State v. Clark, (AC 18365)

• Court: Appellate Court of Connecticut
• Writing for the Court: FOTI, J.
• Citation: 62 Conn. App. 182,774 A.2d 183
• Parties: STATE OF CONNECTICUT v. DUANE CLARK
• Docket Number: (AC 18365)
• Decision Date: 06 March 2001

62 Conn. App. 182
774 A.2d 183

STATE OF CONNECTICUT
v.
DUANE CLARK

(AC 18365)

Appellate Court of Connecticut.

Argued September 14, 2000.

Officially released March 6, 2001.

Lavery, C. J., and Foti and Landau, Js.

774 A.2d 183

Michael O. Sheehan, special public defender, for the appellant (defendant)

Rita M. Shair, assistant state's attorney, with whom were Michael Dearington, state's attorney, and, on the brief, Elpedio N. Vitale, senior assistant state's attorney, for the appellee (state).

Opinion

FOTI, J.

The defendant, Duane Clark, appeals from the judgment of conviction, rendered after a jury trial, of criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c.¹ On appeal,² the defendant claims that the trial court improperly (1) admitted evidence of uncharged misconduct, (2) allowed the state to exclude a member of the defendant's racial group from the jury and (3) instructed the jury that it could not speculate regarding the effect that a witness'

774 A.2d 184

admitted use of marijuana had on the witness' ability to see and comprehend the events. We affirm the judgment of the trial court

The jury reasonably could have found the following facts. Tyrese Jenkins, Hopeton Wiggan, David D., Kenny Cloud and Brucie B. were members of a gang named after a housing project in New Haven. On October 7, 1996, at approximately 11:15 p.m., the gang members went to a housing project, also located in New Haven and referred to as "the ghetto," to settle a dispute with the defendant and others, who were members of a rival gang.³

Cloud stayed in the car, while Jenkins, Wiggan, David D. and Brucie B., with guns at their sides, went looking for the defendant. The four men entered the housing project through a hole in a fence. As they approached, they noticed the defendant with three others, namely, Charles Green, Bobby "B.O." Cook and Ryan Baldwin, who were standing and talking near a green electrical box. When the defendant and the others noticed the gang members approaching, the defendant exclaimed, "Shoot the motherfucker," and a gunfight ensued.

When the first shots were fired, Wiggan and Brucie B. ran for cover behind a dumpster, and Jenkins ran diagonally across a parking lot located in the complex. Both sides exchanged a barrage of gunfire. As Wiggan, Brucie B. and Jenkins retreated from the complex, Jenkins was shot in the leg. He continued to hobble quickly away from the complex until another bullet struck him and he collapsed. Wiggan and Brucie B. went back into the complex and found Jenkins sitting up against a wall. The two picked up Jenkins and carried him to the car. Cloud, David D., Brucie B. and Wiggan took Jenkins to

774 A.2d 185

Yale-New Haven Hospital, where he died from his injuries

Leroy Townsend, a local man, was standing near the electrical box, smoking marijuana,⁴ when he witnessed the beginning of the disturbance. At trial, Townsend testified that he saw the defendant at the scene with a pistol and that he heard him say, "Shoot the motherfucker," to Green.⁵

Arkady Katsnelson, a forensic pathologist, performed an autopsy on the victim. Katsnelson testified that Jenkins suffered two bullet wounds, one of which was fatal. One bullet, a nine millimeter round, entered the lower front portion of Jenkins' right leg and exited from the back of it. The other bullet, a .44 caliber round, which caused the fatal wound, entered through the upper right side of Jenkins' chest just below his collarbone and then penetrated his chest wall, right lung, heart, diaphragm, part of his liver and organs of his abdomen, and eventually lodged in his abdominal cavity. Additional facts will be provided as needed.

I

The defendant first claims that the court improperly admitted evidence of prior uncharged misconduct committed by him because the admission of this evidence prejudiced him, and, therefore, he is entitled to a new trial. Specifically, the defendant contends that the court improperly admitted Idella Davis' testimony that she saw the defendant in possession of a nine millimeter handgun approximately one week prior to the shooting in the present case. In response, the state argues that the court did not abuse its discretion by admitting the

774 A.2d 186

evidence because Davis' testimony did not unduly prejudice the defendant and because it established that the defendant had the means necessary to commit the crime. We agree with the state

The state made an offer of proof, outside the presence of the jury, regarding the admission of this evidence. The defendant objected on the grounds that the evidence was too far removed from the incident giving rise to the present case and that it unduly prejudiced him. The court overruled the defendant's objection and admitted the evidence at trial.

"The standard of review is clear. The admission of evidence of prior uncharged misconduct is a decision properly within the discretion of the trial court.... [E]very reasonable presumption should be given in favor of the trial court's ruling.... [T]he trial court's decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done.... State v. Cooper, [227 Conn. 417, 426-27, 630 A.2d 1043 (1993)].... State v. Oliver, 48 Conn. App. 41, 51, 708 A.2d 594, cert. denied, 244 Conn. 930, 711 A.2d 729 (1998).

"Evidence of a defendant's prior misconduct is not ordinarily admissible to prove his bad character or criminal tendencies. State v. Williams, 203 Conn. 159, 185, 523 A.2d 1284 (1987); see State v. Ortiz, 40 Conn. App. 374, 378, 671 A.2d 389, cert. denied, 236 Conn. 916, 673 A.2d 1144 (1996). Evidence of other misconduct, however, may be allowed for the purpose of proving many different things, such as intent, identity, malice, motive or a system of criminal activity ... or an element of the crime.... State v. O'Neill, 200 Conn. 268, 273, 511 A.2d 321 (1986); State v. Sierra, 213 Conn. 422, 428-29, 568 A.2d 448 (1990); State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982); State v. Falby, 187 Conn. 6, 23, 444 A.2d 213 (1982); State v. Busque, 31 Conn. App. 120, 128, 623 A.2d 532 (1993), appeal dismissed,

774 A.2d 187

229 Conn. 839, 643 A.2d 1281 (1994). Such evidence, however, to be admissible must also be relevant and material. State v. Asherman, 193 Conn. 695, 728, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985); State v. Smith, 198 Conn. 147, 157, 502 A.2d 874 (1985); State v. Ibraimov, supra, 352; State v. Wiedl, 35 Conn. App. 262, 265, 644 A.2d 1313, cert. denied, 231 Conn. 914, 648 A.2d 160 (1994).

"The trial court has broad discretion not only to rule on the relevancy of evidence; State v. Jones, 205 Conn. 638, 666-67, 534 A.2d 1199 (1987); but also to determine the scope of cross-examination. State v. Cooper, [supra, 227 Conn. 431]; State v. Hernandez, [224 Conn. 196, 208, 618 A.2d 494 (1992)]; State v. Sharpe, 195 Conn. 651, 657, 491 A.2d 345 (1985). Uncharged misconduct evidence must satisfy a two part test in order to be admitted as an exception. The evidence must be relevant and material to at least one of the claimed exceptions and its probative value must outweigh its prejudicial effect. State v. Cooper, [supra, 427]. State v. Wiedl, supra, 35 Conn. App. 265.... State v. Moore, 49 Conn. App. 13, 21-22, 713 A.2d 859 (1998).

"When relevant evidence of other crimes is offered, the trial court must still consider whether its prejudicial tendency outweighs its probative value before ruling upon its admissibility.... State v. Braman, 191 Conn. 670, 676, 469 A.2d 760 (1983). Because of the difficulties inherent in this balancing process, we will uphold the trial court's ruling on the admission of uncharged misconduct evidence unless there is a manifest abuse of discretion or an injustice appears to have been done. Id.; State v. Harris, [43 Conn. App. 830, 837, 687 A.2d 544 (1996)].... State v. Vega, 48 Conn. App. 178, 191, 709 A.2d 28 (1998)." (Internal quotation marks omitted.) State v. Greene, 52 Conn. App. 617, 619-21, 727 A.2d 765, cert. denied, 248 Conn. 922, 733 A.2d 845 (1999).

774 A.2d 188

Here, the assistant state's attorney (state's attorney) presented an offer of proof, outside the presence of the jury, prior to the court's ruling on the evidence. The following exchange took place:

"[State's Attorney]: Miss Davis, on September 30, 1996, in the evening hours, is it true that you made a complaint to the police about a threatening incident?

"A. Yes.

"[Green's Attorney]: Your Honor, I'd object. This is what goes to the heart of our motion in limine number two.

"[State's Attorney]: Which is why we're doing it without the jury being here.

"The Court: Overrule the objection.

"[State's Attorney]: Is that right?

"A. Yes.

* * *

"Q. And do you recall what the address is there?

"A. No.

"Q. Would it refresh your recollection to look at a report talking about it?

"A. Yeah.

"Q. If you could read the first sentence to yourself.

"A. That's her address.

"Q. What address is that?

"A. 202 Hamilton Street.

"Q. And at that occasion did you have the opportunity to see Chase Green?

"A. Yes.

774 A.2d 189

"Q. And you saw [the defendant]?

"A. Yes.

"Q. Ryan Baldwin?

"A. Yes.

"Q. And also [the defendant's] brother, Andre, is that right?

"A. I don't know the other people that was there because they was, they had something on their face.

"Q. But you saw [the defendant], Ryan and Chase?

"A. Yes.

"Q. And did you see them in possession of weapons?

"A. Yes.

"Q. And what weapon did you see Ryan Baldwin in possession of?

"A. I didn't see his weapon because he was behind me.

"Q. And what about [the defendant]?

"A. He was on, I was trying to get in my sister's car and he just, but I saw the gun, it was like a black, like a nine or something like that, it was big.

"Q. And how about Chase, what kind of gun did he have, do you recall?

"A. Them western guns. It was silver and...