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STATE OF CONNECTICUT v. DIRREN T. CONYERS

(AC 35411)

Beach, Alvord and Keller, Js.

Argued September 9—officially released November 17, 2015

(Appeal from Superior Court, judicial district of New

London, geographical area number ten, Jongbloed, J.)

Neal Cone, senior assistant public defender, with

whom, on the brief, was Lauren Weisfeld, public

defender, for the appellant (defendant).

Leon F. Dalbec, Jr., senior assistant state’s attorney,

with whom, on the brief, were Michael L. Regan, state’s

attorney, and Christa L. Baker, assistant state’s attorney, for the appellee (state).
Opinion

ALVORD, J. The defendant, Dirren T. Conyers,

appeals from the trial court’s judgment of conviction,

rendered after a jury trial, of manslaughterin the second

degree1

in violation of General Statutes § 53a-56 (a) (1),2

and unlawful restraint in the first degree in violation

of General Statutes § 53a-95.3 On appeal, the defendant

claims that the trial court improperly declined to give

the jury his proposed instruction that ‘‘one witness’

testimony, if believed, can raise reasonable doubt.’’4 We

affirm the judgment of the trial court.

The jury reasonably could have found the following

facts. In the early morning hours of April 13, 2008,

several people, including the defendant and the victim,

Jose Cartagena, gathered at a location on Miami Court

in Groton. Many of those individuals arrived after having patronized a bar in the area, and some were intoxicated. At some point, James ‘‘Budda’’ Smith attacked

the victim because Smith believed that the victim had

‘‘disrespected’’ the mother of his friend. After Smith

and the victim were pulled apart, the victim headed

toward his girlfriend’s vehicle. Smith returned to the

victim, and they resumed the fight. After that confrontation was interrupted, Smith was led to his sister’s vehicle. A third fight began shortly thereafter when the

victim was pulled down, by the defendant or another

person, and several individuals jumped or were pulled

into the fray. The defendant was at the bottom of the

pile with his arm positioned across the victim’s neck

in a chokehold. An estimated fifteen to twenty people

were involved in the altercation, and slowly they began

to extricate themselves from the pile. The defendant

and the victim were the only two individuals left on the

ground, and people in the crowd were shouting at the

defendant to release the victim. The defendant continued to hold tightly onto the victim’s neck until, eventually, he was pulled away from the victim. The victim

was unconscious, and his body was limp.

Officer Matthew Hammerstrom of the Groton Police

Department was dispatched to the scene at 2:25 a.m.

The victim was lying face up, and his eyes were partially

open and rolled back in his head. He was not breathing

and had no pulse. Emergency medical personnel

attempted to revive him, but they were not successful.

The victim was taken by ambulance to a hospital and

was pronounced dead at 3:14 a.m.

The cause of the victim’s death, according to Dr.

Harold Carver, the chief medical examiner for the state

of Connecticut, was traumatic asphyxia and neck compression. Dr. Carver concluded that the distribution of

injuries inside the victim’s neck was consistent with

the victim having been placed in a chokehold or similar

restraint. The defendant was arrested and charged with

the homicide. After a jury trial, he was found guilty of
the crimes of manslaughter in the second degree and

unlawful restraint in the first degree. The trial court

imposed a total effective sentence of ten years incarceration, execution suspended after nine years, followed

by five years of probation. This appeal followed.

The sole issue on appeal is a claim of instructional

error by the trial court. The defendant argues that the

court improperly denied his request to add an instruction to the court’s instructions relating to the burden

of proof. He claims that the instructions given, without

the added language, constituted an ‘‘unbalanced statement of the law’’ and were ‘‘prejudicially misleading,’’

thereby depriving the defendant of his constitutional

right to a fair trial.

The following additional facts and procedural history

are necessary for the resolution of this claim. After

evidence was completed and counsel presented their

closing arguments, the court charged the jury. In its

instructions relating to the state’s burden of proof, the

court stated: ‘‘The state has the burden of proving that

the defendant is guilty of the crimes with which he is

charged. The defendant does not have to prove his

innocence. This means that the state must prove beyond

a reasonable doubt each and every element necessary

to constitute the crimes charged.

‘‘Whether the burden of proof resting upon the state

is sustained depends not on the number of witnesses,

nor on the quantity of the testimony, but on the nature

and the quality of the testimony. Please bear in mind

that one witness’ testimony is sufficient to convict if

it establishes all the elements of the crime beyond a

reasonable doubt.’’ (Emphasis added.) The defendant

does not claim that the italicized language in the instructions is an incorrect statement of the law but, rather,

that it is an ‘‘unbalanced statement of the law without

a counter-weighting explanation . . . .’’ According to

the defendant, ‘‘it was error to instruct the jury that the

state could prove its whole case on a particular charge

through the testimony of a single witness, if he or she

was believed, but then to refuse to instruct the jury

similarly that the defendant could raise reasonable

doubt sufficient for acquittal through the testimony of

a single witness.’’

The state responds to the defendant’s argument by

emphasizing that the court’s instructions on the burden

of proof were not only a correct statement of the law;

see State v. Douglas F., 145 Conn. App. 238, 245, 73

A.3d 915, cert. denied, 310 Conn. 955, 81 A.3d 1181

(2013); but also that the instructions followed verbatim

the burden of proof instructions set forth in the Connecticut Criminal Jury Instructions.5 See Connecticut

Criminal Jury Instructions (4th Ed. 2008) § 2.2-2, available at http://www.jud.ct.gov/ji/Criminal/part2/2.2-

2.htm (last visited November 5, 2015). Further, the state

argues that, even if this court determines that the defen-
dant’s claim is constitutional in nature, it is not reasonably possible that the jury was misled. We agree with

the state.

With respect to claims of instructional impropriety,

the standard of review to be applied to the defendant’s

constitutional claim6

is ‘‘whether it is reasonably possible that the jury was misled. . . . In determining

whether the jury was misled, [i]t is well established that

[a] charge to the jury is not to be critically dissected

for the purpose of discovering possible inaccuracies of

statement, but it is to be considered rather as to its

probable effect upon the jury in guiding [it] to a correct

verdict in the case. . . . The charge is to be read as a

whole and individual instructions are not to be judged

in artificial isolation from the overall charge. . . . The

test to be applied to any part of a charge is whether

the charge, considered as a whole, presents the case

to the jury so that no injustice will result. . . . The

charge must be considered from the standpoint of its

effect on the jury in guiding [it] to a proper verdict.’’

(Internal quotation marks omitted.) State v. Pauling,

102 Conn. App. 556, 572–73, 925 A.2d 1200, cert. denied,

284 Conn. 924, 933 A.2d 727 (2007).

Our review of the defendant’s claim of instructional

error requires that we examine the court’s entire charge

to determine whether it was reasonably possible that

the jury could have been misled by the omission of the

requested instruction. ‘‘While a request to charge that

is relevant to the issues in a case and that accurately

states the applicable law must be honored, a [trial] court

need not tailor its charge to the precise letter of such

a request. . . . As long as [the instructions] are correct

in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions

as improper.’’ (Internal quotation marks omitted.) State

v. Lanasa, 141 Conn. App. 685, 693, 62 A.3d 572, cert.

denied, 308 Conn. 945, 66 A.3d 885 (2013).

Here, the defendant claims that by not including his

orally proposed instruction that one witness’ testimony,

if believed, could raise reasonable doubt, the charge

was not evenhanded and he was deprived of his constitutional right to a fair trial.7

‘‘We do not dispute that

there may be some extreme circumstances in which

the trial court may frame its instructions to the jury

in such a one-sided fashion that the instructions may

amount to a position of advocacy in violation of the

defendant’s constitutional right to an impartial tribunal.’’ State v. Walton, 227 Conn. 32, 64, 630 A.2d 990

(1993). This is not such a case. The defendant claims

that the burden of proof charge, particularly the italicized language in that charge, assisted the prosecution.

He argues that without adding the orally requested

charge, this ‘‘could [readily] have constituted a

weighting of the scales in favor of the [state].’’ (Internal

quotation marks omitted.)
The defendant’s argument has no merit. The jury

could not possibly have been misled by the court’s

instructions. The defendant is focusing unduly on one

isolated aspect of the charge. We have reviewed the

entire charge and have determined thatthe court continually emphasized that the state had the burden of proving every element of each crime charged beyond a

reasonable doubt.8 The instructions, taken in their

entirety, made it manifestly clearthat if the jury believed

the testimony of one witness and that testimony negated

an element of the crime charged, the jury would have

to find the defendant not guilty as to that crime. Not

only was the requested instruction not necessary, it

also was potentially confusing and misleading.9

Our review of the charge as a whole leads us to

conclude that the instructions were correct in law,

adapted to the issues, and sufficient to guide the jury

in its deliberations. We cannot say that the court’s

refusal to add the defendant’s orally requested instruction was improper. Further, we conclude that there is

no reasonable possibility that the jury was misled by

the instructions as given by the court.

The judgment is affirmed.

In this opinion the other judge concurred.

1 The defendant was charged with the offense of manslaughter in the first

degree in violation of § 53a-55 (a) (3). The jury found the defendant not

guilty as to that charge, but found him guilty of the lesser included offense

of manslaughter in the second degree in violation of General Statutes § 53a56 (a) (1).

2 General Statutes § 53a-56 (a) provides in relevant part: ‘‘A person is

guilty of manslaughter in the second degree when: (1) He recklessly causes

the death of another person . . . .’’

3 General Statutes § 53a-95 (a) provides: ‘‘A person is guilty of unlawful

restraint in the first degree when he restrains another person under circumstances which expose such other person to a substantial risk of physical

injury.’’

4 The above-quoted language was not included in the written requests to

charge filed by defense counsel, nor did defense counsel request that language during the charging conference. Only after the court gave its charge

to the jury, and the court asked counsel to state any objections to the

instructions as given, did defense counsel orally request the court to add

that proposed language to its instructions relating to the burden of proof.

The prosecutor objected, and the court denied the defendant’s request.

5 We note that counsel discussed the language in various instructions with

the court prior to the court’s charge to the jury. In discussing the elements of

manslaughter in the first degree, defense counsel stated: ‘‘Conduct creating a

grave risk of death. It’s actually on the website, grave, and we’ve agreed to

do exactly what’s on the website.’’

6 The state argues that ‘‘the defendant attempts to place a constitutional

tag on the claim he has raised [and] it should be deemed not to be constitutional in nature.’’ We assume, without deciding, that the defendant’s claim

is constitutional in nature, but conclude that it is not reasonably possible

that the jury was misled by the court’s instructions.

7 The defendant cites the United States Supreme Court case of Wardius

v. Oregon, 412 U.S. 470, 93 S. Ct. 2208, 37 L. Ed. 2d 82 (1973), in support

of his following claim: ‘‘Giving an instruction that assists the prosecution

but refusing to instruct on its corollary which assists the defense violates

the requirement of balance inherent in the concept of a fair trial.’’ The

defendant heavily relies on Wardius throughout his appellate brief. In Wardius, ‘‘Oregon prevented a criminal defendant from introducing any evidence

to support his alibi defense as a sanction for his failure to comply with a

notice-of-alibi rule which, on its face, made no provision for reciprocal
discovery.’’ Id., 471–72. Oregon had no provision that required it to reveal

the names and addresses of witnesses it planned to use to refute an alibi

defense. Id., 475. The court held that the due process clause of the fourteenth

amendment forbids enforcement of notice-of-alibi rules unless reciprocal

discovery rights are given to criminal defendants. Id., 475–76. The present

case is not similar to Wardius, particularly when, as we conclude, the

instructions were balanced and evenhanded.

8

In its charge, the court reminded the jury at least eight times that it had

to determine that the state had proven the existence of every element of

each crime charged beyond a reasonable doubt to find the defendant guilty

of that crime. Further, the court gave the instruction that ‘‘[t]he weight of

the evidence presented by each side does not depend on the number of

witnesses testifying on one side or the other. You must consider all the

evidence in the case, and you may decide that the testimony of a smaller

number of witnesses on one side has greater weight than that of a larger

number on the other side.’’(Emphasis added.) This instruction is evenhanded

and undermines the defendant’s argument that the court misled the jury as

to the testimony of a single witness.

9 As argued by the state, ‘‘It is at least arguable that the additional language

requested by the defendant’s trial attorney would actually have been harmful

to the defendant.By including language thatthe testimony of a single witness,

if believed, is sufficient to raise a reasonable doubt, the court would be

suggesting that the jury must affirmatively find that the defendant proved

that a reasonable doubt existed. . . . Including the defendant’s proposed

language . . . would suggest that the jury had to credit something in the

evidence it heard in court in order to find a reasonable doubt. This is an

incorrect statement of the law . . . .’’