State v. Johnson

178 Conn.App. 490

179 A.3d 780

STATE of Connecticut

v.Anthony JOHNSON

AC 37859

Appellate Court of Connecticut.

Argued September 8, 2017

Officially released December 12, 2017

Emily Wagner, assistant public defender, for the appellant (defendant).

Jennifer F. Miller, deputy assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Erika L. Brookman, assistant state's attorney, for the appellee (state).

Keller, Prescott and Kahn, Js.^*

KAHN, J.

The defendant, Anthony Johnson, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the second degree in violation of General Statutes § 53a–135(a)(1)(B), and conspiracy to commit robbery in the second degree in violation of General Statutes §§ 53a–48 and 53a–135.¹ On appeal, the defendant claims that the jury found him guilty on the basis of uncorroborated accomplice testimony, which, as a matter of law, is insufficient evidence to sustain a conviction. In making this argument, the defendant acknowledges that Supreme Court precedent must be overturned for him to be able to prevail on this claim. The defendant also claims that the trial court improperly failed to caution the jury regarding the dangers of uncorroborated accomplice testimony and improperly admitted a witness' prior inconsistent statement. We affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant to this appeal. On May 29, 2013, the defendant and Sedwick Daniels robbed a CVS store in Glastonbury. The store manager, Thang Trang, was in his office counting cash and monitoring the store's surveillance cameras, while another CVS employee, Roberto Orellana, was at the cash register. No other employees were working. The defendant and Daniels arrived between 6 p.m. and 9 p.m. When Trang saw the two men enter the store on the surveillance footage, he left his office to offer them assistance. When the defendant and Daniels declined, Trang returned to his office and continued to count the store's cash and to monitor the cameras. The defendant and Daniels began placing merchandise in laundry bags that they had brought with them. Daniels went behind the counter and began to place cartons of cigarettes into his bag. Meanwhile, the defendant approached Orellana and demanded that he open the register. Trang ran from his office to intervene. The defendant put his hand in his pocket as if he had a gun and threatened Trang. After taking money from the register, the defendant and Daniels left the store. As they drove away, Trang went outside and wrote down the car's license plate number. Orellana called 911, and Glastonbury police arrived to take Trang and Orellana's verbal and written statements, and the license plate number.

The responding officer "radioed [the license plate number] into dispatch who put it out over the hotline." The car was traced to an incident from earlier that same day. The car had run out of gas on the highway, and State Trooper Erin Lowney responded. Glastonbury police later showed CVS' surveillance footage of the robbery to Lowney. Lowney could not make a positive identification, but told the Glastonbury police that although "one of the body types didn't look similar to anyone in the car ... one of the body types" looked similar to Daniels. Daniels and his cousin, Kenneth Millege, were the occupants of the car Lowney had encountered.

On May 30, 2013, the day following the CVS robbery, Farmington police stopped the same car in response to a shoplifting incident at Westfarms Mall. Glastonbury police arrived at the scene and interviewed two of the car's occupants, Millege and Kirk McDowell. McDowell told the police that the previous day he had seen Millege give the car to Daniels, the defendant, and a third individual. Subsequently, Glastonbury police arrested Daniels. Upon arrest, Daniels told the police that the defendant had been the other participant in the CVS robbery.

The police subsequently arrested the defendant and charged him for his involvement in the CVS robbery. At trial, Daniels, who had already pleaded guilty to charges stemming from this incident, testified about the robbery, again identifying the defendant as the other participant. The jury found the defendant guilty. On February 13, 2015, the defendant was sentenced to a total effective sentence of eight years of incarceration followed by two years of special parole. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant first claims that he was convicted on the basis of uncorroborated accomplice testimony which, as a matter of law, is insufficient evidence to sustain the conviction.² The state argues that this court is bound by the Supreme Court's decision in State v. Stebbins , 29 Conn. 463 (1861), and its progeny, which do not require corroboration for accomplice testimony.³ We agree with the state.

Our Supreme Court has long held that accomplice testimony does not require corroboration to sustain a conviction. See State v. Stebbins , supra, 29 Conn. at 473 (accomplice testimony "if standing alone, is not to be rejected, and whether corroborated or not ... may be sufficient to satisfy the minds of the jury"); see also State v. La Fountain , 140 Conn. 613, 620–21, 103 A.2d 138 (1954) ("within power of jury ... to convict accused upon the uncorroborated testimony of his accomplices"); State v. Williamson , 42 Conn. 261, 263 (1875) ("testimony of an accomplice, though altogether uncorroborated, [is] evidence to go to a jury, and ... conviction on such testimony [is] legal"); State v. Wolcott , 21 Conn. 272, 281–82 (1851) (uncorroborated accomplice testimony sufficient for jury to convict accused). "As an intermediate court of appeal, we are unable to overrule, reevaluate, or reexamine controlling precedent of our Supreme Court.... As our Supreme Court has stated: [O]nce this court has finally determined an issue, for a lower court to reanalyze and revisit that issue is an improper and fruitless endeavor." (Citation omitted; internal quotation marks omitted.) State v. LaFleur , 156 Conn. App. 289, 302–303, 113 A.3d 472 (2015). Thus, we decline to overturn Stebbins and its progeny.

II

The defendant next claims that the court improperly failed to give a specific cautionary instruction to the jury regarding the dangers of relying on uncorroborated accomplice testimony. The parties agree that this claim of instructional error is unpreserved and may be subject to the implied waiver announced in State v. Kitchens , 299 Conn. 447, 482–83, 10 A.3d 942 (2011). The defendant nevertheless seeks to prevail on this claim pursuant to the plain error doctrine, as set forth by Practice Book § 60–5. See State v. McClain , 324 Conn. 782, 808, 155 A.3d 209 (2017) (" Kitchens waiver does not preclude appellate relief under the plain error doctrine"). The state argues that the court did not commit plain error.⁴ We agree with the state.

When a party does not preserve a claim, the rules of practice allow this court to review the trial court's decision for plain error. Practice Book § 60–5. "An 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 determination 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.... [T]he plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.... [I]n addition to 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 appropriate.... [Our Supreme Court] described the two-pronged nature of the plain error doctrine: [An appellant] cannot prevail under [the plain error doctrine] ... unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice." (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. McClain , supra, 324 Conn. at 812, 155 A.3d 209. The defendant bears the burden of meeting this two-prong test. See State v. Moore , 293 Conn. 781, 824, 981 A.2d 1030 (2009), cert. denied, 560 U.S. 954, 130 S.Ct. 3386, 177 L.Ed. 2d 306 (2010).

The following additional facts and procedural history are necessary to our resolution of this issue. At trial, Daniels testified that he and the defendant had participated in the May 29, 2013 robbery together.

Daniels explained that he had returned to Hartford from shoplifting in New London and was approached by the defendant about robbing a CVS store that night. Daniels described how he and the defendant stole merchandise from the store, and he identified himself and the defendant in a series of CVS' surveillance photographs. On both direct examination and cross-examination, Daniels answered questions about his prior convictions and about the agreement he had made with the state to receive a reduced sentence in exchange for his testimony. During closing arguments, however, only the state drew attention to the issue of whether Daniels' testimony was corroborated.⁵

The court instructed the jury that it should "decide which testimony to believe and which testimony not to believe" and that it could "believe all, none or any part of any witness' testimony." The court listed a number of factors for the jury to consider, including whether "the witness [had] an interest in the outcome of this case or any...