Connecticut Judicial Branch
Case Number: AC 38419
Judge: Lubbie Harper, Jr.
Court: Connecticut Judicial Branch
Plaintiff's Attorney: Sarah Hanna
assistant state’s attorney
Matthew C. Gedansky
Andrew Reed Durham
assistant state’s attorney
Defendant's Attorney: Mary A. Beattie
Description: The defendant, Vaughn Outlaw, appeals from the judgment of conviction, rendered after a jury trial, of assault public safety personnel in connection with his assault of an employee of the Department of Correction (department) in violation of General Statutes § 53a-167c (a) (5).1 On appeal, the defendant asserts that the court committed plain error when it did not include detailed language on the use of unwarranted or excessive force as part of its instructions to the jury on the second element of § 53a-167c (a) (5), which pertains to whether the employee was acting in the performance of his duties. The state contends that the defendant explicitly waived his claim at trial and failed to demonstrate that the court committed an obvious error resulting in manifest injustice. Because we agree with the state’s latter argument, we affirm the judgment of the trial court.
The jury reasonably could have found the following facts. On December 1, 2013, correction officers Thomas Langlois (victim) and Katie McClellan were escorting the defendant back from the shower room to his cell at Northern Correctional Institute. After returning the defendant back to his cell, the victim removed the defendant’s leg shackles and stood outside the cell door.2 McClellan and the victim testified that the defendant,whowasinstructedtoremainonthebed,followed the victim toward the cell door and spat on the victim’s face, mouth and eyes before the door closed.3 Security footage of the incident was shown to the jury.
On April 8, 2015, following a jury trial, the defendant was convicted of assault of public safety personnel in violation of § 53a-167c (a) (5). On June 25, 2015, the court sentenced the defendant to forty-two months of incarceration to be served consecutively with the sentence he was already serving. This appeal followed.
On appeal, the defendant asserts that because he had testified that the victim used excessive force, the court committed plain error when it failed to include in its jury instructions, as part of the second element of § 53a167c (a) (5), the ‘‘detailed language explaining that any unwarranted or excessive force is not within the performance of the officer’s duties.’’ (Emphasis omitted.) As a result of this omission, the defendant argues the jury may have been misled into believing that the victim was performing his duties as a correction officer when he allegedly mishandled and ‘‘monkey pawed’’ the defendant while escorting him to and from his cell. See footnote 3 of this opinion. The state contends, inter alia, that the defendant cannot establish that the court committed plain error by failing to provide the requested instruction because the defendant explicitly informed the court that he was not seeking a detailed instruction on self-defense to the assault charge.
The following additional facts are necessary for our discussion. The record reflects that the court had provided counsel with a draft of its proposed jury instructions on April 2, 2015. Thereafter, on April 6, 2015, the court held an in-chambers conference to discuss ‘‘some things relating to the charge . . . .’’ On April 7, 2015, during an on-the-record discussion between the court and defense counsel regarding the jury instructions, the following exchange occurred:
‘‘TheCourt:Thereissometimesaself-defenseportion utilized in defining in the performance of duties. As I understand it, that’s not being requested by the defendant in this case; am I correct?
‘‘[Defense Counsel]: Yes, Your Honor.
‘‘The Court: So that’s out. All right.’’
OnApril8,2015,aftercompletingitscharge,thecourt asked the parties, outside the presence of the jury, if they had any exceptions to the charge.4 The defendant objected only to the intent element of the charge.5
As an initial matter, we address the state’s assertion that the defendant explicitly waived his claim by ‘‘inform[ing] the trial court that he was not seeking the instruction that he now claims was plain error not to provide.’’ We conclude that although the defendant is not entitled to an instruction based on a theory of selfdefense,itisunclearfromtherecordwhetherthedefendant explicitly waived his claim that the court failed to include a detailed instruction on a theory of defense that the victim was not acting within the performance of his duties when he allegedly used unreasonable or unnecessary physical force.
Both parties agree that ‘‘when a defendant has been charged only with violations of § 53a-167c . . . he is not entitled to an instruction on self-defense.’’ State v. Davis, 261 Conn. 553, 573, 804 A.2d 781 (2002); State v. Baptiste, 133 Conn. App. 614, 626 n.16, 36 A.3d 697 (2012), appeal dismissed, 310 Conn. 790, 83 A.3d 591 (2014); State v. Salters, 78 Conn. App. 1, 5, 826 A.2d 202, cert. denied, 265 Conn. 912, 831 A.2d 253 (2003). Rather, ‘‘[o]ur Supreme Court has determined that in a case in which a defendant is charged with assault of a peace officer or interfering with an officer, in lieu of a self-defense instruction, the court must provide a detailed instruction that the state must establish that the police officer had been acting in the performance of his duty and that a person is not required to submit to the unlawful use of physical force during the course of an arrest . . . .’’ (Emphasis added; internal quotation marks omitted.) State v. Dunstan, 145 Conn. App. 384, 390, 74 A.3d 559, cert. denied, 310 Conn. 958, 82 A.3d 626 (2013). ‘‘This court has further concluded that an officer’s exercise of reasonable force is inherent in
the performance of duties, and therefore unreasonable and unnecessary force by a police officer would place the actions outside the performance of that officer’s duties.’’ Id.; see also State v. Davis, supra, 571 (‘‘a detailed instruction that the state must establish that the police officer had been acting in the performance of his duty and that a person is not required to submit to the unlawful use of physical force during the course of an arrest . . . stands in lieu of a self-defense instruction’’); State v. Baptiste, supra, 627 (‘‘[o]ur Supreme Court has determined that a defendant is entitled to a detailed instruction on the element of ‘in the performance of his duties’ in lieu of an instruction regarding self-defense’’); State v. Salters, supra, 9 (‘‘[t]he proper defense . . . was that [the correction officer] was not acting within the performance of his duties when he used physical force on the defendant’’).
‘‘The rationale behind our Supreme Court’s determination in Davis was based on the requirement that the state must prove beyond a reasonable doubt that the officer was acting in the performance of his duties as an element of § 53a-167c and the fact that excessive or unreasonable physical force by the officer would place his actions outside the performance of his duties. . . . The defendant would be entitled to an acquittal if the state failed to prove that the use of force was within the performance of the officer’s duties.’’ (Citation omitted; footnote omitted.) State v. Salters, supra, 78 Conn. App. 5–6. ‘‘A correctional officer, therefore, is statutorily authorized to use reasonable physical force in the performance of his duties. Clearly, if the defendant claimed that the force used was excessive or unnecessary, the proper defense in this case would have been that [the correction officer’s] use of physical force on the defendant was not in the performance of his duties.’’ (Emphasis added.) Id., 8.6
For this reason, the colloquy that occurred regarding the defense instruction appears ambiguous. When the court asked whether the defendant was seeking a ‘‘selfdefense portion utilized in defining in the performance of duties’’ and requested clarification that it is ‘‘not being requested by the defendant in this case,’’ defense counsel responded ‘‘yes.’’ One interpretation of defense counsel’s response is that the defendant explicitly was affirming that he had not requested a self-defense instruction, to which the parties knew, as a matter of law, he was not entitled. Another interpretation is that the defendant explicitly was waiving his claim of unreasonable or unnecessary physical force, because the court’s question focused specifically on ‘‘defining in the performance of duties’’ as pertaining to the second element of § 53a-167c. See footnote 6 of this opinion. In the absence of contrary evidence, ‘‘[j]udges are presumed to know the law . . . and to apply it correctly.’’ (Internal quotation marks omitted.) In re Harlow P., 146 Conn. App. 664, 674 n.3, 78 A.3d 281, cert. denied,
310 Conn. 957, 81 A.3d 1183 (2013); accord State v. Reynolds, 264 Conn. 1, 29 n.21, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004). Nevertheless, on the basis of this brief colloquy alone, the record is unclear as to whether the defendant was (1) agreeing with the court that he was not entitled to a theory of self-defense; (2) explicitly waiving his claim for a detailed instruction on a defense of unreasonable or unnecessary physical force in defining the performance of duties; or (3) doing both. Although we are unable to make a determination as to explicit waiver, for the reasons set forth in part II of this opinion, we conclude that the defendant cannot prevail on his claim of plain error.
The defendant seeks to prevail on his unpreserved claim of instructional error pursuant to the plain error doctrine. We initially note that, in State v. Kitchens, 299 Conn. 447, 482–83, 10 A.3d 942 (2011), our Supreme Court concluded that ‘‘when the trial court provides counsel with a copy of the proposed jury instructions, allows a meaningful opportunity for their review, solicits comments from counsel regarding changes or modifications and counsel affirmatively accepts the instructions proposed or given, the defendant may be deemed to have knowledge of any potential flaws therein and to have waived implicitly the constitutional right to challenge the instructions on direct appeal.’’
Our review of the record shows that the court gave the parties its draft instructions five days in advance, provided ample opportunity for their review and solicited comments from counsel. The defendant raised an objection only to the intent element of the jury charge.7 Although the record is unclear as to whether the defendant explicitly waived his claim of instructional error, he nevertheless implicitly waived his claim pursuant to the standard set forth in Kitchens. Recently, however, our Supreme Court reasoned in State v. McClain, 324 Conn. 802, 815, 155 A.3d 209 (2017), that a Kitchens waiver does not foreclose claims of plain error. As such, we consider the defendant’s claim of instructional error under the plain error doctrine.
‘‘It is well established that 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 [and nonconstitutional in nature], 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 preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s
judgment . . . for reasons of policy. . . . In addition, the 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. . . . Plain error is a doctrine that should be invoked sparingly.’’ (Footnote omitted; internal quotation marks omitted.) State v. Jamison, 320 Conn. 589, 595–96, 134 A.3d 560 (2016).
There are two prongs 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.’’ (Emphasis in original; internal quotation marks omitted.) Id., 597; accord State v. McClain, supra, 324 Conn. 812. ‘‘With respect to the first prong, the claimed error must be patent [or] readily [discernible] on the face of a factually adequate record, [and] also . . . obvious in the sense of not debatable. . . . With respect to the second prong, an appellant must demonstrate that the failure to grant relief will result in manifest injustice.’’ (Citations omitted; internal quotation marks omitted.) State v. Jackson, 178 Conn. App. 16, 20–21, A.3d (2017).
In the present case, the defendant states: ‘‘Plain error occurred when the trial court did not instruct the jury that any unwarranted or excessive force by [the victim] was not within the performance of his duties. This instructional language was required by the facts of the case and settled case law.’’8 The essence of the defendant’s argument is that because he had testified that the victim mishandled and ‘‘monkey pawed’’ him—allegations of unwarranted or excessive force—the victim was not acting in performance of his duties as a correction officer when the defendant spat on the victim; thus, a reasonable jury could determine that the second elementof§ 53a-167cwasnotsatisfiedwhentheassault occurred. The defendant contends that the court failed to provide the detailed instruction in element two of the Connecticut Criminal Jury Instructions 4.3-1.9
‘‘To prevail under the first prong of a plain error analysis,anappellantmustdemonstratethatthealleged error is obvious in the sense of not debatable. . . . [T]his inquiry entails a relatively high standard, under which it is not enough for the [appellant] simply to demonstrate that his position is correct. Rather, the [appellant] must demonstrate that the claimed impropriety was so clear, obvious and indisputable as to warrant the extraordinary remedy of reversal.’’ (Internal quotation marks omitted.) State v. Jackson, supra, 178 Conn. App. 24. The court’s instruction to the jury, which appears to mirror the criminal jury instructions, instructed that ‘‘there was testimony that [the victim] hadconcluded escorting[the defendant]to hiscell from
the shower area at the time of the alleged saliva, spitting or hurling.’’ The jury heard testimony from McClellan, the victim and the defendant regarding the events surrounding the assault and made a credibility determination. More importantly, the defendant never raised this defense of unreasonable or unnecessary physical force at any point during the trial proceedings.
Wealsonoteatemporaldisconnectinthedefendant’s argument.Thedefendantarguesthatbecausethevictim mishandled him while escorting him to and from the shower room and ‘‘monkey pawed’’ him after taking off his leg shackles—actions that occurred and concluded prior in time to his spitting on the victim while he was standing outside the cell door—the victim therefore was not acting in the performance of his duties at the time of the assault. This retaliatory conduct stands in contrast to the application of this defense as discussed in State v. Davis, supra, 261 Conn. 557 (defendant fought with police officers during arrest); State v. Baptiste, supra, 133 Conn. App. 618 (defendant fought with police officers during drug investigation); State v. Salters, supra, 78 Conn. App. 3 (defendant fought with correction officers during melee). We conclude that the defendant has not established the required patent or readily discernible error in the jury instruction as to warrant the extraordinary remedy of reversal.
In summary, under the plain error doctrine, we do not find that the court committed any error, let alone error‘‘soobviousthatitaffectsthefairnessandintegrity of and public confidence in the judicial proceedings.’’ (Internal quotation marks omitted.) State v. Jamison, supra, 320 Conn. 596. Nor has the defendant demonstrated that failure to include the detailed language on the use of unreasonable or unnecessary physical force resulted in manifest injustice. The court instructed the jury in accordance with the elements of § 53a-167c, and the defendant did not raise or request any detailed instruction on a defense. ‘‘The charge was presented to the jury in such a way that no injustice was done to the defendant.’’ State v. Salters, supra, 78 Conn. App. 9. Accordingly, the defendant cannot prevail on his claim of plain error.
Outcome: The judgment is affirmed.