State v. Akande

• Decision Date: 05 January 2011
• Docket Number: No. 18325.,18325.
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Jason Shola AKANDE.

11 A.3d 140

299 Conn. 551

STATE of Connecticut

v.Jason Shola AKANDE.

No. 18325.

Supreme Court of Connecticut.

Argued April 28, 2010.

Decided Jan. 5, 2011.^*

Katherine C. Essington, special public defender, for the appellant (defendant).

Harry Weller, senior assistant state's attorney, with whom, on the brief, were Kevin T. Kane, chief state's attorney, and Kevin M. Shay, assistant state's attorney, for the appellee (state).

ROGERS, C.J., and NORCOTT, KATZ, PALMER and ZARELLA, Js.

ROGERS, C.J.

The defendant, Jason Shola Akande, appeals from the judgment of the Appellate Court affirming his conviction, rendered after a jury trial, of two counts of forgery in the second degree in violation of General Statutes § 53a-139 (a)(1) and (2),¹ and two counts of larceny in the sixth degree in violation ofGeneral Statutes §§ 53a-119 (2) ² and 53a-125b.³State v. Akande, 111 Conn.App. 596, 614, 960 A.2d 1045 (2008).

We granted certification to appeal limited to the following issue: "Did the Appellate Court properly determine that the defendant waived his claim that the jury instructions were constitutionally deficient?" State v. Akande, 290 Conn. 918, 919, 966 A.2d 237 (2009). We conclude that the Appellate Court properly determined that the defendant waived his claim, and affirm the Appellate Court's judgment.

The Appellate Court opinion sets forth the following facts. "The defendant and the victim, Nelson Estremera, became acquainted at It's A Gee Thang barber shop on Main Street in Hartford. The defendant drove a black Mercedes-Benz and was dressed professionally each time Estremera saw him at the barber shop or around Hartford. The defendant told Estremera that his name was James Limerick. In conversation, the defendant told Estremera that he had a degree in computer engineering, that he was in the process of opening his own insurance business and that if Estremera ever needed any insurance to let him know.

"In October, 2004, Estremera's nephew gave him a car, a 1992 Chevrolet Lumina, and Estremera contacted the defendant to obtain automobile insurance for it. Estremera called the defendant, who told him to meet the defendant at what was known as the defendant's'spot,' on a street off of Main Street, and to bring his birth certificate, social security card, the title to the car and his driver's license. The defendant arrived in his Mercedes-Benz and Estremera got into the defendant's car, where the transaction took place. The defendant told Estremera that it would cost only $250 to insure the Chevrolet Lumina because older people pay lower rates. Estremera gave the defendant allof the paperwork, and the defendant told Estremera that he would contact him within a few days. Once the defendant got in touch with Estremera, the two men met again in the defendant's car in the same spot. Estremera gave the defendant $250 in cash, and the defendant gave him an insurance card. The defendant told him that he would be able to register the car with the department of motor vehicles with this insurance card, and Estremera was in fact able to register the Lumina with no problems.

"About one month later, in November, 2004, Estremera needed insurance for another vehicle, an Oldsmobile, and he got in touch with the defendant again to obtain insurance for this vehicle. The defendant told Estremera that he needed to bring the defendant only the title to the new car because he already had all of Estremera's other information on file. The defendant again met with Estremera at the same location as their previous meetings, in the defendant's car, to complete the transaction. The defendant gave Estremera an insurance card in exchange for another $250 cash. This second insurance card had both of Estremera's cars listed on it, which Estremera found odd.

"On November 18, 2004, Estremera went to the department of motor vehicles in Wethersfield to register the Oldsmobile. Estremera gave an agent the new insurance card he had received from the defendant. After taking it, the agent indicated that a supervisor would be coming to speak to Estremera. The supervisor questionedhim about where he got the card and eventually the police arrived. Estremera spoke to an officer and later went, of his own volition, to the Wethersfield police department where he gave a written statement and was shown a photographic array, from which he identified the defendant's photograph. The defendant was arrested in February, 2005, and charged with two counts of forgery in the second degree and two counts of larceny in the sixth degree." State v. Akande, supra, 111 Conn.App. at 598-99, 960 A.2d 1045.

Following a trial, the jury returned a verdict of guilty. Id., at 599-600, 960 A.2d 1045. The trial court rendered judgment in accordance with the verdict and sentenced the defendant to five years incarceration, execution suspended after time served, followed by three years probation. Id., at 600, 960 A.2d 1045. The defendant appealed from the judgment of the trial court to the Appellate Court, claiming that the trial court's jury instructions on the elements of forgery in the second degree, which consisted of an initial instruction and a written supplemental instruction, violated his constitutional due process rights by failing to sufficiently emphasize certain elements of the forgery offense. Id., at 604, 960 A.2d 1045. Specifically, the defendant claimed that the trial court's instruction should have "define[d] the issues or possesses elements of the crime of forgery in the second degree...." (Internal quotation marks omitted.) Id., at 606, 960 A.2d 1045. Because the defendant had failed to preserve his claim at trial, he sought review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). ⁴

[299 Conn. 556, 11 A.3d 143]

State v. Akande, supra, 111 Conn.App. at 606, 960 A.2d 1045. The Appellate Court held that the defendant was not entitled to Golding review because his acquiescence to the content of the trial court's supplemental jury instruction constituted a waiver of his claim of instructional error, and affirmed the judgment of the trial court. Id., at 608-609, 960 A.2d 1045. This appeal followed.

On appeal, the defendant claims that the Appellate Court improperly held that he waived his instructional error claim because "defense counsel did not affirmatively express his satisfaction with the charge" and because "[t]here is no indication in the record ... [of] any substantive discussion between the court and the attorneys concerning the instruction on the elements of forgery." Accordingly, the defendant claims that his claim of instructional error is reviewable under Golding.⁵ The state claims that the Appellate Court correctly construed defense counsel's acquiescence to the trial court's supplemental instruction as an implied waiver of the defendant's claim. We agree with the state.

The following additional facts relate to the defendant's claim of instructional error. The source of that claim—the trial court's alleged incomplete description of the elements of forgery in the second degree—appeared in both the trial court's initial jury instruction and a later written supplemental instruction that the trial court provided in response to a specific request from the jury.⁶ Defense counselfailed to submit arequest to charge or to take exception to any instructional language during the trial. Indeed, there is no indication in the record that any discussion of the proposed instructional language occurred prior to the trial court's recital of its initial jury charge. At the conclusion of the initial charge, however, the trial court solicited input from both parties by asking: "Anything about the charge?" The state replied: "No, Your Honor," but defense counsel failed to respond to the trial court's inquiry.⁷

During deliberations, the jury sent out a note signed by the foreman that stated: "We would like a copy of the text listing the points of forgery and of larceny for reference." In a discussion outside the presence of the jury, the court stated: "My suggestion on this is that we make copies of—I make a copy of what I read to them earlier on forgery and larceny given the length of those—those instructions. And given the late hour, since it's now 4:25 and we still haven't gotten through this and counsel's got to take a look at it, I will dismiss the jury now, tell them at 10 o'clock tomorrow they will get copies of that, and they can begin their deliberations again tomorrow.

"They really haven't even started because they sent a note out and then they asked for a break, which was understandable also. So what I'll do is I'll make copies of this. I'll give it to both counsel. We'll meet beforecourt tomorrow, make sure it's all—everything's in order, and then we'll give it to them and they can get started fresh at 10 o'clock in the morning."

The trial court then solicited input from both counsel by asking: "Anybody have any other thoughts?" Defense counsel and the state both answered: "No, Your Honor."

The next morning, the trial court addressed the adequacy of its proposed written supplemental instruction by stating: "We had some discussions yesterday. Wemade some copies of the charge that they asked for, the forgery and the larceny. I—we made copies last night for both sides here. Anybody have any comments on what we want to do with this?" Again, defense counsel declined an opportunity to object to the proposed instructional language and simply answered: "No, Your Honor."

The trial court then directed both counsel to review the written supplemental instruction that the jury would receive to "make sure it doesn't have anything that's odd." After pausing to allow both parties to review the proposed language, the court indicated that it was assured that both counsel had examined the copy and asked a final time whether either counsel had "[a]nything else?" Again, defense counsel failed to comment on the proposed instructional language by answering: "No, Your Honor." The trial...