State v. Carrasquillo

         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 state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Robin D. Krawczyk and Donna Mambrino, senior assistant state’s 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 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

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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 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]

         [191 Conn.App. 674] On November 13, 2015, the sixth and final day of the jury’s 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 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 [191 Conn.App. 676] 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

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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 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 ...