State v. Joseph

955 A.2d 124

110 Conn.App. 454

STATE of Connecticut v. Kenyon L. JOSEPH.

No. 28999.

Appellate Court of Connecticut.

Argued May 19, 2008.

Decided September 23, 2008.

Annacarina Jacob, senior assistant public defender, for the appellant (defendant).

Robert J. Scheinblum, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Gary W. Nicholson, senior assistant state's attorney, for the appellee (state).

GRUENDEL, BEACH and PELLEGRINO, Js.

PELLEGRINO, J.

The defendant, Kenyon L. Joseph, appeals from the judgment of conviction, rendered after the jury found him guilty of felony murder, murder as an accessory, conspiracy to commit robbery and two counts of assault in the first degree as an accessory. On appeal, the defendant claims that the trial court improperly (1) failed to instruct the jury adequately in connection with the testimony of an accomplice, (2) failed to instruct the jury properly in connection with the testimony of a jailhouse informant and (3) admitted into evidence testimony of uncharged misconduct. We affirm the judgment of the trial court.

The following facts are relevant to our disposition of the defendant's appeal. On November 11, 2001, in the early morning hours, a shooting occurred at 24 Camp Street in Meriden that resulted in the death of Derling Mercado. During the investigation of the Meriden shooting, the police interviewed the defendant twice, each time recording the interview. The two recordings were played at trial.¹ The defendant told the police that he had stolen a maroon Buick and had driven his friends, Thelburt Hampton, Eddie Schmidt, Kashon Pearson and a man named Cochese to Hartford to buy marijuana. In Hartford, Schmidt and Pearson exited the vehicle to approach some men on the street. The defendant heard shooting and saw Schmidt, with a gun, chasing one of the men. He then saw feathers coming out of the shoulder blade area of one of the men's jackets.

The defendant then told the police that after the Hartford incident, he drove the same group of friends to Meriden to continue their search to buy marijuana. In Meriden, the defendant came upon Mercado, who was standing outside his house at 24 Camp Street with his friends Carlos Figueroa, Luis Gonzalez, Ezequiel Rivera Alexander Rivera, Victor Rivera and Isaias Barreto. The defendant stopped the car to see if Mercado's group had any marijuana. When Mercado's group said "no," Schmidt exited the car with a gun, stole a necklace from Gonzalez and killed Mercado. The defendant stated that Pearson also had a nine millimeter gun in his possession. After the shooting in Meriden, the defendant drove his friends back to New Britain, where he abandoned the stolen Buick.

Other witnesses testified that after Schmidt had exited the car to steal Gonzalez' necklace, the defendant exited the car with a rifle. Pearson exited next with a semiautomatic nine millimeter handgun, and Cochese exited the car unarmed. The defendant fired the rifle in the direction of Figueroa, and the bullet ricocheted off the side of a car and into his body. The defendant's gunshot started a chain reaction, and, in the time following the defendant's first gunshot, Schmidt shot and killed Mercado.

The defendant thereafter was arrested and charged with (1) felony murder in violation of General Statutes § 53a-54c, (2) murder as an accessory in violation of General Statutes §§ 53a-8 and 53a-54a, (3) conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134(a)(2), and (4) two counts of assault in the first degree as an accessory in violation of General Statutes §§ 53a-59(a)(5) and 53a-8. The defendant elected a jury trial and was found guilty of all charges. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant's first claim is that the court improperly failed to give an adequate instruction regarding the accomplice testimony of Hampton. Although the defendant concedes that the court gave an instruction regarding the credibility of accomplice testimony, he argues that the court's instruction was inadequate. We are not persuaded.

The following additional facts are relevant to our disposition of the defendant's claim. Hampton testified as a witness for the state. He testified that the defendant had a rifle, exited the car and fired the first gunshot. He also testified that the defendant fired an additional two or three gunshots after Schmidt had shot Mercado. Hampton further testified that he understood that in exchange for his testimony, the state would inform his sentencing judge of his cooperation in this matter. At the conclusion of the evidence, the defendant submitted to the court a charge regarding a general credibility instruction. He did not, however, ask for a charge on accomplice testimony or object to the charge as given. The court, sua sponte, provided the following accomplice instruction.

"You have also heard testimony of Thelburt Hampton, who has also been charged in connection with the incident for which this defendant is on trial. In weighing the testimony of an alleged accomplice who has not yet been sentenced or whose case has not yet been disposed of, you should keep in mind that he may, in his own mind, be looking for some favorable treatment in the sentence or disposition of his own case. Therefore, he may have such an interest in the outcome of this case that his testimony may have been colored by that fact. Therefore, you must look with particular care at the testimony of an alleged accomplice and scrutinize it very carefully before you accept it.

"There are many offenses that are ... of such a character that the only persons capable of giving useful testimony are those who are themselves implicated in the crime. It is for you to decide what credibility you will give to a witness who has been charged with a crime, whether you will believe or disbelieve the testimony of a person who has been charged in connection with the crime charged by the state here. Like all other questions of credibility, this is a question you must decide based on all of the evidence presented to you."

The defendant now argues that the court's accomplice instruction was inadequate. Our first inquiry is to determine whether the defendant properly preserved this claim. The defendant argues that his submission of a general credibility instruction properly preserved this issue. We disagree.

Our Supreme Court has stated: "It is well settled ... that a party may preserve for appeal a claim that an instruction, which was proper to give, was nonetheless defective either by: (1) submitting a written request to charge covering the matter; or (2) taking an exception to the charge as given.... Moreover, the submission of a request to charge covering the matter at issue preserves a claim that the trial court improperly failed to give an instruction on that matter.... In each of these instances, the trial court has been put on notice and afforded a timely opportunity to remedy the error.... It does not follow, however, that a request to charge addressed to the subject matter generally, but which omits an instruction on a specific component, preserves a claim that the trial court's instruction regarding that component was defective." (Citations omitted; emphasis added.) State v. Ramos, 261 Conn. 156, 170-71, 801 A.2d 788 (2002); see also Practice Book § 42-16.

The defendant's submitted charge was not specifically related to an accomplice instruction but, rather, was a general credibility instruction. Additionally, the defendant did not object to the court's instruction regarding Hampton's accomplice testimony. The court therefore, was not put on notice regarding an accomplice instruction. Accordingly, this claim was not preserved properly.

Although we have determined that this claim is unpreserved, the defendant nevertheless claims that the court's accomplice instruction rises to the level of plain error. Practice Book § 60-5. We disagree.

Plain error review "is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.... The conditions of character and interest most inconsistent with a credible witness, very frequently, but not always, attend an accomplice when he [or she] testifies. When those conditions exist, it is the duty of the judge to specially caution the jury.... In reviewing a challenge to a portion of the jury instructions, the proper test is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result." (Citations omitted; internal quotation marks omitted.) State v. Marra, 222 Conn. 506, 525-26, 610 A.2d 1113 (1992). It is "[a]n examination of the totality of the trial court's instructions [that] reveals [whether] the charge extensively cautioned the jurors to consider the potential motivations and biases of accomplice witnesses." Id., at 526, 610 A.2d 1113.

Here, the court's accomplice instruction extensively cautioned the jurors to consider the potential motivations and biases of Hampton. The court explicitly cautioned the jury that the testimony of Hampton may have been colored by his potentially compelling interest in seeking favorable treatment from the state. Accordingly, there is no error so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings, and there was no plain error.

II

The defendant next claims that the court improperly failed to give a jailhouse informant instruction, sua sponte, in connection with the testimony of an inmate, Tyrin Blue. We disagree.

The following additional facts are relevant to the defendant's claim. At trial, Blue testified that while in a holding cell in Hartford, the defendant admitted that he, Schmidt and Pearson had been to Hartford and engaged in a shoot-out...