State v. Hansen

• Decision Date: 19 September 1995
• Docket Number: No. 13002,13002
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. John HANSEN.

Page 421

666 A.2d 421

39 Conn.App. 384

STATE of Connecticut v. John HANSEN.

No. 13002.

Appellate Court of Connecticut.

Argued June 5, 1995.

Decided Sept. 19, 1995.

Neal Cone, Special Public Defender, for appellant (defendant).

James M. Ralls, Assistant State's Attorney, with whom, on the brief, was Patricia A. Swords, State's Attorney, for the appellee (state).

Shelley A. White, Hartford, filed a brief for New Haven Legal Assistance Association, Inc., as amicus curiae.

Before DUPONT, C.J., and FOTI and HEIMAN, JJ.

HEIMAN, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134(a)(4) ¹ and larceny in the sixth degree in violation of General Statutes § 53a-125b. ² On appeal, the defendant claims that (1) he was deprived of his right to a fair trial when evidence was introduced that he was suspected of committing other robberies in the Vernon area, had a prior arrest record, and had a habit of concealing himself behind a locked door to avoid police, (2) he was denied his rights to equal protection and due process when the state argued that his poverty provided a possible motive for committing the crimes, (3) the trial court failed to make an adequate inquiry into the defendant's complaints concerning trial counsel and denied his application for the appointment of substitute counsel, (4) the evidence was insufficient to support a guilty verdict on the charge of robbery in the first degree, (5) the charge of the court on the issue of the presumption of innocence, the burden of proof, and the jury's duties denied the defendant due process of law, and (6) the defendant's conviction of both robbery in the first degree and larceny in the sixth degree violated his right against double jeopardy.

The jury could reasonably have found the following facts. At about 2:30 a.m. on January 16, 1993, the victim, Christie Lawrence, was working as an assistant manager at the Mile Hill Sunoco, a twenty-four hour mini-mart in Vernon. She was behind the counter when the defendant entered the store. The defendant walked to the back of the store and removed a soda from the cooler. He then brought the soda to the counter where the victim was standing and asked the victim for a carton of Marlboro cigarettes. The victim obtained the carton of cigarettes without turning her back on the defendant and proceeded to ring up the defendant's purchases. When the victim informed the defendant of the amount he owed for his purchases, the defendant replied that he was not going to pay. The defendant then demanded that the victim give him money. The victim refused and pleaded with the defendant not to "do this to [her]."

At this time, a customer, Eric Marandino, entered the store and made a purchase. The defendant stood aside while the victim rang up the sale. The victim was unable to say anything to Marandino about what was occurring because she was afraid.

Once Marandino left the store, the defendant again asked the victim for the money. When the victim refused, the defendant reached into his pocket and pulled out what appeared to the victim to be a knife. As the defendant returned the object to his pocket, he told the victim that he also had a gun and again demanded the money. The victim opened the drawer of the cash register and removed the money. At the defendant's command, the victim placed the money into a bag and handed it to the defendant. The defendant fled the store carrying the money and the carton of cigarettes.

Shortly thereafter, the police responded to the victim's 911 call. The victim was able to provide the police with a description of the defendant. A day after the incident, the victim went to the Vernon police station where she was shown a photographic array that included a photograph of the defendant. The victim identified the defendant as the person who had robbed the convenience store on January 16, 1993. The same photographic array was shown to Marandino who also identified the defendant as the person that he had seen standing by the register on the night of the robbery.

I

The defendant first asserts that he was deprived of his right to a fair trial when evidence was introduced that he was suspected of committing other robberies in the Vernon area, had a prior arrest record, and had a habit of concealing himself behind a locked door when police came to arrest him. We are unpersuaded.

In support of his claim, the defendant points to three portions of the direct testimony of Detective Donald Skewes of the Vernon police department who had been assigned to investigate the robbery at the Mile Hill Sunoco on January 16, 1993. ³

In the first portion of Skewes' testimony, the state asked Skewes how he created the photographic array that was used to identify the defendant as the robber. Skewes testified that he put together a photographic array of possible suspects from the description given by the victim. He further testified that a photograph of the defendant was included because the defendant met the description given by the victim and because he was suspected of committing past robberies in the Vernon area. The defendant made no objection to Skewes' comment that the defendant was a suspect in other robberies, nor did he move to strike the answer.

Second, the defendant points to a later portion of Skewes' direct testimony where the state asked Skewes to describe to the jury the circumstances surrounding the execution of the arrest warrant on the defendant. Skewes testified that he had information that the defendant was in a garage on Cherry Street, but that when the police arrived the defendant fled into 29 Brooklyn Street where members of his family reside. Skewes then testified that they were allowed access into the house and were told that the defendant was upstairs. When they reached the top of the stairs, the door was locked. Skewes then testified that it was a "habit" of the defendant's to hide behind locked doors to avoid the police. The defendant again neither objected nor moved to strike the testimony.

Finally, the defendant points to Skewes' continued testimony regarding the photographs that were taken of the defendant after his arrest. Skewes testified that these photographs were taken to record the defendant's current facial features because the photograph used in the photographic array was from past arrests. The defendant did not object to Skewes' testimony regarding the defendant's past arrests, nor did he move to strike.

The defendant concedes that he failed to object to any of the answers that he now claims as the predicate for his failure to receive a fair trial. The defendant also failed to move to strike any of the answers that he now claims to be offensive, and did not seek a curative instruction from the trial court. Thus, he claims entitlement to review of this unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), or under the plain error doctrine. Practice Book § 4185.

No useful purpose is served by again setting forth the familiar litany of the criteria that must be met for Golding review. State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823. "The first two conditions of Golding are determinations of whether a defendant's claim will be reviewed, and the third condition involves a review of the claim itself." State v. Walker, 33 Conn.App. 763, 769, 638 A.2d 1084, cert. denied, 229 Conn. 913, 642 A.2d 1209 (1994); see also State v. Crosby, 34 Conn.App. 261, 264, 641 A.2d 406, cert. denied, 230 Conn. 903, 644 A.2d 916 (1994). We conclude that, here, the defendant's evidentiary claim is not of constitutional magnitude and decline to afford review.

It is well established that "[r]obing garden variety claims of [an evidentiary nature] in the majestic garb of constitutional claims does not make such claims constitutional in nature. State v. Reddick, 33 Conn.App. 311, 331-32, 635 A.2d 848 (1993), cert. denied, 228 Conn. 924, 638 A.2d 38 (1994); State v. Ulen, 31 Conn.App. 20, 37, 623 A.2d 70, cert. denied, 226 Conn. 905, 625 A.2d 1378 (1993). Evidentiary claims are not of constitutional magnitude and are thus not entitled to Golding review. See State v. Robinson, 227 Conn. 711, 741 n. 22, 631 A.2d 288 (1993)." (Internal quotation marks omitted.) State v. Gross, 35 Conn.App. 631, 637-38, 646 A.2d 933, cert. denied, 231 Conn. 932, 649 A.2d 254 (1994). Thus, the defendant's claim regarding the admission of evidence concerning his past contacts with the police does not warrant Golding review.

The defendant does not fare any better under his claim for review pursuant to the plain error doctrine. "Practice Book § 4185 provides that this court may in the interests of justice notice plain error not brought to the attention of the trial court. Such 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. Foreshaw, 214 Conn. 540, 546, 572 A.2d 1006 (1990). Having concluded that the testimony of which the defendant now belatedly complains did not implicate his constitutional rights so as to warrant review under State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823, we find that the testimony did not result in manifest injustice, and does not, therefore warrant plain error review. See State v. Ulen, supra, 31 Conn.App. at 38, 623 A.2d 70.

The defendant's claim is without merit.

II

The defendant next asserts that he was denied his rights to equal protection and due process when the state argued that his poverty provided a possible motive for committing the crimes. ⁴ He also claims that the harm created by the state's argument was compounded by the trial court's charge to the jury that evidence of motive was relevant and material to its consideration of the...