State v. Walker

178 Conn.App. 345

175 A.3d 576

STATE of Connecticut

v.Joseph WALKER

AC 38916

Appellate Court of Connecticut.

Argued September 11, 2017

Officially released November 28, 2017

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 attorney, and Amy L. Sedensky and Terence D. Mariani, senior assistant state's attorneys, for the appellee (state).

Alvord, Sheldon and Mullins, Js.^*

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., at 810–11, 153 A.3d 38.

Upon granting the defendant's petition for certification to appeal from our previous decision, the Supreme Court has now directed this court to consider the defendant's claim of plain error in light of State v. McClain , 324 Conn. 782, 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, at 815, 155 A.3d 209. After consideration of the defendant's claim, we conclude that plain error does not exist, and, accordingly, we affirm the judgment.

We set forth the relevant factual and procedural history. "On May 10, 2012, the defendant arranged to purchase $6150 worth of cocaine from the victim, David Caban." State v. Walker , supra, 169 Conn. App. at 796, 153 A.3d 38. 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 girlfriend, Alexia Bates, to the home of the victim to purchase ... cocaine." Id., at 797, 153 A.3d 38. 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., at 798, 153 A.3d 38. 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 Taylor's girlfriend, Alexia Bates. Upon his arrival, the defendant 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., at 798–99, 153 A.3d 38.

"Taylor then ordered Bates to go to her vehicle to retrieve the revolver." Id., at 799, 153 A.3d 38. 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. at 799, 153 A.3d 38. 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 dashboard 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., at 799–800, 153 A.3d 38.

"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 effective sentence of sixty years incarceration, twenty-five years of which were mandatory." Id., at 800–801, 153 A.3d 38. Additional 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' participation 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 reversal 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 invocation of the plain error doctrine is reserved for occasions 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 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.... [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. 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 instruction singling out any of the state's witnesses and highlighting 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 defendant 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 quotation 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 solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes 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 omitted.) State v. Underwood , supra, 142 Conn. App. at 675, 64 A.3d 1274.

In this case, the defendant claims that although "Bates may not have shared an intent as to the...