State v. HicksState v. Hicks
- Reporters:
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- Before:
- Harper
Opinion
The defendant, Toreri Hicks, appeals from the judgment of conviction, rendered after a jury trial, of three counts of sale of
The jury reasonably could have found the following facts. In late 2002, the defendant was the subject of an undercover investigation by the Stamford police department. Incident to this investigation, an agent with the federal Bureau of Alcohol, Tobacco and Firearms posed as a purchaser of cocaine. On December 2, 2002, the defendant sold a quantity of crack cocaine to the undercover agent in the parking lot of a restaurant in Stamford for $123. The parking lot was located less than 1500 feet from a public housing project. On December 10, 2002, the defendant sold a quantity of crack cocaine to the agent in the same parking lot for $120. On December 18, 2002, the defendant sold a quantity of crack cocaine to the agent at a gasoline station in Stamford for $120.
The defendant did not testify at trial. In its jury charge, the court instructed the jury in relevant part as follows: “[W]hen you’re deciding the facts, ladies and gentlemen, make sure that you consider them fairly, carefully, find them impartially, impartially without any consideration as to the effect that it may have on anyone who has testified, including the defendant, who didn’t testify. You’re not to draw any unfavorable inference. But what I’m driving at is, it’s your finding of the facts that will control, and you’re not to be concerned about punishment in the event of a finding of guilty, you’re not to be concerned about what effect, if any, any of the witnesses may have in the final outcome of this case. You find the facts as you find them, fairly and impartially.”
The defendant claims that the foregoing instruction did not satisfy the requirement of
The defendant neither took exception to the court’s instruction immediately after it was delivered nor requested a no unfavorable inferences instruction
“Under prong three of Golding, a challenged jury instruction constitutes a clear constitutional violation that [unmistakably] deprives a defendant of a fair trial if it is found reasonably possible that the jury was misled by the court’s instruction. . . . The standard of review for constitutional claims of improper jury instructions is well settled. In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. . . . As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper.” (Citation omitted; internal quotation marks omitted.) Id., 820-21.
“The United States Supreme Court, in Carter v. Kentucky, 450 U.S. 288, 101 S. Ct. 1112, 67 L. Ed. 2d 241 (1981), discussed the fundamental importance of a no adverse inference instruction and its relation to the constitutional privilege against self-incrimination embodied in the fifth amendment to the United States constitution. The Supreme Court noted that [t]he principles enunciated in our cases construing this privilege, against both statutory and constitutional backdrops, lead unmistakably to the conclusion that the Fifth Amendment requires that a criminal trial judge must give a no adverse-inference jury instruction when requested by a defendant to do so. Id., 300.
“The Supreme Court underscored the significance of such an instruction in light of the tendency of jurors to view a criminal defendant’s fifth amendment privilege as a shelter for wrongdoers . . . [and jurors who] too readily assume that those who invoke it are . . . guilty of crime .... Id., 302. The court stated that [a] trial judge has a powerful tool at his disposal to protect the constitutional privilege — the jury instruction — and he has an affirmative constitutional obligation to use that tool when a defendant seeks its employment. No judge can prevent jurors from speculating about why a defendant stands mute in the face of a criminal accusation, but a judge can, and must, if requested to do so, use the unique power of the jury instruction to reduce that speculation to a minimum. Id., 303.” (Internal quotation marks omitted.) State v. Stewart, 64 Conn. App. 340, 346-17, 780 A.2d 209, cert. denied, 258 Conn. 909, 782 A.2d 1250 (2001).
“The provisions of
“Our Supreme Court has noted that the legislature, in enacting
“Failure to follow the exact wording of
In the present case, the court’s no unfavorable inferences instruction was delivered in the context of instructions concerning how the jury was to find facts in general. Thus, the court did not discuss separately the no unfavorable inferences instruction. The court instructed the jury to find facts fairly, carefully and impartially. The court instructed the jury not to consider the effect of its findings upon any person, including the defendant who had not testified. The court then stated that the jury was “not to draw any unfavorable inference.” Following this statement, the court stated that the jury was not to be concerned about the punishment that would result in the event it reached a guilty verdict and reiterated that the jury should not consider the effect of its findings on any witness.
The court mentioned the fact that the defendant did not testify in the context of its instruction that the jury should disregard the effect of its findings on any witness. Although it immediately follows mention of the fact that the defendant did not testify, the court’s instruction that the jury “not draw any unfavorable inference”
We have reviewed the jury charge as a whole. No other instructions or statements in the charge either address the no unfavorable inferences instruction or are relevant to the instruction at issue. Viewing the instruction at issue, as well as the charge as a whole, we are unable to conclude that the court clearly conveyed the substantive meaning of the statutorily prescribed instruction, which is that the jury was not to draw an unfavorable inference from the fact that the defendant did not testify. This is what the statute requires. A defendant is not entitled to jury instructions that either are eloquent or are “as accurate upon legal principles as the opinions of a court of last resort”; (internal quotation marks omitted) State v. Patterson, 276 Conn. 452, 467, 886 A.2d 777 (2005); but the trial court’s instructions must clearly convey to the laypersons of the jury the legal principles which apply. Gauging the likely effect of the instruction on the jury, we conclude that it is reasonably possible that the instruction misled the jury.
The state urges us to consider the likely effect of the court’s instruction on the jury in light of the preliminary instructions that the court provided the jury at the beginning of the trial.3 In its preliminary instructions to the jury, which the court delivered prior to the presentation of evidence and immediately after the jury panel was sworn, the court stated in relevant part: “[T]he state of Connecticut brought the charges against the defendant. I’m going to read those charges to you briefly. The state has the burden of proof. It does not shift to the defendant. The defendant has no obligation to offer any evidence or testimony or to take the [witness] stand, and if he chooses to do neither of those things nor any or all of those, you cannot draw any unfavorable inference against the defendant. That’s his constitutional right, to ask the state to prove the charges against him beyond a reasonable doubt. He has pleaded not guilty, he has asked to be tried by a jury. You are the jurors, and you will decide his guilt or innocence.”
The state posits that the no unfavorable inferences instruction, provided to the jury prior to the time that the court delivers its charge, may be considered in determining whether it is reasonably possible that a no unfavorable inferences instruction delivered in a court’s charge misled the jury. The defendant cites State v. Marra, 195 Conn. 421, 441-44, 489 A.2d 350 (1985), in support of this proposition. The defendant in Marra challenged the court’s instruction that the jury draw “ ‘no inference or taint’ ” from his failure to testify. Id., 441 n.4. Our Supreme Court concluded that, despite the fact that “this instruction was not in strict compliance
In Marra, the Supreme Court concluded that the instruction provided in the court’s charge satisfied the requirement of the statute. The Supreme Court interpreted the trial court’s instruction to preclude any unfavorable inferences being drawn from the defendant’s decision not to testify. The fact that the court subsequently noted that other instructions provided to the juiy prior to the court’s charge properly resembled the language set forth in the statute appears to have been a point of limited significance in the court’s analysis. We do not interpret the decision to hold, either implicitly or explicitly, that proper instructions provided prior to the time of the court’s charge could satisfy the statutory mandate in their own right or remedy deficient instructions delivered during the court’s charge.
Our rejection of the state’s reliance on preliminary instructions provided to the jury is reinforced by this court’s holdings in State v. Vega, 36 Conn. App. 41, 646 A.2d 957 (1994), and State v. Stewart, 60 Conn. App. 301, 759 A.2d 142, remanded, 255 Conn. 913, 763 A.2d 1039 (2000), on remand, 64 Conn. App. 340, 780 A.2d 209, cert. denied, 258 Conn. 909, 782 A.2d 1250 (2001). In Vega, this court concluded that the no unfavorable inferences instruction delivered by the court in its charge was deficient. State v. Vega, supra, 48. The state argued that instructions provided to venirepersons as well as preliminary instructions provided to selected and sworn jurors prior to the presentation of evidence rendered harmless the court’s improper instruction. Id., 46. This court rejected this harmlessness analysis on several grounds. The court reasoned that “¡although the trial court instructed prospective jurors that they could draw no unfavorable inference from the defendant’s failure to testify, at least one week elapsed between such instructions and the court’s final charge. . . . Further, we note that [w]hen preliminary instructions are given, they do not supersede those given after evidence and arguments under our practice.” (Citations omitted; internal quotation marks omitted.) Id., 48.
In Stewart, the court failed to deliver a no unfavorable inferences instruction in its charge, and there was no evidence that the defendant had requested such a charge. State v. Stewart, supra, 60 Conn. App. 308-309. The state argued, however, that the court did not totally omit such an instruction in the case because “the court told the two venire panels from which the jury subsequently was drawn that the jury could not draw any unfavorable inference in the event that that the defendant chose not to testify.” Id., 309.
This court rejected on several grounds the state’s claim that the court’s statements to the venire panels satisfied the
To the extent that the state relies on the importance of the preliminary instructions provided after the jury was seated and sworn, rather than instructions given by the court to venirepersons, the rationale set forth in Vega and Stewart defeats its argument. Here, the court provided preliminary instructions to the jury several days prior to the time it delivered its jury charge. At the time that it delivered its preliminary instructions, the court obviously was unable to state with certainty whether the defendant would exercise his right not to testify during the evidentiary phase of the trial.
The judgment is reversed and the case is remanded for a new trial.
In this opinion the other judges concurred.
Notes
The court sentenced the defendant to serve a, total effective term of incarceration of sixteen and one-half years, followed by five years of special parole.
The defendant also claims that he was deprived of a fair trial because of prosecutorial misconduct that occurred during closing argument. In light of our resolution of the defendant’s first claim and the fact that the nature of the alleged prosecutorial misconduct claim makes it unlikely that it will arise on retrial, we need not reach this second claim.
The state also argues that relevant to our inquiry is the tact that during voir dire examination, the defendant’s counsel discussed the no adverse inferences instruction with each member of the jury and that each member of the jury indicated that he or she would follow such an instruction. That fact is not relevant.