State v. Brown

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STATE OF CONNECTICUT v. CLEVELAND BROWN
(AC 41386)
DiPentima, C. J., and Elgo and Norcott, Js.

Syllabus

Convicted, following a jury trial, of the crimes of murder and carrying a
pistol without a permit, the defendant appealed. On appeal, he claimed,
for the first time, that the trial court improperly failed to ensure that
the trial transcript reflected each juror’s oral concurrence with the jury
verdict, in violation of his state and federal constitutional due process
rights. Initially, the jury had announced its verdict in the absence of the
court monitor. Thereafter, the court monitor returned, and the trial court
instructed the jury foreperson to reiterate the jury’s verdict so that it
would appear on the transcript. Held that the record was inadequate to
review the defendant’s unpreserved claim, pursuant to State v. Golding,
(213 Conn. 233), that his state and federal constitutional due process
rights had been violated; although the defendant argued that there was
an adequate record because the transcript set forth the trial court’s
remarks after the portion of the proceedings in which the foreperson
stated the jury’s verdict at trial, defense counsel made no attempt to
make a record of what transpired during the unrecorded announcement
of the verdict, and without a record, this court could not establish the
factual predicate necessary to review the defendant’s claim of error.
Argued September 17—officially released November 6, 2018

Procedural History

Information charging the defendant with the crimes
of murder, felony murder, attempt to commit robbery
in the first degree, criminal possession of a firearm;,
and carrying a pistol without a permit, brought to the
Superior Court in the judicial district of Hartford; there-
after, the defendant elected a court trial as to the charge
of criminal possession of a firearm; subsequently, the
state entered a nolle persequi as to that charge; there-
after, the remaining charges were tried to the jury
before Dewey, J.; verdict and judgment of guilty of
murder and carrying a pistol without a permit, from
which the defendant appealed. Affirmed.
Stephanie L. Evans, for the appellant (defendant).
Jennifer F. Miller, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and Chris A. Pelosi, senior assistant state’s attor-
ney, for the appellee (state).
Opinion

PER CURIAM. The defendant, Cleveland Brown,
appeals from the judgment of conviction, rendered after
a jury trial, of murder in violation of General Statutes
§ 53a-54a (a) and carrying a pistol without permit in
violation of General Statutes § 29-35 (a). On appeal he
claims that the trial court failed to ensure that the trial
transcript reflected each individual juror’s oral concur-
rence with the jury verdict. Specifically, the defendant
argues that Practice Book § 42-29, which provides that
‘‘the verdict shall be . . . announced by the jury in
open court,’’ requires that all jurors orally concur with
the verdict, and that the trial court’s failure to ensure
that this procedure was transcribed on the record vio-
lated his state and federal constitutional due process
rights. In response, the state argues that the record is
inadequate for review. We agree with the state that we
have an inadequate record for review in the present
case.1 Accordingly, we affirm the judgment of the
trial court.
The following facts and procedural history are rele-
vant to the defendant’s appeal. The defendant was tried
before a jury on a four count information charging him
with murder in violation of § 53a-54a (a), felony murder
in violation of General Statutes § 53a-54c, attempt to
commit robbery in the first degree in violation of Gen-
eral Statutes §§ 53a-49 (a) (2) and 53a-134 (a), and car-
rying a pistol without a permit in violation of § 29-
35 (a).2 The jury initially announced its verdict in the
absence of the court monitor and, therefore, it was not
transcribed. Once the court monitor was present, the
court instructed the jury foreperson to reiterate the
verdict. The following colloquy took place:
‘‘The Court: Are you ready. All right. I’m going to
note for the record that the verdict was already
announced by the jurors. Unfortunately, the monitor
was not here—was not called. So for the record all of
the juror’s names were called out. All of the jurors
indicated they are present. The only portion that you’re
going to reread is the actual verdict itself the questions.
All right. If the foreperson could please stand. Thank
you. All right. Do it again.
‘‘The Clerk: Madam Foreperson, has the jury reached
a verdict in the case of the state of Connecticut versus
Cleveland Brown, docket number HHD-CR14-0676472T,
please answer yes or no.
‘‘Madam Foreperson: Yes.
‘‘The Clerk: Will defendant, Cleveland Brown, please
rise and remain standing.
‘‘Madam Foreperson, in the first count charging the
defendant with the crime of murder in violation of Con-
necticut General Statutes § 53a-54a (a), do you find the
defendant guilty or not guilty.
‘‘Madam Foreperson: Guilty.
‘‘The Clerk: In count two, charging the defendant with
the crime of felony murder in violation of Connecticut
General Statutes § 53a-54c, do you find the defendant
guilty or not guilty?
‘‘Madam Foreperson: Not guilty.
‘‘The Clerk: In count three charging the defendant
with the crime of attempted robbery in the first degree
in violation of Connecticut General [Statutes] §§ 53a-
49a (2) [and] 53a-134a, do you find the defendant guilty
or not guilty?
‘‘Madam Foreperson: Not guilty.
‘‘The Clerk: In count four charging the defendant with
the crime of pistol without a permit in violation of
Connecticut General [Statutes] § 29-35 (a), do you find
the defendant guilty or not guilty?
‘‘Madam Foreperson: Guilty.
‘‘The Court: The verdict was ordered recorded. The
verdict was repeated. All of the jurors concurred in the
verdict. Thank you. The sentencing date was set for—
‘‘[Defense Counsel]: The twelfth.
‘‘The Court: —May 12th. With that now is there any-
thing further from counsel?
‘‘[The Prosecutor]: How to address bond after or now,
Your Honor?
‘‘The Court: Afterwards. I’m going to have the jurors
and the alternates if you can just go into the jury room
for just a few minutes. We’ll take just a few minutes.
‘‘[Defense Counsel]: For the record, Your Honor, I
do concur that all of the jurors did nod3 affirmatively—
‘‘The Court: Thank you. If you can just wait in the
jury room. I’ll be right there. Okay?’’
The court sentenced the defendant to a total effective
term of fifty years incarceration. This appeal followed.
The defendant claims for the first time on appeal that
the court erred because it did not take steps to ensure
that each individual member of the jury announced the
jury verdict on the record. The defendant nevertheless
asks us to review his claim under State v. Golding, 213
Conn. 233, 567 A.2d 823 (1989). Under Golding, when
a defendant raises a claim of constitutional error for
the first time on appeal, the claim is reviewable only if
the defendant satisfies all of the following conditions:
‘‘(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 . . . exists and . . .
deprived the [defendant] of a fair trial; and (4) if subject
to harmless error analysis, the state has failed to demon-
strate harmlessness of the alleged constitutional viola-
tion beyond a reasonable doubt.’’ (Internal quotation
marks omitted.) In re Yasiel R., 317 Conn. 773, 779–81,
120 A.3d 1188 (reviewing standard set forth in State v.
Golding, supra, 233, and modifying third prong). When
raising a claim for the first time on appeal, the defendant
‘‘bears the responsibility for providing a record that is
adequate . . . . If the facts revealed by the record are
insufficient, unclear or ambiguous as to whether a con-
stitutional violation has occurred, [this court] will not
attempt to supplement or reconstruct the record, or to
make factual determinations, in order to decide the
defendant’s claim.’’ State v. Golding, supra, 240.
Here, the defendant claims that the record is adequate
for review under the first prong of Golding because the
transcript sets forth the trial court’s remarks after the
portion of the proceedings in which the foreperson
stated the jury’s verdict. In response, the state contends
that the defendant did not provide an adequate record
for review because he did not attempt to supplement
or reconstruct the record so as to fill in the gap that
occurred in the transcript when the jury initially
announced its verdict in the absence of the court moni-
tor. We agree with the state.
In the present case, we do not have a record of the
jury’s initial announcement of its verdict because the
court monitor was not present for that part of the pro-
ceedings. The record available to us reveals that when
the court monitor returned, the court instructed the
jury foreperson to reiterate the jury’s verdict so that it
would appear on the transcript. The court reiterated
each charge, and the jury foreperson announced the
jury’s verdict accordingly. Subsequently, defense coun-
sel noted on the record that each member of the jury
nodded in agreement with the verdict.4
At trial defense counsel made no attempt to make a
record of what transpired during the unrecorded
announcement of the verdict. Without a record, we
cannot establish the factual predicate necessary to
review the defendant’s claim of error and, therefore,
cannot discern whether a colorable claim exists. See
Practice Book § 66-5; see also State v. Benitez, 122
Conn. App. 608, 613–14, 998 A.2d 844 (2010) (holding
that although record was adequate for review, defen-
dant’s claim failed under Golding’s third prong because
‘‘[t]he defendant did not avail himself of his right to
seek rectification of the record’’); State v. Vines, 71
Conn. App. 751, 761–62, 804 A.2d 877 (2002) (declining
to review defendant’s claim when defendant did not
satisfy his burden to create record detailing events that
gave rise to his claim of error), aff’d, 268 Conn. 239,
842 A.2d 1086 (2004). Accordingly, we decline to review
the defendant’s claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
While the state’s primary argument is that the record is inadequate for
review, the state alternatively argues that there is no such federal or state
constitutional right to have all jurors orally concur with the verdict or, if
we review the defendant’s claim on the merits, the defendant had the benefit
of each juror’s oral concurrence with the record. Because we find that the
record is inadequate for review, we do not address the state’s alternative
arguments.
2
The state’s long form information also charged the defendant with crimi-
nal possession of a firearm in violation of General Statutes § 53a-217 (a)
(1). The defendant elected a court trial as to that charge, and the state
subsequently entered a nolle.
3
Although the transcript reads ‘‘not,’’ the defendant’s brief acknowledged
that the word ‘‘not’’ should read ‘‘nod.’’ Additionally, on February 28, 2018,
this court granted the state permission to file a late motion for rectification
of the record, claiming that the word ‘‘not’’ should read ‘‘nod.’’ On March
5, 2018, the trial court issued a memorandum of decision granting the state’s
motion for rectification, in which it ordered that page 83 of the trial tran-
script, lines 12–14, should read as follows: ‘‘[Defense Counsel]: For the
record, Your Honor, I do concur that all of the jurors did nod affirmatively—’’
4
The record is not clear as to whether defense counsel concurred that
the jury nodded in agreement during the unrecorded announcement of the
verdict, during the recorded announcement of the verdict, or both.