State v. Bellamy
| Decision Date | 25 October 2016 |
| Docket Number | SC 19337 |
| Citation | 147 A.3d 655,323 Conn. 400 |
| Parties | State of Connecticut v. Brandon Montrell Bellamy |
| Court | Connecticut Supreme Court |
James B. Streeto, senior assistant public defender, for the appellant (defendant).
James M. Ralls, assistant state's attorney, and Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Kevin C. Doyle, former senior assistant state's attorney, for the appellee (state).
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.
The defendant, Brandon Montrell Bellamy, appeals from the judgment of the Appellate Court affirming his conviction, rendered after a jury trial, of two counts of murder in violation of General Statutes § 53a–54a (a), and one count each of assault in the first degree in violation of General Statutes § 53a–59 (a) (5), criminal possession of a pistol in violation of General Statutes § 53a–217c (a), and carrying a pistol without a permit in violation of General Statutes § 29–35. The defendant claims that the Appellate Court incorrectly determined that he waived his unpreserved jury instruction claim under the rule established in State v. Kitchens , 299 Conn. 447, 482–83, 10 A.3d 942 (2011).1 The defendant further contends that the rule in Kitchens should be overturned because it is confusing, unworkable, interferes with an appellate court's discretion to review unpreserved claims and does not serve the interests of justice.2 We conclude, following a careful review of the record, that the Appellate Court correctly determined that the defendant waived his unpreserved jury instruction claim. We also conclude that the rule in Kitchens should not be overturned. Accordingly, we affirm the judgment of the Appellate Court.
We begin with the defendant's waiver claim. The defendant contends that the trial court's instruction on identification witnesses was deficient because it did not inform the jury that the certainty of a witness' identification does not mean that the identification is accurate, or that factors such as distance, lighting, a witness' emotional state and the time between the crime and the witness identification are also relevant in considering the accuracy of an identification. The state responds that defense counsel indicated that he understood and accepted the trial court's proposed instruction, and, therefore, the defendant's claim is unreviewable under the waiver rule in Kitchens . We agree with the state that the defendant's claim is unreviewable.3
The following facts and procedural history are relevant to our resolution of this claim. On Thursday, November 4, 2010, two days after commencement of the evidentiary portion of the trial, the court gave counsel a draft of the proposed jury instructions. The court also notified counsel that, if they would like to make any additional changes to the instructions, they should inform the court by the following Monday, November 8, although counsel were free to file supplemental instruction requests after that time in light of additional evidence. The court added: “If there's anything either in the court's language or an additional area that I would call nonstandard that you want included, please let the court know.” The court also stated that it expected jury deliberations to begin on Tuesday, November 9. The proposed instructions do not appear to have been marked for identification or otherwise made part of the record.
On Monday, November 8, following conclusion of the evidence, the trial court stated for the record that it was going to meet with counsel in chambers for “a legal charging conference.” The court explained: “[I]t's the actual law the court is going to give tomorrow as it relates to the charges themselves and any kind of law that would apply to this case based on identification witnesses, inconsistent testimony, etc., charges that need to go to the jury in order to complete the record of the case.” The court added that it would try to incorporate any specific requests by counsel into the proposed charge. The court also indicated that it had given counsel copies of the court's proposed general and specific instructions. A brief recess followed, during which the court consulted with counsel in chambers.
After the recess, the court described the proceeding to follow as “our legal session for the charging conference.” The court first observed that it had given counsel for both sides copies of the proposed general instructions. It then described certain changes unrelated to the identification issue that it intended to make in response to requests by counsel, adding that it also intended to change the instructions to read that it was the state's burden to prove beyond a reasonable doubt that the defendant had committed the charged crimes, to which defense counsel specifically assented. The court next discussed the proposed identification instruction, explaining: The court also indicated its willingness to change language in the proposed instructions referring to the possession of a weapon, as suggested by defense counsel. After the court asked if there were any other exceptions, defense counsel responded: “Not at this time, Your Honor.” The court replied: Defense counsel simply responded: “Thank you, Your Honor.” The court then adjourned for the day.
When the proceeding resumed the next morning, the court initially noted that it had conducted an on-the-record charging conference the previous day, during which it had made certain changes to the jury instructions suggested by counsel. The court also clarified that the jury instructions would contain no reference to lesser included offenses, and both counsel agreed that this was appropriate. After the court asked if there was “[a]nything else” of concern the parties wanted to discuss before the jury was brought into the courtroom, counsel responded: “Nothing from [the] defense, Your Honor.” The jury then returned to the courtroom, and the court delivered its instructions.
The trial court's jury instructions addressed the issue of identification two different times. The court first addressed the identification issue indirectly when it instructed the jury regarding how to decide whether to believe a witness' testimony.4 It later addressed the issue directly in its charge on identification.5 Defense counsel took no exception to either instruction. Defense counsel instead stated that he did not object to the instructions, agreed with the state regarding a clarification relating to the elements in the weapons counts, and asked the court to eliminate the instruction on proof of the felony conviction. The court agreed to the suggested changes and asked if there was anything else defense counsel wanted to discuss, to which counsel replied in the negative.
The defendant was convicted on all counts. On January 7, 2011, the court held a sentencing hearing. At the hearing, defense counsel initially argued in support of three postverdict motions the defendant had filed to arrest judgment, for judgment of acquittal, and for a new trial. In his argument, counsel stated that all three motions were based principally on the allegedly rapid speed with which the jury instructions had been delivered. Counsel specifically argued: Counsel indicated that the speed of the instructions was important because it affected the jurors' ability to follow them. The court denied all three motions, reasoning that “the jur[ors] did have the benefit of the actual transcript of the court's instructions going in with them in their deliberative process.”
Thereafter, the defendant appealed from the judgment of conviction.6 The defendant claimed, among other things, that “the [jury] instructions on the issue of [the accuracy of an] identification were prejudicially erroneous and deprived him of [his constitutional right to] a fair trial ....” State v. Bellamy , 149 Conn.App. 665, 669, 89 A.3d 927 (2014). The defendant specifically contended that the instructions departed from the standard criminal jury instructions promulgated by the Judicial Branch because they failed to inform the jury that the certainty of a witness' identification does not equate with its accuracy. Id. He also contended that the instructions had failed to list other relevant factors relating to the accuracy of a witness identification, such as distance, lighting, the emotional state of the witness, and the time between the crime and the identification. Id. The defendant, who apparently had filed no request to charge, conceded that this claim was unpreserved and sought review under State v. Golding , 213 Conn. 233, 239–40, 567 A.2d 823 (1989).7 State v. Bellamy , supra, at 671, 89 A.3d 927. The Appellate Court noted, however, that a claim that has been waived at trial fails to satisfy the third prong of Golding .8 Id.,...
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