State v. Young ( 2015 )

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STATE OF CONNECTICUT v. MICHAEL A. YOUNG
(AC 36833)
Alvord, Prescott and Bear, Js.
Argued September 24—officially released December 1, 2015
(Appeal from Superior Court, judicial district of
Tolland, geographical area number nineteen, Kwak, J.)
Michael A. Young, self-represented, the appellant
(defendant).
Glenn W. Falk, assigned counsel, filed a brief for the
appellant (defendant).
Denise B. Smoker, senior assistant state’s attorney,
with whom, on the brief, were Lisa Herskowitz, senior
assistant state’s attorney, Matthew C. Gedansky, state’s
attorney, and Andrew Reed Durham, assistant state’s
attorney, for the appellee (state).
Opinion
PRESCOTT, J. The defendant, Michael A. Young,
appeals from the judgment of conviction, rendered after
a jury trial, of one count of interfering with a police
officer in violation of General Statutes § 53a-167a, and
one count of assaulting a police officer in violation
of General Statutes § 53a-167c (a) (1).1 On appeal, the
defendant’s sole claim is that the trial court improperly
declined to provide the jury with an adverse inference
instruction concerning the state police’s failure to pre-
serve evidence, thereby depriving the defendant of his
right to due process under the state constitution. See
State v. Morales, 232 Conn. 707, 722–23, 657 A.2d 585
(1995). We affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. On May 10, 2011, the state police were dispatched
to the defendant’s home on a complaint by Jessica Reed
that the defendant had assaulted and strangled her.
After speaking with Reed, Trooper William Utermarck
discovered the defendant sitting in his truck, which
was parked in the backyard. Two more police officers
arrived at the scene. The officers asked the defendant
to exit his vehicle but he refused, revving the engine
and uttering profanities. Utermarck requested addi-
tional backup and went inside the defendant’s residence
to speak with Reed again.
After speaking with Reed, Utermarck concluded that
the defendant should be arrested. By this time, the
defendant had exited his vehicle and sat on the steps
of the garage stairwell. When three additional police
officers arrived at the scene to provide backup, all six
officers approached the defendant. Trooper Timothy
Begley informed the defendant that he was under arrest.
In response, the defendant stood and walked toward
the woods located at the back of the yard, claiming to
need to urinate. Begley ordered the defendant to stop
and grabbed the defendant’s left arm. The defendant
attempted to strike Begley, leading Begley and other
officers to subdue the defendant by getting him down
on the ground. The defendant continued to struggle.
Once handcuffed, the police officers picked the
defendant up off the ground and led him to the police
cruiser. When the officers attempted to place the defen-
dant in the front passenger seat of the cruiser, the defen-
dant began to kick and struck Trooper John Barrows
in the right thigh. After giving the defendant two warn-
ings to stop resisting arrest, Utermarck utilized pepper
spray to subdue the defendant. The officers also used
duct tape to bind the defendant’s feet together.
The jury found the defendant guilty of interfering
with a police officer and assaulting a police officer.
After a separate jury trial on a part B information, the
jury found that the defendant committed the crimes for
which he just had been convicted while on release on
bond, thereby subjecting him to a sentence enhance-
ment pursuant to General Statutes § 53a-40b. The court
sentenced the defendant to a total effective term of
twelve years incarceration, followed by five years of
special parole. This appeal followed. Additional facts
will be set forth as necessary.
The defendant’s sole claim on appeal is that the court
improperly declined to instruct the jury that it could
draw an adverse inference against the state because
of the police’s failure to preserve certain exculpatory
electronic evidence. The defendant argues that the
court, in applying the test set forth in State v. Morales,
supra, 232 Conn. 727,2 improperly concluded that the
unpreserved evidence had little to no evidentiary value
to the defendant and that the state police’s failure to
preserve the evidence was due to inadvertence. Accord-
ingly, the defendant contends that the court should have
concluded that his due process rights were violated and
that, at the least, an adverse inference instruction was
necessary to remedy the violation.
The state argues that the defendant failed to preserve
this claim of instructional error for appeal, because he
did not file a written request to charge the jury that it
could draw an adverse inference from the failure of the
state police to preserve evidence, and he did not take
exception to the jury charge delivered by the court, as
required by Practice Book § 42-16. The state also argues
that the defendant is not entitled to have his unpre-
served claim reviewed under State v. Golding, 213
Conn. 233, 239–40, 567 A.2d 823 (1989), because the
defendant waived his claim of instructional error pursu-
ant to State v. Kitchens, 299 Conn. 447, 468, 10 A.3d
942 (2011). The defendant failed to address the review-
ability of his claim in his initial brief and did not respond
to the state’s argument that his claim is unpreserved,
except for filing a reply brief as a self-represented party
that briefly mentioned Golding review.3 We agree with
the state.
The following additional facts and procedural history
are necessary for our discussion. The defendant com-
plains that the state troopers and police officers, not
the defendant, were the ones who resorted to violence,
utilizing pepper spray and duct taping the defendant’s
feet and mouth. According to the defendant, the state
police disliked him and desired ‘‘to teach [him] a les-
son.’’ The defendant asserts that there were video cam-
eras on the police cruisers that recorded the police
using pepper spray and duct tape to arrest him, as well
as video cameras at the police station that recorded
images of the defendant’s injuries from an alleged
assault by the police. On May 25, 2011, the defendant
filed a motion to preserve evidence, requesting that the
court order the state police to preserve all audiotapes,
video recordings, and all other electronic or digital evi-
dence that showed the defendant’s arrest, processing,
and lockup. The defendant argued that this evidence
was critical to his right to prepare and present a
defense.
On June 10, 2011, the Office of the State’s Attorney
sent a memorandum to the state police, requesting that
any evidence referenced in the defendant’s motion be
preserved. In the same memorandum, the Office of the
State’s Attorney also requested that all evidence relating
to a second case in which the defendant was involved
also be preserved. The legal affairs department of the
state police received the memorandum and preserved
all available audio and digital evidence relating to the
second case, but failed to preserve any audio or digital
recordings for this case.
On the day the evidentiary portion of the defendant’s
trial was scheduled to commence, the defendant, who
was represented by counsel, filed a motion to dismiss
counts two through six of the information on the basis
of the state’s failure to preserve the electronic evidence.
The defendant argued in his motion to dismiss that
the state’s failure to preserve ‘‘the videotapes deprives
[him] of his right to present a defense [in] that he will
be unable to show the jury the extent of his injuries
suffered at the hands of the arresting officers during
the course of his arrest.’’ The defendant also alleged
that the video recordings from the police cruisers would
have shown that the officers’ claim that the defendant
‘‘engaged in assaultive behavior [was] simply an exag-
geration and/or lie.’’ In his motion to dismiss, the defen-
dant expressly stated that he sought dismissal of counts
two through six, not an adverse inference instruction,
because such an instruction would be insufficient to
cure the harm caused by the state’s failure to preserve
the electronic evidence.
The court immediately conducted a hearing on the
defendant’s motion to dismiss. During the hearing,
defense counsel requested that if the motion to dismiss
was denied, the jury be instructed that it could draw
an adverse inference from the state’s failure to preserve
the videotape evidence in deciding whether the police
applied duct tape to the defendant’s face. The court
reserved judgment on the motion to dismiss, and the
trial commenced. During the cross-examination of Uter-
marck, defense counsel again requested an adverse
inference instruction after Uternarck denied knowledge
of the officers using duct tape on the defendant’s mouth.
The court withheld judgment on the request for an
adverse inference instruction until it ruled on the defen-
dant’s motion to dismiss.
The court issued an oral ruling denying the defen-
dant’s motion to dismiss. The court concluded that the
missing evidence was of ‘‘no value’’ to the defendant
and that the state’s failure to preserve the evidence was
due to inadvertence. Defense counsel took an exception
to this ruling and then inquired as to whether ‘‘a request
for an adverse inference will also be denied. Is that
encompassed in the ruling?’’ The court responded in
the affirmative.
At the end of the state’s case-in-chief, the court read
a stipulation to the jury, stating that the defendant had
filed a motion to preserve evidence and the Office of
the State’s Attorney had sent to the state police a memo-
randum requesting the preservation of any electronic
evidence. The stipulation further stated that the legal
affairs department of the state police received the mem-
orandum, but the police failed to comply with it,
because the memorandum listed two case numbers and
the police only preserved evidence from one of the
cases listed.
Once both parties rested, the court held a charging
conference on the record. The court gave counsel cop-
ies of the court’s proposed jury instructions, and
defense counsel requested that he be allowed to bring
in a single request to charge the following day, which he
had forgotten to bring. The court reviewed the proposed
jury instructions page by page with counsel, asking
after every page if counsel had any objections. Although
defense counsel objected to certain aspects of the
court’s proposed instructions, renewed his motion for
judgment as a matter of law, and asked for an instruc-
tion regarding the defendant’s choice not to testify,
he did not renew his request for an adverse inference
instruction. Nor did defense counsel object to the pro-
posed instructions because they lacked an adverse
inference instruction.
The next day, before closing arguments, the court
held a second charging conference on the record. The
court inquired if counsel had received a copy of the
proposed instructions and had an opportunity to review
them. Defense counsel responded in the affirmative.
Again, the court went through the proposed jury instruc-
tions page by page, asking for comments and any objec-
tions. Defense counsel responded that he had no
objections each and every time when asked. The court
then asked if any other changes needed to be made, to
which defense counsel responded, ‘‘I didn’t see any-
thing,’’ but then he took an exception to the proposed
instructions because they did not include certain
requested language that the court appears to have con-
strued to be a request for an instruction on a lesser
included offense, with which the defendant was not
charged. After a brief recess, the court again reviewed
the jury instructions page by page with counsel. At no
point did defense counsel make a request for an adverse
inference instruction or object to the omission of such
an instruction from the proposed charge.
In his closing argument, defense counsel repeatedly
discussed the fact that the state failed to preserve the
videotape evidence, implying that the state police’s
actions were intentional and malicious. Following clos-
ing arguments, the court instructed the jury and then
asked counsel if they had any exceptions to the instruc-
tions. Defense counsel responded: ‘‘None, Judge,
other—oh. Well, only the one that we previously dis-
cussed [concerning the apparent request for an instruc-
tion on the lesser included offense].’’
It is well settled that, pursuant to Practice Book § 42-
16, to preserve for appeal a claim that the court improp-
erly failed to give a jury instruction on a matter, ‘‘the
defendant must [submit] a written request to charge,
or take exception to the jury instructions when they
are given by the trial court.’’ (Emphasis added; internal
quotation marks omitted.) State v. Faria, 254 Conn.
613, 632, 758 A.2d 348 (2000); see Practice Book § 42-
16. ‘‘The mere fact that an issue was discussed prior
to charging the jury does not preserve the issue for
appellate review.’’ State v. Gonzalez, 106 Conn. App.
238, 245, 941 A.2d 989, cert. denied, 287 Conn. 903, 947
A.2d 343 (2008); accord State v. Darryl W., 303 Conn.
353, 370–71, 33 A.3d 239 (2012) (holding that defense
counsel’s closing argument to jury regarding inoperabil-
ity as affirmative defense was not sufficient to preserve
for appeal claim that court improperly declined to give
instruction on that affirmative defense).
In the present case, the defendant did not submit a
written request to charge, nor did he take an exception
to the charge as given concerning an adverse inference.
Rather, defense counsel indicated on the record that
there was no objection to the instructions and did not
request or provide an adverse inference instruction. It
is not sufficient for preservation of this claim that the
defendant requested an adverse inference instruction
during the hearing on the motion to dismiss and during
cross-examination of a state’s witness. Nor does it mat-
ter that the defendant made arguments in support of an
adverse inference during closing argument. To preserve
his claim of instructional error, the defendant was
required to either submit a written request to charge
or take exception to the jury instructions after they
were given by the court. The defendant did neither.
Therefore, we conclude that the defendant failed to
preserve the issue of instructional error for our review.
Even though the defendant’s unpreserved claim is
arguably of constitutional magnitude; see State v. John-
son, 288 Conn. 236, 275–76, 951 A.2d 1257 (2008) (‘‘deny-
ing or foreclosing the defendant’s access to . . .
evidence may constitute a due process violation [includ-
ing] . . . the failure of the police to preserve evidence
that might be useful to the accused’’ [citations omitted;
emphasis omitted; internal quotation marks omitted]);
his claim is not entitled to review pursuant to State v.
Golding, supra, 213 Conn. 239–40,4 because the defen-
dant waived his claim of instructional error. ‘‘It is well
established in Connecticut that unpreserved claims of
improper jury instructions are reviewable under Gold-
ing unless they have been induced or implicitly
waived.’’ State v. Kitchens, supra, 299 Conn. 468.5 A
defendant waives his constitutional right to challenge
the jury instructions on direct appeal if ‘‘the trial court
provides counsel with a copy of the proposed jury
instructions, allows a meaningful opportunity for their
review, solicits comments from counsel regarding
changes or modifications and counsel affirmatively
accepts the instructions proposed or given.’’ Id., 482–83.
In the present case, the court provided counsel with
a copy of the proposed jury instructions at the first
charging conference on August 29, 2013. The court
reviewed the proposed instructions page by page with
counsel, soliciting comments and objections after each
and every page. Defense counsel then had the opportu-
nity overnight to review the proposed instructions on
their own. The next day, the court again reviewed the
proposed instructions page by page with counsel, not
just once, but twice. Every time the court went through
the proposed instructions with counsel, it solicited com-
ments regarding modifications and objections. Thus,
the court provided counsel with the proposed jury
instructions and a meaningful opportunity to review
them.
Additionally, not only did the court solicit comments
from counsel and afforded counsel multiple opportuni-
ties to object to the proposed instructions, but defense
counsel affirmatively accepted the proposed instruc-
tions at the second charging conference and again after
the instructions were read to the jury. At no time did the
defendant file a written request for an adverse inference
instruction, request an adverse inference instruction
during the charging conferences, or object to or take
an exception to the instructions for failing to include an
adverse inference instruction. Although the defendant
asked generally for an adverse inference instruction
during trial, he never submitted a specific written
instruction concerning an adverse inference. Because
the defendant never took such action, we do not know
what specific language concerning an adverse inference
the defendant was requesting to be included in the
charge. Without knowing the precise language in the
adverse inference instruction that the defendant was
seeking, this court cannot decide if the trial court
abused its discretion by denying that request. We do
know, however, that defense counsel affirmatively
accepted the charge as given after being afforded an
opportunity to review the instructions and to object to
them. Therefore, pursuant to Kitchens, the defendant
waived his claim of instructional error.
The judgment is affirmed.
In this opinion the other judges concurred.
1
After a jury trial on part B of the information, the defendant also was
convicted of having committed the offenses while released on bond in
violation of General Statutes § 53a-40b.
The jury acquitted the defendant of five other charges: one count of assault
in the third degree in violation of General Statutes § 53a-61; one count of
assault of public safety or emergency medical personnel in violation of
General Statutes § 53a-167c (a) (5); one count of threatening in the second
degree in violation of General Statutes § 53a-62 (a) (2); one count of reckless
endangerment in the first degree in violation of General Statutes § 53a-63;
and one count of strangulation in the second degree in violation of General
Statutes § 53a-64bb.
2
In State v. Morales, supra, 232 Conn. 727, our Supreme Court adopted
the balancing test from State v. Asherman, 193 Conn. 695, 724, 478 A.2d
227 (1984), for determining if the defendant has been deprived of his due
process rights under the state constitution. ‘‘[T]he trial court must balance
the totality of the circumstances surrounding the missing evidence, including
the following factors: the materiality of the missing evidence, the likelihood
of mistaken interpretation of it by witnesses or the jury, the reason for its
nonavailability to the defense and the prejudice to the defendant caused by
the unavailability of the evidence.’’ (Internal quotation marks omitted.) State
v. Morales, supra, 727.
3
Although the defendant initially was represented on appeal by assigned
counsel, who filed the defendant’s appellant brief, the defendant subse-
quently dismissed counsel, filed his own reply brief, and elected to proceed
as a self-represented party.
4
‘‘Under Golding, a defendant can prevail on a claim of constitutional
error not preserved at trial claim only if all of the following conditions are
met: (1) the record is adequate to review the alleged claim of error; (2) the
claim is of constitutional magnitude alleging the violation of a fundamental
right; (3) the alleged constitutional violation . . . exists and . . . deprived
the defendant of a fair trial; and (4) if subject to harmless error analysis,
the state has failed to demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt. In the absence of any one of these
conditions, the defendant’s claim will fail.’’ (Internal quotation marks omit-
ted.) State v. Dixon, 318 Conn. 495, 511, 122 A.3d 542 (2015).
5
Although we note that our Supreme Court recently granted certification
to decide whether Kitchens should be overruled in State v. Herring, 151
Conn. App. 154, 94 A.3d 688, cert. granted, 314 Conn. 914, 100 A.3d 849
(2014), the holding in Kitchens presently remains binding upon this court.