14 Conn. App. 67 | Conn. App. Ct. | 1988
The defendant appeals from the judgment of conviction, after a jury trial, of two counts of robbery in the first degree; General Statutes § 53a-134 (a) (2); burglary in the first degree; General Statutes § 53a-101 (a) (2); and possession of a sawed-off shotgun. General Statutes § 53a-211.
The defendant claims the trial court erred (1) in refusing to permit the defendant to introduce evidence that
Evidence was elicited during the trial which would support the jury’s finding of the following facts. At approximately 6 a.m. on November 14, 1985, Alberto Rodriguez (Alberto) and his girlfriend were occupying a bedroom at the rear of a New Haven apartment he shared with his cotenant, Josué Rodriguez (Josh) who, at that time, was in a front bedroom with his girlfriend, Stephanie Benjamin. Josh and his companion were awakened by the sound of the door to the hallway being kicked in. Immediately thereafter, three black males burst into the bedroom. One of the intruders, later identified as the defendant, stood over the couple holding a sawed-off shotgun and ordered Josh to lie on his stomach and to turn his head away. The intruder held the shotgun against the back of Josh’s head. Benjamin remained immobile, and was able to observe the defendant, who was unmasked.
Meanwhile, the second and third perpetrators passed through Josh’s bedroom, through the living room and then kicked or pushed open the door into Alberto’s bedroom. The room was unlit, so neither Alberto nor his girlfriend could identify the two men. Alberto leaped
At approximately 1 p.m. on that same day, November 14, 1985, Katherine Wright, who lived at 17 Dickerman Street, reported to the police that a young black male had just fired a shotgun in a neighboring yard and had then walked out of the yard onto Dickerman Street, with the shotgun slung over his shoulder. When police arrived on Dickerman Street, they encountered the young man, later identified as the defendant, and three or four other men standing near a light colored Ford Pinto. In the back seat of the car was a partially open blue gym bag, containing a sawed-off shotgun with a shoulder strap. In the yard behind 18 Dickerman Street, the police found a small pouch containing three unspent .14 gauge shotgun shells. Wright identified the defendant as the man who had fired the shotgun. At first, the defendant denied any involvement, but he later admitted having fired the weapon. The defendant was arrested for possession of a sawed-off shotgun.
Detective Leroy Dease, who was investigating the Rodriguez robbery, noticed that the defendant fit the description of the intruder given by Stephanie Benjamin. Dease then compiled a photo array consisting of eleven black and white photographs, including one of the defendant. On the afternoon of November 15,1985, Dease showed the array to Benjamin who picked out the defendant’s photo and stated that she was “95 percent sure” that he was the intruder she saw. Benjamin had. previously told the police that, although she
The defendant was tried before a jury and found guilty of the four crimes with which he was charged. The defendant now appeals his convictions to this court.
I
In his first claim, the defendant contends that the court committed error in excluding evidence proffered by the defendant that third parties could have committed the crime.
During the course of the trial, the defendant, in an offer of proof outside the presence of the jury, presented the testimony of three men as potentially exculpatory evidence. The first, Philip Parker, stated that he was serving a prison sentence for a street robbery he committed on December 19, 1985. When asked if he had used a shotgun in that robbery, he invoked his privilege against self-incrimination because he had not been convicted of possession of a shotgun in that case. He also denied any knowledge of the robbery at the Rodriguez apartment.
The defendant next offered the testimony of Ricardo Maldonado, who was serving a prison sentence for the same December 19, 1985 street robbery. Maldonado testified that Parker had indeed been armed with a
William Greene also testified during the offer of proof. He stated that he was currently incarcerated for his part in the December 19, 1985 street robbery, but denied any knowledge of the Rodriguez robbery. When asked if, while incarcerated at the Whalley Avenue jail, he had spoken to the defendant, he invoked his privilege against self-incrimination.
The defendant then proffered his own testimony that he had met William Greene at the Whalley Avenue jail and had told Greene about the charges pending against him for the Rodriguez robbery. According to the defendant, Greene said he had an idea who committed the crime because “the person” had come to him with “gold and drugs.”
On the basis of testimony proffered, defense counsel requested that the prosecutor grant immunity to William Greene “so that we could get his testimony with respect to whatever conversations that he had with Michael Watkins in the jail.” The prosecutor refused to grant immunity to Greene. The court, noting that the crimes were dissimilar and that the claim regarding exculpatory evidence was purely speculative, stated that it saw no basis for the state to grant immunity or for the jury to hear any of the proffered testimony. The defendant excepted to this ruling.
There is no merit to the defendant’s claim that the court erred by not accepting this testimony. On the basis of the facts and circumstances of this case, the court was justified in excluding the proffered evidence
We note that none of the proffered testimony directly connected any of the third parties to the crime committed at the Rodriguez apartment. State v. Kinsey, 173 Conn. 344, 348, 377 A.2d 1095 (1977); State v. Perelli, 125 Conn. 321, 328, 5 A.2d 705 (1939). Neither was that testimony sufficient to indicate that a “signature” type crime spree had occurred which would indicate the culpability of persons other than the defendant. See, e.g., State v. Morowitz, 200 Conn. 440, 442, 512 A.2d 175 (1986); State v. Mandrell, 199 Conn. 146, 152, 506 A.2d 100 (1986); State v. Carsetti, 12 Conn. App. 375, 380-81, 520 A.2d (1987). “ ‘[I]t is within the sound discretion of the trial court to refuse to admit such evidence when it simply affords a possible ground of possible suspicion against another person.’ ” State v. Giguere, 184 Conn. 400, 405, 439 A.2d 1040 (1981), quoting State v. Renteria, 21 Ariz. App. 403, 404, 520 P.2d 316 (1974). We can find no fault with the trial court’s proper exercise of its discretion.
II
The defendant’s second claim of error is closely related to his first. In essence, he asserts that the court, after hearing the testimony of Parker, Maldonado and Greene during the offer of proof, should have given “a judicial grant of immunity” to any or all of these potential witnesses and thereby compel them to testify. Our short response to such a claim is that our courts have no authority to grant such immunity. See State v. McIver, 201 Conn. 559, 567, 518 A.2d 1368 (1986); State v. McLucas, 172 Conn. 542, 561, 375 A.2d 1014, cert.
Ill
As his third claim, the defendant argues that the trial court committed error in refusing to admit, as a declaration against penal interest, the six page, written statement of Frank Hawley, Jr. Hawley, the owner of the Pinto in which the sawed-off shotgun was found, had given the statement to the police hours after the defendant had been arrested. Our review of the statement in question reveals that it was not a statement against the penal interest of Hawley, but was in fact a statement in which he denied having knowledge of the shotgun being in his car. The statement was exculpatory in nature, and could not conceivably be considered as against the penal interest of the declarant. See, e.g., State v. Hernandez, 204 Conn. 377, 392 n.8, 528 A.2d 794 (1987); State v. DeFreitas, 179 Conn. 431, 447 n.6, 426 A.2d 799 (1980). There is no merit to this claim.
The defendant also claims error in the trial court’s refusal to charge the jury on the element of possession in accordance with the definition included in the defendant’s requested jury instructions. The defendant was charged with violating General Statutes § 53a-211, which prohibits possession of a sawed-off shotgun. The defendant was specifically charged with possession of the shotgun at the Dickerman Street address where he admitted that he had held, carried, loaded, fired and controlled the weapon. In a request to charge, the defendant asked that the court instruct the jury that possession be defined as connoting “that such property is held by the possessor for a substantial period of time, either as owner of the property or as proprietor of a qualified right in it.” The requested definition is not a correct statement of the law and, therefore, the trial court was not obligated to give it. State v. Pollitt, 205 Conn. 61, 84, 530 A.2d 155 (1987); State v. Chetcuti, 173 Conn. 165, 170-71, 377 A.2d 263 (1977). The element of possession, as used in our criminal statutes, is expressly defined in General Statutes § 53a-3 (2), where it states: “ ‘possess’ means to have physical possession or otherwise to exercise dominion or control over tangible property.” The trial court correctly instructed the jury on the statutory definition of “possess,” and emphasized that the state was required to prove possession beyond a reasonable doubt. The charge as given in this case was a correct statement of the law and was sufficient to guide the jury in its determination as to whether the state sustained its burden of proving the element of possession. See State v. Hill, 201 Conn. 505, 514-15, 518 A.2d 388 (1986). The trial court did not err in refusing the defendant’s requested definition.
V
The defendant next claims that the trial court committed reversible error when it denied his motion in limine
VI
Finally, the defendant claims error in the trial court’s denial of his motion to suppress the identification made by Stephanie Benjamin on the ground that the photo identification procedure was so impermissibly suggestive as to render her out-of-court and in-court identifications unreliable. Our review of the record reveals that this claim is unsupported and that the procedures were neither impermissibly suggestive nor unreliable. See, e.g., Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972). See also State v. Mayette, 204 Conn. 571, 581-84, 529 A.2d 673 (1987);
We hold that the trial court acted appropriately and in accordance with applicable law with respect to the defendant’s claims of error.
There is no error.
In this opinion the other judges concurred.