State v. Daley

• Decision Date: 22 December 2015
• Docket Number: No. 37580.,37580.
• Citation: State v. Daley, 161 Conn. App. 861, 129 A.3d 190 (Conn. App. 2015)
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Marlando DALEY.

161 Conn.App. 861

129 A.3d 190

STATE of Connecticut

v.Marlando DALEY.

No. 37580.

Appellate Court of Connecticut.

Argued Sept. 11, 2015.

Decided Dec. 22, 2015.

Pamela S. Nagy, assistant public defender, for the appellant (defendant).

Adam E. Mattei, assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Joseph T. Corradino, senior assistant state's attorney, for the appellee (state).

SHELDON, KELLER and SULLIVAN, Js.

SHELDON, J.

The defendant, Marlando Daley, appeals from his October 17, 2011, conviction of murder in violation of General Statutes § 53a–54a (a), in connection with the shooting death of Roland McLennon on Edna Avenue in Bridgeport on July 4, 2010. After the defendant was found guilty of that offense by a jury in the Bridgeport Superior Court, he was sentenced by the court, Thim, J., to a term of forty years imprisonment.

In this appeal, the defendant makes two claims of error: (1) that the trial court coerced the jury into rendering a verdict, in violation of his state and federal constitutional right to a fair trial, by informing the jury that the case would be mistried if it could not reach a unanimous verdict; and (2) that the trial court improperly refused to admit evidence of a recorded statement by a Bridgeport police officer to his dispatcher, reporting his mother's statement to him that she had almost been struck by a speeding vehicle that resembled the shooter's vehicle, but did not match the defendant's vehicle, at or about the time and place of the shooting. We affirm the judgment of the court.

The jury reached its verdict on the basis of the following evidence. On July 4, 2010, at 10:02 p.m., Officer Pasquale Speranza of the Bridgeport Police Department was dispatched to Edna Avenue to respond to a call reporting that shots had been fired in that location.

Upon arriving at the scene, he found the lifeless body of a man lying in a pool of blood on the side of the street. A trail of what appeared to be blood led from the body down Edna Avenue to the corner of East Main Street. Harold Wayne Carver II, the state's chief medical examiner, testified that he conducted an autopsy of the decedent and determined that the cause of death was a single gunshot wound to the head.

After speaking with three onlookers at the scene, the police broadcasted a lookout for a dark-colored sport utility vehicle (SUV). The police also spoke with a witness who said that after she had heard gunshots, she looked out her window and saw one or two males firing at a Jeep-like vehicle. Although the police developed no suspects while conducting their on-scene investigation, they positively identified the decedent as Roland McLennon of Bridgeport, based upon information received from family members who came to the scene.

Nine months after the shooting, in early April, 2011, the police approached the decedent's brother, Byron McLennon, Jr., while he was at the office of his probation officer, to talk about his brother's death. In their ensuing conversation, Byron reported for the first time to the police that he had been an eyewitness to the shooting, having driven his brother over to Edna Avenue on that evening. Byron stated that, upon arriving on Edna Avenue, he parked his car after his brother got out and started to walk across the street toward a black Mercedes SUV with a New York license plate. When Roland turned to Byron and waved for him to come along with him, Byron turned off the car and followed his brother. Once Roland reached the SUV, he had a short conversation with the driver, whom Byron saw and recognized through the partially open passenger side window as "Massup," a man from the local Jamaican community whom he had seen playing soccer at Seaside Park in Bridgeport and whom he knew to promote parties at local clubs. During his conversation with police, which the police recorded on video, Byron identified the defendant as "Massup" by selecting his photograph from an eight person photographic array.

Although Byron could not hear his brother's entire conversation with the defendant, he did hear his brother utter the derogatory term, "pussy hole," just before a gunshot rang out from inside the SUV. As his brother slumped to the ground by the side of the SUV, Byron saw something black in the defendant's right hand. After his brother was shot, Byron ran back to his car and drove away to his parents' house on Elmwood Avenue in Bridgeport. Upon his arrival, he told a family member that his brother had been killed, but otherwise gave no details of the shooting. Byron never approached the police to report what he had seen for fear that being at a crime scene might jeopardize his probation.

The defendant, who drove a black Mercedes SUV in July, 2010, presented an alibi defense through the testimony of his friend, David Webley, the defendant's girlfriend, Miekah McCurvin, and his acquaintance, Alicia Grant, who held a party at her house in Stratford on July 4, 2010. Through their testimony, the defendant claimed that he and Webley had attended Grant's party until 10 p.m. or 10:30 p.m. that evening before returning to the defendant's house on Huntington Avenue, where they met up with the defendant's cousin, Rosie, who was already at the house when they arrived, and his girlfriend, McCurvin, who arrived shortly thereafter. The defendant did not testify at trial. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly coerced the jury to return a verdict, in violation of his state and federal constitutional right to a fair trial, by:

1) telling the jury that if it could not reach a unanimous decision, "the case w[ould] be tried over"; and (2) telling one juror, who had asked to speak with the judge privately about her scheduling concerns, that he did not want to excuse her from the jury because "we have to have a jury of twelve to decide the case; otherwise, we have to start the whole process over.... [T]his case has been pending a long time, and we just don't want to start it all over again." According to the defendant, "[i]t is coercive for a judge to mention the possibility of a mistrial if the jury does not come to a verdict."

"A jury that is coerced in its deliberations deprives the defendant of his right to a fair trial under the sixth and fourteenth amendments to the federal constitution, and article first, § 8, of the state constitution. Whether a jury [was] coerced by statements of the trial judge is to be determined by an examination of the record.... The question is whether in the context and under the circumstances in which the statements were made, the jury [was], actually, or even probably, misled or coerced." (Citations omitted; internal quotation marks omitted.) State v. Pinder, 250 Conn. 385, 427, 736 A.2d 857 (1999). The court must "consider [the jury instructions] from the standpoint of their effect upon the jury in the context and under the circumstances in which they were given." State v. Ralls, 167 Conn. 408, 422, 356 A.2d 147 (1974), overruled on other grounds by State v. Rutan, 194 Conn. 438, 479 A.2d 1209 (1984).

The following additional facts are relevant to this claim. On Friday, October 14, 2011, after counsel presented their closing arguments, the court gave its final instructions to the jury. In addition to instructions on the elements of the charged offense, the role of the jury, the burden of proof, and the presumption of innocence, the court gave the jury the following general instruction as to the manner in which it should conduct its deliberations: "In the jury room, you should talk with each other about the case. Each of you must make your own conscientious decision, but only after you have considered all the evidence, discussed it fully with the others, and listened to the views of the others. Each of you should consider whether your views are fair and reasonable and try your best to decide the case according to the law. Do not hesitate to reexamine your own views and to change your mind if you are persuaded that you should do so, but do not surrender your honest opinion solely because your opinion is different from the other jurors' or for the mere purpose of returning a verdict." The defendant took no exception to this instruction. In view of the late hour at which the jurors were about to start their deliberations, however, the defendant asked the court to advise the jury that there would be no restriction on the amount of time it would have to deliberate. The court obliged by giving the following additional instruction: "[T]here is no time constraint on when you must make a decision.... [Y]ou should take as much time as you feel is necessary to render your decision in a careful and just manner.... [I]t's now five of four and you should not feel that you have to render a decision ... by quarter of five.... I told you the case might go over to a week or two, and we had that delay at the beginning of the week, which was beyond our control. So, we have the extra day, so, if you need more time, you have that time." Once again, no exception was taken to this charge.

After deliberating for some time thereafter, the jury asked the court to replay for it both the video recording of Byron McLennon, Jr.'s interview by the Bridgeport police and the trial testimony of the defendant's principal alibi witness, Webley. The court then excused the jury for the weekend, informing it that it would replay the requested material when court reconvened the following Monday. The following Monday morning, the court replayed the material requested by the jury. Following the playback, the jury resumed its deliberations. The jury later sent out a second note that read, simply, "Jury Instructions." The court responded to this note by orally requesting the jury to specify which instructions it wished to rehear. After the jury returned from lunch, it responded to the court's request for clarification by sending out a third note, in which...