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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; thereafter, 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; thereafter, 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 attorney, and Chris A. Pelosi, senior assistant state’s attorney, 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 concurrence 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 violated 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 relevant 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 General Statutes §§ 53a-49 (a) (2) and 53a-134 (a), and carrying 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 Connecticut 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] §§ 53a49a (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 anything 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 violation 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 constitutional 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 monitor. 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 proceedings. 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 counsel 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, defendant’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 criminal 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 transcript, 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.