State v. Reyes

• Decision Date: 06 June 2017
• Docket Number: SC 19712
• Citation: State v. Reyes, 325 Conn. 815, 160 A.3d 323 (Conn. 2017)
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Angelo REYES

325 Conn. 815

160 A.3d 323

STATE of Connecticut

v.Angelo REYES

SC 19712

Supreme Court of Connecticut.

Argued November 17, 2016

Officially Released June 6, 2017

Norman A. Pattis, for the appellant (defendant).

James A. Killen, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, John Doyle, Jr., senior assistant state's attorney, and Seth R. Garbarsky, assistant state's attorney, for the appellee (state).

Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.

PALMER, J.

The defendant, Angelo Reyes, appeals¹ from the judgments of conviction, following a jury trial, of two counts of arson in the second degree in violation of General Statutes § 53a–112(a)(2), two counts of conspiracy to commit criminal mischief in the first degree in violation of General Statutes §§ 53a–115(a)(1)and 53a–48(a), and one count of conspiracy to commit burglary in the first degree in violation of General Statutes §§ 53a–101(a)(1) and 53a–48(a). The defendant claims that the trial court improperly (1) instructed the jury on reasonable doubt, (2) failed to bar the assistant state's attorney (prosecutor), during voir dire, from informing certain prospective jurors that reasonable doubt is something less than 100 percent certainty, and (3) limited the defendant's right to cross-examine key state witnesses. We conclude that the defendant implicitly waived his unpreserved claim of instructional impropriety under State v. Kitchens , 299 Conn. 447, 10 A.3d 942 (2011), and we reject the defendant's other claims. Accordingly, we affirm the judgments of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant to our disposition of this appeal. At the time of the events in question, the defendant owned a Laundromat and several investment properties in the Fair Haven section of the city of New Haven. In October, 2008, the defendant paid two employees, Osvaldo Segui, Sr., and Osvaldo Segui, Jr., to set fire to 95 Downing Street in New Haven, a single-family residence that the defendant had sold to Robert Lopez and his mother, Carmen Lopez, in 2002. The defendant was angry that Robert Lopez would not sell the property back to him and informed Segui, Sr., that, after the fire, he intended to purchase the lot of land on which the residence had stood before the fire. Segui, Sr., and Segui, Jr., both of whom lived rent free in one of the defendant's properties, agreed to set the fire, and, in the early morning hours of October 9, 2008, they did so.

In May, 2009, the defendant enlisted Segui, Sr., and Segui, Jr., to set another fire, this time to a vehicle belonging to Madeline Vargas, a local businesswoman and employee of a nonprofit substance abuse services agency operating in Fair Haven. Although the defendant did not tell Segui, Sr., why he had had him set fire to Vargas' car, the evidence adduced at trial indicated that the defendant was motivated by spite—the result of an ongoing dispute between him and Vargas over Vargas' attempts, in 2008, to run an outreach program for local drug addicts in an empty parking lot near the defendant's Laundromat.

The defendant, Segui, Sr., and Segui, Jr., were subsequently charged with various offenses related to the 2008 and 2009 arsons. Prior to being tried in state court, the defendant was tried in federal court on unrelated arson charges. Segui, Sr., and Segui, Jr., also were charged in that federal case but agreed to testify against the defendant in exchange for reduced sentences. In the present case, Segui, Sr., and Segui, Jr., entered into plea agreements pursuant to which, in exchange for their testimony, they received a sentence that did not require them to serve any more time than they were required to serve in connection with the federal case. Additional facts and procedural history will be set forth as necessary.

I

The defendant first claims that the trial court diluted the state's burden of proof by instructing the jury that "[p]roof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt." In his brief to this court, the defendant sought review of this unpreserved claim under State v. Golding , 213 Conn. 233, 239–40, 567 A.2d 823 (1989).² At oral argument, however, counsel for the defendant conceded that the defendant had waived this claim under State v. Kitchens , supra, 299 Conn. at 482–83, 10 A.3d 942, the holding of which this court recently reaffirmed in State v. Bellamy , 323 Conn. 400, 403, 147 A.3d 655 (2016). In Kitchens , we held that, "when the trial court provides counsel with a copy of the proposed jury instructions, allows a meaningful opportunity for their review, solicits comments from counsel regarding changes or modifications and counsel affirmatively accepts the instructions proposed or given, the defendant may be deemed to have knowledge of any potential flaws therein and to have waived implicitly the constitutional right to challenge the instructions on direct appeal. Such a determination by the reviewing court must be based on a close examination of the record and the particular facts and circumstances of each case." State v. Kitchens , supra, at 482–83, 10 A.3d 942.

In the present case, the record establishes that the trial court provided defense counsel with a copy of its proposed jury instructions with adequate time for him to review and comment on them. On the last day of trial, the trial court noted for the record "that we've had a very productive informal charge conference earlier today. We'll have a formal charge conference on the record after the evidence is finished. However, to comply with certain suggestions made by counsel, I've made some modifications to a draft instruction I've earlier given counsel. I have now given ... a redraft of [the] proposed instruction ... to counsel. Also, I've given the clerk a copy of this latest draft instruction to comport with [Kitchens ], and that [has been] marked as [court] exhibit A for identification only." That draft contained the following language: "Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. There are very few things in the world that we know with absolute certainty, and, in criminal law cases, the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If, on the other hand, based on the evidence or lack of evidence, you have a reasonable doubt as to the defendant's guilt, you must give him the benefit of that doubt and find him not guilty."

Later that day, after the state had rested its case, the court conducted a formal charging conference. At that conference, the court noted that the parties and the court had "been exchanging drafts" and "had a very productive ... [conference] this morning." The court further stated that it had "given an updated charge to the attorneys after [the] discussion this morning. A copy of that has been marked for [identification] as [court] exhibit [B]." The court then invited the parties to suggest any further "additions, subtractions, or modifications to the proposed" instructions. At that time, defense counsel raised a question with respect to the propriety of the proposed instruction on the meaning of the term "dangerous instrument ...." When the court inquired of defense counsel as to whether he had any other concerns about the charge, counsel responded that he did not. The court then instructed the jury in accordance with the revised charge. The instruction that the court gave to the jury with respect to reasonable doubt was identical to the reasonable doubt instruction contained in the earlier draft. In light of this procedural history, we conclude that the defendant waived his unpreserved claim of instructional error under the rule in Kitchens .³

II

The defendant next claims that the state's burden of proof was impermissibly diluted when, during voir dire examination of several prospective jurors, the prosecutor stated that proof beyond a reasonable doubt "is not proof to 100 percent certainty ...." Acknowledging that this unpreserved claim is not of constitutional magnitude, and thus not subject to appellate review under Golding , the defendant urges us to consider the claim under our supervisory authority over the administration of justice. We see no reason to do so.

As this court previously has explained, "bypass doctrines permitting the review of unpreserved claims such as [Golding ] ... and plain error [claims], are generally adequate to protect the rights of the defendant and the integrity of the judicial system .... [T]he supervisory authority of this state's appellate courts is not intended to serve as a bypass to the bypass, permitting the review of unpreserved claims of case specific error—constitutional or not—that are not otherwise amenable to relief under Golding or the plain error doctrine." (Citations omitted; footnote omitted; internal quotation marks omitted.) State v. Elson , 311 Conn. 726, 767–68, 91 A.3d 862 (2014) ; see also State v. Reynolds , 264 Conn. 1, 215, 836 A.2d 224 (2003) ("[o]ur supervisory powers are not a last bastion of hope for every untenable appeal" [internal quotation marks omitted] ), cert. denied, 541 U.S. 908, 124 S.Ct. 1614, 158 L.Ed.2d 254 (2004). Consistent with this general principle, we will reverse a conviction under our supervisory powers only in the rare case that fairness and justice demand it. "[T]he exercise of our supervisory powers is an extraordinary remedy to be invoked only when circumstances are such that the issue at hand, while not rising to the level of a constitutional violation, is nonetheless of [the] utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole." (Emphasis omitted; internal quotation...