State v. McClain ( 2014 )

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STATE OF CONNECTICUT v. TAJAH MCCLAIN
(AC 36791)
Alvord, Mullins and West, Js.
Argued September 24—officially released December 23, 2014
(Appeal from Superior Court, judicial district of
Fairfield, Kahn, J.)
Daniel J. Krisch, assigned counsel, for the appel-
lant (defendant).
Katherine E. Donoghue, special deputy assistant
state’s attorney, with whom, on the brief, were John
C. Smriga, state’s attorney, and C. Robert Satti, Jr.,
supervisory assistant state’s attorney, for the appellee
(state).
Opinion
WEST, J. The defendant, Tajah McClain, appeals from
the judgment of conviction, rendered following a jury
trial, of murder with a firearm in violation of General
Statutes §§ 53a-54a (a) and 53-202k, assault in the first
degree with a firearm in violation of General Statutes
§§ 53a-59 (a) (5) and 53-202k, and carrying a pistol with-
out a permit in violation of General Statutes § 29-35 (a).
On appeal, the defendant claims that the trial court (1)
improperly limited his cross-examination of an eyewit-
ness, and (2) committed plain error by not instructing
the jury on the doctrine of consciousness of guilt. We
affirm the judgment of the court.
The jury reasonably could have found the following
facts. On July 17, 2010, a group of more than ten people
were drinking alcohol in the area known as ‘‘the X,’’
located behind the Greene Homes Housing Complex in
Bridgeport. Shortly before 5:22 a.m., the victim, Eldwin
Barrios,1 was sitting on a crate when all of a sudden
the defendant and at least two other men jumped on
him, and started punching and kicking him. The victim
kept asking them why they were hitting him, but no
one answered. The defendant then was passed a chrome
or silver handgun and he fired one shot, intended for
the victim. The bullet, however, struck one of the other
men in the back of the leg. The man who had just been
shot yelled, ‘‘you shot me, you shot me, why you shot
me,’’ to which the defendant replied, ‘‘my bad.’’ As this
was happening, the victim got up and tried to run away,
but the defendant fired several shots at him. Three of
the defendant’s shots hit the victim—one in the leg,
one in the arm, and one in the torso—at which point,
the victim fell to the ground and died.
The defendant was arrested three days after the mur-
der. Following a jury trial, the defendant was convicted
and sentenced to a total effective sentence of sixty-five
years incarceration. This appeal followed. Additional
facts will be set forth as necessary.
I
The defendant’s initial claim is that the court violated
his right pursuant to the sixth amendment to the United
States constitution to confront witnesses against him
by improperly limiting his cross-examination of an eye-
witness, Eduardo Martorony. The defendant argues that
the court improperly precluded him from cross-examin-
ing Martorony about the benefits derived from the wit-
ness protection program. Specifically, where he was
living while in the program—a hotel, motel, or apart-
ment, and how the state paid for his food, housing, and
expenses—cash, check, or otherwise. He argues that
this limitation prevented the jury from accurately
assessing Martorony’s credibility. We disagree.
The following additional facts, which the jury reason-
ony had lived in the Greene Homes Housing Complex
since 1992 and was still living there in July, 2010. He
was seated about fifteen to twenty feet away from the
victim at the time the fight started, and testified at trial,
on behalf of the state, as to what he witnessed. In
an attempt to undermine Martorony’s credibility, the
defendant cross-examined him extensively about the
criminal charges he had pending against him at the
time of trial, whether he hoped those charges would
be dropped in exchange for his testimony, whether he
desired not to go to jail, and how much alcohol he had
to drink on the night of the shooting.
The defendant also asked Martorony several ques-
tions about his participation in the witness protection
program. Prior to being in the program, Martorony had
been unemployed for nine years and was living off a
monthly social security check. While in the witness
protection program, however, the state was paying for
his food, housing, and other expenses amounting to at
least seven hundred and fifty dollars. The court limited
the defendant’s cross-examination to only some of the
details of the witness protection program. Specifically,
the court did not allow the defendant to question Mart-
orony regarding the form of the payments provided by
the state and where he was living while in the program.
After the jury exited the courtroom, the court stated
for the record the substance of a prior sidebar conversa-
tion, and noted: ‘‘I permitted [defense counsel] to cross-
examine [Martorony] on whether his lodging is paid for
[by the state], whether his expenses are paid for [by
the state] and the amount of that. What I am not going
to permit and would not permit [defense counsel] to do
is to ask any witness in the witness protection program
what type of lodging they’re being provided specifically
and how they’re being supported; whether it’s cash pay-
ments, et cetera. So all the questions that I did not
permit and sustained the state’s objections [to] were
questions that would lead to disclosures that, in this
court’s view, would compromise the integrity of the
witness protection program and the security of the indi-
viduals. . . . [Defense counsel is] still permitted to
cross-examine [witnesses] on the amount and how
much the state is spending and what . . . is being paid
for, just not the how, where and when necessarily.’’
The court stated that allowing the defendant to ask
whether Martorony was in a hotel or apartment could
endanger the witness: ‘‘[Disclosing that information]
will limit the areas in which somebody could search
for a potential individual. So in the court’s view, that
would certainly provide some information as to where
to locate the person, and it could potentially also have
a chilling effect on the witness. [I]n the court’s view,
the defense’s ability to inquire into . . . what is being
paid for and what benefits are received . . . is suffi-
cient to elicit the type of testimony that the defense
would need to cross-examine relating to the witness’
. . . motive, bias, [and] ability to lie . . . whether it’s
a house, apartment or hotel room, in this court’s view,
is not so significant that it would diminish the impact
of the cross-examination. And the risk of potentially
disclosing where somebody’s location is, in this court’s
view, is far too great, and the probative value of that
level of detail, in this court’s view, does not outweigh
the general interest of the state authorities in insuring
the integrity of the program.’’
We begin our review of the defendant’s first claim
by setting forth the governing legal principles. ‘‘The
general rule is that restrictions on the scope of cross-
examination are within the sound discretion of the trial
judge . . . but this discretion comes into play only
after the defendant has been permitted cross-examina-
tion sufficient to satisfy the sixth amendment. . . . We
must, therefore, conduct a two-step analysis, determin-
ing first whether the cross-examination permitted to
defense counsel comported with sixth amendment stan-
dards . . . and second, whether the trial court abused
its discretion in restricting the scope of that cross-exam-
ination.’’ (Citations omitted; internal quotation marks
omitted.) State v. Reeves, 57 Conn. App. 337, 346, 748
A.2d 357 (2000).
‘‘The primary interest secured by confrontation is the
right to cross-examination . . . and an important func-
tion of cross-examination is the exposure of a witness’
motivation in testifying. . . . Cross-examination to
elicit facts tending to show motive, interest, bias and
prejudice is a matter of right and may not be unduly
restricted. . . . In order to comport with the constitu-
tional standards embodied in the confrontation clause,
the trial court must allow a defendant to expose to the
jury facts from which [the] jurors, as the sole triers of
fact and credibility, could appropriately draw infer-
ences relating to the reliability of the witness. . . .
‘‘In determining whether a defendant’s right of cross-
examination has been unduly restricted, we consider
the nature of the excluded inquiry, whether the field
of inquiry was adequately covered by other questions
that were allowed, and the overall quality of the cross-
examination viewed in relation to the issues actually
litigated at trial. . . . [T]he denial of all meaningful
cross-examination into a legitimate area of inquiry fails
to comport with constitutional standards under the con-
frontation clause.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Santiago, 224 Conn. 325,
331, 618 A.2d 32 (1992).
‘‘[T]he confrontation clause does not [however] sus-
pend the rules of evidence to give the defendant the
right to engage in unrestricted cross-examination. . . .
To the contrary, [t]he [c]onfrontation [c]lause guaran-
tees only an opportunity for effective cross-examina-
tion, not cross-examination that is effective in whatever
way, and to whatever extent, the defense might wish.’’
(Citations omitted; internal quotation marks omitted.)
State v. Davis, 298 Conn. 1, 9–10, 1 A.3d 76 (2010).
‘‘The trial court has wide discretion to determine the
relevancy of evidence and the scope of cross-examina-
tion. . . . Thus, [w]e will make every reasonable pre-
sumption in favor of upholding the trial court’s ruling[s]
[on these bases] . . . . In determining whether there
has been an abuse of discretion, the ultimate issue is
whether the court . . . reasonably [could have] con-
clude[d] as it did.’’ (Citations omitted; internal quotation
marks omitted.) Id., 11.
With these standards in mind, we conclude that the
defendant’s cross-examination of Martorony satisfied
constitutional requirements and, further, that the court
did not abuse its discretion in limiting the questioning
as it did. A review of the record discloses that the
defendant was given ample opportunity to cross-exam-
ine Martorony regarding his bias and motives for testi-
fying. The defendant elicited a considerable amount of
information to aid the jury in assessing Martorony’s
credibility, including testimony about the fact that he
hoped that the pending charges against him would be
dropped in exchange for his testimony. We, therefore,
conclude that the jury was given sufficient facts from
which it could determine the reliability of Martorony’s
testimony, and, as a result, the cross-examination met
the constitutional standard. See State v. Santiago,
supra, 224 Conn. 331. The court also allowed the defen-
dant to ask a number of questions about Martorony’s
participation in the witness protection program, includ-
ing what the state paid for, how long he was receiving
benefits from the state, and how much money he had
received from the state. The court only limited the
defendant’s questioning about two specific aspects of
the witness protection program—the type of lodging
and the form of payment. Neither aspect was essential
to a determination of Martorony’s credibility in light of
the other evidence elicited. On the basis of our review
of the record and briefs, we cannot say that the court
abused its discretion in ruling as it did. The court prop-
erly exercised its discretion in balancing the probative
value of the evidence against the state’s interest in insur-
ing the integrity of the witness protection program and
the security of its participants.
II
The defendant’s second claim is that the court
‘‘worked a serious and manifest injustice’’ by not
instructing the jury on consciousness of guilt. (Internal
quotation marks omitted.) The defendant concedes that
he did not preserve this issue at trial by requesting such
an instruction, but, nevertheless, he now seeks review
under the plain error doctrine.2 We conclude that the
defendant asserted a valid waiver before the court that
precludes the application of the plain error doctrine
on appeal.
The following additional facts are relevant. On the
first day of trial, the court provided counsel with a copy
of the proposed jury instructions, indicated it received
requests to charge from both parties, and stated it would
review each accordingly. On the sixth day of trial, the
court and counsel discussed the upcoming charge con-
ference and issues relating to the jury instructions. The
state reminded the court that it had requested a con-
sciousness of guilt instruction.3 The court asked the
state to identify the evidence that supported giving that
proposed instruction, and the state explained that it
intended to contradict the testimony of the defendant’s
alibi witness, his sister, who claimed the defendant was
living with her on Ogden Street in Bridgeport for the
six months prior to, and on the night of, the murder.
To do so, the state proffered that it planned to introduce,
through one of its witnesses, the defendant’s uniform
arrest report, which was created three days after the
murder and indicated that the defendant had told the
police that he was homeless at the time. The state also
proffered to call another witness, who later testified
that, three months before the murder, the defendant
said he was living on Wood Avenue in Bridgeport.
Defense counsel did not object to the state’s arguments,
and responded, ‘‘No, Your Honor,’’ when the court
asked if there was anything further from either side
relating to the instructions.
On the next day of trial, the court stated that it would
not give the state’s requested instruction, provided
counsel with a copy of the proposed instructions, and
asked if counsel were ready to proceed. Defense coun-
sel did not take exception to the court’s decision not
to charge on consciousness of guilt.
During its rebuttal case, the state introduced the uni-
form arrest report into evidence and elicited testimony
related thereto. Defense counsel did not object. The
state also elicited testimony that, three months before
the murder, the defendant stated he was living on Wood
Avenue. Defense counsel did not object. After the state
rested its rebuttal case, the court held a charge confer-
ence on the record. There was no further discussion
about the consciousness of guilt instruction, and, when
the court asked if there was ‘‘[a]nything further on the
instructions,’’ defense counsel responded, ‘‘No, Your
Honor.’’
The parties proceeded to give closing arguments, dur-
ing which defense counsel argued that a discrepancy
between a witness’ description of the shooter and the
defendant’s height and weight, as reflected in the uni-
form arrest report, in conjunction with his alibi, proved
that he was not the shooter. The state addressed the
defendant’s alibi claim in its rebuttal argument. Specifi-
cally, the state argued: ‘‘The defendant is arrested for
a crime, and you’ll see the [uniform arrest report] that
you have, what he was arrested for; it was a murder.
And at the time that he’s arrested, he tells the police
that he was homeless. Now, why would he tell the police
he was homeless; you have a right to consider that. Can
you use that as circumstantial evidence of a conscious-
ness of guilt. Think about it. If I tell them I’m living
[on] Ogden Street, they’re gonna be able to go over and
find out the truth in this case. If you’re thinking about
this yourself; just yourself thinking about things.’’
Defense counsel did not object to this argument. Fol-
lowing closing arguments, the court instructed the jury,
and the charge did not include an instruction on con-
sciousness of guilt. The court then asked counsel if
either side had any issues with the charge, and both
stated they did not. The defendant now claims that it
was plain error for the court to have omitted an instruc-
tion on consciousness of guilt. We conclude that the
defendant waived this claim.
‘‘Connecticut courts have consistently held that when
a party fails to raise in the trial court the constitutional
claim presented on appeal and affirmatively acquiesces
to the trial court’s order, that party waives any such
claim. . . . The reason that [an] objection must be
raised at trial is to afford the court an opportunity to
correct an allegedly improper ruling or procedure. . . .
We do not look with favor on parties requesting, or
agreeing to, an instruction or a procedure to be fol-
lowed, and later claiming that that act was improper.
. . . [A] defendant may not pursue one course of action
at trial for tactical reasons and later on appeal argue
that the path he rejected should now be open to him
. . . .’’ (Citations omitted; emphasis added; internal
quotation marks omitted.) State v. Rosado, 147 Conn.
App. 688, 701–702, 83 A.3d 351, cert. denied, 311 Conn.
928, 86 A.3d 1058 (2014); see also Mozell v. Commis-
sioner of Correction, 291 Conn. 62, 71, 967 A.2d 41(2009) (‘‘[w]hen a party consents to or expresses satis-
faction with an issue at trial, claims arising from that
issue are deemed waived and may not be reviewed on
appeal’’ [internal quotation marks omitted]). ‘‘[A] valid
waiver . . . thwarts plain error review of a claim. [The]
Plain Error Rule may only be invoked in instances of
forfeited-but-reversible error . . . and cannot be used
for the purpose of revoking an otherwise valid waiver.
This is so because if there has been a valid waiver,
there is no error for us to correct.’’ (Internal quotation
marks omitted.) State v. Rosado, supra, 702.
Our recent decision in Rosado guides our resolution
of this issue.4 In Rosado, we declined to find plain error
on the basis of the defendant’s claim that the trial court
erred by proceeding to take the jury’s verdict before
responding to the jury’s note requesting a clarifying
instruction because defense counsel raised no objection
and affirmatively agreed with the court’s proposal to
proceed to the verdict. Id., 702–703, 704. We noted that:
‘‘Both our Supreme Court and this court have stated
the principle that, when a party abandons a claim or
argument before the trial court, that party waives the
right to appellate review of such claim because a con-
trary conclusion would result in an ambush of the trial
court . . . . When a party consents to or expresses
satisfaction with an issue at trial, claims arising from
that issue are deemed waived and may not be reviewed
on appeal.’’ (Internal quotation marks omitted.) Id., 701.
We then held: ‘‘Defense counsel . . . raised no objec-
tion [in the trial court] and, in fact, affirmatively agreed
to the court’s proposal. Permitting the defendant now
to seek reversal of his conviction due to the procedure
followed by the court, to which defense counsel
expressly assented at trial, would result in an ambus-
cade of the trial court.’’ Id., 703.
On the basis of our examination of the record, we
conclude that the representations of defense counsel
reflected acquiescence in the proposed jury instruc-
tions. Defense counsel raised no objection to the state’s
request for a consciousness of guilt instruction or to
the court’s denial of that request. Defense counsel
affirmatively represented that he did not have any con-
cerns about the charge, and, in fact, used the evidence
introduced by the state to support his argument that
the defendant was not the shooter. The defendant,
therefore, waived any appellate issues connected to the
court’s decision not to provide the instruction. Accord-
ingly, we conclude that the defendant’s waiver pre-
cludes the application of the plain error doctrine.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Although the defendant’s conviction of assault in the first degree with
a firearm was based on a different victim, for clarity we refer to Eldwin
Barrios as ‘‘the victim.’’
2
Although the defendant concedes that this claim is not reviewable under
State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), pursuant to
State v. Kitchens, 299 Conn. 447, 482–83, 10 A.3d 942 (2011), he nonetheless
argues that a Kitchens’ waiver does not preclude the application of the plain
error doctrine. We acknowledge the tension in our appellate law as to
whether reversal for plain error is available for claims regarding jury instruc-
tions that are waived pursuant to Kitchens. See State v. Sanchez, 308 Conn.
64, 74–75 n.5, 60 A.3d 271 (2013); see also State v. Davis, 311 Conn. 468,
503 n.14, 88 A.3d 445 (2014) (Palmer, J., concurring). Because there is no
indication that a claim of this nature is precluded as a matter of law; see State
v. Webster, 308 Conn. 43, 64, 60 A.3d 259 (2013) (Rogers, C. J., concurring); we
address the defendant’s arguments.
3
The requested instruction read as follows: ‘‘When a person is on trial
for a criminal offense, it is proper to show his conduct, as well as any
declarations made by him, subsequent to the alleged criminal offense, which
may fairly have been influenced by that act. The state here claims that some
of the statements made by the defendant to the police were false.
‘‘If you find that the defendant did make material false statements to the
police in connection with the alleged crime, you may find that such false
statements tend to show a consciousness of guilt. In other words, from any
material statements made by the defendant subsequent to the criminal act
alleged, which are shown to be false, you may fairly infer consciousness of
guilt if you find such inference is reasonable.
‘‘Such statements when shown to be false may be circumstantial evidence
of guilt. If you find that the defendant’s acts or words show consciousness
of guilt, you may use that inference along with the other facts of the case
to determine whether he has been proven guilty of the crimes charged
beyond a reasonable doubt.’’
4
This appeal was originally filed in our Supreme Court. When the appeal
was transferred to this court, the defendant filed a motion requesting that
the court hear the appeal en banc because the court would need to overrule
Rosado to consider his request that we reverse the judgment for plain error.
The court denied the motion.