State v. Jackson

• Decision Date: 07 November 2017
• Docket Number: AC 36790
• Citation: 178 Conn.App. 16,173 A.3d 974
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Troy JACKSON

178 Conn.App. 16

173 A.3d 974

STATE of Connecticut

v.Troy JACKSON

AC 36790

Appellate Court of Connecticut.

Argued September 8, 2017

Officially released November 7, 2017

Adele V. Patterson, senior assistant public defender, for the appellant (defendant).

Ronald G. Weller, senior assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, and Stacey M. Miranda, senior assistant state's attorney, for the appellee (state).

Lavine, Elgo and Beach, Js.

ELGO, J.

This criminal appeal returns to this court following a remand by our Supreme Court.

State v. Jackson, 325 Conn. 917, 163 A.3d 617 (2017). On remand, the Supreme Court has directed this court to consider the merits of the claim of the defendant, Troy Jackson, that the trial court committed plain error in failing to provide a special accomplice credibility instruction to the jury. Id. We conclude that the defendant has not met his burden pursuant to the plain error doctrine and, accordingly, affirm the judgment of the trial court.

As this court noted in its earlier decision, the jury reasonably could have found, on the basis of the evidence adduced at trial, that "[o]n the evening of June 4, 2007, the victim, Julian Ellis, was standing with Sterling Cole on the corner of Lloyd and Exchange Streets in New Haven. The defendant approached the victim along with several unidentified individuals, including Nicholas Newton, and asked whether the victim was dealing drugs in the defendant's territory. After a short exchange, the victim fled. As he ran, the defendant shot him in the back multiple times, resulting in his death.

"The defendant was subsequently arrested and charged in a long form information with murder in violation of [General Statutes] § 53a–54a (a), criminal possession of a firearm in violation of General Statutes § 53a–217, and carrying a pistol or revolver without a permit in violation of General Statutes § 29–35. The defendant elected a jury trial on the murder charge and a court trial on the firearms charges. Following the presentation of evidence, the jury found the defendant guilty of murder and the court found the defendant guilty of the remaining charges. The court sentenced the defendant to a total effective term of sixty years incarceration. The defendant then filed the present appeal." State v. Jackson, 159 Conn. App. 670, 672–73, 123 A.3d 1244 (2015), remanded, 325 Conn. 917, 163 A.3d 617 (2017).

On appeal, the defendant raised two distinct claims. First, he asked this court to exercise its supervisory powers "to require trial courts to give a special credibility instruction when an incarcerated witness receives a benefit from the state in exchange for testimony regarding a crime that he claims he personally observed prior to his incarceration." Id., at 673, 123 A.3d 1244. This court declined to do so. Id., at 675, 123 A.3d 1244. Second, the defendant claimed that "the [trial] court committed plain error when it failed to give a special accomplice credibility instruction as to the testimony of Cole and Newton." Id. Consistent with the precedent of our Supreme Court established in State v. Kitchens, 299 Conn. 447, 482–83, 10 A.3d 942 (2011),¹ this court concluded that the defendant had waived review of that claim. State v. Jackson, supra, 159 Conn. App. at 677–79, 123 A.3d 1244. The defendant thereafter filed a petition for certification with our Supreme Court.²

While that petition was pending, the Supreme Court issued its decision in State v. McClain, 324 Conn. 782, 155 A.3d 209 (2017). In McClain, the court clarified that "a Kitchens waiver does not foreclose claims of plain error." Id., at 815, 155 A.3d 209. In so doing, the court explained that "the policy behind the waiver rule in Kitchens is inapposite in the context of claims of plain error ...." Id.

In response, the defendant filed a motion for leave to amend his petition for certification with the Supreme Court. By order dated April 26, 2017, the court denied the defendant's request, but granted his petition and remanded his appeal "to the Appellate Court with direction to consider [his] claim of plain error in light of State v. McClain, [supra, 324 Conn. at 802, 155 A.3d 209]." The parties thereafter filed supplemental briefs with this court on the issue of whether the defendant's conviction should be reversed pursuant to the plain error doctrine because the trial court "did not sua sponte give a special credibility instruction" to the jury. This court heard oral argument on that issue on September 8, 2017.

As a preliminary matter, we note that "the plain error doctrine in Connecticut, codified at Practice Book § 60–5, is an extraordinary remedy used by appellate courts [only] to rectify errors committed at trial that, although unpreserved, are of such monumental proportion that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party." (Internal quotation marks omitted.) State v. Bellamy, 323 Conn. 400, 437, 147 A.3d 655 (2016). "[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.... Put another way, plain error review is reserved for only the most egregious errors. When an error of such a magnitude exists, it necessitates reversal." (Citation omitted; internal quotation marks omitted.) State v. McClain, supra, 324 Conn. at 813–14, 155 A.3d 209.

In McClain, our Supreme Court reiterated "the two-pronged nature" of the plain error doctrine, stating that an appellant cannot prevail thereunder "unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice." (Emphasis in original; internal quotation marks omitted.) Id., at 812, 155 A.3d 209. With respect to the first prong, the claimed error must be "patent [or] readily [discernible] on the face of a factually adequate record, [and] also ... obvious in the sense of not debatable." (Internal quotation marks omitted.) Id. ; see also State v. Coward, 292 Conn. 296, 307, 972 A.2d 691 (2009) ("the party seeking plain error review must demonstrate that the claimed impropriety was ... clear, obvious and indisputable"). With respect to the second prong, an appellant must demonstrate "that the failure to grant relief will result in manifest injustice." (Internal quotation marks omitted.) State v. Myers, 290 Conn. 278, 288, 963 A.2d 11 (2009). The Supreme Court has described that second prong as a "stringent standard" that "will be met only upon a showing that, as a result of the obvious impropriety, the defendant has suffered harm so grievous that fundamental fairness requires a new trial." State v. Jamison, 320 Conn. 589, 599, 134 A.3d 560 (2016). Given that very "demanding" standard, our precedent instructs that "[p]lain error is a doctrine that should be invoked sparingly." (Internal quotation marks omitted.) State v. Bellamy, supra, 323 Conn. at 437–38, 147 A.3d 655.

I

The defendant contends that the trial court committed plain error by failing to sua sponte provide the jury with a special accomplice credibility instruction regarding the testimony of Cole and Newton due to their presence and behavior at the scene of the shooting. "Generally, a 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.... An exception to this rule, however, involves the credibility of accomplice witnesses.... [When] it is warranted by the evidence, it is the court's duty to caution the jury to scrutinize carefully the testimony if the jury finds that the witness intentionally assisted in the commission, or if [he or she] assisted or aided or abetted in the commission, of the offense with which the defendant is charged.... [I]n order for one to be an accomplice there must be mutuality of intent and community of unlawful purpose." (Citations omitted; emphasis in original; internal quotation marks omitted.) 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).

On appeal, the defendant claims that the presence and behavior of Cole and Newton at the scene of the shooting reasonably supports an inference that Cole and Newton either possessed a mutuality of intent and community of unlawful purpose or that they intentionally assisted, or aided and abetted, in the commission of the murder. The defendant notes that Newton arrived at the scene of the shooting with the defendant, while Cole arrived with the victim.³ Furthermore, the defendant relies on a security camera video of the shooting that was admitted into evidence and played for the jury several times at trial, which depicts Cole and Newton in a circle with the victim and other unidentified individuals moments before the shooting. In that video, the defendant claims that "[a]s the shooter stepped toward the victim raising a gun, Cole faced east and Newton faced west, watching both directions as the crime occurred." The defendant also argues that "Cole remained present instead of riding away on his bicycle when the shooting started and ... he stayed looking up the street away from the commotion" at a time when "[e]veryone else [had] immediately run away." In light of the foregoing, the defendant argues that the evidence was sufficient to establish that Cole and Newton were accomplices to the murder of the victim. As such, the defendant maintains that the court was obligated to furnish an accomplice credibility instruction to the jury regarding their testimony.

We disagree that the court's failure to sua sponte provide an accomplice liability instruction under the particular...