State v. Walker , 169 Conn. App. 794 ( 2016 )

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STATE OF CONNECTICUT v. JOSEPH WALKER
(AC 38916)
Alvord, Sheldon and Mullins, Js.
Argued October 5,—officially released December 20, 2016
(Appeal from Superior Court, judicial district of
Waterbury, Cremins, J.)
Katherine C. Essington, assigned counsel, for the
appellant (defendant).
Matthew A. Weiner, assistant state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attor-
ney, and Amy L. Sedensky and Terence D. Mariani,
senior assistant state’s attorneys, for the appellee
(state).
Opinion
MULLINS, J. The defendant, Joseph Walker, appeals
from the judgment of conviction, rendered after a jury
trial, of murder in violation of General Statutes § 53a-
54a (a), conspiracy to commit murder in violation of
General Statutes §§ 53a-48 and 53a-54a (a), robbery in
the first degree in violation of General Statutes § 53a-
134 (a) (2), conspiracy to commit robbery in the first
degree in violation of General Statutes §§ 53a-48 and
53a-134 (a) (2), and criminal possession of a firearm
in violation of General Statutes § 53a-217 (a) (1).1 On
appeal, the defendant claims (1) there was insufficient
evidence to support his conviction for robbery in the
first degree and conspiracy to commit robbery in the
first degree; (2) the court improperly instructed the jury
on the elements of conspiracy to commit robbery in
the first degree; and (3) the court committed plain error
by failing to instruct the jury on accomplice or infor-
mant testimony. We affirm in part and reverse in part
the judgment of the trial court.
The following facts reasonably could have been found
by the jury. On May 10, 2012, the defendant arranged
to purchase $6150 worth of cocaine from the victim,
David Caban. Caban lived at 127 Proctor Street in Water-
bury with his girlfriend, Lourdes Santana, and Santana’s
mother. On May 12, 2012, at approximately 9 p.m., the
victim was inside his home with his close friend and
cousin, Angelo Caban (Angelo). Santana and her mother
also were present in the home. Another friend, Anthony
Jackson, was sitting in a chair on the front porch of
the home.
At approximately 9:30 p.m., the defendant, accompa-
nied by his close friend, Solomon Taylor, drove in a
white Mitsubishi Gallant (vehicle), which was owned
by Taylor’s girlfriend, Alexia Bates, to the home of the
victim to purchase the cocaine. The defendant parked
the vehicle directly in front of the house so that the
passenger’s side of the vehicle was facing it.
The victim left the house and approached the vehicle.
The victim momentarily leaned into the rear passenger’s
side of the vehicle, and then returned to the inside of
his house, where he went into his bedroom. When the
victim walked by Angelo as he again exited the house
to return to the vehicle, he stated: ‘‘Cuz, stand right
here and make sure . . . I’m good.’’ Angelo proceeded
to stand on the steps outside of the house, where he
talked with Jackson. As the victim approached the vehi-
cle, he was carrying the crack cocaine in a brown paper
bag, which was tucked in his waistband.
The victim again leaned into the rear passenger’s
side of the vehicle, with his feet hanging out. Shortly
thereafter, a struggle began between the victim and the
occupants of the vehicle. One of the occupants of the
vehicle had a revolver, and the victim was attempting
to hold his arm in an effort to avoid being shot; that
occupant then fired a shot through the roof of the vehi-
cle. After hearing the shot, both Angelo and Jackson
ran toward the vehicle, but, by the time they reached
it, more shots had been fired, and the victim had been
hit twice, once in the arm and once in the head. As a
result of his injuries, the victim was slumped over with
his body only partially inside the vehicle.2
Jackson then began striking the front passenger’s
side window of the vehicle with a child’s Razor scooter
that he found near the house. After breaking the win-
dow, Jackson fought with the man in the passenger’s
seat. Meanwhile, Angelo tried to pull the victim out of
the vehicle, but, as he did so, more shots were fired.
Jackson then retreated from the immediate area by
jumping over a fence and hiding behind a building.
Angelo then went to the driver’s side of the vehicle,
where he encountered the defendant, who was pointing
a revolver directly at him. The barrel of the revolver
was within arm’s reach of Angelo’s face. Taylor then
yelled to the defendant to ‘‘forget it,’’ and both men
reentered the vehicle and drove away with the rear
passenger’s side door open and the victim only partially
inside the vehicle.
Angelo retrieved his car keys from inside the house,
and he and Santana drove after the defendant and Tay-
lor. Within approximately one quarter of a mile, Angelo
and Santana saw the victim’s body in the street. Angelo
stopped the car, and Santana called for help. Santana
also dialed the victim’s cell phone number. When some-
one answered her call, she began yelling into the phone,
and the person on the other end hung up. The victim
was transported to Saint Mary’s Hospital, where he died
from his wounds. The victim had approximately $40 in
cash on his person when he was transported.
Meanwhile, the defendant drove to the home of Tay-
lor’s girlfriend, Alexia Bates. Upon his arrival, the defen-
dant went upstairs into Bates’ apartment and proceeded
to go into the bathroom to treat a gunshot wound to
his hand, which he had suffered during the struggle
with the victim. Taylor, who appeared frantic as he
was pacing back and forth, encountered Bates and her
roommate in the roommate’s bedroom. Taylor then
asked Bates to go into her bedroom, which she did.
Bates could see blood on Taylor’s boxer shorts, which
later DNA analysis determined belonged to the victim.
While they were in Bates’ bedroom, a red slide-style
cell phone in Taylor’s possession began to ring. When
Taylor answered the phone, Bates heard a woman
screaming on the other end. Taylor quickly hung up the
phone; he did not appear to know who was calling him.
Taylor then ordered Bates to go to her vehicle to
retrieve the revolver. Bates went to the vehicle, where
she saw many different sized pieces of crack cocaine
mixed with blood and glass on the floor. She also saw
blood on the door, on the front seat, in the middle
console, on the dashboard where the airbag is con-
tained, and in the back passenger’s seat. She saw broken
glass on the floor and on the front seat, and bullet holes
in the roof. Bates also discovered the revolver, which
she then brought upstairs to Taylor, who put it in his
waistband. Taylor then told Bates to gather cleaning
supplies to clean the vehicle; Bates grabbed a bucket
that she filled with water and ‘‘cleaning stuff,’’ ‘‘sponges,
rags . . . [and] Clorox spray.’’ She also used a bottle
of Febreze that already was in the vehicle.
As Bates and Taylor cleaned the vehicle, Taylor told
her that ‘‘they were in New Britain, and they started
shooting up the car trying to rob them.’’ (Emphasis
added.) When Bates looked under the seat, she found
Taylor’s red slide-style cell phone, which looked identi-
cal to the cell phone that Taylor had answered while
in the house. Taylor then realized that the red slide-
style phone he had in his possession was not his phone,
and he threw it into a treed area near Bates’ driveway,
where it later was recovered by police. Bates also took
bags out of the trunk of the vehicle, and she and Taylor
then removed all of the items from the inside of the
vehicle, which included Bates’ makeup, her wallet, her
coat, the Febreze bottle, a New York Yankees cap, and
other things that she could not remember specifically.
Meanwhile, the defendant telephoned his childhood
friend, Julian Warren, asking him to come to Bates’
home. When Warren arrived, he saw that the defendant
was bleeding from his hand. The defendant told Warren
that he needed to go to the hospital because he had
been shot, but that he did not want to go to a local
hospital because he was on parole. Warren, along with
another individual, then took the defendant to Queens,
New York. During the ride to Queens, Warren heard
the defendant say something about being on the news
and about ‘‘a dude fighting back’’ and ‘‘somebody fight-
ing back.’’
On September 12, 2012, the police arrested the defen-
dant in New York. After a jury trial, the defendant was
found guilty of all charges against him.3 See also foot-
note 1 of this opinion. The court sentenced the defen-
dant as follows: (1) for the charge of murder, sixty
years incarceration, twenty-five years of which were
mandatory; (2) for the charge of conspiracy to commit
murder, twenty years incarceration; (3) for the charge
of robbery in the first degree, twenty years incarcera-
tion, five years of which were mandatory; (4) for the
charge of conspiracy to commit robbery in the first
degree, twenty years incarceration, five years of which
were mandatory; and (5) for the charge of criminal
possession of a firearm, five years incarceration, two
years of which were mandatory.4 The court ordered
all sentences to run concurrently, resulting in a total
effective sentence of sixty years incarceration, twenty-
five years of which were mandatory. This appeal fol-
lowed. Additional facts will be set forth as necessary.
I
The defendant first claims that ‘‘[t]here was no evi-
dence from which jurors could reasonably infer that
there was a robbery or an agreement to commit rob-
bery.’’ He argues: ‘‘[T]he state’s evidence proved only
that something went wrong during a planned drug deal
between the parties that [led] to the shooting of [the
victim]. The state did not introduce any evidence at
trial from which the jury could reasonably infer that
[the defendant] intended to rob [the victim], or that
there was an agreement between him and Taylor to rob
[the victim].’’ We disagree.
We employ the following standard in our analysis of
the defendant’s claim: ‘‘In reviewing a sufficiency of
the evidence claim, we apply a two-part test. First, we
construe the evidence in the light most favorable to
sustaining the verdict. Second, we determine whether
upon the facts so construed and the inferences reason-
ably drawn therefrom the jury reasonably could have
concluded that the cumulative force of the evidence
established guilt beyond a reasonable doubt. . . .
‘‘We note that the jury must find every element proven
beyond a reasonable doubt in order to find the defen-
dant guilty of the charged offense, [but] each of the
basic and inferred facts underlying those conclusions
need not be proved beyond a reasonable doubt. . . .
If it is reasonable and logical for the jury to conclude
that a basic fact or an inferred fact is true, the jury is
permitted to consider the fact proven and may consider
it in combination with other proven facts in determining
whether the cumulative effect of all the evidence proves
the defendant guilty of all the elements of the crime
charged beyond a reasonable doubt. . . . Moreover,
[w]here a group of facts are relied upon for proof of
an element of the crime it is their cumulative impact
that is to be weighed in deciding whether the standard
of proof beyond a reasonable doubt has been met and
each individual fact need not be proved in accordance
with that standard. It is only where a single fact is
essential to proof of an element, however, such as iden-
tification by means of fingerprint evidence, that such
evidence must support the inference of that fact beyond
a reasonable doubt. . . .
‘‘As we have often noted, however, proof beyond
a reasonable doubt does not mean proof beyond all
possible doubt . . . nor does proof beyond a reason-
able doubt require acceptance of every hypothesis of
innocence posed by the defendant that, had it been
found credible by the trier, would have resulted in an
acquittal. . . . On appeal, we do not ask whether there
is a reasonable view of the evidence that would support
a reasonable hypothesis of innocence. We ask, instead,
whether there is a reasonable view of the evidence that
supports the jury’s verdict of guilty. . . . Furthermore,
[i]t is immaterial to the probative force of the evidence
that it consists, in whole or in part, of circumstantial
rather than direct evidence.’’ (Internal quotation marks
omitted.) State v. Gonzalez, 311 Conn. 408, 419–20, 87
A.3d 1101 (2014).
The defendant argues that the state failed to intro-
duce any evidence that the defendant robbed, or
intended to rob, the victim. He contends: ‘‘It is undis-
puted that something went wrong during the [drug]
transaction, but there was no evidence presented at
trial that [the defendant] agreed or intended to take
drugs from [the victim] without paying for them.’’ We
disagree.
‘‘A person commits robbery when, in the course of
committing a larceny, he uses or threatens the immedi-
ate use of physical force upon another person for the
purpose of: (1) Preventing or overcoming resistance to
the taking of the property or to the retention thereof
immediately after the taking; or (2) compelling the
owner of such property or another person to deliver
up the property or to engage in other conduct which
aids in the commission of the larceny.’’ General Statutes
§ 53a-133. ‘‘A person is guilty of robbery in the first
degree when, in the course of the commission of the
crime of robbery . . . he or another participant in the
crime . . . is armed with a deadly weapon . . . .’’
General Statutes § 53a-134 (a) (2). ‘‘A person commits
larceny when, with intent to deprive another of property
or to appropriate the same to himself or a third person,
he wrongfully takes, obtains or withholds such property
from an owner.’’ General Statutes § 53a-119.
‘‘To establish the crime of conspiracy under § 53a-48
. . . it must be shown that an agreement was made
between two or more persons to engage in conduct
constituting a crime and that the agreement was fol-
lowed by an overt act in furtherance of the conspiracy
by any one of the conspirators. The state must also
show intent on the part of the accused that conduct
constituting a crime be performed. . . . Conspiracy is
a specific intent crime, with the intent divided into two
elements: (a) the intent to agree or conspire and (b)
the intent to commit the offense which is the object of
the conspiracy. . . . Thus, [p]roof of a conspiracy to
commit a specific offense requires proof that the con-
spirators intended to bring about the elements of the
conspired offense.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Danforth, 315 Conn. 518,
531–32, 108 A.3d 1060 (2015).
‘‘[T]he existence of a formal agreement between the
conspirators need not be proved [however] because
[i]t is only in rare instances that conspiracy may be
established by proof of an express agreement to unite to
accomplish an unlawful purpose. . . . [T]he requisite
agreement or confederation may be inferred from proof
of the separate acts of the individuals accused as cocon-
spirators and from the circumstances surrounding the
commission of these acts. . . . Further, [c]onspiracy
can seldom be proved by direct evidence. It may be
inferred from the activities of the accused persons. . . .
Finally, [b]ecause direct evidence of the accused’s state
of mind is rarely available . . . intent is often inferred
from conduct . . . and from the cumulative effect of
the circumstantial evidence and the rational inferences
drawn therefrom.’’ (Citation omitted; internal quotation
marks omitted.) Id., 532–33.
Construing the evidence in the light most favorable
to sustaining the verdict, we conclude that there was
sufficient evidence to support the defendant’s convic-
tion of the crimes of robbery in the first degree and
conspiracy to commit robbery in the first degree. The
defendant challenges only the larceny element of these
charges, arguing that there was no evidence that he
intended to take drugs from the victim without paying
for them or that he agreed to do so.
The evidence in this case demonstrated that the
defendant made an agreement to buy cocaine from the
victim for the sum of $6150. As the victim approached
the defendant’s vehicle, the victim was carrying crack
cocaine in a brown paper bag, which was tucked in his
waistband. He then leaned into the rear passenger’s
side of the vehicle, with his feet hanging out. A struggle
ensued, and the victim attempted to hold the defen-
dant’s arm in an effort to avoid being shot. Shots, how-
ever, were fired, ultimately resulting in the death of the
victim. Jackson and Angelo both ran to help. Jackson
grabbed a child’s scooter and broke the front passen-
ger’s side window of the vehicle, and he engaged Taylor,
who was sitting in that seat, in a fight.
In the meantime, Angelo ran to the rear passenger’s
side of the vehicle to help the victim, but soon more
shots were fired. Angelo then went to the driver’s side
of the vehicle, where he encountered the defendant,
who was standing outside of the vehicle, holding a
revolver then pointed toward Angelo’s face. Taylor indi-
cated to the defendant that they should leave. The
defendant and Taylor reentered the vehicle and fled the
scene with the crack, with the rear door open, and with
the dying victim only partially inside the vehicle. The
victim later fell out or was pushed out of the vehicle,
and was left to die on the street. When the victim was
transported to the hospital, he had approximately $40
on him.
Later, as Bates and Taylor were cleaning the vehicle,
which was littered with broken glass, blood, and many
different sized pieces of crack cocaine mixed with blood
and glass, Taylor specifically told Bates that ‘‘they were
in New Britain, and they started shooting up the car
trying to rob them.’’ (Emphasis added.) Additionally,
when Warren was driving the defendant to Queens, the
defendant said something about being on the news and
about ‘‘somebody fighting back.’’ (Emphasis added.)
Although Bates’ statement that Taylor told her that
‘‘they were in New Britain, and they started shooting
up the car trying to rob them’’ could be viewed as
ambiguous, it is within the province of the jury to ascer-
tain the reasonable meaning of that statement. See, e.g.,
State v. Leniart, 166 Conn. App. 142, 172 n.21, 140 A.3d
1026 (‘‘The jury was free to interpret the defendant’s
statement that he wanted ‘to do her’ either as an expres-
sion of his intent to have sexual intercourse with [the
victim] or as an expression of his intent to kill her. In
either instance, when considered in light of the defen-
dant’s statement that he ‘need[ed] a body for the altar,’
the jury reasonably could have inferred that his ultimate
plan was to kill [the victim].’’), cert. granted on other
grounds, 323 Conn. 918, A.3d (2016).
Our role on appeal is to ‘‘construe the evidence in
the light most favorable to sustaining the verdict. . . .
[We then] determine whether upon the facts so con-
strued and the inferences reasonably drawn therefrom
the [jury] reasonably could have concluded that the
cumulative force of the evidence established guilt
beyond a reasonable doubt . . . . ’’ (Emphasis added;
internal quotation marks omitted.) State v. Allan, 311
Conn. 1, 25, 83 A.3d 326 (2014).
Here, it certainly would have been reasonable for
the jury to have found that the ‘‘they’’ to whom Bates
referred was the defendant and Taylor, especially
because it was Taylor who had been speaking to Bates.
Furthermore, it would have been reasonable for the
jury to have found that when Warren heard the defen-
dant say that ‘‘somebody’’ fought back, the defendant
was referring to the victim in this case having fought
back an attack. There also was evidence that the victim
had only $40 on him when he was transported to the
hospital, despite the defendant stating that he had given
the victim $6000. Thus, on the basis of this evidence,
the jury reasonably could have concluded that the
defendant and Taylor coaxed the victim to produce 150
grams of crack cocaine by telling him that they would
pay him $6150, and, once he produced the crack, they
forcibly took it from him without ever paying him the
agreed upon $6150. The victim resisted being robbed
and fought back. The defendant and Taylor then killed
the victim, dumped his body in the street, and simply
drove away.
Our case law is clear: ‘‘[I]t does not diminish the
probative force of the evidence that it consists, in whole
or in part, of evidence that is circumstantial rather than
direct. . . . It is not one fact . . . but the cumulative
impact of a multitude of facts which establishes guilt
in a case involving substantial circumstantial evidence.
. . . In evaluating evidence, the [jury] is not required
to accept as dispositive those inferences that are consis-
tent with the defendant’s innocence. . . . The [jury]
may draw whatever inferences from the evidence or
facts established by the evidence [that] it deems to
be reasonable and logical.’’ (Internal quotation marks
omitted.) State v. Leniart, supra, 166 Conn. App. 170.
Viewing the evidence in the light most favorable to
sustaining the jury’s verdict, as we must, we conclude
that the jury reasonably could have found, on the basis
of the evidence presented and the reasonable inferences
drawn therefrom, that the defendant and Taylor had
robbed the victim, who fought back, and that they had
planned and intended to do so. Accordingly, we find
no merit to the defendant’s claim.
II
The defendant next claims that the court improperly
instructed the jury on the elements of conspiracy to
commit robbery in the first degree. Specifically, he
argues in his principle brief that because the court failed
to instruct the jury that the coconspirators had to agree
that a firearm would be used, his conviction for conspir-
acy to commit robbery in the first degree must be
vacated. In response, the state agrees that this convic-
tion must be vacated, but for a different reason than
the defendant offers. The state argues that because the
conspiracy to commit robbery and the conspiracy to
commit murder conviction arise from the same
agreement, a double jeopardy violation exists. In his
reply brief, the defendant agrees with the state. We,
too, agree that a double jeopardy violation exists and
that the conspiracy to commit robbery conviction and
sentence must be vacated.
In this case, the defendant was convicted of both
conspiracy to commit murder and conspiracy to commit
robbery in the first degree, both crimes that arose from
a single agreement with multiple objectives. ‘‘[U]nder
Connecticut law; see, e.g., State v. Ortiz, 252 Conn. 533,
559, 747 A.2d 487 (2000); it is a double jeopardy violation
to impose cumulative punishments for conspiracy
offenses if they arise from a single agreement with
multiple criminal objectives. Furthermore, the state rec-
ognizes that, pursuant to the United States Supreme
Court’s decision in Rutledge v. United States, 517 U.S.
292, 302, 116 S. Ct. 1241, 134 L. Ed. 2d 419 (1996), a
cumulative conviction can be a form of punishment in
and of itself because it may lead a defendant to suffer
adverse collateral consequences.’’ (Footnote omitted.)
State v. Wright, 320 Conn. 781, 828–29, 135 A.3d 1(2016).
Pursuant to State v. Wright, supra, 320 Conn. 829,
which extended the holding in State v. Polanco, 308
Conn. 242, 61 A.3d 1084 (2013) (vacatur is appropriate
remedy for cumulative conviction in cases involving
greater and lesser included offenses), the appropriate
remedy for such a double jeopardy violation is vacatur.
Accordingly, the defendant’s conviction and accompa-
nying sentence on the charge of conspiracy to commit
robbery in the first degree must be vacated. See State
v. Mendez, 154 Conn. App. 271, 281, 105 A.3d 917 (2014);
State v. Wright, 144 Conn. App. 731, 749, 73 A.3d 828(2013), aff’d, 320 Conn. 781, 135 A.3d 1 (2016).
III
The defendant’s final claim is that the court commit-
ted plain error by failing to instruct the jury on accom-
plice or informant testimony with respect to Bates.
Specifically, he claims that because Bates had been
charged with tampering with evidence for helping to
clean the car after the murder of the victim, ‘‘she had
the same motive to curry favor with the prosecution
as an accomplice to the murder.’’ As such, the court
was required to tell the jury to scrutinize her testimony
carefully. Alternatively, the defendant also requests that
we review the claim pursuant to our supervisory
authority.
The state argues that the court had no duty to give
an instruction on this testimony, sua sponte, and, fur-
thermore, that the claim is not reviewable for plain
error because the defendant waived any claim of error.
The state also argues that it would be inappropriate for
us to review this claim under our supervisory authority.
In his reply brief, the defendant argues that ‘‘[o]ur
Supreme Court has not, as of the date of this writing,
held that plain error review is unavailable even if the
court determines that there has been a waiver of a claim
pursuant to State v. Kitchens, 299 Conn. 447, 10 A.3d
942 (2011). See State v. McClain, 319 Conn. 902, 122
A.3d 637 (2015) ([granting certification to review issue
of whether ’Appellate Court properly determine[d] that
an implied waiver of a claim of instructional error that
satisfies [Kitchens] . . . also forecloses plain error
review’]).’’ He also argues that we would be justified
in exercising our supervisory authority in this case. We
conclude that the defendant waived this claim, and we
also decline to exercise our supervisory authority.
In this case, the defendant concedes that his claim
of instructional error is not preserved ‘‘due to his failure
to submit a request to charge [on this specific instruc-
tion] and to object to the court’s charge.’’ He also con-
cedes that ‘‘Golding review is not available because the
issue is not one of constitutional magnitude.’’ See State
v. Golding, 213 Conn. 233, 239–40,567 A.2d 823 (1989).
Accordingly, he requests that we consider his claim
pursuant to the plain error doctrine or that we exercise
our supervisory authority. We conclude that the defen-
dant’s claim is not reviewable for plain error, and we
decline his invitation to exercise our supervisory
authority.
This court repeatedly has held that an implied waiver
of a claim of instructional error that satisfies State v.
Kitchens, supra, 299 Conn. 482–83, also forecloses plain
error review. See, e.g., State v. Bialowas, 160 Conn.
App. 417, 429, 125 A.3d 642 (2015); State v. Jackson,
159 Conn. App. 670, 677–79, 123 A.3d 1244 (2015); State
v. Fuller, 158 Conn. App. 378, 390–91, 119 A.3d 589(2015); State v. McClain, 154 Conn. App. 281, 291–92,
105 A.3d 924, 931 (2014), cert. granted, 319 Conn. 902,
122 A.3d 637 (2015); State v. Reddick, 153 Conn. App.
69, 82, 100 A.3d 439, appeal dismissed, 314 Conn. 934,
102 A.3d 85, cert. denied, 315 Conn. 904, 104 A.3d 757(2014). These decisions, at least in part, relied upon
our Supreme Court’s observation in Kitchens that ‘‘a
valid waiver precludes a finding that a jury instruction
constitutes plain error because a valid waiver means
that there is no error to correct.’’ State v. Kitchens,
supra, 299 Conn. 474 n.18. Because the defendant
waived his right to raise the present claim of instruc-
tional error, he is foreclosed from seeking consideration
under the plain error doctrine.
As for the defendant’s request that we exercise our
supervisory authority to review his claim of instruc-
tional error, we decline to do so. ‘‘[B]ypass doctrines
permitting the review of unpreserved claims such as
[State v. Golding, supra, 213 Conn. 233] and plain error,
are generally adequate to protect the rights of the defen-
dant and the integrity of the judicial system . . . .
[T]he supervisory authority of this state’s appellate
courts is not intended to serve as a bypass to the bypass,
permitting the review of unpreserved claims of case
specific error—constitutional or not—that are not oth-
erwise amenable to relief under Golding or the plain
error doctrine. Rather, the integrity of the judicial sys-
tem serves as a unifying principle behind the seemingly
disparate use of our supervisory powers. . . . Thus, a
defendant seeking review of an unpreserved claim
under our supervisory authority must demonstrate that
his claim is one that, as a matter of policy, is relevant
to the perceived fairness of the judicial system as a
whole, most typically in that it lends itself to the adop-
tion of a procedural rule that will guide the lower courts
in the administration of justice in all aspects of the
criminal process.’’ (Internal quotation marks omitted.)
State v. Leach, 165 Conn. App. 28, 35–36, 138 A.3d
445 (2016).
In the present case, although the defendant asserts
that we should adopt a rule that requires the trial court
to give a special credibility instruction in cases where
a state’s witness has been promised a benefit in
exchange for his or her testimony, our Supreme Court
already has rejected such a request.
In State v. Diaz, 302 Conn. 93, 113–14, 25 A.2d 594(2011). our Supreme Court took the ‘‘opportunity to
reaffirm the well established common-law rule that it is
within the discretion of a trial court to give a cautionary
instruction to the jury whenever the court reasonably
believes that a witness’ testimony may be particularly
unreliable because the witness has a special interest in
testifying for the state and the witness’ motivations may
not be adequately exposed through cross-examination
or argument by counsel. In determining whether to give
such an instruction, the trial court may consider the
circumstances under which the witness came forward;
the seriousness of the charges with which the witness
has been charged or convicted; the extent to which the
state is in a position to provide a benefit to the witness
and the potential magnitude of any such benefit; the
extent to which the witness’ testimony is corroborated
by other evidence; the importance of the witness’ testi-
mony to the state’s case; and any other relevant factor.
. . . Because the trial courts already have the discre-
tion to give a special credibility instruction under
existing case law, there is no need for this court to
create a new supervisory rule requiring a special credi-
bility instruction in cases where there is evidence that
the witness is particularly unreliable.’’ (Citation omit-
ted.) Pursuant to this precedent, we decline to consider
the defendant’s request.
The judgment is reversed only with respect to the
conviction of conspiracy to commit robbery in the first
degree and the case is remanded with direction to
vacate that conviction and its accompanying sentence;
the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
The defendant also was convicted of felony murder in violation of General
Statutes § 53a-54c. The court, however, vacated that conviction on January
9, 2015, pursuant to State v. Miranda, 317 Conn. 741, 120 A.3d 490 (2015)
(holding that vacatur is appropriate remedy for cumulative homicide convic-
tions for murder and felony murder arising from killing of single victim).
2
A bullet recovered from an area near where the vehicle was positioned
and the two bullets recovered from the victim’s body were fired from the
same revolver. The revolver, however, was not recovered.
3
At trial, the defendant testified on his own behalf. He claimed that this
incident was a drug deal gone wrong, rather than a robbery, and that he
was with an individual he knew only as ‘‘Cash’’ or ‘‘Dove,’’ rather than
with Taylor.
The defendant testified that, originally, he had made an agreement with
the victim to purchase $6150 worth of drugs. When the defense counsel
asked him if he gave the victim the money in exchange for the drugs, the
defendant responded: ‘‘Yeah, not the $6150 because when I got there . . .
it was supposed to be coke, 100 grams coke, 50 grams crack. . . . But he
told me that he cooked all the coke up and made all crack. . . . So . . .
[the victim] took $150 off . . . so, I gave him $6000 . . . .’’ The defendant
explained that $4000 was his money, and Cash supplied the remaining $2000
for the purchase.
The defendant then testified that despite having paid the victim $6000 for
150 grams of crack, the victim only gave them 100 grams. When he and
Cash discovered that they had been shorted, they confronted the victim,
things got heated between Cash and the victim, and a struggle ensued. Cash
had a gun and during the struggle, the gun went off multiple times. He
testified that, in the midst of this struggle, he, Cash and the victim all got
shot. He further testified that, as this was occurring, Jackson ran toward
the vehicle and shot out the front passenger side window with a gun.
The jury was not required to credit this version of events, and, as we
explain later in this opinion, the evidence the jury reasonably could have
credited established the defendant’s guilt beyond a reasonable doubt.
4
On appeal, the defendant does not challenge the judgment of conviction
on the murder count or on the criminal possession of a firearm count.