State v. Cooper

Decision Date24 August 1993
Docket NumberNo. 14223,14223
Citation630 A.2d 1043,227 Conn. 417
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Robert COOPER.

Suzanne Rathbun, Certified Legal Intern, with whom were Timothy H. Everett, Jillian F. Zacks, Certified Legal Intern, and, on the brief, Kathleen M. Paul, Certified Legal Intern, for appellant (defendant).

Mary H. Lesser, Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and John Massameno, Senior Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON and NORCOTT, JJ.

CALLAHAN, Associate Justice.

This appeal concerns several issues arising from the trial of the defendant, Robert Cooper. The defendant was charged in a substitute information and convicted, after a jury trial, of the crime of murder in violation of General Statutes § 53a-54a, 1 in connection with the March 30, 1988 homicide of the victim, Dwight Barnes, in the Charter Oak Terrace area in Hartford. The defendant was sentenced by the trial court to a term of imprisonment of thirty years. He appeals directly to this court pursuant to General Statutes § 51-199(b)(3). 2

On appeal, the defendant claims that the trial court improperly: (1) allowed the state to introduce evidence of his possession of marijuana on a date some two months prior to the homicide; (2) permitted irrelevant prejudicial testimony during the state's cross-examination of his girlfriend, Harriet Thompson; (3) allowed the state to impeach a defense witness with a 1964 felony conviction; (4) allowed the state to comment, in final argument, regarding the defendant's failure to make a written statement; and (5) instructed the jury concerning specific intent. We reject each of these claims.

The transcript of the defendant's trial reveals the following. Midday on March 30, 1988, the victim, Leonard Gaston, Kendell Jones, Jarez Sanders and others were gathered near a dumpster in a parking lot in a known drug dealing area called "the block" located off Delta Street in the Charter Oak Terrace area in Hartford. At that time, some of those gathered discussed the possibility of robbing the defendant, who was not from the neighborhood, but who was there going from car to car asking the occupants if they wished to purchase drugs.

Gaston, who was acquainted with the defendant, confronted him and asked why he was in the neighborhood. The defendant replied that he was selling drugs for a person named "Pinochle." Gaston asked him to leave the area but the defendant refused. The victim then approached the defendant and offered to purchase two bags of marijuana. In return for the two bags of marijuana, the victim paid the defendant $10. The victim then asked the defendant if he had any cocaine. The defendant responded by handing the victim a plastic bag containing a substance that resembled cocaine. The victim, however, did not appear to deliver any money to the defendant in return for the bag.

The victim and the defendant then argued about the defendant selling drugs in "the block." As the victim turned and appeared to be walking away from the argument, the defendant grabbed him by the arm and the two men engaged in a scuffle. Jones and Sanders intervened to assist the victim, who had an injured leg and a cast on his right arm. The victim, while struggling with the defendant, shouted that the defendant had a gun, whereupon Jones and Sanders fled and hid behind a nearby dumpster. Gaston then ran to where the two men were fighting and attempted to wrest the gun from the defendant. The defendant, however, broke free, and, according to Jones, Sanders and Gaston, approached the victim, deliberately pointed the gun at his head and shot him. The defendant then ran toward the Park River where he was subsequently apprehended by the police. The next day, the police recovered from the river the gun that had been used to shoot the victim. There were two spent shells in the cylinder.

At trial, Officer Daniel Zak of the Hartford police department testified that he and his partner had responded to the scene of the shooting. Zak testified that he had pursued and apprehended the defendant, who had fled toward the river carrying a long barreled revolver. Moments after Zak had apprehended the defendant, Officer Jose Sanchez arrived and assisted in the defendant's capture and handcuffed him. Both officers testified that the defendant had no revolver on his person when he was apprehended.

At the Hartford police station, Officer Nicholas Russo and another Hartford police officer interviewed the defendant after reading him Miranda warnings. 3 The defendant told Russo that he had been attacked by a group of seven to nine black males who had beaten him to the ground. Russo testified that the defendant had told him that while he was being beaten he had noticed a gun on the ground, had picked it up, and, as he was attempting to get to his feet, the gun had accidentally discharged and the bullet had struck one of his assailants. He also said that the gun had discharged again while he was running from the scene and that he had thrown the gun in between two houses. Neither Sanchez nor Russo saw any cuts, bruises or swelling on the defendant when he had been apprehended or when he had been interviewed.

Three eyewitnesses to the shooting, Gaston, Sanders and Jones, testified at the defendant's trial. Gaston and Jones both testified that the defendant had not been knocked to the ground during the altercation. All three testified that the defendant had deliberately aimed the gun at the victim's head and shot him. Gaston and Sanders also stated that they had previously seen a man whom they knew only as "Pinochle" with the same gun that the defendant had used to shoot the victim. Pinochle was the brother of the defendant's girlfriend and the person for whom the defendant said he had been selling drugs at the time of the homicide.

Although the defendant did not testify at his trial, he called several witnesses on his behalf. A resident of the Charter Oak Terrace area, Eddie Bowman, testified that he had seen the defendant on the ground during the fight but that he had not seen a gun, nor had he witnessed the shooting. He also testified that he had previously seen Pinochle with a long barreled .22 caliber revolver but that Pinochle had sold the gun. Another defense witness, Raymond Vail, testified that he had observed the fight and had seen the defendant beaten to the ground. He also said that he had not seen a gun and that, although he had heard a shot, he had not seen the shooting. Vail admitted that he had waited two years to come forward with his account of the incident.

I

The defendant initially claims that he is entitled to a new trial because the trial court improperly permitted the state to introduce evidence, over his objection, of his arrest for possession of marijuana at a time two months prior to the date of the shooting. He argues that his previous possession of marijuana was irrelevant to the crime charged because it did not provide a motive for the shooting of the victim and was not indicative of drug dealing or the likelihood of his having possessed a weapon on the date of the incident, the ostensible reasons for which it had been admitted.

At trial, the state sought to present testimony that on a previous occasion the defendant had been apprehended by the police while in possession of $83 in currency and ten plastic bags containing marijuana. The trial court, after hearing arguments concerning the defendant's objection to the admissibility of the proffered testimony, allowed it into evidence.

Hartford police officer Christopher Lyons then testified that on January 28, 1988, he had arrested the defendant for the possession of ten bags containing marijuana. Lyons stated that in January, 1988, he had been investigating citizen complaints of marijuana sales and had observed a car being driven by a recognized drug dealer known to have been operating with a suspended operator's license. Lyons testified that he had arrested the operator of the automobile and also the defendant, who was a passenger in the dealer's automobile. The defendant had been arrested because he had in his possession ten plastic bags containing marijuana.

Immediately following Lyons' testimony, the trial court delivered a lengthy admonition to the jury informing it that Lyons' testimony had not been admitted to show that the defendant's character was bad or that he had criminal propensities and that it was not to be used for those purposes. The court informed the jury that the testimony was to be used only for the purposes for which it had been admitted, that is, as some evidence relevant to the defendant's motive in shooting the victim, as some evidence that the incident might have been drug related and as some evidence of the likelihood of the defendant's having been armed. 4

The state's position was that Lyons' testimony was relevant for the purposes for which it had been admitted because it corroborated other evidence that the reason for the shooting had been the victim's interference with the defendant's drug selling activity and because it refuted the defendant's statement that the shooting was accidental. The state also claimed that the evidence was not unduly prejudicial because there was other evidence that the defendant had been engaged in the sale of drugs on the day of the shooting.

As a general rule, evidence of a defendant's prior crimes or misconduct is not admissible. State v. Crumpton, 202 Conn. 224, 228, 520 A.2d 226 (1987); State v. Geyer, 194 Conn. 1, 5, 480 A.2d 489 (1984). We have, however, recognized exceptions to the general rule if the purpose for which the evidence is offered is to prove intent, identity, malice, motive, a system of criminal activity or the elements of a crime. State v. Mooney, 218 Conn. 85, 126, 588 A.2d 145, cert. denied, --- U.S. ----, 112 S.Ct. 330...

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