State v. Collins, No. 29000.

• Decision Date: 23 December 2008
• Docket Number: No. 29000.
• Citation: 111 Conn.App. 730,961 A.2d 986
• Parties: STATE of Connecticut v. Ricardo COLLINS.
• Court: Connecticut Court of Appeals

961 A.2d 986

111 Conn.App. 730

STATE of Connecticut v. Ricardo COLLINS.

No. 29000.

Appellate Court of Connecticut.

Argued September 22, 2008.

Decided December 23, 2008.

Pamela S. Nagy, special public defender, for the appellant (defendant).

Adam E. Mattei, special deputy assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Howard S. Stein, assistant state's attorney, for the appellee (state).

DiPENTIMA, GRUENDEL and LAVINE, Js.

GRUENDEL, J.

The defendant, Ricardo Collins, appeals from the judgment of conviction, rendered following a jury trial, of murder in violation General Statutes § 53a-54a(a), felony murder in violation of General Statutes § 53a-54c and robbery in the first degree in violation of General Statutes § 53a-134(a)(2). On appeal, the defendant claims that the trial court improperly admitted evidence of his involvement in a shooting that took place several months prior to the events that led to the current prosecution. We conclude that the danger of unfair prejudice resulting from the admission of that evidence far outweighed its probative value. Accordingly, we reverse the judgment of the trial court.¹

The jury reasonably could have found the following facts. The victim, Calvin Hopkins,² and his former girlfriend, Quiana Staton, jointly operated a "business" in which Staton sold marijuana and Hopkins sold crack cocaine. At approximately 10:30 on the night of December 2, 2002, Hopkins went to Staton's Bridgeport apartment in a public housing project known as the Greens. He came to the apartment carrying a large "wad of cash" and retrieved an additional $500 to $600 from Staton's safe. Staton testified that Hopkins intended to use the money to purchase additional crack cocaine. Hopkins left Staton's apartment with the money at approximately 12 a.m. on the morning of December 3, 2002. He spoke to Staton on his cellular telephone approximately one hour later from his car in the parking lot of the apartment complex. During that conversation, Staton looked from her window to see Hopkins in his car talking to two unknown individuals. Staton later attempted to call Hopkins' cellular telephone at approximately 2 a.m. and again at 3 a.m. but received no answer to either of those calls.

Later that morning, at approximately 7:15, Bridgeport police were dispatched to a scene a short distance from Staton's apartment complex where a green sedan was parked in the road preventing a school bus from passing. Upon opening the door to the vehicle, the police discovered Hopkins "reclined in the front seat with his head leaning back and what appeared to be a large amount of blood in the interior of the vehicle."

At the scene, a physician from the medical examiner's office recovered a bullet shell casing from Hopkins' collar, and the currency that Hopkins had been carrying in the earlier hours of the morning was not found on his body. Two anomalous fingerprints were found on the vehicle: the defendant's fingerprint was found on the exterior of the rear driver's side door and that of another individual, Anthony Berrios, was found on the exterior of the front passenger door. An autopsy later revealed that Hopkins died from a gunshot wound to the head, and bullet fragments were recovered from his head.

The defendant became a suspect in this case because of his involvement in the nonlethal shooting of his cousin's husband, Stephen Rose, in August, 2002. A firearms examiner testified at trial that the shell casing recovered from Hopkins' collar at the scene of the homicide was fired from the same weapon that had been used in the August, 2002 Rose assault.

In the separate prosecution for the Rose shooting, the defendant was convicted of assault in the first degree in violation of General Statutes § 53a-59(a)(3) and carrying a pistol or revolver without a permit in violation of General Statutes § 29-35(a). He also was found to have used a firearm in the commission of a class B felony in violation of General Statutes § 53-202k.³ In his appeal from that conviction, this court determined that "[t]he jury reasonably could have found the following facts. On the afternoon of August 28, 2002, the defendant was walking near the intersection of Pembroke and Jane Streets in Bridgeport. The victim, Stephen Rose, was driving by that intersection in his employer's vehicle when he saw the defendant. Rose was acquainted with the defendant, who is a cousin of Rose's then wife. Rose wanted to speak with the defendant because he believed that the defendant recently had stolen and crashed a new car that Rose had purchased for his wife.

"The victim stopped his vehicle, exited it and called to the defendant. The victim confronted the defendant about the stolen car, and the defendant denied involvement. Further conversation ensued, and the dispute escalated. The two men were standing several feet apart when the defendant pulled a gun from the waistband of his pants. The victim raised his hands in the air but did not retreat to his vehicle, and he called the defendant a `bitch.' The defendant began firing his weapon into the pavement on either side of the victim, shooting four times. The bullets ricocheted, striking a nearby residence and the vehicle driven by the victim. Thereafter the victim lunged at the defendant in an attempt to tackle and disarm him. While the two men briefly were physically engaged, the defendant fired his weapon a fifth time. This gunshot entered the victim's elbow and lodged in his upper arm, causing serious injury.

"The victim fell to his knee and clutched his wounded elbow. The defendant then struck the victim on the head with the butt of his weapon and walked away. Emergency personnel arrived and transported the victim to the hospital where he underwent surgery to remove the bullet from his arm and received stitches to repair a cut on his head." State v. Collins, 100 Conn. App. 833, 836, 919 A.2d 1087, cert. denied, 284 Conn. 916, 931 A.2d 937 (2007).

The defendant turned himself in to the Bridgeport police in January, 2003, for the Rose shooting. During the course of the police questioning, the defendant admitted to shooting Rose but also indicated that he had since sold the gun. See id., at 837 n. 6, 919 A.2d 1087. While in police custody for the Rose shooting, the defendant was also questioned with regard to the Hopkins homicide. In his statement to police, the defendant admitted meeting with Hopkins in his car to purchase drugs during the night of December 2, 2002, but denied killing him.

The defendant's initial trial for Hopkins' murder was declared a mistrial after the jury returned deadlocked. At the subsequent trial, which resulted in the conviction, from which the defendant appeals, the state sought to introduce evidence of the defendant's role in the Rose assault, to which the defendant objected.⁴ The defendant, who was representing himself at the time, argued that any testimony regarding the Rose shooting would be "highly prejudicial" and of little probative value. He further argued that "[t]he state ... has me testifying that I had a gun and it got other evidence, and I was convicted of it, and I really don't see a need for this testimony here because ... it would inflame the jury.... I'm on trial right now for this murder case, and it's a shooting case. It's two shooting cases. And if they was to bring Stephen Rose, I think ... no matter what your instruction would be to the jury ... that it still would be lingering in them that somebody got shot. And I would ask that you not allow it in."

The court determined that the probative value of the evidence outweighed its potential for unfair prejudice; see Conn.Code Evid. § 4-3; and overruled the defendant's objection. It did, however, instruct the jury that the evidence could not be used to infer bad character of the defendant or his tendency to commit criminal acts. The defendant later objected to similar testimony, which was also overruled.

During deliberations, the jury twice communicated to the court that it was unable to reach a unanimous verdict as to one of the counts charged. After each communication from the jury, the court instructed it to continue its deliberations, the second time giving a formal Chip Smith instruction.⁵ The jury eventually returned a verdict of guilty of murder, felony murder and robbery in the first degree on March 21, 2006. The court rendered judgment in accordance with the jury's verdict, and the defendant was sentenced to forty-five years in prison on the merged counts of murder and felony murder and ten years on the count of robbery in the first degree. This appeal followed.

On appeal, the defendant claims that he "was deprived of a fair trial when the court allowed the state to introduce evidence about the Rose shooting." He argues that the probative value of evidence that he had shot and injured Rose did not overcome the risk of prejudice to his defense, even with the limiting instruction given by the court. He further asserts that although it may have been probative that he once owned a gun that produced shell casings that match the one found on Hopkins' collar, the fact that he shot Rose with that gun was irrelevant to proving anything for which such evidence would be admissible. The state, conversely, has not spent much time addressing the merits of the defendant's arguments. Rather, it argues that his claim is unpreserved and that the defendant waived his claim by permitting his statement with regard to the Rose shooting to be admitted into evidence. Either of these arguments presented by the state, if accepted, would be dispositive of the case, and we therefore begin by addressing them.

I

A

We first address the question of whether the defendant properly preserved his claim. The state contends that because the defendant objected only to the testimony of Rose and Detective Joseph Gallagher, the defendant's failure to object to the other instances...