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STATE OF CONNECTICUT v. MAURICE SNOWDEN

(AC 38758)

Keller, Mullins and Sullivan, Js.

Argued November 28, 2016—officially released March 21, 2017

(Appeal from Superior Court, judicial district of

Hartford, Mullarkey, J.)

Richard E. Condon, Jr., senior assistant public

defender, with whom was S. Max Simmons, assigned

counsel, for the appellant (defendant).

Harry Weller, senior assistant state’s attorney, with

whom, on the brief, were Gail P. Hardy, state’s attorney, and Robin D. Krawczyk, senior assistant state’s

attorney, for the appellee (state).
Opinion

SULLIVAN, J. The defendant, Maurice Snowden,

appeals from the judgment of conviction,rendered after

a jury trial, of murder in violation of General Statutes

§ 53a-54a and criminal possession of a pistol or revolver

in violation of General Statutes (Rev.to 2011) § 53a-217c

(a) (1) (criminal possession). On appeal, the defendant

claims that (1) the trial court erred in permitting joinder

of one information charging murder with a second information charging a separate instance of criminal possession; and (2) this court should adopt a ‘‘clear failure of

judicial obligation’’ standard for conducting a harmless

error analysis under the facts of this case.1 We affirm

the judgment of the trial court.

The jury reasonably could have found the following

facts.2 For some time preceding the murder of the victim, Michael Taylor, the defendant and the victim had

been involved in an ongoing dispute. Additionally,

approximately one week prior to the murder, the defendant told a lifelong friend, Everett Walker, that he

wanted to kill the victim. Indeed, the victim knew that

the defendant intended to harm him because he had

told Walker, also a lifelong friend, that the defendant

was ‘‘out to get me,’’ and the victim was so nervous

that he sat on his porch armed with knives.

Early in the morning on July 26, 2011, T.M.3 was

driving with his cousin, Desmond Wray, around the

north end of Hartford selling drugs when the defendant

flagged him down on Enfield Street and asked to buy

crack. At first, T.M. did not recognize the defendant,

whom he had known since childhood and spent time

with earlier the same month, because the defendant

was wearing a disguise comprised of a fake beard drawn

on with a marker and a shirt over his head, as well

as utilizing crutches. At the same time, the defendant

engaged the victim, who was nearby, in a discussion,

looking to buy marijuana from him. After the defendant

crossed the street to approach the victim, the defendant

shot the victim in the face, resulting in his death.

Thereafter, the defendant got into the back of T.M.’s

car and told him to drive to Earle Street in Hartford.

Once the defendant was in the car and began removing

his disguise, T.M. recognized him as the defendant. T.M.

took the defendant to Earle Street and the defendant

exited the car.

At approximately 3 a.m. on July 26, 2011, the defendant arrived at the apartment of another childhood

friend, Latia Avril, at 31 Owen Street in Hartford. During

his visit, the defendant showed Avril a black gun, and

how to open and fire it. Later that evening while the

defendant was still there, police officers knocked on

Avril’s doorto serve a warrant forthe defendant’s arrest

for unrelated offenses. The defendant threw a .38 caliber revolver into a clothes hamper and attempted to
escape through a bedroom window, but police officers,

who were waiting outside the window, apprehended

him. As the police officers escorted him to their vehicle,

he stated, ‘‘that gun I used it’s not here, it’s on

Enfield Street.’’

Meanwhile, Avril went to the door and police officers

entered the apartment. Avril indicated to police that the

defendant had thrown something in a clothes hamper in

a bedroom closet. In the clothes hamper, police located

a .38 caliber Smith & Wesson revolver with a five round

capacity, but it contained only four cartridges when

retrieved.

The victim died from a single bullet wound under his

left eye. Upon entry, the .38 caliber bullet shattered.

The medical examiner recovered two fragments from

the victim’s skull. The state’s ballistics expert could not

make a positive match of the bullet fragments recovered

from the victim to those test-fired from the revolver

recovered from Avril’s apartment, but one of the fragments possessed rifling characteristics consistent with

that revolver. Accordingly, the expert could not eliminate or identify the weapon seized as the weapon used

in the victim’s murder.

On October 28, 2013, in a long form information, the

state charged the defendant with murder and criminal

possession in violation of the aforementioned statutes,

as well as attempt to tamper with a witness in violation

of General Statutes §§ 53a-151 (a) and 53a-49. The criminal possession charge arose from the defendant’s possession of the revolver at Avril’s apartment. Originally,

the state had charged the defendant with the three

offenses in three separate informations, but the state

moved to join the informations on October 28, 2013,

the day that jury selection began. That day, the defendant orally objected to the consolidation on the grounds

that the tampering and criminal possession charges

were not cross admissible in the murder case. The court

granted the motion for joinder, finding that the tampering and criminal possession charges were cross admissible in the murder case and that the defendant was

not prejudiced under the factors established in State v.

Boscarino, 204 Conn. 714, 722–24, 529 A.2d 1260 (1987).

Following a jury trial, the jury returned a verdict of

guilty on the murder and criminal possession charges

and not guilty on the tampering charge. The court

accepted the jury’s verdict and, on January 27, 2014,

sentenced the defendant to fifty-four years incarceration on the murder count and five years on the criminal

possession count, to be served consecutively. This

appeal followed.

The defendant claims on appealthatthe court erred in

permitting joinder of one information charging murder

with a second information charging criminal possession. Specifically, the defendant argues that the court

failed to consider whether the murder allegations were
significantly more shocking and brutal than the allegations in the criminal possession case. Additionally, he

asserts that the state did not attempt to meet its burden

of proving that the evidence from the murder case

would be admissible in a separate trial for criminal

possession, or that the defendant would not be unreasonably prejudiced by the disparity in the egregiousness

of the conduct supporting each charge. The state counters that the defendant did not raise this issue in his

objection to the joinder of these charges, thereby either

waiving or failing to preserve this claim for appeal. We

agree with the state that the defendant failed to preserve

his claim.

‘‘The standards for reviewing a trial court’s ruling on

a motion pertaining to joinder are discussed at length

in our [Supreme Court’s] decisions in State v. LaFleur,

307 Conn. 115, 159, 51 A.3d 1048 (2012), and State v.

Payne, 303 Conn. 538, 544–50, 34 A.3d 370 (2012). In

those cases, [our Supreme Court] rejected the notion

of a blanket presumption in favor of joinder . . . and

clarified that, when charges are brought in separate

informations, and the state seeks to join those informations for trial, the state bears the burden of proving

that the defendant will not be substantially prejudiced

by joinder pursuant to Practice Book § 41-19. The state

may satisfy this burden by proving, by a preponderance

of the evidence, either that the evidence in the cases

is cross admissible or that the defendant will not be

unfairly prejudiced pursuant to the factors set forth in

State v. Boscarino, [supra, 204 Conn. 722–24].4

. . .

Although the state bears the burden of proof in the trial

court, [i]t is the defendant’s burden on appeal to show

that joinder was improper by proving substantial prejudice that could not be cured by the trial court’s instructions to the jury . . . . As [our Supreme Court]

emphasized in LaFleur, our appellate standard of

review remains intact. Accordingly, [i]n deciding

whether to [join informations] for trial, the trial court

enjoys broad discretion, which, in the absence of manifest abuse, an appellate court may not disturb.’’ (Citations omitted; footnote omitted; internal quotation

marks omitted.) State v. Devon D., 321 Conn. 656, 664–

65, 138 A.3d 849 (2016).

‘‘It is well settled that [o]ur case law and rules of

practice generally limit this court’s review to issues

that are distinctly raised at trial. See, e.g., Ajadi v.

Commissioner of Correction, 280 Conn. 514, 550, 911

A.2d 712 (2006) (declining to consider claim not raised

before habeas court); State v. Fagan, 280 Conn. 69,

85–89, 905 A.2d 1101 (2006) (declining to review claim

not preserved at trial) [cert. denied, 549 U.S. 1269, 127

S. Ct. 1491, 167 L. Ed. 2d 236 (2007)]; Practice Book § 60-

5 (court not bound to consider claim unless distinctly

raised at trial).’’ (Internal quotation marks omitted.)

Rowe v. Superior Court, 289 Conn. 649, 660, 960 A.2d

256 (2008). We abide by ‘‘the fundamental principle
that if the defendant deems an action of the trial court

necessary to the fairness of his trial, he has a responsibility to present such a claim clearly to the trial court

so that the trial court may consider it and, if it is meritorious, take appropriate action. That is the basis for the

requirement that ordinarily a defendant must raise in

the trial court the issues that he intends to raise on

appeal. State v. Groomes, 232 Conn. 455, 466, 656 A.2d

646 (1995).’’ (Internal quotation marks omitted.) State

v. Vallejo, 102 Conn. App. 628, 633, 926 A.2d 681, cert.

denied, 284 Conn. 912, 931 A.2d 934 (2007).

The following additional procedural facts reveal that

the defendant did not preserve his claim challenging

the joinder of informations. As previously stated, the

state originally charged the defendant in three separate

informations with murder, criminal possession, and

tampering. The state moved to consolidate those informations and the defendant orally objected in a hearing

held on the same day. The basis for the defendant’s

objection was that it would be confusing and misleading

to the jury to combine the criminal possession case

with the murder case because, he argued, there was an

inadequate nexus between the revolver found in the

apartment on Owen Street, the defendant, and the murder. Additionally, he contended that the firearm was

recovered in a closet and not on his person, which he

claimed to be of consequence because he did not live

at the Owen Street address. He also argued that no

evidence connected the revolver to the one used in the

murder and that the time span between the events was

too attenuated.5 The state argued that even if the

revolver was not the one used in the murder, it would

be admissible as uncharged misconduct to show that

the defendant had the means to commit the crime.

In ruling on the motion to consolidate, the court

stated as follows: ‘‘Now as far as the tampering is concerned and the later in the day possession of the means

. . . the Boscarino factors, the[y] do involve discrete

easily distinguishable factual scenario[s]. The matters

. . . being consolidated are not of violent nature, brutal

or shocking; it’s a possession and tampering. It would

involve only a couple or three witnesses. It doesn’t

affect the duration particularly. And if what the state

claims is true, and I would require them to put the

evidence on in front of the court before it goes in front

of the jury, it would be cross admissible under possession of the means as far as the possession of the pistol

is concerned and consciousness of guilt as far as the

tampering is concerned. Now I will allow the consolidation, the defense may have an exception. But I wish

any of the evidence of the events at Owen Street to

have more than just an oral offer of proof from the

state’s attorney; I would like to at least hear from the

witnesses before they testify in front of the jury to make

sure that the ruling can stand. Now—so that’s granted.’’
It is clear from the record that the defendant did not

raise at trial his claim now on appeal that the evidence

supporting the murder charges was inadmissible in the

criminal possession case. ‘‘[T]o review [a] claim, which

has been articulated for the first time on appeal and

not before the trial court, would result in a trial by

ambuscade ofthe trial judge.’’(Internal quotation marks

omitted.) State v. Randolph, 284 Conn. 328, 374, 933

A.2d 1158 (2007), quoting West Farms Mall, LLC v.

West Hartford, 279 Conn. 1, 28, 901 A.2d 649 (2006).

Additionally, we presume that the trial court properly

considered the legal standards applicable to a motion

for joinder. Johnson v. de Toledo, 61 Conn. App. 156,

161–62, 763 A.2d 28 (2000) (‘‘The general rule that a

judgment, rendered by a court with jurisdiction, is presumed to be valid and not clearly erroneous until so

demonstrated raises a presumption that the rendering

court acted only after due consideration, in conformity

with the law and in accordance with its duty. . . . It

is important to recognize that a claim of error cannot

be predicated on an assumption that the trial court

acted incorrectly. . . . Rather, we are entitled to

assume, unless it appears to the contrary, that the trial

court . . . acted properly, including considering the

applicable legal principles.’’ [Citations omitted; internal

quotation marks omitted.]), appeal dismissed, 258

Conn. 732, 785 A.2d 192 (2001). The ground for the

defendant’s objection to joinder before the trial court

was limited to the admissibility of the evidence supporting the criminal possession charge in the murder case.

On appeal, he raises a distinct claim that the evidence

supporting the murder charge was unduly prejudicial

and inadmissible in his criminal possession case. The

defendant did not raise this claim before the trial court,

and, thus, it was not properly preserved.

Moreover, at no point did the defendant move for

severance after the informations were joined. See State

v. Berube, 256 Conn. 742, 747–48, 775 A.2d 966 (2001)

(failure to raise issue of severance at trial, with no

indication failure not tactical, renders claim unreviewable). In fact, the court conditioned its joinder determination on an offer of proof from witnesses before they

testified in front of the jury to ensure that the matters

were cross admissible. When the court subsequently

determined, however, that offer of proof was unnecessary, the defendant did not renew his objection to joinder or move to sever. At that time, he had the

opportunity to raise a claim that the evidence of the

murder was unduly prejudicial to him in the prosecution

of the criminal possession charge, but he failed to raise

any objection. Accordingly, we conclude that the defendant has failed to preserve his claim for appeal, and,

therefore, his claim is not reviewable.6 Consequently,

we do not address whether the evidence in the cases

was cross admissible or whether the defendant was

prejudiced by the joinder under the factors enunciated
in Boscarino.

7

The judgment is affirmed.

In this opinion the other judges concurred.

1 Because we determine that the defendant’s first claim is unreviewable,

we do not reach his claim that this court should adopt a new standard for

harmless error analysis.

2 At trial, the parties stipulated that the defendant previously had been

convicted of a felony.

3 The court issued a protective orderrequiring that this witness be referred

to by his initials only. In keeping with this order, we do the same.

4

‘‘InBoscarino,[our SupremeCourt]identified the factors that a trial court

should considerin determining whether separate trials might be necessary to

avoid undue prejudice resulting from consolidation of multiple charges for

trial. These factors include: (1) whether the charges involve discrete, easily

distinguishable factual scenarios; (2) whether the crimes were of a violent

nature or concerned brutal or shocking conduct on the defendant’s part;

and (3) the duration and complexity of the trial. . . . If any or all of these

factors are present, a reviewing court must decide whether the trial court’s

jury instructions cured any prejudice that might have occurred.’’ (Internal

quotation marks omitted.) State v. Devon D., 321 Conn. 656, 665 n.5, 138

A.3d 849 (2016).

5 The defendant also argued that it was unclear how long the firearm had

been in the hamper and whether he possessed the revolver. The evidence

previously set forth regarding the events at Owen Street, however, refutes

these arguments. In its arguments in support of its motion to consolidate,

the state summarized this evidence.

6 The defendant does not argue that his claim, although unpreserved, is

reviewable either under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d

823 (1989), modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188

(2015), or the plain error doctrine. According to our Supreme Court, however, a defendant need not affirmatively request Golding review. Instead,

‘‘to obtain review of an unpreserved claim pursuant to [Golding], a defendant

need only raise that claim in his main brief, wherein he must present a

record that is [adequate] for review and affirmatively [demonstrate] that his

claim is indeed a violation of a fundamental constitutional right.’’ (Internal

quotation marks omitted.) State v. Elson, 311 Conn. 726, 754–55, 91 A.3d

862 (2014).

In his main brief, the defendant does not invoke any fundamental constitutional rights in his arguments that the trial court improperly joined his

criminal cases. ‘‘Whether multiple charges should be tried separately is

within the court’s sound discretion and generally is not of a constitutional

nature. State v. Perez, 87 Conn. App. 113, 121, 864 A.2d 52 (2005); see also

State v. Berube, [supra, 256 Conn. 749 n.7]; State v. Walton, 227 Conn. 32,

55 n.20, 630 A.2d 990 (1993).’’ (Internal quotation marks omitted.) State v.

Madore, 96 Conn. App. 235, 243, 899 A.2d 721, cert. denied, 280 Conn. 907,

907 A.2d 92 (2006). The defendant quotes State v. Payne, supra, 303 Conn.

545, forthe proposition that a trial court in exercising its discretion regarding

joinder must exercise such discretion ‘‘in a manner consistent with the

defendant’s right to a fair trial.’’ The court in Payne determined, however,

that despite concluding that the informations were improperly joined

because the defendant’s conduct in killing the victim in the felony murder

case was significantly more brutal and shocking than his conduct in

attempting to tamper with the jurors under the second prong of Boscarino,

such nonconstitutional error was harmless. See id., 552–53.

Indeed, in his second claim on appeal the defendant in this case argues

that this court should adopt a new standard for harmless error analysis of

nonconstitutional claims. Accordingly, the defendant has not affirmatively

demonstrated that improper joinder claims generally, or his claim in particular, implicate a violation of a fundamental constitutional right and, therefore,

his first claim on appeal is not reviewable under Golding. See Bank of

America, N.A. v. Thomas, 151 Conn. App. 790, 801 n.6, 96 A.3d 624 (2014)

(‘‘[T]he Supreme Court’s decision in Elson did not eliminate the important

requirement that all claims of error be adequately briefed on the merits.

. . . If the [party’s] brief fails to identify the relevant record sections, identify

the governing constitutional principles, or apply law to fact in demonstrating

the existence of a constitutional violation requiring reversal, then the claim

likely will be deemed inadequately briefed and will fail on that ground

anyway, regardless of some threshold invocation of Golding review prior

to the briefing of the merits.’’ [Internal quotation marks omitted.]).
We acknowledge that the defendant in his reply brief cited constitutional

provisions and argued in a conclusory fashion that the trial court recognized

that the motion to consolidate implicated his ‘‘constitutional right to a fair

trial.’’ Nonetheless, we abide by the principle that to obtain review under

Golding, a defendant must raise such a claim in his main brief. State v.

Elson, supra, 311 Conn. 754–55.

7 The state argues that by failing to raise the claim made on appeal at trial,

the defendant waived that claim. Because we determine that preservation is

the proper way to address this issue, we also do not reach this argument.