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State v. Carrasquillo

Court of Appeals of Connecticut

August 6, 2019

STATE OF CONNECTICUT
v.
ANGEL CARRASQUILLO

          Argued March 5, 2019

         Procedural History

         Substitute information charging the defendant with two counts each of the crimes of murder and criminal possession of a firearm, and with the crime of conspiracy to commit murder, brought to the Superior Court in the judicial district of Hartford and tried to the jury before Bentivegna, J.; verdict of guilty of two counts of murder and one count of criminal possession of a firearm; thereafter, the court denied the defendant's motion for a mistrial and rendered judgment in accordance with the verdict, from which the defendant appealed. Affirmed.

          Jennifer Bourn, supervisory assistant public defender, for the appellant (defendant).

          Bruce R. Lockwood, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Robin D. Krawczyk and Donna Mam-brino, senior assistant state's attorneys, for the appellee (state).

          Keller, Elgo and Bishop, Js.

          OPINION

          KELLER, J.

         The defendant, Angel Carrasquillo, appeals from the judgment of conviction, rendered following a jury trial, of two counts of murder as an accessory in violation of General Statutes §§ 53a-8 and 53a-54a, and one count of criminal possession of a firearm in violation of General Statutes § 53a-217.[1] The defendant claims that the trial court (1) deprived him of his right to due process and his right to a jury trial by coercing the jury to reach a verdict, (2) improperly denied his motion for a mistrial and his request for a postverdict inquiry into jury coercion, and (3) deprived him of his right to due process by failing to provide the jury with additional guidance with respect to the principle of accessorial liability. We affirm the judgment of the trial court.

         On the basis of the evidence presented at trial, the jury reasonably could have found that prior to and during the events underlying this appeal, the defendant, Luis Quintero, and Josue Burgos were members of a street gang that was involved in the sale of illegal drugs. On October 13, 2009, the defendant, Quintero, and Burgos discovered that Luis Rodriguez, who was not a gang member, was selling illegal drugs at a home on Wethersfield Avenue in Hartford. Rodriguez engaged in this activity despite the fact that one or more gang members had warned him not to sell drugs in this area, as the gang considered it to be part of its territory.

         The defendant, Quintero, and Burgos confronted Rodriguez at the home on Wethersfield Avenue. Leida Franqui, who was not a gang member, was with Rodriguez. The defendant wanted a .25 caliber handgun that he knew was in Rodriguez' possession. He physically struck Rodriguez, rendering him unconscious. He took possession of Rodriguez' cell phone and handgun. The defendant was driven to and from the scene by his girlfriend, Nicole Rodrick. After Rodriguez regained consciousness, he called his cell phone and asked the defendant to return it to him. The defendant agreed to meet with Rodriguez to return his cell phone but not his handgun.

         In the early morning hours of October 14, 2009, Rodrick drove the defendant, Quintero, and Burgos, all of whom were armed, to Benton Street in Hartford to meet with Rodriguez and Franqui, both of whom were unarmed. At or about 2 a.m., as the group of five was walking in the vicinity of the intersection of Franklin Avenue and Whitmore Street in Hartford, an argument ensued. The defendant, Quintero, and Burgos shot Rodriguez and, soon thereafter, Franqui. By the time that police arrived on the scene, Rodrick had driven the defendant and his accomplices away from the scene of the shooting, and Rodriguez and Franqui had died as a result of multiple gunshot wounds, including gunshot wounds to the head. Medical examiners subsequently recovered nine millimeter and .22 caliber bullet fragments from the victims' bodies.

         Rodrick drove the defendant to her East Hartford residence. There, the defendant, who was still in possession of Rodriguez' handgun, accidentally discharged the handgun and thereby caused an injury to his left leg. Rodrick tended to his injury, which was not significant. Later that morning, the defendant went to the residence of a fellow gang member, Rosemary Pinto. There, he asked a fellow gang member, Juan Gonzalez, to hold the gun for him, and he commented that he ‘‘killed them mothafuckers.''

         The defendant subsequently made additional incriminating statements concerning the shooting. On multiple occasions, a police detective, Luis Poma, questioned the defendant about the events at issue. On October 15, 2009, the defendant denied that he was involved in the shooting and stated that he had an alibi. On October 23, 2009, the defendant admitted that he had taken Rodriguez' gun and cell phone, and then stated that Burgos was the shooter. On June 22, 2010, the defendant asked Poma whether three guns had been used in the shooting, thereby referring to information about the shooting that was not made public. Then, the defendant stated to Poma that he was at the scene of the shooting, but that Quintero and Burgos had shot the victims. The defendant admitted that he took Rodriguez' handgun, accidentally shot himself in the leg, and gave the handgun to Gonzalez to dispose of it. On February 7, 2013, the defendant contradicted his earlier statement that he was present at the scene of the shooting, and that Quintero and Burgos were the shooters. He admitted, however, that he had taken Rodriguez' gun and cell phone, had accidentally shot himself with the gun, and later had given the gun to Gonzalez.

         In 2011, the defendant was incarcerated in connection with an unrelated incident. He admitted to a fellow gang member and inmate, Luis Rojas, that the events surrounding the shooting of Rodriguez and Franqui did not go as he had planned. He admitted to Rojas that he had shot Rodriguez because it appeared to him that Rodriguez was reaching for a gun, and that he had shot Franqui because she witnessed him shoot Rodriguez. With respect to his shooting of Franqui, the defendant explained to Rojas that ‘‘it was part of the game . . . . She had to go because she seen it.'' Additional facts will be set forth as necessary.

         I

         First, the defendant claims that the court deprived him of his right to due process and his right to a jury trial by coercing the jury to reach a verdict. We disagree.

         The following additional facts are relevant to this claim. After jury selection was completed, [2] the jury heard evidence over the course of seven days. The presentation of evidence began on October 26, 2015, and concluded on November 4, 2015. Following closing arguments and the jury charge, the jury began its deliberations on November 5, 2015, and the deliberations took place over the course of six days. The jury announced its verdict on November 13, 2015. Using written notes, the jury or members of the jury communicated with the court on many occasions during the jury deliberations. On November 5, 2015, the first day of the jury's deliberations, the jury requested additional copies of the court's written instructions and asked for clarification with regard to the court's instructions. In another note, the jury also asked to see an exhibit that was marked for identification purposes only or, in the alternative, to rehear certain testimony. On November 6, 2015, the second day of the jury's deliberations, the jury asked to rehear the testimony of three witnesses. The court responded to these requests.

         On November 10, 2015, the fourth day of the jury's deliberations, the jury asked the court for clarification with respect to the court's instructions and to rehear certain testimony. The court responded to these requests. At 4:13 p.m., the jury sent the court two notes. In the first note, the jury asked whether it could begin its deliberations at 10:45 a.m. on November 12, 2015, to accommodate a personal commitment made by a juror to speak at a high school. The second note stated: ‘‘The jury, while willing to deliberate, is getting very heated, and would do well with a short stop for today. We are willing to continue deliberating but at this time it is not beneficial.'' The court responded to these requests by adjourning for the day and permitting the jury to resume its deliberations at 10:45 a.m. on November 12, 2015.[3]

         On November 12, 2015, the fifth day of the jury's deliberations, the jury sent the court three notes. In the first note, the jury asked the court to rehear certain testimony. The court complied with the request. In the second note, the jury asked for further guidance with respect to accessorial liability and ‘‘the separate theories of liability.'' The court responded to the jury's inquiry by noting that it already had provided the jury with an instruction concerning accessorial liability, but invited the jury to make additional inquiries as necessary. The third note was from a juror, M.P.[4] During jury selection, the court had informed M.P. that it expected the trial to be completed by November 13, 2015. At that time, M.P. stated that he would not be available to serve as a juror after November 10, 2015. The court responded that there was a ‘‘very strong likelihood'' that the trial would be completed by November 10, 2015, and M.P. was selected as a juror. In the note that M.P. sent to the court on November 12, 2015, however, M.P. stated that he would be available to participate in the trial on November 13, 2015. Before the court excused the jury for the day, it explained to the jury that Attorney J. Patten Brown III, who had represented the defendant during the trial until this point in time, would not be present in court on November 13, 2015, but that Brown's associate, Attorney Alex Glomb, would be present.[5]

         On November 13, 2015, the sixth and final day of the jury's deliberations, the court received five notes from the jury. The court received the first three notes at 10:57 a.m. In the first note, the jury stated: ‘‘We are at a place where we are not able to come to a unanimous decision. We have on one count but are not able to on [counts] 1-4. We would [like] guidance.'' In the second note, juror D.N. indicated that because of a medical emergency involving a close relative, he would be unable to continue to serve on the jury after November 13, 2015.[6] In the third note, juror J.D. stated in relevant part: ‘‘I am unable to be at court for jury deliberations on Monday, [November 16, 2015] due to prior engagement in NC. I can return for Tuesday, [November 17, 2015] for deliberations if necessary. If this is not possible, I would ask to be excused from the jury. Thank you.''

         Upon receipt of these notes, the court, in the absence of the jury, conferred with counsel. The court made a general observation that, if the jury's deliberations were to go beyond November 13, 2015, there would be an issue concerning juror availability. Then, in response to the jury's note concerning its inability to reach a verdict, it proposed delivering the standard Chip Smith[7]instruction to the jury, providing the jury with copies of the instruction, and asking the jury to continue its deliberations. The court provided counsel with a copy of the instruction. The court also stated that it would ‘‘indicate to the jurors who have conflicts after today that we'll take that up later in the day.'' The court asked counsel if there was any objection to proceeding in this manner, and both the prosecutor and defense counsel replied that there was no objection.

         The court summoned the jury to the courtroom and stated:

‘‘We've received three notes from the jury this morning, and I just want to go over those and explain what the next steps in the process are.
‘‘The first note has been marked as court exhibit 25, and it reads: We are at a place where we are not able to come to a unanimous decision. We have on one count but are not able to on count one through four. And then it says, I'm assuming, we would like guidance. The jury instruction that you've been provided with is the additional guidance that I'm going to provide.
‘‘We have also received two other notes from . . . individual jurors, which have been marked as court exhibit 26 and court exhibit 27. At this point we'll address that issue later today, after I give you this instruction and ask that you continue with your deliberations.
‘‘So, this is . . . the instruction to give when the jury is having difficulty agreeing as to a verdict:
‘‘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 acquiescence and 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 reasonable 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, [and] 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 the 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 justas 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.
‘‘All right. So, at this point I'm going to ask that you return to the jury room to continue with your deliberations and then we'll await any additional notes. Thank you.'' Both the prosecutor and defense counsel affirmatively stated that they did not have any further comments.

         At 11:30 a.m., the court received the fourth note of the day. The note was from juror L.D. and stated: ‘‘I would like the court to know that I am feeling attacked as a juror. Thank you for giving us guidelines. I am willing to keep an open mind and continue talking but I felt very attacked yesterday.'' The court shared the note with the prosecutor and defense counsel, both of whom indicated that they did not want the court to canvass L.D. Glomb did not state that he needed to discuss the matter with Brown. The court did not take any further action with respect to the note.

         At 2:39 p.m., the court received the fifth note of the day, which stated: ‘‘We have the verdict! All counts 1-5.'' The court summoned the jury to the courtroom, and the foreperson announced the jury's finding of guilt with respect to counts one (murder), two (murder), and five (criminal possession of a firearm). The foreperson announced the jury's finding of not guilty with respect to counts three (conspiracy to commit murder) and count four (criminal possession of a firearm). The court accepted the verdict and ordered that it be recorded. At the defendant's request, the jurors were individually polled, and each juror affirmatively expressed his or her agreement with the verdict. The court asked the prosecutor and defense counsel if they were in agreement that a unanimous verdict had been reached. The prosecutor and defense counsel replied affirmatively.

         For the first time on appeal, the defendant claims that in light of the unique circumstances that existed at the time that the court delivered the Chip Smith instruction, the court's use of the instruction was impermissibly coercive and, thus, denied him his right to due process and his right to a jury trial. His claim does not necessarily focus on the propriety of the court's Chip Smith instruction, but he contends that, in the present case, ‘‘the court's response to the deadlock note created pressure and exacerbated existing pressures on the jury, particularly the minority view juror(s), and that all the coercive circumstances denied [him of] his right to a fair jury trial.'' The defendant argues that the claim is reviewable pursuant to the bypass doctrine set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), as modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015).[8] Additionally, the defendant invites us to conclude that reversal of the judgment is warranted under the plain error doctrine.[9] See Practice Book § 60-5.

         In the defendant's view, the court put undue pressure on the jury to reach a verdict[10] because (1) the court ‘‘used a particularly coercive anti-deadlock instruction, directing only minority view jurors to reconsider their position in light of the opinion of the majority''; (2) during jury selection, the court told prospective jurors that it did not believe that the trial would continue beyond Friday, November 13, 2015, and it delivered the Chip Smith instruction following five days of deliberations and without first responding to the notes sent by D.N. and J.D., who had informed the court that they would be unable to continue to serve as jurors if the trial continued to Monday, November 16, 2015; (3) ‘‘[t]he jury was left to wonder if the court would require deliberations to continue beyond [November 13, 2015] and whether it must reach a verdict to be excused''; (4) D.N. informed the court that he would be unable to serve after November 13, 2015, but the court did not respond or determine whether his circumstance was causing him pressure to ensure that a verdict was reached; (5) L.D. informed the court that she had felt ‘‘attacked'' during the deliberations, but the court's lack of response to L.D. and its Chip Smith instruction likely indicated to the jury that ‘‘such pressures'' placed on minority view jurors were ‘‘sanctioned by the court''; and (6) the jury had deliberated for more than five days and was unable to reach a verdict but, following the Chip Smith instruction, the jury deliberated for only two additional hours before reaching a verdict.

         We begin our analysis under Golding by observing that the record affords us the ability to review the instructions provided to the jury as well as the relevant circumstances under which the court's instructions were given. Moreover, the defendant's claim is based on a violation of his rights to due process and a jury trial under the federal constitution and, thus, is constitutional in magnitude. Because the claim is reviewable under Golding, we turn to an examination of whether the alleged constitutional violation exists and whether it deprived him of a fair trial. Because the claim presents a question of law, our review is plenary. See, e.g., State v. Brown, 299 Conn. 640, 650, 11 A.3d 663 (2011) (questions of law afforded plenary review).

         ‘‘A jury that is coerced in its deliberations deprives the defendant of his right to a fair trial under the sixth and fourteenth amendments to the federal constitution, and article first, § 8, of the state constitution. 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.'' (Citations omitted; internal quotation marks omitted.) State v. Pinder, 250 Conn. 385, 427, 736 A.2d 857 (1999); accord State v. Daley, 161 Conn.App. 861, 866, 129 A.3d 190 (2015), cert. denied, 320 Conn. 919, 132 A.3d 1093 (2016). We recognize that ‘‘a defendant is not entitled to an instruction that a jury may hang . . . [but] he is entitled to a jury unfettered by an order to decide.'' (Internal quotation marks omitted.) State v. Breton, 235 Conn. 206, 239, 663 A.2d 1026 (1995).

         ‘‘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. . . . In State v. O'Neil, 261 Conn. 49, 59, 801 A.2d 730 (2002), although our Supreme Court continued to uphold such instructions, it also recognized the potential for the coercion of minority view jurors. Specifically, our Supreme Court concluded that instructing jurors to consider the opinions 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 without 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 acquiescence 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 reasonable 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.' . . . 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, however, when the court merely tells jurors to continue deliberating without instructing them in a potentially coercive manner.'' State v. Mitchell, 170 Conn.App. 317, 324-25, 154 A.3d 528, cert. denied, 325 Conn. 902, 157 A.3d 1146 (2017). ‘‘[A] Chip Smith charge, while encouraging a continued search for unanimity, also stresses that each juror's vote must be his [or her] own conclusion and not a mere acquiescence in the conclusions of his [or her] fellows . . . . The language of the charge does not direct a verdict, but encourages it.'' (Citation omitted; internal quotation marks omitted.) State v. Feliciano, 256 Conn. 429, 440, 778 A.2d 812 (2001).

         With respect to the court's Chip Smith instruction, the defendant argues both that the instruction is ‘‘[not] always unduly coercive'' but that he nonetheless ‘‘believes O'Neil was wrongly decided and [that] the better approach would be not to give an instruction singling out minority view jurors . . . .'' We observe that the court's Chip Smith instruction mirrored that approved by our Supreme Court in State v. O'Neil, supra, 261 Conn. 59. Moreover, defense counsel did not object to the court's instruction.[11] To the extent that the defendant urges this court to conclude that O'Neil was wrongly decided, we unequivocally decline to do so. See, e.g., State v. LaFleur, 156 Conn.App. 289, 302- 303, 113 A.3d 472 (this court is unable to overrule, reevaluate, or reexamine controlling precedent of our Supreme Court), cert. denied, 317 Conn. 906, 114 A.3d 1221 (2015).

         To the extent that the defendant argues that the circumstances in which the court delivered the Chip Smith instruction resulted in the court's having applied improper pressure on the jury to reach a verdict, we reject this argument. The defendant focuses on the fact that the court delivered the instruction on a Friday morning, following five days of deliberations, and that two jurors had notified the court that they would be unable to deliberate on Monday. Moreover, the defendant focuses on the fact that, during jury selection, the court informed the jurors that it anticipated that the trial would be completed by November 13, 2015, the dayon which the court delivered the Chip Smith instruction and the jury reached its verdict. The court's statements during jury selection plainly were intended to determine whether prospective jurors were available to serve as jurors during the dates of the trial and, in light of all of the court's later instructions to the jury concerning its deliberations, may not reasonably be interpreted to suggest that a verdict by November 13, 2015, was expected or required by the court. The court neither instructed the jury nor implied that it was required to reach a verdict or that it was required to reach a verdict at a particular time. See, e.g., United States v. Badolato, 710 F.2d 1509, 1514-15 (11th Cir. 1983) (fact that court did not instruct jury that it was required to reach verdict or that it was required to do so at that time weighed against conclusion that jury had been coerced).

         Any concern that the jury may have believed that it was expected or required to reach a verdict on November 13, 2015, was readily addressed by the court in its Chip Smith instruction. The court did not state, in that instruction or prior to that instruction, that the jury was expected or required to reach a verdict on November 13, 2015, or at any particular time. Instead, the court emphasized that each juror was expected to honestly and in good conscience reach a conclusion, and that no juror should change his or her mind ‘‘to get the case over with.'' Moreover, the court concluded its instruction by stating: ‘‘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.'' There is no basis in the record to suggest that the jury either did not understand or did not follow this plain instruction.

         The defendant argues that ‘‘[t]he jury was left to wonder if the court would require deliberations to continue beyond [November 13, 2015] and whether it must reach a verdict in order to be excused.'' He submits that the circumstances were coercive because ‘‘[t]he court did not advise the jury that it need not reach a verdict in order to be excused at the end of the day. To the contrary, it suggested that the court would wait as long as it took to reach a unanimous verdict.'' The defendant's argument is undermined by the fact that, prior to November 13, 2015, the jury had deliberated for five days. The jury did not reach a verdict on any of these prior days, yet it was excused at the end of each day. On November 10, 2015, the court received a note from the jury in which it stated that deliberations were ‘‘getting very heated'' and that continued deliberations would not be ‘‘beneficial.'' In response to this note, the court permitted the jury to be excused for the day. In light of this prior experience of the jury, the defendant's argument that the jury would have believed that it would not be excused if it did not reach a verdict is not persuasive.

         The defendant correctly observes that, in its jury charge, the court stated that the jury's ‘‘task'' was to return a verdict and stated that, with respect to each count, the jury had the option of finding the defendant guilty or not guilty. Additionally, the defendant focuses on the fact that, during its charge, the court stated that the jury was ‘‘duty bound'' to return a verdict of guilty or not guilty with respect to each count.

         These statements in the court's charge, however, did not impermissibly suggest that the jury was required to reach a unanimous verdict. Reviewing the court's use of the phrase, ‘‘duty bound, '' in greater context reflects that the court did not suggest that it would not accept the jury's failure to reach a unanimous verdict, but merely that a verdict of guilty or not guilty must be unanimous. The court stated: ‘‘I impress upon you that you are duty bound as jurors to determine the facts on the basis of the evidence as it has been presented, to apply the law as I have outlined it, and then to render a verdict of guilty or not guilty as to each of the crimes charged. When you reach a verdict, it must be unanimous. It is the duty of each juror to discuss and consider the opinions of the other jurors. Despite that, in the last analysis, it is your individual duty to make up your own mind and to decide this case upon the basis of your own individual judgment and conscience.'' (Emphasis added.) In light of the fact that the jury sent several notes to the court during the course of its deliberations, including several notes in which it requested further instruction, we observe that, after it had received the Chip Smith instruction, the jury did not ask the court for any further clarification with respect to the instruction.

         The defendant also focuses on the content of the note sent to the court by juror D.N. See footnote 6 of this opinion. The defendant argues that D.N.'s ‘‘circumstances suggest distraction, worry and pressure to finish to take care of this important and emotional family matter. The court did not respond, determine whether this was having a coercive effect on [D.N.] during deliberations-distracting or agitating him, pressuring him to agree, or causing him to pressure others to agree with ...


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