State v. Torres , 178 Conn. App. 29 ( 2017 )

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STATE OF CONNECTICUT v. JULIO TORRES
(AC 38571)
Keller, Mullins and Lavery, Js.*
Syllabus
Convicted, after a jury trial, of the crime of murder, the defendant appealed,
claiming, inter alia, that certain portions of the trial court’s instruction
to the jury on reasonable doubt and the cumulative effect of those
portions of the instruction constituted plain error. This court affirmed
the defendant’s conviction, holding that he had waived his challenge
to the reasonable doubt instruction. Thereafter, the defendant, on the
granting of certification, appealed to our Supreme Court, which
remanded the case to this court for consideration of the defendant’s
claim of plain error. Held that there was no merit to the defendant’s
claim that the trial court’s reasonable doubt instruction constituted plain
error; our Supreme Court has consistently upheld instructions with
language similar to the portions of the instruction challenged by the
defendant, and has rejected the cumulative error approach with respect
to claims of instructional error, and this court was bound by and would
not reevaluate Supreme Court precedent.
Argued September 13—officially released November 7, 2017
Procedural History
Information charging the defendant with the crime
of murder, brought to the Superior Court in the judicial
district of Hartford and tried to the jury before Dewey,
J., verdict and judgment of guilty, from which the defen-
dant appealed to the Supreme Court, which transferred
the appeal to this court, which affirmed the judgment
of the trial court; thereafter, the defendant, on the grant-
ing of certification, appealed to the Supreme Court,
which remanded the case to this court for consideration
of the defendant’s claim of plain error. Affirmed.
James B. Streeto, senior assistant public defender,
for the appellant (defendant).
Bruce R. Lockwood, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Robin D. Krawczyk, senior assistant
state’s attorney, for the appellee (state).
Opinion
LAVERY, J. The defendant, Julio Torres, was con-
victed of murder in violation of General Statutes § 53a-
54a and was sentenced to fifty years of imprisonment.
He appealed, claiming, among other things, that por-
tions of the trial court’s instruction on reasonable doubt
constituted plain error. The defendant also claimed that
the cumulative effect of these portions of the instruction
constituted plain error. This court affirmed the defen-
dant’s conviction, holding that he waived his challenge
to the reasonable doubt instruction under State v.
Kitchens, 299 Conn. 447, 10 A.3d 942 (2011). See State
v. Torres, 168 Conn. App. 611, 627–29, 148 A.3d 238(2016). The defendant filed a petition for certification
to appeal, claiming that this court improperly declined
to review the reasonable doubt instruction for plain
error. Our Supreme Court granted the petition and
remanded the case to this court for consideration of
his plain error claim in light of its recent decision in
State v. McClain, 324 Conn. 802, 812–15, 155 A.3d 209(2017), which held that a Kitchens waiver does not
preclude appellate relief under the plain error doctrine.
State v. Torres, 325 Conn. 919, 163 A.3d 618 (2017).
After further review, we affirm the judgment of the
trial court.
The following facts are pertinent to our decision. At
trial, the court gave the following instruction to the jury
concerning reasonable doubt: ‘‘The meaning of reason-
able doubt can be arrived at by emphasizing the word
reasonable. It is not a surmise, a guess or mere conjec-
ture. It is not a doubt raised by anyone simply for the
sake of raising a doubt. It is such a doubt as in serious
affairs that concern you, you would pay attention to;
that is, such a doubt as would cause reasonable men
and women to hesitate to act upon it in matters of
importance. It is not a hesitation springing from any
feelings of pity or sympathy for the accused or any
other person who might be affected by your decision.
It is, in other words, a real doubt, an honest doubt, a
doubt that has . . . its foundation in the evidence or
lack of evidence. It is doubt that is honestly entertained
and is reasonable in light of the evidence after a fair
comparison and careful examination of the entire evi-
dence.’’ (Emphasis added.)
The defendant claims that the following portions of
that instruction constitute plain error: that reasonable
doubt ‘‘is not a surmise, a guess or mere conjecture’’;
that ‘‘[i]t is such a doubt as in serious affairs that con-
cern you, you would pay attention to; that is such a
doubt as would cause reasonable men and women to
hesitate to act upon it in matters of importance’’; and
that it is ‘‘a real doubt, an honest doubt, a doubt that
has . . . its foundation in the evidence [or] lack of
evidence.’’ The defendant also claims that the cumula-
tive effect of these portions of the instruction consti-
tutes plain error. We disagree.
‘‘An appellate court addressing a claim of plain error
first must determine if the error is indeed plain in the
sense that it is patent [or] readily [discernible] on the
face of a factually adequate record, [and] also . . .
obvious in the sense of not debatable. . . . This deter-
mination clearly requires a review of the plain error
claim presented in light of the record. Although a com-
plete record and an obvious error are prerequisites for
plain error review, they are not, of themselves, suffi-
cient for its application. . . . [T]he plain error doctrine
is reserved for truly extraordinary situations [in which]
the existence of the error is so obvious that it affects
the fairness and integrity of and public confidence in
the judicial proceedings. . . . [I]n addition to examin-
ing the patent nature of the error, the reviewing court
must examine that error for the grievousness of its
consequences in order to determine whether reversal
under the plain error doctrine is appropriate. A party
cannot prevail under plain error unless it has demon-
strated that the failure to grant relief will result in mani-
fest injustice. . . . [Previously], we described the two-
pronged nature of the plain error doctrine: [An appel-
lant] cannot prevail under [the plain error doctrine]
. . . unless he demonstrates that the claimed error is
both so clear and so harmful that a failure to reverse
the judgment would result in manifest injustice. . . .
‘‘It is axiomatic that, [t]he plain error doctrine . . .
is not . . . a rule of reviewability. It is a rule of revers-
ibility. That is, it is a doctrine that this court invokes
in order to rectify a trial court ruling that, although
either not properly preserved or never raised at all in
the trial court, nonetheless requires reversal of the trial
court’s judgment . . . for reasons of policy. . . . Put
another way, plain error review is reserved for only
the most egregious errors. When an error of such a
magnitude exists, it necessitates reversal.’’ (Citations
omitted; emphasis omitted; footnote omitted; internal
quotation marks omitted.) State v. McClain, supra, 324
Conn. 812–14.
After reviewing the defendant’s claim against this
standard, we conclude that it is without merit because
it is well settled that the trial court’s instruction on
reasonable doubt did not constitute plain error, let
alone error. In fact, our Supreme Court has consistently
upheld instructions with language similar to the por-
tions of the instruction that the defendant challenges
here. See, e.g., State v. Coward, 292 Conn. 296, 317, 972
A.2d 691 (2009) (rejecting challenges to instruction that
reasonable doubt is ‘‘a real doubt, an honest doubt’’
and ‘‘the kind of doubt which, in serious affairs which
concern you in everyday life, you would pay heed and
attention to’’ [internal quotation marks omitted]); State
v. Davis, 283 Conn. 280, 332, 929 A.2d 278 (2007)
(rejecting challenges to instruction that reasonable
doubt is not ‘‘a surmise, a guess or a conjecture’’ and
‘‘a real or honest doubt’’ [internal quotation marks omit-
ted]); State v. Ross, 269 Conn. 213, 335, 849 A.2d 648(2004) (rejecting challenges to instruction that reason-
able doubt ‘‘is such a doubt as would cause reasonable
men and women to hesitate to act upon it in matters
of importance’’ and ‘‘a real doubt, an honest doubt’’
[internal quotation marks omitted]); State v. Ferguson,
260 Conn. 339, 369–71, 796 A.2d 1118 (2002) (rejecting
challenge to instruction that reasonable doubt is ‘‘a real
doubt,’’ ‘‘an honest doubt,’’ and ‘‘such a doubt that as
in the serious affairs of everyday life you would pay
heed to’’ [internal quotation marks omitted]); State v.
Lemoine, 256 Conn. 193, 201–204, 770 A.2d 491 (2001)
(rejecting challenges to instruction that reasonable
doubt is ‘‘more than a guess or surmise’’ and ‘‘a real
doubt, an honest doubt, a doubt which has its founda-
tion in the evidence or lack of evidence’’ [internal quota-
tion marks omitted]); State v. Velasco, 253 Conn. 210,
246–49, 751 A.2d 800 (2000) (rejecting challenge to
instruction that reasonable doubt is ‘‘a real doubt, an
honest doubt, a doubt which has its foundation in the
evidence or lack of evidence’’ [internal quotation marks
omitted]); State v. Griffin, 253 Conn. 195, 204–205, 749
A.2d 1192 (2000) (rejecting challenges to instruction
that reasonable doubt is ‘‘not a surmise, a guess or mere
conjecture,’’ ‘‘a real doubt, an honest doubt, a doubt
that has its foundations in the evidence or lack of evi-
dence,’’ and ‘‘such a doubt, as in serious affairs that
concern you, you would heed, that is, such a doubt
as would cause reasonable men and women to act in
matters of importance’’ [internal quotation marks omit-
ted]). ‘‘It is axiomatic that we are bound by our Supreme
Court precedent.’’ (Internal quotation marks omitted.)
State v. Colon, 71 Conn. App. 217, 246, 800 A.2d 1268,
cert. denied, 261 Conn. 934, 806 A.2d 1067 (2002).
Furthermore, we reject the defendant’s claim that
even if the individual portions of the instruction were
not erroneous, their cumulative effect constituted plain
error. The defendant relies on Gaines v. Kelly, 202 F.3d
598, 607 (2d Cir. 2000), as support for the notion that
several components that individually are not error can
be aggregated to create error, but our Supreme Court,
citing State v. Harris, 182 Conn. 220, 230–33, 438 A.2d
38 (1980), rejected the cumulative error approach
regarding claims of instructional error in State v. Till-
man, 220 Conn. 487, 505, 600 A.2d 738 (1991), cert.
denied, 505 U.S. 1207, 1125 S. Ct. 3000, 120 L. Ed. 2d 876(1992). In addition, this court previously has rejected
arguments to ‘‘abandon our Supreme Court precedent
[in Tillman] and adopt the cumulative error approach
followed by the United States Court of Appeals for the
Second Circuit [in Gaines].’’ State v. Billie, 123 Conn.
App. 690, 705–706, 2 A.3d 1034 (2010). ‘‘Whether a
Supreme Court holding should be reevaluated and pos-
sibly discarded is not for this court to decide.’’ (Internal
quotation marks omitted.) Id., 706.
On the basis of our Supreme Court’s precedent, we
conclude that it is not debatable that the instruction
on reasonable doubt given by the trial court in the
present case did not constitute plain error, let alone
error. Therefore, our inquiry ends there, and we do not
address any claim of manifest injustice.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.