7 Conn. App. 367 | Conn. App. Ct. | 1986
The defendant is appealing from a judgment rendered after conviction by a jury of the crimes of carrying a pistol without a permit in violation of General Statutes § 29-35 and of violating the state’s dependency producing drug law, General Statutes (Rev. to 1979) § 19-481 (a).
The jury could reasonably have found the following facts. On September 12, 1980, Bridgeport police officers Earl Mellow and Alonzo Johnson responded to the report of a shooting. Upon their arrival at the scene, a woman directed them to the downstairs area of the building and stated that a shooting was occurring there. The officers then proceeded to the rear of the building and walked down a stairwell where they looked through a window that was partially covered with tape. The officers pounded on the door and announced to the occupants that they were the police. Mellow observed a man, who was holding a gun in his hand, standing between a bar and a wall and looking in the direction of the officers. The gun was described by the officer as “being shiny.” At that point, Mellow went to the side of the building and looked through a window which contained a fan. Johnson remained at the door. From Mellow’s viewpoint, he again saw the same man peering towards the door where Johnson had been positioned. Mellow put his gun through an opening in the window and ordered the man inside to drop his gun. The individual turned and fired in the direction of Mellow who returned the fire and ducked back. The man fired a second shot and Mellow returned a second shot. Following this exchange, Mellow again looked through the window but could not see the man. He then ran back to the rear of the building where he pushed open the door, which was then partially opened, and ordered all in the premises to come out. The defendant, later identified as Roberto Garcia, exited from the building bleed
The two officers, Mellow and Johnson, then went into the basement area where they discovered three handguns. Mellow identified one of the handguns as the “shiny” weapon he had seen in the defendant’s hand. This weapon, when found by the officers, was covered with blood. The basement area where the incident occurred was being used as an “after hours” club.
The defendant was tried before a jury on a five count information. Counts one and two charged the defendant with attempted murder, in violation of General Statutes §§ 53a-49 and 53a-54a (a). Count three charged the defendant with carrying a pistol without a permit, in violation of General Statutes § 29-35. Count four charged the defendant with possession of a stolen firearm, in violation of General Statutes § 53a-212 (a), and count five charged him with a violation of the state’s dependency producing drug law, General Statutes (Rev. to 1979) § 19-481 (a).
A jury trial was conducted and, on September 9, 1983, in response to the defendant’s motion for acquittal on all counts, the court, Stodolink, J., granted the motion as to counts two and four and denied it as to the remaining counts. The jury returned a verdict of not guilty as to the first count of attempted murder and found the defendant guilty of the remaining counts of carrying a pistol on the person without a permit and of violating the state’s dependency producing drug law.
On September 29, 1983, the court sentenced the defendant to a period of incarceration of one year on the weapon charge and a period of not less than two
The defendant claims the trial court erred (1) in denying his motion in limine relating to a prior conviction, (2) in denying his motion for a mistrial, (3) in admitting into evidence the cocaine allegedly seized from him, (4) in denying his motion for acquittal of the weapon charge, and (5) in pronouncing the total effective sentence imposed on him. We find nothing in the record of the trial court that supports these claims of error.
The trial court, after giving due consideration to the defendant’s motion in limine, barred the state from introducing evidence of two of the defendant’s prior felony convictions: A1969 conviction for possession of a dangerous drug because of its remoteness in time and because it did not serve as a test of veracity; and a conviction for the possession of a firearm by a convicted felon because it closely tracked and was, therefore, prejudicial with regard to the weapon charges for which the defendant was on trial. The court, however, did allow, for impeachment purposes, evidence of the defendant’s conviction of a federal charge of conspiracy to make an extortionate extension of credit. This crime essentially consists of an extension of credit with the threat to do violence if the debt remained unpaid.
Our Supreme Court has, on numerous occasions, spoken to the issue of the admissibility of prior felony con
The defendant’s categorization of his federal conviction as one not demonstrating dishonesty is unpersuasive. An extension of credit coupled with the threat of violence if the debt remained unpaid is a form of larceny. Our General Statutes § 53a-119 (5)
The defendant’s next claim, that the court erred in denying his motion for a mistrial, is likewise misplaced. During the state’s cross-examination of the defendant, the prosecutor asked him if he was under the influence of cocaine at the time of the shooting. Before the defendant answered the question, his counsel objected. The jury was excused and the defendant moved for a mistrial. The motion was denied and the state was allowed to ask the defendant if he was under the influence of any chemical substance. To this question the defendant responded, “[n]o.” The defendant’s counsel did not object to the court’s procedure.
Although we agree that a prosecutor is not an ordinary advocate, and that it is his duty to see that justice is done and to refrain from improper methods calculated to produce prejudice and wrongful decisions by the jury; State v. Falcone, 191 Conn. 12, 22, 463 A.2d 558 (1983); State v. Ubaldi, 190 Conn. 559, 574, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983); prosecutorial misconduct must rise to a greater level of impropriety than that manifest in this case to warrant the extraordinary relief of
The defendant also claims as error the admission into evidence of a ten dollar bill and the white powder substance contained thereon. Evidence adduced at trial reasonably supports a finding of the following facts. Upon the defendant’s admission into the hospital, a nurse took from his person a ten dollar bill which was folded and contained a quantity of white powder later identified as cocaine. She turned the bill containing the substance over to the police who processed it through the regular procedures employed for the identification and preservation of evidence. The evidence adduced at trial supports a finding that the procedures employed by the police sufficiently tracked the course of the evidence through the various parties whose responsibil
The defendant’s next claim, that the trial court erred when it denied his motion for acquittal on the weapons charge, is not sustainable. General Statutes § 29-35 prohibits the carrying of a pistol without a permit. General Statutes § 29-27 defines a pistol as a firearm having a barrel of less than twelve inches in length. We agree with the defendant that the state carries the burden of proving that the pistol, attributed to him, meets the statutory definition. State v. Brown, 173 Conn. 254, 260, 377 A.2d 268 (1977). The state must prove each element of the offense beyond a reasonable doubt. State v. Morrill, 193 Conn. 602, 608, 478 A.2d 994 (1984); State v. DelVecchio, 191 Conn. 412, 419, 464 A.2d 813 (1984). We agree with the trial court that there was sufficient evidence before the jury to support their finding that the weapon involved was a pistol. The definition was read to the jury, they had the actual weapon before them as a full exhibit, and they had the opportunity to examine it during their deliberation. The
The defendant’s final claim of error, that the court committed reversible error in its pronouncement of a total effective sentence for the defendant, is wholly without merit. The court sentenced the defendant to
There is no error.
In this opinion the other judges concurred.
General Statutes (Rev. to 1979) § 19-481 (a) is now § 21a-279 (a).
General Statutes § 53a-119 defines various types of larceny. Subsection (5) defines “extortion” and in pertinent part provides: “A person obtains property by extortion when he compels or induces another person to deliver such property to himself or a third person by means of instilling in him a fear that, if the property is not so delivered, the actor or another will: (A) Cause physical injury to some person in the future . . . . ”