96 Conn. App. 42 | Conn. App. Ct. | 2006
The defendant, Jimmy R. Gardner, Jr., appeals from the judgment of conviction, rendered after a jury trial, of burglary in the first degree in violation of General Statutes § 53a-101 (a) (1), criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c (a) (1), risk of injury to a child in violation of General Statutes § 53-21 (a) (1) and assault in the third degree in violation of General Statutes § 53a-61. On appeal, the defendant claims that (1) the trial court improperly permitted the state to amend its substituted information orally at trial as to the burglary charge by specifying that the crime that the defendant intended to commit during his unlawful entry was threatening, (2) the court improperly denied his motion in limine and (3) the state violated his rights under the due process and equal protection clauses of the fourteenth amendment to the United States constitution by exercising a peremptory challenge in a racially discriminatory manner. We affirm the judgment of the trial court.
The jury reasonably could have found the following facts. On August 21, 2001, the defendant lived in a third floor apartment in Waterbury with T
The police arrived. Alter entering the second floor apartment, Waterbury crime laboratory supervisor Lucinda Lopes found a shell casing from a Winchester, Smith & Wesson .40 caliber bullet on top of one couch in the living room, a black holster on the other and a recently made bullet hole in the wall. After examining the bullet hole, Lopes estimated the trajectory and found a Winchester .40 caliber bullet across the street where she estimated the trajectory would end. Marshall Robinson, a firearms examiner, testified that the bullet found on the street was consistent with one having been fired from the shell casing found inside the second floor apartment.
Following a trial, on January 30, 2004, the jury found the defendant guilty of burglary in the first degree, criminal possession of a pistol or revolver, risk of injury to a child and assault in the third degree. Thereafter, the defendant was sentenced to nineteen years incarceration with ten years special parole. This appeal followed. Additional facts and procedural history will be set forth as necessary.
The defendant first claims that the state was permitted to amend its substituted information orally at trial, thereby depriving him of his constitutional rights to fair notice of the charges against him, to present a defense, to due process and to a fair trial under the fifth, sixth and fourteenth amendments to the United States constitution, and article first, § 8, of the Connecticut constitution.
The following procedural history is relevant to our resolution of the defendant’s claim. The state initially charged the defendant by way of short form information with burglary in the first degree in violation of § 53a-101 (a) (1), criminal possession of a pistol or revolver in violation of § 53a-217c (a) (1), risk of injury to a child in violation of § 53-21 (a) (1), assault in the third degree in violation of § 53a-61, reckless endangerment in the first degree in violation of General Statutes § 53a-63 and attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-59, incorrectly citing the arson statute, General Statutes § 53a-lll. Subsequently, defense counsel filed motions for a bill of particulars on August 23, 2001, and December 5, 2002, generally requesting in both the specific statutory subsections allegedly violated, the specific acts by the defendant that constituted the charged
The state then filed three substitute informations on August 23, 2003, and January 8 and January 29, 2004.
The defendant seeks review of his unpreserved claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989),
“The sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution guarantee a criminal defendant the right to be informed of the nature and cause of the charges against him with sufficient precision to enable him to meet them at trial.” (Internal quotation marks omitted.) State v. Spigarolo, 210 Conn. 359, 381, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989). This constitutional mandate is satisfied “[w]hen the state’s pleadings have informed the defendant of the charge [s] against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise, and [are] definite enough to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense . . . .” (Internal quotation marks omitted.) Id. It is enough for the state to set forth the statutory designation of the crimes charged, “leaving to the defendant the burden of moving for a bill of particulars where [the defendant] wishes greater detail regarding the manner in which [those crimes were alleged to have been committed].” State v. Nita, 27 Conn. App. 103, 117, 604 A.2d 1322, cert. denied, 222 Conn. 903, 606 A.2d 1329, cert. denied, 506 U.S. 844, 113 S. Ct. 133, 121 L. Ed. 2d 86 (1992), citing State v. Spigarolo, supra, 382. In order to establish a violation of the right to fair notice, a defendant must show not only that the information was insufficient, but also that he was in fact prejudiced in his defense on the merits
The defendant has failed to show that the informa-tions were insufficient or that he was prejudiced in any way in the preparation of his defense by the fact that the state listed threatening as the crime underlying the burglary charge for the first time in its preliminary request to charge and disclosed this theory during the hearing on the defendant’s motion in limine. Our review of the record discloses that the informations contained the specific statutory section that the defendant allegedly violated, together with the date, time and place of the occurrence. The defendant had adequate notice of the burglary charge itself. Subsequent to the filing of the defendant’s July 3, 2003 bill of particulars, the state filed three substitute informations charging the defendant with, inter alia, burglary, alleging that the defendant unlawfully entered a building with intent to commit a crime therein and that he was armed with a deadly weapon. Subsequently, the defendant did not file any motions for bills of particulars addressed to the last three amended informations.
The defendant also had notice of the state’s theory of threatening as the crime underlying the burglary charge in the filing of the state’s preliminary request to charge, which was made five days before the jury was empaneled. The state requested that the following be part of the charge with respect to burglary: “Even if the defendant never actually committed some crime in the premises, if the evidence establishes beyond a reasonable doubt that he was there with such intention, this is sufficient to prove that the defendant entered unlawfully with the intent to commit a crime therein. . . . In this case, the state claims that the crime intended to be committed was threatening in violation of [General Statutes §] 53a-62.”
It is sufficient, for the state to set forth a statutory designation of the crime charged, leaving “the defendant the burden of moving for a bill of particulars where [the defendant] wishes greater detail regarding the manner in which [the crime allegedly was committed].” State v. Nita, supra, 27 Conn. App. 117. It is the defendant’s burden to file such a motion if greater details are sought about how the crime allegedly was committed. State v. Rogers, 38 Conn. App. 777, 789, 664 A.2d 291, cert. denied, 235 Conn. 918, 665 A.2d 610 (1995), cert. denied, 516 U.S. 1084, 116 S. Ct. 799, 133 L. Ed. 2d 747 (1996). The defendant permitted the state to specify threatening as the underlying crime without objection; it follows, therefore, that the prophylactic purpose of the rule to require adequate notice was fulfilled. See State v. Rogers, supra, 790.
The defendant also cannot prevail under the plain error doctrine. “The plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and
II
The defendant next claims that the court improperly denied his motion in limine. Specifically, the defendant argues that he was prejudiced and the jury’s emotions were aroused because the court improperly denied the motion and thereby permitted the state to introduce evidence that the defendant fired a gun when the state did not charge him with any crime alleging that he had fired a gun. We are not persuaded.
“A trial court may entertain a motion in limine made by either party regarding the admission or exclusion of anticipated evidence. . . . The judicial authority may grant the relief sought in the motion or such other relief as it may deem appropriate, may deny the motion with or without prejudice to its later renewal, or may reserve decision thereon until a later time in the proceeding. Practice Book § 42-15. This court has said that [t]he motion in limine . . . has generally been used in Connecticut courts to invoke a trial judge’s inherent discretionary powers to control proceedings, exclude evidence, and prevent occurrences that might unnecessarily prejudice the right of any party to a fair trial. . . .
“Generally, [tjrial courts have wide discretion with regard to evidentiary issues and their rulings will be
“Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. ... All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative. . . . One situation in which evidence is more prejudicial than probative occurs when the facts offered may unduly arouse the jury’s emotions, hostility or sympathy . . . .” (Citation omitted; internal quotation marks omitted.) State v. Rodriguez, 91 Conn. App. 112, 122, 881 A.2d 371, cert. denied, 276 Conn. 909, 886 A.2d 423 (2005).
The premise of the defendant’s motion in limine was that the evidence that the defendant fired a gun was not relevant to the charge of criminal possession of a firearm, pursuant to § 53a-217c (a) (1), because opera-bility of the firearm was not an element of the offense. The state argued at the hearing on the motion, however, that such testimony was relevant for the following reasons: The evidence was needed to prove the charge of burglary in the first degree because the gun itself was not recovered, and that crime requires that the defendant brandish a deadly weapon, which under General Statutes § 53a-3 (6), includes a weapon capable of firing a shot; the intended crime underlying the burglary charge was threatening, which requires that the defendant have the present ability to carry out the threats; and because the gun was not recovered, the evidence of the spent shell casing and bullet was needed to prove
We conclude that the court reasonably determined that the evidence was relevant because it tended to support the elements of the crimes charged. The state listed the reasons the evidence relating to the firing of the gun was relevant and explained how that evidence was necessary to prove the elements of some of the charges given that the gun was not recovered. The court had broad discretion to determine that the evidence was relevant and admissible, in this case, in order for the state to prove the elements of the crimes charged. The court also reasonably could have concluded, although it did not expressly so state on the record, that the probative value of that evidence outweighed its prejudicial effect and that the evidence did not unduly arouse the jury’s emotions, hostility or sympathy. The court instructed the jurors that they must not be influenced by their “likes, dislikes, opinions, prejudices or sympathy.” We are not persuaded that the court abused its discretion in denying the defendant’s motion in hmine.
Ill
The defendant next claims that the state violated his rights under the due process and equal protection clauses of the fourteenth amendment to the United States constitution by exercising a peremptory challenge in a racially discriminatory manner in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). We are not persuaded.
“In Batson [v. Kentucky, supra, 476 U.S. 79] the United States Supreme Court recognized that a claim
There are “several specific factors that may indicate that [a party’s removal] of a venireperson through a peremptory challenge was . . . motivated [by race or gender]. These include, but are not limited to: (1) [t]he reasons given for the challenge were not related to the trial of the case ... (2) the [party exercising the peremptory strike] failed to question the challenged juror or only questioned him or her in a perfunctory manner ... (3) prospective jurors of one race [or gender] were asked a question to elicit a particular response that was not asked of the other jurors ... (4) persons with the same or similar characteristics but not the same race [or gender] as the challenged juror were not struck ... (5) the [party exercising the peremptory strike] advanced an explanation based on a group bias where the group trait is not shown to apply to the challenged juror specifically . . . and (6) the [party exercising the peremptory strike] used a disproportionate number of peremptory challenges to exclude members of one race [or gender].” (Internal quotation marks omitted.) State v. Mukhtaar, 253 Conn. 280, 284-85, 750 A.2d 1059 (2000).
“Finally, the trial court’s decision on the question of discriminatory intent represents a finding of fact that will necessarily turn on the court’s evaluation of the demeanor and credibility of the attorney of the party exercising the peremptory challenge. . . . Accordingly, a trial court’s determination that there has or has not been intentional discrimination is afforded great deference and will not be disturbed unless it is clearly erroneous.” (Citations omitted; internal quotation marks omitted.) State v. Hodge, 248 Conn. 207, 224, 726 A.2d 531, cert. denied, 528 U.S. 969, 120 S. Ct. 409, 145 L. Ed. 2d 319 (1999).
In this case, during voir dire of venireperson L,
After the voir dire of L, the state requested that the court excuse him for cause, reasoning that although L stated that his experience with his robbery conviction would not affect his decision in this case, it strained belief that someone who was convicted wrongly could be a fair juror in any criminal case. The court denied the state’s challenge for cause, reasoning that it did not detect any acrimony, bitterness or bias. The state then exercised a peremptory challenge to remove L. Defense counsel then made a Batson challenge, requesting that the state provide a race neutral reason on the record for exercising the peremptory challenge. The state argued that it believed that L was biased in favor of the defendant because he identified with the defendant when he indicated that he had been falsely convicted of a crime in Waterbury and that he had been arrested in Waterbury as recently as five years ago. The court then permitted the peremptory challenge, reasoning that it was not exercised in a discriminatory fashion but that a neutral and detached reason was stated for the record.
The defendant argues that the court did not conduct a proper Batson hearing because it did not consider the six Batson factors before making its determination. Although the court did not expressly state the factors, that does not mean that the court did not consider them because “[j]udges are presumed to know the law . . . and to apply it correctly.” (Internal quotation marks omitted.) State v. Stern, 65 Conn. App. 634, 648, 782 A.2d 1275, cert. denied, 258 Conn. 935, 785 A.2d 232 (2001). The reasons the state offered for exercising a peremptory challenge as to L included the fact that he had a prior criminal history in Waterbury, specifically that he stated that he had been in a situation similar to that of the defendant because he was convicted of the crime of burglary and believed that he had been falsely accused, and was arrested for breach of the peace five years ago. Our Supreme Court has stated: “We decline to ascribe a racial animus to the state’s excusal of a venireperson with an arrest record simply because that venireperson was black. We agree with courts in other jurisdictions that this concern constitutes a neutral ground for the state’s exercise of a peremptory challenge to excuse a black venireperson.”
There was certainly no pattern of racial bias or discrimination in this case. The defendant, an African-American, was convicted by a jury that contained at least two African-American panel members. The defendant therefore could not show that the state used a disproportionate number of peremptory challenges to exclude members of one race. The court’s finding that the state’s reasons for exercising the peremptory challenge were race neutral was not clearly erroneous.
The judgment is affirmed.
In this opinion the other judges concurred.
In accordance with General Statutes § 54-86e and our policy of protecting the privacy interests of victims of risk of injury to a child, we decline to identify the victim or others through whom the victim’s identity may be ascertained.
The defendant fails to undertake a separate analysis of his claims that his rights to due process and to a fair trial under the federal constitution were violated. We cannot speculate as to the manner in which these rights might have been violated. “We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) State v. Thorp, 57 Conn. App. 112, 120 n.4, 747 A.2d 537, cert. denied, 253 Conn. 913, 754 A.2d 162 (2000). The defendant also fails to provide a separate analysis of his state constitutional claim, and, therefore, we deem it abandoned and will not afford it review. See State v. Sinvil, 270 Conn. 516, 518 n.l, 853 A.2d 105 (2004).
The substitute informations evidently were made in response to the motions for bills of particulars filed by the defendant, which were never acted on.
The January 8 and 29, 2004 informations alleged, with respect to the charge of burglary that the defendant “did commit the crime of BURGLARY IN THE FIRST DEGREE in violation of General Statute[s] § 53a-101 (a) (1) in that on or about August 21, 2001, at approximately 4:30 a.m., at or near 335 Bishop Street, Waterbury, Connecticut, the said JAMES/JIMMY GARDNER did enter unlawfully in a building with intent to commit a crime therein and he was armed with a deadly weapon.” In the August 22, 2003 substitute information, the state made the same allegations with regard to the burglary charge, except that it listed an incorrect address for the location of the burglary.
The state did not have to identify the underlying crime in order to put the defendant on notice of the burglary charge because “in burglary cases, our Supreme Court has stated that evidence of a forcible entry into a dwelling and flight from apprehension is sufficient evidence for the jury to infer an intent to commit a crime inside the dwelling. See State v. Sinclair, 197 Conn. 574, 577-78, 500 A.2d 539 (1985).” State v. Ward, 76 Conn. App. 779, 799, 821 A.2d 822, cert. denied, 264 Conn. 918, 826 A.2d 1160 (2003).
In Golding, the court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.
We refer to the juror by initial to protect his legitimate privacy interests. See, e.g., State v. Wright, 86 Conn. App. 86, 88 n.3, 860 A.2d 278 (2004).
The court stated in full: “Whether that was a slip of the tongue, I don’t know, but that particular — this particular venireperson indicated, quite clearly for the record, that he could be a fair and impartial juror. The