State v. O'NEIL, (SC 16177)

• Court: Supreme Court of Connecticut
• Writing for the Court: ZARELLA, J.
• Citation: 801 A.2d 730,261 Conn. 49
• Parties: STATE OF CONNECTICUT v. CAESAR O'NEIL.
• Docket Number: (SC 16177)
• Decision Date: 23 July 2002

261 Conn. 49
801 A.2d 730

STATE OF CONNECTICUT
v.
CAESAR O'NEIL

(SC 16177)

Supreme Court of Connecticut.

Argued January 17, 2002.

Officially released July 23, 2002.

Sullivan, C.J., and Borden, Norcott, Katz, Palmer, Vertefeuille and Zarella, Js.

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Neal Cone, senior assistant public defender, for the appellant (defendant)

Susann E. Gill, senior assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Stephen J. Sedensky III, supervisory assistant state's attorney, for the appellee (state).

Opinion

ZARELLA, J.

The defendant, Caesar O'Neil, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a.¹

261 Conn. 51

The defendant claims that the trial court improperly: (1) delivered a Chip Smith instruction² that, by its language, was coercive upon minority view members of the jury;³ and (2) admitted into evidence information regarding two unrelated criminal matters that were pending at the time of his trial. We find no impropriety in either of the trial court's actions and, therefore, affirm the judgment of the trial court

The record reveals the following relevant facts and procedural history. At approximately 2:50 a.m. on July 4, 1993, the victim, Orlando Suter, was riding as a passenger in a stolen white Acura Legend driven by Eddie Smalls. Smalls and the victim were proceeding westbound on Connecticut Avenue in Bridgeport. As Smalls and the victim approached a traffic light at the intersection of Hollister and Connecticut Avenues, Smalls noticed the defendant and two other individuals seated in a dark sedan in a parking lot on the right side of the street. Smalls knew that the defendant was a member of a rival gang and proceeded quickly through the intersection. The sedan in which the defendant was a passenger then pursued the Acura at a high rate of speed. Smalls thereafter turned right onto Union Avenue and

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the sedan followed. The sedan eventually pulled even with the driver's side of the Acura, at which time the defendant, who was sitting in the front passenger seat of the sedan, and the other passenger exchanged gun fire with Smalls and the victim. The victim was shot in the head after which the sedan sped away. The victim subsequently was ejected from the Acura as Smalls turned onto a side street. Smalls did not stop to assist the victim. He abandoned the Acura shortly thereafter and fled on foot. At approximately 3:15 a.m., Bridgeport police located the lifeless body of the victim in the roadway on Shelton Street. Several hours later, the police recovered the Acura on a nearby street

The defendant subsequently was arrested and charged in connection with the victim's death. While awaiting trial on the murder charge, the defendant also was charged with attempt to commit murder in violation of General Statutes §§ 53a-54a and 53a-49,⁴ after a correction officer intercepted a letter written by the defendant in code, in which the defendant had solicited another individual to kill Smalls. The two informations were consolidated, and, following a jury trial, the defendant was found guilty on the charge of attempt to commit murder. The jury remained deadlocked on the murder charge, however, and the trial court declared a mistrial as to that charge. The defendant was sentenced to a term of twenty years incarceration in connection with his conviction for attempt to commit

261 Conn. 53

murder.⁵ Thereafter, the defendant was retried on the murder charge and, following a jury trial, was convicted and sentenced to a term of fifty years incarceration, to run consecutively to the earlier imposed sentence. This appeal followed. Additional facts and procedural history will be discussed as necessary.

I

The defendant first claims that the language of the Chip Smith instruction that the trial court delivered to the jury was inherently coercive upon the jury and, therefore, violated his rights under the Connecticut and federal constitutions. Specifically, the defendant contends that the instruction infringed upon his right to a unanimous jury verdict under article first, §§ 8⁶ and 19,⁷ of the constitution of Connecticut inasmuch as the trial court's instruction directed minority view jurors to reconsider their conclusion in light of the conclusion reached by majority view jurors but did not direct majority view jurors to do the same. The defendant further contends that such an instruction unfairly increased the likelihood of conviction and, thus, violated his due process rights under article first, § 8, of the constitution of Connecticut⁸ and the fourteenth

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amendment to the United States constitution.⁹ Finally, the defendant contends that the instruction subverted his state¹⁰ and federal¹¹ constitutional rights to equal protection and to a jury selected from a fair cross-section of the community¹² because the instruction had the potential to marginalize the only two jurors who, like the defendant, were African-American.¹³ Our resolution of all of the defendant's foregoing constitutional claims hinges on our answer to a single question, namely, whether the trial court's Chip Smith instruction improperly pressured minority view jurors into abandoning their position in favor of the position of the

261 Conn. 55

majority view jurors. Because we answer that question in the negative, we reject the defendant's claims.

The following additional facts and procedural history are relevant to the defendant's claims. Following the presentation of evidence and closing arguments of counsel, the trial court charged the jury, which then began its deliberations. Shortly thereafter, the jury sent a note to the trial court requesting reinstruction on the murder charge and an explanation of how the jury could use a document in evidence, namely, a decryption of the coded letter in which the defendant solicited another individual to kill Smalls, in its deliberations. The trial court briefly explained the purposes for which the jury could consider the letter. Because of the late hour, the trial court declined to address the jury's request for reinstruction on the murder charge until the following morning and thereupon dismissed the jury for the evening. After receiving the additional instruction on the murder charge the following morning, the jury continued deliberations. Soon thereafter, the trial court received a note from the jury foreperson stating that the jury was deadlocked.

The trial court read the note into the record and informed the defendant and the state that the court would deliver a Chip Smith instruction to the jury. Defense counsel objected, stating that the instruction was not warranted in light of the history of the case. Specifically, defense counsel, in objecting to the trial court's decision to deliver a Chip Smith instruction, stated: "[T]his [was] a retrial, there was a mistrial because of a hung jury in the first case, and I think, under the circumstances, it's inappropriate." The trial court overruled the defendant's objection, remarking that the jury had deliberated for a total of less than three hours.

The trial court then gave the following Chip Smith instruction to the jury: "The court feels that this matter

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has been well tried. You have heard the evidence and 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, I wish to state to you at the outset that the additional instructions are not to be construed by you to be coercive in any manner or to compel you to arrive at a verdict. The instructions are designed to aid you in considering your own positions individually and weighing your individual positions against the collective positions or the position of other members of the jury, and after having done so, to reconsider whatever conclusions that you individually may have reached, not to suggest to you in any manner that you are compelled to reach a verdict or must reach a verdict.

"The instructions that I shall give you now [are] only to provide you with additional information so that you may return to your deliberations and see whether you can arrive at a verdict. Along these lines, I would like to state the following to you. Although the verdict to which each of you agrees must express his or her own conclusion and not a mere acquiescence in the conclusion of your fellow jurors, yet in order to bring your minds to a unanimous result, you should consider the question you have to decide not only carefully but also with due regard and deference to the opinions of each other.

"In conferring together, you ought to pay proper respect to each other's opinions and listen with an open mind to each other's arguments. If much the larger number of you reach a certain conclusion, a dissenting juror or jurors should consider whether [his] opinion is a reasonable one when the evidence does not lend to a similar result in the minds of so many of you who are equally honest and equally intelligent who have

261 Conn. 57

heard the same evidence with the same intention with equal desire to arrive at the truth and under the same sanctions of the same oath.

"If the majority of you are for one decision, the minority ought seriously to ask themselves whether they may not reasonably or ought not to doubt their own conclusions when they are not concurred in by most of those with whom they are associated, and they may well distrust the weight or sufficiency of the evidence upon which they rely when it fails to bring the minds of their fellow jurors to the same conclusions that you hold.

"I have stated this to you in order to get you to further consider in your deliberations the opinions of your fellow jurors. This is all. I'm going to ask you to return to the jury room and see if you can arrive at a...