280 Conn. 779 | Conn. | 2007
Opinion
The defendant, Ramon Lopez, appeals
The jury reasonably could have found the following facts. In the early morning hours of February 2, 2002, several people were gathered inside and outside of Pettway’s Variety Store (Pettway’s) at the northwest comer of the intersection of Stratford Avenue and Fifth Street in Bridgeport. Stratford Avenue mns in a generally east-west direction and has one-way traffic heading east. Fifth Street runs in a generally north-south direction and ends at Stratford Avenue. The three victims, Shariff Abdul-Hakeem, also known as “Polo,” his brother, Manuel Rosado, and Gary Burton, were standing outside the store. Lou Diamond and a man known as “Chef’ came out of Pettway’s, gave Abdul-Hakeem and Rosado a “grim” look and then walked north on Fifth Street. Shortly thereafter, Diamond and Chef, who had covered the lower parts of their faces with some type of cloths, turned around and walked back down Fifth Street toward Pettway’s. At the same time, a third unidentified person carrying a gun ran from the east side of Fifth Street to the west side and joined Diamond and Chef.
Meanwhile, a white car had come down Fourth Street, the next street to the west of Fifth Street, turned east onto Stratford Avenue and stopped on the north side of that street. Two men got out of the rear driver’s side door and the car then crossed Stratford Avenue and parked on the south side of the street. Although two men wore cloths over their lower faces, an eyewitness, Tony Payton, knew both men and was able to identify them as Boo McClain and the defendant. McClain car
Abdul-Hakeem received bullet wounds in his left calf and left buttock. The bullet that hit his left buttock exited from the right side of his abdomen, and AbdulHakeem died several hours after the shooting as the result of uncontrollable bleeding from the wound. Rosado received shotgun wounds to his legs. Burton was wounded when a bullet hit him in the ribs and another bullet grazed his hip. Additional facts will be set forth as necessary.
On November 14, 2003, substitute counsel for the defendant filed a motion for a continuance of the sentencing hearing until February 6, 2004, so that he could review the trial transcript, which was not going to be available until January 20, 2004. In the motion, defense counsel stated that he needed to review the transcript in order to address the defendant’s complaints against his trial counsel. The trial court held a hearing on the motion, at which defense counsel argued that he needed to review the transcript in order to determine whether he should file a motion for a new trial. When the trial court responded that the time for filing a motion for a new trial had passed,
Thereafter, the trial court rendered judgment in accordance with the verdict and sentenced the defendant to sixty years imprisonment on the murder charge, twenty years imprisonment on the attempted murder charges, and twenty years imprisonment on the assault in the first degree charges, for a total effective sentence of 100 years imprisonment. This direct appeal followed.
I
The defendant first claims that the trial court improperly denied his motion for a continuance of the sentencing hearing. He contends that, by doing so, the court effectively deprived him of his constitutional right to counsel during critical postverdict proceedings and, therefore, he is entitled to a new sentencing hearing. We conclude that there is no need to decide whether the trial court abused its discretion in denying the defendant’s motion for a continuance because, even if the denial was improper, it was harmless. We further conclude that the defendant was not deprived of his constitutional right to counsel.
“It is well settled that [t]he determination of whether to grant a request for a continuance is within the discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion. ... A reviewing court is bound by the principle that [e]very reasonable
“We have identified several factors that a trial court may consider when exercising its discretion in granting or denying a motion for continuance. . . . These factors include the likely length of the delay . . . the impact of delay on the litigants, witnesses, opposing counsel and the court . . . the perceived legitimacy of the reasons proffered in support of the request . . . [and] the likelihood that the denial would substantially impair the defendant’s ability to defend himself . . . .” (Citation omitted; internal quotation marks omitted.) Id., 714.
“A sentencing judge has very broad discretion in imposing any sentence within the statutory limits and in exercising that discretion he may and should consider matters that would not be admissible at trial.” (Internal quotation marks omitted.) State v. Eric M., 271 Conn. 641, 649, 858 A.2d 767 (2004). “Consistent with due process the trial court may consider responsible unsworn or out-of-court information relative to the circumstances of the crime and to the convicted person’s life and circumstance.” (Internal quotation marks omitted.) Id., 649-50.
In the present case, the defendant requested a continuance of approximately three months. As we have indicated, the reason proffered for the continuance was that the newly appointed defense counsel needed to
We agree with the defendant that, when new defense counsel has been appointed after trial and before sentencing, the trial court, as a general rule, should allow counsel an opportunity to review the trial transcript before holding a sentencing hearing. See State v. Brodene, 493 N.W.2d 793, 795 (Iowa 1992) (failure to provide new counsel with trial transcript before sentencing was improper); 26 J. Moore, Federal Practice (3d Ed. 1997) § 632.10 [2] [b], p. 632-50 (“[i]f a defendant’s request for new counsel is granted, the court should postpone sentencing until counsel has had an opportunity to review the transcript of the trial”); see also People v. Stark, 23 Cal. App. 4th 1059, 1083, 11 Cal. Rptr. 2d 207 (1992) (trial court properly denied request to discharge counsel just prior to sentencing because lengthy delay would have been required to allow new counsel to review trial transcript); Blake v. State, 273 Ga. 447, 449, 542 S.E.2d 492 (2001) (same).
The defendant claims, however, that the trial court’s denial of his motion for a continuance constituted effective deprivation of counsel at a critical stage of the proceeding and was structural error, precluding harmless error analysis. In support of this argument, the defendant points out that defendants have a constitutional right to be represented by counsel at all critical stages of criminal proceedings, including the sentencing
As we have indicated, however, courts in other jurisdictions have concluded that a denial of a continuance under these circumstances may be harmless if the defendant has made no specific claim of prejudice; see United States v. Sullivan, supra, 694 F.2d 1348; see also State v. Washington, supra, 275 Kan. 677;
II
The defendant next claims that the trial court improperly admitted evidence that he previously had threatened Robert Payton, who was at Pettway’s at the time of the shooting. The defendant contends that this evidence of prior misconduct improperly was admitted to suggest that the defendant had a bad character and a propensity for criminal behavior. We disagree.
The following additional facts and procedural history are relevant to this claim. During Rosado’s testimony at trial, the prosecutor asked that the jury be excused so that he could make an offer of proof with respect to testimony about the defendant’s prior misconduct. After the jury was excused, the prosecutor indicated that, two to three weeks before the shooting, Rosado had witnessed a confrontation between the defendant and Robert Payton. The prosecutor argued that Rosado’s testimony about the confrontation was relevant to the defendant’s identity and his motive. The defendant argued that the prejudicial value of the testimony outweighed its probative value and that it was irrelevant because there was no evidence that Payton had been an intended victim. The court allowed the evidence.
After the jury returned to the courtroom, Rosado testified that he had been at Pettway’s two to three weeks before the shooting. As Rosado approached the
Rosado further testified that, on the night of February 2, 2002, shortly before the shooting, he had seen Robert Payton get out of a van that had driven down and parked on Fifth Street. Rosado walked over to the van and Payton asked him if he had a gun, because “Chef and them are out here.” When the shooting started moments later, Payton was inside the store. Rosado testified that, when he had seen the defendant that night, he was again wearing a green camouflage jacket and brown Timberland boots.
“The rules governing the admissibility of evidence of a criminal defendant’s prior misconduct are well established.
“It is not essential that the state prove a motive for a crime. . . . But it strengthens its case when an adequate motive can be shown.” (Citation omitted.) State v. Hoyeson, 154 Conn. 302, 307, 224 A.2d 735 (1966). Evidence of prior misconduct that tends to show that the defendant harbored hostility toward the intended victim of a violent crime Is admissible to establish motive. Id.; see also State v. Camera, 81 Conn. App. 175, 184, 839 A.2d 613, cert. denied, 268 Conn. 910, 845 A.2d 412 (2004).
In the present case, Rosado’s testimony that, two to three weeks before the shooting, the defendant had had an angry confrontation with Robert Payton during which he displayed a gun, and that he also threatened Rosado with the gun, tended to show that the defendant harbored hostility toward Payton and Rosado. This evidence of the defendant’s hostility toward Payton and Rosado was bolstered by Rosado’s testimony that, moments before the shooting, Payton had asked him whether he had a gun, because “Chef and them are out here,” together with the evidence suggesting that Chef and the defendant were acting in concert that night. (Emphasis added.) We conclude, therefore, that Rosado’s testimony was admissible on the issue of motive.
The defendant claims, however, that, even if he was hostile to Robert Payton, and even if it is assumed
The defendant also claims that the evidence should have been excluded because it was more prejudicial
Because we conclude that the trial court did not abuse its discretion in admitting Rosado’s testimony about the confrontation between the defendant and Robert Payton as evidence of motive, we need not address the defendant’s claims that the evidence was inadmissible to establish the defendant’s identity and intent.
Ill
The defendant next raises several unpreserved claims of prosecutorial misconduct that he claims deprived
“[I]n analyzing claims of prosecutorial misconduct, we engage in a two step analytical process. The two steps are separate and distinct: (1) whether misconduct occurred in the first instance; and (2) whether that misconduct deprived a defendant of his due process right to a fair trial. Put differently, misconduct is misconduct, regardless of its ultimate effect on the fairness of the trial; whether that misconduct caused or contributed to a due process violation is a separate and distinct question ....
“[I]n cases involving incidents of prosecutorial misconduct that were not objected to at trial ... it is unnecessary for the defendant to seek to prevail under the specific requirements of State v. Golding, 213 Conn. 233, 239-0, 567 A.2d 823 (1989),
Although unpreserved claims of prosecutorial conduct are reviewable under Williams, it is “the responsibility of defense counsel, at the very least, to object to perceived prosecutorial improprieties as they occur at trial, and we continue to adhere to the well established maxim that defense counsel’s failure to object to the prosecutor’s argument when it was made suggests that defense counsel did not believe that it was unfair in light of the record of the case at the time. . . . Moreover as the Appellate Court has observed, defense counsel may elect not to object to arguments that he or she deems marginally objectionable for tactical reasons, namely, because he or she does not want to draw the jury’s attention to it or because he or she wants to later refute that argument. . . . Accordingly, we emphasize that counsel’s failure to object at trial, while not by itself
A
We first address the defendant’s claim that the prosecutor improperly elicited testimony from Tony Payton that his brother had been killed as a result of the prosecution of this case. The following additional facts and procedural history are relevant to this claim. The prosecutor asked Tony Payton whether it was his testimony that Robert Payton was at the scene of the shooting on February 2, 2002. Tony Payton responded in the affirmative. The prosecutor then asked Tony Payton whether Robert Payton was still alive and Tony Payton responded, “No, he’s deceased because of this case.” The prosecutor then stated, “I just want to know if he’s alive or not, no need to explain, thank you.” The defendant did not object to the question or to the response and did not ask the trial court for a limiting instruction.
The defendant now claims that that the prosecutor improperly elicited Tony Payton’s statement and that it constituted improper evidence of bad character and criminal propensity. Specifically, he claims that the jury could have inferred from Tony Payton’s statement that the defendant had murdered Robert Payton. We disagree. Although it is not entirely clear from the context of this exchange why the prosecutor asked Tony Payton whether Robert Payton was still alive, it is reasonable to conclude that he was attempting to forestall any
B
The defendant also claims that the prosecutor improperly elicited testimony from Tony Payton that he feared retaliation by the defendant and his friends as a result of testifying in this case. The following additional facts and procedural history are relevant to this claim. On cross-examination, Payton testified that he did not tell the police what he knew about the shooting until June, 2002, when he was taken into federal custody on charges unrelated to this case. During redirect examination, outside the presence of the jury, the prosecutor indicated that he wanted to question Payton about the reasons that he did not come forward earlier, including his general fear of retaliation for cooperating with the police. The trial court allowed the testimony, on the condition that the prosecutor would not attempt to insinuate that Payton’s fear of testifying was directly connected to the defendant.
The defendant now claims that, by asking the defendant why he had not spoken to his fellow inmates about his cooperation with the state in this case, the prosecutor violated the trial court’s order that he avoid any suggestion that Tony Payton’s fear of testifying was directly connected to the defendant. He contends that the jury must have understood Payton’s response to mean that the defendant or friends acting on the defendant’s behalf intended to retaliate against him. We disagree. The prosecutor carefully asked Payton to explain generally his reluctance to talk to fellow inmates about his cooperation with the state, and could not have anticipated a response specifically related to the defendant. In any event, Payton’s response was nonspecific. The defendant does not dispute that, after defense counsel had attempted to impeach Payton’s testimony on the ground that he did not give a statement to police until months after the shooting, the prosecutor was entitled to elicit testimony about his general fear of cooperating in a criminal investigation. Nor does he dispute that, as a general matter, incarcerated witnesses are reluc
C
We next address the defendant’s claim that the prosecutor improperly commented on facts not in evidence when he stated during closing argument to the jury that the fact that five of the seven eyewitnesses could not specifically identify the defendant as one of the shooters did not exclude the defendant as a shooter. The following facts and procedural history are relevant to this claim. During closing argument, the prosecutor pointed out that seven eyewitnesses to the shooting had testified during trial, and only two of them had identified the defendant as one of the shooters. The prosecutor then asked, “But did they ever exclude him? Did they ever exclude him in court? Did they ever stand up on the witness stand and say that man over there is not the one I saw that night? Didn’t do that.” During rebuttal, the prosecutor again referred to “[t]he witnesses who did not exclude the defendant. Who didn’t sit in this courtroom and say, that’s not the man over there.” The defendant did not object to the prosecutor’s comments.
“Counsel may comment upon facts properly in evidence and upon reasonable inferences to be drawn from them. . . . Counsel may not, however, comment on or suggest an inference from facts not in evidence.” (Citation omitted; internal quotation marks omitted.)
The defendant claims that, because the prosecutor never asked the five witnesses who had failed to identify the defendant as the shooter whether they could exclude the defendant as one of the shooters, he improperly relied on facts not in evidence in arguing that the witnesses had not excluded the defendant as a shooter. We disagree. The prosecutor merely commented that the actual state of the evidence did not preclude a conclusion that the defendant had been a shooter. Put another way, the prosecutor did not rely on a fact not in evidence when he drew the jury’s attention to the fact that the testimony of the witnesses who could not specifically identify the defendant was not inconsistent with the testimony of the two witnesses who did identify him. Because the jury reasonably could have made that inference on its own, it was not misconduct for the prosecutor to point it out. Accordingly, we reject this claim.
D
We next address the defendant’s claim that the prosecutor improperly vouched for the credibility and veracity of Tony Payton and Rosado when he told the jury that the government would punish them if they committed perjury. The following additional facts and procedural history are relevant to this claim. Payton testified at trial that he had made a plea deal with federal prosecutors that required him to cooperate with the state in this case in exchange for the possibility of a reduced sentence on pending federal charges. He also testified that, under the plea agreement, if he committed perjury in this case, he could receive additional jail time in the federal case. The defendant did not object to the admission of this testimony. Rosado testified at trial that there were a number of federal charges pending
During closing argument, the prosecutor argued that Tony Payton would receive the benefit of his plea agreement only if he testified truthfully and that, if he lied, he could receive additional time in prison.
“The prosecutor may not express his own opinion, either directly or indirectly, as to the credibility of witnesses. . . . Such expressions of personal opinion are a form of unsworn and unchecked testimony. . . . These expressions of opinion are particularly difficult for the jury to ignore because of the special position held by the prosecutor. . . . The jury is aware that he has prepared and presented the case and consequently, may have access to matters not in evidence . . . which the jury may infer to have precipitated the personal opinions.” (Citations omitted.) State v. Williams, supra, 204 Conn. 541-44. “While the prosecutor is permitted to comment upon the evidence presented at trial and to argue the inferences that the jurors might draw therefrom, he is not permitted to vouch personally for the truth, or veracity of the state’s witnesses.” State v. Oehman, 212 Conn. 325, 336, 562 A.2d 493 (1989).
IV
The defendant next claims that there was insufficient evidence to establish his guilt beyond a reasonable doubt on any of the charges. Specifically, he claims that the evidence was insufficient to establish: (1) his identity as one of the shooters; (2) that he had injured or attempted to kill Burton; (3) that he had injured or attempted to kill Rosado; and (4) that he had killed or intended to kill Abdul-Hakeem. We disagree.
The following additional procedural history is relevant to this claim. At the close of evidence, the defendant made a motion for acquittal on the ground that, reviewing the evidence in the light most favorable to the state, a reasonable juror could not conclude that the defendant was guilty beyond a reasonable doubt of any of the charges. The defendant specifically argued that the circumstances under which Rosado had cooperated with the state’s investigation of this matter rendered his testimony unreliable. The state argued that Rosado’s credibility was an issue for the jury. The trial court concluded that the jury reasonably could find the defendant guilty beyond a reasonable doubt on each of
“The standard of review we apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .
“We note that the jury must find every elementproven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . .
“Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . .
A
We first address the defendant’s claim that there was insufficient evidence to establish his identity as one of the shooters. Specifically, the defendant claims that Rosado’s identification of the defendant as the shooter was unreliable because: Rosado had seen the shooter whom he identified as the defendant for only two or three seconds; the shooter had been masked; Rosado told the police on the night of the shooting that he did not recognize any of the shooters; Rosado changed his stoiy only after talking to another witness; and Rosado’s identification was based only on his belief that the defendant was “the kind of guy he associated with guns and shooting” and on the fact that the defendant wore the same type of clothes as the shooter. The defendant also claims that Tony Payton’s identification of the
“[W]hen determining whether a witness had sufficient time to observe a defendant to ensure a reliable identification, we have stated that a good hard look will pass muster even if it occurs during a fleeting glance. ... In particular, we have recognized that a view of even a few seconds may be sufficient for a witness to make an identification . . . and that it is for the trier of fact to determine the weight to be given that identification.” (Citations omitted; internal quotation marks omitted.) State v. Morgan, supra, 274 Conn. 801-802.
Moreover, the jury was not compelled to credit the defendant’s evidence that Tony Payton had been too far away from the shooting to see clearly and that his view had been blocked, rather than Payton’s testimony that he was able to see the defendant. We also reject the defendant’s claim that Payton’s testimony was unreliable because he had been told the shooters’ names after the shooting. The evidence showed only that Pay-ton did not know the defendant’s name at the time of the shooting, not that he was unable to recognize him.
Finally, we are not persuaded by the defendant’s argument that Tony Payton had no credibility because his testimony that the defendant had shot Abdul-Hakeem in the chest was inconsistent with evidence that Abdul
B
We next address the defendant’s claim that the evidence was insufficient to establish that he intentionally had injured or attempted to kill Burton. The following facts and procedural history are relevant to this claim. Burton testified that he had grown up and gone to high school in Bridgeport but now lived in New Britain. On the evening of February 2, 2002, he went with Desiree Jones and Keaga Johnson to a bar in Bridgeport called Barons. At the bar he met several high school friends, Francisco Soares, John Soares and “Little Jay.” At some point, Burton and the others decided to leave Barons and go to a club called GQ’s, and to stop on the way at Pettway’s for cigarettes. Burton drove in his car with Jones and Johnson, and Francisco Soares, John Soares and Little Jay drove in a van. Burton parked his car on the south side of Stratford Avenue across from Pettway’s and the van parked on the west side of Fifth Street next to Pettway’s. Burton then went into Pettway’s with Francisco Soares. Tony Payton testified that he saw his brother, Robert Payton, get out of the van with Francisco Soares, who was a friend of Robert Payton’s. Burton saw three or four men outside of Pettway’s whom he recognized from the street, but he did not know their names. Burton left the store before Francisco Soares and waited for him on the comer. He then heard someone say, “[Djon’t nobody move.” He turned west toward Fourth Street to see who was talking and
During closing argument, defense counsel argued that the evidence had established that Burton was “an innocent victim, an innocent bystander and had no axe to grind with any of these people because he didn’t know them well enough.” The prosecutor stated that the defendant was “[f]iring at the area of Rosado, [Robert] Payton and [Abdul-Hakeem],” and that “Burton got caught in the crossfire.” At the sentencing hearing, the prosecutor argued that the defendant had “the purpose of shooting specific individuals . . . one being the murder victim [Abdul-Hakeem], and the other being . . . Rosado.” He further argued that “the injury to . . . Burton was occasioned by the fact that this defendant along with the others were firing at the individuals, and he was an innocent individual who was struck.”
The defendant claims that, on the basis of the evidence presented at trial, the jury reasonably could not have found that the defendant injured or attempted to kill Burton. He argues that there was no evidence that Burton’s injuries were caused by a bullet rather than
The defendant’s claim that the evidence was insufficient to establish beyond a reasonable doubt that Burton had been wounded by a bullet requires little discussion. Burton testified unequivocally that he had received and had been treated for two bullet wounds, and the defendant has provided no authority for the proposition that expert medical testimony is required under these circumstances. Accordingly, we reject this claim.
The defendant’s claim that the evidence did not establish that he had the requisite intent for intentional assault or attempted murder requires a lengthier analysis. “A verdict of guilty of attempted murder requires a finding of the specific intent to cause death. See General Statutes §§ 53a-49, 53a-54a and 53a-3 (11). A verdict of guilty of assault in the first degree in violation of § 53a-59 (a) (5) . . . requires a finding of the specific intent to cause physical injury. See General Statutes §§ 53a-59 (a) (5) and 53a-3 (3) . . . .” (Citation omitted.) State v. Murray, 254 Conn. 472, 479, 757 A.2d 578 (2000). “Because direct evidence of the accused’s state of mind is rarely available . . . intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. . . . Intent to cause death may be inferred from the type of weapon used, the manner in which it was used, the type of wound inflicted and the
We conclude that the evidence was sufficient to support a conviction of attempted murder. The evidence showed that the defendant was hostile toward Robert Payton and that that hostility extended to Payton’s associates. The evidence also showed that, on the night of the shooting, Burton was associating with a group of people that included Payton. The defendant and the other shooters drew their weapons, pointed them at Burton and the others standing outside of Pettway’s and fired. We conclude that, on the basis of this evidence, the jury reasonably could have found beyond a reasonable doubt that the defendant intended to kill Burton.
The foregoing analysis also establishes that the jury reasonably could have found that the defendant had the intent to cause physical injury to Burton. See State v. Murray, supra, 254 Conn. 483 (“one cannot intend to cause death without necessarily intending to cause a physical injury”). Even if we were to assume that the evidence did not establish that the defendant directly
We recognize that the prosecutor argued to the jury that “Burton got caught in the crossfire,” and, at the sentencing hearing, the prosecutor characterized Burton as an “innocent” victim of the attack on AbdulHakeem and Rosado. Those statements, however, are not necessarily inconsistent with a finding that the defendant intended to kill Burton. The jury reasonably could have concluded that, although Burton was “innocent” in the sense that he had done nothing to provoke the attack and the defendant had no preexisting hostility toward him, Burton’s appearance at Pettway’s with Robert Payton, Rosado and Abdul-Hakeem on the night of the shooting provided a reason for the defendant to form an intent to kill him. Moreover, even if we were to assume that the prosecutor ultimately came to believe that Burton was an unintended victim, that view of the evidence was not the only reasonable one.
C
We next address the defendant’s claim that the evidence was insufficient to support his convictions of intentional assault and attempted murder with respect to Rosado. The following additional facts and procedural history are relevant to this claim. Rosado testified that, when he saw the defendant “aiming [his gun] towards [him],” he ran for the door of Pettway’s. He further testified that, as he ran, “I got hit in my right leg. When I got hit in my right leg, it spun me around. When it spun me around, I got hit in my back leg and dove in the store.” The first shot hit Rosado below his right knee, and the second shot hit him in his left calf. When the shooting stopped, Francisco Soares and “Kenny”
The defendant claims that this evidence was insufficient to establish that Rosado was injured by a firearm and not in some other manner, such as being stepped
We also reject the defendant’s claim that the fact that, although the shooters had “the full opportunity to kill anyone they wanted to kill,”
D
We next address the defendant’s claim that there was insufficient evidence to support his conviction of murder. Specifically, the defendant claims that there was insufficient evidence to support a finding that the defendant or the other shooters had intended to kill Abdul-Kareem because, although, according to one witness, the defendant had the opportunity to kill whomever he wanted to kill, the gunshot wound to Abdul-Kareem’s left buttock did not kill him immediately and it did not appear to be a fatal wound. The defendant does not identify the evidence on which he relies in support of his claim that Abdul-Hakeem “did not even appear to be seriously hurt” when the shooters left the scene.
The defendant engages yet again in the faulty logic that, because the jury may infer intent to kill from conduct designed to ensure that the intended victim actually was dead, the jury may not infer intent to kill if the intended victim was alive when the defendant left the scene, regardless of the other circumstances of the crime. Nothing in our case law governing sufficiency of the evidence claims related to mental states supports such a conclusion. The evidence in the present case established that the defendant aimed his shotgun at Abdul-Hakeem and fired it; shotgun pellets penetrated Abdul-Hakeem’s leather jacket; the defendant yelled, “I
V
The defendant next claims that the trial court improperly instructed the jury on the principles of accessory liability pursuant to § 53a-8. Specifically, he contends that the trial court’s inclusion of language pertaining to theories of joint criminal enterprise
The defendant concedes that this claim was not preserved, but contends that he should prevail under State v. Golding, supra, 213 Conn. 239-40. Because the record is adequate for review, and because the claim implicates the defendant’s due process right to a fair trial; see State v. Anderson, 212 Conn. 31, 36, 561 A.2d 897 (1989) (“the failure to instruct the jury adequately on each essential element of the crime charged may [result]
“Our standard of review for claims of instructional impropriety is well established. [Individual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rule of law. . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . Accordingly, [i]n reviewing a constitutional challenge to the trial court’s instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury.” (Citations omitted; internal quotation marks omitted.) State v. Floyd, 253 Conn. 700, 714, 756 A.2d 799 (2000).
We agree with the defendant in the present case that the trial court should not have included in its instructions language pertaining to theories of conspiracy and joint criminal enterprise when the defendant was charged only as a principal or an accessory. As in State v. Diaz, supra, 237 Conn. 536-37, however, we conclude that, although the trial court’s instructions were improper, they reasonably could not have misled the
The judgment is affirmed.
In this opinion the other justices concurred.
The defendant appealed directly to this court pursuant to General Statutes § 51-199 (b), which provides in relevant part: “The following matters shall be taken directly to the Supreme Court ... (3) an appeal in any criminal action involving a conviction for a capital felony, class A felony, or other felony, including any persistent offender status, for which the maximum sentence which may be imposed exceeds twenty years . . . .”
General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .”
General Statutes § 53a-49 (a) provides in relevant part: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”
General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when ... (5) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of the discharge of a firearm.”
Burton testified that he had seen three men approaching Pettway’s from the direction of Fourth Street, one of whom carried a shotgun and two of whom carried handguns.
Practice Book § 42-54 provides: “Unless otherwise permitted by the judicial authority in the interests of justice, a motion for a new trial shall be made within five days after a verdict or finding of guilty or within any further time the judicial authority allows during the five-day period.”
But see United States v. Buts, 517 F. Sup. 1167, 1169 (S.D.N.Y. 1981) (when trial transcript was not available at sentencing but new counsel had sufficient information to be familiar with case, and sentencing court promised to correct sentence if transcript proved helpful, court did not abuse discretion in holding sentencing hearing before transcript could be prepared); State v. Washington, 275 Kan. 644, 677-80, 68 P.3d 134 (2003) (trial court properly denied new counsel opportunity to review trial transcript before sentencing when defendant could raise claims of trial error on appeal and new counsel had other sources for relevant information, but case was remanded for new sentencing hearing because new counsel’s lack of knowledge of statutory provisions governing sentencing at sentencing hearing constituted ineffective assistance of counsel).
With respect to any unpreserved claims of error that the defendant claims he would have raised in a motion for a new trial, it is well established that a motion for a new trial is not the proper vehicle for raising new, unpreserved claims of error. See State v. Whipper, 258 Conn. 229, 244, 780 A.2d 53 (2001), overruled in part on other grounds by State v. Cruz, 269 Conn. 97, 848 A.2d 445 (2004); State v. Cebhardt, 83 Conn. App. 772, 780-81, 851 A.2d 391 (2004). Accordingly, new counsel for the defendant properly could not have raised such claims in a motion for a new trial even if the continuance had been granted.
The court in Brodene stated that “[a]ny error in not providing [a trial transcript] can be ignored . . . because a transcript was later furnished in connection with this appeal. We can cure any error, and do so, by excusing the new counsel from any preservation of error requirements in preparing and presenting the posttrial motions.” State v. Brodene, supra, 493 N.W.2d 795. Under our practice, claims of evidentiary error and prosecutorial misconduct, like those raised by the defendant in the present case, may be raised on appeal if they were raised during trial regardless of whether they were raised again in a motion for a new trial. Accordingly, there is no need for this court to excuse tile failure to raise the claims in a motion for a new trial. Any such claims that were not raised during trial could not have been raised in a motion for a new trial. See footnote 8 of this opinion.
To establish harm, a defendant could show that the trial transcript contained information that was otherwise unavailable to the defendant or his counsel that would have allowed counsel to argue that the sentencing information provided by the government was inaccurate and that the sentencing court relied on this inaccurate information; United States v. Katalinich, 113 F.3d 1475, 1484 (7th Cir. 1997); that the defendant was a minor participant in the crime; United States v. Beltran, 109 F.3d 365, 370 (7th Cir.), cert. denied, 522 U.S. 852, 118 S. Ct. 145, 139 L. Ed. 2d 92 (1997); that the defendant was remorseful; see United States v. Leasure, 122 F.3d 837, 840-41 (9th Cir. 1997), cert. denied, 522 U.S. 1065, 118 S. Ct. 731, 139 L. Ed. 2d 668 (1998); that the defendant had been candid with the government; see United States v. Ming He, 94 F.3d 782, 795 (2d Cir. 1996); or that the defendant had a mental disease or defect that, although it did not excuse the crime, justified a reduced sentence. See State v. Washington, supra, 275 Kan. 678. We do not suggest that this list is exclusive.
The defendant in the present case states in his brief that the prosecutor made “several substantial factual errors” in his summation of the evidence at the sentencing hearing that “were not noted by new defense counsel, because he did not know that they were errors.” The defendant further states that page limitations on the brief prevented him from identifying any of these errors but, in any event, there was no need to do so because the denial of the motion for a continuance was structural error and was not susceptible to harmless error review. Accordingly, we conclude the defendant has abandoned this claim of prejudice.
See also United States v. Stevens, 223 F.3d 239, 244 (3d Cir. 2000) (structural errors at sentencing involve “ Very limited class of cases’ ” including “deprivation of counsel during the sentencing hearing itself . . . abdication of judicial role by authorizing a probation officer to determine the manner of restitution . . . and in absentia sentencing” [citations omitted]), cert. denied, 531 U.S. 1179, 121 S. Ct. 1157, 148 L. Ed. 2d 1018 (2001); compare United States v. Beltran, 109 F.3d 365, 371 (7th Cir.) (trial court’s reliance on information that was not disclosed to defendant until immediately before sentencing hearing is generally improper, but impropriety is harmless if it could not have changed result), cert. denied, 522 U.S. 852, 118 S. Ct. 145, 139 L. Ed. 2d 92 (1997); United States v. Katalinich, 113 F.3d 1475, 1484 (7th Cir.) (“[t]o succeed in challenging a sentence, a defendant must demonstrate that the information before the court was inaccurate and that the court relied on this inaccurate information”), cert. denied, 522 U.S. 905, 118 S. Ct. 260, 139 L. Ed. 2d 187 (1997); United States v. Berndt, 127 F.3d 251, 260 (2d Cir. 1997) (trial court improperly failed to give defendant opportunity to comment on information used in sentencing, but impropriety was harmless when defendant failed to establish that it could have changed
To the extent that the defendant contends that the denial of his motion for a continuance deprived him of effective assistance of counsel, he must establish prejudice to prevail on that claim. See United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S. Ct. 2557, 2563, 165 L. Ed. 2d 409 (2006).
Subsection (a) of § 4-5 of the Connecticut Code of Evidence provides: “Evidence of other crimes, wrongs or acts of a person is inadmissible to prove the bad character or criminal tendencies of that person.”
Subsection (b) of § 4-5 of the Connecticut Code of Evidence provides: “Evidence of other crimes, wrongs or acts of a person is admissible for purposes other than those specified in subsection (a), such as to prove intent, identity, malice, motive, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal activity, or an element of the crime, or to corroborate crucial prosecution testimony.”
We address the defendant’s claim that there was insufficient evidence to establish his identity as one of the shooters in part IV A of this opinion.
The defendant states in his brief that Rosado “specifically denied that the defendant had threatened him or had any reason for shooting at him or at [Abdul-Hakeem].” The portion of the trial transcript cited by the defendant does not support this claim. When defense counsel asked Rosado, “[Y]ou didn’t know of any reason or difficulties that he had with you or your brother, is that right,” Rosado responded, “No.” (Emphasis added.) Defense counsel then asked, “So . . . you wouldn’t be aware of any reason he would have to shoot either one of you, is that a fair statement?” The state’s attorney objected to the question, but Rosado responded, “Yeah, that’s not a fair statement, no.” Defense counsel then withdrew the question and the trial court ordered the response stricken from the record. Defense counsel then asked Rosado whether he had told police shortly after the shooting that he was not aware of any reason for the shooting, and Rosado responded that he did not know why it happened.
In support of this claim, the defendant points to the following portion of the prosecutor’s closing argument: “I’d submit to you, ladies and gentlemen [that] identification, [is] clearly the issue here. Why [should Rosado] name the defendant? Why name him? Why put him in here? Why say that it’s this particular individual as opposed to somebody else? If . . . Rosado wants to get out from under the so-called problem with the parole officer, he could just give any name.
“But, he gives a name, and don’t forget the following testimony from . . . Rosado . . . Rosado says about a week before, and there’s no contradiction to this, the defendant is with a gun and [Robert] Payton. They’re discussing something, but what does the defendant do? Remember that? He shows him the gun, shows . . . Rosado the gun and says, you want some of this? That might not be the way that you work in your business, whether it’s teaching, whether it’s counseling, whether it’s working in a nursing home, maybe that’s not the way that you talk.
“But now in the mind of . . . Rosado, is that a threat made by the defendant to him?”
Under State v. Golding, supra, 213 Conn. 239-40, “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. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.)
The prosecutor stated: “[A]s part of his [plea] agreement, and again, you might recall it came out on cross-examination, he has a possibility of getting less time in jail, but for what? For testifying? No, that’s one factor, but for testifying truthfully.
“So therefore, if the jury has to make a determination on credibility on what [Tony] Payton has said, you have to think about the other side of this. If he’s lying to anybody, it doesn’t matter to you, to anybody, his plea agreement is gone and he can get up to ten years.
“The same holds true for . . . Rosado also. [Defense counsel] touched on this. If he lies, that’s going to affect him. And [defense counsel] agreed there is no plea agreement, no deal with . . . Rosado. There’s no evidence he’s hoping for anything.”
He does claim, however, that “this same prosecutor’s office has previously been severely criticized ... for trying to make a similar vouching argument,” and cites Bond v. Commissioner of Correction, 87 Conn. App. 50, 59-60, 863 A.2d 757, cert. denied, 273 Conn. 912, 870 A.2d 1079 (2005). See also Bond v. Warden, Superior Court, judicial district of Danbury at Danbury, Docket No. 020345928S (May 28, 2003). In Bond, the prosecutor attempted to admit into evidence a plea agreement between a witness and the federal government requiring the witness to testify truthfully, and defense counsel objected on the basis of relevance. Bond v. Commissioner of Correction, supra, 60. In the presence of the jury, the prosecutor stated that he “ ‘knew that [the witness] would testify truthfully based on [his] personal knowledge gained from working on the case.’ ” Id. Defense counsel did not object to this remark. Id. The trial court stated that the truthfulness of the witness would be decided by the jury and the prosecutor could not vouch for his credibility. Id. The court sustained the defendant’s objection and struck the evidence pertaining to the plea agreement. Id. The defendant later filed a petition for writ of habeas corpus in which he claimed that his attorney had been ineffective when he failed to object to the prosecutor’s statement regarding his personal knowledge of the witness’ truthfulness. Id., 59. The Appellate Court rejected this claim, concluding that, in light of the trial court’s critical statements to the prosecutor, defense counsel had made a strategic decision not to object to the remark. Id., 60.
Thus, contrary to the defendant’s argument in the present case, the trial court in Bond did not criticize the prosecutor for pointing to testimony pertaining to the provisions of a plea agreement requiring the witness to be truthful. Rather, the court criticized the prosecutor for vouching for the truthfulness of a witness on the basis of his personal knowledge. Whether the trial court properly excluded evidence pertaining to the plea agreement between the witness and the federal government was not at issue in Bond.
Tony Payton testified that he had recognized the defendant at the time of the shooting because he had seen him many times in the neighborhood, but that he did not know his name or street name. He also testified that he had recognized one of the shooters as McClain. After the shooting, he heard rumors that someone named “Kaiser” had been involved, but he did not know that that was McClain’s street name until April Edwards told him so two months after the shooting.
Tony Payton testified that he was on his way to Pettway’s on the night of the shooting when a man on the other side of the street, whom he did not recognize, told him to “watch out, there [are] some guys riding around in a white car, I don’t know what they [are] up to.” Payton then decided to avoid the street and to cut through the backyards of the houses on the south side of Stratford Avenue. When he arrived at the area near the intersection of Stratford Avenue and Fifth Street, he hid next to a house on the south side of Stratford Avenue for a period of time. He testified that he was able to see all of Fifth Street and the area in front of the door to Pettway’s from his hiding place. When he was asked to point out his location on a police sketch of the area, he pointed to an area to the southeast of Pettway’s, near a utility pole. The defendant argues that, if Payton had been hiding in that area, his view of Pettway’s and Fifth Street would have been blocked by the utility pole.
The defendant also contends that he could not be found guilty of attempted murder under a theory of transferred intent. See State v. Hinton, 227 Conn. 301, 316-18, 630 A.2d 593 (1993) (doctrine of transferred intent does not apply to attempt crimes). Because the state did not prosecute the defendant under a theory of transferred intent, and the jury received no instructions on the doctrine, we need not address this issue.
The jury also reasonably could have concluded that, even if the defendant’s hostility toward Robert Payton’s associates did not extend to Burton, the defendant wanted to eliminate witnesses to the shooting.
General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”
As we discuss in part V of this opinion, the trial court instructed the jury on the principles of accessory liability.
In his main brief, the defendant contends only that the evidence presented at trial was insufficient to support a finding that he intended to kill Burton. In his reply brief, he contends for the first time that it was unethical and a violation of due process for the prosecutor to put forward factually inconsistent theories during the presentation of evidence and at the sentencing hearing. See Smith v. Groose, 205 F.3d 1045 (8th Cir. 2000). As we have indicated, however, the prosecutor’s suggestion that Burton was an innocent bystander was not necessarily inconsistent with his claim that the defendant intended to kill Burton. In any event, “[i]t is a well established principle that arguments cannot be raised for the first time in a reply brief.” (Internal quotation marks omitted.) State v. Peeler, 271 Conn. 338, 373 n.36, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005). Accordingly, we decline to address this claim.
“Kenny” apparently was John Soares’ nickname.
The defendant relies on Tony Payton’s testimony that “whoever [the defendant] wanted he had, he could have got everybody.”
Rosado testified that, immediately after the shooting, Abdul-Hakeem was lying on the ground near the door to Pettway’s and a man named “Country” then dragged him toward the van. Rosado also testified that, after he and Abdul-Hakeem were taken to the hospital, he was initially told that his brother was going to live. The medical examiner’s report indicates that Abdul-Hakeem “lost pulses” after he was brought to the emergency room, and was declared dead at 4:21 a.m.
Under the common design theory, “[a]U who join in a common design to commit an unlawful act, the natural and probable consequence of the execution of which involves the contingency of taking human life, are responsible for a homicide committed by one of them while acting in pursuance of, or in furtherance of, the common design.” (Internal quotation marks omitted.) State v. Cots, 126 Conn. 48, 59, 9 A.2d 138 (1939).
Under the Pinkerton doctrine, “a conspirator may be held liable for criminal offenses committed by a coconspirator if those offenses are within the scope of the conspiracy, are in furtherance of it, and are reasonably foreseeable as a necessary or natural consequence of the conspiracy.” State v. Diaz, 237 Conn. 518, 526, 679 A.2d 902 (1996), citing Pinkerton v. United States, 328 U.S. 640, 647-48, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946).
The state contended at oral argument before this court that, because the trial court had held multiple charging conferences with the defendant and the state, review of this claim is precluded by State v. Cruz, 269 Conn. 97, 106-107,848 A.2d 445 (2004) (Golding review is not available for unpreserved claims of induced instructional error). In Cruz, however, the defendant actually requested the instruction that he later claimed to be improper. Id., 102. The state does not suggest that the defendant in the present case requested the challenged instruction. Accordingly, we conclude that Cruz is not applicable here.
The court instructed the jury that it could convict the defendant as an accessory only if it found that he possessed the following: “the mental state required for the commission of an offense”; “the mental state required, that is the criminal intent required by the statute for the commission of the crime”; “a criminality of intent and an unlawful purpose in common with the actual perpetrator”; “criminal and common intent [with the perpetrator]”; “the same criminal intent required for the crime for which he is an accessory”; “the intent to commit the crime of murder . . . where, as here, he [is accused of being] an accessory by aiding the commission of that crime”; “the same mental state required for the commission of the underlying crime and . . . the same unlawful purpose in common with the person who actually commits that crime”; and “the same criminal intent and unlawful purpose necessary to be guilty of the crime as does the actual perpetrator, that is, the principal.”
