just passed him as he was driving southbound on the Berlin Turnpike, Chase accelerated to overtake the Cadillac, and eventually was able to maneuver his cruiser behind it so he could see its license plate. By so doing, he was able to confirm that it was the Cadillac described in the BOLO. He then activated his lights and siren in an unsuccessful attempt to pull over the Cadillac.

         As Chase's pursuit continued, other officers were setting up emergency operations at a firehouse farther south along the Berlin Turnpike in advance of an impending hurricane. When Lieutenant James Gosselin, a member of the hurricane response team, heard the broadcast about the fleeing Cadillac, he maneuvered his vehicle across the southbound lanes of the highway in an effort to stop it. To get around the vehicle, however, the operator of the Cadillac drove over the right curb of the highway, across the grass, and around some vehicles stopped at a nearby intersection. Chase initially followed the Cadillac around the vehicle and continued to pursue it southbound on the Berlin Turnpike, reporting as he did so that there appeared to be two people in the vehicle, one in the driver's seat and the other in the front passenger's seat. He ended his pursuit, however, at the Meriden city line because by then he could no longer see the Cadillac.

         Later on the day of the incident, Hamden police officers went to the address of Johnson, the registered owner of the Cadillac, who was then the defendant's fiancée. Johnson told the police officers that the defendant had been using the Cadillac that day, and that he in fact had been using it throughout the month of August, 2011. Johnson stated that her brother had called her earlier in the day when police officers first went to her residence to inquire about the Cadillac. During that call, her brother had told her that the police were investigating a vehicle that had been involved in the commission of a crime. Johnson then called the defendant and informed him that the police were at her residence looking for the Cadillac. Sounding upset, the defendant then told Johnson that he, too, was looking for the Cadillac because it had been stolen from him earlier. The day of the incident was to have been the day of Johnson's and the defendant's wedding shower. When Johnson asked the defendant over the telephone what he was going to do about the shower, the defendant replied that he would not be coming to the shower. When Johnson later asked him about their wedding plans, moreover, he told her that the wedding would not be taking place, and, in fact, that he was unsure if or when she would ever see him again.

         A couple of days later, Chase was dispatched to Meriden to investigate an abandoned motor vehicle. Upon his arrival, Chase recognized the vehicle from its license plate as the Cadillac he had pursued on the Berlin Turnpike after hearing the report of its use in a bank robbery. He took photographs of the Cadillac, including one of its untampered-with locking mechanism to show that a key must have been used to start and stop the vehicle. The Cadillac was then towed to the Berlin Police Department, where it was searched pursuant to a warrant.

         The search of the Cadillac led to the discovery of the defendant's driver's license, along with receipts from an AutoZone store in Hamden and a Dunkin' Donuts in Wethersfield. The receipt from Dunkin' Donuts was dated about one-half hour before the start of the incident at TD Bank, and the contents of the cup found in the vehicle matched the order of coffee that was documented on the Dunkin' Donuts receipt. Police subsequently examined surveillance videos from AutoZone and Dunkin' Donuts from the morning of the incident, which showed the defendant, wearing a Boston Red Sox hat, making purchases in both establishments. The surveillance video from AutoZone also showed the blue Cadillac the defendant was reportedly driving on the day of the incident.

         Steven Kostka, a Berlin police officer assigned to the investigation, later interviewed Johnson again. In this second interview, Johnson told Kostka that the defendant had told her that the Cadillac was stolen on the night before the incident. The defendant later contacted Kostka on November 9, 2011, after Kostka had left him a message explaining that an active warrant was out for his arrest inconnection with the incident. The defendant told Kostka that he would turn himself in to the police once his finances were in order. The defendant, however, never turned himself in, and on January 17, 2012, more than two months after he called Kostka, he was arrested. Additional facts will be set forth as necessary.

         I

         INVESTIGATION OF JUROR MISCONDUCT

         The defendant's first claim on appeal is that the court abused its discretion and violated his right to an impartial jury by failing to conduct an adequate investigation of a claim of juror misconduct that he brought to the court's attention on the date originally scheduled for his sentencing. The following additional facts are necessary for our resolution of that claim.

         On October 24, 2014, when the defendant appeared in court for sentencing, defense counsel presented the court with a notarized statement from one of the defendant's friends, Darcy Hudson-Monroe, who averred that on the second day of trial, while she was waiting outside the New Britain Superior courthouse before entering for the morning session, she ‘‘ran into'' and had a brief conversation with a one of her former coworkers, A.S., [5]who was then serving on the defendant's jury. The affidavit stated that after Hudson-Monroe and A.S. greeted one another and asked each other what they were doing at the courthouse, Hudson-Monroe told A.S. that she was there ‘‘waiting for my friend [the defendant because] he is on trial today.'' A.S. reportedly responded to that statement by saying that he was there serving as a juror in that case. Hudson-Monroe then asked A.S. how the case was going. He responded that ‘‘ ‘[t]hey have no real hard evidence against him.' '' Hudson-Monroe ended their conversation by remarking, ‘‘ ‘that's good so you should not be doing jury duty for any length of time.' '' They then said goodbye to one another and went separately into the courthouse.

         After reviewing the affidavit, the court stated that it was required by law to make a preliminary inquiry into the defendant's claim of juror misconduct. Defense counsel informed the court that, in anticipation of such an inquiry, he had told Hudson-Monroe that she might have to testify about her statement. By the time the court was ready to hear from her, however, Hudson-Monroe had left the courthouse.

         Later that day, with Hudson-Monroe still absent from the courthouse, the court determined that if her affidavit was true, then A.S. had engaged in misconduct by speaking with her about the case because he had been instructed on several occasions not to discuss the case with anyone. Even so, the court noted that A.S.'s reported statement that ‘‘ ‘[t]hey have no real hard evidence against him' '' was essentially accurate because by that point in the trial, only circumstantial evidence had been presented.

         The court then stated that the law governing claims of juror misconduct was set forth in State v. Bozelko, 119 Conn.App. 483, 494, 987 A.2d 1102, cert. denied, 295 Conn. 916, 990 A.2d 867 (2010), cert. denied, U.S.___, 134 S.Ct. 1314, 188 L.Ed.2d 331 (2014), which held that when the court itself is not responsible for alleged juror misconduct, the defendant bears the burden of proving that actual prejudice resulted from such misconduct. It thus asked defense counsel to specify what prejudice had resulted from the misconduct he had reported. Although counsel initially responded that he could not identify any such prejudice, he suggested that he might be able to establish prejudice through Hudson-Monroe's live testimony. At the same time, however, defense counsel conceded that he had no evidence of juror misconduct or resulting prejudice to the defendant's right to a fair trial other than that described in Hudson-Monroe's affidavit.

         Although the court noted that it could not presume that there was further evidence of prejudice, it gave the defendant several days to bring Hudson-Monroe before the court to testify. When defense counsel asked if the court also planned to call the offending juror, A.S., into court to testify, the court stated that it had no such plan at that time because it first needed to hear from Hudson-Monroe to determine if her statement was credible, and then, if her statement was found to be credible, it would determine, in light of her testimony, whether there was any need for the juror's testimony as well.

         On October 29, 2014, Hudson-Monroe returned to court to testify about the substance of her statement. In her testimony on direct examination, the following exchange occurred between her and defense counsel:

‘‘Q. All right, Ms. [Hudson-Monroe], do you know [the defendant]?
‘‘A. Yes, I do. . . .
‘‘Q. And prior to this trial, did you know [the defendant]?
‘‘A. Yes.
‘‘Q. And how is it you know [the defendant]?
‘‘A. [The defendant] and I used to date about twenty years ago.
‘‘Q. And have you kept in touch with him on and off since then?
‘‘A. Somewhat.
‘‘Q. Can you tell me a little about yourself? Are you employed?
‘‘A. I'm retired.
‘‘Q. Okay. And what are you retired from?
‘‘A. Corrections.
‘‘Q. Corrections with what ...

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