State v. Arroyo

• Decision Date: 21 July 2009
• Docket Number: No. 18031.,18031.
• Citation: 292 Conn. 558,973 A.2d 1254
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Reynaldo ARROYO.

973 A.2d 1254

292 Conn. 558

STATE of Connecticut v. Reynaldo ARROYO.

No. 18031.

Supreme Court of Connecticut.

Argued February 17, 2009.

Decided July 21, 2009.

Andrew S. Liskov, special public defender, for the appellant (defendant).

Bruce R. Lockwood, senior assistant state's attorney, with whom, on the brief, were Timothy J. Liston, state's attorney, and Maureen Platt, senior assistant state's attorney, for the appellee (state).

ROGERS, C.J., and KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.

ROGERS, C.J.

The defendant, Reynaldo Arroyo, was convicted, after a jury trial, of felony murder in violation of General Statutes § 53a-54c,¹ conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134(a)² and 53a-48, and larceny in the fifth degree in violation of General Statutes §§ 53a-125a(a)³ and 53a-119.⁴ The defendant appealed from the judgment to the Appellate Court, which affirmed the judgment of conviction. State v. Arroyo, 104 Conn.App. 167, 187, 931 A.2d 975 (2007). Thereafter, this court granted the defendant's petition for certification to appeal limited to the following issues: (1) "Did the Appellate Court properly determine that the special credibility instruction mandated in State v. Patterson, 276 Conn. 452, 886 A.2d 777 (2005), was not applicable?"; and (2) "Did the Appellate Court properly determine that the verdicts were not legally inconsistent?" State v. Arroyo, 284 Conn. 938, 937 A.2d 694 (2007). With respect to the first claim, we conclude that, although Patterson does not require a special credibility instruction if a jailhouse informant has not received a promise of a benefit in exchange for his testimony; see State v. Patterson, supra, at 469, 886 A.2d 777; the Patterson rule should now be expanded to apply to all jailhouse informant testimony. We also conclude, however, that the absence of such an instruction in the present case was harmless. With respect to the second claim, we conclude that we need not determine whether the verdicts in the present case were legally inconsistent because we conclude, in accordance with United States v. Powell, 469 U.S. 57, 69, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984), that claims of legally inconsistent verdicts are not reviewable. Accordingly, we affirm the judgment of the Appellate Court on these alternate grounds.

As set forth in the Appellate Court's opinion, the jury reasonably could have found the following facts. "On the afternoon of March 28, 2001, the defendant asked his neighbor [Charles Smith] if he could borrow money, stating that he would pay the money back after he went on `a mission.' Later that evening, the defendant and Richmond Perry drove to Mike's Package Store in Middlefield. At the counter, an argument ensued between the defendant and the owner of the store, Edmund Caruso, over the amount of change the defendant received from his purchase. The argument escalated, and the defendant pulled out a handgun and jumped over the counter. The defendant pushed Caruso, who then sprayed Mace at both the defendant and Perry. During the altercation, Caruso was shot several times and subsequently died as a result of his injuries. Following the shooting, the defendant and Perry fled from the scene with the cash register. The defendant was arrested several weeks later." State v. Arroyo, supra, 104 Conn.App. at 169, 931 A.2d 975.

Thereafter, the defendant was charged with felony murder, murder in violation of General Statutes § 53-54a (a), robbery in the first degree, larceny in the fifth degree and conspiracy to commit robbery in the first degree. The jury found him guilty of felony murder, larceny in the fifth degree and conspiracy to commit robbery in the first degree and acquitted him of murder and robbery in the first degree, and the trial court rendered judgment accordingly. Id., at 170, 931 A.2d 975.

On appeal to the Appellate Court, the defendant claimed, inter alia, that the trial court improperly had: (1) denied his request for a special credibility instruction concerning the testimony of two jailhouse informants pursuant to State v. Patterson, supra, 276 Conn. at 452, 886 A.2d 777; State v. Arroyo, supra, 104 Conn.App. at 170, 931 A.2d 975; and (2) denied his motion for a judgment of acquittal with respect to the felony murder charge, because the verdict of guilty on that charge was inconsistent with the verdict of not guilty on the charges of robbery in the first degree, which was the predicate felony for the felony murder charge. Id., at 179, 931 A.2d 975. The Appellate Court rejected the defendant's first claim because it concluded that a Patterson charge is required only when the state has promised some benefit to the jailhouse informant in exchange for testifying, and there was no evidence of such a promise in this case. Id., at 174, 931 A.2d 975. The Appellate Court rejected the defendant's second claim because it concluded that, in order to convict the defendant of felony murder, the jury was required to find that the defendant or another participant had caused Caruso's death in the course of a robbery in violation of General Statutes § 53a-133; see footnote 2 of this opinion; whereas, in order to convict the defendant of robbery in the first degree in violation of § 53a-134(a)(2), the jury would have been required to find that the defendant had committed robbery while armed with a deadly weapon. State v. Arroyo, supra, at 183, 931 A.2d 975. Because the elements of the two offenses were different, the Appellate Court concluded that the verdicts were not legally inconsistent. Id., at 184, 931 A.2d 975. Accordingly, the court affirmed the judgment of conviction. Id., at 187, 931 A.2d 975.

This certified appeal followed. The defendant claims that the Appellate Court improperly affirmed the trial court's denial of his request for a charge under Patterson because that case requires a special credibility instruction on jailhouse informant testimony regardless of whether the informant has received a promise of a benefit in exchange for his testimony. He also contends that, if this court disagrees with this interpretation of Patterson, this court should expand the Patterson rule to apply to all jailhouse informant testimony. The defendant further claims that the Appellate Court improperly determined that robbery in the first degree is not a lesser included offense of felony murder for purposes of establishing a legally inconsistent verdict. The state disputes these claims and also contends, essentially as alternate grounds for affirmance, that: (1) even if the trial court's failure to give a special credibility instruction concerning the testimony of the jailhouse informants pursuant to Patterson was improper, it was harmless; and (2) this court should adopt the rule set forth by the United States Supreme Court in United States v. Powell, supra, 469 U.S. at 69, 105 S.Ct. 471, that a claim that a verdict is legally inconsistent is not reviewable.

We disagree with the defendant that Patterson applies even when a jailhouse informant has not received a promise of a benefit in exchange for his testimony, but agree with him that the Patterson rule should be expanded and that the trial court must give a special credibility instruction even when the informant has not received an express promise of a benefit. We agree with the state, however, that the absence of a Patterson charge in the present case was harmless. We also agree with the state that claims of legally inconsistent verdicts are not reviewable, in accordance with Powell. Accordingly, we affirm the judgment of the Appellate Court on these alternate grounds.

I

We first address the defendant's claim that the Appellate Court improperly determined that the trial court properly had refused to give a special credibility instruction concerning the testimony of the jailhouse informants pursuant to Patterson. The opinion of the Appellate Court sets forth the following additional facts and procedural history that are relevant to our resolution of this claim. "At trial, the state presented the testimony of Thomas Moran and Ronald Avery. While awaiting their trials, Moran and Avery shared a courthouse lockup cell with the defendant. Both Moran and Avery testified that while in the lockup, on different occasions, the defendant confessed to them that he and Perry had robbed the package store and had shot Caruso.

"Prior to his conversations with the defendant in the lockup, Moran had known the defendant and had lived with him for a short period of time earlier that year. Moran testified that although he had an extensive criminal record, he did not `believe in violence' and was testifying because `it was the right thing to do.' The jury heard evidence that Moran had attempted to use the information three different times in an effort to negotiate an agreement with the state, even though from the beginning, he was told, `you'll get nothing.' Moran's attempts to obtain benefits in exchange for his cooperation were futile.

"Avery met the defendant for the first time while in the lockup at the Norwich courthouse. Avery testified that he did not believe the defendant initially, but decided to come forth with the information after seeing the incident reported on the news. Avery testified that he thought there would be a monetary reward for the information, and, furthermore, he had hoped to use the information to `get some play' on his case.

"Prior to the conclusion of the trial, the defendant requested that the judge instruct the jury that it should weigh, examine and view Moran's and Avery's testimony with great caution, care and scrutiny to determine whether the testimony had been affected by bias or prejudice against the defendant, and to consider whether Moran and Avery testified to serve their own self-interest because they believed or hoped that they would benefit by falsely implicating the defendant.

"The court denied the defendant's request but instructed the...