Date: 12-05-2016

Case Style:

Case Number: AC 38432

Judge: Douglas S. Lavine

Court: Connecticut Appellate Court

Plaintiff's Attorney:

Nancy L. Walker, deputy assistant state’s attorney, Michael Dearington, former state’s attorney, and Stacey Haupt Miranda, senior assistant state’s attorney

Defendant's Attorney:

Laila M. G. Haswell,senior assistant public defender, Lauren Weisfeld, chief
of legal services,

Description: The defendant, Maurice Beverley, appeals from the judgment of conviction, rendered after a jury trial, of one count of felony murder in violation of General Statutes§ 53a-54c;one count of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2); and one count of criminal possession of a firearm in violation of GeneralStatutes§ 53a-217(a). On appeal, the defendant claims that the trial court abused its discretion in (1) failing to conduct an adequate investigation in to alleged juror bias,and(2)limiting the defendant’s cross-examination of the state’s key witness. We affirm the judgment of the trial court. The jury reasonably could have found the following facts. On March 31, 2010, the defendant told Eric Brooks, a codefendant, that he wanted to rob ‘‘somebody with money.’’ On the night of April 2, 2010, the defendant and Eric Brooks met with Mary Pearson, their cousin, on the front porch of her aunt’s home. Pearson was staying with her aunt, Mary Brooks, on the third floor of a three-story house, but another family lived on the first floor. The porch, which was in front of the first floor, was a small‘‘community porch’’where people from around the neighborhood gathered. On that night, there were ‘‘other’’1 people on the porch with the defendant, Eric Brooks, and Pearson. When Pearson went to meet the defendant, he was already on the porch and had the victim, Kenneth Bagley, who was a known drug dealer, on his cell phone. In front of the ‘‘other’’ people, the defendant asked Pearson if she would talk to Bagley to buy drugs for him. An hour later, Bagley arrived in his car and parked a couple of houses down from her aunt’s house, in full view of the people on the porch. As Pearson and Bagley began to engage in a drug transaction in Bagley’s car, the defendant opened the front driver’s door, grabbed Bagley by the neck, and put a gun to his head. As a struggle ensued, the defendant shot Bagley in the upper body, which later caused his death. After the defendant shot Bagley, the defendant and Eric Brooks took Bagley’s drugs and jewelry. The defendant was charged with felony murder, robbery in the first degree, and criminal possession of a firearm. At trial, Pearsontestified that she was unfamiliar with the family that lived on the first floor and with the ‘‘other’’ people on the front porch the night of the murder. During an extensive cross-examination about the tenants who lived on the first floor and about the ‘‘other’’people,defense counsel asked whether Pearson knew of ‘‘any disputes between the people on the first floorand[her]aunt.’’The state objected to the question on the ground of relevancy. After arguments before the court, the court sustained the objection ‘‘based on numerous claims.’’

On November 20, 2013, the jury found the defendant guilty on all counts. The defendant was sentenced to a total effective sentence of seventy-five years imprisonment. This appeal followed. Additional facts will be set forth as needed. I First,thedefendantclaimsthatthetrialcourtabused itsdiscretioninfailingtoconductanadequateinvestigation into alleged juror bias, which violated his right to animpartialjuryguaranteedbythesixthandfourteenth amendments to the United States constitution. The defendant asserts that his claim is preserved, but if this court determines that it is not preserved, it is nevertheless reviewable either pursuant to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), or under the plain error doctrine. The state argues that the defendant’s claim is not reviewable because he waived his right to raise the claim on appeal. We agree with the state. The following additional facts are relevant to this claim. The jury began its deliberations on November 18, 2013. On November 20, 2013, the trial court was notified that juror R.A.’s wife2 received a phone call the night before and that when R.A. took the phone from her, the caller asked R.A. about the case. R.A. reported the call to the court, telling the court that the caller told him that ‘‘they’’ understood that R.A. was a juror onthiscaseandthattheyneededinformationregarding the case. R.A. told the caller that he was prohibited fromtalkingaboutthecase,andhehungupthephone.3 R.A. also told the court that he asked some of the other jurors earlier that morning whether any of them had received phone calls about the case. The court asked R.A. whether the phone call would prevent him from being a fair and impartial juror, and R.A. responded that it would not affect him. The court then gave both the state and the defense the opportunity to question R.A.,butdefensecounseldeclinedtoaskR.A.anyquestions. Defense counsel did not ask the court to dismiss R.A. as a juror, and the court did not dismiss R.A. After questioning R.A., the trial court, sua sponte, proposed that it conduct an individualized voir dire of the remaining eleven jurors. Defense counsel did not objecttotheprocedureorsuggestthatanyotheraction be taken. During the voir dire, one juror stated that she had heard that some ‘‘people were nervous about [the call].’’ All of the jurors, however, told the court that the phone call did not affect their ability to be fair and impartial. At the end of each voir dire, the trial court gave both the state and the defense the opportunity to questionthejuror.Defensecounseldeclinedtoquestion any of the jurors. After the court interviewed the last juror, it gave the state and the defense the opportunity to be heard on
the record.4 Defense counsel stated that he was ‘‘concerned’’ that some of the jurors were nervous, but he acknowledged that he was ‘‘not concerned’’ about any jury bias. Defense counsel then stated, ‘‘I don’t know if there’s any way that a very quick investigation could be done and that’s just the only thought I had.’’ When asked by the trial court, however, who should conduct the investigation, defense counsel admitted that he did not know. Defense counsel then stated that the jury should proceed with its deliberations. The court concluded that it was satisfied with the jurors’ answers that each of them could be fair and impartialandthattherewasnoindicationthatanything that had happened had ‘‘endanger[ed] the fairness of the proceedings . . . .’’ The court also stated that it had ‘‘inquired appropriately under the law’’ and that it did not think that ‘‘there’s any further action required of the [c]ourt and counsel is not asking for any further action.’’ Defense counsel did not voice any disagreement with this assessment. Onappeal,thedefendantarguesthatthecourtabused its discretion when it declined ‘‘to ascertain how much the jurors’ feelings of nervousness or fear . . . impact[ed]theirdeliberationsandverdict.’’Particularly withregardtothecourt’svoirdireofR.A.,thedefendant argues that the court should have asked R.A. whether the phone call had ‘‘emotionally impacted him’’ instead of just asking him whether, in spite of the call, he could be a fair and impartial juror. The defendant also contends that defense counsel’s ‘‘comments did not constitute a waiver of the jury misconduct issue.’’ We do not agree. Wesetforththeapplicablestandardofreview.‘‘[T]he right to a trial by jury guarantees to the criminally accused a fair trial by a panel of impartial, indifferent jurors.’’ (Internal quotation marks omitted.) State v. Roman, 320 Conn. 400, 408, 133 A.3d 441 (2016). ‘‘[W]e haveadoptedthedefinitionofavalidwaiverofaconstitutionalrightasthe intentionalrelinquishmentorabandonment of a known right. . . . This strict standard precludes a court from presuming a waiver of the right to a trial by jury from a silent record. . . . In determining whether this strict standard has been met, a court must inquire into the totality of the circumstances of each case. . . . When such a claim is first raised on appeal, our focus is on compliance with these constitutionalrequirementsratherthanonobservanceofanalogous procedural rules prescribed by statute or by the Practice Book.’’ (Citations omitted; internal quotation marks omitted.) State v. Ouellette, 271 Conn. 740, 752, 859 A.2d 907 (2004). ‘‘[A]lthough there are basic rights that the attorney cannot waive without the fully informed and publicly acknowledged consent of the client, the lawyer has— and must have—full authority to manage the conduct
of the trial. . . . As to many decisions pertaining to theconductofthetrial,thedefendantisdeemedbound by the acts of his lawyer-agent and is considered to have notice of all facts, notice of which can be charged upon the attorney. . . . Thus, decisions by counsel are generally given effect as to what arguments to pursue . . . what evidentiary objections to raise . . . and what agreements to conclude regarding the admission of evidence . . . . Absent a demonstration of ineffectiveness, counsel’s word on such matters is the last.’’ (Internal quotation marks omitted.) State v. Kitchens, 299 Conn. 447, 467–68, 10 A.3d 942 (2011); see State v. Hampton, 293 Conn. 435, 449, 988 A.2d 167 (2009) (‘‘[w]aiver may be effected by action of counsel’’ [internal quotation marks omitted]). ‘‘The mechanism by which a right may be waived . . . varies according to the right at stake. . . . When a party consents to or expressessatisfactionwithanissueattrial,claimsarising from that issue are deemed waived and may not be reviewed on appeal.’’ (Internal quotation marks omitted.) State v. Foster, 293 Conn. 327, 337, 977 A.2d 199 (2009). In the present case, we conclude that the defendant waived his claim, and, therefore, we decline to review it. A defendant’s claim that the trial court did not conduct an adequate investigation into alleged jury bias is one which can be waived by the actions of counsel. See id., 337–39. The trial court gave defense counsel the opportunity to question R.A. about the phone call afteritconducteditsownvoirdire,butdefensecounsel declined to do so. The court proposed to the parties that it conduct an individualized voir dire of each juror about whether any jury bias existed, and defense counsel did not object or request that any further action be taken. See id., 337 (defense counsel requested that trial court conduct general inquiry of jury after trial court dismissedjurorforjurormisconduct).Aftertheindividualized voir dire of each of the remaining eleven jurors, the court afforded defense counsel the opportunity to question the juror, but defense counsel again declined to ask any additional questions. Most importantly, defense counsel expressly acknowledged that he was ‘‘not too concerned about any of [the jurors] being affected [because] [t]hey all said [they] weren’t’’ and that ‘‘the jurors have indicated that they can proceed and [he] [thought that] they should.’’ Considering defense counsel’s actions under the totality of the circumstances, we conclude that he consented to and expressed satisfaction with the issue. See State v. Foster, supra, 293 Conn. 338–39 (wherein counsel waived claimbyconsentingtoandexpressingsatisfactionwith issue); see also State v. Hampton, supra, 293 Conn. 449–50 (defense counsel assented to jury charge given by trial court when he failed to object to charge and stated more than once that he was satisfied with charge).Accordingly,weconcludethatdefensecounsel
waived any claim that the trial court did not conduct an adequate hearing as to alleged jury bias. Apart from the individualized voir dire of each juror, defensecounselwaivedanyclaimthatthecourtshould have conducted an ‘‘investigation’’5 of the call to R.A.’s home. After stating that he thought ‘‘a quick investigation could be done,’’ defense counsel expressly acknowledged that ‘‘the jurors have indicated [that] they can proceed and I think they should.’’ Thus, again, defense counsel consented to and expressed satisfaction with the issue. See State v. Foster, supra, 293 Conn. 337. Because defense counsel waived any claim that the trial court failed to conduct an adequate investigation ofallegedjurybias,wewillnotentertainthedefendant’s request to review his claim pursuant to Golding.6 ‘‘[I]n theusualGoldingsituation,thedefendantraisesaclaim onappeal[that],whilenotpreservedattrial,atleastwas not waived at trial. . . . We generally do not review unpreserved, waived claims.’’ (Citation omitted; internal quotation marks omitted.) Id. ‘‘Therefore, a defendant cannot prevail under Golding on a claim that he implicitly waived at trial.’’ (Internal quotation marks omitted.) State v. Fabricatore, 281 Conn. 469, 479, 915 A.2d872(2007).‘‘Toreachacontraryconclusionwould result in an ambush of the trial court by permitting the defendant to raise a claim on appeal that his or her counsel expressly had abandoned in the trial court.’’ (Internal quotation marks omitted.) State v. Foster, supra, 337. We conclude that the defendant waived his claim, and, therefore, we decline to review it. II The defendant’s second claim is that the trial court abuseditsdiscretionwhenitsustainedthestate’sobjection that the proposed question of whether Pearson knew of ‘‘any disputes between the people on the first floor and [her] aunt’’ was irrelevant. In response, the state argues that the court did not abuse its discretion in sustaining the objection because defense counsel failed to show that the testimony he sought to elicit was relevant to demonstrating Pearson’s motive to lie about who was responsible for the murder. We agree with the state. The following additional facts are relevant to this claim. After the state objected to defense counsel’s question on the ground of relevancy, the court excused the jury from the courtroom. Defense counsel argued before the court that the question of whether Pearson was aware of any disputes between Mary Brooks and the tenants on the first floor was relevant because it went to Pearson’s state of mind, in that it tended to show that she was ‘‘falsely implicating [the defendant] becauseshe[was]afraidoftheotherpeoplewho[lived]
on the first floor.’’ The state argued that because Pearsontestifiedthatsheknewneitherthepeoplewholived on the first floor nor the ‘‘other’’ people who were on theporchthenightofthemurder,therewasnoevidence in the record to suggest that she would be afraid of anyone present that night or of anyone living on the first floor, rendering the question irrelevant. The court sustained the objection ‘‘based on numerous claims.’’ The court noted, however, that it was not foreclosing defense counsel from ‘‘developing motive, interest, or bias.’’ Thedefendantarguesonappealthatthecourtabused itsdiscretionindeterminingthatthequestionwasirrelevant. The defendant contends that the question of whether Pearson was aware of any disputes between Mary Brooks and the first floor tenants was relevant because it tended to show that Pearson was afraid of thefirstfloortenants.Herfearofthefirstfloortenants, the defendant argues, was relevant to the defendant’s defensebecauseitexplainedwhyPearsoncontinuously lied to the police throughout the investigation. He contends that it also tended to explain why Pearson may haveliedoncross-examinationaboutnotknowingwho the people on the front porch were or who the people who lived on the first floor were. The defendant argues that she may have lied for a number of reasons, including the possibility that one of the people on the porch that night or a tenant of the first floor may have given testimony that was inconsistent with hers or that she was afraid of those alleged to be the real perpetrators, namely, the first floor tenants. In short, the defendant argues that ‘‘[d]eveloping information as to Pearson’s fears because of the alleged disputes was entirely relevant to her bias, prejudice, and interest in the outcome of the case.’’ We do not agree. ‘‘In analyzing the defendant’s claim, we first review the trial court’s evidentiary [ruling]. Our standard of review for evidentiary claims is well settled. . . . We review the trial court’s decision to admit [or exclude] evidence, if premised on a correct view of the law . . . for an abuse of discretion. . . . In determining whether there has been an abuse of discretion, the ultimate issue is whether the court . . . reasonably [could have] conclude[d] as it did. . . . If, after reviewing the trial court’s evidentiary rulings, we conclude that the trial court properly excluded the proffered evidence, then the defendant’s constitutional claims necessarily fail. . . . If, however, we conclude that the trial court improperly excluded certain evidence, we will proceed to analyze [w]hether [the] limitations on impeachment, includingcross-examination,[were]sosevereastoviolate [the defendant’s rights under] the confrontation clause of the sixth amendment . . . .’’7 (Internal quotation marks omitted.) State v. Annulli, 130 Conn. App. 571, 579–80, 23 A.3d 808 (2011), aff’d, 309 Conn. 482, 71 A.3d 530 (2013). ‘‘In determining whether there has
beenanabuseofdiscretion,everyreasonablepresumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.’’ (Internal quotation marks omitted.) State v. Lyons, 43 Conn. App. 704, 710, 686 A.2d 128 (1996), cert. denied, 240 Conn. 906, 688 A.2d 335 (1997). ‘‘Thesixthamendmenttothe[UnitedStates]constitution guarantees the right of an accused in a criminal prosecution to confront the witnesses against him. . . . The primary interest secured by confrontation is the right to cross-examination . . . and an important function of cross-examination is the exposure of a witness’ motivation in testifying. . . . Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. . . . However, [t]he [c]onfrontation [c]lause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. . . . Thus, [t]he confrontation clause does not . . . suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination. . . . Only relevant evidence may beelicitedthroughcross-examination.’’(Citationsomitted; emphasis omitted; internal quotation marks omitted.) State v. Andrews, 248 Conn. 1, 11, 726 A.2d 104 (1999). ‘‘Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthyorsafetobeadmittedintheproofofthelatter.’’ (Internal quotation marks omitted.) State v. Davis, 298 Conn. 1, 23, 1 A.3d 76 (2010). ‘‘The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has beenanabuseofdiscretion.’’(Internalquotationmarks omitted.) State v. Reeves, 57 Conn. App. 337, 345, 748 A.2d 357 (2000). In the present case, we conclude that the trial court did not abuse its discretion in ruling that defense counsel’s inquiry was irrelevant and precluding it on that basis.8 An abuse of discretion was not manifest when thetrialcourtruledthatdefensecounselfailedtoestablishavisibleconnectionbetweentheprofferedquestion andtheprincipalfactsintherecord.See Statev. Davis,
supra, 298 Conn. 23. Defense counsel presented no evidencethatPearsonknewthepeopleonthefrontporch, that the tenants of the first floor were the people on the porch, or that Pearson even knew the people who lived on the first floor. Therefore, any disputes that Mary Brooks may have had with the first floor tenants would be irrelevant in establishing that Pearson lied because she was afraid of the first floor tenants or of anyone present the night of the murder. After an examination of the facts on the record, we do not quarrelwiththetrialcourt’sconclusionthatthequestiondid nothavealogicaltendencytoaidthejuryindetermining Pearson’s motive or credibility, rendering the question irrelevant.

Outcome: