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STATE OF CONNECTICUT v. ANTONIO J. INGLIS

(AC 35750)

DiPentima, C. J., and Gruendel and Alvord, Js.

Argued March 20—officially released July 1, 2014

(Appeal from Superior Court, judicial district of

Middlesex, Clifford, J.)

Conrad Ost Seifert, assigned counsel, for the appellant (defendant).

Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were Peter A. McShane, state’s

attorney, and Timothy J. Liston, former state’s attorney, for the appellee (state).
Opinion

GRUENDEL, J. The defendant, Antonio J. Inglis,

appeals from the judgment of conviction,rendered after

a jury trial, of two counts of murder in violation of

General Statutes § 53a-54a (a),1 and one count each of

capital felony in violation of General Statutes § 53a-54b

(7),2 assault in the first degree in violation of General

Statutes § 53a-59 (a) (5),3 and carrying a pistol without

a permit in violation of General Statutes § 29-35 (a).4 The

defendant claims that the court improperly declined

(1) to instruct the jury in accordance with two of his

proposed eyewitness identification instructions, and (2)

to provide a third party culpability instruction to the

jury.5 We affirm the judgment of the trial court.

The jury reasonably could have found that, in the

early hours of February 10, 2008, an altercation ensued

at the Cocktails on the Green nightclub (club) in Cromwell that left two men dead and another wounded. The

altercation began when the defendant repeatedly antagonized one of the victims, Tyrese Lockhart, a patron

seated at the bar with friends. Lockhart and his friends

eventually confronted the defendant and asked him to

leave Lockhart alone. A group of the defendant’s friends

that included his brother, Daren Walls, likewise encouraged the defendant to leave Lockhart alone. When Israel

Dandrade, a disc jockey who was performing at the

club that evening, announced ‘‘last call’’ soon thereafter,

Lockhart headed toward an exit with friends. At that

moment, the defendant brandished a chrome revolver

and fired several shots in Lockhart’s direction. One shot

struck Lockhart in the head, another struck Dandrade

in the eye, and a third grazed the cheek of Kenneth

Lewis, a cook at the club. Lockhart and Dandrade died

as a result of their respective gunshot wounds.

The defendant subsequently was arrested and

charged with the aforementioned offenses. A jury trial

followed, at which the state presented eyewitness testimony from multiple individuals identifying the defendant as the shooter.6 The theory advanced by the

defense was that, due to the facial similarity between

Walls and the defendant, those witnesses could not

distinguish between the two brothers to properly identify the shooter.7 At the conclusion of trial, the jury

found the defendant guilty on all counts. The court

rendered judgment in accordance with that verdict and

sentenced the defendant to a total effective term of life

imprisonment without the possibility of release, plus

twenty five years.8 From that judgment, the defendant

now appeals.

I

The defendant alleges instructional error on the issue

of eyewitness identification. Specifically, he claims that

the court improperly declined to instruct the jury in

accordance with two of his proposed instructions
regarding ‘‘identification based on own recollection’’

and ‘‘honest mistake.’’9

Practice Book § 42-18, which specifies the form and

content requirements of requests to charge, provides

in relevant part that ‘‘[w]hen there are several requests,

they shall be in separate and numbered paragraphs,

each containing a single proposition of law clearly and

concisely stated with the citation of authority upon

which it is based, and the evidence to which the proposition would apply. . . . ’’ (Emphasis added.) As our

Supreme Court repeatedly has explained, ‘‘[w]hile this

court does not favor unyielding adherence to rules of

procedure where the interests of justice are thereby

disserved . . . the ever increasing refinement of our

law justifies cooperation of counsel in stating requests

for jury instruction. The minor burden of cooperation

imposed by [Practice Book § 42-18] is neither unreasonable nor novel.’’ (Internal quotation marks omitted.)

State v. Corbin, 260 Conn. 730, 747, 799 A.2d 1056

(2002).

It is undisputed that the defendant did not comply

with the prerequisites of Practice Book § 42-18. His

request to charge on eyewitness identification did not

cite to any legal authority, nor did it specify any evidence to which the propositions allegedly applied. Significantly, this is not a case in which the record contains

‘‘substantial additional support . . . such as detailed

colloquies with the court and opposing counsel and a

postcharge exception [indicating that] . . . the trial

court is informed adequately of the factual and legal

bases for the instructional request.’’ State v. Smith, 262

Conn. 453, 466, 815 A.2d 1216 (2003). Rather, the record

before us is bereft of any discussion of this specific

issue; the defendant did not raise it during the charging

conference or take a postcharge exception. The court,

therefore, properly could have denied those requests

to charge on the basis of the defendant’s noncompliance

with § 42-18. See State v. Bettini, 11 Conn. App. 684,

690, 528 A.2d 1180 (‘‘[i]n the absence of compliance

with the rules of practice, the trial court is entitled to

deny a request to charge’’), cert. denied, 205 Conn. 804,

531 A.2d 937 (1987); accord State v. Tomasko, 238 Conn.

253, 262–63, 681 A.2d 922 (1996) (trial court properly

denied request to charge that did not comply with rules

of practice).

The defendant also argues that his claim is reviewable

pursuant to State v. Golding, 213 Conn. 233, 239–40,

567 A.2d 823 (1989). He is mistaken. As this court has

observed, ‘‘[n]ot every claim of instructional error is

constitutional in nature. State v. LaBrec, 270 Conn. 548,

557, 854 A.2d 1 (2004). Our Supreme Court repeatedly

has noted that it has recognized instructional claims as

raising constitutional issues only in matters relating to

the elements of an offense, burden of proof and the

presumption of innocence. Id.; see also State v. Schi-
appa, 248 Conn. 132, 165, 728 A.2d 466, cert. denied,

528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999);

State v. Dash, 242 Conn. 143, 151–52, 698 A.2d 297

(1997); State v. Walton, 227 Conn. 32, 64–65, 630 A.2d

990 (1993). The defendant’s claim does not pertain to

the elements of the offenses in question, the state’s

burden of proof or the presumption of innocence, nor

does the defendant make such an argument. Accordingly, it does not merit Golding review.’’ State v. Antwon

W., 118 Conn. App. 180, 201, 982 A.2d 1112 (2009), cert.

denied, 295 Conn. 922, 991 A.2d 568 (2010). That logic

applies equally in the present case.

Claims pertaining to the adequacy of a court’s instructions on misidentification are not constitutional in

nature. See State v. Cerilli, 222 Conn. 556, 567, 610 A.2d

1130 (1992) (identification instruction not constitutionally required); State v. Tillman, 220 Conn. 487, 501, 600

A.2d 738 (1991) (‘‘[e]ven if the court’s instructions were

less informative on the risks of misidentification than

they might have been, the issue is at most one of instructional error rather than of constitutional error’’), cert.

denied, 505 U.S. 1207, 112 S. Ct. 3000, 120 L. Ed. 2d 876

(1992); State v. Anderson, 20 Conn. App. 271, 281, 566

A.2d 436 (1989) (‘‘there is no constitutional right to an

instruction on the fallibility of eyewitness identifications’’), cert. denied, 213 Conn. 813, 569 A.2d 549 (1990).

As such, the defendant cannot satisfy the second prong

of Golding.

II

The defendant also claims that the court committed

reversible error when it declined to provide a third

party culpability instruction to the jury. We disagree.

The following additional facts, which the jury reasonably could have found, are relevant to this claim. Walls

was the defendant’s brother and bore a strong facial

resemblance to him. He did not physically resemble the

defendant. Unlike the defendant, who stood five feet,

seven inches tall with a ‘‘husky’’ and ‘‘more muscular’’

build, Walls was five feet, ten inches tall and had a

‘‘slim’’ physique. At the time of the shooting, Walls’ hair

was braided in cornrows, whereas the defendant’s hair

was short and curly.10 The two also were dressed differently at that time. The defendant wore a black knit cap,

a baggy grey jacket with yellow trim, jeans, and tan

boots. By contrast, Walls had on a fitted and lightcolored jacket with a large emblem on the upper left

chest, jeans, and no cap.

Lockhart was seated at the bar when the defendant

began antagonizing him. After several minutes, Lockhart turned around and said, ‘‘I don’t even know who

you are, who are you, leave me alone . . . what is the

problem?’’ As Lockhart turned back to the bar to finish

his drink, Walls intervened and attempted to calm the

defendant. Walls told the defendant to ‘‘let it go’’ and
made a ‘‘calm down’’ gesture with his hands. The defendant nevertheless refused to ‘‘let it go’’ and remained

agitated. Walls continued his efforts to calm the defendant, telling him to ‘‘chill, just let it go, back up . . . .’’11

Lockhart was fatally shot soon thereafter.

At trial, the defendant submitted a request to charge

that sought, inter alia, an instruction on third party

liability.12 During the charging conference, defense

counsel explained why he thought that instruction was

appropriate, stating: ‘‘There’s a lot of controversy as

to—with respect to where the shooter was and who

was shooting. . . . Certainly, based on the testimony

that’s brought out [Walls] as being—looking similar to

[the defendant with] one witness saying he looks

exactly alike, we believe it’s more than appropriate for

the court to give such an instruction . . . .’’ The court

responded: ‘‘The only reason I disagree with that [is]

your classic third party culpability is usually the defense

. . . after some kind of evidentiary hearing or motion,

is attempting to put in evidence of third party culpability

that someone else had the motive and opportunity and

there has to be corroboration, et cetera, that someone

else may have committed the crime. It’s usually somebody totally independent. Many times it happens in

those cases that are real ‘whodunit’ type of a case. A

situation here which, to me, is fairly typical . . . there’s

an issue where there is a shooting and there may be

more than one group involved and there may be an

issue [as] to who, in fact, pulled a trigger. And I don’t

see that as classic third party culpability because, in

this case, and I do feel it’s appropriate, I’m giving a

more extensive charge on identification of the person

who actually caused the death of the two individuals

here. And I think that type of charge, basically, covers

it. . . . I don’t think factually, there’s much of a question that two people died as a result of gunshot wounds,

but the main issue for [the jury] is who, in fact, did

that? So, I think that covers it adequately. I really don’t

see it as a classic third party culpability [situation], and

I think the instructions are adequate.’’

The charge ultimately provided to the jury contained

detailed instructions on eyewitness identification,

which the defendant concedes comport with the model

instructions provided on the Judicial Branch website.

In addition, the court specifically instructed the jury

that ‘‘you must be satisfied beyond a reasonable doubt

of the accuracy of the identification of the defendant

before you may find him guilty on any charge. In short,

you must consider the totality of the circumstances

effecting the identification. Remember, the state has

the burden to not only prove every element of the crime,

but also the identity of the defendant as the perpetrator

of the crime. You must be satisfied beyond a reasonable

doubt of the identity of the defendant as the one who

committed the crime or you must find the defendant

not guilty.’’
Our Supreme Court outlined the standards applicable

to claims concerning jury instructions on third party

culpability in State v. Arroyo, 284 Conn. 597, 607–610,

935 A.2d 975 (2007). It stated in relevant part: ‘‘[A]

defendant has a right to introduce evidence that indicates that someone otherthan the defendant committed

the crime with which the defendant has been charged.

. . . The defendant must, however, present evidence

that directly connects a third party to the crime. . . .

It is not enough to show that another had the motive

to commit the crime . . . nor is it enough to raise a

bare suspicion that some other person may have committed the crime of which the defendant is accused.’’

(Internal quotation marks omitted.) Id., 609. ‘‘Because

the standards governing the admissibility of third party

culpability evidence require that the trial court determine that such evidence be relevant to the jury’s determination of whether a reasonable doubt exists as to

the defendant’s guilt, we conclude that those same standards should govern whether a trial court should give

an appropriate instruction on third party culpability.

Put another way, if the evidence pointing to a third

party’s culpability, taken together and considered in

the light most favorable to the defendant, establishes

a direct connection between the third party and the

charged offense,ratherthan merely raising a bare suspicion that another could have committed the crime, a

trial court has a duty to submit an appropriate charge

to the jury.’’13 Id., 610. A trial court’s determination as

to whether the evidence in a given case establishes

a direct connection between the third party and the

criminal offense is subject to the abuse of discretion

standard of review. State v. Jackson, 304 Conn. 383,

424, 40 A.3d 290 (2012).

The defendant maintains that his request for a third

party culpability instruction was appropriate in light of

the evidence that (1) ‘‘Walls and the defendant look

alike, Walls was present when the shooting occurred,

and Walls had a motive to shoot Lockhart, namely, that

he was in a group that got in a confrontation with

Lockhart and his group’’; and (2) at least one witness

testified that the shooter’s hair was braided in cornrows.14 For the following reasons, that claim is

untenable.

A

As discussed in part I of this opinion, Practice Book

§ 42-18 obligated the defendant to apprise the court of

the evidentiary basis of the proposed charge. His written request to charge failed to do so, as it contained no

reference to any evidence whatsoever. At the charging

conference, defense counsel offered the following evidentiary basis for his proposed third party culpability

instruction: ‘‘Certainly, based on the testimony that’s

brought out [Walls] as being—looking similar to the

[defendant with] one witness saying he looks exactly
alike, we believe it more than appropriate for the court

to give such an instruction . . . .’’ The mere fact that

Walls bore a facial resemblance to the defendant and

was present at the club does not establish ‘‘a direct

connection between the third party and the charged

offense, rather than merely raising a bare suspicion that

another could have committed the crime, [such that] a

trial court has a duty to submit an appropriate charge

to the jury’’; State v. Arroyo, supra, 284 Conn. 610;

particularly when the jury heard ample testimony that

Walls attempted to calm the defendant and to diffuse

the situation immediately prior to the shooting. Accordingly, we cannot say that the court improperly declined

to instruct the jury on the proposed charge when the

evidentiary basis proffered by the defendant plainly did

not meet that standard.

B

To the extent that the defendant’s claim on appeal

is predicated on witness testimony allegedly identifying

the shooter as one with cornrows; see footnote 14 of

this opinion; he cannot prevail. That distinct claim was

never presented to the trial court as a basis for the

request to charge. As a result, the court did not have

an opportunity to rule on this matter. ‘‘[I]t is well established that [o]ur rules of procedure do not allow a

[party] to pursue one course of action at trial and later,

on appeal, argue that a path [the party] rejected should

now be open to him. . . . To rule otherwise would

permit trial by ambuscade.’’ (Internal quotation marks

omitted.) State v. Fourtin, 307 Conn. 186, 208, 52 A.3d

674, 688 (2012); see also Practice Book § 60-5 (appellate

courts ‘‘shall not be bound to consider a claim unless

it was distinctly raised at the trial’’). For that reason,

‘‘[o]nly in [the] most exceptional circumstances can

and will this court consider a claim, constitutional or

otherwise, that has not been raised and decided in the

trial court.’’ (Internal quotation marks omitted.) State

v. Canales, 281 Conn. 572, 579, 916 A.2d 767 (2007).

Furthermore, Golding review of this unpreserved

claim is unwarranted, as it ‘‘does not pertain to the

elements of the offenses in question, the state’s burden

of proof or the presumption of innocence . . . .’’ State

v. Antwon W., supra, 118 Conn. App. 201. The defendant

nevertheless relies on State v. Small, 242 Conn. 93, 104,

700 A.2d 617 (1997), which held that ‘‘a defendant who

has produced evidence supporting a legally recognized

defense is entitled, as a matter of law, to a theory of

defense instruction, and that the denial of such an

instruction is a violation of due process.’’ (Emphasis

added.) A fortiori, to establish a claim of constitutional

magnitude under Small, the requested charge must

implicate a legally recognized defense. See State v.

Rosado, 178 Conn. 704, 708, 425 A.2d 108 (1979) (‘‘only

when evidence indicating the availability of [a] legally

recognized [defense] is placed before a jury is a defen-
dant entitled as a matter of law to a theory of defense

instruction’’ [emphasis omitted]). Examples of legally

recognized defenses include entrapment; State v.

Golodner, 305 Conn. 330, 351, 46 A.3d 71 (2012); self

defense; State v. Havican, 213 Conn. 593, 603, 569 A.2d

1089 (1990); State v. Fletcher, 10 Conn. App. 697, 707,

525 A.2d 535 (1987), aff’d, 207 Conn. 191, 540 A.2d 370

(1988); duress; State v. Fuller, 199 Conn. 273, 277, 506

A.2d 556 (1986); and affirmative defenses. State v.

Small, supra, 242 Conn. 102. It is well established that

‘‘[a] claim of innocence or a denial of participation in

the crime charged is not a legally recognized defense

and does not entitle a defendant to a theory of defense

charge.’’ State v. Rosado, supra, 707; accord State v.

Golodner, supra, 352. A claim of third party culpability

is a denial of participation in the crime and, hence, not

a legally recognized defense. The defendant therefore

is not entitled to Golding review of that unpreserved

claim.

The judgment is affirmed.

In this opinion the other judges concurred.

1 General Statutes § 53a-54a provides in relevant part: ‘‘(a) A person is

guilty of murder when, with intent to cause the death of another person,

he causes the death of such person or a third person . . . .’’

2 General Statutes § 53a-54b provides in relevant part: ‘‘A person is guilty

of a capital felony who is convicted of any of the following . . . (7) murder

of two or more persons at the same time or in the course of a single

transaction . . . .’’

3 General Statutes § 53a-59 (a) provides in relevant part: ‘‘A person is

guilty of assault in the first degree when . . . (5) with intent to cause

physical injury to another person, he causes such injury to such person or

to a third person by means of the discharge of a firearm.’’

4 General Statutes § 29-35 (a) provides in relevant part: ‘‘No person shall

carry any pistol or revolver upon his or her person, except when such person

is within the dwelling house or place of business of such person, without

a permit to carry the same issued as provided in section 29-28. . . .’’

5 The defendant also invites this court to exercise its supervisory authority

over the administration of justice to require more detailed eyewitness identification jury instructions. We decline that invitation.

6 Brothers Maurice Overton and Andre Overton were at the club at all

relevant times. Maurice Overton testified at trial that he saw the defendant

holding a gun at the time of the shooting. Andre Overton similarly testified

that when the gunshots rang out, he turned and saw the defendant holding

a chrome gun in his hand. Andre Overton was approximately five feet behind

the defendant at that time. Qualnisha Lowe also identified the defendant as

the shooter at trial. She testified that, at the time of the shooting, she was

two feet from the defendant and ‘‘looked right in his face.’’ Nestor Diaz

testified that at the time of the shooting, he was approximately five feet

from the person holding the gun and was ‘‘confident’’ in his identification

of the defendant as the shooter.

Dana Middleton was socializing with Lockhart at the club and witnessed

the defendant antagonizing Lockhart prior to the shooting. He testified that

the defendant was approximately ten feet away and ‘‘kept dancing around

and pointing his fingers and grabbing his meat and making gestures like he

was making . . . threats, basically.’’ The defendant then approached Lockhart and Middleton and stated that ‘‘[t]hese motherfuckers don’t want it

with us. They don’t want no problems.’’ Middleton responded, ‘‘Yeah, you’re

right. Don’t nobody really want no problems.’’ As tensions rose,the defendant

was ‘‘[a]cting like a monkey; basically, like a monkey that wants to fight

somebody or have problems. . . . [A]cting like he’s ready to do something.

He’s ready to fight. He’s amped up. He can’t stand still.’’ The defendant

continued to gesture at Lockhart. Moments later as Middleton and Lockhart

were leaving the bar, Middleton heard gunshots and then saw Lockhart on

the ground with a hole in his head and brain matter on the floor. Middleton
then saw the defendant approximately five feet away holding a gun that

was pointed in his direction.

7

In his closing argument, defense counsel stated in relevant part that

‘‘[t]his is a misidentification case . . . . And you know it is the defense’s

assertion that [Walls] is the shooter in this case.’’

8 Specifically, the court sentenced the defendant to a term of life imprisonment without the possibility of release on the capital murder charge, with

which it merged the two murder counts. The court then sentenced the

defendant to a twenty year term of incarceration on the assault count and

a five year term of incarceration on the carrying a pistol without a permit

count, both of which the court ordered to run consecutively to the other sentences.

9

In his principal appellate brief, the defendant acknowledges that ‘‘[t]he

court’s instructions comport with the model instructions published on the

state of Connecticut’s Judicial [Branch] website . . . .’’

10 Cornrows is ‘‘a hairstyle in which the hair is divided into sections and

braided close to the scalp in rows.’’ State v. Elliston, 86 Conn. App. 479,

481 n.2, 861 A.2d 563 (2004), cert. denied, 273 Conn. 906, 868 A.2d 746 (2005).

11 Diaz testified at trial that ‘‘[r]ight before the shot went off . . . someone

was talking to [the defendant] trying to calm him down, or it seemed like

they were trying to, you know, talk some sense into him or something like

that.’’ Yakeima Blake testified that it was a taller ‘‘guy with the braids’’ who

attempted to calm the individual antagonizing Lockhart by the bar. Middleton

likewise testified that, as the defendant antagonized Lockhart, ‘‘there was

a person right next to him. . . . He looked like a taller version of [the

defendant].’’

12 The requested charge stated: ‘‘You have heard evidence in this case

from several eyewitnesses that someone other than [the defendant] committed these crimes. This type of evidence is known as third party guilt. As I

already made clearto you, the state has the burden of proving the defendant’s

guilt beyond a reasonable doubt. It must prove all the elements of the crime,

including that it was the defendant, and not some other person, who was

the perpetrator. This burden rests on the state at all times; the defendant

has no burden of proof whatsoever, on this or any other issue. The question

presented by third party culpability evidence is not whether the guilt of

another person has been proven, but whether, after a full consideration of

all the evidence in this case, there is a reasonable doubt that [the defendant]

was the perpetrator. Evidence that a third party may have committed this

crime may, if credited, tend to raise a reasonable doubt as to whether the

state has met its required burden to prove the identity of the defendant as

the perpetrator. If, after considering all of the evidence, you have a reasonable doubt as to the defendant’s guilt, you must find the defendant not

guilty. See generally State v. Echols, [203 Conn. 385, 524 A.2d 1143] (1987).’’

13 In his principal appellate brief, the defendant asks us to revisit that

authority, arguing that ‘‘imposing the ‘direct connection’ requirement is

overly restrictive.’’ We decline to do so.As an intermediate appellate tribunal,

this court is not free to depart from or modify the precedent of our Supreme

Court. See Hartford Steam Boiler Inspection & Ins. Co. v. Underwriters

at Lloyd’s & Cos. Collective, 121 Conn. App. 31, 48–49, 994 A.2d 262, cert.

denied, 297 Conn. 918, 996 A.2d 277 (2010).

14 At trial, Detective Denise LaMontagne of the Cromwell Police Department acknowledged that, as part of her investigation into the shooting, she

had a description from ‘‘at least one, maybe two witnesses, that the shooter

had cornrows.’’ Also, during his cross-examination, the following colloquy

transpired between Diaz and defense counsel:

‘‘[Defense Counsel]: Your statement also says that the shooter had cornrows coming down the back of his head. Correct?

‘‘[Diaz]: Yes, that it might—that it might be, yeah. Curly hair; might have

been cornrows.

‘‘[Defense Counsel]: Is your testimony that your statement says he might

have had cornrows or that he did?

‘‘[Diaz]: If I can read the statement, I’ll clarify it.

‘‘[Defense Counsel]: Certainly. You said either maybe or he did—was

wearing cornrows hanging out of his hat, though. Correct?

‘‘[Diaz]: From what I can remember, yeah.’’