State v. Johnson , 178 Conn. App. 490 ( 2017 )

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STATE OF CONNECTICUT v. ANTHONY JOHNSON
(AC 37859)
Keller, Prescott and Kahn, Js.*
Syllabus
Convicted, after a jury trial, of the crimes of robbery in the second degree
and conspiracy to commit robbery in the second degree in connection
with his alleged conduct in robbing a store with D, the defendant
appealed to this court. At the defendant’s trial, D, who already had
pleaded guilty to criminal charges related to the robbery, testified about
details of the robbery, including that the defendant had been the other
participant. The state also called as a witness M, who previously had
provided the police with a signed, written statement indicating that he
had seen another person, K, give the car involved in the robbery to D,
the defendant and another individual, but who testified at trial that he
did not actually see K give the car to D. The state then sought to
admit into evidence M’s statement to the police as a prior inconsistent
statement pursuant to State v. Whelan (200 Conn. 743). The trial court
admitted a redacted version of the statement for substantive purposes
under Whelan. Following his conviction, the defendant appealed to this
court. Held:
1. The defendant could not prevail on his claim that there was insufficient
evidence to sustain his conviction because it was based on uncorrobo-
rated accomplice testimony; our Supreme Court has long held that
accomplice testimony does not require corroboration to sustain a convic-
tion, and as an intermediate court of appeal, this court was bound by
and unable to overrule that controlling Supreme Court precedent.
2. The defendant could not prevail under the plain error doctrine on his
unpreserved claim that the trial court improperly failed to provide an
adequate cautionary instruction to the jury regarding the dangers of
relying on uncorroborated accomplice testimony; there was no patent
and obvious error that required reversal under that doctrine, as the law
does not require that an accomplice’s testimony be corroborated for
the jury to accept it or that the trial court instruct the jury that it is
unsafe to rely on uncorroborated accomplice testimony, and the trial
court provided the jury with a specific instruction regarding accomplice
testimony that cautioned the jury to consider an accomplice’s character
and interests when weighing his testimony and to look at the testimony
with particular care and careful scrutiny, and it also generally instructed
the jury to weigh a witness’ testimony in light of his interest in the case
and all the other evidence.
3. The trial court did not abuse its discretion in admitting into evidence M’s
statement to the police, that statement having satisfied the personal
knowledge requirement under Whelan; the statement itself demon-
strated that M had personal knowledge of the facts that it contained,
as it stated that M saw K give the car to D, the defendant and another
individual, M signed the statement, thereby attesting to its truth and
acknowledging that he understood that he could be subject to criminal
penalties for making a false statement, and although the court allowed
only a redacted version of the statement to be introduced into evidence,
when determining whether it satisfied Whelan’s requirements, the court
had the full statement before it, which included details that further
demonstrated that M had possessed the requisite personal knowledge.
Argued September 8—officially released December 12, 2017
Procedural History
Substitute information charging the defendant with
the crimes of robbery in the second degree, conspiracy
to commit robbery in the second degree, larceny in the
fourth degree and conspiracy to commit larceny in the
fourth degree, brought to the Superior Court in the
judicial district of Hartford, geographical area number
twelve, and tried to the jury before Noble, J.; verdict
of guilty; thereafter, the court vacated the verdict as to
the charges of larceny in the fourth degree and conspir-
acy to commit larceny in the fourth degree; judgment
of guilty of robbery in the second degree and conspiracy
to commit robbery in the second degree, from which
the defendant appealed to this court. Affirmed.
Emily Wagner, assistant public defender, for the
appellant (defendant).
Jennifer F. Miller, deputy assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Erika L. Brookman, assistant state’s
attorney, for the appellee (state).
Opinion
KAHN, J. The defendant, Anthony Johnson, appeals
from the judgment of conviction, rendered after a jury
trial, of robbery in the second degree in violation of
General Statutes § 53a-135 (a) (1) (B), and conspiracy
to commit robbery in the second degree in violation of
General Statutes §§ 53a-48 and 53a-135.1 On appeal, the
defendant claims that the jury found him guilty on the
basis of uncorroborated accomplice testimony, which,
as a matter of law, is insufficient evidence to sustain
a conviction. In making this argument, the defendant
acknowledges that Supreme Court precedent must be
overturned for him to be able to prevail on this claim.
The defendant also claims that the trial court improp-
erly failed to caution the jury regarding the dangers of
uncorroborated accomplice testimony and improperly
admitted a witness’ prior inconsistent statement. We
affirm the judgment of the trial court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to this
appeal. On May 29, 2013, the defendant and Sedwick
Daniels robbed a CVS store in Glastonbury. The store
manager, Thang Trang, was in his office counting cash
and monitoring the store’s surveillance cameras, while
another CVS employee, Roberto Orellana, was at the
cash register. No other employees were working. The
defendant and Daniels arrived between 6 p.m. and 9
p.m. When Trang saw the two men enter the store on
the surveillance footage, he left his office to offer them
assistance. When the defendant and Daniels declined,
Trang returned to his office and continued to count the
store’s cash and to monitor the cameras. The defendant
and Daniels began placing merchandise in laundry bags
that they had brought with them. Daniels went behind
the counter and began to place cartons of cigarettes into
his bag. Meanwhile, the defendant approached Orellana
and demanded that he open the register. Trang ran from
his office to intervene. The defendant put his hand in
his pocket as if he had a gun and threatened Trang.
After taking money from the register, the defendant and
Daniels left the store. As they drove away, Trang went
outside and wrote down the car’s license plate number.
Orellana called 911, and Glastonbury police arrived to
take Trang and Orellana’s verbal and written state-
ments, and the license plate number.
The responding officer ‘‘radioed [the license plate
number] into dispatch who put it out over the hotline.’’
The car was traced to an incident from earlier that same
day. The car had run out of gas on the highway, and
State Trooper Erin Lowney responded. Glastonbury
police later showed CVS’ surveillance footage of the
robbery to Lowney. Lowney could not make a positive
identification, but told the Glastonbury police that
although ‘‘one of the body types didn’t look similar to
anyone in the car . . . one of the body types’’ looked
similar to Daniels. Daniels and his cousin, Kenneth Mil-
lege, were the occupants of the car Lowney had
encountered.
On May 30, 2013, the day following the CVS robbery,
Farmington police stopped the same car in response
to a shoplifting incident at Westfarms Mall. Glastonbury
police arrived at the scene and interviewed two of the
car’s occupants, Millege and Kirk McDowell. McDowell
told the police that the previous day he had seen Millege
give the car to Daniels, the defendant, and a third indi-
vidual. Subsequently, Glastonbury police arrested Dan-
iels. Upon arrest, Daniels told the police that the
defendant had been the other participant in the CVS
robbery.
The police subsequently arrested the defendant and
charged him for his involvement in the CVS robbery.
At trial, Daniels, who had already pleaded guilty to
charges stemming from this incident, testified about
the robbery, again identifying the defendant as the other
participant. The jury found the defendant guilty. On
February 13, 2015, the defendant was sentenced to a
total effective sentence of eight years of incarceration
followed by two years of special parole. This appeal
followed. Additional facts and procedural history will
be set forth as necessary.
I
The defendant first claims that he was convicted on
the basis of uncorroborated accomplice testimony
which, as a matter of law, is insufficient evidence to
sustain the conviction.2 The state argues that this court
is bound by the Supreme Court’s decision in State v.
Stebbins, 29 Conn. 463 (1861), and its progeny, which
do not require corroboration for accomplice testimony.3
We agree with the state.
Our Supreme Court has long held that accomplice
testimony does not require corroboration to sustain a
conviction. See State v. Stebbins, supra, 29 Conn. 473
(accomplice testimony ‘‘if standing alone, is not to be
rejected, and whether corroborated or not . . . may
be sufficient to satisfy the minds of the jury’’); see also
State v. LaFountain, 140 Conn. 613, 620–21, 103 A.2d
138 (1954) (‘‘within power of jury . . . to convict
accused upon the uncorroborated testimony of his
accomplices’’); State v. Williamson, 42 Conn. 261, 263
(1875) (‘‘testimony of an accomplice, though altogether
uncorroborated, [is] evidence to go to a jury, and . . .
conviction on such testimony [is] legal’’); State v. Wol-
cott, 21 Conn. 272, 281–82 (1851) (uncorroborated
accomplice testimony sufficient for jury to convict
accused). ‘‘As an intermediate court of appeal, we are
unable to overrule, reevaluate, or reexamine controlling
precedent of our Supreme Court. . . . As our Supreme
Court has stated: [O]nce this court has finally deter-
mined an issue, for a lower court to reanalyze and
revisit that issue is an improper and fruitless endeavor.’’
(Citation omitted; internal quotation marks omitted.)
State v. LaFleur, 156 Conn. App. 289, 302–303, 113 A.3d
472 (2015). Thus, we decline to overturn Stebbins and
its progeny.
II
The defendant next claims that the court improperly
failed to give a specific cautionary instruction to the
jury regarding the dangers of relying on uncorroborated
accomplice testimony. The parties agree that this claim
of instructional error is unpreserved and may be subject
to the implied waiver announced in State v. Kitchens,
299 Conn. 447, 482–83, 10 A.3d 942 (2011). The defen-
dant nevertheless seeks to prevail on this claim pursu-
ant to the plain error doctrine, as set forth by Practice
Book § 60-5. See State v. McClain, 324 Conn. 802, 808,
155 A.3d 209 (2017) (‘‘Kitchens waiver does not pre-
clude appellate relief under the plain error doctrine’’).
The state argues that the court did not commit plain
error.4 We agree with the state.
When a party does not preserve a claim, the rules
of practice allow this court to review the trial court’s
decision for plain error. Practice Book § 60-5. ‘‘An appel-
late court addressing a claim of plain error first must
determine if the error is indeed plain in the sense that
it is patent [or] readily [discernible] on the face of a
factually adequate record, [and] also . . . obvious in
the sense of not debatable. . . . This determination
clearly requires a review of the plain error claim pre-
sented in light of the record. Although a complete
record and an obvious error are prerequisites for plain
error review, they are not, of themselves, sufficient for
its application. . . . [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. . . . [I]n addition to examin-
ing the patent nature of the error, the reviewing court
must examine that error for the grievousness of its
consequences in order to determine whether reversal
under the plain error doctrine is appropriate. . . . [Our
Supreme Court] described the two-pronged nature of
the plain error doctrine: [An appellant] cannot prevail
under [the plain error doctrine] . . . unless he demon-
strates that the claimed error is both so clear and so
harmful that a failure to reverse the judgment would
result in manifest injustice.’’ (Citations omitted; empha-
sis in original; internal quotation marks omitted.) State
v. McClain, supra, 324 Conn. 812. The defendant bears
the burden of meeting this two-prong test. See State v.
Moore, 293 Conn. 781, 824, 981 A.2d 1030 (2009), cert.
denied, 560 U.S. 954, 130 S. Ct. 3386, 177 L. Ed. 2d
306 (2010).
The following additional facts and procedural history
are necessary to our resolution of this issue. At trial,
Daniels testified that he and the defendant had partici-
pated in the May 29, 2013 robbery together. Daniels
explained that he had returned to Hartford from shop-
lifting in New London and was approached by the defen-
dant about robbing a CVS store that night. Daniels
described how he and the defendant stole merchandise
from the store, and he identified himself and the defen-
dant in a series of CVS’ surveillance photographs. On
both direct examination and cross-examination, Dan-
iels answered questions about his prior convictions and
about the agreement he had made with the state to
receive a reduced sentence in exchange for his testi-
mony. During closing arguments, however, only the
state drew attention to the issue of whether Daniels’
testimony was corroborated.5
The court instructed the jury that it should ‘‘decide
which testimony to believe and which testimony not to
believe’’ and that it could ‘‘believe all, none or any part
of any witness’ testimony.’’ The court listed a number
of factors for the jury to consider, including whether
‘‘the witness [had] an interest in the outcome of this
case or any bias or prejudice concerning any party or
any matter involved in this case,’’ ‘‘how reasonable was
the witness’ testimony when considered in light of all
the evidence in the case,’’ and whether ‘‘the witness’
testimony [was] contradicted by what that witness has
said or done at another time, or by the testimony of
other witnesses or by other evidence.’’ The court then
provided the jury with a specific accomplice testimony
instruction, highlighting that ‘‘[i]n weighing the testi-
mony of an accomplice who is a self-confessed criminal,
you should consider that fact. It may be that you would
not believe a person who has committed a crime as
readily as you would believe a person of good character.
In weighing the testimony of an accomplice who has
not yet been sentenced, you should keep in mind that
he may in his own mind be looking for some favorable
treatment in the sentence of his own case. Therefore,
he may have such an interest in the outcome of this
case that his testimony may have been colored by that
fact. Therefore, you must look with particular [care] at
the testimony of an accomplice and scrutinize it very
carefully before you accept it.’’
The court’s instructions continued as follows: ‘‘There
are many offenses that are of such a character that the
only persons capable of giving useful testimony are
those who are themselves implicated in the crime. It is
for you to decide what credibility you will give to a
witness who has admitted his involvement and criminal
wrongdoing, whether you will believe or disbelieve the
testimony of a person who by his own admission has
committed or contributed to the crime charged by the
state here. Like all other questions of credibility, this
is a question you must decide based on all the evidence
presented to you.’’
The defendant argues that the accomplice instruction
the court provided to the jury did not adequately warn
the jury of the dangers of relying on uncorroborated
accomplice testimony. We disagree.
The law does not require ‘‘the judge, whenever an
accomplice testifies, to instruct the jury that it is not
safe to convict on his testimony alone. . . . It is the
character and interest of the witness, as shown upon
the trial, and not the mere fact of his being an accom-
plice, that must determine the discretion of the judge
in commenting on his credibility. The conditions of
character and interest most inconsistent with a credible
witness, very frequently, but not always, attend an
accomplice when he testifies. When those conditions
exist, it is the duty of the judge to specially caution the
jury . . . .’’ State v. Carey, 76 Conn. 342, 349, 56 A. 632
(1904); see also State v. Williamson, supra, 42 Conn.
263–64 (‘‘it has become a rule of practice, it cannot
correctly be called a rule of law, for the court to caution
the jury as to the weight of [uncorroborated accomplice
testimony]’’); State v. Wolcott, supra, 21 Conn. 282
(‘‘[c]ourts frequently do and ought to advise caution
in reposing confidence in the naked testimony of an
accomplice; but this is rather in the exercise of a proper
judicial discretion, than because the law demands it’’).
Because the law does not require that an accomplice’s
testimony be corroborated for the jury to accept it, the
Supreme Court has held that the accused is not entitled
to a charge that an accomplice’s testimony should be
corroborated. State v. Heno, 119 Conn. 29, 33, 174 A.
181 (1934). ‘‘[T]he decision [rests with the jury] as to
whether corroboration [for accomplice testimony] was
necessary and the extent to which it was necessary.’’
State v. Leopold, 110 Conn. 55, 64, 147 A. 118 (1929).
‘‘The degree of credit which is due to an accomplice,
is a matter exclusively for the jury to say.’’ State v.
Wolcott, supra, 282.
In the present case, the court’s instruction cautioned
the jury to consider an accomplice’s character and inter-
ests when weighing his testimony and to look at the
testimony with particular care and careful scrutiny. The
instruction noted that ‘‘[t]here are many offenses that
are of such a character that the only persons capable
of giving useful testimony are those who are themselves
implicated in the crime’’ and that the jury should con-
sider this testimony in light of all other evidence. The
court also provided the jury with a general witness
instruction, which similarly instructed the jury to weigh
a witness’ testimony in light of his interest in the case
and all the other evidence.6 Although the court did not
use the word ‘‘corroboration,’’ the court instructed the
jury to consider other evidence when weighing all wit-
nesses’, as well as an accomplice’s, testimony. Because
the law does not require that an accomplice’s testimony
be corroborated for the jury to accept it and because
the law does not require the court to instruct the jury
that it is unsafe to rely on uncorroborated accomplice
testimony, there is no patent and obvious error that
requires reversal under the plain error doctrine.
III
Finally, the defendant claims that the court improp-
erly admitted McDowell’s statement to the police as a
prior inconsistent statement. On appeal, the defendant
argues that McDowell’s statement to the police did not
satisfy the personal knowledge requirement of State v.
Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied,
479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986);
see also Conn. Code Evid. § 8-5 (1). The state argues
that, at trial, the defendant did not object to the state-
ment’s admission on this ground and, in the alternative,
that McDowell possessed the requisite personal knowl-
edge. Assuming that the defendant preserved this claim,
we agree with the state that the statement itself demon-
strates that McDowell had personal knowledge of the
facts in the statement.
The following additional facts and procedural history
are relevant to this claim. On May 30, 2013, the police
questioned McDowell about the previous day’s CVS rob-
bery. He provided a signed written statement to the
police whereby he indicated the following: ‘‘Yesterday
when I was at my house, I saw Kenny [Millege] give
[Daniels], [the defendant], and [a third individual] the
car I was stopped in today by the police at West Farms
Mall. I saw him giving them the car at about 4:30 to
5:00 pm.’’ At trial, the state called McDowell as a wit-
ness. When McDowell insisted that he had not seen
Millege give them the car but, rather, that Millege had
told him who he gave the car to, and that he did not
remember everything he had said to the police, the
assistant state’s attorney sought to offer McDowell’s
May 30 statement as a prior inconsistent statement
under Whelan. Defense counsel objected to the admis-
sion of the statement because it ‘‘totally lack[ed] the
indicia of reliability needed to come in under [Whelan]’’
because McDowell had been falling asleep and ‘‘high
on heroin when [he] gave the statement.’’ The court
initially sustained the objection because of the state-
ment’s inherent unreliability.
At the next trial day, the state asked the court to
reconsider its ruling, arguing that under State v. Hersey,
78 Conn. App. 141, 151, 826 A.2d 1183 (2003), the state-
ment’s reliability ‘‘goes to the weight of the evidence
and not to its admissibility . . . .’’ Defense counsel
responded by distinguishing Hersey from the present
case, noting that ‘‘[f]irst of all, Mr. McDowell at one
point stated in his testimony that he was repeating not
what he knew from his own statements, but from what
Mr. Millege had told him . . . .’’ Nevertheless, the court
reconsidered its decision from the previous day. After
reviewing the case law and the statement itself, the
court concluded that it could not find that the statement
was ‘‘so unreliable . . . that a jury should not be per-
mitted to consider it for substantive purposes.’’
The defendant now argues that the court improperly
admitted McDowell’s statement because it did not sat-
isfy Whelan’s personal knowledge requirement.7 We
disagree.
Before addressing the merits of the defendant’s claim,
we set forth the standard of review and relevant law.
‘‘The admissibility of evidence, including the admissibil-
ity of a prior inconsistent statement pursuant to Whelan,
is a matter within the . . . discretion of the trial court.
. . . [T]he trial court’s decision will be reversed only
where abuse of discretion is manifest or where an injus-
tice appears to have been done. . . . On review by this
court, therefore, every reasonable presumption should
be given in favor of the trial court’s ruling.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Pierre, 277 Conn. 42, 56, 890 A.2d 474, cert. denied, 547
U.S. 1197, 126 S. Ct. 2873, 165 L. Ed. 2d 904 (2006).
In Whelan, the court adopted a hearsay exception
‘‘allowing the substantive use of prior written inconsis-
tent statements, signed by the declarant, who has per-
sonal knowledge of the facts stated, when the declarant
testifies at trial and is subject to cross-examination.’’
State v. Whelan, supra, 200 Conn. 753.8 ‘‘In evaluating
whether a declarant has personal knowledge of the
facts contained within a prior inconsistent statement,
we look to the statement itself. If the statement itself
indicates that the basis of the information contained in
that statement is the declarant’s personal knowledge,
that is sufficient to satisfy the criteria of personal knowl-
edge established by Whelan. . . . Whether a witness
repudiates a prior inconsistent statement has no bearing
on the reliability of such statement.’’ (Citation omitted;
internal quotation marks omitted.) State v. Juan V., 109
Conn. App. 431, 443–44, 951 A.2d 651, cert. denied,
289 Conn. 931, 958 A.2d 161 (2008). ‘‘The jury can . . .
determine whether to believe the present testimony, the
prior statement, or neither.’’ (Internal quotation marks
omitted.) State v. Pierre, supra, 277 Conn. 57. ‘‘Further-
more, [a]llowing a party to circumvent the exception
to the hearsay rule established by Whelan merely by
repudiating the foundation for his knowledge when that
foundation is an element of the statement itself would
eviscerate the Whelan exception, potentially leaving no
statement admissible under the pertinent rule.’’ (Inter-
nal quotation marks omitted.) State v. Juan V.,
supra, 444.
In the present case, the statement itself demonstrates
that McDowell had personal knowledge when he made
the statement. See id., 443. McDowell’s statement states
that he ‘‘saw Kenny [Millege] give [Daniels], [the defen-
dant], and [a third individual] the car . . . .’’ (Emphasis
added.) McDowell then signed his statement, thereby
attesting to its truth and acknowledging that he under-
stood that he could be subject to criminal penalties
for making a false statement. Nevertheless, McDowell
repudiated his statement at trial, indicating that he had
not in fact seen Millege transfer the car but, rather, had
been told by Millege about the transfer. Although the
court only allowed a redacted version of the statement
to be introduced into evidence, when determining
whether it satisfied Whelan’s requirements, the court
had the full statement before it, which includes details
that further demonstrate that McDowell possessed the
requisite personal knowledge. In drawing every reason-
able presumption in favor of the court’s ruling, we hold
that the court did not abuse its discretion in determining
that McDowell’s statement itself demonstrated that
McDowell possessed the requisite personal knowledge.
See State v. Pierre, supra, 277 Conn. 56; see also State
v. Juan V., supra, 109 Conn. App. 443.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The jury also found the defendant guilty of the lesser included offenses
of larceny in the fourth degree in violation of General Statutes § 53a-125
and conspiracy to commit larceny in the fourth degree in violation of General
Statutes §§ 53a-48 and 53a-125. The trial court vacated the verdict as to
these charges. See State v. Polcano, 308 Conn. 242, 248, 61 A.3d 1084 (2013).
2
The defendant conceded, both in his appellate brief and at oral argument,
that this court does not have the authority to overturn Supreme Court
precedent, and, thus, he only ‘‘raises this claim to preserve it for future
review by the Supreme Court.’’
3
The state also argues that the defendant’s claim lacks a factual premise
because McDowell’s statement to the police corroborated Daniels’ accom-
plice testimony. Because this court is bound by State v. Stebbins, supra, 29
Conn. 463, we need not address whether Daniels’ testimony was corrob-
orated.
4
When reviewing a preserved claim of error, ‘‘[t]he 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.’’ (Internal quotation marks omitted.)
Stafford v. Roadway, 312 Conn. 184, 189, 93 A.3d 1058 (2014). In essence,
the state argues that the defendant has not demonstrated that the court
committed error, let alone plain error.
5
The state reminded the jury, in its closing argument, that ‘‘in your role
as a juror you have to assess the credibility of the witnesses who have come
in here. . . . Now there was only one person who identified [the defendant]
as the other participant, but I would submit to you that the other evidence
here are those photographs. . . . Mr. Daniels identified [the defendant] for
you. . . . Now I’m sure defense counsel will tell you, well, you shouldn’t
believe Mr. Daniels. He’s a convicted felon and, you know what, he took a
plea agreement here. He helped himself. He has nobody else to corroborate
what he says. Only what he’s telling you. But, again, those photographs
corroborate what Mr. Daniels told you. The clerks who work at CVS corrobo-
rate what Mr. Daniels told you.’’ Defense counsel’s closing argument focused
primarily on ‘‘the ways . . . that . . . Daniels lied,’’ pointing to his prior
convictions and plea agreement as reasons not to credit his testimony.
Although defense counsel noted that the two CVS employees did not identify
the defendant as the other participant in the robbery, he did not directly
argue that Daniels’ testimony lacked corroboration.
6
The state notes, in its brief to this court, that both the specific accomplice
testimony instruction and general witness instruction given were nearly
identical to Connecticut’s model jury instructions. See Connecticut Judicial
Branch Criminal Jury Instructions § 2.5-2 (Revised to December 1, 2007),
available at http://www.jud.ct.gov/ji/criminal/Criminal.pdf (last visited
December 5, 2017). As we have stated in the context of claims of instructional
error that were preserved or raised under State v. Golding, 213 Conn. 233,
239–40, 567 A.2d 823 (1989), ‘‘[w]hile not dispositive of the adequacy of the
[jury] instruction, an instruction’s uniformity with the model instructions is
a relevant and persuasive factor in our analysis.’’ (Internal quotation marks
omitted.) State v. Leandry, 161 Conn. App. 379, 396–97, 127 A.3d 1115, cert.
denied, 320 Conn. 912, 128 A.3d 955 (2015).
7
The defendant also argued that the statement constituted hearsay within
hearsay but, at oral argument before this court, conceded that the statement
could only be said to contain hearsay by virtue of McDowell’s inconsistent
testimony at trial. As the defendant concedes, for the Whelan statement to
contain hearsay, the court would have to credit McDowell’s trial testimony
that his statement was based on what Millege had told him and not based
on what he had seen as stated in his statement. See State v. Pierre, 277
Conn. 42, 64–65, 890 A.2d 474, cert. denied, 547 U.S. 1197, 126 S. Ct. 2873,
165 L. Ed. 2d 904 (2006).
8
‘‘This rule also has been codified in § 8-5 (1) of the Connecticut Code
of Evidence, which incorporates all of the developments and clarifications
of the Whelan rule that have occurred since Whelan was decided.’’ (Internal
quotation marks omitted.) State v. Simpson, 286 Conn. 634, 642, 945 A.2d
449 (2008).