State v. Bell
| Decision Date | 11 September 2007 |
| Docket Number | No. 17864.,17864. |
| Citation | 931 A.2d 198,283 Conn. 748 |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. Arnold BELL. |
Jeffrey C. Kestenband, special public defender, for the appellant (defendant).
Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, Gary Nicholson, senior assistant state's attorney, and Kevin Doyle, assistant state's attorney, for the appellee (state).
ROGERS, C.J., and NORCOTT, KATZ, VERTEFEUILLE and ZARELLA, Js.
The defendant, Arnold Bell, was convicted, after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59(a)(5),1 carrying a pistol without a permit in violation of General Statutes (Rev. to 2001) § 29-35(a),2 and criminal possession of pistol or revolver in violation of General Statutes (Rev. to 2001) § 53a-217c (a)(1).3 After further findings by the jury on a second part of the criminal information and a subsequent hearing by the court, the trial court enhanced the defendant's sentence for being a persistent dangerous felony offender in violation of General Statutes § 53a-40(a) and (h),4 and for committing a class B felony with a firearm in violation of General Statutes § 53-202k.5 The defendant directly appealed from the judgment of conviction to this court pursuant to General Statutes § 51-199(b)(3). The defendant claims that certain prosecutorial improprieties deprived him of a fair trial. He further claims that his sentence enhancement as a persistent dangerous felony offender violated his sixth amendment right to a trial by jury, because a finding that was a necessary predicate to the enhancement was made by the trial court, rather than by the jury, which should have made that finding beyond a reasonable doubt. Specifically, the issue we must determine is whether the trial court violated the dictates of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and its progeny when it imposed the sentence enhancement after its determination "that [the defendant's] history and character and the nature and circumstances of [his] criminal conduct indicate that extended incarceration and lifetime supervision will best serve the public interest . . . ." General Statutes § 53a-40(h). We reverse the judgment in part and remand the case for a new sentencing proceeding.
The jury reasonably could have found the following facts. On June 13, 2002, at approximately 9 p.m., Melanie Buckenjohn noticed a black male dressed in army fatigues, later identified as the defendant, loitering outside of the multifamily house she owned on Washington Avenue in the Hill section of New Haven. She walked outside and asked the defendant to leave her property, and he complied by walking to the street. Buckenjohn went back into the house and then pointed the defendant out to one of her tenants, Edeen Bass, and asked Bass to go speak to the defendant to ensure that he was not trying to break into Buckenjohn's car. Bass went outside and encountered the defendant and another black man wearing a white T-shirt, later identified as Gregory Hughes, a friend of the defendant. Bass noticed that the defendant was wearing a latex glove on his right hand. Buckenjohn also spoke to Niamien N'Guessan, another tenant, who lived in the basement apartment of Buckenjohn's house, apprising him of the situation and requesting that he watch the defendant, whom she pointed out standing near some trees nearby. N'Guessan then watched the defendant from a window in his apartment and observed him pacing around the area where Buckenjohn had pointed.6
Meanwhile, a team of police officers from a narcotics enforcement unit of the New Haven police department was driving through the Hill section of New Haven on its way back to the police station in an unmarked police van with tinted windows. Detective Martin D'Addio drove the van, Lieutenant Bryan Norwood, the unit's head, sat in the front passenger seat, and approximately ten to twelve additional officers, including Officer Robert Fumiatti, were seated in the rear of the van. Although the officers were dressed in plainclothes, they wore blue mesh vests with the words "Police" and "Narcotics" emblazoned in yellow lettering on the front and back and had their police badges hanging on chains around their necks, over the vests.
While driving on Washington Avenue, D'Addio observed two black males— Hughes, wearing a white T-shirt, and the defendant, wearing a green camouflage jacket and pants—standing near a tree and a white car. After observing what he interpreted as furtive movements by the two men, Norwood decided that the officers should stop and conduct a field interview and instructed D'Addio to pull over.
D'Addio stopped the van, Norwood exited from the front passenger door, and several other officers, including Fumiatti, exited from the right side door of the van. Norwood exited the van in sync with Fumiatti, focused on interviewing the defendant. The officers took approximately two steps toward the defendant when he raised his right hand in the direction of the officers. Norwood then saw a "muzzle flash" and heard a shot ring out from the direction of the defendant's arm. The flash created a halo of light around the defendant's face, and Norwood, who had been maintaining visual contact with the defendant since observing him from the van, saw his face from approximately twenty feet away. Norwood and Fumiatti fell to the ground, and the defendant fled the scene. Fumiatti had received a single, nonfatal gunshot wound to his head.
During this encounter, N'Guessan had been watching the defendant and Hughes from the window of his basement apartment, and observed the van pulling up near the white car. N'Guessan saw several people exit the van and the defendant pull his right hand from his pocket and raise it, and then heard a bang and saw a flash emanate from the vicinity of the defendant's right hand. He then observed the defendant flee the scene.
D'Addio, who was watching through the opened side doors of the van after the other police officers had exited, also observed the defendant raise his hand in the direction of the officers, and then heard a shot and saw a muzzle flash. D'Addio then watched the defendant flee. D'Addio exited the van and saw Fumiatti on the ground, bleeding from the head.
Hughes realized that the persons exiting the van were police officers, and raised both of his hands. Hughes then heard a sound like a firecracker come from close behind him. Police officers handcuffed and patted down Hughes, but found no weapons on his person.
Police later found the defendant lying under some bushes a few blocks away from the scene of the shooting. Norwood was driven to this location and identified the defendant as the person who had shot Fumiatti.
In a grassy area near the scene of the shooting, police found a .38 caliber Colt revolver with three live rounds and one spent shell casing in its cylinder. A latex glove was attached to the gun. The state was unable to recover any identifiable prints on the gun, and the defendant's DNA was not on the gun. The defendant could not be eliminated, however, as a donor of DNA found on the glove that was attached to the gun, and one in every 8700 African-Americans was a potential donor. Additionally, within a two block radius of the scene of the shooting, police found a camouflage jacket, which the defendant later admitted was his, a set of keys belonging to the defendant's mother, which the defendant later claimed to have dropped as he had fled, and two latex gloves of a different texture than the one found attached to the gun. Each of the two gloves bore the defendant's palm prints. No gunpowder residue, however, was present on either glove. The defendant's T-shirt and jacket contained traces of lead and one component of gunpowder residue, but did not contain traces of other components of gunpowder residue.
At trial, Rameek Gordon, the defendant's cousin, testified for the state under a cooperation agreement relating to drug charges unconnected to the present case. Gordon testified that, at the defendant's request, he had procured a gun for the defendant, and he identified the gun found at the scene as that gun. Gordon later admitted, however, that he could not be 100 percent certain that the gun used to shoot Fumiatti was the one he had given to the defendant. Gordon also testified that the defendant was a drug dealer, and the state contended that the defendant's drug business was the motive for the shooting.
The defendant testified in his own defense, offering the theory that Gordon was selling drugs at the scene and that Gordon may have been the shooter, although the defendant stated that he had not seen who actually shot Fumiatti. Specifically, the defendant testified to the following version of events. At the time of the shooting, the defendant was employed by Fleet Pride, a trucking parts company where the employees commonly wore latex gloves while working. On June 13, 2002, after returning home from work and taking a nap, he went to purchase a soda from a nearby store and encountered Gordon on the way. The defendant asked Gordon if he could purchase a bag of marijuana from him, and Gordon led him along a driveway between two cars where Gordon then squatted and removed from his rectum a bag containing various types of drugs. Gordon was wearing a latex glove, and the defendant, who was carrying latex gloves from his job, put on a pair to avoid touching any feces. Buckenjohn and another man approached the defendant, but he did not pay attention to what they said to him and just walked away. Gordon walked in a different direction, and the defendant did not see where he went, but noticed that Hughes had pulled up in the white car and went over to speak to him. Soon thereafter, a burgundy van pulled up very slowly, making the defendant suspicious, and he...
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