State v. Charles

• Court: Connecticut Court of Appeals
• Writing for the Court: ALVORD
• Citation: State v. Charles, 39 A.3d 750, 134 Conn.App. 242 (Conn. App. 2012)
• Decision Date: 13 March 2012
• Docket Number: No. 33840.,33840.
• Parties: STATE of Connecticut v. Jared CHARLES.

134 Conn.App. 242

39 A.3d 750

STATE of Connecticut

v.Jared CHARLES.

No. 33840.

Appellate Court of Connecticut.

Argued Jan. 6, 2012.Decided March 13, 2012.

Darcy McGraw, assistant public defender, for the appellant (defendant).

Raheem L. Mullins, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Anne Mahoney, senior assistant state's attorney, for the appellee (state).

ALVORD, ESPINOSA and SHELDON, Js.

ALVORD, J.

The defendant, Jared Charles, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a–54a, carrying a pistol without a permit in violation of General Statutes § 29–35, criminal possession of a pistol in violation of General Statutes § 53a–217c and possession of narcotics in violation of General Statutes § 21a–279 (a). On appeal, the defendant challenges the trial court's jury instructions on the charge of murder. Because we conclude that the defendant expressly waived two of his claims and implicitly waived the remaining two claims, we affirm the judgment of the trial court.

The jury reasonably could have found the following facts from the evidence presented at trial. In the late afternoon of September 25, 2004, the victim, Dennis Faniel, and his cousin, Jayquan Faniel, were riding bicycles in a residential area on Deerfield Avenue in Hartford. The defendant, who was close friends with the victim, was driving in the area, and the victim signaled for him to stop. The defendant parked his car a short distance from where the victim and Jayquan Faniel were then standing and exited his vehicle. While Jayquan Faniel remained with the bicycles at the end of a driveway, the defendant and the victim began talking and walked up that driveway, toward the rear of a house. The victim demanded a cellular telephone that the victim's brother, then incarcerated, had entrusted to the defendant. The victim's brother had instructed the defendant to keep it away from the victim. The cellular telephone was valuable because it was used in the illegal drug business and contained the contact numbers of numerous customers. When the defendant refused to give it to the victim, the two men began arguing, and the victim made a fist with his right hand as if preparing to hit the defendant. At that point, Jayquan Faniel moved away from the bicycles. The defendant fired one gunshot, and the victim was hit in the abdomen with a bullet from a nine millimeter semiautomatic firearm. He later died from his injuries.

The defendant fled the scene with a silver gun in his hand. Jayquan Faniel ran to the victim, who had fallen to the ground on his knees, and took the victim's .38 caliber revolver from him. He chased the defendant and fired five gunshots at him. After he failed to hit the defendant, Jayquan Faniel threw the revolver in a trash can behind one of the neighborhood houses and went home. The defendant, while being pursued by Jayquan Faniel, caught his gray shirt on a fence as he jumped over the fence. He managed to slide out of the shirt and left it behind. The police later retrieved the .38 caliber revolver, the gray shirt with cocaine in one of its pockets and a cellular telephone within the area traveled by Jayquan Faniel and the defendant. The police did not find a nine millimeter weapon.

During the investigation, the police interviewed a witness to the incident. Natasha Walker, a former girlfriend of the victim, was standing outside of her grandfather's house on Deerfield Avenue when she saw the victim and Jayquan Faniel riding up the street on their bicycles. She also saw the defendant, wearing a gray shirt, approach them when they left their bicycles at the end of the driveway. Because the defendant and the victim walked to the rear of the yard, she did not see the shooting but she did hear the gunshot. She stated that Jayquan Faniel was still at the end of the driveway with the bicycles when the gun was fired. She then saw the defendant run from behind the house with a gun in his right hand, and she heard an additional four or five gunshots shortly after the defendant and Jayquan Faniel fled the scene.

The defendant was arrested and charged in connection with the shooting. After two days of evidence during the defendant's trial, the parties rested. The jury reached its verdict, which was accepted by the court, and the defendant was sentenced to forty-eight years of incarceration. This appeal followed.

I

The defendant's first two claims are that the trial court improperly failed to instruct the jury, sua sponte, on self-defense and the lesser included offense of manslaughter.¹ He argues that those instructions were warranted by the evidence at trial and that the court's failure to give them deprived him of his constitutional right to a fair trial. However, as indicated in this opinion, defense counsel expressly stated to the court that he did not want an instruction on self-defense or any form of manslaughter. Accordingly, we conclude that the defendant has waived these claims on appeal.

On Wednesday, June 20, 2007, before evidence commenced on the second day of trial, the court asked counsel whether each side had received a copy of the court's initial draft of the jury instructions. After both counsel responded in the affirmative, the court invited the parties to submit their own written jury charge requests. Later that same day, after the defendant had testified and the defense had rested, but before the state's rebuttal witness took the witness stand, the following discussion took place outside of the presence of the jury. The court asked if counsel would be ready for the charging conference the next day and stated: “Now, you can submit stuff in writing or you can just bring along your thoughts with citations. You have a copy of the court's initial draft. Obviously, there are some things we have to add to that. Is there a claim of self-defense?” When defense counsel answered, “I would say no,” the court stated that counsel should discuss the matter with his client. At the end of the day, after all of the evidence had been presented, the court excused the jurors and told them to report back to the courtroom the following Monday, June 25, 2007. The court again spoke to counsel about the draft instructions: “Please go through the draft tonight.... Let me know what you want added or subtracted. Offhand, we're going to need, obviously, an instruction on expert witnesses, police officers, prior conviction of a witness, prior conviction of the defendant, one prior misconduct [for] the defendant. I don't know what else. It doesn't sound like self-defense to me, but I may be incorrect. I'd like to have you talk to your client about it. My understanding of the evidence is that he testified he and the victim were struggling over a revolver; the victim was shot by a semiautomatic handgun.... Well, think it over, [defense counsel]. It's up to you what you want to do.”

Before the jury entered the courtroom on Monday, June 25, 2007, the court asked counsel if they had received the final draft of the jury instructions on Friday, June 22, 2007, at 4:45 p.m. Defense counsel responded in the affirmative. The court then gave the following summary of the matters discussed at the previous charging conference: “As far as the charge conference is concerned, draft one was handed out by the court about 10 o'clock on June 20, and we discussed whether or not there was going to be a request for self-defense. The next day, on [June 21], we had a charge conference, and [the] defendant indicated he did not want a charge on self-defense. Concerning the testimony of the defendant, I certainly can understand that as a tactical decision. And we brought the defendant in that day even though there was no scheduled court so [defense counsel] could confer with him. Neither side wanted motive. We discussed consciousness of guilt, which is in there. The discussion was between 2:20 and 3:10 in the afternoon. Also, neither side wants any lesser [included offense]. Then on [June 22, 2007], you got a copy [that] was revised, draft two, which was essentially correct except for a few typos. The third version of that came out at 2:45 p.m., and I revised the typos and things, and the final edition [that] I have on my bench came out at 4:45 on Friday afternoon. There's really no substantive changes to the third version.” The court then asked counsel if there were any “objections or additions or subtractions” with respect to its charging conference summary. No objections or suggestions were made by counsel, and the jury then entered the courtroom to listen to closing arguments.

During his closing argument, defense counsel told the jury: “[The defendant] never said anything about self-defense. That's the state's attorney putting words in his mouth. He gave a statement to the police. Never in that statement did he say it was self-defense. In that statement, just like he testified in front of you, he said, I heard a shot go off. The only way it could have come from is from Jayquan, which is totally consistent with the angle.” After the state's rebuttal argument, the court charged the jury with the instructions agreed upon by the parties. Each juror had a copy of the written jury instructions as the court read them, and the court stated that the jurors could keep their copies throughout their deliberations. After the court completed its charge to the jury, and outside of the presence of the jury, the court asked counsel whether they had any exceptions to the charge as given. Defense counsel and the prosecutor both responded in the negative.

The defendant now claims that the court should have instructed the jury, sua sponte, on self-defense and the lesser included offense of manslaughter, and he requests our review under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989).² The state responds that he expressly waived those claims at...