State v. Colon

• Decision Date: 02 July 2002
• Docket Number: (AC 22339)
• Citation: 70 Conn. App. 707,799 A.2d 317
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. NELSON COLON

70 Conn. App. 707

799 A.2d 317

STATE OF CONNECTICUT v. NELSON COLON

(AC 22339)

Appellate Court of Connecticut.

Argued March 27, 2002.

Officially released July 2, 2002.

Lavery, C. J., and Mihalakos and Flynn, JS. Alice Osedach-Powers, assistant public defender, for the appellant (defendant).

Melissa L. Streeto, special deputy assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Kevin J. Murphy, assistant state's attorney, for the appellee (state).

Opinion

MIHALAKOS, J.

The defendant, Nelson Colon, appeals from the judgment of conviction, rendered after a jury trial, of criminal possession of a pistol or revolver in violation of General Statutes (Rev. to 1995) § 53a-217c¹ and murder in violation of General Statutes § 53a-54a.² On appeal, the defendant claims that the trial court improperly (1) denied his motion for a mistrial following improper comments made by the prosecutor during closing argument, (2) instructed the jury regarding the element of intent, (3) admitted into evidence a videotape of the crime scene and (4) denied his motion to suppress out-of-court identifications of him made by several witnesses on the basis of a single photograph. In addition, the defendant argues that there was insufficient evidence to prove intent, an essential element of the crime of murder. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 2, 1996, Paul Tirado resided at 1 Malikowski Circle, New Britain. Noel Soto was temporarily living with Tirado during the previous months, and Amy Finn also occasionally stayed at the apartment. In addition, Marcos Jimenez lived at 23 Malikowski Circle and the defendant, Nelson Colon, resided with Luz Gonzalez at 65 Malikowski Circle. All of these people knew one another and were present at Tirado's home on August 2, 1996. Over the course of the day, Tirado, Soto, Finn, Jimenez and the defendant smoked "ready rock"³ and drank alcohol in the apartment.

At approximately 4 p.m., the defendant drove Soto to his mother's home to retrieve either his keys or his wallet. At that time, the defendant was intoxicated and had trouble operating the vehicle. The two returned to Tirado's home, but the defendant left after about one hour. At approximately 7 p.m., the defendant returned to Tirado's house with Jimenez. Jimenez brought with him a supply of "ready rock" that he shared with the group. Shortly thereafter, the defendant and Tirado argued, and the defendant angrily left the apartment.

About fifteen minutes after the defendant departed, the victim, Ramon Rivera, arrived. Soto was the only person in the apartment who previously had known Rivera. Rivera planned to stay for the night and took a shower shortly after he arrived.

In the meantime, the defendant drove home after leaving the apartment. He walked into his home, walked upstairs and left right away. The defendant returned to Tirado's home and entered the apartment without knocking on the door, causing a ruckus. As Rivera was walking out of the bathroom, he told the defendant to "lower your voice and respect the man's house." The defendant responded, "I don't like you." After stating, "[A]s a matter of fact, I really don't like you," the defendant began shooting at Rivera. Soto witnessed a struggle between the defendant and Rivera, and watched as Jimenez attempted to intervene. Soto escaped through the kitchen door.

While this was happening, Tirado and Finn were in the bedroom. They heard the gunshots and Finn looked to see what was happening. She saw the defendant shooting. Both Tirado and Finn escaped through the bedroom window and hid behind a dumpster across the street. As they waited, they saw the defendant exit the apartment with an object in his hand that resembled a handgun and Jimenez trailed behind. The defendant sped off in his vehicle and Jimenez walked toward his home at 23 Malikowski Circle.

After the defendant left, Soto reentered the apartment and called 911. When the New Britain police arrived shortly after 9 p.m., Soto, Tirado, Finn and Jimenez were all at the apartment waiting and cooperated with the police. The four friends voluntarily went to the police station and provided statements regarding the shooting. They each said that "Nelson" shot the victim, although none knew his last name, and they gave a detailed description of the defendant and his vehicle. Soto informed the police as to where the defendant was living at the time. In addition, Tirado, Finn, Soto and Jimenez each voluntarily submitted to an atomic absorption test,⁴ and each tested negative for gunpowder residue. After he left the police station, Jimenez could not be located to testify at trial.

Later that evening, the defendant's vehicle was located in Hartford. The vehicle was impounded and searched. New Britain police found what appeared to be blood on the steering wheel and the trunk. The defendant, however, was not in the area. Later testing of the blood found on the trunk of the defendant's vehicle revealed traces of DNA consistent with the victim's DNA.

On January 23, 1997, the defendant was found at a bus station in Philadelphia and taken into custody. The defendant was charged with criminal possession of a pistol and murder. On April 24, 2000, the jury returned a guilty verdict on both counts, and the defendant received a total effective sentence of sixty-five years incarceration. This appeal followed. Additional facts will be set forth where necessary to our disposition of the issues on appeal.

I

The defendant first claims that he was deprived of his right against self-incrimination as guaranteed by the fifth amendment to the United States constitution. This claim stems from remarks made by the prosecutor during his rebuttal closing argument, which the defendant views as comments on his failure to testify. Furthermore, the defendant claims that the court's curative instructions were insufficient to remedy the harm. We disagree.

The defendant claims that the following portion of the state's closing argument violated his constitutional rights: "Do you remember—I don't remember hearing a reason why Nelson Colon fled to Philadelphia. What did he say? Fled to Philadelphia—drugs, drugs, drugs. That's what you're supposed to do is ignore all the evidence in this case and just remember the people were using drugs, and then it's easy, isn't it?

* * *

"Nelson Colon was not on the scene. Nelson Colon was the only person who was not on the scene when the police arrived. The judge will tell you that it's up [to] you to decide. But when someone flees the scene of a crime, that can be strong evidence that they knew they were guilty and that's why they left.

"And you have to decide, is there any evidence at all which indicates any other reason for Nelson Colon leaving?" (Emphasis added.)

"[T]he Fifth Amendment, in its direct application to the Federal Government, and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." (Internal quotation marks omitted.) State v. Burton, 258 Conn. 153, 172, 778 A.2d 955 (2001), quoting Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965); see also General Statutes § 54-84.⁵ "An indirect remark by the prosecuting attorney which draws the jury's attention to the fact that the accused failed to testify may also violate the accused's right." State v. DeMartino, 7 Conn. App. 292, 294, 508 A.2d 809 (1986). The state, however, is not "prohibited from calling to the jury's attention any portion of the evidence that stands uncontradicted .... Only when a prosecutor's comment focuses the attention of the jury on the failure of the defendant to testify does it become objectionable.... The ultimate test of whether a prosecution argument indirectly and impermissibly comments on the defendant's failure to testify is whether, because of its language and context, the jury would naturally and necessarily interpret it as comment on the defendant's failure to testify." (Citations omitted; internal quotation marks omitted.) State v. Downing, 68 Conn. App. 388, 398, 791 A.2d 649, cert. denied, 260 Conn. 920, 797 A.2d 518 (2002).

In the present case, the defendant did not testify. His theory of defense was one of misidentification, namely, that it was Jimenez who shot the victim and not the defendant. During his summation, defense counsel argued that Jimenez was the shooter and pointed to his absence at trial. The defendant, however, presented no evidence explaining why he immediately fled the crime scene to Hartford and later to Philadelphia. While it is true that Jimenez subsequently left Connecticut shortly after the incident, he remained at the crime scene and cooperated with the police. The prosecutor's remarks during rebuttal closing argument were merely an attack on the defendant's theory of defense and not improper comment regarding the defendant's failure to testify. See State v. Johnson, 65 Conn. App. 470, 483, 783 A.2d 1057 (remarks of state's attorney on weaknesses in defendant's case, including defendant's failure to contradict state's evidence and to support theory of defense, did not constitute comments on defendant's failure to testify), cert. denied, 258 Conn. 930, 783 A.2d 1031 (2001). Therefore, we cannot conclude that the prosecutor's remarks were such that the jury could naturally and necessarily have taken them as comments on the defendant's failure to testify.

In addition, the court specifically instructed the jury that it could not draw any negative inference from the defendant's failure to testify and, further, that the defendant did not have the burden to produce any evidence or prove his innocence.⁶ "In the absence of contrary evidence, jurors are presumed to have followed the instructions given to them by the...