State v. Payne

• Decision Date: 29 May 2001
• Docket Number: (AC 20232)
• Citation: 63 Conn. App. 583,777 A.2d 731
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. LEOTIS PAYNE

63 Conn. App. 583

777 A.2d 731

STATE OF CONNECTICUT v. LEOTIS PAYNE

(AC 20232)

Appellate Court of Connecticut.

Argued September 29, 2000.

Officially released May 29, 2001.

Mihalakos, Zarella and Daly Js. Conrad Ost Seifert, special public defender, for the appellant (defendant).

Timothy J. Sugrue, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Michael A. Pepper, senior assistant state's attorney, for the appellee (state).

Opinion

MIHALAKOS, J.

The defendant, Leotis Payne, appeals from the judgment of conviction, rendered after a jury trial, of felony murder in violation of General Statutes § 53a-54c,¹ robbery in the first degree in violation of General Statutes § 53a-134 (a) (2),² robbery in the second degree in violation of General Statutes § 53a-135 (a) (1),³ larceny in the second degree in violation of General Statutes § 53a-123 (a) (3),⁴ carrying a pistol without a permit in violation of General Statutes § 29-35⁵ and criminal possession of a firearm in violation of General Statutes (Rev. to 1993) § 53a-217 (a).⁶ The defendant claims that the court improperly (1) failed to excuse a juror who allegedly had been asleep during portions of the trial and that such failure constituted a "structural error" in the trial, (2) refused to grant him a new trial as a result of certain allegedly improper remarks made by the assistant state's attorney during closing argument, (3) charged the jury in its instructions relative to the defendant's consciousness of guilt and (4) instructed the jury that reasonable doubt is not doubt that is suggested by the "ingenuity of counsel." We affirm the judgment of the trial court.

The jury could have reasonably found the following facts. On October 24, 1994, Jose Marrero, his future wife, Amy Cobain, Devon McFarlane and the victim, Louis Hood (victim's group), were on Frank Street in New Haven. Marrero, Hood and Cobain entered a store for the purpose of getting change for Marrero's $100 bill. At the same time, the defendant, Eaker McClendon and Alexander Lacks (defendant's group) were outside the store, talking with Steven Thomas. The defendant's group also entered the store when Marrero attempted to change his $100 bill.

While returning to Hood's residence, the victim's group was followed by the defendant's group. Thereafter, the defendant approached Cobain and placed a gun to her head. Marrero jumped between the defendant and Cobain, and urged the defendant in street parlance not to shoot. Cobain and McFarlane ran off down the street. The defendant then told Marrero to give up his valuables, proceeded to rifle through his pockets and removed his money. The defendant then backed up and began to squeeze the trigger of his handgun. Hood was fatally shot in his attempt to push Marrero away. Cobain and McFarlane heard the shot. McFarlane glanced back and saw the defendant with a gun in his hand.

Officer Edwin Rodriguez of the New Haven police department was the first police officer to arrive at the scene. He observed Hood motionless and unconscious on the ground with a bullet wound in his left arm. No handgun or spent shells were found at the scene. An autopsy revealed that Hood's left arm had been crossed in front of his chest when he was shot. The bullet struck his arm and moved through his chest cavity. Thereafter, the defendant was convicted and this appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly failed to excuse a juror who allegedly had been asleep during portions of the trial and that such failure constituted a structural error in the trial. We disagree. Although the defendant has presented these claims as two separate issues, we will address them as one.

On the second day of evidence, the court noted on the record that it had been brought to its attention, by the court monitor and the sheriff, that a juror might be having some difficulty staying awake. Neither party commented and the trial proceeded. On the next day of evidence, the court again noted for the record the juror's physical mannerisms. Defense counsel suggested that the court question the juror. After conducting the inquiry, the prosecutor opined that the juror had been sleeping. Defense counsel disagreed and argued in defense of the juror's behavior.⁷ The prosecutor again argued that the juror's behavior was inappropriate and that he should be excused. Again, defense counsel disagreed. Thereafter, the court made no finding as to whether the juror had been asleep and, at defense counsel's request, declined to dismiss the juror. Following that colloquy, there was no further mention of the juror's behavior throughout the remainder of the trial.

The defendant asserts that his claim, although not raised at trial, is reviewable pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The state, however, argues that the defendant's claim is not one that is unpreserved, but one that was waived at trial. The state claims, and we agree, that the defendant's claim should fail because Golding does not establish an avenue of appellate review for claims that were waived at trial under those circumstances.

Under Golding, "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Emphasis in original.) Id. "The first two questions relate to whether a defendant's claim is reviewable, and the last two relate to the substance of the actual review." (Internal quotation marks omitted.) State v. Turner, 62 Conn. App. 376, 392, 771 A.2d 206 (2001).

"In the absence of any one of these conditions, the defendant's claim will fail. The appellate tribunal is free, therefore, to respond to the defendant's claim by focusing on whichever condition is most relevant in the particular circumstances." State v. Golding, supra, 213 Conn. 240. In State v. Cooper, 38 Conn. App. 661, 666-67, 664 A.2d 773, cert. denied, 235 Conn. 908, 665 A.2d 903 (1995), cert. denied, 517 U.S. 1214, 116 S. Ct. 1837, 134 L. Ed.2d 940 (1996), we held that a defendant could not satisfy the third prong of Golding where he had implicitly waived at trial a challenge to the alleged constitutional deprivation that was the basis of his claim on appeal. Therefore, a defendant cannot prevail under Golding on a claim that he implicitly waived at trial. See id.

In the present case, it is clear that the defendant waived any claim concerning the allegedly sleeping juror. Defense counsel was apprised by the court that a juror may have been sleeping and, yet, counsel continuously argued that the juror had not been asleep and that his behavior was not inappropriate. "A defendant must avail himself of the opportunity to make an objection and if he `does not avail himself of the opportunity, he must be holden to a waiver of the objection.'" (Internal quotation marks omitted.) State v. Tate, 59 Conn. App. 282, 285, 755 A.2d 984, cert. denied, 254 Conn. 935, 761 A.2d 757 (2000). "To allow the defendant to seek reversal now that his trial strategy has failed would amount to allowing him to induce potentially harmful error, and then ambush the state with that claim on appeal." (Internal quotation marks omitted.) State v. Cooper, supra, 38 Conn. App. 670.

Therefore, because defense counsel was informed by the court of potential juror misconduct, was given the opportunity to object, refused to make an objection, argued in defense of the juror's behavior and, furthermore, requested that the court not dismiss the juror, we conclude that defense counsel's conduct amounts to an implicit waiver of any objection he may have brought concerning the allegedly sleeping juror. Because the defendant waived his claim at trial, he cannot satisfy Golding and, accordingly, his claim must fail.

II

A

The defendant next claims that certain comments made by the assistant state's attorney during his closing argument were improper and violated the defendant's right to a fair trial. We disagree.

The following additional facts are relevant to our resolution of the defendant's claim. During his initial argument to the jury, the assistant state's attorney stated that "[the defendant] probably got himself involved in another robbery a couple of days later." Defense counsel immediately objected. The court sustained the objection and stated, in front of the jury, that the statement was unsupported by the evidence and was not a logical or reasonable inference. Defense counsel did not request either a curative instruction or a mistrial. During his rebuttal argument to the jury, the assistant state's attorney stated that "[a]ll [the victim's] family has left is his picture. Now on a slab, on a cutting board.... Let them come away with a guilty verdict..." The next day, before the court charged the jury, the defendant objected to the references to the victim's body and the comments concerning the victim's family as an inappropriate plea for sympathy. Defense counsel also requested a curative instruction, which the court incorporated into its final jury charge.⁸ "Prosecutorial misconduct may ... occur in the course of closing argument.... Such argument may be, in light of all of the facts and circumstances, so egregious that no curative instruction could reasonably be expected to remove [its] prejudicial impact.... We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the...