State v. Carter, 12839

• Decision Date: 25 May 1994
• Docket Number: No. 12839,12839
• Citation: 640 A.2d 610,34 Conn.App. 58
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Che CARTER.

Page 610

640 A.2d 610

34 Conn.App. 58

STATE of Connecticut v. Che CARTER.

No. 12839.

Appellate Court of Connecticut.

Argued Nov. 30, 1993.

Decided April 12, 1994.

Certification Granted Limited to the

Following Issue May 25, 1994.

John R. Williams, New Haven, for appellant (defendant).

Carolyn K. Longstreth, Asst. State's Atty., with whom were James Turcotte, Asst. State's Atty., and, on the brief, Michael Dearington, State's Atty., for appellee (state).

Before EDWARD Y. O'CONNELL, FOTI and HEIMAN, JJ.

HEIMAN, Judge.

The defendant appeals ¹ from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a(a). ² On appeal, the defendant claims that the trial court improperly (1) refused to instruct the jury on self defense, (2) prohibited him from offering evidence of prior criminal misconduct of the victim and two state's witnesses, (3) admitted a transcript of the probable cause hearing testimony of a witness, (4) allowed the prosecution to submit claims that the defendant had intimidated state's witnesses, (5) allowed the prosecutor to make improper and unlawful arguments to the jury, (6) charged the jury on consciousness of guilt, (7) encouraged jury deliberations during the presentation of evidence, (8) conducted a jury trial without having a twelve person jury through all portions of the trial, and (9) denied him food during the midday recess. The defendant also claims the benefit of the issues set forth in the brief filed in State v. Dillon, 34 Conn.App. 96, 640 A.2d 630 (1994). ³ We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On December 28, 1989, at about 3 p.m., Willie Peterson, John Peterson and Wilbert Cannon were passengers in a gray Jeep Cherokee being operated by Paul Darden and owned by Darden's sister. The vehicle was traveling on Sylvan Avenue in New Haven. Cannon was armed with a Mac-11 gun, ⁴ while Willie Peterson was armed with a .380 handgun. ⁵ Darden stopped the vehicle at the corner of Asylum Street and Sylvan Avenue and John Peterson exited the car. He entered a corner store on the right side of the street and emerged approximately five minutes later. Cannon and Willie Peterson then exited the vehicle and began to walk up the left side of Asylum Street toward Davenport Street. Darden remained standing by the vehicle. Norman Dillon, Eric Bush, Paul Anderson, the defendant and possibly one other person appeared in the middle of Asylum Street about fifteen feet from Cannon and Willie Peterson. Several members of that group had threatened Cannon and Willie Peterson in the past.

Upon seeing the group, Willie Peterson and Cannon turned around and walked away. Gunshots rang out. ⁶ The group then consisted of only three or four people, ⁷ each of whom had a gun and was firing toward Cannon and Willie Peterson. The group firing at Willie Peterson and Cannon included the defendant. Cannon turned around, pulled out his gun, fired about thirty shots toward the group and ran toward a field on the left side of the street while Willie Peterson ran toward John Peterson on the right side of the street. ⁸ John Peterson observed Willie Peterson grab his back and fall to the ground, landing on top of his gun, which was cocked and in firing position. The defendant, Dillon and Bush ran up Asylum Street toward Davenport Street. Four males were also seen running down Davenport Street after the shooting.

Paul Halloran, an emergency medical technician employed by the New Haven fire department, arrived at the shooting scene approximately three minutes later. He observed a black male lying face down on the sidewalk of Asylum Street approximately two houses from the corner of Sylvan Avenue. The person did not appear to be breathing. He also observed a stainless steel gun lying a few feet away from the body, which he believed was a nine millimeter or .380 automatic, and several shell casings. Halloran assessed the victim's condition and found that the victim lacked vital signs. He then proceeded to remove the victims clothes to initiate CPR. At that time, Halloran noticed that the victim had suffered a gunshot wound to the back rib cage area. The victim was transported by ambulance to the Yale-New Haven Hospital. The victim lacked vital signs upon arrival at the hospital, and was pronounced dead.

The New Haven police conducted an investigation at the scene and discovered on Asylum Street thirty-four nine millimeter shell casings, one .380 shell casing and one shell casing of unknown caliber. In addition, the police extracted one live round from the .380 handgun lying next to the victim. Twenty-six nine millimeter shell casings were located on the left side of Asylum Street near the corner of Sylvan Avenue. These casings were found in the same area as the single .380 caliber casing. Eight nine millimeter shell casings were found on the left side of Asylum Street closer to Davenport Street. These nine millimeter casings were found in the same area as the five .45 caliber casings.

The next day, from a photographic array, John Peterson identified the defendant as being at the scene of the shooting. On December 30, 1989, Cannon identified the defendant as having been involved in the shooting of Willie Peterson.

On December 29, 1989, H. Wayne Carver, chief medical examiner for the state of Connecticut, performed an autopsy on the victim. The autopsy revealed a gunshot wound in the back. It showed that the bullet entered the body at a forty-five degree angle from the left side and below the body, so that the trace of the bullet in the body followed an upward path from left to right, as if the victim was bending over when he was shot. The path of the bullet in the body also indicated that the shot was fired from behind the victim. The bullet followed a path through the eleventh rib, the lower half of the left lung, the sac around the heart, and passed by the right lung and lodged in the collar bone. It caused damage to the left lung, the upper chambers of the heart, the aorta, the pulmonary artery, the superior vena cava, bruised the right lung and partially fractured the clavicle. A .45 caliber bullet was removed from the victim's body during the autopsy. The state forensic laboratory determined that that bullet had not been fired from Cannon's nine millimeter gun or from Willie Peterson's .380 caliber weapon. Although the autopsy revealed cocaine in the nose of the victim, it failed to reveal its presence in the victim's blood.

On January 4, 1990, Detective Anthony Dilullo of the New Haven police department interviewed Maria Diaz about the shooting. Diaz identified the defendant as one of the persons involved. She also told Dilullo that Carter was on the left side of the street during the shooting.

On October 6, 1990, Adam Luth, an Orange police officer, observed a green Saab on Route 1, Boston Post Road, in Orange. He noted that the vehicle displayed a rear marker plate, but lacked a front plate. Luth noted that there was a passenger in the car. The officer sought information about the vehicle from the department of motor vehicles. The department advised Luth that it had no information about the vehicle. The Saab pulled into a gas station on Boston Post Road and stopped. The officer approached the vehicle and asked the driver for his operator's license, registration and insurance card. The operator identified himself as Carlos Carter. The officer checked his name with the dispatcher and was informed that there possibly was a warrant for the operator's arrest. The officer then asked the passenger for identification. The passenger stated that he had no identification and that he was Harold Goldston. The officer then requested information from the dispatcher concerning Goldston. Luth returned to talk with the vehicle's operator, who was pumping gas. The officer asked the operator the name of the passenger and the operator told the officer that the passenger was his brother Che. The officer then asked the passenger to exit the vehicle and asked him for his real name. The passenger said that his name was Che Carter. The dispatcher informed the officer that the arrest warrant was for Che Carter. The New Haven police department informed the Orange police that Che Carter had a round scar on the right forearm. The officer saw such a scar on the passenger's right forearm. The Orange police then detained the defendant until the New Haven police arrived. Dilullo came to the Orange police department and positively identified the defendant as the person wanted for murder. The detective then placed the defendant under arrest.

I

The defendant first asserts that the trial court denied him his state and federal constitutional rights by improperly refusing to instruct the jury on the issue of self-defense. We are unpersuaded.

Certain additional facts are necessary for a proper resolution of this issue. The defendant, on January 13, 1992, the day final arguments commenced, submitted a request to the trial court to charge the jury on the law of self-defense. The trial court declined to give the charge because it was of the opinion that there was no evidence on the issue presented at trial and that the request did not comply with the requirement of the rules of practice of a timely request to charge. Practice Book § 853. ⁹ The next day, the jury asked the trial court whether it had addressed the issue of self-defense in its charge. The trial court answered "No."

We first note that the request to charge does not appear to have been timely filed. The record reflects that on January 9, 1990, the trial court instructed counsel that they were to file requests to charge on the morning of January 10, 1990. ¹⁰ The transcript further reveals that defense counsel did not file his requests until January 13, 1990, the day of final arguments. Thus, the defendant failed to meet the obligation cast upon him by the trial...