State v. Feliciano

• Decision Date: 19 June 2001
• Docket Number: (SC 16335)
• Citation: 256 Conn. 429,778 A.2d 812
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT v. RUBEN FELICIANO

256 Conn. 429

778 A.2d 812

STATE OF CONNECTICUT v. RUBEN FELICIANO

(SC 16335)

Supreme Court of Connecticut.

Argued April 20, 2001.

Officially released June 19, 2001.

Borden, Norcott, Katz, Palmer and Zarella, Js. Mark Rademacher, assistant public defender, for the appellant (defendant).

Leon F. Dalbec, Jr., senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Elpedio N. Vitale, senior assistant state's attorney, for the appellee (state).

Opinion

KATZ, J.

The defendant was charged with one count of murder in violation of General Statutes § 53a-54a¹ and one count of felony murder in violation of General Statutes § 53a-54c.² After a jury of twelve convicted the defendant of both offenses, the trial court merged the convictions and sentenced the defendant to a term of sixty years imprisonment, to be served consecutively to the life sentence he was serving for an unrelated federal conviction. He raises three issues on appeal, specifically, that the trial court improperly: (1) delivered three "Chip Smith"³ charges to the jury depriving him of his federal constitutional rights to due process and an uncoerced jury verdict; (2) deprived him of his federal constitutional rights to a fair and impartial jury by failing to investigate adequately the allegation of jury misconduct and denying his motion for a mistrial; and (3) permitted the state to introduce evidence of the defendant's drug use to establish a motive for the murder. We reject these claims and affirm the judgment of the trial court.

The record reveals the following facts. In January 1997, the sixty-nine year old victim, Charles Westendorff, lived in the first floor apartment of a three-family home at 114 Liberty Street in Meriden. He had lived there for twenty-five years. His daughter and her family resided in the second floor apartment, and Jeffrey Lorenzo and his girlfriend, Nohemi Rivera, lived in the third floor apartment. During the fall of 1996, the defendant, who was Lorenzo's brother, resided with Lorenzo and Rivera, during which time he got to know the victim.

On or around Thanksgiving of 1996, the defendant moved in with his girlfriend, Cathleen Magrath, who lived with her sister on Olive Street in Meriden. Soon thereafter, Magrath noticed a change in the defendant's behavior: his whereabouts were often unknown; he admittedly stole Magrath's leather jacket in order to obtain drugs; and he was observed using crack cocaine. Magrath noticed that several other items, including her stereo and her sister's wallet, mysteriously were missing from the apartment. Shortly after a New Year's Eve party at which the defendant became intoxicated, Magrath decided that she wanted to terminate their relationship. Thereafter, although the defendant no longer stayed at Magrath's apartment, he failed to remove his belongings, and often returned uninvited.

On January 25, 1997, the victim's body was discovered in his apartment by his daughter. His legs had been bound together at the ankles, and he had been stabbed five times in the neck and chest. Excessive bleeding and asphyxia caused the victim's death sometime between the evening hours of January 24, 1997, and the early morning hours of January 25, 1997. There were no signs of forcible entry. Several items were missing, including the victim's television set, his wallet, jewelry, foreign coins that had been given to him by his son, a pair of black imitation leather gloves and a hat with a brim and side flaps.

On either January 24 or 25, 1997, the defendant visited an acquaintance, Angel DeJesus, at his home in Meriden. The defendant was wearing a pair of black leather gloves and what DeJesus described as a "Russian winter hat" that he had never seen the defendant wear before. The defendant confessed to DeJesus that he had "murdered somebody in his brother's building." He told DeJesus that he had gone there to pick up some money that he was owed and got into an argument with the victim, whom he then tied up and killed. The defendant also showed DeJesus a box of foreign coins and asked him if he knew their value. A few days later, the defendant visited Magrath's apartment in the middle of the night and confessed to her that he had killed the victim. The defendant asked Magrath for money for a train ticket to New Jersey, but she refused to give him any money. When contacted by the police, the defendant acknowledged that he knew the victim but denied any involvement in the murder. He provided the police with the name of an alibi witness who failed to corroborate his story. Additional facts will be provided where necessary.

I

The defendant claims that his rights to due process and to a jury verdict free of coercion were violated when the trial court twice orally, and once in writing, gave the jury a Chip Smith instruction. Although the defendant acknowledges that trial courts routinely use the Chip Smith instruction when juries report that they are experiencing difficulty in reaching a unanimous verdict, he claims that under the particular circumstances of the present case the use of such an instruction was coercive. The state defends the trial court's decision, contending that the otherwise appropriate instruction did not create an atmosphere of coercion that could otherwise threaten a defendant's constitutional right to a fair trial. We agree with the state.

A

The following facts are pertinent to a proper resolution of this claim. On Monday, April 10, 2000, the trial court charged the jury. Shortly after it commenced deliberations, the jury requested that the testimony of four witnesses be played back. That testimony was played for the jury on Tuesday, April 11, 2000, and lasted approximately four and one-half hours, not including the breaks "of fifteen minutes or so between each full playback of both cross and direct [examination]...." Near the end of the day, the jury asked to rehear the court's charge on reasonable doubt, intent and "lack of evidence." The court repeated those instructions the following morning, April 12. Later that day, the jury requested and was given a written copy of the charge on reasonable doubt and the state's burden of proof. The jury thereafter requested to hear additional testimony that took approximately thirty to forty minutes to play back.

That same day, the jury reported that it was unable to come to a unanimous decision on the first count, the charge of murder. With the agreement of both the state and the defendant, the court stated the following: "Okay, folks, I have your note. It simply reads: `We are unable to come to a unanimous decision on the first count.' In response to that, let me tell you that when you subtract the read backs and time spent in court or in breaks, you have been deliberating for less than a full day. At this point I simply suggest that you continue your deliberations. You should review the evidence and the position of each juror to determine if any evidence has been overlooked or any juror's position misunderstood with respect to either the evidence or the law."

On Thursday, April 13, 2000, at approximately 2 p.m., the jury reported that it could not come to a unanimous decision on either the first or the second count. In response, the trial court provided the following instruction: "I have some additional instruction for all of you, so please listen up: The court is of the opinion that it should give you additional instructions regarding this matter to see whether or not it is within your reach to arrive at a verdict in this matter. So with this thought in mind, the court wishes to state to you at the outset that these additional instructions are not to be construed by you as to be coercive in any manner or to compel you to arrive at a verdict or to compel any of you to change your position. These instructions are designed to aid you in considering your own positions individually and in weighing your individual positions against the collective position—positions or the positions of other members of the jury and after having done so, to reconsider whatever conclusions that you individually may have reached. They're not meant to suggest to you in any manner that you are compelled to reach a verdict or that you must reach a verdict. The court's instructions as I so give you now are only to provide you with additional information so that you may return to your deliberations and see whether or not you can arrive at a verdict.

"Although the verdict to which each juror agrees must of course be his or her conclusion and not a mere acquiescence in the conclusion of others, in order to bring minds to a unanimous result you should, in conferring together, pay proper respect to each other's opinions and listen with candor to each other's arguments. If much [of] the larger number of the panel are for a particular verdict, a dissenting juror should consider why his or her own conclusion is one that makes no impression upon the minds of the others who are equally honest and intelligent, who have heard the same evidence, what the equalizers are to arrive at the truth, and are under the sanction of the same oath. The minority are seriously to ask themselves whether they may not reasonably doubt the conclusion of a judgment that is not concurred in by most of those with whom they are associated and distrust the weight or sufficiency of that evidence that fails to carry in the minds of their fellow jurors. I'm going to ask that you go back to the jury room to discuss this case further. You may retire, thank you." Neither party objected, and the jury resumed its deliberations.

Later that day, the jury sent out a note asking two questions. Specifically, the jury wanted to know whether it could reach a unanimous decision on the second count, the charge of felony murder, but not on the first count; and whether, with regard to the second count, there must have been an intent to rob before the actual murder...