State v. Coltherst

• Decision Date: 25 January 2005
• Docket Number: No. 25175.,25175.
• Citation: 87 Conn.App. 93,864 A.2d 869
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Jamaal COLTHERST.

864 A.2d 869

87 Conn.App. 93

STATE of Connecticut v. Jamaal COLTHERST.

No. 25175.

Appellate Court of Connecticut.

Argued October 28, 2004.

Decided January 25, 2005.

Moira L. Buckley, Hartford, for the appellant (defendant).

Bruce R. Lockwood, assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Kevin J. Murphy, senior assistant state's attorney, for the appellee (state).

SCHALLER, BISHOP and HENNESSY, Js.

SCHALLER, J.

The defendant, Jamaal Coltherst, appeals from the judgment of conviction, rendered after a jury trial, of numerous crimes resulting in an effective sentence of eighty-five years incarceration.¹ On appeal, the defendant claims that the court (1) improperly denied his motion for a mistrial, (2) improperly admitted into evidence testimony from his prior trial, (3) improperly instructed the jury as to an element of larceny and (4) violated the prohibition against double jeopardy by sentencing him on his conviction of six counts of conspiracy offenses. We agree with the defendant with respect to his fourth claim only and reverse in part the judgment of the trial court. We affirm all other aspects of the judgment.

The jury reasonably could have found the following facts. On October 19, 1999, the defendant, Carl Johnson and Rashad Smith were sitting in a stolen black Honda Accord² near 85 Wolcott Hill Road in Wethersfield. The trio had smoked marijuana. Sometime after darkness fell, the victim, Michael Clarke, returned to Camilleri and Clarke Associates, Inc., the insurance brokerage firm located there, of which he was an owner. He had left his motor vehicle, a black Lincoln Mark VIII valued at approximately $28,000,³ in the firm's parking lot. After the victim had been in the building for some time, his dog began to bark, and so the victim went outside. After the victim left the building, he was accosted by the defendant and Johnson. The defendant wore a red sweatshirt or parka.⁴ The victim was instructed to turn over the keys to his vehicle. One of the men pointed a gun at the victim, and told him to go back into the building and to his office.

In the office, while one of the men continued to point the gun at the victim, the other held the victim. The defendant and Johnson took the victim's laptop computer and credit card.⁵ They threatened the victim and ordered him to provide the access code for the card so that they could use it to obtain cash.⁶ Johnson took the computer while the defendant took the credit card. The defendant and Johnson stated that they were going to take the victim to the car, and after he protested and resisted, he was struck twice in the face with the gun. The victim was pushed outside, continued to struggle with the two men and broke away from them before being forced into the car. The victim started to flee and called out for help, but was soon tackled by Johnson. The victim then struggled with the defendant, who took out a .22 caliber Beretta and shot the victim in the head.⁷ The defendant and Johnson fled the scene in the victim's Lincoln while Smith drove the Honda Accord.⁸

Oscar Rivera, a Wethersfield police officer, arrived at the scene after being notified of the assault. He found the victim lying on the ground in the parking lot, which was otherwise empty. At that time, the victim was responsive, but had suffered visible injuries. Medical personal subsequently transferred the victim to Hartford Hospital for treatment. The victim was hospitalized for nine to ten days and then was transferred to a rehabilitation facility for an additional seven weeks of therapy.

Leslie Higgins, an employee of United Services Automobile Association, the company that issued the victim's credit card, testified that on the night of the shooting, there were several attempts at various automatic teller machines to obtain cash with the card taken by the defendant. The first three attempts were declined due to an incorrect access code, and the fourth failed as a result of an automatic lock out due to the previous incorrect access codes. Higgins further testified that the defendant's card was used on October 21, 1999, to make several purchases, totaling several hundred dollars, at various stores in Manchester. Eventually, a hold was placed on the account due to suspected fraudulent activity.

On October 24, 1999, Sergeant Robert Whitty of the Avon police department stopped a black Honda Accord carrying the defendant, Johnson, Smith and Damion Kelly. A search of that vehicle revealed the victim's credit card, credit card receipts that matched the victim's credit card, items purchased with the victim's credit card and a .22 caliber bullet that subsequently was determined to have been of the same caliber used in the shooting. Additionally, after searching the defendant's residence, the police recovered a pair of the defendant's boots that were stained with the victim's blood, a computer case containing the victim's business card and a red jacket.

The defendant subsequently was arrested, tried before a jury and convicted on all of the fifteen counts with which he had been charged. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly denied his motion for a mistrial. Specifically, he argues that one of the state's witnesses made reference to his prior misconduct despite an agreement between the parties to avoid using such testimony and that no curative instruction could have alleviated the resulting prejudice.

At the outset, we identify the appropriate standard of review. "While the remedy of a mistrial is permitted under the rules of practice, it is not favored. [A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial ... and the whole proceedings are vitiated.... If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided.... On appeal, we hesitate to disturb a decision not to declare a mistrial. The trial judge is the arbiter of the many circumstances which may arise during the trial in which his function is to assure a fair and just outcome.... The trial court is better positioned than we are to evaluate in the first instance whether a certain occurrence is prejudicial to the defendant and, if so, what remedy is necessary to cure that prejudice.... The decision whether to grant a mistrial is within the sound discretion of the trial court." (Internal quotation marks omitted.) Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 316-17, 852 A.2d 703 (2004); State v. Taft, 258 Conn. 412, 418, 781 A.2d 302 (2001). Put another way, "[o]n appeal, the defendant bears the burden of establishing that there was irreparable prejudice to the defendant's case such that it denied him a fair trial." (Internal quotation marks omitted.) State v. Taveras, 49 Conn.App. 639, 652, 716 A.2d 120, cert. denied, 247 Conn. 917, 722 A.2d 809 (1998).

The following additional facts are necessary for the resolution of the defendant's claim. Prior to the start of the trial, the defendant filed a motion in limine with respect to certain uncharged misconduct. Specifically, the defendant sought to prohibit reference to his involvement in a carjacking that had occurred in East Hartford and for which he had been convicted. Prior to the court's ruling, the prosecutor stated that he did not oppose the motion; furthermore, he did not intend to introduce any evidence relating to the East Hartford incident. He informed the court that all of the state's witnesses had been instructed to avoid discussing the East Hartford incident. The court noted that if the issue arose during the trial, the court was to be warned in advance and that it would make a ruling outside of the jury's presence.

During the second day of evidence, Detective Mark Miele of the Wethersfield police department testified that he had met the defendant on October 25, 1999. He interviewed the defendant regarding the crimes underlying this appeal. After initially denying his involvement, the defendant subsequently admitted to being a participant in the Wethersfield incident. Miele testified in relevant part that the defendant "stated that [he], another individual ... Johnson, and a third individual... Smith, were riding around in a stolen Honda Accord that they had acquired from another individual in the town of East Hartford some days before, and that that night, they were going to look to carjack another individual and ... take the car from that person if they could find a car that they liked."

Defense counsel immediately objected, and, outside of the presence of the jury, made an oral motion for a mistrial. The prosecutor apologized to the court, but argued that Miele's comment did not deprive the defendant of a fair trial and, therefore, a mistrial was not warranted. He further stated that he did not object to the court's striking that portion of Miele's testimony or the court's issuing a limiting instruction to the jury. The court denied the defendant's motion in an oral ruling and allowed the defendant time during the luncheon recess to consider whether to request a limiting instruction. The defendant subsequently declined any limiting instruction.⁹

On appeal, the defendant argues that Miele's testimony making reference to the East Hartford incident resulted in prejudice that warranted a mistrial. Our review of the record, however, persuades us that Miele's statement did not deprive the defendant of a fair trial, thereby requiring the court to grant the motion for a mistrial. See State v. Higgins, 265 Conn. 35, 75, 826 A.2d 1126 (2003). Miele testified after the jury had heard from several witnesses. Smith, who testified before Miele, stated that he had been arrested in East Hartford with the defendant and Johnson. Furthermore, Miele, prior to his statement,...