State v. Fisher

• Decision Date: 18 April 2000
• Docket Number: (AC 18314)
• Citation: 57 Conn. App. 371,748 A.2d 377
• Parties: STATE OF CONNECTICUT v. ANTHONY FISHER
• Court: Connecticut Court of Appeals

57 Conn. App. 371

748 A.2d 377

STATE OF CONNECTICUT v. ANTHONY FISHER

(AC 18314)

Appellate Court of Connecticut.

Argued January 18, 2000.

Officially released April 18, 2000.

O'Connell, C. J., and Lavery and Landau, Js.¹ Kirstin B. Coffin, special public defender, for the appellant (defendant).

Timothy J. Sugrue, senior assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Rosita M. Creamer, senior assistant state's attorney, for the appellee (state).

Opinion

LANDAU, J.

The defendant, Anthony Fisher, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (5)² and carrying a pistol without a permit in violation of General Statutes § 29-35.³ On appeal, the defendant claims that the trial court improperly (1) permitted the state to introduce evidence of (a) prior altercations between the defendant and the victim, and (b) a prior, unrelated injury to the victim, (2) allowed the state to exercise a peremptory challenge and denied his Batson⁴ challenge, (3) prevented him from presenting a defense during the testimony of a witness and (4) exercised its discretion when it denied his motion to discharge counsel and his counsel's request to withdraw.⁵ We affirm the trial court's judgment.

The jury reasonably could have found the following facts. The defendant and the victim became engaged to be married in December, 1993, some seven months after they met. Problems plagued their relationship, which deteriorated rapidly in the six months prior to the defendant's shooting the victim. The defendant knew that one of the victim's arms was partially paralyzed due to an accident. The couple argued and frequently fought physically. When their disagreements erupted into physical altercations, it was not uncommon for the defendant to grab and restrain the victim. On one occasion, the defendant threatened to "flood" the house by cutting open a waterbed. The police were summoned. They asked the defendant to leave and arrested him when he became belligerent.

In August, 1995, after the victim announced her plans to go out for the evening with some female friends, the defendant put his .45 caliber handgun to her head. The defendant eventually left the home, saying he was going to confront the victim's girlfriend, whom he blamed for the victim's behavior. As a result of this incident, the defendant ceased living with the victim. Thereafter, he telephoned the victim at work and at home constantly. On September 13, 1995, the day before the shooting, the defendant again called the victim, yelling and blaming her for his problems. The next day, just after the victim had driven her son to school, the defendant caused his automobile to strike the victim's vehicle, making it spin. When the victim got out to survey the damage, she saw the defendant pointing his handgun at her. He fired, striking the victim in the forehead and knocking her to the ground. As she lay there, the defendant fired a second shot, striking her in the shoulder, and a third shot, which went into her neck and took off a portion of her ear as it exited her body. The automobile accident was witnessed by a third party, who also saw the defendant with a gun and heard shots.

The victim was taken to a hospital, where she was treated for her injuries. At the scene, the police recovered three spent .45 caliber cartridges, which were determined to have been fired from the gun the defendant surrendered to the police several days after the shooting. The defendant had no permit for the gun. After his arrest, trial and conviction, the defendant appealed.

I

The defendant's initial assertion consists of two evidentiary claims involving the admission of testimony regarding (1) prior altercations between him and the victim, and (2) an injury to the victim's arm. It is well settled that the trial court's ruling on the admissibility of evidence is entitled to great deference. See State v. Castonguay, 218 Conn. 486, 497, 590 A.2d 901 (1991); State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985). "[T]he trial court has broad discretion in ruling on the admissibility ... of evidence.... The trial court's ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion.... We will make every reasonable presumption in favor of upholding the trial court's ruling, and only upset it for a manifest abuse of discretion.... Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice." (Citation omitted; internal quotation marks omitted.) State v. Hines, 243 Conn. 796, 801, 709 A.2d 522 (1998).

A

The defendant's first claim is that the court improperly admitted evidence of altercations between the defendant and the victim prior to the shooting. We disagree.

At trial, the defendant objected on the grounds of relevance and undue prejudice when the state asked the victim whether "something happened in [her] relationship [with the defendant] prior to September 14th, 1995." The state claimed the evidence was relevant to motive, intent, course of conduct and the defendant's way of behaving on the day of the shooting. Defense counsel agreed. After the court overruled the objection, the victim testified about the couple's turbulent relationship, including the altercation involving a gun that occurred in late August, 1995. When he objected to the admission of evidence concerning the victim's injury to her arm, defense counsel conceded that evidence of verbal and physical fights between the defendant and the victim was relevant.⁶

The defendant's concession as to the admissibility of altercations between him and the victim is correct under our law. "It is well settled that evidence of prior misconduct is admissible for the limited purposes of showing intent, an element in the crime, identity, malice, motive or a system of criminal design." (Internal quotation marks omitted.) State v. Cepeda, 51 Conn. App. 409, 430, 723 A.2d 331, cert. denied, 248 Conn. 912, 732 A.2d 180 (1999). "Evidence of prior threats by a defendant directed to his victim has been held relevant to the issues of intent and motive. See, e.g., State v. Veal, 201 Conn. 368, 375, 517 A.2d 615 (1986); State v. Falby, 187 Conn. 6, 23, 444 A.2d 213 (1982)." State v. Cepeda, supra, 430. Furthermore, because the defendant conceded to the admission of evidence concerning prior disputes with the victim, the claim is not reviewable on appeal. See State v. Maisonet, 16 Conn. App. 89, 97, 546 A.2d 951, cert. denied, 209 Conn. 816, 550 A.2d 1086 (1988), cert. denied, 489 U.S. 1014, 109 S. Ct. 1127, 103 L. Ed.2d 189 (1989).

B

The defendant also claims that the court improperly admitted evidence of the victim's injured arm because it had no probative value and only served to stir the jury's emotions. We do not agree.

The defendant objected when the state asked the victim whether "prior to getting shot, did you have some sort of injury that incapacitated you in some way?" After the objection was overruled, the victim testified that she had sustained a crushing injury to her left arm in an accident. When the state sought to inquire what happened when the altercations between her and the defendant became physical, the defendant objected again, and the jury was excused from the courtroom. The defendant's counsel argued that evidence of the prior injury was irrelevant. See footnote 6.

The court properly admitted the evidence concerning the victim's preexisting arm injury. It was relevant, first, because it tended to impeach the defendant's testimony that it was the victim, not he, who was the primary physical aggressor. Second, the evidence demonstrated that the defendant's need to control the victim was so strong that it caused him to exploit her physical injury. Jurors might reasonably have concluded that such a need motivated the defendant to take the drastic action of shooting the victim when faced with the prospect of losing her. The trial court properly exercised its discretion in admitting the evidence.

II

In his second claim, the defendant maintains that the court improperly permitted the state to peremptorily challenge an African-American member of the venire panel in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed.2d 69 (1986). In Batson, the United States Supreme Court concluded that the federal equal protection clause forbids the prosecutor to challenge peremptorily potential jurors solely on account of their race.⁷ "[A] trial court's determination that there has or has not been intentional discrimination is `entitled to appropriate deference' upon review on appeal. Id. [98 n.21.]" State v. Gonzalez, 206 Conn. 391, 395, 538 A.2d 210 (1988).

On appeal, the defendant claims that the state's excusal of an African-American venireperson amounted to purposeful racial discrimination. After the defendant proffered his Batson challenge, the state advanced a race neutral response.⁸ The court responded that it had "listened very carefully to [the venireperson's] testimony. And also the reasons given by the state. The court will deny the Batson challenge, and I refuse to seat [him]." The defendant said nothing, and the venireperson was excused.

The defendant waived his right to raise this claim on appeal because he made no effort to show the existence of purposeful racial discrimination in response to the state's explanation and, therefore, implicitly accepted the state's proffered race neutral reasons. See State v. Beltran, 246 Conn. 268, 280, 717 A.2d 168 (1998); State v. Cepeda, supra, 51 Conn. App. 426-27. This claim, therefore, must fail.⁹

III

The defendant's third claim is that his right to present a defense was impaired. He complains that interruptions during the direct testimony of Peter Zeman, an expert...