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 ...