State v. Beverley , 169 Conn. App. 689 ( 2016 )

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STATE OF CONNECTICUT v. MAURICE BEVERLEY
(AC 38432)
Lavine, Sheldon and Mullins, Js.
Argued September 23—officially released December 13, 2016
(Appeal from Superior Court, judicial district of New
Haven, Vitale, J.)
Laila M. G. Haswell, senior assistant public defender,
with whom, on the brief, was Lauren Weisfeld, chief
of legal services, for the appellant (defendant).
Nancy L. Walker, deputy assistant state’s attorney,
with whom, on the brief, were Michael Dearington,
former state’s attorney, and Stacey Haupt Miranda,
senior assistant state’s attorney, for the appellee (state).
Opinion
LAVINE, J. The defendant, Maurice Beverley, appeals
from the judgment of conviction, rendered after a jury
trial, of one count of felony murder in violation of Gen-
eral 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 General Statutes § 53a-217 (a). On appeal,
the defendant claims that the trial court abused its
discretion in (1) failing to conduct an adequate investi-
gation into alleged juror bias, and (2) limiting the defen-
dant’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 ‘‘some-
body 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 Bag-
ley 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, rob-
bery in the first degree, and criminal possession of a
firearm. At trial, Pearson testified that she was unfamil-
iar 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
floor and [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 imprison-
ment. This appeal followed. Additional facts will be set
forth as needed.
I
First, the defendant claims that the trial court abused
its discretion in failing to conduct an adequate investiga-
tion into alleged juror bias, which violated his right to
an impartial jury guaranteed by the sixth and fourteenth
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 neverthe-
less 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 defen-
dant’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
on this case and that they needed information regarding
the case. R.A. told the caller that he was prohibited
from talking about the case, and he hung up the phone.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., but defense counsel declined to ask R.A. any ques-
tions. 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
object to the procedure or suggest that any other action
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
question the juror. Defense counsel declined to question
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 ‘‘con-
cerned’’ 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
impartial and that there was no indication that anything
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 disagree-
ment with this assessment.
On appeal, the defendant argues that the court abused
its discretion when it declined ‘‘to ascertain how much
the jurors’ feelings of nervousness or fear . . .
impact[ed] their deliberations and verdict.’’ Particularly
with regard to the court’s voir dire of R.A., the defendant
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 con-
tends that defense counsel’s ‘‘comments did not consti-
tute a waiver of the jury misconduct issue.’’ We do
not agree.
We set forth the applicable standard of review. ‘‘[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
have adopted the definition of a valid waiver of a consti-
tutional right as the intentional relinquishment or aban-
donment 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 determin-
ing 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 constitu-
tional requirements rather than on observance of analo-
gous 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
the conduct of the trial, the defendant is deemed bound
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 ineffec-
tiveness, 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’’ [inter-
nal 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
expresses satisfaction with an issue at trial, claims aris-
ing from that issue are deemed waived and may not be
reviewed on appeal.’’ (Internal quotation marks omit-
ted.) 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 con-
duct 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
after it conducted its own voir dire, but defense counsel
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 coun-
sel 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
dismissed juror for juror misconduct). After the individ-
ualized 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 cir-
cumstances, we conclude that he consented to and
expressed satisfaction with the issue. See State v. Fos-
ter, supra, 293 Conn. 338–39 (wherein counsel waived
claim by consenting to and expressing satisfaction with
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, we conclude that defense counsel
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,
defense counsel waived any claim that the court should
have conducted an ‘‘investigation’’5 of the call to R.A.’s
home. After stating that he thought ‘‘a quick investiga-
tion 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 satisfac-
tion 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
of alleged jury bias, we will not entertain the defendant’s
request to review his claim pursuant to Golding.6 ‘‘[I]n
the usual Golding situation, the defendant raises a claim
on appeal [that], while not preserved at trial, at least was
not waived at trial. . . . We generally do not review
unpreserved, waived claims.’’ (Citation omitted; inter-
nal quotation marks omitted.) Id. ‘‘Therefore, a defen-
dant 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.2d 872 (2007). ‘‘To reach a contrary conclusion would
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
abused its discretion when it sustained the state’s objec-
tion 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]
because she [was] afraid of the other people who [lived]
on the first floor.’’ The state argued that because Pear-
son testified that she knew neither the people who lived
on the first floor nor the ‘‘other’’ people who were on
the porch the night of the murder, there was no evidence
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.’’
The defendant argues on appeal that the court abused
its discretion in determining that the question was irrel-
evant. 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
the first floor tenants. Her fear of the first floor tenants,
the defendant argues, was relevant to the defendant’s
defense because it explained why Pearson continuously
lied to the police throughout the investigation. He con-
tends that it also tended to explain why Pearson may
have lied on cross-examination about not knowing who
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, includ-
ing 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 rele-
vant 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,
including cross-examination, [were] so severe as to vio-
late [the defendant’s rights under] the confrontation
clause of the sixth amendment . . . .’’7 (Internal quota-
tion 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
been an abuse of discretion, every reasonable presump-
tion 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).
‘‘The sixth amendment to the [United States] constitu-
tion 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 func-
tion 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 effec-
tive 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
be elicited through cross-examination.’’ (Citations omit-
ted; emphasis omitted; internal quotation marks omit-
ted.) State v. Andrews, 248 Conn. 1, 11, 726 A.2d 104
(1999).
‘‘Relevant evidence is evidence that has a logical ten-
dency 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 irrele-
vant or too remote if there is such a want of open and
visible connection between the evidentiary and princi-
pal facts that, all things considered, the former is not
worthy or safe to be admitted in the proof of the latter.’’
(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 pre-
sumption should be made in favor of the correctness
of the court’s ruling in determining whether there has
been an abuse of discretion.’’ (Internal quotation marks
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 coun-
sel’s inquiry was irrelevant and precluding it on that
basis.8 An abuse of discretion was not manifest when
the trial court ruled that defense counsel failed to estab-
lish a visible connection between the proffered question
and the principal facts in the record. See State v. Davis,
supra, 298 Conn. 23. Defense counsel presented no evi-
dence that Pearson knew the people on the front porch,
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 quar-
rel with the trial court’s conclusion that the question did
not have a logical tendency to aid the jury in determining
Pearson’s motive or credibility, rendering the question
irrelevant. See id.
Because we conclude that the court reasonably could
have found that the evidence was not relevant, we con-
clude that the court did not abuse its discretion when
it precluded defense counsel from questioning Pearson
about whether she knew of any disputes between Mary
Brooks and the first floor tenants. Because we find that
the court did not abuse its discretion on the evidentiary
issue, the defendant’s claim that the trial court’s restric-
tion on his cross-examination of Pearson violated his
constitutional right to confrontation also fails. See State
v. Annulli, supra, 130 Conn. App. 582.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In the transcript, apart from the defendant, Eric Brooks, and Pearson,
the people on the porch the night of the murder were referred to as the
‘‘other’’ people.
2
To protect the privacy of the juror, we refer to him by his initials. See
State v. Newsome, 238 Conn. 588, 624 n.12, 682 A.2d 972 (1996).
3
The record is silent as to who made the call and what the caller’s
objective was.
4
The following colloquy ensued:
‘‘[Defense Counsel]: No, your Honor, other than I guess I am—I mean,
we heard from the last juror . . . that there was some follow-up conversa-
tions, which is not surprising. We heard from [one of the jurors] that people
were nervous. Obviously, I’m concerned about that, but I’m not too con-
cerned about any of these individuals being affected. They all said [they]
weren’t. 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.’’
‘‘[The Court]: Investigation by who[m]?
‘‘[Defense Counsel]: Well, I don’t know.
‘‘[The Court]: And to what end? . . . There may be an investigation when
this is all over.
‘‘[Defense Counsel]: Yeah. Yeah. I just—it would be nice if we could—
but I guess we can’t indicate that it was no one who had anything to do
with this case.
‘‘[The Court]: I have no idea.
‘‘[Defense Counsel]: Right, I understand.
‘‘[The Court]: And neither do you and neither does [the state].
‘‘[Defense Counsel]: I understand and I—other than that, the jurors have
indicated that they can proceed and I think they should.’’
5
At no time did defense counsel articulate (1) what type of investigation
he sought, (2) who he thought should conduct the investigation, or (3) when
he thought the investigation should take place.
6
The defendant also asks that we review the claim under the plain error
doctrine. ‘‘[J]ust as a valid waiver calls into question the existence of a
constitutional violation depriving the defendant of a fair trial for the purpose
of Golding review, a valid waiver also thwarts plain error review of a claim.
. . . [T]he [p]lain [e]rror [r]ule may only be invoked in instances of forfeited-
but-reversible error . . . and cannot be used for the purpose of revoking
an otherwise valid waiver. This is so because if there has been a valid waiver,
there is no error for us to correct. . . . The distinction between a forfeiture
of a right (to which the [p]lain [e]rror [r]ule may be applied) and a waiver
of that right (to which the [p]lain [e]rror [r]ule cannot be applied) is that
[w]hereas forfeiture is the failure to make the timely assertion of a right,
waiver is the intentional relinquishment or abandonment of a known right.’’
(Citation omitted; internal quotation marks omitted.) Mozell v. Commis-
sioner of Correction, 291 Conn. 62, 70–71, 967 A.2d 41 (2009) (declining to
review petitioner’s claim under either Golding or the plain error doctrine
because petitioner waived his claim).
7
As the state correctly notes, in some cases, the reviewing court will first
determine whether the trial court’s limitation on cross-examination violated
the defendant’s constitutional rights before considering whether the trial
court abused its discretion in its evidentiary ruling. In accordance with our
Supreme Court’s precedent, we ‘‘may address the claims in whichever order
most readily addresses the matter at hand.’’ State v. Annulli, 309 Conn. 482,
492 n.6, 71 A.3d 530 (2013); cf. State v. Davis, 298 Conn. 1, 10–11, 1 A.3d
76 (2010). We choose to address the evidentiary ruling first.
8
Even if we were to conclude that the trial court abused its discretion,
which we do not, the limitation on cross-examination was not so severe as
to deprive the defendant of his right to confront witnesses guaranteed to
him by the sixth amendment. State v. Annulli, supra, 130 Conn. App. 580.
The defendant argues that he was precluded from fully exploring Pearson’s
credibility. Defense counsel, however, was able to elicit through Pearson
on cross-examination, and subsequently argue in summations, that (1) she
claimed to not know the people who were on the porch that night even
though she ‘‘hung out’’ with them on the porch numerous times prior to the
shooting, (2) she saw the ‘‘other’’ people on the porch purchase drugs in
front of Mary Brooks’ house prior to the night of the murder, (3) she did
not see who called Bagley that night, (4) she was the last person to use the
defendant’s phone, (5) she lied to police on two separate occasions, (6) she
spoke with Bagley about purchasing drugs that night in front of people
whom she claimed to not know, (7) she avoided speaking with detectives
for a number of weeks, (8) she knew that the detectives wanted her to
identify the defendant and Eric Brooks when she identified them at the
police station, and (9) she had charges pending against her in relation to
the murder and was testifying for the prosecution because she wanted to
return home to see her son. In short, there was significant evidence on the
record to support defense counsel’s arguments in summation that Pearson
had a ‘‘bias, prejudice and interest’’ in the outcome of the case and that she
lied because she was afraid of someone else. See State v. Kehayias, 162
Conn. App. 310, 328, 131 A.3d 1200 (2016) (‘‘[b]ecause the court in the
present case merely limited, and did not preclude, inquiry into a specific
motive that already had been robustly developed on cross-examination, the
defendant’s right of confrontation was not violated’’).