State v. Gentile

• Court: Connecticut Court of Appeals
• Writing for the Court: DRANGINIS, J.
• Citation: State v. Gentile, 75 Conn. App. 839, 818 A.2d 88 (Conn. App. 2003)
• Decision Date: 01 April 2003
• Docket Number: (AC 23064).
• Parties: STATE OF CONNECTICUT v. GINO GENTILE.

75 Conn. App. 839

818 A.2d 88

STATE OF CONNECTICUT v. GINO GENTILE.

(AC 23064).

Appellate Court of Connecticut.

Argued November 18, 2002.

Officially released April 1, 2003.

Foti, Dranginis and West, Js. Pamela S. Nagy, special public defender, for the appellant (defendant).

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Brian Preleski, assistant state's attorney, for the appellee (state).

Opinion

DRANGINIS, J.

The defendant, Gino Gentile, appeals from the judgment of conviction, rendered after a jury trial, of felony murder in violation of General Statutes § 53a-54c, robbery in the first degree in violation of General Statutes § 53a-134 (a) (1), and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (1) and 53a-48 (a). On appeal, the defendant claims that (1) the trial court improperly permitted the state to introduce into evidence the cooperation agreement that the state had entered into with a witness, and permitted the state to question the witness about the agreement and to comment on it during closing argument, (2) the court improperly refused to charge the jury with his requested instruction about the credibility of accomplice testimony, (3) the court improperly refused to inquire into his complaints about his attorney and (4) there was insufficient evidence for the jury to have convicted him of conspiracy to commit robbery in the first degree. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of March 17, 1997, the defendant, along with Jorge Concepcion, Edgar DeJesus and several other individuals, congregated in a parking lot at a housing project on Corbin Street in New Britain. Members of the group were talking and smoking marijuana. During the conversation, an individual identified as "Anthony" said that he had earlier robbed the Fortune Chinese Restaurant with a BB gun. After several hours, the group dispersed, with the defendant, Concepcion and DeJesus leaving together. As the defendant, Concepcion and DeJesus walked toward a car, they joked about robbing the Fortune Chinese Restaurant. The defendant then removed a .380 caliber semiautomatic gun from his waistband, and the defendant, Concepcion and DeJesus decided to rob the restaurant. To conceal his identity, Concepcion went to a garbage dumpster to find something to cover his face. The defendant pulled out a ski mask that he already had in his possession. The defendant, Concepcion and DeJesus then drove to a parking lot in the vicinity of the Fortune Chinese Restaurant.

Upon arriving at the parking lot, DeJesus remained in the vehicle, and the defendant and Concepcion walked toward the restaurant. After ensuring that there were no customers in the restaurant or police in the area, the defendant and Concepcion put on their masks, the defendant took out his gun and chambered a round, and they ran into the restaurant. The defendant told everyone to "hit the floor," and he jumped over the counter to get to the cash register. Once over the counter, the defendant demanded that the individual who was near the register open it and give him its contents. In the meantime, Concepcion entered the kitchen area, where there were two individuals. The defendant then went into the kitchen area with Concepcion. Concepcion demanded that one of the two, Ming Zhang, give him her purse, which she did. He then turned to leave the restaurant. The victim, San Chiu Wong, who also was in the kitchen area, lifted his head and the defendant fired a single round from his .380 caliber gun, striking the victim in the back of the head. The defendant then took the victim's wallet.

The defendant and Concepcion fled the restaurant and ran to the waiting vehicle. The defendant got behind the wheel and drove toward an arcade in Southington. During the drive, the defendant and Concepcion threw their masks and the wallets that they took from the victim and Zhang out the window. Upon arriving at the arcade, the defendant divided the money that was taken from the restaurant, and gave Concepcion and DeJesus a share.

On March 18, 1997, the victim died from the injuries he sustained from the gunshot wound the previous day. The defendant subsequently was arrested and, after a jury trial, was convicted and sentenced to a total effective term of 100 years imprisonment. This appeal followed.

I

The defendant first claims that the court improperly permitted the state to introduce into evidence the cooperation agreement that the state entered into with Concepcion. Further, the defendant claims that the prosecutor's use of the cooperation agreement while questioning Concepcion on direct examination and during closing argument amounted to prosecutorial misconduct. We disagree.

The following facts are relevant to our resolution of that issue. Following Concepcion's arrest, he entered into a cooperation agreement with the state. According to the terms of the agreement, in return for Concepcion's full cooperation in the prosecution of any individual arrested in connection with the homicide and robbery that occurred at the Fortune Chinese Restaurant, the state agreed to permit Concepcion to enter a plea of guilty to robbery in the first degree for his involvement and to receive a sentence of no more than twenty years imprisonment.

At the defendant's trial, the state called Concepcion as a witness. After the state laid a foundation for the admission of the cooperation agreement, the court admitted the agreement into evidence as a full exhibit after the defendant stated that he did not object. The state then read the document to the jury and proceeded to question Concepcion about the events that transpired on March 17, 1997. On cross-examination, the defendant also questioned Concepcion regarding the events of March 17, 1997, and as to his motivation for entering into the cooperation agreement.¹ On redirect examination, the state asked Concepcion about the consequences that he faced if he did not abide by the terms of the cooperation agreement.² Additionally, during closing argument, both the state³ and the defendant⁴ commented on the cooperation agreement that the state had entered into with Concepcion.

On appeal, the defendant contests the court's decision to admit the cooperation agreement into evidence and the state's subsequent use of the agreement during the examination of Concepcion and closing argument. Specifically, the defendant contends that the admission of the agreement into evidence and the state's use of the agreement during its examination of a witness and during closing argument served to bolster Concepcion's testimony improperly by placing the prosecutor's "stamp of approval" on it. We will address each of the defendant's claims in turn.

A

The defendant did not preserve his claim that the court improperly admitted into evidence the cooperation agreement entered into by the state and Concepcion and now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and the plain error doctrine. See Practice Book § 60-5. In the alternative, the defendant asks us to invoke our supervisory powers to review his claim.

Under Golding, "[a] defendant can prevail on [an unpreserved] claim of constitutional error . . . only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail. The appellate tribunal is free, therefore, to respond to the defendant's claim by focusing on whichever condition is most relevant in the particular circumstances." (Emphasis in original; internal quotation marks omitted.) State v. O'Neil, 261 Conn. 49, 58-59, 801 A.2d 730 (2002).

In this case, the defendant, when asked by the state if he objected to the introduction of the cooperation agreement, stated that he did not, nor did the defendant object when the state mentioned the cooperation agreement during its closing argument. Additionally, the defendant used the cooperation agreement during his cross-examination of Concepcion and commented on it during his closing argument.⁵

The defendant has failed to satisfy the second prong of Golding because his claim is not of constitutional magnitude. "In essence, the defendant attempts to put a constitutional tag on a nonconstiutional evidentiary ruling. . . . We previously have stated that the admissibility of evidence is a matter of state law and unless there is a resultant denial of fundamental fairness or the denial of a specific constitutional right, no constitutional issue is involved. . . . The [error] claimed by the defendant in the present case [is] simply evidentiary in nature." (Citations omitted; internal quotation marks omitted.) State v. Toccaline, 258 Conn. 542, 550, 783 A.2d 450 (2001). The court's admission of the cooperation agreement without objection from the defendant did not implicate a constitutional right or result in a fundamentally unfair trial. See id., 551. Accordingly, because the defendant's claim is not of constitutional magnitude, we decline to review the claim under Golding.

We next consider whether the defendant can prevail under our plain error doctrine. "Plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings." (Internal quotation marks omitted.) State v. Corona, 69 Conn....