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STATE OF CONNECTICUT v. JOSEPH WALKER

(AC 38916)

Alvord, Sheldon and Mullins, Js.
Argued October 5,—officially released December 20, 2016

(Appeal from Superior Court, judicial district of

Waterbury, Cremins, J.)

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).
Opinion

MULLINS, J. The defendant, Joseph Walker, appeals

from the judgment of conviction, rendered after a jury

trial, of murder in violation of General Statutes § 53a54a (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 § 53a134 (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,

DavidCaban. Caban lived at 127 Proctor Streetin 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 slidestyle 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 construed and the inferences reasonably drawn therefrom the jury reasonably could have

concluded that the cumulative force of the evidence

established guilt beyond a reasonable doubt. . . .

‘‘We note that the jury must find every element proven

beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the

basic and inferred facts underlying those conclusions

need not be proved beyond a reasonable doubt. . . .

If it is reasonable and logical for the jury to conclude

that a basic fact or an inferred fact is true, the jury is

permitted to consider the fact proven and may consider

it in combination with other proven facts in determining

whetherthe cumulative effect of all the evidence proves

the defendant guilty of all the elements of the crime

charged beyond a reasonable doubt. . . . Moreover,

[w]here a group of facts are relied upon for proof of

an element of the crime it is their cumulative impact

that is to be weighed in deciding whether the standard

of proof beyond a reasonable doubt has been met and

each individual fact need not be proved in accordance

with that standard. It is only where a single fact is

essential to proof of an element, however, such as identification by means of fingerprint evidence, that such

evidence must support the inference of that fact beyond

a reasonable doubt. . . .

‘‘As we have often noted, however, proof beyond

a reasonable doubt does not mean proof beyond all

possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of

innocence posed by the defendant that, had it been

found credible by the trier, would have resulted in an

acquittal. . . . On appeal, we do not ask whether there

is a reasonable view of the evidence that would support

a reasonable hypothesis of innocence. We ask, instead,
whether there is a reasonable view of the evidence that

supports the jury’s verdict of guilty. . . . Furthermore,

[i]t is immaterial to the probative force of the evidence

that it consists, in whole or in part, of circumstantial

rather than direct evidence.’’ (Internal quotation marks

omitted.) State v. Gonzalez, 311 Conn. 408, 419–20, 87

A.3d 1101 (2014).

The defendant argues that the state failed to introduce any evidence that the defendant robbed, or

intended to rob, the victim. He contends: ‘‘It is undisputed that something went wrong during the [drug]

transaction, but there was no evidence presented at

trial that [the defendant] agreed or intended to take

drugs from [the victim] without paying for them.’’ We

disagree.

‘‘A person commits robbery when, in the course of

committing a larceny, he uses or threatens the immediate use of physical force upon another person for the

purpose of: (1) Preventing or overcoming resistance to

the taking of the property or to the retention thereof

immediately after the taking; or (2) compelling the

owner of such property or another person to deliver

up the property or to engage in other conduct which

aids in the commission of the larceny.’’ General Statutes

§ 53a-133. ‘‘A person is guilty of robbery in the first

degree when, in the course of the commission of the

crime of robbery . . . he or another participant in the

crime . . . is armed with a deadly weapon . . . .’’

General Statutes § 53a-134 (a) (2). ‘‘A person commits

larceny when, with intent to deprive another of property

or to appropriate the same to himself or a third person,

he wrongfully takes, obtains or withholds such property

from an owner.’’ General Statutes § 53a-119.

‘‘To establish the crime of conspiracy under § 53a-48

. . . it must be shown that an agreement was made

between two or more persons to engage in conduct

constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy

by any one of the conspirators. The state must also

show intent on the part of the accused that conduct

constituting a crime be performed. . . . Conspiracy is

a specific intent crime, with the intent divided into two

elements: (a) the intent to agree or conspire and (b)

the intent to commit the offense which is the object of

the conspiracy. . . . Thus, [p]roof of a conspiracy to

commit a specific offense requires proof that the conspirators intended to bring about the elements of the

conspired offense.’’ (Citations omitted; internal quotation marks omitted.) State v. Danforth, 315 Conn. 518,

531–32, 108 A.3d 1060 (2015).

‘‘[T]he existence of a formal agreement between the

conspirators need not be proved [however] because

[i]t is only in rare instances that conspiracy may be

established by proof of an express agreement to unite to

accomplish an unlawful purpose. . . . [T]he requisite
agreement or confederation may be inferred from proof

of the separate acts of the individuals accused as coconspirators and from the circumstances surrounding the

commission of these acts. . . . Further, [c]onspiracy

can seldom be proved by direct evidence. It may be

inferred from the activities of the accused persons. . . .

Finally, [b]ecause direct evidence of the accused’s state

of mind is rarely available . . . intent is often inferred

from conduct . . . and from the cumulative effect of

the circumstantial evidence and the rational inferences

drawn therefrom.’’ (Citation omitted; internal quotation

marks omitted.) Id., 532–33.

Construing the evidence in the light most favorable

to sustaining the verdict, we conclude that there was

sufficient evidence to support the defendant’s conviction of the crimes of robbery in the first degree and

conspiracy to commit robbery in the first degree. The

defendant challenges only the larceny element of these

charges, arguing that there was no evidence that he

intended to take drugs from the victim without paying

for them or that he agreed to do so.

The evidence in this case demonstrated that the

defendant made an agreement to buy cocaine from the

victim for the sum of $6150. As the victim approached

the defendant’s vehicle, the victim was carrying crack

cocaine in a brown paper bag, which was tucked in his

waistband. He then leaned into the rear passenger’s

side of the vehicle, with his feet hanging out. A struggle

ensued, and the victim attempted to hold the defendant’s arm in an effort to avoid being shot. Shots, however, were fired, ultimately resulting in the death of the

victim. Jackson and Angelo both ran to help. Jackson

grabbed a child’s scooter and broke the front passenger’s side window of the vehicle, and he engaged Taylor,

who was sitting in that seat, in a fight.

In the meantime, Angelo ran to the rear passenger’s

side of the vehicle to help the victim, but soon more

shots were fired. Angelo then went to the driver’s side

of the vehicle, where he encountered the defendant,

who was standing outside of the vehicle, holding a

revolver then pointed toward Angelo’s face. Taylor indicated to the defendant that they should leave. The

defendant and Taylor reentered the vehicle and fled the

scene with the crack, with the rear door open, and with

the dying victim only partially inside the vehicle. The

victim later fell out or was pushed out of the vehicle,

and was left to die on the street. When the victim was

transported to the hospital, he had approximately $40

on him.

Later, as Bates and Taylor were cleaning the vehicle,

which was littered with broken glass, blood, and many

different sized pieces of crack cocaine mixed with blood

and glass, Taylor specifically told Bates that ‘‘they were

in New Britain, and they started shooting up the car

trying to rob them.’’ (Emphasis added.) Additionally,
when Warren was driving the defendant to Queens, the

defendant said something about being on the news and

about ‘‘somebody fighting back.’’ (Emphasis added.)

Although Bates’ statement that Taylor told her that

‘‘they were in New Britain, and they started shooting

up the car trying to rob them’’ could be viewed as

ambiguous, it is within the province of the jury to ascertain the reasonable meaning of that statement. See, e.g.,

State v. Leniart, 166 Conn. App. 142, 172 n.21, 140 A.3d

1026 (‘‘The jury was free to interpret the defendant’s

statement that he wanted ‘to do her’ either as an expression of his intent to have sexual intercourse with [the

victim] or as an expression of his intent to kill her. In

either instance, when considered in light of the defendant’s statement that he ‘need[ed] a body for the altar,’

the jury reasonably could have inferred that his ultimate

plan was to kill [the victim].’’), cert. granted on other

grounds, 323 Conn. 918, A.3d (2016).

Our role on appeal is to ‘‘construe the evidence in

the light most favorable to sustaining the verdict. . . .

[We then] determine whether upon the facts so construed and the inferences reasonably drawn therefrom

the [jury] reasonably could have concluded that the

cumulative force of the evidence established guilt

beyond a reasonable doubt . . . . ’’ (Emphasis added;

internal quotation marks omitted.) State v. Allan, 311

Conn. 1, 25, 83 A.3d 326 (2014).

Here, it certainly would have been reasonable for

the jury to have found that the ‘‘they’’ to whom Bates

referred was the defendant and Taylor, especially

because it was Taylor who had been speaking to Bates.

Furthermore, it would have been reasonable for the

jury to have found that when Warren heard the defendant say that ‘‘somebody’’ fought back, the defendant

was referring to the victim in this case having fought

back an attack. There also was evidence that the victim

had only $40 on him when he was transported to the

hospital, despite the defendant stating that he had given

the victim $6000. Thus, on the basis of this evidence,

the jury reasonably could have concluded that the

defendant and Taylor coaxed the victim to produce 150

grams of crack cocaine by telling him that they would

pay him $6150, and, once he produced the crack, they

forcibly took it from him without ever paying him the

agreed upon $6150. The victim resisted being robbed

and fought back. The defendant and Taylor then killed

the victim, dumped his body in the street, and simply

drove away.

Our case law is clear: ‘‘[I]t does not diminish the

probative force of the evidence that it consists, in whole

or in part, of evidence that is circumstantial rather than

direct. . . . It is not one fact . . . but the cumulative

impact of a multitude of facts which establishes guilt

in a case involving substantial circumstantial evidence.

. . . In evaluating evidence, the [jury] is not required
to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [jury]

may draw whatever inferences from the evidence or

facts established by the evidence [that] it deems to

be reasonable and logical.’’ (Internal quotation marks

omitted.) State v. Leniart, supra, 166 Conn. App. 170.

Viewing the evidence in the light most favorable to

sustaining the jury’s verdict, as we must, we conclude

that the jury reasonably could have found, on the basis

ofthe evidence presented and the reasonable inferences

drawn therefrom, that the defendant and Taylor had

robbed the victim, who fought back, and that they had

planned and intended to do so. Accordingly, we find

no merit to the defendant’s claim.

II

The defendant next claims that the court improperly

instructed the jury on the elements of conspiracy to

commit robbery in the first degree. Specifically, he

argues in his principle brief that because the court failed

to instruct the jury that the coconspirators had to agree

that a firearm would be used, his conviction for conspiracy to commit robbery in the first degree must be

vacated. In response, the state agrees that this conviction must be vacated, but for a different reason than

the defendant offers. The state argues that because the

conspiracy to commit robbery and the conspiracy to

commit murder conviction arise from the same

agreement, a double jeopardy violation exists. In his

reply brief, the defendant agrees with the state. We,

too, agree that a double jeopardy violation exists and

that the conspiracy to commit robbery conviction and

sentence must be vacated.

In this case, the defendant was convicted of both

conspiracy to commit murder and conspiracy to commit

robbery in the first degree, both crimes that arose from

a single agreement with multiple objectives. ‘‘[U]nder

Connecticut law; see, e.g., State v. Ortiz, 252 Conn. 533,

559, 747 A.2d 487 (2000); it is a double jeopardy violation

to impose cumulative punishments for conspiracy

offenses if they arise from a single agreement with

multiple criminal objectives. Furthermore, the state recognizes that, pursuant to the United States Supreme

Court’s decision in Rutledge v. United States, 517 U.S.

292, 302, 116 S. Ct. 1241, 134 L. Ed. 2d 419 (1996), a

cumulative conviction can be a form of punishment in

and of itself because it may lead a defendant to suffer

adverse collateral consequences.’’ (Footnote omitted.)

State v. Wright, 320 Conn. 781, 828–29, 135 A.3d 1

(2016).

Pursuant to State v. Wright, supra, 320 Conn. 829,

which extended the holding in State v. Polanco, 308

Conn. 242, 61 A.3d 1084 (2013) (vacatur is appropriate

remedy for cumulative conviction in cases involving

greater and lesser included offenses), the appropriate
remedy for such a double jeopardy violation is vacatur.

Accordingly, the defendant’s conviction and accompanying sentence on the charge of conspiracy to commit

robbery in the first degree must be vacated. See State

v. Mendez, 154 Conn. App. 271, 281, 105 A.3d 917 (2014);

State v. Wright, 144 Conn. App. 731, 749, 73 A.3d 828

(2013), aff’d, 320 Conn. 781, 135 A.3d 1 (2016).

III

The defendant’s final claim is that the court committed plain error by failing to instruct the jury on accomplice or informant testimony with respect to Bates.

Specifically, he claims that because Bates had been

charged with tampering with evidence for helping to

clean the car after the murder of the victim, ‘‘she had

the same motive to curry favor with the prosecution

as an accomplice to the murder.’’ As such, the court

was required to tell the jury to scrutinize her testimony

carefully. Alternatively, the defendant also requests that

we review the claim pursuant to our supervisory

authority.

The state argues that the court had no duty to give

an instruction on this testimony, sua sponte, and, furthermore, that the claim is not reviewable for plain

error because the defendant waived any claim of error.

The state also argues that it would be inappropriate for

us to review this claim under our supervisory authority.

In his reply brief, the defendant argues that ‘‘[o]ur

Supreme Court has not, as of the date of this writing,

held that plain error review is unavailable even if the

court determines that there has been a waiver of a claim

pursuant to State v. Kitchens, 299 Conn. 447, 10 A.3d

942 (2011). See State v. McClain, 319 Conn. 902, 122

A.3d 637 (2015) ([granting certification to review issue

of whether ’Appellate Court properly determine[d] that

an implied waiver of a claim of instructional error that

satisfies [Kitchens] . . . also forecloses plain error

review’]).’’ He also argues that we would be justified

in exercising our supervisory authority in this case. We

conclude that the defendant waived this claim, and we

also decline to exercise our supervisory authority.

In this case, the defendant concedes that his claim

of instructional error is not preserved ‘‘due to his failure

to submit a request to charge [on this specific instruction] and to object to the court’s charge.’’ He also concedes that ‘‘Golding review is not available because the

issue is not one of constitutional magnitude.’’ See State

v. Golding, 213 Conn. 233, 239–40,567 A.2d 823 (1989).

Accordingly, he requests that we consider his claim

pursuant to the plain error doctrine or that we exercise

our supervisory authority. We conclude that the defendant’s claim is not reviewable for plain error, and we

decline his invitation to exercise our supervisory

authority.

This court repeatedly has held that an implied waiver
of a claim of instructional error that satisfies State v.

Kitchens, supra, 299 Conn. 482–83, also forecloses plain

error review. See, e.g., State v. Bialowas, 160 Conn.

App. 417, 429, 125 A.3d 642 (2015); State v. Jackson,

159 Conn. App. 670, 677–79, 123 A.3d 1244 (2015); State

v. Fuller, 158 Conn. App. 378, 390–91, 119 A.3d 589

(2015); State v. McClain, 154 Conn. App. 281, 291–92,

105 A.3d 924, 931 (2014), cert. granted, 319 Conn. 902,

122 A.3d 637 (2015); State v. Reddick, 153 Conn. App.

69, 82, 100 A.3d 439, appeal dismissed, 314 Conn. 934,

102 A.3d 85, cert. denied, 315 Conn. 904, 104 A.3d 757

(2014). These decisions, at least in part, relied upon

our Supreme Court’s observation in Kitchens that ‘‘a

valid waiver precludes a finding that a jury instruction

constitutes plain error because a valid waiver means

that there is no error to correct.’’ State v. Kitchens,

supra, 299 Conn. 474 n.18. Because the defendant

waived his right to raise the present claim of instructional error, he is foreclosed from seeking consideration

under the plain error doctrine.

As for the defendant’s request that we exercise our

supervisory authority to review his claim of instructional error, we decline to do so. ‘‘[B]ypass doctrines

permitting the review of unpreserved claims such as

[State v. Golding, supra, 213 Conn. 233] and plain error,

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. Rather, the integrity of the judicial system serves as a unifying principle behind the seemingly

disparate use of our supervisory powers. . . . Thus, a

defendant seeking review of an unpreserved claim

under our supervisory authority must demonstrate that

his claim is one that, as a matter of policy, is relevant

to the perceived fairness of the judicial system as a

whole, most typically in that it lends itself to the adoption of a procedural rule that will guide the lower courts

in the administration of justice in all aspects of the

criminal process.’’ (Internal quotation marks omitted.)

State v. Leach, 165 Conn. App. 28, 35–36, 138 A.3d

445 (2016).

In the present case, although the defendant asserts

that we should adopt a rule that requires the trial court

to give a special credibility instruction in cases where

a state’s witness has been promised a benefit in

exchange for his or her testimony, our Supreme Court

already has rejected such a request.

In State v. Diaz, 302 Conn. 93, 113–14, 25 A.2d 594

(2011). our Supreme Court took the ‘‘opportunity to

reaffirm the well established common-law rule that it is

within the discretion of a trial court to give a cautionary
instruction to the jury whenever the court reasonably

believes that a witness’ testimony may be particularly

unreliable because the witness has a special interest in

testifying for the state and the witness’ motivations may

not be adequately exposed through cross-examination

or argument by counsel. In determining whether to give

such an instruction, the trial court may consider the

circumstances under which the witness came forward;

the seriousness of the charges with which the witness

has been charged or convicted; the extent to which the

state is in a position to provide a benefit to the witness

and the potential magnitude of any such benefit; the

extent to which the witness’ testimony is corroborated

by other evidence; the importance of the witness’ testimony to the state’s case; and any other relevant factor.

. . . Because the trial courts already have the discretion to give a special credibility instruction under

existing case law, there is no need for this court to

create a new supervisory rule requiring a special credibility instruction in cases where there is evidence that

the witness is particularly unreliable.’’ (Citation omitted.) Pursuant to this precedent, we decline to consider

the defendant’s request.

The judgment is reversed only with respect to the

conviction of conspiracy to commit robbery in the first

degree and the case is remanded with direction to

vacate that conviction and its accompanying sentence;

the judgment is affirmed in all other respects.

In this opinion the other judges concurred.

1 The defendant also was convicted offelony murderin violation of General

Statutes § 53a-54c. The court, however, vacated that conviction on January

9, 2015, pursuant to State v. Miranda, 317 Conn. 741, 120 A.3d 490 (2015)

(holding that vacatur is appropriate remedy for cumulative homicide convictions for murder and felony murder arising from killing of single victim).

2 A bullet recovered from an area near where the vehicle was positioned

and the two bullets recovered from the victim’s body were fired from the

same revolver. The revolver, however, was not recovered.

3 At trial, the defendant testified on his own behalf. He claimed that this

incident was a drug deal gone wrong, rather than a robbery, and that he

was with an individual he knew only as ‘‘Cash’’ or ‘‘Dove,’’ rather than

with Taylor.

The defendant testified that, originally, he had made an agreement with

the victim to purchase $6150 worth of drugs. When the defense counsel

asked him if he gave the victim the money in exchange for the drugs, the

defendant responded: ‘‘Yeah, not the $6150 because when I got there . . .

it was supposed to be coke, 100 grams coke, 50 grams crack. . . . But he

told me that he cooked all the coke up and made all crack. . . . So . . .

[the victim] took $150 off . . . so, I gave him $6000 . . . .’’ The defendant

explained that $4000 was his money, and Cash supplied the remaining $2000

for the purchase.

The defendant then testified that despite having paid the victim $6000 for

150 grams of crack, the victim only gave them 100 grams. When he and

Cash discovered that they had been shorted, they confronted the victim,

things got heated between Cash and the victim, and a struggle ensued. Cash

had a gun and during the struggle, the gun went off multiple times. He

testified that, in the midst of this struggle, he, Cash and the victim all got

shot. He further testified that, as this was occurring, Jackson ran toward

the vehicle and shot out the front passenger side window with a gun.

The jury was not required to credit this version of events, and, as we

explain later in this opinion, the evidence the jury reasonably could have

credited established the defendant’s guilt beyond a reasonable doubt.

4 On appeal, the defendant does not challenge the judgment of conviction
on the murder count or on the criminal possession of a firearm count.