State v. Carter, 16682

• Citation: 48 Conn.App. 755,713 A.2d 255
• Decision Date: 26 May 1998
• Docket Number: No. 16682,16682
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Henry CARTER.

Page 255

713 A.2d 255 48 Conn.App. 755 STATE of Connecticut
v.
Henry CARTER. No. 16682. Appellate Court of Connecticut. Argued Feb. 18, 1998.
Decided May 26, 1998.

Page 256

Neal Cone, Assistant Public Defender, for appellant (defendant).

Frederick W. Fawcett, Assistant State's Attorney, with whom, on the brief, were Jonathan Benedict, State's Attorney, and Stephen J. Sedensky III, Assistant State's Attorney, for appellee (State).

Before EDWARD Y. O'CONNELL, C.J., and SULLIVAN and CRETELLA, JJ.

SULLIVAN, Judge.

The defendant, Henry Carter, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a. The defendant was convicted for the same offense in 1991, but that conviction was reversed by our Supreme Court and the case remanded for a new trial. [48 Conn.App. 757] State v. Carter, 228 Conn. 412, 636 A.2d 821 (1994). A retrial resulted in the present conviction from which the defendant now appeals. On appeal, the defendant claims that the trial court improperly (1) limited the scope of the cross-examination of a witness, (2) restricted the testimony of the defendant and his mother, (3) charged the jury on the elements of self-defense, and (4) prohibited impeachment evidence of prior felony convictions. We affirm the judgment of the trial court.

The relevant facts are set out in State v. Carter, supra, 228 Conn. at 414-16, 636 A.2d 821. "On the afternoon of May 31, 1990, the Bridgeport police received a report of a shooting at Lugo's Market, a grocery store located on the east side of the city. When a police officer arrived at the market, he found the victim, Angel Diaz, lying face up on the floor, suffering from multiple gunshot wounds to the chest and abdomen. The victim was transported by ambulance to an area hospital where he later died from those wounds.

"Salvador Lugo, the owner of the market, had been alone in his store late that afternoon when he observed the victim enter the market, select a can of beer, and proceed into a shopping aisle near the front of the market. Lugo next observed the defendant enter the store and turn into the same shopping aisle as the victim. Due to the height of the market's display shelves, Lugo could not see into the aisle occupied by the victim and the

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defendant, and he heard no conversation between them. Moments after the defendant had entered the shopping aisle, however, Lugo heard three gunshots from the vicinity of the aisle and immediately thereafter observed the defendant walk slowly out of the store. Lugo then proceeded to the aisle from which the shots had been fired and found the victim lying on the floor. The victim's breathing was labored and he was bleeding from the chest.

[48 Conn.App. 758] "Lugo, who was acquainted with the defendant, provided the police with the defendant's description and directions to the defendant's home, which was located near the market. When the police arrived at the defendant's home, they were met at the door by the defendant's mother, Patricia Lindsay. She told the police that she resided there with her husband, Forrest Lindsay, and the defendant. In response to questioning by the police, Patricia Lindsay stated that her husband kept a handgun at their residence. She voluntarily produced the handgun, a .38 caliber Rossi revolver, for the police, who noted the model and serial number of the handgun and returned it to her. The police also obtained Patricia Lindsay's consent to search her home for the defendant, whom the police wanted to question, but they did not find him there.

"The following day, while searching for additional evidence at the market, the police discovered a bullet lodged behind an empty beer can in the area of the store where the victim had been shot. The police returned to the defendant's home and, with Forrest Lindsay's permission, took possession of the .38 caliber Rossi revolver. An autopsy of the victim's body revealed that his death had resulted from three gunshot wounds, including a wound caused by a bullet that had entered the victim's back and pierced his aorta. Subsequent investigation determined that one of the two bullets extracted from the victim's body and the bullet recovered from the market had been fired from the .38 caliber Rossi revolver obtained by the police from Forrest Lindsay." The defendant was later arrested and charged with murder.

I

The defendant's first claim is that the trial court violated his right of confrontation guaranteed under the sixth and fourteenth amendments to the United States [48 Conn.App. 759] constitution and the constitution of Connecticut, article first, § 8, by refusing to allow him to cross-examine Lugo regarding whether Lugo feared Diaz.

The following additional facts are necessary for a resolution of this claim. On the day of the shooting, Lugo gave a statement to the Bridgeport police in which the following excerpted question and answer appears. An officer asked Lugo: "Did you know the Puerto Rican male that was shot?" Lugo replied: "No, I don't know his name, but once in a while he came into the store; he wasn't a regular customer." At trial, however, Lugo testified that he knew Diaz by the names "Angelo" and "Angel" as well as by the name "Potato Ass," a nickname used by Diaz' friends. Lugo testified that Diaz was a regular customer who came into the store "all the time." Lugo also testified that he would see Diaz "out on the block" with his friends. When defense counsel asked Lugo if he knew whether Diaz' friends lived in the neighborhood, the state objected on the ground of relevance, and the jurors and Lugo were excused.

Defense counsel argued that he should be allowed to inquire into the relationship between Diaz and Lugo to demonstrate that the inconsistencies in Lugo's testimony were due to Lugo's fear of Diaz. The trial court ruled that the question was outside of the scope of direct examination and that the defendant had not established a foundation sufficient to allow inquiry into Lugo's motivation or bias, areas that would be irrelevant but for the inconsistencies between Lugo's trial testimony and the statement he gave to the police. The trial court gave defense counsel the choice either to make an offer of proof to establish such a foundation or to pursue this line of inquiry in the defendant's case-in-chief. Defense counsel chose not to make an offer of proof. ¹

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[48 Conn.App. 760] "Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted." (Internal quotation marks omitted.) State v. Bova, 240 Conn. 210, 218, 690 A.2d 1370 (1997). This right, however, is not absolute, "but may bow to other legitimate interests in the criminal trial process.... Such an interest is the trial court's right, indeed, duty, to exclude irrelevant evidence. The confrontation clause does not ... suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination.... Only relevant evidence may be elicited through cross-examination.... The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. Every reasonable presumption should be made in favor of the correctness of the court's ruling in determining whether there has been an abuse of discretion." (Citations omitted; internal quotation marks omitted.) Id., at 219, 690 A.2d 1370. "Impeachment of a witness for bias is a matter of right, but where no foundation has been laid by cross-examination of the witness who is under attack for bias, the decision to admit impeaching evidence is within the discretion of the court." State v. Plaza, 23 Conn.App. 543, 548, 583 A.2d 925 (1990), cert. denied, 217 Conn. 811, 587 A.2d 153 (1991).

We conclude that the trial court did not unduly restrict the defendant's cross-examination of Lugo. The court gave the defendant the option to make an offer of proof outside of the presence of the jury or to take up the matter of Lugo's fear of Diaz in his case-in-chief. The defendant was not foreclosed from asking Lugo if [48 Conn.App. 761] he feared Diaz. We find that the court's rulings relative to the cross-examination of Lugo were not improper.

II

In his second claim, the defendant contends that certain of the trial court's evidentiary rulings violated his state and federal constitutional right to present a defense. Specifically, he claims that the trial court improperly excluded evidence of specific acts of misconduct by Diaz, excluded from evidence a 1989 police report, made comments on the evidence in the presence of the jury, and prohibited the defendant from testifying to his interpretation of a statement made to him by Diaz' friends and from testifying to the reason he purchased a gun. We address each of these claims separately.

We note at the outset that "[t]he trial court's ruling on the admissibility of evidence is entitled to great deference. State v. Castonguay, 218 Conn. 486, 497, 590 A.2d 901 (1991); State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985).... [E]videntiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. State v. Alvarez, 216 Conn. 301, 306, 579 A.2d 515 (1990)...." (Citations omitted.) State v. Hines, 243 Conn. 796, 801, 709 A.2d 522 (1998).

The following additional facts are necessary for a resolution of the defendant's claims. At trial, the defendant testified that he shot Diaz because he thought Diaz was going to kill him. The defendant testified that the character of the neighborhood in which he lived had deteriorated over the years and that Diaz sold drugs in front of the defendant's house. He also testified that he had had confrontations with Diaz on three separate occasions, and that he had seen Diaz in a shoot-out with a third party. The defendant testified that in 1988 or 1989 he...