43 Conn. App. 830 | Conn. App. Ct. | 1996
The defendant, Willie Harris, appeals from the judgment of conviction, rendered after a juiy trial, of conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a)
The juiy could reasonably have found the following facts. On April 27, 1993, at approximately 9 p.m., Ticey Brown was walking on the sidewalk in front of 75 County Street in New Haven when he was struck by two bullets, one in the head and one in the chest, causing his death. The shots were fired from the back of a vacant lot on the side of 75 County Street. Subsequent ballistic tests established that the bullets had been fired from two different weapons. At the time of the shooting, Brown was walking near 75 County Street with Ephraim Gilliard and Sam Hook. Gilliard and Hook were walking behind Brown when the shots were fired and did not see who fired the shots.
Approximately fifteen minutes before the shooting, Antonio West observed the defendant, Bobby Jones and Darryl McIntyre sitting in a burgundy Ford Mustang in a parking lot near the crime scene. When they exited the car, West saw Jones and McIntyre put on black masks and saw that the defendant was wearing a green hooded sweatshirt. West noted that Jones was taller
On the night of the shooting, Latisha Lewis, from a window that overlooked the rear of 75 County Street, observed three individuals near the back edge of 75 County Street. She noted that two of them were wearing black clothing, that the other wore a hooded sweatshirt, and that one individual was taller than the others. From her window, she observed two of the three individuals fire their weapons in the direction of County Street. The three individuals then fled the scene. Priscilla Harris, who heard the gunshots and looked out her window, observed two individuals running toward Goffe Street and the defendant, whom she positively identified, running toward Orchard Street.
On June 16, 1993, the police issued a warrant for the arrests of the defendant, Jones and McIntyre. On November 9,1993, while searching aresidence pursuant to a warrant, the police found the defendant hiding in the darkened kitchen and Jones underneath a bed.
I
The defendant first argues that the trial court improperly admitted evidence of prior misconduct. The trial court admitted evidence proffered by two state witnesses that the defendant, Jones and McIntyre engaged in the sale of narcotics. The state argued that the evidence was highly probative of the relationship among the three individuals. The defendant objected to the admission of this evidence, arguing that its probative value was outweighed by its prejudicial effect.
At trial, West testified that he had observed the defendant, Jones and McIntyre, on several occasions, selling narcotics at the corner of Dickerman and
Another witness, Jeffrey Covington, testified that he was actively engaged in the narcotics trade with the defendant, Jones and McIntyre and that the defendant controlled the operation. He testified that Jones supplied him with the drugs to sell and that each day he
“As a general rule, evidence of a defendant’s prior crimes or misconduct is not admissible. State v. Crump-
Our analysis of whether evidence of prior misconduct is admissible is two-pronged. First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. “Second, the probative value of such evidence must outweigh the prejudicial effect of the other crimes evidence.” State v. Figueroa, 235 Conn. 145, 162, 665 A.2d 63 (1995); State v. Braman, 191 Conn. 670, 676, 469 A.2d 760 (1983). Applying the foregoing principles in our examination of the proffered evidence, we conclude that the trial court properly ruled that West’s testimony was relevant and material to at least one of the exceptions that allow evidence of uncharged misconduct to be admitted. First, the court found that West’s testimony that he saw the conspirators selling cocaine together corroborated the state’s claim that they had a relationship with each other and, therefore, was relevant to the charge of conspiracy. Second, the trial court found that Covington’s testimony that he was looking to turn over
In finding the challenged evidence to be relevant, the trial court carefully balanced the probative value of the challenged evidence against its prejudicial effect, ruled that the probative value outweighed its prejudicial effect, and admitted the proffered testimony. Relevant evidence of prior uncharged misconduct that is prejudicial in nature “is admissible if the trial court, in the exercise of its sound discretion, determines that its probative value, for one or more of the purposes for which it is admissible, outweighs its prejudicial impact on the accused.” State v. Ramsundar, 204 Conn. 4, 15, 526 A.2d 1311, cert. denied, 484 U.S. 955, 108 S. Ct. 348, 98 L. Ed. 2d 374 (1987).
We will uphold the trial court’s ruling on the admission of uncharged misconduct evidence unless there is a manifest abuse of discretion. See State v. Braman, supra, 191 Conn. 676. It is unlikely that the evidence of the defendant’s involvement with drags could have shocked or influenced the jury to the extent that the defendant was deprived of a fair trial. See State v. Artieri, 206 Conn. 81, 88-89, 536 A.2d 567 (1988). Considering the purpose of the challenged evidence and the trial court’s limiting instruction and its charge, we cannot conclude that the trial court abused its discretion in finding that the probative value of the evidence outweighed its prejudicial effect and in admitting prior uncharged misconduct by the defendant. See State v. Brown, supra, 199 Conn. 58. Accordingly, we conclude that the trial court did not abuse its discretion in admitting the prior misconduct evidence.
II
The defendant next claims that the trial court improperly permitted the state to introduce a mug shot of the
At trial, three mug shots of the defendant were introduced through three separate witnesses. On appeal, the defendant objects only to the mug shot introduced through Gilliard.
“ ‘A “mug shot” is admissible if it is relevant and material and if its probative value outweighs its prejudicial tendency.’ ” State v. Peary, 176 Conn. 170, 175, 405 A.2d 626 (1978), quoting State v. Crowe, 174 Conn. 129, 131, 384 A.2d 340 (1977). “The primary responsibility for conducting the prejudicial-probative balancing test rests with the trial court, and its conclusion will be disturbed only for a manifest abuse of discretion.” State v. Figueroa, supra, 235 Conn. 162.
In the present case, the mug shot had limited probative value because it merely confirmed Gilliard’s testi
Furthermore, even if the defendant had met his burden of showing an improper exercise of the trial court’s discretion in admitting the mug shot into evidence, we conclude that the defendant has nonetheless failed to sustain his burden of proving that such evidentiary impropriety was harmful. See State v. Dolphin, 178 Conn. 564, 572, 424 A.2d 266 (1979). “In general, the admissibility of evidence does not constitute a constitutional issue. State v. Walker, [215 Conn. 1, 5, 574 A.2d 188 (1990)]; State v. Smith, 198 Conn. 147, 156, 502 A.2d 874 (1985). When a trial error in a criminal case does not involve a constitutional violation the burden is on the defendant to demonstrate the harmfulness of the court’s error. . . . The defendant must show that it is more probable than not that the erroneous action of the court affected the result. . . . State v. Sierra, [213 Conn. 442, 436, 568 A.2d 448 (1990)].” (Internal quotation marks omitted.) State v. Polanco, 26 Conn. App. 33, 42, 597 A.2d 830 (1991).
The admission of the defendant’s photograph identified by Gilliard was cumulative. Two other witnesses, West and Priscilla, identified two other photographs and both were properly admitted. We find it improbable that the result in this case would have been different
The evidence of the defendant’s guilt was very strong. The jury could reasonably have found that the three conspirators arrived in Jones’ burgundy Ford Mustang at the area of the shooting about fifteen minutes prior to the murder. They parked the vehicle one block from the scene. Jones and McIntyre wore black clothing and masks and the defendant wore a green hooded sweatshirt. Two of the three men opened fire in the direction of County Street, and the victim was shot in the head and chest from gunfire coming from the back of 75 County Street. The three men then fled the scene. All this is contrary to the defendant’s statement to the police that he was nowhere near the scene of the murder that night.
In light of the evidence presented at trial, the defendant has failed to sustain his burden and, thus, we conclude that the admission of the evidence was harmless.
The judgment is affirmed.
In this opinion the other judges concurred.
General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct, constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”
General Statutes § 53a-54a (a) provides in pertinent part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . .
West testified as follows:
“Q. Now did you see the three of them together in the area of Dickerman Street and Orchard Street?
“A. Yes.
“Q. What were they doing in that area?
“A. Selling.
“Q. Selling what?
“A. Cocaine.”
The trial court gave the following limiting instruction: “Ladies and gentlemen, I want to point out to you that the charge against these defendants in this case, the charge you are considering is conspiracy to commit murder. They are not. charged with drug cocaine possession, sale of cocaine or anything of that nature. This evidence was admitted because it is the state’s claim that these three people, the [defendant, Jones] and this McIntyre had a relationship with each other and it is the state’s claim that this evidence that you just heard tends to corroborate the fact that the three of them hung around together, but the fact that I have allowed the nature of the relationship in, that according to this witness anyway they were out in that area dealing cocaine, the fact that they were engaged then in an illegal activity, sale of drugs, that is not, the fact, that it was illegal, that is not to be used against them in deciding this case. That illegality is to be disregarded by you in deciding this case. It is merely offered to support the state’s claim that these three people, the [defendant, Jones] and McIntyre had a connection with each other.”
The trial court stated: “[T]here are some prejudicial aspects to it, but I am inclined to think the probative value outweighs the prejudice. I think that when the jury finds out that Covington was prepared to turn over money as part of an ongoing operation to one of these defendants, and all of a sudden he can’t find him to give him the money, that I gather the state will claim Jones knew money would be coming, I think it was Jones, but for some reason can’t be located. I think that is evidence the jury has a right to consider to determine whether in fact the [defendant and Jones] were hiding. I’m going to overrule the objection. I will give them a curative instruction once again that this case is not about, not a drug charge; they are not to consider the fact that because there is evidence that these defendants were engaged in illegal activity that makes it more likely that they were, or they would commit this crime with which it is charged. It is not offered for that purpose. It is offered solely to show the extent of the relationship between the two, the three alleged coconspirators, and then it is further offered to show, according to the state, a change in their daily pattern of activities and availability which occurred at about the time Mr. Brown was shot. The objection is overruled.”
The trial court gave the jury the following limiting instruction during the course of Covington’s testimony: “Ladies and gentlemen, in connection with the evidence that you are hearing and may hear, you have already heard that this witness testified that [the defendant, Jones] and Mr. McIntyre were engaged with him in a drug selling operation. I think you already heard some evidence from another witness saying that the three of them used to be out on the comer of some intersection engaged in selling drags, and I gave you then a cautionary instruction. I am reminding you again that [the defendant and Jones] are not on trial for being involved in the illegal activity of selling drugs, and the fact that you may hear evidence from witnesses indicating that they were engaged in that kind of an operation, you may hear evidence and I think he already said it that Mr. Harris was in charge
In its charge, the trial court stated: “During the course of the trial you heard evidence concerning the involvement of the [defendant, Jones] and the alleged third coconspirator, Mr. McIntyre, in a group that sold drugs. Now as I told you when some of this evidence came in, that type of evidence was offered for a very limited purpose. It was not offered to prove that since these [individuals] were in some type of a drag selling business that therefore that tends to prove that they committed the crime charged in this case. You should not use that evidence in that fashion. That evidence was offered by the state solely on a claim that the three alleged coconspirators were more than just people who were casually—who casually knew each other, but that they were closely related in what might be called a business activity and therefore that this evidence should be considered by you as tending t o support the state’s claim that they were likely to be coconspirators. You also heard testimony from . . . Covington that as part of the drug selling operation he would turn over money received on a daily basis to Mr. Jones, but after the time of the shooting of . . . Brown he was unable to locate Mr. Jones as he had before for some period of time. This evidence was offered by the state on a claim that it shows a change in the pattern of activity by Mr. Jones immediately following the shooting and therefore that tends to show that Mr. Jones was involved in some way with the shooting. That is the purpose for which that evidence was offered, and that is the only way you should consider it.”
The defendant concedes that two of the three witnesses, West and Harris, were identification witnesses, i.e., each testified to observing the defendant near the scene of the crime on the night of its occurrence. There is no claim that their in-court identifications of the defendant were tainted by any