State v. Booker
| Decision Date | 17 September 1992 |
| Docket Number | No. 9574,9574 |
| Citation | 611 A.2d 878,28 Conn.App. 34 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. Gregg BOOKER. |
Jerome J. Rosenblum, Stamford, for appellant (defendant).
Carolyn K. Longstreth, Asst. State's Atty., with whom was James Bernardi, Asst. State's Atty., and, on the brief, Eugene Callahan, State's Atty., for appellee (state).
Before EDWARD Y. O'CONNELL, FREDERICK A. FREEDMAN and CRETELLA, JJ.
The defendant appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to sell narcotics in violation of General Statutes §§ 53a-48 and 21a-277 and two counts of manslaughter in the first degree in violation of General Statutes § 53a-55(a)(3). 1 The defendant claims that the trial court (1) lacked jurisdiction to try him on the two counts of manslaughter in the first degree because the murder counts with which he was originally charged were dismissed with prejudice at the probable cause hearing, (2) improperly denied his motion for acquittal on one of the two counts of manslaughter in the first degree, and (3) improperly charged the jury on the issue of causation with respect to both manslaughter counts. We affirm the judgment of the trial court.
The jury could reasonably have found the following facts. On July 18, 1988, Lamont Oliver, the defendant and two or three others 2 drove from New Haven to Roodner Court, a housing project in Norwalk, to settle a dispute regarding the sale of narcotics. They arrived at the housing project at approximately 11 p.m. and approached an open area between building 13-14 and building 19-20, where they paused at the top of a stairwell that overlooked the open area. Between thirty and 100 people were gathered in the parking lots and courtyard below. Oliver carried an assault rifle, which he had wrapped in his jacket. The defendant had a handgun, either a .38 or a .357 caliber, under his shirt.
Oliver spotted Michael "Fat Mike" Morris and Johnny Brown, a resident of Roodner Court and a convicted narcotics dealer, in the crowd. Brown and Morris were standing across the parking lot from Oliver and the defendant. Seeing Oliver unwrap his weapon, Brown stated to Morris, "Let's get out of here." They both ran through the crowd as they tried to get away.
Oliver fired shots in the air and the defendant took his handgun out of his shirt. Oliver fired in the direction of Brown and Morris as they ran for cover. He and his accomplices, including the defendant, thereafter began firing into the open area at random for approximately one and one-half minutes as they descended the stairs. Oliver, the defendant and the others with them then turned to leave, and two men in the area below, using handguns, not long barreled weapons, fired back at them as they retreated.
As a result of this gunfire, Everne Johnson, a pregnant woman who was sitting on a bench in front of building 20, was struck in the back by a bullet and died shortly thereafter. In addition, Sean Clemmons, another resident of Roodner Court, was fatally shot in the head.
A bullet fragment recovered during the autopsy performed on Johnson was part of a .22 caliber high power center fire cartridge projectile, which was consistent with the type of ammunition fired from a gun designed to fire .223 caliber rounds. Cartridges of .223 caliber are used in many long guns and rifles such as an M-16, a Chinese version of the AK-47, or an AR-15. The jury could have found that the bullet that killed Johnson had been fired from an AK-47, and that the bullet that killed Clemmons was a .38 caliber which could have been fired from either a .38 or a .357 handgun.
As a result of the deaths of Johnson and Clemmons, the defendant and two others were each charged with three counts of murder, 3 which required that a probable cause hearing be held prior to their prosecution. General Statutes § 54-46a. During the course of the probable cause hearing, the state announced to the trial court that "after speaking with various witnesses today, and reviewing the evidence up to this point, the state has decided to substitute manslaughter in the first degree charges charging reckless conduct." The state filed substitute informations charging, inter alia, manslaughter in the first degree in violation of General Statutes § 53a-55(a)(3). Thereafter, there was discussion between the court, the various defense counsel and the state, both on the record and in chambers, regarding the possibility that the state might reinstitute the murder charges. To allay such possibility, the state indicated that it did not intend to reinstitute the murder charges. The state then moved to have them dismissed "with prejudice" and to proceed with the manslaughter charges. The trial court granted the state's motion, dismissed the murder charges "with prejudice," vacated the prior pleas and put the three defendants, including Booker, to plea on the substitute information, to which the defendant pleaded not guilty to all charges, including the manslaughter counts. 4 The defendant was subsequently convicted, after a jury trial, of both manslaughter counts. It was the granting of the state's motion to dismiss the murder charges "with prejudice" that the defendant claims deprived the trial court of jurisdiction to proceed with the charges of manslaughter in the first degree.
We must first determine the precise claim of the defendant. Initially, the defendant, in his brief, claimed that the dismissal with prejudice deprived the court of personal jurisdiction. At oral argument before this court, however, the defendant made it clear that he had abandoned his claim of lack of personal jurisdiction and was not claiming double jeopardy. What he does claim, for the first time at oral argument before this court, is that the granting of the motion to dismiss the murder charges "with prejudice" deprived the trial court of subject matter jurisdiction of the manslaughter charges. This claim is without merit.
The defendant never raised the issue of subject matter jurisdiction during the probable cause hearing, prior to or during the trial to the jury, or in his brief to this court. The first mention of subject matter jurisdiction was in oral argument to this court. We address the issue, however, because (Citations omitted; internal quotation marks omitted.) Vincenzo v. Warden, 26 Conn.App. 132, 135, 599 A.2d 31 (1991).
(Citations omitted; internal quotation marks omitted.) Castro v. Viera, 207 Conn. 420, 427, 541 A.2d 1216 (1988).
In the matter at hand there is no question that the trial court had the power to hear and determine criminal matters, which is "the general class to which the proceedings in question belong." Id.; see also State v. Carey, 222 Conn. 299, 305-306, 610 A.2d 1147 (1992). The trial court had "the authority to adjudicate [this] particular type of legal controversy." Id. The dismissal with prejudice entered by the trial court at the probable cause hearing, therefore, could not have divested the court of subject matter jurisdiction over the manslaughter charges.
A dismissal with prejudice may operate to preclude the state from seeking a conviction of any lesser included crime encompassed by the information being dismissed. See State v. Morrill, 193 Conn. 602, 612, 478 A.2d 994 (1984). It is important to distinguish, however, between a lack of subject matter jurisdiction and a possible defense or bar to the prosecution of a particular charge. More important for the present case is that a defense or bar to prosecution, such as a lack of personal jurisdiction, must be affirmatively raised by the defendant prior to trial or his right to its protection is waived. Practice Book §§ 808, 810, 811 and 815; State v. Vincent, 194 Conn. 198, 201-204, 479 A.2d 237 (1984). 5 A claim of a lack of subject matter jurisdiction, on the other hand, cannot be waived and may be raised at any time. Vincenzo v. Warden, supra. As we have determined that the defendant's claim is not properly one of subject matter jurisdiction and because it was not raised at any time prior to oral argument before us, it is considered waived. 6 Additionally, at oral argument before us, the defendant expressly waived or abandoned any claim other than a lack of subject matter jurisdiction.
The defendant next claims that, after the close of the state's case-in-chief, the trial court improperly denied his motion for judgment of acquittal. The defendant makes this claim only as to the manslaughter charge relating to the death of Johnson. 7 He argues that because there was evidence of return gunfire, and because the information required the state to prove that the gunfire of the defendant or his companions caused the victim's death, as opposed to the return gunfire from others in the courtyard, a reasonable doubt existed as to the cause of the victim's death. The defendant argues, therefore, that the jury could not have reasonably concluded, on the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence with respect to this particular victim established his guilt beyond a reasonable doubt.
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