State v. Walker

• Decision Date: 20 December 2016
• Docket Number: AC 38916
• Citation: 169 Conn.App. 794,153 A.3d 38
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Joseph WALKER

169 Conn.App. 794

153 A.3d 38

STATE of Connecticut

v.Joseph WALKER

AC 38916

Appellate Court of Connecticut.

Argued October 5, 2016

Officially released December 20, 2016

Katherine C. Essington, assigned counsel, for the appellant (defendant).

Matthew A. Weiner, assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Amy L. Sedensky and Terence D. Mariani, senior assistant state's attorneys, for the appellee (state).

Alvord, Sheldon and Mullins, Js.

MULLINS, J.

The defendant, Joseph Walker, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a–54a(a), conspiracy to commit murder in violation of General Statutes §§ 53a–48 and 53a–54a(a), robbery in the first degree in violation of General Statutes § 53a–134(a)(2), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a–48 and 53a–134(a)(2), and criminal possession of a firearm in violation of General Statutes § 53a–217(a)(1).¹ On appeal, the defendant claims (1) there was insufficient evidence to support his conviction for robbery in the first degree and conspiracy to commit robbery in the first degree; (2) the court improperly instructed the jury on the elements of conspiracy to commit robbery in the first degree; and (3) the court committed plain error by failing to instruct the jury on accomplice or informant testimony. We affirm in part and reverse in part the judgment of the trial court.

The following facts reasonably could have been found by the jury. On May 10, 2012, the defendant arranged to purchase $6150 worth of cocaine from the victim, David Caban. Caban lived at 127 Proctor Street in Waterbury with his girlfriend, Lourdes Santana, and Santana's mother. On May 12, 2012, at approximately 9 p.m., the victim was inside his home with his close friend and cousin, Angelo Caban (Angelo). Santana and her mother also were present in the home. Another friend, Anthony Jackson, was sitting in a chair on the front porch of the home.

At approximately 9:30 p.m., the defendant, accompanied by his close friend, Solomon Taylor, drove in a white Mitsubishi Gallant (vehicle), which was owned by Taylor's girlfriend, Alexia Bates, to the home of the victim to purchase the cocaine. The defendant parked the vehicle directly in front of the house so that the passenger's side of the vehicle was facing it.

The victim left the house and approached the vehicle. The victim momentarily leaned into the rear passenger's side of the vehicle, and then returned to the inside of his house, where he went into his bedroom. When the victim walked by Angelo as he again exited the house to return to the vehicle, he stated: "Cuz, stand right here and make sure ... I'm good." Angelo proceeded to stand on the steps outside of the house, where he talked with Jackson. As the victim approached the vehicle, he was carrying the crack cocaine in a brown paper bag, which was tucked in his waistband.

The victim again leaned into the rear passenger's side of the vehicle, with his feet hanging out. Shortly thereafter, a struggle began between the victim and the occupants of the vehicle. One of the occupants of the vehicle had a revolver, and the victim was attempting to hold his arm in an effort to avoid being shot; that occupant then fired a shot through the roof of the vehicle. After hearing the shot, both Angelo and Jackson ran toward the vehicle, but, by the time they reached it, more shots had been fired, and the victim had been hit twice, once in the arm and once in the head. As a result of his injuries, the victim was slumped over with his body only partially inside the vehicle.²

Jackson then began striking the front passenger's side window of the vehicle with a child's Razor scooter that he found near the house. After breaking the window, Jackson fought with the man in the passenger's seat. Meanwhile, Angelo tried to pull the victim out of the vehicle, but, as he did so, more shots were fired. Jackson then retreated from the immediate area by jumping over a fence and hiding behind a building. Angelo then went to the driver's side of the vehicle, where he encountered the defendant, who was pointing a revolver directly at him. The barrel of the revolver was within arm's reach of Angelo's face. Taylor then yelled to the defendant to "forget it," and both men reentered the vehicle and drove away with the rear passenger's side door open and the victim only partially inside the vehicle.

Angelo retrieved his car keys from inside the house, and he and Santana drove after the defendant and Taylor. Within approximately one quarter of a mile, Angelo and Santana saw the victim's body in the street. Angelo stopped the car, and Santana called for help. Santana also dialed the victim's cell phone number. When someone answered her call, she began yelling into the phone, and the person on the other end hung up. The victim was transported to Saint Mary's Hospital, where he died from his wounds

. The victim had approximately $40 in cash on his person when he was transported.

Meanwhile, the defendant drove to the home of Taylor's girlfriend, Alexia Bates. Upon his arrival, the defendant went upstairs into Bates' apartment and proceeded to go into the bathroom to treat a gunshot wound

to his hand, which he had suffered during the struggle with the victim. Taylor, who appeared frantic as he was pacing back and forth, encountered Bates and her roommate in the roommate's bedroom. Taylor then asked Bates to go into her bedroom, which she did. Bates could see blood on Taylor's boxer shorts, which later DNA analysis determined belonged to the victim. While they were in Bates' bedroom, a red slide-style cell phone in Taylor's possession began to ring. When Taylor answered the phone, Bates heard a woman screaming on the other end. Taylor quickly hung up the phone; he did not appear to know who was calling him.

Taylor then ordered Bates to go to her vehicle to retrieve the revolver. Bates went to the vehicle, where she saw many different sized pieces of crack cocaine mixed with blood and glass on the floor. She also saw blood on the door, on the front seat, in the middle console, on the dashboard where the airbag is contained, and in the back passenger's seat. She saw broken glass on the floor and on the front seat, and bullet holes in the roof. Bates also discovered the revolver, which she then brought upstairs to Taylor, who put it in his waistband. Taylor then told Bates to gather cleaning supplies to clean the vehicle; Bates grabbed a bucket that she filled with water and "cleaning stuff," "sponges, rags ... [and] Clorox spray." She also used a bottle of Febreze that already was in the vehicle.

As Bates and Taylor cleaned the vehicle, Taylor told her that "they were in New Britain, and they started shooting up the car trying to rob them ." (Emphasis added.) When Bates looked under the seat, she found Taylor's red slide-style cell phone, which looked identical to the cell phone that Taylor had answered while in the house. Taylor then realized that the red slide-style phone he had in his possession was not his phone, and he threw it into a treed area near Bates' driveway, where it later was recovered by police. Bates also took bags out of the trunk of the vehicle, and she and Taylor then removed all of the items from the inside of the vehicle, which included Bates' makeup, her wallet, her coat, the Febreze bottle, a New York Yankees cap, and other things that she could not remember specifically.

Meanwhile, the defendant telephoned his childhood friend, Julian Warren, asking him to come to Bates' home. When Warren arrived, he saw that the defendant was bleeding from his hand. The defendant told Warren that he needed to go to the hospital because he had been shot, but that he did not want to go to a local hospital because he was on parole. Warren, along with another individual, then took the defendant to Queens, New York. During the ride to Queens, Warren heard the defendant say something about being on the news and about "a dude fighting back" and "somebody fighting back."

On September 12, 2012, the police arrested the defendant in New York. After a jury trial, the defendant was found guilty of all charges against him.³ See also footnote 1 of this opinion. The court sentenced the defendant as follows: (1) for the charge of murder, sixty years incarceration, twenty-five years of which were mandatory; (2) for the charge of conspiracy to commit murder, twenty years incarceration; (3) for the charge of robbery in the first degree, twenty years incarceration, five years of which were mandatory; (4) for the charge of conspiracy to commit robbery in the first degree, twenty years incarceration, five years of which were mandatory; and (5) for the charge of criminal possession of a firearm, five years incarceration, two years of which were mandatory.⁴ The court ordered all sentences to run concurrently, resulting in a total effective sentence of sixty years incarceration, twenty-five years of which were mandatory. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that "[t]here was no evidence from which jurors could reasonably infer that there was a robbery or an agreement to commit robbery." He argues: "[T]he state's evidence proved only that something went wrong during a planned drug deal between the parties that [led] to the shooting of [the victim]. The state did not introduce any evidence at trial from which the jury could reasonably infer that [the defendant] intended to rob [the victim], or that there was an agreement between him and Taylor to rob [the victim]." We disagree.

We employ the following standard in our analysis of the defendant's claim: "In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so...