State v. Fuller , 178 Conn. App. 575 ( 2017 )

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STATE OF CONNECTICUT v.
TYRIECE S. FULLER
(AC 38166)
Sheldon, Prescott and Pellegrino, Js.
Syllabus
Convicted of the crimes of conspiracy to steal a firearm, conspiracy to
commit larceny in the fourth degree, illegal manufacture, distribution,
sale, prescription or administration of narcotics by a person who is not
drug-dependent, illegal manufacture, distribution, sale, prescription or
administration of narcotics by a person who is not drug-dependent
within 1500 feet of a public elementary school, conspiracy to commit
the illegal manufacture, distribution, sale, prescription or administration
of narcotics by a person who is not drug-dependent and criminal posses-
sion of a firearm, the defendant appealed to this court. He claimed that,
in denying his requests to personally possess a copy of certain discovery
items disclosed by the state pursuant to the applicable rules of practice
(§§ 40-10 and 40-13), the trial court violated his constitutional rights to
counsel, a fair trial and due process, and that the court abused its
discretion and committed structural error. Held:
1. The defendant’s claim that the trial court violated his constitutional rights
in denying his requests to personally possess a copy of the discovery
items was not reviewable, the defendant having failed to properly pre-
serve his claim for review; the record indicated that the defendant,
through counsel, never framed his discovery requests as assertions that
his constitutional rights to due process or the effective assistance of
counsel entitled him to personally possess the discovery documents in
question, and the unpreserved claim was not of constitutional magnitude
so as to warrant review under State v. Golding (213 Conn. 233), as a
criminal defendant has no general constitutional right to discovery and
a criminal defendant’s procedural right to the disclosure of discovery
pursuant to § 40-13 does not give rise in and of itself to a constitu-
tional right.
2. The trial court did not abuse its discretion in denying the defendant’s
discovery requests to personally possess a copy of the discovery items
disclosed by the state; the record demonstrated that the defendant
personally reviewed the state’s disclosure in the presence of his attor-
neys or their agents on multiple occasions, and the defendant did not
provide a compelling reason for his need to personally possess the
discovery materials, other than his repeated claims that the state’s evi-
dence was either being fabricated or withheld.
Argued September 22—officially released December 12, 2017
Procedural History
Substitute information charging the defendant with
the crimes of conspiracy to steal a firearm, conspiracy
to commit larceny in the fourth degree, conspiracy to
commit burglary in the third degree, illegal manufac-
ture, distribution, sale, prescription or administration
of narcotics by a person who is not drug-dependent,
illegal manufacture, distribution, sale, prescription or
administration of narcotics by a person who is not drug-
dependent within 1500 feet of a public elementary
school, conspiracy to commit the illegal manufacture,
distribution, sale, prescription or administration of nar-
cotics by a person who is not drug-dependent and crimi-
nal possession of a firearm, brought to the Superior
Court in the judicial district of Fairfield; thereafter, the
court, Devlin, J., denied the defendant’s motion for
disclosure; subsequently, the court, Blawie, J., denied
the defendant’s motion for disclosure and production;
thereafter, the charges of conspiracy to steal a firearm,
conspiracy to commit larceny in the fourth degree, con-
spiracy to commit burglary in the third degree, illegal
manufacture, distribution, sale, prescription or adminis-
tration of narcotics by a person who is not drug-depen-
dent, illegal manufacture, distribution, sale,
prescription or administration of narcotics by a person
who is not drug-dependent within 1500 feet of a public
elementary school and conspiracy to commit the illegal
manufacture, distribution, sale, prescription or adminis-
tration of narcotics by a person who is not drug-depen-
dent were tried to the jury before Blawie, J.;
subsequently, the court, Blawie, J., granted the defen-
dant’s motion for judgment of acquittal with respect to
the charge of conspiracy to commit burglary in the
third degree; verdict of guilty on the remaining charges;
subsequently, the charge of criminal possession of a
firearm was tried to the court, Blawie, J., judgment
of guilty, from which the defendant appealed to this
court. Affirmed.
Lisa J. Steele, assigned counsel, for the appellant
(defendant).
Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were John Smriga, state’s
attorney, C. Robert Satti, senior assistant state’s attor-
ney, and Ann Lawlor, senior assistant state’s attorney,
for the appellee (state).
Opinion
PELLEGRINO, J. The defendant, Tyriece S. Fuller,
appeals from the judgment of conviction rendered after
a jury trial, of conspiracy to steal a firearm in violation
of General Statutes §§ 53a-48 and 53a-212; conspiracy
to commit larceny in the fourth degree in violation of
General Statutes §§ 53a-48 and 53a-125; illegal manufac-
ture, distribution, sale, prescription or administration
of narcotics by a person who is not drug-dependent in
violation of General Statues §§ 53a-8 and 21a-278 (b);
illegal manufacture, distribution, sale, prescription or
administration of narcotics by a person who is not drug-
dependent within 1500 feet of a public elementary
school in violation of General Statutes §§ 21a-278 (b)
and 21a-278a (b); and conspiracy to commit the illegal
manufacture, distribution, sale, prescription or adminis-
tration of narcotics by a person who is not drug-depen-
dent in violation of General Statutes §§ 53a-48, 21a-277
(a), 21a-278 (b) and 21a-279 (a).1
The defendant claims on appeal that the trial court,
in denying his requests to personally possess a copy of
the discovery items disclosed by the state pursuant to
Practice Book §§ 40-102 and 40-13A:3 (1) violated his
federal and state constitutional rights to counsel,4 a fair
trial and due process; (2) abused its discretion; and (3)
committed structural error. For the reasons set forth
herein, we affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to our resolution of the defendant’s claims. The
defendant was arrested following an extensive investi-
gation by the Statewide Urban Violence Cooperative
Crime Control Task Force (task force), which targeted
the sale of illegal firearms and narcotics in the city of
Bridgeport in 2012. The defendant was implicated in
the investigation after he was involved in the sale of
stolen guns and oxycodone pills to confidential infor-
mants in two separate controlled purchases in June and
July, 2012. On May 22, 2013, the state filed an informa-
tion charging the defendant with multiple offenses.
Attorney Frederic Ury was appointed as the defendant’s
counsel on June 24, 2013, and represented the defendant
throughout the majority of his pretrial proceedings. On
February 19, 2014, Ury moved to withdraw his appear-
ance, citing a breakdown in the attorney-client relation-
ship. On February 26, 2014, the court granted Ury’s
motion to withdraw. On March 3, 2014, Attorney Miles
Gerety filed an appearance on behalf of the defendant.
A six-day jury trial commenced on July 15, 2014. Several
members of the task force, and an alleged coconspira-
tor, Serafettin Senel, testified. The defendant did not
testify. On July 23, 2014, the defendant was found guilty
on the counts tried to the jury and the count tried to
the court.
On August 28, 2014, the defendant filed a handwritten
motion to dismiss Gerety as his counsel. In his motion,
the defendant alleged that Gerety assaulted him,
coerced him into not presenting evidence or testifying
at trial, and conspired with various other individuals
to convict him.5 On October 17, 2014, the court granted
Gerety’s oral motion to withdraw. On October 21, 2014,
Attorney Donald Cretella filed an appearance to repre-
sent the defendant with respect to sentencing. On Janu-
ary 26, 2015, the court sentenced the defendant to a
total effective sentence of eight years of incarceration,
followed by five years of special parole. This appeal
followed. Additional facts and procedural history will
be set forth as necessary.
I
The defendant’s first claim on appeal is that the trial
court violated his federal and state constitutional rights
in denying his requests to personally possess a copy of
the discovery items disclosed by the state pursuant to
Practice Book § 40-10. The defendant contends that
§ 40-10 ‘‘creates a presumption’’ that he is not permitted
to possess a copy of the state’s disclosure in violation
of his constitutional rights. The defendant asserts that
his claim was adequately preserved by his attorneys’
three ‘‘motions to provide redacted reports to [him],
which were denied by the trial court . . . .’’ Alterna-
tively, the defendant seeks review pursuant to State v.
Golding, 213 Conn. 233, 567 A.2d 823 (1989), as modified
by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188
(2015). The state argues that the defendant is not enti-
tled to review of this claim because it is unpreserved
and not constitutional in nature. We conclude that the
defendant’s claim was not properly preserved for our
review.
The following additional facts are necessary for our
resolution of this claim. On July 10, 2013, Ury orally
sought permission from the court to provide the defen-
dant with a redacted copy of a police report. The court,
Devlin, J., denied the motion. On May 28, 2014, Gerety
asked for the court’s permission to provide the defen-
dant with a redacted copy of the state’s disclosure. The
court, Blawie, J., deferred ruling on the motion until
counsel had an opportunity to meet off the record to
try and resolve the disclosure issue. On June 4, 2014,
Gerety filed a motion for disclosure and production
requesting that the state permit defense counsel to pro-
vide a copy of the state’s disclosure to the defendant
pursuant to Practice Book § 40-10. On June 5, 2014,
after conducting a hearing to determine ‘‘whether or
not the defendant should be entitled to have his own
copies of the state’s disclosure materials,’’ Judge Blawie
denied the defendant’s motion.
The record indicates that the defendant, through
counsel, never framed his requests as a constitutional
issue.6 None of the requests contained any assertion
that the defendant’s constitutional rights to due process
or the effective assistance of counsel entitled him to
personally possess discovery documents. Therefore,
appellate review of his unpreserved claim is subject to
State v. Golding, supra, 213 Conn. 239–40. ‘‘Under this
standard, [a defendant] can prevail on a claim of consti-
tutional error not preserved at trial 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 viola-
tion . . . 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.’’ (Emphasis in original; internal quotation marks
omitted.) State v. Biggs, 176 Conn. App. 687, 705–706,
A.3d (2017).
We conclude that this claim is not ‘‘of constitutional
magnitude alleging the violation of a fundamental right
. . . .’’ State v. Golding, supra, 213 Conn. 239. A crimi-
nal defendant has no general constitutional right to
discovery. See Weatherford v. Bursey, 429 U.S. 545, 559,
97 S. Ct. 837, 51 L. Ed. 2d 30 (1977). This court has
previously held that a criminal defendant’s procedural
right to the disclosure of discovery pursuant to Practice
Book § 40-13 ‘‘does not give rise in and of itself to a
constitutional right.’’ State v. Sewell, 95 Conn. App. 815,
822, 898 A.2d 828, cert. denied, 280 Conn. 905, 907 A.2d
94 (2006); see also State v. Coriano, 12 Conn. App. 196,
200, 530 A.2d 197, cert. denied, 205 Conn. 810, 532 A.2d
77 (1987) (‘‘The right under the rules of practice to
statements of witnesses . . . is not a right of constitu-
tional magnitude.’’). Accordingly, this argument fails
under the second prong of Golding. We therefore
decline to review the merits of the defendant’s constitu-
tional claims.
II
The defendant’s second claim on appeal is that the
trial court abused its discretion in denying his requests
to personally possess a copy of the discovery items
disclosed by the state pursuant to Practice Book § 40-
10. We disagree.
The following additional facts are necessary for our
resolution of this claim. In denying Ury’s oral motion
to give the defendant a redacted copy of the police
report, Judge Devlin stated, ‘‘in other cases where I’ve
authorized police reports to go into the correctional
center, what they’re really used for is to find out who the
informants are, who the witnesses are, and sometimes
those people are given a hard time. So, I don’t permit
that. [Ury] will go over the report with you, so you’re
fully informed about what the accusations are against
you, what the police evidence is against you, but I’m
not going to permit the actual physical copy of the
report into the jail. I just don’t do that because we have
had bad situations come out of that.’’
This issue was readdressed during a June 5, 2014
hearing on the defendant’s motion for disclosure and
production. Gerety stated to the court that the motion
was ‘‘driven by the defendant.’’ Gerety also acknowl-
edged that the decision to permit the defendant to pos-
sess discovery under Practice Book § 40-10 was ‘‘largely
[in] the court’s discretion.’’ Gerety represented to the
court that he had visited the defendant in prison on
‘‘numerous occasions.’’7 During these visits, the defen-
dant had the opportunity to read most of the disclosure
but claimed that he had not finished reading it. Gerety
also brought his laptop and reviewed a series of police
videos with the defendant. Gerety stated that they
‘‘spent hours going over line by line . . . writing down
the words that were said.’’ The state objected to the
defendant’s motion, citing its interest in preventing dis-
closed materials from circulating in the jails. The state
also argued that this motion was merely an attempt
to circumvent prior rulings made by the court, which
denied the defendant’s motion to remove counsel and
to represent himself. The state further contended that
the defendant would suffer no prejudice because he
‘‘had full access to . . . the disclosure materials’’
through his attorney. Further, the defendant admitted
that he already possessed many of the documents
through a Freedom of Information Act request. Judge
Blawie denied the defendant’s motion, finding that there
had not been a sufficient change in circumstances to
overturn Judge Devlin’s prior ruling on the same issue.
Judge Blawie, however, accepted an alternative pro-
posed by Gerety, and the defendant was given the
remainder of the day to review the state’s disclosure
in the courthouse.
We review the court’s granting or denial of a discov-
ery request for an abuse of discretion. See In re Jason
M., 140 Conn. App. 708, 737, 59 A.3d 902, cert. denied,
308 Conn. 931, 64 A.3d 330, cert. denied sub nom, Char-
line P. v. Connecticut Dept. of Children & Families,
U.S. , 134 S. Ct. 701, 187 L. Ed. 2d 564 (2013).
‘‘Our role as an appellate court is not to substitute our
judgment for that of a trial court that has chosen one
of many reasonable alternatives.’’ (Internal quotation
marks omitted.) Id., 734. Therefore, ‘‘[i]n determining
whether there has been an abuse of discretion, every
reasonable presumption 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.’’ State
v. Megos, 176 Conn. App. 133, 148, 170 A.3d 120 (2017).
The record demonstrates that the defendant person-
ally reviewed the state’s disclosure in the presence of
his attorneys or their agents on multiple occasions. The
defendant did not provide a compelling reason for his
need to personally possess discovery materials, other
than his repeated claims that the state’s evidence was
either being fabricated or withheld. We therefore con-
clude that the court did not abuse its discretion in
denying the defendant’s requests.8
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant also was convicted by the court of one count of criminal
possession of a firearm in violation of General Statutes § 53a-217 (a) (1).
In addition, the defendant was charged with conspiracy to commit burglary
in the third degree in violation of General Statutes §§ 53a-48 and 53a-103;
however, prior to the close of evidence, the court granted the defendant’s
motion for judgment of acquittal with respect to that charge.
2
Practice Book § 40-10 (a) provides: ‘‘Any materials furnished to counsel
pursuant to this chapter, including statements, reports and affidavits dis-
closed pursuant to Section 40-13A, shall be used only for the purposes of
conducting such counsel’s side of the case or for the performance of his
or her official duties, and shall be subject to such other terms and conditions
as the judicial authority may provide. Without the prior approval of the
prosecuting authority or the court, defense counsel and his or her agents
shall not provide copies of materials disclosed pursuant to Section 40-13A
to any person except to persons employed by defense counsel in connection
with the investigation or defense of the case.’’
3
Practice Book § 40-13A provides: ‘‘Upon written request by a defendant
and without requiring any order of the judicial authority, the prosecuting
authority shall, no later than forty-five days from receiving the request,
provide photocopies of all statements, law enforcement reports and affida-
vits within the possession of the prosecuting authority and his or her agents,
including state and local law enforcement officers, which statements, reports
and affidavits were prepared concerning the offense charged, subject to the
provision of Sections 40-10 and 40-40 et seq.’’
4
The defendant claims that Practice Book § 40-10 ‘‘compromised [his]
relationship[s] with his assigned counsel’’ because they could not provide
him with a copy of the state’s disclosure, which prevented him from assisting
in his own defense.
5
The defendant’s claims were never substantiated.
6
The defendant was represented by appointed counsel for all relevant
portions of the underlying criminal matter. We note that on numerous occa-
sions, the defendant, while represented by Ury, Gerety and Cretella, and
against their advice, filed numerous handwritten motions and spoke out in
court on his own behalf. Some of these motions and in-court statements
contained allegations of constitutional violations. Furthermore, on June 10,
2014, the defendant wrote to the court indicating that he intended to act
as cocounsel during his trial proceedings. The court correctly held that the
defendant could not file his own motions or act as cocounsel. Our state does
not recognize a defendant’s constitutional right to hybrid representation.
See State v. Gethers, 197 Conn. 369, 384 n.17, 386–94, 497 A.2d 408 (1985);
see also State v. Flanagan, 293 Conn. 406, 418, 978 A.2d 64 (2009) (‘‘The right
to counsel and the right to self-representation present mutually exclusive
alternatives. A criminal defendant has a constitutionally protected interest
in each, but since the two rights cannot be exercised simultaneously, a
defendant must choose between them.’’ [Internal quotation marks omitted.]).
Therefore, we will not consider the defendant’s motions and in-court state-
ments for purposes of deciding whether his claim was properly preserved.
7
Gerety also represented to the court that Ury had his investigator go
over everything in his file with the defendant.
8
In light of our conclusion that the court did not improperly prevent the
defendant from personally possessing discovery materials, we need not
reach the defendant’s claim that any error was structural in nature.