State v. Miller ( 2014 )

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STATE OF CONNECTICUT v. REGINALD MILLER
(AC 35417)
Lavine, Bear and West, Js.*
Argued March 7—officially released June 3, 2014
(Appeal from Superior Court, judicial district of
Hartford, geographical area number twelve, Fuger, J.)
Allison M. Near, assigned counsel, for the appel-
lant (defendant).
Maria del Pilar Gonzalez, special deputy assistant
state’s attorney, with whom, on the brief, were Gail P.
Hardy, state’s attorney, and Jaclyn Preville, deputy
assistant state’s attorney, for the appellee (state).
Opinion
BEAR, J. The defendant, Reginald Miller, appeals
from the judgment of conviction of conspiracy to com-
mit forgery in the second degree in violation of General
Statutes §§ 53a-48 (a) and 53a-139 (a) (1), aiding and
abetting in forgery in the second degree in violation of
General Statutes §§ 53a-8 and 53a-139 (a) (1), conspir-
acy to commit larceny in the fifth degree in violation
of General Statutes §§ 53a-48 (a) and 53a-125a, and
attempt to commit larceny in the fifth degree in violation
of General Statutes §§ 53a-49 and 53a-125a.1 On appeal,
the defendant claims that the court improperly admitted
evidence of uncharged misconduct. Additionally, the
state alerted both the defendant and this court to the
trial court’s failure to give an accomplice instruction
to the jury. Thereafter, we directed the parties to file
supplemental briefs addressed to this issue. The defen-
dant now also claims that the trial court committed
plain error in failing to give the jury an accomplice
instruction. We affirm the judgment of the trial court.
The following facts, which reasonably could have
been found by the jury, and procedural history are nec-
essary to our consideration of the defendant’s claims.
The defendant and Loretta Berenz had known each
other for some time and, previously, had been in an
intimate relationship. Berenz called the defendant by
his street name, ‘‘Cookie.’’ Berenz and the defendant
used and purchased drugs together, and engaged in
other criminal activity. The defendant approached
Berenz about cashing fraudulent checks, and Berenz
agreed to participate. Each time the defendant asked
her to cash a fraudulent check, she did so.
A couple of days before March 7, 2012, the defendant
and Berenz were ‘‘plotting on cashing [a] check that
[the defendant] printed up,’’ and the defendant picked
up Berenz on March 7 to take her to the Farmington
Bank in Glastonbury to cash the check. When they
reached the bank, the defendant gave Berenz the check,
which was made out to her, and instructed her on what
to do once inside the bank. The defendant was supposed
to wait for Berenz in a parking lot across the street
from the bank. Berenz went into the bank and gave the
check to a teller who began to process it but then
took the check into an office. Berenz knew there was a
problem, walked out of the bank and smoked a cigarette
while she telephoned the defendant. She could not see
his car in the parking lot, and her calls repeatedly went
directly into voice mail. The police then arrived, and
Berenz initially refused to talk to them.
Berenz was arrested and taken to the Glastonbury
Police Department, where she was fingerprinted. After
the passage of several hours, Berenz realized that the
defendant was not coming to get her, and she decided
to talk to the police and explain what had happened.
Initially, she could not remember the defendant’s full
name, but could remember only his street name. She
gave the police a full description of him, his car, and
his address, however. She also gave the police his tele-
phone number and showed them the call history from
her telephone.
On March 22, 2012, Berenz spoke with Anthony Dejul-
ius, a detective with the Manchester Police Department,
because a warrant had been issued for her arrest for
cashing another check that the defendant allegedly had
made. At that time, Berenz remembered the defendant’s
full name and gave that information to Dejulius. Addi-
tionally, while being held at York Correctional Institu-
tion, Berenz spoke with Michael Furlong, a sergeant
with the Glastonbury Police Department, giving him
more information about the defendant and other checks
that she allegedly had cashed for him. Thereafter, the
defendant was arrested for his involvement in the March
7, 2012 check cashing incident.
Prior to the defendant’s trial, Berenz, who had an
extensive criminal history that dated back to when she
was fourteen years old, pleaded guilty to charges related
to the March 7, 2012 incident. She was awaiting sentenc-
ing when she testified for the state at the defendant’s
trial. Following the presentation of evidence and closing
argument, the jury found the defendant guilty of con-
spiracy to commit forgery in the second degree, aiding
and abetting in forgery in the second degree, conspiracy
to commit larceny in the fifth degree, and attempt to
commit larceny in the fifth degree as a lesser included
offense within the crime of aiding and abetting larceny
in the fifth degree. Subsequently, the defendant pleaded
guilty to the charge of being a persistent serious felony
offender for having previously been convicted of lar-
ceny in the third degree as charged in a part B informa-
tion. After accepting the verdict and rendering a
judgment of conviction, the court sentenced the defen-
dant to a total effective term of fifteen years incarcera-
tion, followed by five years of special parole. This
appeal followed.
I
The defendant first claims that the court ‘‘erred by
admitting uncharged misconduct evidence that the
defendant engaged in a prior forgery with . . .
Berenz.’’2 He argues that ‘‘the evidence failed to satisfy
any exceptions to Connecticut Code of Evidence § 4-
5, and its prejudicial impact far outweighed its probative
value.’’ Specifically, the defendant contends that ‘‘[i]n
addition to testifying that the defendant furnished the
forged check that she attempted to cash at Farmington
Bank, [Berenz] testified that one month prior to the
incident in question, the defendant had provided her
with a forged check to cash at the Manchester Wal-
Mart. No other detail was provided about the Wal-Mart
incident.3 The simple allegation that the defendant con-
spired with her on a prior occasion to commit forgery,
without any detail connecting it to the crime charged,
rendered the evidence irrelevant and improper as evi-
dence of a common plan or scheme.’’ (Footnote added.)
The state argues that the court properly admitted this
evidence to show a common plan or scheme, and, in
the alternative, to show intent and lack of mistake. We
agree that the court properly admitted the testimony
under the common plan or scheme exception.
‘‘As a general rule, evidence of prior misconduct is
inadmissible to prove that a criminal defendant is guilty
of the crime of which the defendant is accused. . . .
Such evidence cannot be used to suggest that the defen-
dant has a bad character or a propensity for criminal
behavior. . . . On the other hand, evidence of crimes
so connected with the principal crime by circumstance,
motive, design, or innate peculiarity, that the commis-
sion of the collateral crime tends directly to prove the
commission of the principal crime, is admissible. The
rules of policy have no application whatever to evidence
of any crime which directly tends to prove that the
accused is guilty of the specific offense for which he
is on trial. . . . We have developed a two part test to
determine the admissibility of such evidence. First, the
evidence must be relevant and material to at least one
of the circumstances encompassed by the exceptions
[set forth in § 4-5 (b) of the Connecticut Code of Evi-
dence]. . . . Second, the probative value of the evi-
dence must outweigh its prejudicial effect. . . .
Section 4-5 (b) of the Connecticut Code of Evidence
provides, in relevant part: Evidence of other crimes,
wrongs or acts of a person is admissible . . . to prove
intent, identity, malice, motive, common plan or
scheme, absence of mistake or accident, knowledge, a
system of criminal activity, or an element of the crime,
or to corroborate crucial prosecution testimony.’’ (Cita-
tion omitted; internal quotation marks omitted.) State
v. Dillard, 132 Conn. App. 414, 424, 31 A.3d 880 (2011),
cert. denied, 303 Conn. 932, 36 A.3d 694 (2012).
‘‘Our Supreme Court has identified two categories of
common scheme or plan cases. See State v. Randolph,
284 Conn. 328, 343, 933 A.2d 1158 (2007). In the first
category, which consists of what most accurately may
be described as true common scheme or plan cases, the
nature of the charged and uncharged crimes combined
with connecting evidence, if any, gives rise to a permis-
sive inference that an overall scheme or plan existed
in the defendant’s mind, and that the crimes were exe-
cuted in furtherance of that plan. In the second category
of cases, which consists of what most accurately may be
described as signature cases, the existence of a modus
operandi, logo, or signature, which, when considered
in combination with other factors, such as the proximity
of time and place of commission, gives rise to a permis-
sive inference that the crimes were executed in further-
ance of an overall common scheme or plan. . . . Id.’’
(Internal quotation marks omitted.) State v. Dougherty,
123 Conn. App. 872, 878, 3 A.3d 208, cert. denied, 299
Conn. 901, 10 A.3d 521 (2010); see also C. Tait & E.
Prescott, Connecticut Evidence (4th Ed. 2008) § 4.19.13,
p. 168. We conclude that under the facts of the present
case, the first category applies.
A review of Berenz’ trial testimony reveals that she
testified that she had given information to the Manches-
ter police after discovering that a warrant had been
issued for her arrest because of another instance where
she had ‘‘cashed a phony check that [the defendant]
had made.’’ Following an objection to that testimony
and a discussion outside of the presence of the jury,
she then explained that she had given information to
the Manchester police ‘‘because of another check that
[she] had cashed . . . [that she] had got[ten] from [the
defendant].’’ The defendant claims that this specific
testimony should have been excluded because the
uncharged misconduct was not shown to have sufficient
factual similarities to the charged misconduct, and,
therefore, it was not relevant to show common plan or
scheme. He further argues that the uncharged miscon-
duct evidence was overly prejudicial and that it was
not harmless. We disagree.
Unlike signature misconduct, the admissibility of true
common plan or scheme misconduct ‘‘does not depend
on the degree of similarity shared by the charged and
uncharged crimes, but, rather, on the extent to which
it is probative of the existence of an overall plan in the
defendant’s mind.’’ State v. Randolph, supra, 284 Conn.
356. ‘‘[T]he nature of the charged and uncharged crimes,
combined with connecting evidence, if any, may give
rise to an inference that a common scheme or plan
existed.’’ Id.
In the present case, the defendant was charged with
crimes related to the forgery and cashing of a check
by and with Berenz at the bank. The evidence showed
that the defendant created the forged check, contacted
Berenz to cash the check, selected where Berenz would
cash the check, gave Berenz the check, and drove
Berenz to the location he had selected. The uncharged
misconduct pertained to another instance where the
defendant created the forged check and gave it to
Berenz to cash. In each instance, the connecting evi-
dence was the involvement of the defendant and
Berenz, the defendant’s coconspirator in this case, the
creation of the forged check, and the defendant’s deliv-
ery of the forged check to Berenz for her to cash. We
conclude that the nature of the charged and uncharged
misconduct, and the connecting evidence, properly
gave rise to an inference that a common scheme or
plan existed in the defendant’s mind. See id.
The defendant next argues that the probative value
of the uncharged misconduct evidence was outweighed
by its prejudicial effect. Specifically, he argues that
allowing the jury to hear that he gave Berenz a forged
check on more than one occasion ‘‘had the effect of
depicting the defendant as one with the propensity to
commit the crime[s] charged.’’ We disagree.
‘‘We will make every reasonable presumption in favor
of upholding the trial court’s [evidentiary] ruling, and
only upset it for a manifest abuse of discretion. . . .
[Thus, our] review of such rulings is limited to the
questions of whether the trial court correctly applied
the law and reasonably could have reached the conclu-
sion that it did. . . . The question, moreover, is not
whether the evidence is highly probative, but simply
whether its probative value outweighs undue preju-
dice.’’ (Citation omitted; internal quotation marks omit-
ted.) State v. Hill, 307 Conn. 689, 700–701, 59 A.3d
196 (2013).
Our Supreme Court ‘‘has identified four factors rele-
vant to determining whether the admission of otherwise
probative evidence is unduly prejudicial. These are: (1)
where the facts offered may unduly arouse the [jurors’]
emotions, hostility or sympathy, (2) where the proof
and answering evidence it provokes may create a side
issue that will unduly distract the jury from the main
issues, (3) where the evidence offered and the count-
erproof will consume an undue amount of time, and
(4) where the defendant, having no reasonable ground
to anticipate the evidence, is unfairly surprised and
unprepared to meet it.’’ Id., 698.
The defendant argues that the uncharged misconduct
evidence showed that he had a propensity to commit
crimes similar to the ones charged, and that Berenz’
testimony inflamed the jury’s sympathy because she
portrayed herself as a victim. We disagree and conclude
that none of the factors relevant to determining whether
the admission of otherwise probative evidence is unduly
prejudicial are present in this case. Here, the court
heard oral argument on the state’s motion to introduce
evidence of uncharged misconduct, and the court heard
additional argument at the time the evidence was
offered during Berenz’ testimony. The court cautioned
the state, limiting the questioning and the testimony of
Berenz related to the instance of uncharged miscon-
duct. Additionally, the court instructed the jury that the
uncharged misconduct evidence was not admitted ‘‘to
prove the bad character, propensity or criminal tenden-
cies of the defendant . . . [but rather was] admitted
solely to show or establish that the commission of the
crimes follows a common plan or scheme or a system
of criminal activity being engaged in by the defendant.’’
In the absence of a record that demonstrates otherwise,
‘‘[w]e presume that the jury followed the instructions
as given.’’ State v. Webster, 308 Conn. 43, 58 n.11, 60
A.3d 259 (2013).
Reviewing the court’s ruling with appropriate defer-
ence, we conclude that the defendant has failed to prove
that the court abused its discretion in permitting Berenz
to testify about the prior incident of misconduct as
evidence of a common plan or scheme.
II
The defendant also claims that the trial court commit-
ted plain error in failing to give the jury an accomplice
instruction despite the defendant’s failure to request
such an instruction or take an exception. Although we
agree that the court committed error by failing to give
an accomplice instruction, the defendant has failed to
demonstrate that the error was harmful. Accordingly,
we are not persuaded that there is any manifest injustice
in this case.
‘‘[The plain error] doctrine, codified at Practice Book
§ 60-5, is an extraordinary remedy used by appellate
courts to rectify errors committed at trial that, although
unpreserved, are of such monumental proportion that
they threaten to erode our system of justice and work
a serious and manifest injustice on the aggrieved party.
[T]he plain error doctrine . . . is not . . . a rule of
reviewability. It is a rule of reversibility. That is, it is a
doctrine that this court invokes in order to rectify a
trial court ruling that, although either not properly pre-
served or never raised at all in the trial court, nonethe-
less requires reversal of the trial court’s judgment, for
reasons of policy. . . . In addition, the plain error doc-
trine 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 confi-
dence in the judicial proceedings. . . . Plain error is a
doctrine that should be invoked sparingly. . . .
Implicit in this very demanding standard is the notion
. . . that invocation of the plain error doctrine is
reserved for occasions requiring the reversal of the
judgment under review. . . .
‘‘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 discernable 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 complete record and an obvious error
are prerequisites for plain error review, they are not,
of themselves, sufficient for its application. . . . [I]n
addition to examining 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 appro-
priate. A party cannot prevail under plain error unless
it has demonstrated that the failure to grant relief will
result in manifest injustice. . . . In State v. Fagan, [280
Conn. 69, 87, 905 A.2d 1101 (2006), cert. denied, 549
U.S. 1269, 127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007)], we
described the two-pronged nature of the plain error
doctrine: [An appellant] 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.’’ (Citation omitted; emphasis omitted; internal
quotation marks omitted.) State v. Sanchez, 308 Conn.
64, 76–78, 60 A.3d 271 (2013).
The defendant contends that the only evidence
against him was the testimony of his accomplice and
coconspirator, Berenz, and that, therefore, the court’s
failure to instruct the jury on the unreliability of her
testimony amounted to plain error, clearly harmful to
him, and that a failure to reverse the judgment of convic-
tion will result in manifest injustice. The state argues
that although the court’s omission of this instruction
was error, and the error was obvious, it did not amount
to plain error.4 We agree that the error, although obvi-
ous, was not demonstrated by the defendant to be harm-
ful, and, therefore, that there is no manifest injustice
in this case.
‘‘Generally, a defendant is not entitled to an instruc-
tion singling out any of the state’s witnesses and high-
lighting his or her possible motive for testifying falsely.
. . . An exception to this rule, however, involves the
credibility of accomplice witnesses. . . . [When] it is
warranted by the evidence, it is the court’s duty to
caution the jury to scrutinize carefully the testimony if
the jury finds that the witness intentionally assisted in
the commission, or if [he or she] assisted or aided or
abetted in the commission, of the offense with which
the defendant is charged. . . . [I]n order for one to be
an accomplice there must be mutuality of intent and
community of unlawful purpose. . . .
‘‘With respect to the credibility of accomplices, we
have observed that the inherent unreliability of accom-
plice testimony ordinarily requires a particular caution
to the jury [because] . . . [t]he conditions of character
and interest most inconsistent with a credible witness,
very frequently, but not always, attend an accomplice
when he testifies. When those conditions exist, it is the
duty of the [court] to specially caution the jury. . . .
Moreover, because an instructional error relating to
general principles of witness credibility is not constitu-
tional in nature . . . the defendant bears the burden
of establishing that the error deprived him of his due
process right to a fair trial.’’ (Citations omitted; empha-
sis omitted; internal quotation marks omitted.) State v.
Moore, 293 Conn. 781, 823–24, 981 A.2d 1030 (2009),
cert. denied, 560 U.S. 954, 130 S. Ct. 3386, 177 L. Ed.
2d 306 (2010).
With these principles in mind, we conclude that the
court committed error in this case by failing to give an
accomplice instruction to the jury. Nevertheless, ‘‘the
fact that the instruction . . . was mandated . . . does
not, in and of itself, establish the existence of manifest
injustice necessary for plain error.’’ State v. Sanchez,
supra, 308 Conn. 83. In this case, the defendant has
failed to demonstrate that he was harmed by the lack
of an accomplice instruction.
Berenz testified that she and the defendant ‘‘plotted’’
to produce and cash the check on March 7, 2012. She
admitted that the state had charged her in connection
with her involvement in this crime, that she had pleaded
guilty, and that she was awaiting sentencing. She stated
that she had not been offered a deal by the state in
exchange for her testimony and that she was not testi-
fying in order to get a more lenient sentence. The defen-
dant’s attorney thoroughly cross-examined Berenz
regarding her motives for testifying. The jury was aware
that Berenz was incarcerated and awaiting sentencing.
During closing argument, defense counsel also argued
that Berenz’ credibility was suspect and that the jury
should keep in mind that she was awaiting sentencing.
Defense counsel told the jury that it was the sole judge
of credibility and that Berenz had a lengthy criminal
record. She also told the jury to keep in mind that it
should assess Berenz’ motives for testifying, keeping
her criminal record in mind.
Additionally, although the court failed to give a spe-
cific accomplice instruction, it did give a general credi-
bility instruction telling the jury, in relevant part, that
it must consider whether the witnesses had ‘‘any inter-
est in the outcome of this case or any bias or prejudice
concerning any party or any matter involved in the case
. . . .’’ The court also told the jury that Berenz was the
defendant’s coconspirator and accomplice, and that it
could use her prior criminal record in assessing her
credibility. It further instructed the jury that it was
required to resolve issues of credibility and that it must
use its common sense.
On the basis of the record, we agree with the state
that the jury was apprised of the reasons why it should
weigh Berenz’ testimony carefully and thoroughly, and
that the defendant has failed to demonstrate that the
court’s failure to give a specific accomplice instruction
was harmful. Accordingly, we conclude that our
affirmance of the judgment of conviction will not result
in 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.
1
The conviction of conspiracy to commit larceny in the fifth degree was
merged into the conviction of conspiracy to commit forgery in the second
degree, and the court imposed sentence on the conviction of conspiracy to
commit forgery in the second degree. The defendant did not raise an issue
before the trial court or during this appeal with regard to the merger of the
conviction of those charges. See State v. Rosado, 147 Conn. App. 688, 694
n.3, 83 A.3d 351, cert. denied, 311 Conn. 928, 86 A.3d 1058 (2014); State v.
Wright, 144 Conn. App. 731, 748, 73 A.3d 828, cert. granted, 310 Conn. 945,
80 A.3d 907, 908 (2013). Accordingly, we do not rule on the propriety of
the merger.
2
The state had filed a notice that it intended to present evidence of
uncharged misconduct ‘‘as proof of a conspiracy . . . as well as evidence
of a common plan or scheme and/or as a system of criminal activity.’’ The
defendant objected, thereby preserving this issue for our review.
3
A close review of the trial transcript reveals that Berenz did not state
where this additional check cashing incident had occurred. The prosecutor
referred to this as the Wal-Mart incident only during argument outside of
the presence of the jury and in the notice of intent to present evidence of
uncharged misconduct.
4
The state also argued during oral argument before this court that under
our traditional use of the plain error doctrine, any error that amounts to
plain error cannot be harmless because, in order for an error to amount to
plain error, the error must result in a manifest injustice. Therefore, it argues,
it would like our Supreme Court to reexamine State v. Moore, 293 Conn.
781, 823, 981 A.2d 1030 (2009), cert. denied, 560 U.S. 954, 130 S. Ct. 3386,
177 L. Ed. 2d 306 (2010), and clarify the decision. It also questions whether
the failure to give an accomplice instruction could ever result in manifest
injustice, especially because it does not implicate a constitutional right:
‘‘The fact that the failure to give an accomplice instruction does not even
implicate a constitutional right; State v. Brown, 187 Conn. 602, [613–14],
447 A.2d 734 (1982); further undermines the suggestion that it nevertheless
implicates that extremely rare type of right that is essential to a fundamen-
tally fair and reliable result. Moreover, if affording [review under State v.
Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989)] to nonconstitutional
claims of instructional error regarding general principles of credibility ‘trivi-
alize[s] the constitution’; State v. Bond, 49 Conn. App. 183, 192, 713 A.2d
906, cert. denied, 247 Conn. 915, 722 A.2d 808 (1998); then transforming the
plain error standard into a mere demonstration of harm, when it comes to
those same, unpreserved, nonconstitutional claims, cannot help but trivialize
the class of ‘truly extraordinary’ cases for which plain error is usually
reserved.’’