State v. Franklin
| Decision Date | 29 December 2015 |
| Docket Number | No. 37161.,37161. |
| Citation | 162 Conn.App. 78,129 A.3d 770 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. Zackery C. FRANKLIN. |
G. Douglas Nash, New Haven, for the appellant (defendant).
Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Kevin C. Doyle, former senior assistant state's attorney, for the appellee (state).
GRUENDEL, LAVINE and BISHOP, Js.
The defendant, Zackery C. Franklin, appeals from the judgment of conviction, rendered after a jury trial, of one count of murder in violation of General Statutes § 53a–54a (a), one count of felony murder in violation of General Statutes § 53a–54c, and one count of robbery or attempt to commit robbery in the first degree in violation of General Statutes §§ 53a–49 (a)(2) and 53a–134 (a)(1). The defendant also appeals from the judgment of conviction rendered after a trial to the court of one count of carrying a pistol without a permit in violation of General Statutes § 29–35, and one count of criminal possession of a pistol or revolver in violation of General Statutes (Rev. to 2011) § 53a–217c (a)(1). On appeal, the defendant claims that (1) the evidence was insufficient to support the judgment of conviction on all counts because the state relied on a single eyewitness whose testimony was contradicted by the physical evidence; (2) the verdicts were against the weight of the physical evidence, entitling him to a new trial; (3) the court erred in admitting prior misconduct evidence to show that he possessed the means to commit the crimes; (4) the prosecutor engaged in impropriety during closing argument; (5) the court erred in merging the convictions for murder and felony murder; and (6) the judgment file must be corrected because the conviction for "robbery or attempted robbery" encompassed a unanimous finding on the lesser offense of attempt but not the greater completed offense of robbery. We reverse the judgment of the court as to the felony murder conviction. We affirm the judgment in all other respects.
The defendant's convictions arise from the murder of John Claude James (victim). On July 9, 2011, the victim was in the area of Howard Avenue and Putnam Street in New Haven. At approximately 6 p.m., firefighters responded to a call that someone had been shot; they found the victim on the sidewalk adjacent to the entrance to the parking lot behind 518–526 Howard Avenue. The victim had been shot three times and he died shortly after being taken to the hospital.
The jury reasonably could have found the following facts. The defendant had a motive to kill the victim so that he could obtain the victim's gold chain, holding a joker medallion.1 The victim was wearing this chain on July 9, 2011. Two witnesses, Carol Boxley and Charles Caple, stated individually to police that on or about July 9, 2011, they overheard the defendant discussing gold jewelry, including the victim's joker chain. Boxley told police that the defendant said "we're going to get the joker chain ‘cause gold is high now.’ " Caple told police that on the day the victim was shot, the defendant may have said that he was "gonna get" the victim.
Boxley and her family lived at 536 Howard Avenue. Her daughter, Renicka (Nicky) Boxley, had a relationship with the defendant and was pregnant with his child. Boxley's son, Antonio Lofton, Jr., witnessed the victim's shooting.
At approximately 5:30 p.m. on July 9, 2011, Dorothy Council was on the back porch of 530 Howard Avenue when the victim stopped by to greet her. The victim left soon after and approximately fifteen minutes later, Council heard gunshots and ran inside 530 Howard Avenue. Looking through a window, Council saw the victim run across the parking lot toward Putnam Street, lose his balance, spin around, and fall down at the entrance of the parking lot to 518–526 Howard Avenue.
At this time, Lofton was in his backyard at 536 Howard Avenue, from where he could see across Putnam Street and into the parking lot of 518–526 Howard Avenue. Lofton saw the defendant shoot the victim in the chest. The defendant fired "three or more" or "maybe four or five shots" while the victim was facing him. Lofton saw the defendant, with a "silvery handgun" in his hand, and his friend, Earl Simpson, run from the back of Putnam Street toward the front of his house. He did not see anything in Simpson's hands. Lofton was able to identify the defendant because he had known him for about a year. He had known the victim for longer, and was able to identify him as well.
Lofton went into his house using a rear entrance and saw the defendant in his kitchen. Both Simpson and the defendant offered Lofton marijuana and money, which Lofton did not accept. The defendant and Simpson ran out of the apartment toward Carlisle Street and got into a waiting black car.
At this time, Caple was in the area and heard the gunshots. He saw a black Acura, which he thought belonged to Isis Hargrove, drive by on Carlisle Street. Hargrove was Simpson's sister and Caple was familiar with her. He knew that she had been involved with the defendant, and had seen her previously driving a black Acura in the area. Police later confirmed that she had a black Acura registered in her name. The police gathered evidence from the area, including several of the victim's belongings, in the front part of the alcove between 518 and 522 Howard Avenue. The police found the victim's unbroken joker chain on the ground. Although the victim had a cell phone with him that afternoon, the police recovered only the leather cell phone case that the victim was known to wear on his belt. The police found six nine millimeter shell casings in the alcove, as well as blood-like substances near the alcove and on the sidewalk near the entrance to the parking lot where the victim was found.
On July 11, 2011, the police spoke with Hargrove about the shooting. On the night of July 12, 2011, the defendant and Hargrove, along with Simpson and his girlfriend Mikia Gary, rented a car and drove to North Carolina. On the way, the car was stopped for speeding in New Jersey. The state trooper asked for the occupants' identifications, and the defendant gave his brother's name. In the following weeks, the defendant was not seen in the area of Howard Avenue and Putnam Street, although he regularly spent time there prior to the shooting.
On November 16, 2011, the defendant was arrested in Virginia. When the deputy making the arrest asked the defendant for identification, he gave a YMCA card with his photograph on it but with a name other than his own. At trial, the state asserted that the defendant's use of false names and his flight from the state were indicative of his consciousness of guilt.
The defendant was brought back to Connecticut and charged with five offenses. The charges of murder, felony murder, and robbery or attempt to commit robbery in the first degree were tried to a jury, which returned a verdict of guilty on all three charges. The charges of carrying a pistol without a permit and criminal possession of a pistol or revolver were tried to the court, which found him guilty. The court merged the murder and felony murder convictions and imposed a sentence of sixty years imprisonment on the murder charge and twenty years on the robbery or attempted robbery charge to be served concurrently. The court imposed a sentence of five years on the conviction of carrying a pistol without a permit to be served concurrently, and five years on the conviction of criminal possession of a pistol or revolver to be served consecutively. The total effective sentence was sixty-five years. The defendant appeals from this judgment. Additional facts will be set forth as necessary.
We first consider the defendant's claim that the evidence was insufficient for the jury and court to return verdicts of guilty as to all five counts. The defendant's argument is twofold. First, he argues that the jury could not rely on Lofton's testimony because it was "physically impossible" for it to be true. Second, he argues that without Lofton's testimony, the remaining circumstantial evidence was insufficient to prove that the defendant was guilty of any of the offenses charged. We disagree.
We begin with the defendant's claim that it was physically impossible for Lofton's testimony to be true. The defendant's claim is not actually one of physical impossibility, but rather is a challenge to Lofton's credibility and an argument that the jury could draw only one inference about where the shooting occurred based on the location of the expended shell casings. Prior to analyzing the sufficiency of the evidence claim, we explain why the defendant's physical impossibility claim fails.
The defendant's physical impossibility claim turns entirely on where the shooting occurred. The following additional facts are relevant to this issue. Lofton was the only eyewitness to the shooting and at the time he testified, he was twenty years old and testifying pursuant to a subpoena. The building at 518–526 Howard Avenue is an apartment building, and in between each unit on the ground floor are recessed alcoves. Each alcove is about twenty feet deep and ten feet wide, and is enclosed on three sides by the walls of the building. Police found the victim's belongings and the expended nine millimeter shells in the alcove between apartment 518 and 522. Lofton said that he could not see into this alcove, but was able to see if people exited from it. The defendant asserts that the location of the expended shells conclusively proves that the shooting took place in this alcove, into which Lofton could not see.
The state called two witnesses with firearms experience, who testified as to where the six shells were found and their relation to where the shots were fired. One witness, Detective Omaida Nieves, testified that where the six shells and blood were found in the alcove did...
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...portions of the audio, the use of screenshots in lieu of video, and limiting instructions to the jury. See, e.g., State v. Franklin , 162 Conn. App. 78, 99, 129 A.3d 770 (2015) (considering whether defendant sought to limit challenged evidence in determining whether admission of that eviden......
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