State v. Campbell
Decision Date | 15 April 2014 |
Docket Number | No. 35571.,35571. |
Citation | 88 A.3d 1258,149 Conn.App. 405 |
Court | Connecticut Court of Appeals |
Parties | STATE of Connecticut v. Kevin Patrick CAMPBELL. |
OPINION TEXT STARTS HERE
Moira L. Buckley, for the appellant (defendant).
Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were David M. Shepack, state's attorney, and Dawn G. Gallo, senior assistant state's attorney, for the appellee (state).
GRUENDEL, BEAR and FLYNN, Js.
The defendant, Kevin Patrick Campbell, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a–54a, as enhanced by General Statutes § 53–202k for having used a firearm. On appeal, the defendant claims that (1) the court improperly marshaled evidence during the jury charge; (2) the court abused its discretion in granting the state's requestto make a missing witness argument; (3) the court erroneously precluded the testimony of proffered defense expert witnesses, Peter Morgan and Gregory Danas; and (4) prosecutorial impropriety deprived the defendant of a fair trial. We affirm the judgment of the trial court.
The jury reasonably could have found the following facts. On June 27, 2008, the five members of a group called the Forbidden Motorcycle Club (club) held a weekly meeting at their clubhouse in Torrington. The members of this group included the victim, Roland Lagasse; the defendant; the defendant's brother, James Campbell (Campbell); Eugene Thebarge; and Jerome Welsh. These members sat around a table to discuss “usual club stuff ... about what happened [in] previous weeks, what club members have done, [and to] pay dues.” After finishing with old business, they moved on to new business. The victim announced that Welsh would receive his one year patch, demonstrating that he had fulfilled all his duties associated with the club. An argument thereafter ensued between the victim and Campbell.1 Thebarge testified that “[the victim] was trying to make a point ... and [Campbell] kept seeming to interrupt him.” The defendant “would chime in once in a while to [Campbell's] defense to help [Campbell] make his point.” The victim “started to get a little steamed, a little angry” and “after [the victim] got fed up with [Campbell] interrupting him, he said, ‘Do you want to step outside and settle this old school?’ ” and Campbell said, “Yeah, if that's what you wanna do.” The defendant also got up and said, “Yeah, I'll go outside.” All five members then went outside, led by the victim. The victim then “struck [Campbell] with his right hand on the left temple ... knocking [him] up against the building, where [he] hit the building and slid down.” Thebarge further testified that as the defendant was making that statement, he saw the defendant “kind of fumbling around on the right side ... and that's when the pistol came out, and [he] kind of cocked his head forward, drew the pistol up straight, and then pulled the trigger.” 2 The victim then stumbled back a step or step and a half and fell backward. Thebarge asked the defendant, “What ... did you do ...?” And the defendant said, “I ... killed him.” Thebarge began cardiopulmonary resuscitation on the victim and told his fiance', Jennifer Mercado, to call 911. Police officers arrived shortly thereafter and asked who the shooter was, to which the defendant replied, “I am.”
The defendant thereafter was arrested and charged with murder with a firearm. The case proceeded to a jury trial, after which the jury found the defendant guilty. The court rendered judgment accordingly and sentenced him to a total effective term of thirty-five years incarceration, with a five year enhancement, for a total effective sentence of forty years. This appeal followed.
The defendant first claims that the court improperly marshaled evidence during the jury charge, which he argues deprived him of his constitutional right to a fair trial. Assuming, without deciding, that the court improperly marshaled evidence, we conclude that, in considering the charge as a whole, the error was harmless.
The following additional facts are relevant to this claim. The defendant testified that the victim first hit Campbell with three or four quick punches to the head until he fell to the ground. The victim then continued to hit and kick Campbell while he was down. According to the defendant, Thebarge also was standing nearby, with brass knuckles in his right hand, striking his fist into his left palm. The defendant told the victim, twice, to stop hitting Campbell, and after the second time, the victim charged at the defendant asking him, “you want some too?” After the victim hit the defendant, the defendant reached for the gun in the waistband of his pants. The defendant testified that he drew his gun in order to stop any further violence, but that he did not intend to shoot it. Rather, he stated that he caused the victim's death accidentally when the gun went off unintentionally. As an alternative to the lack of intent defense, the defendant also claimed that he was acting in self-defense.
In its charge to the jury, the court instructed: The court cautioned:
The court then addressed the substance of the murder charge against the defendant, stating: The court went on to address each element of the crime of murder with a firearm, and the state's burden to prove each element. It further detailed the issue of self-defense and its application to the charge of murder.
The court thereafter addressed the lesser included offenses of manslaughter in the first and second degrees with a firearm, again instructing the jury that it must find that the defendant was not guilty of murder before considering the lesser included offenses. In its instructions on the lesser included offenses, the court addressed the first element required for the state to prove a person guilty of manslaughter in the first degree: It further explained: (Citations omitted; internal quotation marks omitted.) McDermott v. Calvary Baptist Church, 263 Conn. 378, 383–84, 819 A.2d 795 (2003).
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