State v. Dixon

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
STATE OF CONNECTICUT v. RANDY DIXON
(SC 19349)
Rogers, C. J., and Palmer, Zarella, Eveleigh, Espinosa and Robinson, Js.
Argued March 16—officially released September 8, 2015
Emily Wagner, assistant public defender, for the
appellant (defendant).
Laurie N. Feldman, special deputy assistant state’s
attorney, with whom, on the brief, were John Smriga,
state’s attorney, and Joseph Corradino, senior assistant
state’s attorney, for the appellee (state).
Opinion
ESPINOSA, J. The defendant, Randy Dixon, was con-
victed, following a jury trial, of murder in violation of
General Statutes § 53a-54a (a). On appeal,1 the defen-
dant claims that: (1) the trial court had an obligation
to provide, sua sponte, a jury instruction on the risk of
misidentification by an eyewitness pursuant to State v.
Ledbetter, 275 Conn. 534, 579, 881 A.2d 290 (2005), cert.
denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537
(2006); (2) the scope of the trial court’s inquiry into the
allegation of juror bias violated his constitutional right
to a fair trial by an impartial jury because the court
only interviewed the foreperson and one juror, J.S.,
about whether they had safety concerns following a
court attendee’s contact with J.S., and the safety con-
cerns could have biased the jury against him2; and (3)
his exclusion from the hearing concerning possible
juror bias was a violation of his constitutional rights to
be present at a critical stage of the proceedings, to
counsel, and to be presumed innocent. We affirm the
judgment of the trial court.
The jury reasonably could have found the following
facts. At approximately 1 a.m. on December 3, 2010,
the victim, Lawrence Acevedo, was visiting with friends
on Capitol Avenue in Bridgeport. He was on a second
floor porch when a car playing loud music pulled up
and stopped across the street. The victim shouted at
the car to turn down the volume of the music and the
defendant, who was driving the vehicle, responded, ‘‘I’ll
be right back,’’ and sped away.
A few minutes later, the car returned, still playing
loud music. The victim ran downstairs toward the car
and the defendant began shooting at the victim. During
a break in the shooting, the victim ran to the driver’s
side of the car and punched the window, unsuccessfully
trying to break it. He then went around the back of the
car to the passenger side and the defendant fired a few
more shots at him. To avoid the shots coming through
the vehicle, the victim ducked behind the car.
The defendant got out of the car and confronted the
victim. The defendant shot the victim in the knee and
the victim fell. The defendant then stood over the victim
and again shot him, before getting into his car and
driving away. The autopsy on the victim showed that
he bled to death as a result of multiple gunshot wounds.
The court rendered judgment in accordance with the
jury’s verdict, and the defendant appealed. Additional
facts will be set forth as necessary.
I
We first consider the defendant’s claim that the trial
court had an obligation to provide sua sponte a jury
instruction on the risk of misidentification by an eyewit-
ness pursuant to Ledbetter. The following additional
facts are relevant to this claim. In the course of the
investigation into the victim’s murder, the police
received information that Ervin Moses, a resident of
Capitol Avenue, had witnessed the murder. The police
asked Moses to come to the police station, which he
did, and, while there, he was shown a photographic
array and asked to make an identification of the perpe-
trator. It is undisputed that ‘‘[t]he officer who inter-
viewed . . . Moses began the identification procedure
by telling [him] that the perpetrator may or may not be
in the photo[graphic] array . . . .’’ Moses identified the
defendant from a photographic array of suspects.
The defendant’s trial began on May 9, 2012. On Friday,
May 11, 2012, the state informed the court that it would
expect to rest its case on the following Monday, May
14, 2012. The court considered holding the charging
conference that morning, May 11, 2012, but defense
counsel stated that he needed the weekend to do some
research. The court and both sides then agreed that the
charging conference would take place on May 14, 2012,
with the charge to the jury taking place on Tuesday,
May 15, 2012.
On May 14, 2012, the charging conference was held
and the court subsequently outlined what transpired at
that conference on the record. The court invited counsel
to add anything that it had missed. The court stated:
‘‘There will be a charge on identification and . . . I
gave my charge to each of the attorneys to review if
they had any questions on it.’’ After the court finished
summarizing the charging conference, the court asked
if either counsel had anything to add. Defense counsel
responded, ‘‘Nothing to add, Your Honor.’’
On Tuesday, May 15, 2012, the court gave the charge
to the jury. Prior to bringing the jury into the courtroom,
the court asked both counsel if they were ready and
defense counsel replied, ‘‘Yes, Your Honor.’’ In the jury
charge, the court provided an instruction on identifica-
tion of the defendant by witnesses and included factors
that the jury should consider in determining the reliabil-
ity of a witness’ identification. After the court finished
its instructions to the jury, defense counsel stated that
he had ‘‘no exceptions.’’
It is undisputed that the defendant did not request
an instruction regarding misidentification pursuant to
Ledbetter, and that the court did not give such an
instruction. Accordingly, we conclude that this issue
was not preserved because the defendant did not raise
it in the trial court. ‘‘This court is not bound to consider
claims of law not made at the trial. . . . Th[is] serve[s]
to alert the trial court to potential error while there is
still time for the court to act. . . . [B]ecause the sine
qua non of preservation is fair notice to the trial court
. . . the determination of whether a claim has been
properly preserved will depend on a careful review of
the record to ascertain whether the claim on appeal
was articulated below with sufficient clarity to place
the trial court on reasonable notice of that very same
claim.’’ (Internal quotation marks omitted.) State v.
Taylor G., 315 Conn. 734, 769–70, 110 A.3d 338 (2015).
In Ledbetter, we set forth the rule that courts must
‘‘incorporate an instruction in the charge to the jury,
warning the jury of the risk of misidentification, in those
cases where: (1) the state has offered eyewitness identi-
fication evidence; (2) that evidence resulted from an
identification procedure; and (3) the administrator of
that procedure failed to instruct the witness that the
perpetrator may or may not be present in the proce-
dure.’’ State v. Ledbetter, supra, 275 Conn. 579. We
stated that this instruction is not constitutionally
required; id., 577; a point which the defendant in the
present case acknowledges. Instead, the requirement
that a Ledbetter instruction be given under the appro-
priate circumstances is a prophylactic rule that we
established to ‘‘mitigat[e] the risks of misidentification
in the courts of this state.’’ Id.
In the present case, the defendant has conceded that
he did not request that the trial court give a Ledbetter
instruction. We conclude, therefore, that the defendant
did not preserve this claim.3 Because the present case
is not one in which ‘‘the administrator of that procedure
failed to instruct the witness that the perpetrator may or
may not be present in the procedure’’; id., 579; Ledbetter
would not apply and the court had no obligation to give
sua sponte the Ledbetter instruction.
II
We next consider the defendant’s claim that the scope
of the trial court’s inquiry into the allegations of juror
bias violated his constitutional right to a fair trial by
an impartial jury. The following additional facts are
necessary for our resolution of this claim. The defen-
dant’s trial began on May 9, 2012. When the jurors were
excused for lunch, the court stated that they were not
to speak about the case with anyone and that if anyone
tried to talk to them, they should report it immediately.
The court reiterated this warning throughout the trial
and deliberations. The jury began deliberating on May
15, 2012. On May 16, 2012, the court received notifica-
tion from the jury that it could not reach a unanimous
decision and inquired about what it should do next.
The court called the jurors into the courtroom and told
them that it is ‘‘not unusual for jurors not to reach a
unanimous verdict the first day.’’ The court excused
the jurors for lunch and deliberations continued that
afternoon.
The following day, May 17, 2012, the court received
further correspondence from the jury that it could not
reach a unanimous verdict. The court called the jury
into the courtroom and provided it with additional
instructions, encouraging each juror to listen to each
juror’s opinion with an open mind. Later that day, the
jury sent a third note to the court stating that it could
not reach a unanimous verdict. In response, the court
gave the jury further instructions, and then dismissed
it for the day, with the instruction that it would return
to deliberations in the morning.
On May 18, 2012, the court stated that an issue had
arisen which required it to conduct an in camera hear-
ing. The court stated that the hearing would include
defense counsel, the prosecutor, the court, and the
clerk. In the hearing, the court stated that it had received
a note from the jury, which read, ‘‘One of the court
attendees approached/spoke to one of the jur[ors] at a
public place yesterday, 5/17 late night. The one jur[or]
told that individual . . . the jury cannot speak to any-
one. Is this an issue? *We have safety concerns.*’’ The
court also noted that there had been animosity in the
courtroom between attendees supporting the defendant
and attendees there on behalf of the victim. The court
then stated that the note had not been signed by the
foreperson and that the first step in the hearing would
be to bring in the foreperson.
After announcing that course of action, the marshal
indicated that the jurors were knocking on the door.
The jury had delivered a note stating, ‘‘We the jury
have reached a unanimous decision. How should we
proceed?’’ The court expressed concern that the contact
between a court attendee and a juror could have influ-
enced the verdict and decided that the court should
interview each of the jurors. After discussion, both sides
agreed that it would be best to determine from the
note’s author, before the verdict was announced, if the
other jurors knew about the contact. Both sides raised
concerns about the risk of the court tainting the jury
if the other jurors were unaware of the contact and
the note.
The court first brought in the foreperson, K.S., who
indicated, under oath, that J.S. was the author of the
note and that she had shared with the rest of the jurors
that she had contact with a court attendee. K.S. stated
that the jurors pondered what to do about the contact
and decided to inform the court after remembering the
court’s instruction to inform it if anyone contacted any
of them. K.S. then stated that the note about the contact
had no effect on his vote in the verdict. When the court
asked K.S. if he thought that the contact affected other
jurors’ votes in the verdict, he responded, ‘‘I’m very
observant and . . . we went on deliberating and I kind
of just tuned into the different comments that are being
made and it did not. The only thing that was even prior
to her letting us know, is just a safety issue and that
may have prompted her to actually say it.’’ K.S. then
indicated that the jurors had been discussing the types
of safety issues that might arise when serving on a jury
in a murder case. K.S. then described the nature of the
contact between J.S. and the court attendee as J.S. had
described it.
The court next interviewed J.S., also under oath. She
described the contact she had with the court attendee
as follows: ‘‘After I left here, my phone got wet here,
so I went to Trumbull Mall AT&T and I’m talking to the
lady fixing my phone . . . and I happened to glance
that way, and there was a black man standing at the
corner. He approached me and he said hi. I said hi, and
then I say to him, do I know you? He said, no, but I
know you. I say, really? He say, yeah, you’re one of the
jurors. And I said to him, you know I can’t be talking
to you. I turned around and continued to look at the
lady I was talking to. He said, bye, and walked away.’’
J.S. then assured the court that the contact did not
affect her verdict and that she was raising the issue
only because she was instructed to inform the court of
any contact. She said that she did not feel afraid after
the contact and that safety had not been a concern of
hers during the trial. She did say, however, that ‘‘the
other people feel they a little scared, the same way I
got seen and this guy approach me at the mall, maybe
one of them can be approached.’’
J.S. further explained that the jurors had discussed
the contact and written the note to the court about it
but were uncertain whether to send it out. They left it
on the table while they continued to deliberate. After
reaching a verdict, they sent out the note about the
contact. J.S. also stated that none of the other jurors
expressed ‘‘out loud’’ anything that indicated that her
contact with the court attendee had influenced his or
her vote.
The court proceeded to interview under oath each
of the remaining jurors. Each juror stated that, although
he or she was aware of the contact between J.S. and
the court attendee, it did not influence his or her vote
in reaching the verdict and that it did not seem to
influence the votes of the other jurors. Several jurors
also stated that it did not affect their ability to be fair
and impartial. After the court questioned each juror,
both the prosecutor and defense counsel were given
the opportunity to ask any additional questions.
Having heard from all of the jurors, the court then
heard arguments in open court as to whether the court
could make a finding that there had been no violation
of the integrity of the jury. The prosecutor argued that
the information received during the hearing confirmed
that the jury was impartial and that J.S.’s contact with
the court attendee did not affect the verdict. The prose-
cutor then requested that the court receive the verdict.
Defense counsel moved for a mistrial, arguing that the
jury had reported three different times that it could not
reach a unanimous verdict, including at the end of the
day prior to learning about the contact, and then, after
hearing about the contact, it quickly reached a verdict.
He argued that the fact that the jury had been dead-
locked, combined with the assertion that there had been
some safety concerns by members of the jury, indicated
that the jury seems to have been influenced by the
contact in reaching its verdict.
The court denied the defendant’s motion for a mistrial
because the conversation between J.S. and the court
attendee was brief and because ‘‘it was clear to the
court that [the jurors] were not influenced by the mini-
mal contact . . . .’’ The court then called the jury into
the courtroom to deliver its verdict.
On appeal, the defendant argues that the safety con-
cerns expressed by the jurors could have biased their
votes in reaching their verdict. The defendant contends
that this claim was preserved by counsel’s motion for
a mistrial following the hearing into the contact. The
state argues that the trial court properly exercised its
discretion in setting the scope of the hearing. Assuming,
without deciding, that the defendant preserved this
claim with his motion for a mistrial, we conclude that
the court did not abuse its discretion when it established
the form and scope of the questions that it used to
inquire of the jurors whether the contact between J.S.
and the court attendee affected their verdict, to deter-
mine any safety concerns that the jurors had, and to
confirm that all jurors could return a fair and impar-
tial verdict.
We review claims about the form and scope of an
inquiry into possible juror bias for abuse of discretion.
State v. Brown, 235 Conn. 502, 529, 668 A.2d 1288 (1995).
‘‘[A] trial court must conduct a preliminary inquiry, on
the record, whenever it is presented with any allega-
tions of jury misconduct in a criminal case, regardless
of whether an inquiry is requested by counsel. Although
the form and scope of such an inquiry lie within a trial
court’s discretion, the court must conduct some type
of inquiry in response to allegations of jury misconduct.
That form and scope may vary from a preliminary
inquiry of counsel, at one end of the spectrum, to a full
evidentiary hearing at the other end of the spectrum,
and, of course, all points in between. Whether a prelimi-
nary inquiry of counsel, or some other limited form of
proceeding, will lead to further, more extensive, pro-
ceedings will depend on what is disclosed during the
initial limited proceedings and on the exercise of the
trial court’s sound discretion with respect thereto.’’
(Footnote omitted.) Id., 526.
‘‘We recognize that the trial judge has a superior
opportunity to assess the proceedings over which he
or she personally has presided . . . and thus is in a
superior position to evaluate the credibility of allega-
tions of jury misconduct, whatever their source. There
may well be cases, therefore, in which a trial court
will rightfully be persuaded, solely on the basis of the
allegations before it and the preliminary inquiry of coun-
sel on the record, that such allegations lack any merit.
In such cases, a defendant’s constitutional rights may
not be violated by the trial court’s failure to hold an
evidentiary hearing, in the absence of a timely request
by counsel.’’ (Citations omitted.) Id., 527–28.
‘‘Potential juror bias is considered akin to other mis-
conduct that similarly might affect a juror’s impartiality
. . . .’’ State v. Osimanti, 299 Conn. 1, 32, 6 A.3d 790
(2010). ‘‘With respect to allegations that a juror poten-
tially may be biased, [e]ven where a juror has formed
some preconceived opinion as to the guilt of an accused,
a juror is sufficiently impartial if he or she can set aside
that opinion and render a verdict based on evidence in
the case. . . . Only where a juror has indicated a
refusal to consider testimony and displayed evidence
of a closed mind concerning [the] defendant’s inno-
cence can it be said that [the court] abused its discretion
in refusing to [remove] a juror [from the panel]. . . . It
is enough if a juror is able to set aside any preconceived
notions and decide the case on the evidence presented
and the instructions given by the court. . . . While we
recognize that a juror’s assurances that he or she is
equal to the task are not dispositive of the rights of an
accused . . . we are aware of the broad discretion of
a trial judge which includes his determination of the
credibility to be given a juror’s statement in this con-
text. . . .
‘‘The trial court’s assessment of the juror’s assur-
ances, while entitled to deference, must be realistic and
informed by inquiries adequate in the context of the
case to ascertain the nature and import of any potential
juror bias. . . . The inquiry need not, however, be
lengthy, so long as the questions, viewed in the context
of the juror’s answers, are adequate for the trial court
to determine that the juror can indeed serve fairly and
impartially. . . . The nature and quality of the juror’s
assurances is of paramount importance; the juror must
be unequivocal about his or her ability to be fair and
impartial.’’ (Citations omitted; internal quotation marks
omitted.) Id., 34–36.
In the present case, the defendant argues that the
trial court abused its discretion by improperly placing
on him the burden of demonstrating that he was
deprived of his right to an impartial jury. As we have
noted in previous cases, there is an inconsistency in
our case law as to which party bears this burden. See,
e.g., id., 38 n.32. As in previous cases, we decline to
resolve this issue in the present case. Even if we were
to assign the burden of proof to the state, the evidence
supports the trial court’s finding that the alleged juror
bias did not deprive the defendant of his right to an
impartial jury. The court conducted a hearing in which
each juror was interviewed under oath. Both the prose-
cutor and defense counsel were present and the court
solicited input from both as to how to conduct the
inquiry. After the court asked its questions of each juror,
the court then provided counsel with the opportunity
to ask any further questions they may have had.
In its questioning, the court took care to ensure that
the jurors could be fair and impartial, despite the con-
tact. The court asked whether the contact influenced
each juror’s vote in the verdict and each juror assured
the court that it did not. Each juror also stated that
knowledge of the contact did not seem to affect the
votes of other jurors. Several jurors also indicated that
the contact did not affect their ability to be fair and
impartial in reaching their verdict.
The court also questioned K.S. and J.S. about safety
concerns raised by the jurors. Both seemed to indicate
that, although the jurors had raised questions about the
safety issues involved in serving on a jury in a murder
trial, none raised any specific concerns about this case
in particular. Because the court conducted an inquiry
upon learning of potential juror bias and determined
that the contact did not affect the jurors’ votes in the
verdict, we conclude that the court did not abuse its
discretion in the manner in which it conducted the
hearing pursuant to State v. Brown, supra, 235 Conn.
526.
The defendant argues that we should exercise our
supervisory authority to require a specific scope of
questioning when there are concerns about juror bias
due to fear, as we did in State v. Santiago, 245 Conn.
301, 338, 715 A.2d 1 (1998), where there were allegations
of racial bias on the part of a juror. We stated in Santi-
ago that, ‘‘[a]llegations of racial bias on the part of a
juror are fundamentally different from other types of
juror misconduct because such conduct is, ipso facto,
prejudicial and because the judicial system is not
exempt from the unfortunate reality of racial preju-
dice.’’ (Footnote omitted.) Id., 336. Allegations of fear
do not give rise to the same concerns about prejudice
as those raised by allegations of racial bias and, there-
fore, an inquiry pursuant to State v. Brown, supra, 235
Conn. 526, is sufficient.
III
Lastly, the defendant’s third claim is that his exclu-
sion from the hearing addressing possible juror bias
was a violation of his constitutional rights to be present
at a critical stage of the proceedings as required by due
process, to counsel, and to be presumed innocent. The
defendant acknowledges that defense counsel did not
object to his exclusion from the hearing, and seeks
review pursuant to State v. Golding, 213 Conn. 233,
239–40, 567 A.2d 823 (1989). The state argues that the
trial court properly excluded the defendant from the
hearing. We conclude that the hearing was not a critical
stage of the proceedings, and, therefore, the defendant’s
due process right to be present was not violated by
his exclusion from it.4 We further conclude that the
defendant’s right to counsel was not violated because
the defendant was informed of the nature of the inquiry
prior to its start and defense counsel was present at
the hearing. We finally conclude that the defendant’s
right to be presumed innocent was not violated because
the jury had reached its verdict prior to the commence-
ment of the hearing and because there is no evidence
that the defendant was excluded from the hearing due
to safety concerns expressed by the jurors.
The following additional facts are relevant to this
claim. On May 18, 2012, the court stated that an issue
had arisen which required it to conduct an in camera
hearing. The state placed on the record that the court
had shared with it and defense counsel the reason for
the hearing and both sides agreed as to who would be
present. The court also ensured that the defendant had
been informed of the information. The following collo-
quy then occurred:
‘‘[The Prosecutor]: I understand [defense counsel]
has had occasion to discuss all this information with
his client who’s been fully advised of the nature and
scope of the inquiry.
‘‘[Defense Counsel]: That is correct.
‘‘The Court: Is that right . . . ?
‘‘[The Defendant]: Yes.
‘‘The Court: And you accept that, is that right, sir?
‘‘[The Defendant]: Yes.’’
The court then directed the jury to stop deliberating.
At the commencement of the hearing, the court
acknowledged that the defendant was not present but
that defense counsel was in attendance and that the
defendant would have access to the transcript of the
hearing.
Whether the defendant’s constitutional rights were
violated by his exclusion from the hearing presents a
question of law and, accordingly, we exercise plenary
review. See State v. Lopez, 271 Conn. 724, 731, 859 A.2d
898 (2004). Under Golding, ‘‘a defendant can prevail on
a claim of constitutional 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 violation . . . exists and . . . deprived
the defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harm-
lessness of the alleged constitutional violation beyond
a reasonable doubt. In the absence of any one of these
conditions, the defendant’s claim will fail. The appellate
tribunal is free, therefore, to respond to the defendant’s
claim by focusing on whichever condition is most rele-
vant in the particular circumstances.’’ (Emphasis omit-
ted; footnote omitted.) State v. Golding, supra, 213
Conn. 239–40; see In re Yasiel R., 317 Conn. 773, 781,
A.3d (2015) (modifying third prong of Golding).
It is undisputed that a defendant has a constitutional
right to be present at all critical stages of the trial.
United States v. Gagnon, 470 U.S. 522, 526, 105 S. Ct.
1482, 84 L. Ed. 2d 486 (1985). ‘‘The constitutional right
to presence is rooted to a large extent in the [c]onfronta-
tion [c]lause of the [s]ixth [a]mendment . . . but . . .
[that] right is protected by the [d]ue [p]rocess [c]lause
in some situations where the defendant is not actually
confronting witnesses or evidence against him.’’ (Cita-
tion omitted.) Id. ‘‘In judging whether a particular seg-
ment of a criminal proceeding constitutes a critical
stage of a defendant’s prosecution, courts have evalu-
ated the extent to which a fair and just hearing would
be thwarted by [the defendant’s] absence or whether
his presence has a relation, reasonably substantial, to
the [fullness] of his opportunity to defend against the
charge.’’ (Internal quotation marks omitted.) State v.
Lopez, supra, 271 Conn. 732. ‘‘Thus, a defendant is guar-
anteed the right to be present at any stage of the criminal
proceeding that is critical to its outcome if his presence
would contribute to the fairness of the procedure.’’ Ken-
tucky v. Stincer, 482 U.S. 730, 745, 107 S. Ct. 2658, 96
L. Ed. 2d 631 (1987).
In the present case, the defendant’s absence from
the hearing did not affect the fairness of the inquiry and
did not affect his ability to defend against the murder
charge. Defense counsel spoke with the defendant prior
to the hearing and was able to discuss with the defen-
dant any concerns the defendant may have had or issues
he wanted addressed at the hearing. During the hearing,
defense counsel helped establish the manner in which
the hearing would proceed and was provided with the
opportunity to ask any questions of the jurors that the
court did not ask, protecting the defendant’s interests
even further. Additionally, the defendant had access to
a transcript of the hearing. There is nothing additional
the defendant could have contributed that would have
ensured a more just or fair hearing.
Further, the hearing had no impact on the defendant’s
ability to defend against the murder charge because it
did not prevent the defendant from presenting his case.
In fact, the jury had reached its verdict before the hear-
ing began, and, thus, the defendant already had com-
pleted presenting his case. The matters discussed at
the hearing had nothing to do with the defendant’s
ability to defend against the charge of murder and the
outcome of the hearing did not prevent him, in any way,
from fully presenting his defense.
The defendant relies on Remmer v. United States,
347 U.S. 227, 229–30, 74 S. Ct. 450, 98 L. Ed. 654 (1954),
for the proposition that the defendant’s presence is
necessary at proceedings on jury impartiality.5 In that
case, the court stated that when there is an allegation
of juror impartiality, the court should hold ‘‘a hearing
with all interested parties permitted to participate.’’ Id.,
230. The defendant cites no authority, and we have
found none, which interprets this requirement to mean
that the defendant himself must be present. We see no
reason why the presence and participation of defense
counsel would not be sufficient to protect the defen-
dant’s rights.
The defendant also argues that his exclusion from
the hearing violated his constitutional right to counsel.
We are not persuaded. A criminal defendant has an
absolute constitutional right to representation by coun-
sel. Gideon v. Wainwright, 372 U.S. 335, 344–45, 83 S.
Ct. 792, 9 L. Ed. 2d 799 (1963). In the present case, the
defendant discussed the contact between J.S. and the
court attendee with defense counsel prior to the hear-
ing, and he was able to discuss any questions he may
have had or issues he wanted raised at the hearing.
Further, as previously noted, defense counsel was pres-
ent at the hearing, helped establish the manner in which
the inquiry proceeded, and was provided the opportu-
nity to ask questions of the jurors.
The defendant additionally argues that his exclusion
from the hearing violated his constitutional right to be
presumed innocent. The defendant argues that the court
may have conducted the hearing without him because
‘‘it suspected that jurors feared [him] or believed it was
unsafe to be a juror in his case . . . .’’ He further argues
that the ‘‘jurors should have been cautioned not to draw
any adverse inferences from the defendant’s absence.’’
Again, we are not persuaded. ‘‘The defendant’s pre-
sumption of innocence until proven guilty is an axiom-
atic and elementary principle whose enforcement lies
at the foundation of the administration of our criminal
law.’’ (Internal quotation marks omitted.) State v. Skip-
per, 228 Conn. 610, 621, 637 A.2d 1101 (1994), quoting
Coffin v. United States, 156 U.S. 432, 453, 15 S. Ct. 394,
39 L. Ed. 481 (1895). In the present case, there is no
reason to believe that the court excluded the defendant
from the hearing due to safety concerns expressed by
the jurors. Furthermore, any fear the jurors may have
felt if the defendant had been present in the hearing
would have been irrelevant because the jury had
reached its verdict prior to the hearing and, therefore,
had no effect on the verdict.
The judgment is affirmed.
In this opinion the other justices concurred.
1
The defendant appealed from the judgment of conviction to this court,
and we transferred the appeal to the Appellate Court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1. Thereafter, upon the motion
of the state, we transferred the appeal to this court pursuant to § 51-199
(c) and Practice Book § 65-2.
2
As to claims two and three, the defendant has alleged violations of state
and federal constitutional rights, but he has failed to provide an independent
analysis of the state claims as required by State v. Geisler, 222 Conn. 672,
684–85, 610 A.2d 1225 (1992). ‘‘We have repeatedly apprised litigants that
we will not entertain a state constitutional claim unless the defendant has
provided an independent analysis under the particular provisions of the
state constitution at issue. . . . Without a separately briefed and analyzed
state constitutional claim, we deem abandoned the defendant’s claim[s].
. . . Accordingly, we analyze the defendant’s due process claim[s] under
the federal constitution only.’’ (Citation omitted; internal quotation marks
omitted.) Barros v. Barros, 309 Conn. 499, 507 n.9, 72 A.3d 367 (2013).
3
The state argues that the defendant waived his claim to the Ledbetter
instruction, pursuant to State v. Kitchens, 299 Conn. 447, 10 A.3d 942 (2011),
because defense counsel had a meaningful opportunity to review the pro-
posed instructions on eyewitness identification, prior to the charge to the
jury. Because this claim is not of a constitutional magnitude and, therefore,
review under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989),
is unavailable, waiver, pursuant to Kitchens, is not implicated.
4
We note that the Appellate Court has previously concluded that an in-
chambers hearing on possible juror bias is a critical stage of the proceedings.
See, e.g., State v. Zapata, 119 Conn. App. 660, 678, 989 A.2d 626 (concluding
that defendant was excluded from critical stage of proceedings, but that
constitutional violation was harmless beyond reasonable doubt), cert.
denied, 296 Conn. 906, 992 A.2d 1136 (2010). To the extent that that Appellate
Court authority is now in contradiction to our ruling in the present case, it
is overruled.
5
To the extent that the defendant argues that Practice Book §§ 44-7, 44-
8 and 42-6 also require that the defendant himself be present, we are not
persuaded. Practice Book § 44-7 explicitly provides that ‘‘[t]he defendant
has the right to be present at the arraignment, at the time of the plea, at
evidentiary hearings, at the trial, and at the sentencing hearing . . . .’’ Prac-
tice Book § 44-8 provides that the defendant may be absent from the trial
or the sentencing if the defendant will be represented by counsel and, either
waives the right to be present or is excluded from the courtroom because
of his or her disruptive conduct. Further, Practice Book § 42-6 allows the
defendant to be present when the jury is viewing a place or thing relevant
to the trial in another location, but states that this right to be present can
be waived by the defendant. None of these provisions require the presence
of the defendant at a hearing conducted pursuant to State v. Brown, supra,
235 Conn. 526.