State v. Hargett, AC 42405

• Decision Date: 03 March 2020
• Docket Number: AC 42405
• Citation: 229 A.3d 1047,196 Conn.App. 228
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Nasir R. HARGETT

196 Conn.App. 228

229 A.3d 1047

STATE of Connecticut

v.Nasir R. HARGETT

AC 42405

Appellate Court of Connecticut.

Argued September 10, 2019

Officially released March 3, 2020

Ann M. Parrent, assistant public defender, for the appellant (defendant).

Robert J. Scheinblum, senior assistant state's attorney, with whom, on the brief, were John C. Smirga, state's attorney, and Ann P. Lawlor, senior assistant state's attorney, for the appellee (state).

Lavine, Elgo and Moll, Js.

LAVINE, J.

The defendant, Nasir R. Hargett, appeals from the judgment of conviction, rendered after a jury trial, of one count of murder. In addition, the jury also found, pursuant to an interrogatory, that "the defendant employed the use of a firearm in the commission of a felony," and the court accordingly enhanced his sentence. On appeal, the defendant claims that the trial court (1) violated his sixth amendment right to present a defense by excluding from evidence (a) a statement purportedly made by a bystander and (b) an autopsy toxicology report, (2) violated his right to due process by declining to give a jury instruction on self-defense, (3) abused its discretion by admitting firearm related evidence, and (4) violated his right to a fair trial by failing to grant his motion for a new trial or to dismiss the charges. The defendant also claims that he was denied the right to a fair trial due to prosecutorial impropriety that occurred during final argument. We affirm the judgment of the trial court.

The following procedural history and facts the jury reasonably may have found beyond a reasonable doubt are relevant to our resolution of the defendant's claims on appeal. On October 13, 2014, the defendant was an eighteen year old high school student living with his parents on East Main Street in Bridgeport. At approximately noon that day, Kaishon McAllister and his friends Romy and Kahdeem were talking with the

defendant on the porch of the defendant's home when a man in a black coat, later identified as the victim, Davon Robertson, walked up. According to McAllister, the victim was acting "weird" and appeared to be "high." When the victim reached into his pocket, McAllister thought the victim was going to shoot up the porch, although McAllister did not see a weapon. McAllister was nervous and went inside the defendant's home with Romy and Kahdeem. The defendant remained on the porch. The victim approached the porch and snatched a bottle of soda that McAllister had set down there. The victim then left the area and walked toward Pearl Street.

After the victim moved on, McAllister exited the defendant's home, intending to walk to his own home on Pearl Street. Romy and Kahdeem were with him. The defendant, however, went into his home and retrieved a gun. McAllister described it as a big gun that was sawed off and could not be held in just one hand. The defendant caught up to McAllister, and the two followed the victim toward Pearl Street. McAllister stated to the defendant: "Whatever you do, don't do this ... don't do this like your life is on the line." The victim turned on Pearl Street and walked toward Brooks Street. The defendant and McAllister continued to walk behind him. When the defendant was in front of McAllister's house, he called, "Yo" and the victim turned around. The defendant and the victim "locked eyes" and exchanged words. The defendant then fired the gun at the victim; McAllister gave contradicting testimony as to whether the victim was facing or turned away from the defendant. The defendant fired three shots: the first shot missed, the second one hit the victim, and the third shot struck him while he was on the ground near the corner of Pearl and Brooks Streets. McAllister, Romy, and Kahdeem were in shock and ran into McAllister's home. The defendant ran from the scene. The victim was taken to Bridgeport Hospital where he was pronounced dead. No weapon—gun or knife—was found on his body.

Later that day, the police searched the crime scene and recovered two .22 caliber shell casings and a soda bottle. They also executed a search warrant on the defendant's home and seized a hacksaw and a file from his bedroom. The police also interviewed McAllister and recorded his statement. The defendant was arrested the following day and charged with murder. The state subsequently filed an amended information charging the defendant with murder and use of a firearm in the commission of a felony.

Susan Williams, assistant state medical examiner, performed an autopsy of the victim's body, which revealed gunshot wounds

to the victim's chest and lower right leg. She removed a bullet from the victim's chest and a bullet fragment from his leg. Williams opined that the cause of death was gunshot wounds to the left chest¹ and right leg; the manner of death was homicide.

On February 21, 2017, the defendant filed a motion for a speedy trial, which was granted by the court; jury selection commenced on February 27, 2017. At the conclusion of evidence and following arguments of counsel, the court charged the jury on murder, the lesser included offense of manslaughter, and use of a firearm in the commission of a felony. After the jury found the defendant guilty of murder and that he employed a firearm in the commission of a felony, the court imposed a total effective sentence of forty-five years in the custody of the Commissioner of Correction. Additional facts will be set forth as needed.

I

On appeal, the defendant claims that the court violated his constitutional right to present a defense by excluding from evidence (a) a statement purportedly made by an unidentified woman who claimed that the victim had robbed her at knifepoint, and (b) the toxicology portion of the autopsy report (toxicology report). The defendant claims that the woman's statement and the toxicology report would have helped the jury determine, on the basis of "the imprecise account of one teenager,"² what was in the defendant's mind at the moment he fired a weapon that fatally wounded

the victim. The state contends that the unidentified woman's statement and the toxicology report are irrelevant to the determination of the defendant's intent. We agree with the state.

The defendant also claims on appeal that the court abused its discretion by excluding the unidentified woman's purported statement and thereby prevented him from presenting evidence that he shot the victim in self-defense. We decline to review this evidentiary claim, as the defendant never proffered the woman's purported statement to show its alleged effect on his state of mind; see Conn. Code Evid. § 8-3 (4) ; and thus the evidentiary claim was unpreserved for appellate review. "[T]he standard for the preservation of a claim alleging an improper evidentiary ruling at trial is well settled. This court is not bound to consider claims of law

not made at trial." (Internal quotation marks omitted.) State v. Miranda , 327 Conn. 451, 464, 174 A.3d 770 (2018). "Appellate review of evidentiary rulings is ordinarily limited to the specific legal [ground] raised by ... trial counsel.... To permit a party to raise a different ground on appeal than [that] raised during trial would amount to trial by ambuscade, unfair to both the trial court and to the opposing party." (Internal quotation marks omitted.) State v. Jones , 115 Conn. App. 581, 601, 974 A.2d 72, cert. denied, 293 Conn. 916, 979 A.2d 492 (2009). Even if the defendant had preserved this claim, the evidence was inadmissible as we explain herein.

The following additional facts are relevant to our resolution of the defendant's claims. Prior to trial, the state filed three motions in limine to preclude the admission of certain evidence, including the unidentified woman's purported statement and the results of the toxicology report, indicating the presence of PCP³ in the victim's body.

As to the woman's statement, McAllister told police that a woman on the street stated, after the victim had walked away from the porch but prior to the shooting, that the victim had robbed her at knifepoint. The state argued that the woman's statement should not be admitted into evidence because it was to present a defense, the right to present the hearsay and did not fall within any recognized exception to the hearsay rule. Moreover, the state argued that the woman's statement was irrelevant, would confuse the jury, and was prejudicial evidence of the victim's character. Counsel for the defendant argued that the woman's statement was relevant to show the defendant's intent and that he feared that the victim was armed and dangerous. Counsel also argued that the statement was admissible

under the excited utterance exception to the hearsay rule. The court deferred ruling until trial.

With respect to the toxicology report, the defendant claims that it was "unique scientific evidence that the substance influencing [the victim's] behavior may have been PCP." The state argued that the victim's death was caused by multiple gunshot wounds

and that the presence of PCP in his body was irrelevant as it did not tend to make the existence of any material fact more or less probable that the defendant caused the victim's death. The state further argued that, even if the toxicology report were relevant, it should be excluded pursuant to § 4-3 of the Connecticut Code of Evidence⁴ because its admission would prejudice the state as inadmissible character evidence, as it could turn the focus of the trial to the victim's having ingested an illegal substance. Again the court deferred its ruling until trial.

We begin our analysis by setting forth the standard of review. "It is well established that a trial court has broad discretion in ruling on evidentiary matters, including matters related to relevancy.... Accordingly, the trial court's ruling is entitled to every reasonable presumption in its favor ... and we will disturb the ruling only if the defendant can demonstrate a clear abuse of the court's discretion....

"The ...