State v. Cox, 16933

• Decision Date: 25 August 1998
• Docket Number: No. 16933,16933
• Citation: 50 Conn.App. 175,718 A.2d 60
• Parties: STATE of Connecticut v. Freddie COX, Jr.
• Court: Connecticut Court of Appeals

Page 60

718 A.2d 60

50 Conn.App. 175

STATE of Connecticut v. Freddie COX, Jr.

No. 16933.

Appellate Court of Connecticut.

Argued June 3, 1998.

Decided Aug. 25, 1998.

Tara L. Knight, Special Public Defender, for appellant (defendant).

Richard F. Jacobson, Supervisory Assistant State's Attorney, with whom, on the brief, was Cornelius P. Kelly, Assistant State's Attorney, for appellee (State).

Before EDWARD Y. O'CONNELL, C.J., and LAVERY and SPEAR, JJ.

LAVERY, Judge.

The defendant, Freddie Cox, Jr., appeals from the judgment of conviction, rendered after a jury trial, of assault in the second degree in violation of General Statutes § 53a-60 (a)(2). ¹ On appeal, the defendant claims that (1) the state committed prosecutorial misconduct during the questioning of witnesses and during its closing argument, (2) the trial court made an improper statement to the jury thereby depriving the defendant of a fair trial and (3) the trial court improperly charged the jury, sua sponte, on consciousness of guilt, which allowed the jury to infer flight on an inadequate factual basis. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In February, 1996, the victim, Yolanda Rudolph, ended an intimate relationship with the defendant and moved in with a girlfriend. On March 23, 1996, the victim was living at 217 Hollister Avenue in Bridgeport. On the night of March 23, 1996, the defendant arrived at the victim's residence uninvited. Although the victim still talked to the defendant by telephone, she had not told the defendant where she resided. To be allowed to enter the victim's building, visitors were required to press a buzzer and identify themselves over an intercom.

After identifying the defendant, the victim let him in. They engaged in conversation for fifteen minutes, and the victim told the defendant she was not going to go back to him and then turned away from him. When she turned back to look at the defendant, he had pulled out a knife. A struggle ensued in which the victim attempted to run upstairs to her apartment, but the defendant prevented her from doing so. In the course of the struggle, the defendant grabbed the victim and made rapid punching motions toward her abdomen with the knife. The victim's screams attracted the attention of her neighbors who asked over the intercom what was going on. The defendant then ran out of the building.

The victim went upstairs to her apartment and saw that she was cut and bleeding. The police were notified, and, after they questioned the victim at the scene of the incident, she was taken to Bridgeport Hospital by ambulance where she was treated and released the next day. While at the hospital, the victim was treated by Richard Garvey, a general surgeon. Garvey had previously treated the victim in January for a ruptured spleen.

On the night of the incident, after questioning the victim, police officers from the Bridgeport police department unsuccessfully attempted to locate the defendant. An arrest warrant for the defendant was issued on April 24, 1996. Further attempts to locate the defendant were unsuccessful. The defendant was finally arrested on May 3, 1996, at the office of his probation officer.

The defendant was charged with attempted murder in violation of General Statutes §§ 53a-49 and 53a-54a (a), and assault in the first degree in violation of General Statutes § 53a-59 (a)(1). ² The jury returned a verdict of guilty of the lesser included offense of assault in the second degree. This appeal followed.

I

The defendant first claims that the prosecutor committed prosecutorial misconduct by continually suggesting to the jury, through his questions to witnesses and in his closing argument, that the defendant was responsible for an earlier spleen injury sustained by the victim, thereby depriving the defendant of a fair trial in violation of the fourteenth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut.

The defendant failed to raise this claim at trial and now seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). ³ "[T]o deprive a defendant of his constitutional right to a fair trial, however, the prosecutor's conduct must have so infected the trial with unfairness as to make the resulting conviction a denial of due process.... We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct.... [M]oreover ... [Golding ] review of such a claim is unavailable where the claimed misconduct was not blatantly egregious and merely consisted of isolated and brief episodes that did not reveal a pattern of conduct repeated throughout trial.... State v. Atkinson, 235 Conn. 748, 769, 670 A.2d 276 (1996)." (Internal quotation marks omitted.) State v. Correa, 241 Conn. 322, 356-57, 696 A.2d 944 (1997).

The following facts are relevant for an understanding of the defendant's claim. At trial, the prosecutor asked the victim if the defendant had ever struck her prior to March 23, 1996. The trial court sustained the defendant's objection to this question. Later, the prosecutor questioned Garvey about the victim's prior spleen injury and asked the defendant on cross-examination whether he had ever struck the victim prior to March 23, 1996. The defendant answered no. The defendant made no objection to either of these questions.

The defendant also argues that the state made several improper references to the victim's previous injury in its closing argument. Again, the defendant made no objection and failed to ask for a curative instruction. The defendant, therefore, presumably did not regard these remarks or the questions asked as seriously prejudicial at trial. See State v. Correa, supra, 241 Conn. at 358, 696 A.2d 944; State v. Robinson, 227 Conn. 711, 746, 631 A.2d 288 (1993); State v. Negron, 221 Conn. 315, 330, 603 A.2d 1138 (1992).

"The defendant cannot, by identifying isolated remarks, set forth a claim of constitutional magnitude. State v. Chance, 236 Conn. 31, 64, 671 A.2d 323 (1996); State v. Atkinson, supra, 235 Conn. [at] 770 ; State v. Watlington, 216 Conn. 188, 193, 579 A.2d 490 (1990); State v. Smith, 209 Conn. 423, 428, 551 A.2d 742 (1988)." State v. Correa, supra, 241 Conn. at 358, 696 A.2d 944. The defendant has failed to establish a sufficient pattern of misconduct pervading throughout the trial that was so blatantly egregious that it infringed on his right to a fair trial. The defendant's claim is therefore not reviewable under State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823.

II

The defendant's second claim is that the trial court made an improper statement during its instructions to the jury, depriving the defendant of his constitutional right to a fair trial. Specifically, the defendant claims that the trial court instructed the jury that there was no evidence of cocaine abuse by the complaining witness. The defendant argues that this statement amounted to a factual determination by the trial court that impermissibly invaded the fact-finding province of the jury. We disagree.

During the cross-examination of Garvey, defense counsel asked the following question: "The report indicates there's a secondary diagnosis test that there was cocaine abuse. Did that cocaine abuse in any way affect your treatment of her stab wound at all?" Garvey answered, "No." The report that defense counsel referred to was the hospital report of the victim for the treatment of her stab wound. The report was not entered into evidence. Later, on direct examination of the defendant, defense counsel asked: "This particular night, whose house was she at?" The defendant answered: "[The victim] was over some man's house. It was like a--it looked like a crack house to me." No further mention of the hospital report or the defendant's description of the victim's home as a crack house was made until the defendant's closing argument.

The trial court made the following statement during its instructions to the jury. "Now, I'm going to bring a subject up to you, people may not like it, here and there and everywhere. This woman was on the stand, the doctor was on the stand, he was cross-examined and a suggestion was made to him about a secondary condition in regard to the cause of the injury or her condition. Cocaine, and then you had a remark by the defense during the course of the defendant's testimony about a crack house. You accept both of those for what they are. They're someone else's opinion, but you have no cold, hard facts that this woman was involved in any use of cocaine. And the suggestion of it does not make it true and they're not here for that. So, don't penalize her because of some argument or ingenuity of placing it here before you. It doesn't belong. Could it be here? Yes. If it was true, bring in the evidence. That wasn't done. Understand that." The defendant excepted to the court's charge.

"Due process requires that a criminal defendant be given a fair trial before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm.... In a criminal trial, the judge is more than a mere moderator of the proceedings. It is his responsibility to have the trial conducted in a manner which approaches an atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding.... The function of the court in a criminal trial is to conduct a fair and impartial proceeding.... The role of the [t]rial [j]udge is neither that of automaton nor advocate ... nor is a judge merely an umpire in a forensic encounter but [h]e is a minister of justice and in whatever he does ... the trial judge should be cautious and circumspect in his language and conduct.

"Furthermore, [d]ue process requires that there should be no ...