State v. Walker , 178 Conn. App. 345 ( 2017 )

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STATE OF CONNECTICUT v. JOSEPH WALKER
(AC 38916)
Alvord, Sheldon and Mullins, Js.*
Syllabus
Convicted, after a jury trial, of several crimes, including robbery and murder,
in connection with the shooting death of the victim during a drug transac-
tion, the defendant appealed, claiming, inter alia, that the trial court
committed plain error by failing, sua sponte, to instruct the jury on
accomplice testimony with respect to the testimony of his coconspira-
tor’s girlfriend, B. The defendant claimed that B, who had been charged
with tampering with evidence, had been promised lenient treatment by
the state in exchange for her testimony, and that she was an accessory
after the fact because she assisted in covering up the crimes at issue
by cleaning blood from the vehicle in which the shooting occurred
and by disposing of evidence of the murder. This court reversed the
defendant’s conviction in part, holding, inter alia, that he had waived
his right to raise his claim of instructional error and, thus, was foreclosed
from seeking consideration of it under the plain error doctrine. There-
after, the defendant, on the granting of certification, appealed to our
Supreme Court, which granted the petition and remanded the case to
this court for consideration of his claim of plain error. On remand, held
that the trial court did not commit plain error by failing to deliver,
sua sponte, an accomplice instruction concerning B’s testimony, as the
evidence did not support the conclusion that B aided the defendant in
the commission of any of the crimes with which he was charged so as
to warrant an accomplice instruction: B was not present when the
defendant murdered the victim, there was no testimony or evidence
showing that B was involved in the defendant’s plan to obtain drugs
from the victim, that B had a shared intention with, or intentionally
aided, the defendant in any conduct that constituted the crimes commit-
ted against the victim, or that B was even aware of the robbery or murder
until after those crimes were completed, and the evidence showed that
after the commission of those crimes, B acted under duress when she
cleaned the vehicle because of threats and orders from the defendant’s
coconspirator; accordingly, the court’s failure to give, sua sponte, an
accomplice instruction concerning B’s testimony was not an error so
plain on its face and obvious in the sense of being not debatable that
it undermined the integrity and fairness of the judicial proceeding so
as to necessitate a reversal.
Argued September 11—officially released November 28, 2017
Procedural History
Substitute information charging the defendant with
the crimes of murder, conspiracy to commit murder,
felony murder, robbery in the first degree, conspiracy
to commit robbery in the first degree and criminal pos-
session of a firearm, brought to the Superior Court in
the judicial district of Waterbury and tried to the jury
before Cremins, J.; verdict of guilty; thereafter, the
court vacated the verdict as to the charge of felony
murder; judgment of guilty of murder, conspiracy to
commit murder, robbery in the first degree, conspiracy
to commit robbery in the first degree and criminal pos-
session of a firearm, from which the defendant
appealed; subsequently, this court reversed the judg-
ment in part and remanded the case for further proceed-
ings; thereafter, the defendant filed a petition for
certification to appeal with our Supreme Court, which
granted the petition and remanded the case to this court
for further proceedings. Affirmed.
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. This case returns to us on remand from
our Supreme Court; see State v. Walker, 325 Conn. 920,
163 A.3d 619 (2017); with direction to consider the claim
of plain error raised by the defendant, Joseph Walker.
In our previous opinion, we reversed the judgment only
with respect to the defendant’s conviction of conspiracy
to commit robbery in the first degree.1 State v. Walker,
169 Conn. App. 794, 812, 153 A.3d 38 (2016), remanded
for consideration, 325 Conn. 920, 163 A.3d 619 (2017).
We affirmed the judgment in all other respects. Id. As
to the defendant’s claim that the trial court committed
plain error by failing to instruct the jury, sua sponte,
on accomplice testimony, we concluded that ‘‘[b]ecause
the defendant waived his right to raise the present claim
of instructional error, he is foreclosed from seeking
consideration under the plain error doctrine.’’2 Id.,
810–11.
Upon granting the defendant’s petition for certifica-
tion to appeal from our previous decision, the Supreme
Court has now directed this court to consider the defen-
dant’s claim of plain error in light of State v. McClain,
324 Conn. 802, 155 A.3d 209 (2017), which held that an
implied waiver of a claim of instructional error pursuant
to State v. Kitchens, 299 Conn. 447, 482–83, 10 A.3d 942
(2011), does not preclude an evaluation of that claim
under the plain error doctrine. State v. McClain, supra,
815. After consideration of the defendant’s claim, we
conclude that plain error does not exist, and, accord-
ingly, we affirm the judgment.
We set forth the relevant factual and procedural his-
tory. ‘‘On May 10, 2012, the defendant arranged to pur-
chase $6150 worth of cocaine from the victim, David
Caban.’’ State v. Walker, supra, 169 Conn. App. 796. On
May 12, 2012, ‘‘the defendant, accompanied by his close
friend, Solomon Taylor, drove in a white Mitsubishi
Gallant (vehicle), which was owned by Taylor’s girl-
friend, Alexia Bates, to the home of the victim to pur-
chase . . . cocaine.’’ Id., 797. During the transaction,
a struggle ensued between the victim and the occupants
of the vehicle. Id. ‘‘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 vehicle.’’ Id.
More shots were fired and ‘‘the victim [was] hit twice,
once in the arm and once in the head.’’ Id. The defendant
and Taylor ‘‘drove away with the rear passenger’s side
door open and the victim only partially inside of the
vehicle.’’ Id., 798. Shortly thereafter, the victim’s body
was found in the street ‘‘[w]ithin approximately one
quarter of a mile’’ from the scene of the shooting. Id.
‘‘The victim was transported to Saint Mary’s Hospital,
where he died from his wounds.’’ Id.
‘‘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.’’
Id., 798–99.
‘‘Taylor then ordered Bates to go to her vehicle to
retrieve the revolver.’’ Id., 799. Taylor threatened Bates,
telling her that she ‘‘better do whatever the F he told
[her] to do or he was going to F [her] up.’’ After Taylor’s
threat, Bates went to the vehicle. State v. Walker, supra,
169 Conn. App. 799. In the vehicle, Bates ‘‘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 dash-
board where the airbag is contained, 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.’’ Id. Bates explained that
she was afraid of Taylor, because he had a gun and he
could have killed her if she called the 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.’’ Id., 799–800.
‘‘On September 12, 2012, the police arrested the
defendant in New York. After a jury trial, the defendant
was found guilty of all charges against him. . . . The
court sentenced the defendant . . . [to] a total effec-
tive sentence of sixty years incarceration, twenty-five
years of which were mandatory.’’ Id., 800–801. Addi-
tional facts will be set forth as necessary.
The sole question presented on remand is whether
the trial court committed plain error by failing to
instruct the jury, sua sponte, on accomplice testimony
with regard to Bates. The defendant claims that Bates’
assistance with the coverup of the crimes, by helping
to clean the vehicle, provided a basis for an accomplice
instruction. In particular, he argues that Bates’ partici-
pation in the coverup resulted in her being charged
with tampering with evidence, and, therefore, she ‘‘had
the same motive to curry favor with the prosecution
as an accomplice to the murder.’’ Thus, according to
the defendant, the court had a duty to instruct the jury
to scrutinize her testimony carefully. We disagree.
We begin by setting forth the legal principles that
govern our consideration of this claim. ‘‘[T]he plain
error doctrine . . . is not . . . a rule of reviewability.
It is a rule of reversibility. That is, it is a doctrine that
this court invokes in order to rectify a trial court ruling
that, although either not properly preserved or never
raised at all in the trial court, nonetheless requires rever-
sal of the trial court’s judgment . . . for reasons of
policy. . . . In addition, the 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. . . . Plain error is a doctrine
that should be invoked sparingly. . . . Implicit in this
very demanding standard is the notion . . . that invo-
cation of the plain error doctrine is reserved for occa-
sions requiring the reversal of the judgment under
review. . . .
‘‘An appellate 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 deter-
mination clearly requires a review of the plain error
claim presented 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. . . . [I]n
addition to examining 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 appro-
priate. A party cannot prevail under plain error unless
it has demonstrated that the failure to grant relief will
result in manifest injustice.’’ (Internal quotation marks
omitted.) State v. Jamison, 320 Conn. 589, 596–97, 134
A.3d 560 (2016).
‘‘Generally, a defendant is not entitled to an instruc-
tion singling out any of the state’s witnesses and high-
lighting his or her possible motive for testifying falsely.
. . . An exception to this rule, however, involves the
credibility of accomplice witnesses. . . . [W]here it is
warranted by the evidence, it is the court’s duty to
caution the jury to scrutinize carefully the testimony if
the jury finds that the witness intentionally assisted in
the commission, or if he assisted or aided or abetted
in the commission, of the offense with which the defen-
dant is charged. . . . The court’s duty to so charge
is implicated only where the trial court has before it
sufficient evidence to make a determination that there
is evidence that the witness was in fact an accomplice.’’
(Citations omitted; emphasis in original; internal quota-
tion marks omitted.) State v. Underwood, 142 Conn.
App. 666, 674–75, 64 A.3d 1274, cert. denied, 310 Conn.
927, 78 A.3d 146 (2013).
‘‘An accomplice is [a] person, acting with the mental
state required for commission of an offense, who solic-
its, requests, commands, importunes or intentionally
aids another person to engage in conduct which consti-
tutes an offense . . . . General Statutes § 53a-8 (a).
[I]n order for one to be an accomplice there must be
mutuality of intent and community of unlawful purpose
with the defendant.’’ (Internal quotation marks omit-
ted.) State v. Underwood, supra, 142 Conn. App. 675.
In this case, the defendant claims that although
‘‘Bates may not have shared an intent as to the murder
itself, she had a shared intent and community of pur-
pose with respect to its coverup.’’ Essentially, the defen-
dant argues that Bates was an accessory after the fact,
and, therefore, the court committed plain error by fail-
ing to instruct the jury, sua sponte, on accomplice testi-
mony with respect to her testimony.3 In support of this
contention, the defendant directs this court to Bates’
testimony that when ‘‘she lent her [vehicle] to her boy-
friend . . . Taylor, prior to the drug deal that led to
the shooting, she knew Taylor was a drug dealer and
had seen him with a gun, and she helped clean the
[vehicle] of blood and dispose of the evidence of the
murder afterward.’’ The defendant also posits that Bates
was ‘‘charged with offenses based on the same set of
facts that led to the charges against Taylor and [the
defendant], and . . . the state had promised her lenient
treatment in her pending case in exchange for her testi-
mony.’’4 According to the defendant, this evidence was
sufficient to implicate the court’s duty to provide an
accomplice testimony instruction with regard to Bates.
We disagree. These circumstances do not support a
determination that Bates was an accomplice such that
the court was required to give, sua sponte, an accom-
plice instruction.
First, Bates was not with the defendant when he
murdered the victim. Indeed, there was no testimony
from the defendant or any other witness that attributed
any involvement by Bates in the defendant’s plan to
obtain drugs from the victim. There also was no evi-
dence that Bates had any shared intention with the
defendant to commit any crimes against the victim once
the defendant encountered the victim. Second, there
was no evidence showing that Bates intentionally aided
the defendant in any conduct that constituted the
crimes against the victim, i.e., robbery or murder. In
fact, there was no evidence that Bates even was aware
of the robbery or the murder until the defendant and
his coconspirator returned to her residence after com-
pleting those crimes.
The evidence shows that once the defendant and
Taylor returned to Bates’ home, although Bates helped
to clean the vehicle, she did not do so voluntarily. The
evidence shows that Taylor threatened her, by telling
her he would ‘‘F her up if she did not do whatever the
F he wanted her to do’’ and then he ordered her to clean
the vehicle. As a result, Bates testified, she cleaned the
bloody vehicle because she was afraid of Taylor. She
explained that she feared him because he had a gun
and could have killed her if she called the police. Thus,
the evidence did not show Bates to be a willing partici-
pant but, rather, it showed that Taylor threatened Bates
in order to make sure that she would do what he told
her to do.
Given that Bates was not present at the crime scene,
was not a participant in the crimes with which the
defendant was charged, was not aware of the commis-
sion of the crimes prior to or during their commission,
only helped to clean the bloody vehicle under duress,
and only after the crimes already had been completed,
she clearly did not have the mutuality of intent or com-
munity of unlawful purpose to commit the robbery and
murder the victim. Accordingly, Bates was not charged
with the same crimes as the defendant or as a coconspir-
ator. Instead, Bates was charged with tampering with
evidence. See State v. Underwood, supra, 142 Conn.
App. 677–78 (evidence did not support conclusion that
witness was accomplice despite witness having been
charged with tampering with evidence for disposing of
gun used by defendant because witness did not have
mutual intent or community of unlawful purpose with
defendant to commit crimes against victim). Put simply,
the evidence did not support the conclusion that Bates
aided the defendant in the commission of any of the
crimes with which he was charged; therefore, an accom-
plice instruction was not warranted here. Cf. State v.
Bree, 136 Conn. App. 1, 19–20, 43 A.3d 793 (accomplice
instruction warranted where witness was named as
coconspirator and there was ‘‘substantial evidence
tending to show that he aided or abetted’’ commission
of charged crime), cert. denied, 305 Conn. 926, 47 A.3d
885 (2012).
Further, we find our Supreme Court’s decision in
State v. Boles, 223 Conn. 535, 613 A.2d 770 (1992), partic-
ularly instructive. In Boles, the defendant claimed that
the court committed plain error by not delivering, sua
sponte, an accomplice instruction to the jury regarding
a particular witness. In that case, the witness was pre-
sent when the defendant killed the victim, and he
assisted the defendant in disposing of the victim’s body.
Id., 551. The witness testified that he acted under duress
because the defendant threatened to kill him if he did
not assist with moving the victim’s body. Id., 539. Our
Supreme Court ruled that the trial court reasonably
could have found that the evidence ‘‘did not indicate
mutuality of intent and community of unlawful purpose
or that the evidence thereof was so insufficient, incon-
clusive or ambivalent that an accomplice instruction
was not appropriate.’’ Id., 552. The court further con-
cluded that ‘‘the omission of an accomplice instruction
in the court’s charge to the jury, if misguided, was
not so obvious or egregious that it merits plain error
review.’’ Id.
In light of Boles, the facts of the present case provide
an even stronger basis for this court to conclude that
no error arose from the trial court’s failure to deliver,
sua sponte, an accomplice instruction with respect to
Bates’ testimony. First, unlike the witness in Boles,
Bates was not present at the crime scene during the
commission of the crimes. Therefore, it is much clearer
in this case that Bates was not an active participant in
the robbery and murder of the victim. Second, there
was evidence that Bates, like the witness in Boles, acted
under duress in helping to clean the vehicle after the
commission of the crimes as a result of Taylor’s threats
and orders that she do so. Consequently, it is not at
all clear that Bates willingly assisted in a coverup by
cleaning the vehicle.
Thus, here, as in Boles, the evidence adduced at trial
did not so clearly support the conclusion that Bates
was an accomplice that it was plain error for the trial
court not to deliver, sua sponte, a special credibility
instruction. See id., 552. On the contrary, on the basis
of the evidence before it, the trial court’s failure to give
an accomplice instruction concerning Bates’ testimony
would not have been improper even if the defendant had
requested such an instruction. Accordingly, the court’s
failure to give, sua sponte, an accomplice instruction
was not ‘‘so clearly and obviously an error that it under-
mines the integrity and fairness of the judicial proceed-
ing necessitating reversal.’’ State v. McClain, supra, 324
Conn. 820–21.
Under these circumstances, we conclude that the
omission of an accomplice instruction was not an error,
much less an error so plain on its face and obvious in
the sense of being not debatable. Consequently, the
defendant’s claim fails to meet the high standard of the
plain error doctrine.
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
In addition to the conspiracy charge, the defendant also was convicted 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) and
criminal possession of a firearm in violation of General Statutes § 53a-217
(a) (1).
2
We declined the defendant’s request that we exercise our supervisory
authority over the administration of justice to review his claim of instruc-
tional error. See State v. Walker, supra, 169 Conn. App. 811–12 (‘‘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’’).
3
The defendant fails to cite, and the court is unable to find, any Connecti-
cut authority to support the proposition that an accomplice instruction is
required for an accessory after the fact.
4
Although there was an agreement between the prosecution and Bates
that provided for leniency with regard to the pending charge of tampering
with evidence, there is no requirement that the trial court issue a special
credibility instruction for every witness who is in a position to receive a
benefit for their testimony. See State v. Diaz, 302 Conn. 93, 100 n.5, 25 A.3d
594 (2011) (declining request to require trial courts to give special credibility
instruction whenever witness in criminal case is in position to receive benefit
from state in exchange for testifying).