State v. Miller

• Decision Date: 03 June 2014
• Docket Number: No. 35417.,35417.
• Citation: 150 Conn.App. 667,92 A.3d 986
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Reginald MILLER.

150 Conn.App. 667

92 A.3d 986

STATE of Connecticut

v.Reginald MILLER.

No. 35417.

Appellate Court of Connecticut.

Argued March 7, 2014.

Decided June 3, 2014.

Allison M. Near, assigned counsel, for the appellant (defendant).

Maria del Pilar Gonzalez, special deputy assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Jaclyn Preville, deputy assistant state's attorney, for the appellee (state).

LAVINE, BEAR and WEST, Js.^*

BEAR, J.

The defendant, Reginald Miller, appeals from the judgment of conviction of conspiracy to commit forgery in the second degree in violation of General Statutes §§ 53a–48 (a) and 53a–139 (a)(1), aiding and abetting in forgery in the second degree in violation of General Statutes §§ 53a–8 and 53a–139 (a)(1), conspiracy to commit larceny in the fifth degree in violation of General Statutes §§ 53a–48 (a) and 53a–125a, and attempt to commit larceny in the fifth degree in violation of General Statutes §§ 53a–49 and 53a–125a.¹ On appeal,the defendant claims that the court improperly admitted evidence of uncharged misconduct. Additionally, the state alerted both the defendant and this court to the trial court's failure to give an accomplice instruction to the jury. Thereafter, we directed the parties to file supplemental briefs addressed to this issue. The defendant now also claims that the trial court committed plain error in failing to give the jury an accomplice instruction. We affirm the judgment of the trial court.

The following facts, which reasonably could have been found by the jury, and procedural history are necessary to our consideration of the defendant's claims. The defendant and Loretta Berenz had known each other for some time and, previously, had been in an intimate relationship. Berenz called the defendant by his street name, “Cookie.” Berenz and the defendant used and purchased drugs together, and engaged in other criminal activity. The defendant approached Berenz about cashing fraudulent checks, and Berenz agreed to participate. Each time the defendant asked her to cash a fraudulent check, she did so.

A couple of days before March 7, 2012, the defendant and Berenz were “plotting on cashing [a] check that [the defendant] printed up,” and the defendant picked up Berenz on March 7 to take her to the Farmington Bank in Glastonbury to cash the check. When they reached the bank, the defendant gave Berenz the check, which was made out to her, and instructed her on what to do once inside the bank. The defendant was supposed to wait for Berenz in a parking lot across the street from the bank. Berenz went into the bank and gave the check to a teller who began to process it but then took the check into an office. Berenz knew there was a problem, walked out of the bank and smoked a cigarette while she telephoned the defendant. She could not see his car in the parking lot, and her calls repeatedly went directly into voice mail. The police then arrived, and Berenz initially refused to talk to them.

Berenz was arrested and taken to the Glastonbury Police Department, where she was fingerprinted. After the passage of several hours, Berenz realized that the defendant was not coming to get her, and she decided to talk to the police and explain what had happened. Initially, she could not remember the defendant's full name, but could remember only his street name. She gave the police a full description of him, his car, and his address, however. She also gave the police his telephone number and showed them the call history from her telephone.

On March 22, 2012, Berenz spoke with Anthony Dejulius, a detective with the Manchester Police Department, because a warrant had been issued for her arrest for cashing another check that the defendant allegedly had made. At that time, Berenz remembered the defendant's full name and gave that information to Dejulius. Additionally, while being held at York Correctional Institution, Berenz spoke with Michael Furlong, a sergeant with the Glastonbury Police Department, giving him more information about the defendant and other checks that she allegedly had cashed for him. Thereafter, the defendant was arrested for his involvement in the March 7, 2012 check cashing incident.

Prior to the defendant's trial, Berenz, who had an extensive criminal history that dated back to when she was fourteen years old, pleaded guilty to charges related to the March 7, 2012 incident. She was awaiting sentencing when she testified for the state at the defendant's trial. Following the presentation of evidence and closing argument, the jury found the defendant guilty of conspiracy to commit forgery in the second degree, aiding and abetting in forgery in the second degree, conspiracy to commit larceny in the fifth degree, and attempt to commit larceny in the fifth degree as a lesser included offense within the crime of aiding and abetting larceny in the fifth degree. Subsequently, the defendant pleaded guilty to the charge of being a persistent serious felony offender for having previously been convicted of larceny in the third degree as charged in a part B information. After accepting the verdict and rendering a judgment of conviction, the court sentenced the defendant to a total effective term of fifteen years incarceration, followed by five years of special parole. This appeal followed.

I

The defendant first claims that the court “erred by admitting uncharged misconduct evidence that the defendant engaged in a prior forgery with ... Berenz.” ² He argues that “the evidence failed to satisfy any exceptions to Connecticut Code of Evidence § 4–5, and its prejudicial impact far outweighed its probative value.” Specifically, the defendant contends that “[i]n addition to testifying that the defendant furnished the forged check that she attempted to cash at Farmington Bank, [Berenz] testified that one month prior to the incident in question, the defendant had provided her with a forged check to cash at the Manchester Wal–Mart. No other detail was provided about the Wal–Mart incident.³ The simple allegation that the defendant conspired with her on a prior occasion to commit forgery, without any detail connecting it to the crime charged, rendered the evidence irrelevant and improper as evidence of a common plan or scheme.” (Footnote added.) The state argues that the court properly admitted this evidence to show a common plan or scheme, and, in the alternative, to show intent and lack of mistake. We agree that the court properly admitted the testimony under the common plan or scheme exception.

“As a general rule, evidence of prior misconduct is inadmissible to prove that a criminal defendant is guilty of the crime of which the defendant is accused.... Such evidence cannot be used to suggest that the defendant has a bad character or a propensity for criminal behavior.... On the other hand, evidence of crimes so connected with the principal crime by circumstance, motive, design, or innate peculiarity, that the commission of the collateral crime tends directly to prove the commission of the principal crime, is admissible. The rules of policy have no application whatever to evidence of any crime which directly tends to prove that the accused is guilty of the specific offense for which he is on trial.... We have developed a two part test to determine the admissibility of such evidence. First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions [set forth in § 4–5(b) of the Connecticut Code of Evidence].... Second, the probative value of the evidence must outweigh its prejudicial effect.... Section 4–5(b) of the Connecticut Code of Evidence provides, in relevant part: Evidence of other crimes, wrongs or acts of a person is admissible ... to prove intent, identity, malice, motive, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal activity, or an element of the crime, or to corroborate crucial prosecution testimony.” (Citation omitted; internal quotation marks omitted.) State v. Dillard, 132 Conn.App. 414, 424, 31 A.3d 880 (2011), cert. denied, 303 Conn. 932, 36 A.3d 694 (2012).

“Our Supreme Court has identified two categories of common scheme or plan cases. See State v. Randolph, 284 Conn. 328, 343, 933 A.2d 1158 (2007). In the first category, which consists of what most accurately may be described as true common scheme or plan cases, the nature of the charged and uncharged crimes combined with connecting evidence, if any, gives rise to a permissive inference that an overall scheme or plan existed in the defendant's mind, and that the crimes were executed in furtherance of that plan. In the second category of cases, which consists of what most accurately may be described as signature cases, the existence of a modus operandi, logo, or signature, which, when considered in combination with other factors, such as the proximity of time and place of commission, gives rise to a permissive inference that the crimes were executed in furtherance of an overall common scheme or plan.... Id.” (Internal quotation marks omitted.) State v. Dougherty, 123 Conn.App. 872, 878, 3 A.3d 208, cert. denied, 299 Conn. 901, 10 A.3d 521 (2010); see also C. Tait & E. Prescott, Connecticut Evidence (4th Ed. 2008) § 4.19.13, p. 168. We conclude that under the facts of the present case, the first category applies.

A review of Berenz' trial testimony reveals that she testified that she had given information to the Manchester police after discovering that a warrant had been issued for her arrest because of another instance where she had “cashed a phony check that [the defendant] had made.” Following an objection to that testimony and a discussion outside of the presence of the jury, she then explained that she had given information to the Manchester police “because of another check that [she] had cashed ... [that she] had got[ten] from [the defendant].” The defendant claims that this...