State v. Diaz

• Decision Date: 16 August 2011
• Docket Number: No. 17949.,17949.
• Citation: 302 Conn. 93,25 A.3d 594
• Parties: STATE of Connecticutv.Luis DIAZ.
• Court: Connecticut Supreme Court

302 Conn. 93

25 A.3d 594

STATE of Connecticut

v.Luis DIAZ.

No. 17949.

Supreme Court of Connecticut.

Argued Dec. 8, 2010.Decided Aug. 16, 2011.

Pamela S. Nagy, special public defender, for the appellant (defendant).Adam E. Mattei, special deputy assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Howard S. Stein, senior assistant state's attorney, for the appellee (state).ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, McLACHLAN and EVELEIGH, Js.ROGERS, C.J.

The primary issues in this appeal are: (1) whether the trial court committed plain error by failing, sua sponte, to give a special credibility instruction to the jury concerning three witnesses for the state who were involved in the criminal justice system and, therefore, may have had a personal interest in testifying for the state; and (2) whether this court should exercise its supervisory powers to require the trial courts to give a special credibility instruction for all such witnesses. The defendant, Luis Diaz, was charged and convicted of murder in violation of General Statutes § 53a–54a, carrying a pistol without a permit in violation of General Statutes § 29–35 and criminal possession of a pistol in violation of General Statutes § 53a–217c. At trial, three witnesses who had criminal matters pending in a variety of venues testified that they had seen the defendant commit the murder. On appeal, the defendant claims that the trial court committed plain error when it failed to instruct the jury, sua sponte, that the testimony of the three witnesses should be viewed with great caution in light of the potential benefits that they might receive from the government in the pending criminal matters in exchange for their testimony. In the alternative, he claims that this court should exercise its supervisory powers to require such an instruction. We disagree and affirm the judgment of conviction.

The jury reasonably could have found the following facts. On the evening of January 11, 2006, the victim, Philip Tate, was shot and killed outside a bar known as the Side Effect West in the city of Bridgeport. Thereafter, the defendant was arrested and charged with murdering the victim, carrying a pistol without a permit and criminal possession of a pistol or revolver.¹

In March, 2006, Corey McIntosh gave a statement to the police indicating that the defendant had been the shooter. At that time, McIntosh was on federal probation and had received a three year suspended sentence for possessing narcotics in Connecticut. McIntosh testified at the defendant's trial that he had seen the defendant outside the Side Effect West immediately before the shooting and had heard shots as he entered the bar. He then ran out the back door and saw the defendant running down the street with a gun in his hand. Additional state narcotics charges were pending against McIntosh at the time of trial. He testified that, while no promises had been made in connection with the pending charges, he was hoping to receive some consideration in exchange for his testimony.

At some point after July, 2006, Eddie Ortiz wrote a letter to the prosecutor's office indicating that he had information about the murder. He was incarcerated at the time and stated in his letter that he was looking for some consideration in exchange for his testimony. Ortiz testified at the defendant's trial that he had seen the defendant shoot the victim. He also testified that, during the trial, he had been placed in the same holding cell as the defendant, who said to him, “You know what I did” and “I know where you live at.” In addition, Ortiz testified that the defendant had offered him $5000 not to testify. He further testified that the prosecutor's office had not promised him anything in exchange for his testimony and that he had been told that it would be up to a judge whether he would receive any benefit, such as a sentence modification. He had expectations, however, that his testimony would be taken into consideration.

Approximately six months after the murder, James Jefferson asked his attorney to inform Harold Dimbo, a detective with the Bridgeport police department, that Jefferson had information about the murder. Jefferson, who was incarcerated in Connecticut on domestic violence charges at the time, was subject to lifetime parole in New York in connection with a conviction on narcotics charges in that state. Dimbo visited Jefferson in prison and Jefferson agreed to give a statement about the shooting. Dimbo made no promises to Jefferson. In September, 2006, the domestic violence charges were dismissed for lack of evidence. Thereafter, Jefferson testified at the defendant's trial that he had seen the defendant and the victim outside Side Effect West immediately before the shooting. He also saw the defendant shoot at someone, but he did not see the victim at that point. At the time of trial, Jefferson was incarcerated in Connecticut for violating his parole in New York.

McIntosh, Ortiz and Jefferson were the only witnesses who identified or implicated the defendant as the shooter. The defendant's girlfriend, Shenisha McPhearson, testified that the defendant had been with her at her apartment at the time of the shooting. The state presented no physical evidence to tie the defendant to the shooting and the gun used in the shooting was never recovered.

At trial, the trial court gave the jury a general credibility instruction. ² In his arguments to the jury, defense counsel argued that Jefferson's testimony represented “the kind of savvy in the presentation or recitation of events from people who are subject to the system over a lifetime. Their truthfulness is mercurial. It's not like the average reasonable person. It's what accommodates them.” He also stated that “Ortiz is the classic example of the savvy lifetime criminal....” In addition, he argued that Ortiz “is just providing us with what he thinks the state would want to hear and to say to get some accommodation on his sentence....” Finally, defense counsel argued that each of the witnesses had “a reason to fabricate for their own benefit.”

In response to defense counsel's arguments, the prosecutor stated to the jury, “How cold a person do you have to be to point an accusatory finger and say I saw this man commit murder when you're doing it for your own motivation? How cold do you have to be? What is the benefit that would cause a person to be that cold? They have been promised nothing. Flat out told you get no benefit. It's expected that you would cooperate as a good citizen and a good person.” He further argued that the length of the sentences that the witnesses faced was not sufficient to provide a motivation to fabricate testimony.

The jury returned a verdict of guilty on all three counts and the trial court rendered judgment in accordance with the verdict. The defendant then appealed from the judgment of conviction directly to this court pursuant to General Statutes § 51–199(b)(3).

The defendant first claims that the trial court committed plain error when it failed to instruct the jury, sua sponte, that it must consider with great caution the testimony of McIntosh, Ortiz and Jefferson, in light of their involvement in the criminal justice system and the possibility that they would receive some benefit from the government in exchange for their testimony.³ Specifically, the defendant contends that the reasoning underlying this court's decisions in State v. Patterson, 276 Conn. 452, 469–70, 886 A.2d 777 (2005) (trial court is required to give special credibility instruction for jail-house informant who has been promised benefit in exchange for testimony), and State v. Arroyo, 292 Conn. 558, 569, 973 A.2d 1254 (2009) (expanding Patterson and holding that trial court should give special credibility instruction “whenever such testimony is given, regardless of whether the informant has received an express promise of a benefit”), cert. denied, ––– U.S. ––––, 130 S.Ct. 1296, 175 L.Ed.2d 1086 (2010), applies equally to any witness who is in a position to receive a benefit from the state, even if the witness is not a classic jail-house informant.⁴ The defendant also requests that, if this court does not agree that Patterson and Arroyo apply to the witnesses in the present case, this court should exercise its supervisory powers to expand the circumstances under which the trial courts are required to give a special credibility instruction to include all cases in which a witness has a potential interest in testifying for the state and there is “some evidence in the record indicating that the witness is not entirely reliable or may have a motive to falsify his testimony....” The state disputes the defendant's claim that the trial court committed plain error and urges this court to decline the defendant's invitation to invoke its supervisory powers. In addition, the state contends that, if the trial court did commit plain error, any such error was harmless in light of the strong circumstantial evidence against the defendant.⁵ We conclude that the trial court did not commit plain error and decline the defendant's invitation to invoke our supervisory powers to require the trial courts to give a special credibility instruction in all cases in which a witness has a potential interest in testifying for the state. We reiterate, however, that it is well within the trial court's discretion to give a cautionary instruction in cases in which it believes a witness' testimony is particularly unreliable.

We first address the defendant's claim that the trial court committed plain error when it failed to give a special credibility instruction regarding the testimony of McIntosh, Ortiz and Jefferson. “The plain error doctrine, which is codified at Practice Book § 60–5, is an extraordinary remedy used by appellate courts to rectify errors committed at trial that, although unpreserved, are of such monumental proportion...