September 11, 2017
Katherine C. Essington, assigned counsel, for the appellant
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. [*]
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. 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.'' Id., 810-11.
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.
802, 155 A.3d 209 (2017), which held that an implied waiver
ofa 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, accordingly, we affirm the
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. 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 girlfriend, Alexia Bates, to the home of the
victim to purchase . . . 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.
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., 798-99.
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 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.
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.''
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., 800-801. Additional facts
will be set forth as necessary.
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.
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