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State v. Bolden
STATE OF CONNECTICUT v.
CHRISTOPHER BOLDEN
(AC 46215)
Elgo, Moll and Prescott, Js.
Syllabus
Pursuant to statute (§ 53a-155 (a)), a defendant is guilty of tampering with
evidence if, ‘‘believing that a criminal investigation conducted by a law
enforcement agency . . . is . . . about to be instituted, [the defendant]
. . . conceals . . . [a] thing with purpose to impair its . . . availability
in such criminal investigation . . . .’’
Convicted, following a jury trial, of the crimes of evading responsibility in
the operation of a motor vehicle and tampering with physical evidence,
the defendant appealed to this court. The defendant’s conviction
stemmed from an incident during which the defendant struck and killed
the victim with the SUV he was driving, fled the scene, and thereafter
left the SUV in a driveway. Held:
1. The defendant could not prevail on his claim that the evidence was
insufficient to support his conviction of tampering with evidence:
a. The evidence was sufficient to prove beyond a reasonable doubt that
the defendant believed that a criminal investigation was about to be
instituted when he fled the scene of the accident and abandoned the
SUV he was driving in a driveway; the jury was permitted to consider
circumstantial evidence presented by the state to make reasonable inferences regarding the defendant’s state of mind, including evidence that
the defendant saw the victim on the ground when he returned to the
intersection before fleeing the scene, or that the defendant must have
known from the significant damage to the SUV that the victim had been
injured, and the jury was free to credit or discredit the defendant’s
statements in his recorded statement to the police.
b. There was sufficient evidence to prove beyond a reasonable doubt
that the defendant had concealed the SUV; a rational juror could consider
and credit the context for the defendant’s act of concealment, including
evidence that the defendant likely knew he had seriously injured a pedestrian, fled the scene, and needed to act quickly and temporarily abandon
the vehicle, which had become disabled, and, in light of the defendant’s
exigent circumstances, a juror could conclude that he saw an opportunity
to make the SUV less noticeable in a private driveway among several
other vehicles.
2. This court did not reach the merits of the defendant’s claim that the trial
court’s refusal to answer two questions submitted by the jury during
its deliberations as to whether moving evidence equated to tampering
or concealing evidence resulted in an unconstitutional enlargement of
the charged crimes, as that claim was deemed waived pursuant to State
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State v. Bolden
v. Kitchens (299 Conn. 447): although the trial court did not inform the
parties of the answer it intended to provide to the jury’s questions, it
invited counsel, outside the presence of the jury, to raise any issues
before the answer was given, both counsel stated that they had nothing
further to discuss, and counsel failed to object after the court responded
to the jury’s questions; accordingly, this court could not say that the
defendant was deprived of a fair trial when the record indicated that
the defense was provided a meaningful opportunity to propose an answer
to the jury’s questions and to object to the trial court’s response to
those questions, and, therefore, the defendant waived the right to challenge that response on appeal.
Argued May 15—officially released August 27, 2024
Procedural History
Substitute information charging the defendant with
the crimes of evading responsibility in the operation of
a motor vehicle, misconduct with a motor vehicle, and
tampering with physical evidence, brought to the Superior Court in the judicial district of Waterbury, geographical area number four, and transferred to the judicial district of Waterbury, where the case was tried to
the jury before Kwak, J.; verdict and judgment of guilty
of evading responsibility in the operation of a motor
vehicle and tampering with physical evidence, from
which the defendant appealed to this court. Affirmed.
Alice Osedach Powers, assigned counsel, for the
appellant (defendant).
Alexander O. Kosakowski, certified legal intern, with
whom were Scott A. Warden, certified legal intern, and,
on the brief, Ronald G. Weller, senior assistant state’s
attorney, for the appellee (state).
Opinion
ELGO, J. The defendant, Christopher Bolden, appeals
from the judgment of conviction, rendered following a
jury trial, of evading responsibility in the operation of
a motor vehicle in violation of General Statutes § 14-224
(a) and tampering with physical evidence in violation of
General Statutes § 53a-155 (a). On appeal, the defendant
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State v. Bolden
claims that (1) with regard to the tampering charge, the
evidence was insufficient to prove beyond a reasonable
doubt that the defendant believed that a criminal investigation was about to be instituted and that he had
concealed a thing with the purpose to impair its availability in such investigation, and (2) the court’s refusal
to answer the jury’s questions during its deliberations
resulted in an improper enlargement of the charged
crimes. We disagree and, accordingly, affirm the judgment of the trial court.
The following facts, as reasonably could have been
found by the jury, are relevant to the resolution of this
appeal. At approximately 8:40 p.m. on May 1, 2020,
the defendant, an unlicensed driver, was driving his
girlfriend’s black BMW sport utility vehicle (SUV) on
Baldwin Street in Waterbury. The roadway was dry,
and the intersection of Baldwin Street and Scovill Street
was well lit from the streetlights and exterior lights
from Saint Mary’s Hospital. A witness driving a vehicle
behind the defendant could clearly see the victim, Shaneice Copeland, walking along the sidewalk near the
intersection. As the defendant and the witness both
approached the intersection, the light was green. At
that time, the victim stepped off the sidewalk and into
the crosswalk. The defendant did not slow down or
brake as he approached the intersection, and he struck
the victim with the SUV. The victim rolled over the
hood of the SUV before landing on the street.
After striking the victim, the defendant drove several
hundred feet before coming to a stop on Baldwin Street.
After approximately twenty seconds, the defendant
conducted a U-turn and returned to the intersection
where he had struck the victim. The defendant paused
at the intersection, made eye contact with a witness,
and then immediately fled the scene. Witnesses who
called 911 immediately after the accident described the
victim as a ‘‘body’’ on the ground and noted that she
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State v. Bolden
was ‘‘[laying] on the ground . . . like she is dead.’’ The
victim died later that evening as a result of blunt impact
injuries to the head, neck, torso, and extremities.
After leaving the scene of the accident, the defendant
drove the SUV to Meriden Road in Waterbury, approximately six or seven miles from where the accident
occurred. The SUV began to overheat and smoke. When
the SUV was no longer drivable, the defendant put it
in neutral and allowed it to roll backwards down the
natural incline of the street and into a driveway on
Meriden Road that had at least seven other vehicles
parked in it. The defendant knocked on the door of the
residence and told the homeowner that he was having
car trouble. The homeowner called a cab for the defendant and, when it arrived, at the defendant’s request, the
homeowner and the cab driver assisted the defendant
in pushing the SUV far enough into the driveway so
that its front bumper would no longer protrude into
the street. The defendant then left in the cab, and the
homeowner understood that the defendant would
return the next day for the SUV. The cab driver took
the defendant to his girlfriend’s place of employment,
then drove the couple to a hotel, where they stayed for
the night.
From the description provided by a witness at the
scene of the accident, police investigators knew that
they were looking for a black SUV with front end damage consistent with striking a pedestrian. At approximately 10:50 a.m. the next morning, on May 2, 2022, a
patrol officer found the SUV parked in the driveway on
Meriden Road. The officer noted that the SUV was facing the street, and, as a result, the front end damage
was clearly visible to anyone driving in either direction.
A crime scene technician was dispatched to photograph
and collect evidence from the SUV, while police officers
spoke with the homeowner at that address.
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State v. Bolden
On that same morning, the defendant and his girlfriend were picked up from the hotel by a friend.
Between approximately 11 a.m. and noon, the defendant, along with his friend and his girlfriend, drove past
the driveway on Meriden Road, where the SUV was
parked. The girlfriend testified that it was their intention
‘‘to go get the car, to look at the car, to go see what
happened to the car’’ but, upon seeing the police activity
at the residence on Meriden Road, they drove past it
without stopping and eventually returned to the home
of the defendant’s girlfriend. Once at her home, the
girlfriend called the police to report that her vehicle
had been stolen but later admitted to making the false
report. Soon after, the police arrived and took the defendant and his girlfriend to the police station for questioning. The defendant at that time confessed to striking
the victim with the SUV, leaving the scene without
speaking to anyone, parking and leaving the SUV in the
driveway on Meriden Road, and stated that he was
aware that his girlfriend had falsely reported that the
SUV had been stolen.
The defendant thereafter was arrested and charged
with the following crimes: in count one, evading responsibility in the operation of a motor vehicle in violation
of § 14-224 (a),1 in count two, misconduct with a motor
vehicle in violation of General Statutes § 53a-57 (a),2
and, in count three, tampering with physical evidence
in violation of § 53a-155 (a).3 Specifically, in count three,
1
General Statutes § 14-224 (a) provides in relevant part: ‘‘Each operator
of a motor vehicle who is knowingly involved in an accident which results
in the death of any other person shall at once stop and render such assistance
as may be needed and shall give such operator’s name, address and operator’s
license number and registration number to any officer or witness to the
death of any person . . . .’’
2
General Statutes § 53a-57 (a) provides: ‘‘A person is guilty of misconduct
with a motor vehicle when, with criminal negligence in the operation of a
motor vehicle, he causes the death of another person.’’
3
General Statutes § 53a-155 (a) provides in relevant part: ‘‘A person is
guilty of tampering with or fabricating physical evidence if, believing that
a criminal investigation conducted by a law enforcement agency or an official
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State v. Bolden
the state charged the defendant with tampering with
physical evidence ‘‘in that, on or about May 1, 2020, at
or about [9 p.m.], at or near 727 Meriden Road, in the
[c]ity of Waterbury, Connecticut, the [defendant],
believing that a criminal investigation conducted by a
law enforcement agency was about to be instituted,
concealed a thing with purpose to impair its availability
in such criminal investigation.’’
After the presentation of evidence at trial, the court
instructed the jury on the elements of each of the
charged crimes, noting that ‘‘[t]he state is required to
prove each element and each count beyond a reasonable doubt.’’ During deliberations, the jury asked for
clarification regarding two of the elements in count
three, specifically, whether moving evidence equated
with tampering or concealing evidence. The court
responded that it was up to the jury as a group to
determine that answer.
The jury found the defendant guilty on count one,
evading responsibility in the operation of a motor vehicle in violation of § 14-224 (a), and on count three,
tampering with physical evidence in violation of § 53a-
155 (a). The jury found the defendant not guilty on
count two, misconduct with a motor vehicle in violation
of § 53a-57 (a). The court rendered judgment in accordance with the jury’s verdict and sentenced the defendant to a total effective term of fifteen years of incarceration. This appeal followed. Additional facts will be set
forth as necessary.
I
The defendant’s first claim is that the evidence was
insufficient to support his conviction of tampering with
proceeding is pending, or about to be instituted, such person . . . [a]lters,
destroys, conceals or removes any record, document or thing with purpose
to impair its verity or availability in such criminal investigation or official
proceeding . . . .’’
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State v. Bolden
physical evidence because the state failed to prove
beyond a reasonable doubt that he (1) believed a criminal investigation was about to be instituted when he
fled the scene of the accident and subsequently abandoned the SUV in a driveway, and (2) concealed the
SUV.4 We disagree.
‘‘To determine whether the evidence was sufficient
to establish [an] essential element of [a crime], we apply
a two part test. First, we construe the evidence in the
light most favorable to sustaining the verdict. Second,
we determine whether upon the facts so construed and
the inferences reasonably drawn therefrom, the [jury]
reasonably could have concluded that the cumulative
force of the evidence established guilt beyond a reasonable doubt . . . . In doing so, we are mindful that the
trier of fact is not required to accept as dispositive
those inferences that are consistent with the defendant’s innocence. . . . The trier [of fact] may draw
whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and
logical. . . .
4
In the statement of issues and in the primary heading in his principal
appellate brief, the defendant claims, inter alia, that the evidence was insufficient to prove that he ‘‘intended to conceal a vehicle with the intent to
impair its availability in [a] criminal proceeding.’’ In the subheading and
body of his brief, however, the defendant does not argue the ‘‘intent to
conceal’’ the SUV or ‘‘intent to impair its availability.’’ Rather, the defendant
argues that ‘‘the evidence was insufficient to prove beyond a reasonable
doubt that [he] concealed the vehicle.’’ Because the substance of the defendant’s argument involves the alleged concealment of the SUV, that is the
claim we address on appeal. See, e.g., Taylor v. Mucci, 288 Conn. 379, 383
n.4, 952 A.2d 776 (2008) (‘‘We repeatedly have stated that [w]e are not
required to review issues that have been improperly presented to this court
through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief
the issue properly. . . . Where a claim is asserted in the statement of issues
but thereafter receives only cursory attention in the brief without substantive
discussion or citation of authorities, it is deemed to be abandoned.’’ (Internal
quotation marks omitted.)).
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State v. Bolden
‘‘[W]e do not draw a distinction between direct and
circumstantial evidence so far as probative force is
concerned . . . . Indeed, [c]ircumstantial evidence
. . . may be more certain, satisfying and persuasive
than direct evidence. . . . It is not one fact . . . but
the cumulative impact of a multitude of facts [that]
establishes guilt in a case involving substantial circumstantial evidence.’’ (Citation omitted; internal quotation
marks omitted.) State v. Honsch, Conn. , ,
A.3d (2024).
Section 53a-155 (a) provides in relevant part that
a defendant is guilty of tampering with evidence ‘‘if,
believing that a criminal investigation conducted by a
law enforcement agency . . . is . . . about to be instituted, [the defendant] . . . conceals . . . [a] thing
with purpose to impair its . . . availability in such
criminal investigation . . . .’’5 Consequently, the court
instructed the jury that, in order to find the defendant
guilty of tampering with evidence, it must find the following elements beyond a reasonable doubt: ‘‘(1) the
defendant believed that a criminal investigation conducted by a law enforcement agency was pending or
about to be instituted, (2) the defendant tampered with
physical evidence, and (3) the defendant concealed any
item with the purpose of impairing its availability in
such proceeding.’’
‘‘We . . . note that the jury must find every element
proven beyond a reasonable doubt in order to find the
defendant guilty of the charged offense, [but] each of
the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt.
5
Although § 53a-155 (a) allows a defendant to be convicted if he ‘‘conceals
or removes any . . . thing with purpose to impair its verity or availability’’;
(emphasis added); here, the state only charged the defendant with concealment, and not removal, of a ‘‘thing . . . .’’ For that reason, concealment
was the element used in the jury instructions, as well as the element that
is considered on appeal.
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State v. Bolden
. . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the
jury is permitted to consider the fact proven and may
consider it in combination with other proven facts in
determining whether the cumulative effect of all the
evidence proves the defendant guilty of all the elements
of the crime charged beyond a reasonable doubt.’’
(Internal quotation marks omitted.) State v. Taupier,
330 Conn. 149, 187,
193 A.3d 1 (2018), cert. denied,
U.S. , 139 S. Ct. 1188,
203 L. Ed. 2d 202 (2019).
When a penal statute includes a requirement such as a
defendant’s belief or intent, the jury is often tasked
with considering circumstantial evidence in order to
determine the defendant’s state of mind at the time of
the crime. ‘‘[T]he state of mind of one accused of a
crime is often the most significant and, at the same
time, the most elusive element of the crime charged.
. . . Because it is practically impossible to know what
someone is thinking or intending at any given moment,
absent an outright declaration of intent, a person’s state
of mind is usually [proven] by circumstantial evidence.
. . . For example, intent may be proven by conduct
before, during and after [a crime]. Such conduct yields
facts and inferences that demonstrate a pattern of
behavior and attitude . . . by the defendant that is probative of the defendant’s mental state.’’ (Citation omitted; internal quotation marks omitted.) State v. Bonilla,
317 Conn. 758, 766,
120 A.3d 481 (2015). Here, the jury
was permitted to rely on the circumstantial evidence
presented by the state, such as the defendant’s actions
and his pattern of behavior, to make reasonable and
logical inferences regarding his state of mind.
A
The defendant argues that the evidence was insufficient to prove beyond a reasonable doubt that he
believed that a criminal investigation was about to begin
when he fled the scene of the accident and abandoned
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State v. Bolden
the SUV he has driving in a driveway. Specifically, the
defendant points to his recorded statement to the police
in which he stated that he never observed the victim
on the ground after striking her and, instead, believed
that the victim was uninjured because he mistakenly
thought she was an unidentified person walking along
the sidewalk after the accident. The defendant argues
that, ‘‘as [he] left the scene, he did not believe that an
official proceeding or investigation against him was
probable because he believed that . . . the person had
not been injured.’’ With regard to parking the SUV in
the driveway, the defendant similarly argues that he
moved the disabled SUV into the driveway because
Meriden Road is a busy road with very little shoulder,
and not because he believed that a criminal investigation was about to be instituted. We are not persuaded.
The jury was permitted to consider circumstantial
evidence presented by the state, together with the
defendant’s actions and his pattern of behavior, to
determine his state of mind. ‘‘In evaluating evidence,
the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw
whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and
logical.’’ (Internal quotation marks omitted.) State v.
Campbell, 328 Conn. 444, 504,
108 A.3d 882 (2018). The
jury was free to credit or disregard the defendant’s
statements in his recorded statement to the police. Similarly, the jury was permitted to draw reasonable inferences from the evidence in the record, including that
the defendant saw the victim on the ground when he
returned to—and paused at—the intersection before
fleeing the scene, or that the defendant must have
known from the significant damage to the SUV that the
victim had been injured. The state produced sufficient
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State v. Bolden
evidence upon which the jury could find that the defendant believed that a criminal investigation was about
to be instituted when he fled the scene and ultimately
abandoned the SUV. Accordingly, the defendant’s
claim fails.
B
The defendant next claims that the state’s evidence
was insufficient to prove beyond a reasonable doubt
that he concealed the SUV. The defendant provides
various definitions of the term ‘‘conceal’’ and argues
that this term ‘‘cannot be interpreted broadly, but must
be construed narrowly . . . .’’ On the basis of a narrow
reading of the definitions he provided, the defendant
argues that, ‘‘[b]ecause there was no evidence that [he]
attempted to or did conceal the vehicle, the [jury’s]
verdict was based on speculation and not reasonable
inferences drawn from the evidence.’’ We disagree.
‘‘When construing a statute . . . [General Statutes]
§ 1-2z directs us first to consider the text of the statute
itself and its relationship to other statutes. If, after
examining such text and considering such relationship,
the meaning of such text is plain and unambiguous and
does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be
considered. . . . In determining whether the statutory
language is plain and unambiguous, words and phrases
[must] be construed according to the commonly
approved usage of the language . . . . General Statutes § 1-1 (a).’’ (Citation omitted; internal quotation
marks omitted.) Redding Life Care, LLC v. Redding,
331 Conn. 711, 718,
207 A.3d 493 (2019). The word
‘‘conceal’’ is not defined in § 53a-155 (a) (1) or elsewhere in the Penal Code. Although ‘‘[w]e ordinarily look
to the dictionary definition of a word to ascertain its
commonly approved usage’’; (internal quotation marks
omitted) Redding Life Care, LLC v. Redding, supra,
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State v. Bolden
718; in a jury trial, ‘‘[i]t is not necessary to define words
[for the jury] which are commonly used and which are
defined in our standard dictionaries. [T]he definition of
words in our standard dictionaries is taken as a matter
of common knowledge which the jury is supposed to
possess.’’ (Internal quotation marks omitted.) State v.
Lewtan, 5 Conn. App. 79, 85,
497 A.2d 60 (1985).
‘‘[J]urors . . . are not required to leave common sense
at the courtroom door . . . nor are they expected to
lay aside matters of common knowledge or their own
observations and experience of the affairs of life . . . .’’
(Internal quotation marks omitted.) State v. King, 289
Conn. 496, 522,
958 A.2d 731 (2008). Thus, it is in the
purview of a jury to use and apply the ordinary meaning—as the jury understands it—of a word that is commonly used and is not statutorily defined. It is with this
understanding that courts often decline to provide a jury
with a dictionary definition of commonly understood
terms. See, e.g., State v. Lewis, 303 Conn. 760, 782–83,
36 A.3d 670 (2012) (presuming jury understood and
applied common usage of disputed terms); State v.
Maresca, 173 Conn. 450, 460,
377 A.2d 1330 (1977)
(court did not err in failing to define terms that may be
understood in their ordinary meaning); State v. Lewtan,
supra, 85 (courts may ‘‘refuse to define words which
are ‘used and might be understood in their ordinary
meanings’ ’’).
Here, it is presumed that the jury would know the
commonly understood meaning of the word ‘‘conceal.’’
Merriam-Webster’s Collegiate Dictionary includes in its
definition of the word ‘‘conceal’’ ‘‘to prevent disclosure
or recognition of [something] . . . .’’ Merriam-Webster’s Collegiate Dictionary (11th Ed. 2014) p. 257. Using
their ‘‘common knowledge . . . and experience of the
affairs of life’’; (internal quotation marks omitted) State
v. King, supra,289 Conn. 522; the jurors were expected
to determine whether the defendant’s placement of the
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State v. Bolden
SUV in the driveway was an act of concealment in
keeping with a commonly understood definition of the
word ‘‘conceal.’’
Although the defendant argues that, if it was his intention, he could have more effectively concealed the SUV
by using a tarp, parking it in a garage, or facing it away
from the street, that is not the relevant inquiry. Rather,
when considering a sufficiency of the evidence claim,
we view the cumulative evidence in the light most favorable to sustaining the jury’s verdict and then determine
whether any rational juror could find that the defendant
concealed the SUV.
There is sufficient evidence in the record to sustain
the jury’s verdict. First, a rational juror could consider
and credit the context for the act of concealment,
which, here, includes evidence that the defendant likely
knew he had seriously injured a pedestrian, fled the
scene, and needed to quickly and temporarily abandon
the SUV. Next, in light of the exigencies of the defendant’s circumstances, a juror could conclude that the
defendant saw an opportunity to make the SUV less
noticeable in a private driveway with a significant number of other vehicles. Using the commonly understood
definition of ‘‘concealment,’’ a rational juror reasonably
could conclude that parking a disabled vehicle in a
private driveway amongst several other vehicles, even
if the subject vehicle is in plain sight, could prevent
the vehicle from being located. For this reason, the
defendant’s argument that the evidence was insufficient
to prove that he committed an act of concealment fails.
II
The defendant’s second claim is that the court’s
refusal to answer the jury’s questions as to whether
moving evidence equated to tampering or concealing
evidence unconstitutionally enlarged the charged
offense. We do not reach the merits of this claim
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State v. Bolden
because it is deemed waived pursuant to State v. Kitchens, 299 Conn. 447,
10 A.3d 942 (2011), and because the
defendant failed to properly raise a claim of plain error.6
The following additional facts are relevant to this
claim. During deliberations, the court received a note
containing two questions from the jury concerning
count three, the tampering charge. Specifically, the jury
asked: ‘‘Related to count three: In element [two], does
moving evidence equate to tampering with evidence?
In element [three], does moving evidence equate to
concealing evidence?’’ Before calling the jury back into
the courtroom, the court advised the parties that it
would excuse the jury for the remainder of the day and
would respond to its questions the following morning.
The court read the questions aloud to the parties and
their respective counsel, excused the jury, and then
asked counsel if they wanted to read the note for themselves. Both counsel declined. The court then asked:
‘‘Is there anything before we adjourn for today?’’ Both
parties’ counsel responded, ‘‘No, Your Honor.’’
The next morning, the court again invited the parties
to provide feedback by asking: ‘‘Is there anything we
6
‘‘[T]he plain error doctrine is reserved for truly extraordinary situations
[in which] the existence of the error is so obvious that it affects the fairness
and integrity of and public confidence in the judicial proceedings. . . . A
party cannot prevail under plain error unless it has demonstrated that the
failure to grant relief will result in manifest injustice.’’ (Citation omitted;
internal quotation marks omitted.) State v. McClain, 324 Conn. 802, 812,
155 A.3d 209 (2017). In his principal appellate brief, the defendant makes
several conclusory assertions that ‘‘the trial court’s inadequate response to
the jurors’ questions constituted plain error,’’ but provides no analysis to
support his claim. Although the defendant’s reply brief contains a citation
to case law regarding the plain error doctrine, it similarly is devoid of
analysis, and, instead, merely asserts that the plain error doctrine applies
to his claim. ‘‘We repeatedly have stated that [w]e are not required to
review issues that have been improperly presented to this court through an
inadequate brief. . . . Analysis, rather than mere abstract assertion, is
required in order to avoid abandoning an issue by failure to brief the issue
properly.’’ (Internal quotation marks omitted.) Taylor v. Mucci, supra,288
Conn. 383 n.4.
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State v. Bolden
need to discuss before bringing [in] the [jurors] and
[giving] them an answer to the questions that they asked
yesterday?’’ Both counsel responded: ‘‘No, Your
Honor.’’ The jurors were brought into the courtroom,
and the court read back their questions regarding
whether moving evidence equated to concealing or tampering with evidence, and stated: ‘‘[The court] cannot
give you that answer. That is for you to determine,
whether that equates to those things. So, you’ll have to
make that decision as a group.’’ The court asked the jury
to resume its deliberations, then affirmatively asked
counsel if there was ‘‘[a]nything before we recess,’’ to
which both counsel responded: ‘‘No, Your Honor.’’
Defense counsel expressed no objection to the court’s
course of action in responding to the jury’s note.
Whether the court’s response to the jury’s questions
resulted in an enlargement of the charged offenses constitutes a legal question over which we exercise plenary
review. See, e.g., State v. David N.J., 301 Conn. 122,
158,
19 A.3d 646 (2011) (‘‘enlargement claims . . .
require us to exercise plenary review’’).
On appeal, the defendant concedes that his enlargement claim was not preserved before the trial court
and thus requests review pursuant to State v. Golding,
213 Conn. 233,
567 A.2d 823 (1989), as modified by In
re Yasiel R., 317 Conn. 773, 781,
120 A.3d 1188 (2015).
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 . . . exists and . . . 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
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a reasonable doubt.’’ (Emphasis in original; footnote
omitted.) State v. Golding, supra, 239–40.
It is undisputed that the first two prongs of Golding
are satisfied in the present case. The state argues, however, that the third prong is not met because the defendant waived his claim pursuant to State v. Kitchens,
supra,299 Conn. 447. We agree with the state.
‘‘A defendant in a criminal prosecution may waive
one or more of his or her fundamental rights. . . . [I]n
the usual Golding situation, the defendant raises a claim
on appeal [that], while not preserved at trial, at least
was not waived at trial. . . . [A] constitutional claim
that has been waived does not satisfy the third prong
of the Golding test because, in such circumstances, we
simply cannot conclude that injustice [has been] done
to either party . . . or that the alleged constitutional
violation . . . exists and . . . deprived the defendant
of a fair trial. . . .
‘‘The mechanism by which a right may be waived
. . . varies according to the right at stake. . . . For
certain fundamental rights, the defendant must personally make an informed waiver. . . . For other rights,
however, waiver may be effected by action of counsel.
. . . [Our Supreme Court] has stated that among the
rights that may be waived by the action of counsel in
a criminal proceeding is the right of a defendant to
proper jury instructions.’’ (Citations omitted; internal
quotation marks omitted.) State v. Kitchens, supra,299
Conn. 467.
The waiver by the defendant in this case is comparable to the waiver that was effected in State v. Grasso,
189 Conn. App. 186,
207 A.3d 33, cert. denied,
331 Conn.
928,
207 A.3d 519 (2019). During jury deliberations in
Grasso, the jury requested to rehear the closing arguments of counsel. Id., 222. Outside of the jury’s presence, the court read the request to the parties’ counsel,
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told them it would deny the request, and indicated that
it would, instead, instruct the jury on direct and circumstantial evidence. Id., 223. Counsel for both parties
affirmatively stated they did not have an issue with the
court’s proposed response. Id. The jury returned to the
courtroom, the court informed the jury that its request
to rehear the closing arguments was denied, and then
instructed the jury regarding direct and circumstantial
evidence. Id., 223–24. Thereafter, the jury returned to
its deliberations, and neither party raised the issue again
until the defendant’s subsequent appeal from the judgment of conviction. Id., 224. On appeal, this court determined that the defendant had waived the opportunity
to challenge the propriety of the court’s response to
the jury’s request because, at trial, defense ‘‘counsel
affirmatively replied that there were no objections to
the court’s response and, even after the court addressed
the jury in the manner it had proposed, neither the
prosecutor nor defense counsel stated any reservations
or objections to the court’s response.’’ Id., 226.
Here, although the court did not inform the parties
of the answer it intended to provide to the jury’s questions, it twice invited counsel—outside the presence of
the jury—to raise any issues they wanted to discuss
prior to the answer being given. Both counsel affirmatively stated that they had nothing to discuss. Then,
similar to Grasso, neither counsel raised a concern or
objection after the court responded to the jury’s questions, even though here, they were affirmatively invited
to do so. As a result, we conclude that the defendant
cannot satisfy the third prong of Golding. We cannot
say that the defendant was deprived of a fair trial when
the record indicates that the defense was provided a
meaningful opportunity to either propose an answer to
the jury’s questions or object to the court’s response
to those questions. Accordingly, because the defense
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State v. Bolden
acquiesced to the court’s response to the jury’s questions, the defendant waived, pursuant to Kitchens, the
right to challenge that response on appeal. The defendant’s claim fails because it is waived and, therefore,
does not satisfy Golding’s third prong. As a result, we
do not reach the merits of the defendant’s enlargement claim.
The judgment is affirmed.
In this opinion the other judges concurred.
