"'When reviewing a challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . the test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . 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.' . . . State v. Denby, 235 Conn. 477, 484-85, 668 A.2d 682 (1995)." State v. Delgado, 247 Conn. 616, 625, 725 A.2d 306 (1999).
"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 clearly exists and clearly deprived the defendant of a fair trial;
(4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.
In the absence of any one of these conditions, the defendant's claim will fail." State v. Golding, supra, 213 Conn. 239-40.
"In recent years, our Supreme Court has delineated a test for determining the necessity of a unanimity charge. State v. Reddick, 224 Conn. 445, 453-54, 619 A.2d 453 (1993); State v. Famiglietti, 219 Conn. 605, 619-20, 595 A.2d 306 (1991); State v. Anderson, 211 Conn. 18, 35, 557 A.2d 917 (1989).
'We first review the instruction that was given to determine whether the trial court has sanctioned a nonunanimous verdict. If such an instruction has not been given, that ends the matter.'" State v. Nixon, 32 Conn. App. 224, 244, 630 A.2d 74 (1993), aff'd, 231 Conn. 545, 651 A.2d 1264 (1995), quoting State v. Famiglietti, 219 Conn. at 619-20.
"The absence of language expressly sanctioning a nonunanimous verdict means that the defendant has not met the first part of the Famiglietti test." State v. Reddick, supra, 224 Conn. 454.
Our review of the record fails to reveal a jury instruction that expressly sanctioned a nonunanimous verdict. the court, to the contrary, provided specific unanimity instructions with the other charges against the defendant and also provided a general unanimity instruction to the jurors during their deliberations.
During deliberations, the jury sent the court a note containing a question. After the court addressed the question, the court informed the jury that "a couple of things I didn't tell you before is, obviously, each of the counts has to be unanimous."
"Having determined that the court never expressly sanctioned a nonunanimous verdict, our analysis of the defendant's claim does not proceed further. . . . We conclude that the trial court's instructions were not fundamentally unfair to the defendant and that the defendant accordingly cannot prevail under the bypass of State v. Golding, supra 213 Conn. 239-40." State v. Nixon, supra, 32 Conn. App. 245.