Argued
November 28, 2018
Procedural
History
Two
part information charging the defendant, in the first part,
with the crimes of murder and carrying a pistol without a
permit, and, in the second part, with criminal possession of
a firearm, brought to the Superior Court in the judicial
district of Fairfield and tried to the jury before
Kavanewsky, J.; verdict and judgment of guilty, from
which the defendant appealed. Affirmed.
Mark
Rademacher, assistant public defender, for the appellant
(defendant).
Timothy J. Sugrue, assistant state's attorney, with whom,
on the brief, were John C. Smriga, state's attorney, and
Michael A. DeJoseph, Jr., senior assistant state's
attorney, for the appellee (state).
DiPentima, C. J., and Alvord and Eveleigh, Js.
OPINION
ALVORD, J.
The
defendant, Billy Ray ‘‘BJ'' Jones,
appeals from the judgment of conviction, rendered following a
jury trial, of murder in violation of General Statutes §
53a-54a (a), carrying a pistol without a permit in violation
of General Statutes § 29-35 (a), and criminal possession
of a firearm in violation of General Statutes § 53a-217
(a). On appeal, the defendant claims that the trial court
erred in its charge to the jury by failing to provide (1) a
special credibility instruction and (2) a specific
instruction on the dangers of eyewitness identification. We
disagree, and accordingly, affirm the judgment of the trial
court.
The
jury reasonably could have found the following facts. On June
21, 2010, the defendant was outside of the Charles F. Greene
Homes housing complex (Greene Homes), a federally funded
housing project located in Bridgeport. The victim, Michael
‘‘Booman'' Williams, and several other
people, including children, were in the playground area of
the Greene Homes. Just before 11 p.m., the defendant
approached the victim from behind while in the playground
area and shot at the victim at least twice, killing
him.[1]
Martin
Vincze, a Bridgeport police officer, responded to a 911 call
that had reported the shooting. When Officer Vincze arrived
at the Greene Homes, he found the victim lying on the ground
with a gunshot wound to the head. Although there were twenty
to thirty people at the scene, only one person was willing to
speak to Officer Vinzce.[2] James Kennedy, a Bridgeport police
detective, recovered a nine millimeter spent cartridge casing
from the playground area.
On June
22, 2010, the following day, the defendant was with Larry
Shannon watching television at the Marina Village housing
project in Bridgeport. A news story about the shooting came
onto the television, at which point the defendant confessed
to Shannon. The defendant, while holding a nine millimeter
Ruger handgun, [3] told Shannon that he had walked up to the
victim, said ‘‘what's poppin' now?,
'' then fired his gun.
On June
25, 2010, John Tenn, a Bridgeport police detective,
questioned the defendant about the victim's death. The
defendant told Detective Tenn that he did not know the victim
and had never heard the name ‘‘Booman.''
In addition, the defendant stated that he was with Benjamin
Beau at the Washington Village housing complex in Norwalk on
the night of June 21, 2010. Later that same day, however,
Detective Tenn questioned Chanel Lawson, the mother of the
defendant's son, who lived in the Greene Homes. Lawson
told Detective Tenn that the defendant knew the victim. A few
weeks later, Beau was questioned by Detective Tenn and denied
being with the defendant on the night of June 21,
2010.[4]
In
September, 2012, over two years later, police officers
approached Angela Teele while she was at work and asked to
speak to her about the defendant.[5] Teele had lived in the
Greene Homes in June, 2010, and had witnessed the defendant
shoot the victim. Specifically, Teele recalled seeing the
defendant in the vicinity of building three of the Greene
Homes between 10 and 11 p.m. on the night of June 21,
2010.[6] She observed that the defendant was
wearing a black hoodie and blue shorts. Teele also recalled
seeing the victim play with two children in the playground
area of the Greene Homes, which was located at the side of
building three. Teele briefly lost sight of the defendant as
he walked around one of the buildings, then watched him throw
on his hood as he went into the playground area. Once the
defendant went into the playground area, Teele witnessed the
defendant approach the victim, whose back was turned, and
shoot the victim in the head.[7]Teele observed that the defendant
was about two or three feet away from the victim when he shot
the victim with a pistol. Teele saw the defendant run out of
the playground area toward the back of building three after
the shooting.
In
February, 2013, Shannon contacted the police. Although
Shannon previously had not wanted to talk to the police,
[8] he
was arrested and incarcerated on an unrelated felony charge
and sought to give information to police in the hope of
receiving favorable treatment in his case. In addition to
telling the police about the defendant's confession,
Shannon also explained that he saw the defendant on the night
of June 21, 2010. Shannon was at the Greene Homes and walked
to Junco's, a nearby market, to get food. After eating at
Junco's, Shannon walked back toward building four of the
Greene Homes. During his walk back, Shannon saw the defendant
in the area between buildings two and three. He observed that
the defendant was wearing blue jeans and a hoodie, with the
hood up on his head, and was walking toward the back of
building three. After seeing the defendant, Shannon continued
to walk toward building four, and shortly thereafter heard
two or three gunshots. Shannon tried to run because he did
not know where the gunshots were coming from, but he had
difficulty running due to a recent surgery, and ended up
falling to the ground. Shannon got up, walked around the
corner of building four, and saw the victim slumped over in
the playground area.
In
June, 2015, the defendant was arrested, and he was
subsequently charged with murder, carrying a pistol without a
permit, and criminal possession of a firearm. A jury trial
followed and the defendant was found guilty of all charges.
The court rendered judgment in accordance with the jury's
verdict and imposed a total effective sentence of fifty years
of imprisonment. This appeal followed. Additional facts will
be set forth as necessary.
I
The
defendant first claims that the trial court erred when it
failed to provide a special credibility instruction regarding
Shannon's testimony. Specifically, the defendant argues
that the jailhouse informant instruction, recognized in
State v. Patterson, 276 Conn. 452, 886 A.2d 777
(2005), should extend to cases like his, where a witness such
as Shannon is incarcerated at the time he provides
information to the police for the purposes of getting out of
jail and receiving a favorable disposition of his pending
criminal charges.[9] We disagree.
The
following additional facts and procedural history are
relevant to our resolution of this claim. At trial, Shannon
was questioned at length about the benefits he received as a
result of talking to police and testifying at the
defendant's trial. Shannon explained that he decided to
talk to the police in February, 2013, because he had been
arrested on an unrelated felony charge and was being held at
the Bridgeport Correctional Center. Shannon testified that,
in consideration for talking to the police about the
defendant's confession and what he had seen on the night
of June 21, 2010, he was released from the Bridgeport
Correctional Center without having to make a bond payment. In
addition, Shannon stated that he received a favorable
sentence on his felony charge.[10]
On
January 23, 2017, the defendant submitted a written request
to charge. He requested a special credibility instruction
with respect to Shannon's testimony.[11] The defendant
conceded that there was no controlling legal authority
requiring such an instruction, but nonetheless argued, as he
does on appeal, that the jailhouse informant exception
recognized in Patterson should extend to cases such
as his. Specifically, he argued that ‘‘Larry
[Shannon's testimony] is no less suspect than the
testimony of an accomplice or jailhouse snitch, given the
unique circumstances of how and when it was disclosed, and
the potential motivations for the witness to provide
information he believes will be helpful to the state
regardless of whether that information is accurate or based
on personal knowledge.''
The
trial court declined to provide the jury with the special
credibility instruction. Rather, in its final charge to the
jury, the court provided the jury with a general witness
credibility instruction. The court instructed in relevant
part: ‘‘You should consider their appearance,
conduct and demeanor while testifying and in court, and any
interest, bias, prejudice or sympathy which a witness may
apparently have for or against the state, or the accused or
in the outcome of the trial. . . .''
We turn
to the legal principles that guide our review of the
defendant's claim. ‘‘It is a well established
principle that a defendant is entitled to have the jury
correctly and adequately instructed on the pertinent
principles of substantive law. . . . The primary purpose of
the charge to the jury is to assist [it] in applying the law
correctly to the facts which [it] find[s] to be established.
. . . [T]he test of a court's charge is not whether it is
as accurate upon legal principles as the opinions of a court
of last resort but whether it fairly presents the case to the
jury in such a way that injustice is not done to either party
under the established rules of law. . . . As long as [the
instructions] are correct in law, adapted to the issues and
sufficient for the guidance of the jury . . . we will not
view the instructions as improper.'' (Citation
omitted; internal quotation marks omitted.) State v.
Salmond, 179 Conn.App. 605, 627-28, 180 A.3d 979, cert.
denied, 328 Conn. 936, 183 A.3d 1175 (2018).
‘‘Generally,
a [criminal] 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.'' State v. Ortiz, 252 Conn. 533,
561, 747 A.2d 487 (2000); accord State v. Colon, 272
Conn. 106, 227, 864 A.2d 666 (2004), cert. denied, 546 U.S.
848, 126 S.Ct. 102, 163 L.Ed.2d 116 (2005). Our Supreme Court
has recognized three exceptions to this general rule,
including the jailhouse informant exception. See State v.
Diaz, 302 Conn. 93, 101-102, 25 A.3d 594 (2011).
Our
Supreme Court adopted the jailhouse informant exception in
Patterson, holding that a defendant is entitled to a
special credibility instruction in cases where a prison
inmate ‘‘has been promised a benefit by the state
in return for his or her testimony'' regarding
incriminating statements made by a fellow inmate.
State v. Patterson, supra, 276 Conn. 469; see also
State v. Diaz, supra, 302 Conn. 102 (‘‘a
jailhouse informant is a prison inmate who has testified
about confessions or inculpatory statements made to him
by a fellow inmate'' [emphasis added]).
‘‘In
Diaz, our Supreme Court declined to interpret its
decision in Patterson as [requiring] a special
credibility instruction when an incarcerated witness has
testified concerning events surrounding the crime that [he]
witnessed outside of prison . . . reasoning that such an
exception would swallow the rule that the trial court
generally is not required to give such an instruction for the
state's witnesses.'' (Citation omitted; internal
quotation marks omitted.) State v. Salmond, supra,
179 Conn.App. 630.
In the
present case, the defendant concedes that Shannon was not a
jailhouse informant. Although Shannon was incarcerated at the
Bridgeport Correctional Center when he initiated contact with
the police, he was not a fellow inmate of the defendant.
Shannon did not testify as to a confession that the defendant
made while they were fellow inmates. See State
v.Diaz, supra, 302 Conn. 102
(‘‘Patterson has not been applied to
require a special credibility instruction when an
incarcerated witness has testified concerning events
surrounding the crime that he or she witnessed outside of
prison, as distinct from confidences that the defendant made
to the witness while they were incarcerated
together''). Rather, Shannon testified about events
that he had witnessed and a confession that took place while
both of them were socializing outside of the prison
environment.
Moreover,
the defendant recognizes that requiring a special credibility
instruction for Shannon's testimony would be an expansion
of the exception recognized in Patterson. The
defendant nonetheless argues that, although a special
credibility instruction is not required under existing law,
the trial court's failure to provide such an instruction
was in error because Shannon's testimony was
‘‘similar to [that of] a classic jailhouse
informant, '' and presented ‘‘[t]he same
concerns that require . . . [a] special credibility
instruction for such a witness . . . .''
Specifically, he argues that Shannon's testimony was
unreliable because of ‘‘[t]he pressure of the
prison environment'' and ‘‘[t]he
introduction of benefits in exchange for testimony . . .
[which] has an undeniable corrupting influence on the
criminal process by encouraging those with little to lose to
fabricate damaging testimony in order to reap the
government's reward of freedom.''
Following
the appellate guidance in Diaz and Salmond,
we decline to extend the jailhouse informant exception to the
facts of the present case.[12] In Diaz and
Salmond, the courts explained that
‘‘when the jury [is] aware of the [nonjailhouse
informant] witness' involvement in the criminal justice
system and their expectations that they would receive
consideration in exchange for their testimony, a general
credibility instruction is sufficient.'' (Internal
quotation marks omitted.) State v. Salmond, supra,
179 Conn.App. 630; see State v. Diaz, supra, 302
Conn. 103.
In the
present case, the jury was repeatedly advised that Shannon
was incarcerated at the Bridgeport Correctional Center at the
time he initiated contact with the police and that, in
consideration for his cooperation, he was released from jail
without having to make a bond payment and later received a
favorable sentence on his felony charge. Shannon testified at
trial regarding his motive to talk to the police, as well as
the benefits he received, on both direct examination and
cross-examination. See footnote 9 of this opinion. Moreover,
during closing arguments, defense counsel told the jury how
Shannon's motivations and favorable treatment could be
taken into consideration when determining his
credibility.[13] Accordingly, we conclude that the jury
was aware of Shannon's involvement in the criminal
justice system and his expectation that he would receive
consideration in exchange for talking to the police.
Therefore, under Diaz and Salmond, a
general credibility instruction is sufficient.[14]
The
court, in its charge to the jury, gave a general credibility
instruction. In that instruction, the jury was told to
consider ‘‘any interest, bias, prejudice or
sympathy which a witness may apparently have for or against
the state, or the accused or in the outcome of the
trial.'' See State v. Salmond, supra, 179
Conn.App. 631. We therefore conclude ...