State v. Underwood
A trial court is correct to deny a proposed instruction regarding the credibility of accomplice testimony, if there is insufficient evidence from which a jury reasonably could conclude that the witness was an accomplice. Following a jury trial, Earl Underwood was convicted of multiple crimes including burglary in the first degree, assault in the second degree and two counts each of attempt and conspiracy to commit robbery in the first degree. The charges arose from a failed attempt to rob a drug purchaser of money in a hotel room. The robbers fled after the victim was accidentally shot. The defendant appealed claiming, inter alia, that the court improperly denied his request for an accomplice instruction for the testimony of Ashley Mazurowski, a prosecution witness. The Appellate Court affirmed the judgment. The defendant argued that specific evidence in the record, if viewed most favorably towards the requested charge, supported the determination that a jury reasonably could have concluded that Mazurowski was an accomplice or unindicted coconspirator. The defendant pointed to testimony that Mazurowski, the girlfriend of Dennis Dove, who drove the defendant and another to the hotel in Mazurowski's car, overheard the robbery plans. Although Mazurowski testified that she told Dove not to participate in the crime and believed he would not, the defendant argued that the evidence supported a finding that Mazurowski knew the details of the plan, an essential first step in aiding in the commission of the plan. The defendant pointed to other evidence, including that Mazurowski conversed privately with Dove before disposing of the gun. The evidence, even when viewed most favorably to the requested charge, did not support the inferences suggested. No evidence showed that Mazurowski was aware of the robbery until its completion or that her sole priority then was anything other than attempting to rid her apartment of the gun. It did not reveal that she had a mutual intent or purpose to commit the robbery. The jury was aware of Mazurowksi's pending tampering with the evidence charges. The court's general credibility instructions addressed the defendant's concerns, while not improperly tainting the testimony of a witness for whom the evidence did not support the conclusion that she was an accomplice. A double jeopardy claim also was rejected.