State v. Jones , 187 Conn. App. 752 ( 2019 )

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STATE OF CONNECTICUT v. BILLY RAY JONES
(AC 41584)
DiPentima, C. J., and Alvord and Eveleigh, Js.
Syllabus
Convicted of the crimes of murder, carrying a pistol without a permit and
criminal possession of a firearm in connection with the shooting death
of the victim, the defendant appealed. On appeal, he claimed, inter alia,
that the trial court erred in its charge to the jury by failing to provide
a special credibility instruction with respect to a witness, S, regarding
the jailhouse informant exception to the general rule that a criminal
defendant is not entitled to an instruction singling out any of the state’s
witnesses and highlighting his or her possible motive for testifying
falsely. S was incarcerated at the time he provided certain information
to the police about a confession the defendant had made to him the
day after the shooting while they were watching television, and in consid-
eration for talking to the police about the defendant’s confession and
what he had seen on the night of the shooting incident, S was released
from jail without having to make a bond payment and later received a
favorable sentence on his felony charge. Held:
1. The trial court did not err in denying the defendant’s request for a special
credibility instruction regarding jailhouse informants with respect to
the testimony of S: although S was incarcerated when he initiated contact
with the police, he was not a jailhouse informant, as he testified about
events that he had witnessed and a confession that took place while
he and the defendant were socializing outside of the prison environment,
and he was not a fellow inmate of the defendant and did not testify as
to a confession that the defendant made while they were fellow inmates,
and although the defendant, who conceded that S was not a jailhouse
informant, claimed that S’s testimony was similar to that of a jailhouse
informant, this court declined to extend to the present case the jailhouse
informant exception, which applies only where a prison inmate has
been promised a benefit by the state in return for his or her testimony
regarding incriminating statements made by a fellow inmate; moreover,
the jury was aware of S’s involvement in the criminal justice system
and his expectation that he would receive consideration in exchange
for talking to the police, and, therefore, the general credibility instruction
given by the trial court was sufficient.
2. The defendant’s claim that the trial court erred with respect to its jury
instruction on eyewitness identification was unavailing; it was not rea-
sonably probable that the jury was misled by the court’s instructions,
as two witnesses who had made identifications of the defendant knew
the defendant prior to seeing him on the night of the crime, and, as a
result, their identifications of the defendant did not give rise to the risk
of misidentification that the defendant’s requested instructions were
specifically designed to address, and the trial court properly tailored
the instructions to adapt to the issues of the case.
Argued November 28, 2018—officially released February 5, 2019
Procedural History
Two part information charging the defendant, in the
first part, with the crimes of murder and carrying a
pistol without a permit, and, in the second part, with
criminal possession of a firearm, brought to the Supe-
rior Court in the judicial district of Fairfield and tried
to the jury before Kavanewsky, J.; verdict and judgment
of guilty, from which the defendant appealed. Affirmed.
Mark Rademacher, assistant public defender, for the
appellant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were John C. Smriga, state’s attor-
ney, and Michael A. DeJoseph, Jr., senior assistant
state’s attorney, for the appellee (state).
Opinion
ALVORD, J. The defendant, Billy Ray ‘‘BJ’’ Jones,
appeals from the judgment of conviction, rendered fol-
lowing a jury trial, of murder in violation of General
Statutes § 53a-54a (a), carrying a pistol without a permit
in violation of General Statutes § 29-35 (a), and criminal
possession of a firearm in violation of General Statutes
§ 53a-217 (a). On appeal, the defendant claims that the
trial court erred in its charge to the jury by failing to
provide (1) a special credibility instruction and (2) a
specific instruction on the dangers of eyewitness identi-
fication. We disagree, and accordingly, affirm the judg-
ment of the trial court.
The jury reasonably could have found the following
facts. On June 21, 2010, the defendant was outside of
the Charles F. Greene Homes housing complex (Greene
Homes), a federally funded housing project located in
Bridgeport. The victim, Michael ‘‘Booman’’ Williams,
and several other people, including children, were in
the playground area of the Greene Homes. Just before
11 p.m., the defendant approached the victim from
behind while in the playground area and shot at the
victim at least twice, killing him.1
Martin Vincze, a Bridgeport police officer, responded
to a 911 call that had reported the shooting. When Offi-
cer Vincze arrived at the Greene Homes, he found the
victim lying on the ground with a gunshot wound to
the head. Although there were twenty to thirty people
at the scene, only one person was willing to speak to
Officer Vinzce.2 James Kennedy, a Bridgeport police
detective, recovered a nine millimeter spent cartridge
casing from the playground area.
On June 22, 2010, the following day, the defendant
was with Larry Shannon watching television at the
Marina Village housing project in Bridgeport. A news
story about the shooting came onto the television, at
which point the defendant confessed to Shannon. The
defendant, while holding a nine millimeter Ruger hand-
gun,3 told Shannon that he had walked up to the victim,
said ‘‘what’s poppin’ now?,’’ then fired his gun.
On June 25, 2010, John Tenn, a Bridgeport police
detective, questioned the defendant about the victim’s
death. The defendant told Detective Tenn that he did
not know the victim and had never heard the name
‘‘Booman.’’ In addition, the defendant stated that he was
with Benjamin Beau at the Washington Village housing
complex in Norwalk on the night of June 21, 2010. Later
that same day, however, Detective Tenn questioned
Chanel Lawson, the mother of the defendant’s son, who
lived in the Greene Homes. Lawson told Detective Tenn
that the defendant knew the victim. A few weeks later,
Beau was questioned by Detective Tenn and denied
being with the defendant on the night of June 21, 2010.4
In September, 2012, over two years later, police offi-
cers approached Angela Teele while she was at work
and asked to speak to her about the defendant.5 Teele
had lived in the Greene Homes in June, 2010, and had
witnessed the defendant shoot the victim. Specifically,
Teele recalled seeing the defendant in the vicinity of
building three of the Greene Homes between 10 and 11
p.m. on the night of June 21, 2010.6 She observed that
the defendant was wearing a black hoodie and blue
shorts. Teele also recalled seeing the victim play with
two children in the playground area of the Greene
Homes, which was located at the side of building three.
Teele briefly lost sight of the defendant as he walked
around one of the buildings, then watched him throw
on his hood as he went into the playground area. Once
the defendant went into the playground area, Teele
witnessed the defendant approach the victim, whose
back was turned, and shoot the victim in the head.7
Teele observed that the defendant was about two or
three feet away from the victim when he shot the victim
with a pistol. Teele saw the defendant run out of the
playground area toward the back of building three after
the shooting.
In February, 2013, Shannon contacted the police.
Although Shannon previously had not wanted to talk
to the police,8 he was arrested and incarcerated on an
unrelated felony charge and sought to give information
to police in the hope of receiving favorable treatment
in his case. In addition to telling the police about the
defendant’s confession, Shannon also explained that he
saw the defendant on the night of June 21, 2010. Shan-
non was at the Greene Homes and walked to Junco’s,
a nearby market, to get food. After eating at Junco’s,
Shannon walked back toward building four of the
Greene Homes. During his walk back, Shannon saw the
defendant in the area between buildings two and three.
He observed that the defendant was wearing blue jeans
and a hoodie, with the hood up on his head, and was
walking toward the back of building three. After seeing
the defendant, Shannon continued to walk toward
building four, and shortly thereafter heard two or three
gunshots. Shannon tried to run because he did not know
where the gunshots were coming from, but he had diffi-
culty running due to a recent surgery, and ended up
falling to the ground. Shannon got up, walked around
the corner of building four, and saw the victim slumped
over in the playground area.
In June, 2015, the defendant was arrested, and he was
subsequently charged with murder, carrying a pistol
without a permit, and criminal possession of a firearm.
A jury trial followed and the defendant was found guilty
of all charges. The court rendered judgment in accor-
dance with the jury’s verdict and imposed a total effec-
tive sentence of fifty years of imprisonment. This appeal
followed. Additional facts will be set forth as necessary.
I
The defendant first claims that the trial court erred
when it failed to provide a special credibility instruction
regarding Shannon’s testimony. Specifically, the defen-
dant argues that the jailhouse informant instruction,
recognized in State v. Patterson, 276 Conn. 452, 886
A.2d 777 (2005), should extend to cases like his, where
a witness such as Shannon is incarcerated at the time
he provides information to the police for the purposes
of getting out of jail and receiving a favorable disposi-
tion of his pending criminal charges.9 We disagree.
The following additional facts and procedural history
are relevant to our resolution of this claim. At trial,
Shannon was questioned at length about the benefits
he received as a result of talking to police and testifying
at the defendant’s trial. Shannon explained that he
decided to talk to the police in February, 2013, because
he had been arrested on an unrelated felony charge and
was being held at the Bridgeport Correctional Center.
Shannon testified that, in consideration for talking to
the police about the defendant’s confession and what
he had seen on the night of June 21, 2010, he was
released from the Bridgeport Correctional Center with-
out having to make a bond payment. In addition, Shan-
non stated that he received a favorable sentence on his
felony charge.10
On January 23, 2017, the defendant submitted a writ-
ten request to charge. He requested a special credibility
instruction with respect to Shannon’s testimony.11 The
defendant conceded that there was no controlling legal
authority requiring such an instruction, but nonetheless
argued, as he does on appeal, that the jailhouse infor-
mant exception recognized in Patterson should extend
to cases such as his. Specifically, he argued that ‘‘Larry
[Shannon’s testimony] is no less suspect than the testi-
mony of an accomplice or jailhouse snitch, given the
unique circumstances of how and when it was dis-
closed, and the potential motivations for the witness
to provide information he believes will be helpful to
the state regardless of whether that information is accu-
rate or based on personal knowledge.’’
The trial court declined to provide the jury with the
special credibility instruction. Rather, in its final charge
to the jury, the court provided the jury with a general
witness credibility instruction. The court instructed in
relevant part: ‘‘You should consider their appearance,
conduct and demeanor while testifying and in court,
and any interest, bias, prejudice or sympathy which a
witness may apparently have for or against the state,
or the accused or in the outcome of the trial. . . .’’
We turn to the legal principles that guide our review
of the defendant’s claim. ‘‘It is a well established princi-
ple that a defendant is entitled to have the jury correctly
and adequately instructed on the pertinent principles
of substantive law. . . . The primary purpose of the
charge to the jury is to assist [it] in applying the law
correctly to the facts which [it] find[s] to be established.
. . . [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.’’
(Citation omitted; internal quotation marks omitted.)
State v. Salmond, 179 Conn. App. 605, 627–28, 180 A.3d
979, cert. denied, 328 Conn. 936, 183 A.3d 1175 (2018).
‘‘Generally, a [criminal] defendant is not entitled to
an instruction singling out any of the state’s witnesses
and highlighting his or her possible motive for testifying
falsely.’’ State v. Ortiz, 252 Conn. 533, 561, 747 A.2d
487 (2000); accord State v. Colon, 272 Conn. 106, 227,
864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S.
Ct. 102, 163 L. Ed. 2d 116 (2005). Our Supreme Court
has recognized three exceptions to this general rule,
including the jailhouse informant exception. See State
v. Diaz, 302 Conn. 93, 101–102, 25 A.3d 594 (2011).
Our Supreme Court adopted the jailhouse informant
exception in Patterson, holding that a defendant is enti-
tled to a special credibility instruction in cases where
a prison inmate ‘‘has been promised a benefit by the
state in return for his or her testimony’’ regarding
incriminating statements made by a fellow inmate.
State v. Patterson, supra, 276 Conn. 469; see also State
v. Diaz, supra, 302 Conn. 102 (‘‘a jailhouse informant
is a prison inmate who has testified about confessions
or inculpatory statements made to him by a fellow
inmate’’ [emphasis added]).
‘‘In Diaz, our Supreme Court declined to interpret its
decision in Patterson as [requiring] a special credibility
instruction when an incarcerated witness has testified
concerning events surrounding the crime that [he] wit-
nessed outside of prison . . . reasoning that such an
exception would swallow the rule that the trial court
generally is not required to give such an instruction
for the state’s witnesses.’’ (Citation omitted; internal
quotation marks omitted.) State v. Salmond, supra, 179
Conn. App. 630.
In the present case, the defendant concedes that
Shannon was not a jailhouse informant. Although Shan-
non was incarcerated at the Bridgeport Correctional
Center when he initiated contact with the police, he
was not a fellow inmate of the defendant. Shannon did
not testify as to a confession that the defendant made
while they were fellow inmates. See State v. Diaz, supra,
302 Conn. 102 (‘‘Patterson has not been applied to
require a special credibility instruction when an incar-
cerated witness has testified concerning events sur-
rounding the crime that he or she witnessed outside of
prison, as distinct from confidences that the defendant
made to the witness while they were incarcerated
together’’). Rather, Shannon testified about events that
he had witnessed and a confession that took place while
both of them were socializing outside of the prison envi-
ronment.
Moreover, the defendant recognizes that requiring a
special credibility instruction for Shannon’s testimony
would be an expansion of the exception recognized
in Patterson. The defendant nonetheless argues that,
although a special credibility instruction is not required
under existing law, the trial court’s failure to provide
such an instruction was in error because Shannon’s
testimony was ‘‘similar to [that of] a classic jailhouse
informant,’’ and presented ‘‘[t]he same concerns that
require . . . [a] special credibility instruction for such
a witness . . . .’’ Specifically, he argues that Shannon’s
testimony was unreliable because of ‘‘[t]he pressure
of the prison environment’’ and ‘‘[t]he introduction of
benefits in exchange for testimony . . . [which] has an
undeniable corrupting influence on the criminal process
by encouraging those with little to lose to fabricate
damaging testimony in order to reap the government’s
reward of freedom.’’
Following the appellate guidance in Diaz and Salm-
ond, we decline to extend the jailhouse informant
exception to the facts of the present case.12 In Diaz
and Salmond, the courts explained that ‘‘when the jury
[is] aware of the [nonjailhouse informant] witness’
involvement in the criminal justice system and their
expectations that they would receive consideration in
exchange for their testimony, a general credibility
instruction is sufficient.’’ (Internal quotation marks
omitted.) State v. Salmond, supra, 179 Conn. App. 630;
see State v. Diaz, supra, 302 Conn. 103.
In the present case, the jury was repeatedly advised
that Shannon was incarcerated at the Bridgeport Cor-
rectional Center at the time he initiated contact with
the police and that, in consideration for his cooperation,
he was released from jail without having to make a
bond payment and later received a favorable sentence
on his felony charge. Shannon testified at trial regarding
his motive to talk to the police, as well as the benefits
he received, on both direct examination and cross-
examination. See footnote 9 of this opinion. Moreover,
during closing arguments, defense counsel told the jury
how Shannon’s motivations and favorable treatment
could be taken into consideration when determining
his credibility.13 Accordingly, we conclude that the jury
was aware of Shannon’s involvement in the criminal
justice system and his expectation that he would receive
consideration in exchange for talking to the police.
Therefore, under Diaz and Salmond, a general credibil-
ity instruction is sufficient.14
The court, in its charge to the jury, gave a general
credibility instruction. In that instruction, the jury was
told to consider ‘‘any interest, bias, prejudice or sympa-
thy which a witness may apparently have for or against
the state, or the accused or in the outcome of the trial.’’
See State v. Salmond, supra, 179 Conn. App. 631. We
therefore conclude that the court did not err in denying
the defendant’s request for a jailhouse informant
instruction.
II
The defendant additionally claims that the trial court
erred with respect to its jury instruction on eyewitness
identification. Specifically, the defendant argues that
‘‘[a] specific instruction on the dangers of eyewitness
identification was required in this case . . . .’’ We
disagree.
The following additional facts and procedural history
are relevant to our resolution of this claim. In Septem-
ber, 2012, Teele was at work when the police
approached her and asked her whether she would be
willing to speak to them. Once Teele said that she was
willing to talk, the police introduced the case to her
using the defendant’s nickname, ‘‘BJ.’’ When Teele later
met with the police and told them what she had wit-
nessed on the night of June 21, 2010, the police pre-
sented her with a photographic array. From that
photographic array, Teele identified the defendant as
the individual that she saw shoot the victim.15 When
Shannon spoke to the police in February, 2013, he
viewed a series of photographs and identified the defen-
dant as the individual who confessed to the shooting
and whom Shannon saw in the Greene Homes on the
night of June 21, 2010.
Both Teele and Shannon knew the defendant prior
to seeing him in the Greene Homes on June 21, 2010.16
Teele had known the defendant for a ‘‘couple [of]
months’’ and had seen him around the Greene Homes a
‘‘couple [of] times’’ per week during that time. Similarly,
Shannon had known the defendant for ‘‘two [to] three
months’’ and had seen him in the Greene Homes on
‘‘five [or] six different occasions.’’ Accordingly, both
Teele and Shannon had known the defendant before
making their identifications in September, 2012, and
February, 2013.
In the defendant’s written request to charge, the
defendant requested instructions regarding specific fac-
tors affecting the accuracy of eyewitness identifica-
tions. Specifically, the defendant requested that the
court instruct the jury about the capacity and opportu-
nity of a witness to observe the perpetrator, including
the length of time available to the witness to make the
observations, the distance between the witness and the
perpetrator, the lighting conditions at the time of the
offense, whether the witness had seen or known the
person in the past, the history, if any, between them,
including any degree of animosity, and whether any-
thing distracted the attention of the witness during the
incident. The defendant also requested that the court
instruct the jury to consider the length of time that
elapsed between the occurrence of the crime and identi-
fication of the defendant by the witness, and the sug-
gestibility of the procedure used when the witness first
viewed and identified the defendant.17
In its final charge to the jury, the court instructed:
‘‘In this case, the state has presented evidence that
certain witnesses identified the defendant in connection
with the crime charged. These included Angela Teele,
who testified she saw the defendant shoot the decedent,
and Larry Shannon, who testified he saw the defendant
in close proximity to the shooting location shortly
before he heard gunshots. . . .
‘‘In arriving [at] a determination as [to] the matter of
identification, you should consider all the facts and
circumstances that existed at the time of the observa-
tion of the perpetrator by each witness. In this regard,
the reliability of each witness is of paramount impor-
tance. Since identification testimony is an expression
of belief or impression by the witness, its value depends
upon the opportunity and ability of the witness to
observe the perpetrator at the time of the event and to
make an accurate identification later. It is for you to
decide how much weight to place upon such testimony.
In short, you must consider the totality of the circum-
stances affecting any identification.
‘‘Remember, the state has the burden to not only
prove every element of the crime, but also the identity
of the defendant as the perpetrator of the crime. You
must be satisfied beyond a reasonable doubt of the
identity of the defendant as the one who committed
the crime or you must find the defendant not guilty. If
you have a reasonable doubt as to the accuracy of the
identification, you must find the defendant not guilty.’’
We turn to the legal principles that guide our review
of the defendant’s claim. ‘‘Our Supreme Court has held
that identification instructions are not constitutionally
required and [e]ven if [a] court’s instructions were less
informative on the risks of misidentification . . . the
issue is at most one of instructional error rather than
constitutional error. A new trial would only be war-
ranted, therefore, if the defendant could establish that
it was reasonably probable that the jury was misled.
. . . The ultimate test of a court’s instructions is
whether, taken as a whole, they fairly and adequately
present the case to a jury in such a way that injustice
is not done to either party under the established rules
of law.
‘‘We review nonconstitutional claims of instructional
error under the following standard. While a request to
charge that is relevant to the issues in a case and that
accurately states the applicable law must be honored,
a [trial] court need not tailor its charge to the precise
letter of such a request. . . . If a requested charge is
in substance given, the [trial] court’s failure to give a
charge in exact conformance with the words of the
request will not constitute a ground for reversal. . . .
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. A
challenge to the validity of jury instructions presents a
question of law over which this court has plenary
review.’’ (Citations omitted; internal quotation marks
omitted.) State v. Crosby, 182 Conn. App. 373, 410–11,
190 A.3d 1, cert. denied, 330 Conn. 911, 193 A.3d 559
(2018). ‘‘Significantly, our Supreme Court in [State v.
Guilbert, 306 Conn. 218, 49 A.3d 705 (2012)] emphasized
that a trial court retains the discretion to decide
whether, under the specific facts and circumstances
presented, focused and informative jury instructions on
eyewitness testimony are warranted. . . . In reviewing
the discretionary determinations of a trial court, every
reasonable presumption should be given in favor of the
correctness of the court’s ruling.’’ (Internal quotation
marks omitted.) Id., 416.
Our Supreme Court has recognized that, ‘‘although
there are exceptions, identification of a person who is
well known to the eyewitness generally does not give
rise to the same risk of misidentification as does the
identification of a person who is not well known to the
eyewitness.’’ State v. Guilbert, supra, 306 Conn. 259–60.
Moreover, our Supreme Court has acknowledged that
reviewing courts in other jurisdictions ‘‘have found no
impropriety in trial courts’ failures to give specialized
jury instructions on eyewitness identifications when a
witness had previous contact with the defendant.’’ See
State v. Williams, 317 Conn. 691, 705 n.14, 119 A.3d
1194 (2015).
In the present case, both Teele and Shannon had
known the defendant prior to seeing him on the night
of June 21, 2010. Therefore, their identifications of the
defendant did not give rise to the risk of misidentifica-
tion18 that the defendant’s requested instructions were
specifically designed to address.19 By omitting the
defendant’s requested instructions, the trial court tai-
lored the instructions to adapt to the issues of the case.
See State v. Crosby, supra, 182 Conn. App. 411 (‘‘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]). Accordingly, we
conclude that it is not reasonably probable that the jury
was misled by the court’s instructions.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The victim died from a gunshot wound to the head. Another bullet grazed
the victim’s right forearm.
2
Officer Vincze explained at trial that he was not surprised that ‘‘people
just walked away from [him]’’ because ‘‘[i]t’s a common thing in housing com-
plexes.’’
3
Marshal Robinson, a firearms expert, testified that the nine millimeter
spent cartridge casing found at the scene could have been fired by at least
fifty types of guns, including a nine millimeter Ruger handgun.
4
The police first talked to Beau on July 5, 2010. Beau denied that he was
with the defendant on that night and denied knowing the defendant. At trial,
Beau acknowledged that he had met the defendant while they were in school
together, but maintained that he was not with the defendant on the night
of June 21, 2010.
5
Detective Tenn’s investigation was prolonged due to a lack of forthcom-
ing witnesses willing to speak to the police about what they had seen. Teele
explained that she did not talk to police until September, 2012, because
‘‘[she] was told if [she] said something that things was gonna happen,’’ and
that she feared for her safety. Similarly, Shannon explained that it was ‘‘not
acceptable’’ to talk to police and that he feared retaliation.
6
Although the shooting occurred at night, several witnesses, including
Teele, described the lighting at the Greene Homes as ‘‘spotlight’’ or ‘‘sta-
dium’’ lighting.
7
Specifically, Teele stated that the defendant ‘‘walked up on Booman,
Booman back was turned, and [the defendant] shot him.’’
8
See footnote 2 of this opinion.
9
The defendant also claims that, ‘‘whether or not it was error to fail to
give a special credibility instruction, it was error for the court to fail to give
the jurors guidance on assessing Shannon’s credibility by telling them about
the nine factors contained in [the] defendant’s request to charge.’’ See foot-
note 10 of this opinion. Because we conclude that the defendant was entitled
only to a general credibility instruction under State v. Diaz, 302 Conn. 93,
25 A.3d 594 (2011), and State v. Salmond, 179 Conn. App. 605, 180 A.3d 979,
cert. denied, 328 Conn. 936, 183 A.3d 1175 (2018), we reject the defen-
dant’s claim.
10
In addition to Shannon’s testimony during direct examination about the
benefits he received in consideration for talking to the police, defense coun-
sel cross-examined Shannon regarding his motive to talk to the police and
testify at trial. On cross-examination, the following colloquy took place:
‘‘[Defense counsel]: Jail is not a place that you like to be, right?
‘‘[Shannon]: Yes.
‘‘[Defense counsel]: And you wanted to get out of jail, right?
‘‘[Shannon]: Yes.
‘‘[Defense counsel]: Okay. And so it’s at that point that you reached out
to detectives and said that you have some information about this homicide
that occurred on June 21, 2010, right?
‘‘[Shannon]: Yes.
‘‘[Defense counsel]: And you reached out to them because you were hoping
that they could give you some favorable treatment on your jail situation or
your criminal . . . charge, right?
‘‘[Shannon]: Yes.
‘‘[Defense counsel]: In fact, at the time you were . . . charged with a
felony, right?
‘‘[Shannon]: Yes.
***
‘‘[Defense counsel]: And shortly after that, you were released from jail
without having to pay a bond, right?
‘‘[Shannon]: Yes.
‘‘[Defense counsel]: And a bond is money that you have to pay to get out
of jail, if you’re facing pending charges?
‘‘[Shannon]: Yes.
‘‘[Defense counsel]: You didn’t have the money to . . . get out of jail,
right?
‘‘[Shannon]: No.
‘‘[Defense counsel]: Okay. So you were hoping to trade the information
that you have in order to . . . accomplish that, right?
‘‘[Shannon]: Yes.
‘‘[Defense counsel]: And, in fact, you were also looking for some favorable
treatment on your case, right?
‘‘[Shannon]: Yes.’’
11
The defendant requested the following instruction: ‘‘A witness who
testified in this case, Larry Shannon, was incarcerated and was awaiting
trial for some crimes other than the crime involved in this case at the time
he first provided information to police. You should look with particular care
at the testimony of the witness and scrutinize it very carefully before you
accept it. You should consider the credibility of this witness in the light of
any motive for testifying falsely and inculpating the accused.
‘‘In considering the testimony of Larry Shannon, you may consider such
things as: (1) [t]he extent to which his testimony is confirmed by other
evidence; (2) [t]he specificity of the testimony; (3) [t]he extent to which
the testimony contains details known only by the perpetrator; (4) [t]he
extent to which the details of the testimony could be obtained from a source
other than the defendant; (5) [t]he informant’s criminal record; (6) [a]ny
benefits received in exchange for the testimony or providing information
to the police or prosecutor; (7) [w]hether the witness expects to receive a
benefit in exchange for the testimony or providing information to the police
or prosecutor, regardless of whether such an agreement actually exists; (8)
[w]hether the witness previously provided reliable or unreliable information;
[and] (9) [t]he circumstances under which the witness initially provided the
information to the police or the prosecutor, including whether the witness
was responding to leading questions.’’ The nine factors that the defendant
cited were set forth in State v. Arroyo, 292 Conn. 558, 570, 973 A.2d 1254
(2009), cert. denied, 559 U.S. 911, 130 S. Ct. 1296, 175 L. Ed. 2d 1086 (2010),
a case involving jailhouse informants.
12
The defendant attempts to distinguish the present case from Diaz by
pointing out that the claims involving nonjailhouse informants in Diaz were
not preserved and were therefore reviewed by the court under the plain
error doctrine. We are not persuaded. In Diaz, our Supreme Court concluded
that, in cases involving nonjailhouse informants, defendants are not entitled
to a special credibility instruction. The court in Diaz concluded that ‘‘the
trial court’s failure to give a special credibility instruction concerning the
testimony of [the nonjailhouse informants] pursuant to Patterson or Arroyo
would not have been improper even if the defendant had requested such
an instruction.’’ (Emphasis added.) State v. Diaz, supra, 302 Conn. 104.
Moreover, a preserved claim was subsequently considered and rejected by
this court in Salmond.
The defendant also attempts to distinguish Salmond from the present
case because Salmond involved a witness’ testimony about events he had
personally witnessed from his ‘‘front row seat.’’ (Internal quotation marks
omitted.) State v. Salmond, supra, 179 Conn. App. 630. The defendant argues
that his case is different because, at his trial, Shannon testified about a
confession in addition to events that he had personally witnessed. We are
not persuaded. The defendant’s confession to Shannon on June 22, 2010,
like the events that Shannon had witnessed the night before, had taken
place outside of the prison environment.
Simply put, there is no law to support the defendant’s contention that he
was entitled to a special credibility instruction under the circumstances of
this case. Although the defendant cites to State v. Arroyo, supra, 292 Conn.
558, in support of his argument that this court should extend Patterson, his
argument is misplaced. Arroyo involved jailhouse informants. Moreover,
our Supreme Court, when it had the opportunity to do so, declined to extend
Arroyo in Diaz. See State v. Diaz, supra, 302 Conn. 103–104.
13
Defense counsel told the jury: ‘‘[T]his case . . . is a case that really
comes down to the reliability and believability or the lack thereof of two
witnesses; Angela Teele and Larry Shannon . . . . I think you have to con-
sider Larry Shannon’s motivations as well in this case. Larry Shannon’s a
multiple time convicted felon and you can take that into account in assessing
his credibility. Like Angela Teele, he doesn’t come forward in this case for
more than two years. I think it’s about two and a half years at the point
when he comes forward and provides information to the police. He contacts
police only when he has something to gain for himself. He’s in jail, he doesn’t
like to be in jail, he told you that. He’s already been arrested for a felony
charge. He’s already on probation for a felony charge. He talks to police
and then all of a sudden he’s let out of jail, gets a favorable disposition on
his criminal cases, he never has to go back to jail. Things work out pretty
well for Larry Shannon. And those are the sorts of things that you can
consider when you’re sizing up his credibility and his believability and
whether he’s really telling the truth or whether he’s coming forward two
and a half years later just to try and help himself out at that point. You also
heard that currently he’s on probation. He has a five year sentence suspended
that’s hanging over his head. It’s up for you guys to consider whether that’s
motivating him in any way now.’’
14
The defendant requests that we ‘‘reject [this court’s] crimped approach
[in Salmond].’’ It is this court’s policy to decline to overrule a decision made
by another panel of this court absent en banc consideration. In re Zoey H.,
183 Conn. App. 327, 340 n.5, 192 A.3d 522, cert. denied, 330 Conn. 906, 192
A.3d 425 (2018).
15
On appeal, the defendant claims that this identification procedure was
suggestive because the police had referred to ‘‘BJ’’ before conducting the
photographic array. At trial, during the defendant’s cross-examination of
Detective Tenn, the following colloquy took place:
‘‘[Defense counsel]: [O]ne of the things you’re trained on is the proper
way to conduct a witness identification procedure?
‘‘[Detective Tenn]: Yes.
‘‘[Defense counsel]: And one of the things that you’re trained is that when
you’re conducting an interview with a potential witness, you never want to
tell the witness the name of the . . . suspect, right?
‘‘[Detective Tenn]: Right.
‘‘[Defense counsel]: Cause . . . you don’t want to tip your hand or do
anything that might influence the witness to pick the suspect out as the
perpetrator, right?
‘‘[Detective Tenn]: Correct.
‘‘[Defense counsel]: You want to make sure that if they pick somebody
out of identify somebody, that you’re not influencing them in any way and
that it’s actually coming from them, right?
‘‘[Detective Tenn]: That’s right.
‘‘[Defense counsel]: Okay. Because otherwise, it could lead to a mistake
and a false identification, right?
‘‘[Detective Tenn]: Right.’’
During his closing argument, the defendant highlighted Detective Tenn’s
testimony and how it related to Teele’s identification of the defendant:
‘‘[Y]ou heard from Detective Tenn that police are trained when they’re
interviewing a witness to a crime, that they’re not to sort of tip their hand
or tell the witness who it is they believe the perpetrator of the crime is,
because that could lead to a mistaken identification. It could lead to . . .
the witness identifying the person that the witness believes the police want
the witness to identify, and that’s what happened here. I mean, they said
to her, we want to talk to you about the BJ case. Maybe they meant to say,
Booman. But the bottom line is, they . . . provided the name to her. So I
think you have to ask yourself did that suggest to her in any way who or
what they . . . wanted her to say or identify in the case. Detective Tenn
told you that that’s where a procedure is completely improper.’’
16
The defendant suggests that the witnesses did not know the defendant,
and merely ‘‘knew of’’ him through other people. This assertion is not sup-
ported by the record. Both Teele and Shannon testified that they personally
had seen the defendant on multiple occasions. Although Teele did, at one
point, say that she ‘‘knew of’’ the defendant, she shortly thereafter stated
that she had ‘‘seen him around in [the Greene Homes].’’
17
In his written request to charge, the defendant also requested an instruc-
tion that the jury may ‘‘take into account that an identification made by
picking the defendant out of a group of similar individuals is generally more
reliable than one which results from the presentation of the defendant alone
to the witness.’’ On appeal, the defendant claims that ‘‘[w]hen Shannon
spoke with police in jail, they showed him a single photograph of the defen-
dant rather than an array.’’ The defendant, however, mischaracterizes the
identification procedure. Shannon was not shown just a single photograph
of the defendant. Rather, the police showed Shannon a series of photographs.
This identification procedure is known as a sequential photographic array.
See State v. Williams, 146 Conn. App. 114, 129 n.16, 75 A.3d 668 (2013) (‘‘In
a simultaneous array, all of the photographs are shown to the witness at
one time. In a sequential array, the photographs are shown to the witness
one at a time.’’), aff’d, 317 Conn. 691, 119 A.3d 1194 (2015). Thus, the
identification procedure did not involve ‘‘the presentation of the defendant
alone’’ as his requested jury charge suggested. Accordingly, by omitting
the defendant’s requested instruction, the trial court merely tailored the
instruction to adapt to the evidence of the case.
18
Rather, as the state emphasizes in its appellate brief, the issue would
have been one of false identification, not misidentification. As defense
counsel argued in his closing argument, ‘‘the case entirely hinges, in our
view, on the credibility or lack thereof of Angela Teele and Larry Shannon.’’
We note that the court sufficiently addressed witness credibility in its instruc-
tion to the jury. See part I of this opinion.
19
The defendant argues that his ‘‘request to charge substantially tracked
the language of the model [charge in United States v. Telfaire, 469 F.2d 552
(D.C. Cir. 1972)], which our state’s judges have incorporated into the Judicial
Branch’s criminal charge on identification . . . to warn juries about the
dangers inherent in eyewitness identification.’’ He concedes that our
Supreme Court ‘‘has never required that a Telfaire instruction must be given
verbatim in order to ensure that the jury is properly guided . . . .’’ Nonethe-
less, the defendant argues that ‘‘the main principles of the court’s charge
must adequately cover the dangers of misidentification.’’ (Emphasis added.)