Argued
March 5, 2019
Superior
Court in the judicial district of Hartford and tried to the
jury before Bentivegna, J.
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Jennifer Bourn, supervisory assistant public defender, for
the appellant (defendant).
Bruce
R. Lockwood, senior assistant states attorney, with whom, on
the brief, were Gail P. Hardy, states attorney, and Robin D.
Krawczyk and Donna Mambrino, senior assistant states
attorneys, for the appellee (state).
Keller,
Elgo and Bishop, Js.
OPINION
KELLER,
J.
[191
Conn.App. 668] 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 [191 Conn.App. 669] 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
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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 [191 Conn.App. 670] 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 [191 Conn.App. 671]
defendant admitted that he took Rodriguez handgun,
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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 [191 Conn.App.
672] 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 jurys deliberations, the jury requested
additional copies of the courts written instructions and
asked for clarification with regard to the courts
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 jurys 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 jurys
deliberations, the jury asked the court for clarification
with respect to the courts 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
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jury to resume its deliberations at 10:45 a.m. on November
12, 2015.[3]
[191
Conn.App. 673] On November 12, 2015, the fifth day of the
jurys 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 jurys 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
Browns associate, Attorney Alex Glomb, would be
present.[5]
[191
Conn.App. 674] On November 13, 2015, the sixth and final day
of the jurys deliberations, the
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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 [191 Conn.App. 675] 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 jurys deliberations were to go
beyond November 13, 2015, there would be an issue concerning
juror availability. Then, in response to the jurys 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 well 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:
"Weve 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, Im assuming,
we would like guidance. The jury instruction that youve been
provided with is the additional guidance that Im going to
provide.
"We have also received two other notes from ...
individual jurors, which have been marked as [191 Conn.App.
676] court exhibit 26 and court exhibit 27. At this point
well 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
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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
others opinions and listen with an open mind to each others
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 ...