State v. Hill

• Decision Date: 09 December 1986
• Docket Number: (12830)
• Citation: 201 Conn. 505,523 A.2d 1252
• Parties: STATE OF CONNECTICUT v. REGINALD HILL
• Court: Connecticut Supreme Court

201 Conn. 505

523 A.2d 1252

STATE OF CONNECTICUT v. REGINALD HILL

(12830)

Supreme Court of Connecticut.

Argued October 7, 1986.

Decision released December 9, 1986.

PETERS, C. J., HEALEY, SHEA, DANNEHY and S. FREEDMAN, JS.

Joseph G. Bruckmann, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

Robert J. O'Brien, assistant state's attorney, with whom, on the brief, was Arnold Markle, state's attorney, for the appellee (state).

DANNEHY, J.

A jury found the defendant, Reginald Hill, guilty of the offense of possession of a sawed-off shotgun in violation of General Statutes § 53a-211 (a).¹ The defendant forthwith filed a motion to set aside the verdict. The trial judge denied the motion and sentenced the defendant to the custody of the commissioner of correction for five years. In the same trial the defendant was also convicted of using a motor vehicle without the owner's permission, but the defendant does not claim error with regard to that conviction.

There is no dispute as to the following facts. On June 12, 1984, Irene Lasko notified the police that her car was missing. In the early morning of the following day, Officer Vincent Raucci of the New Haven police department and his partner Officer Richard Poulten were patrolling in East Rock Park in New Haven when they observed a motor vehicle approaching from the opposite direction. When the approaching car reached a distance of about fifty feet from the officers' vehicle, the driver of the car negotiated a U-turn, accelerated the vehicle, and sped away. The pursuing officers radioed for a check on the registration of the vehicle. They were informed by return broadcast that the car was the stolen Lasko vehicle. After a chase for a distance of approximately one half mile, the officers stopped the fleeing car. The vehicle was occupied by the defendant, who was in the driver's seat, and a single passenger, Vaughn Outlaw, who was seated in the front passenger's seat. An examination of the car disclosed in the middle of the front seat a red nylon "gym bag" which contained five .16 gauge shotgun shells and a Bic lighter. On the floor beneath the front passenger's seat was a sawed-off shotgun. Both the driver and the passenger were arrested and charged with possession of a sawed-off shotgun and larceny in the second degree.

The defendant did not testify at the trial; Outlaw testified for the prosecution. His testimony indicated that he had known the defendant for about five years. It was also brought to the jury's attention that at the time of this incident the witness was on furlough from the Connecticut Correctional Institution, Cheshire. Outlaw related to the jury that at approximately 12:30 a.m. on June 13, 1984, as he was walking to his aunt's house, the defendant stopped the car he was driving and offered him a ride. Outlaw got into the car, and, after they had gone some distance, the defendant drove into East Rock Park and there they were apprehended and arrested. According to Outlaw, the defendant told him not to worry and to tell the police that the defendant had picked him up. Outlaw testified that he had not brought into the car any of the items seized by the police, and that he had not seen the red gym bag while he was riding with the defendant. He also repeatedly stated that he was unaware of the presence of the sawed-off shotgun.

After Outlaw had testified for the state, defense counsel cross-examined Outlaw extensively about the charges pending against him, his furlough status and any arrangement between Outlaw and the state. Defense counsel was allowed great latitude to ask pointed questions in an attempt to show the jury why Outlaw might be motivated to slant his testimony in order to avoid being convicted on the charges pending against him. The defendant then called his cousin, Darryl Henry, as a witness. Through Henry's testimony, the defendant sought to show that Outlaw, and not the defendant, was the one in possession of the sawed-off shotgun. According to Henry, he saw Outlaw on June 12, 1984, and, at that time, Outlaw showed him a sawed-off shotgun in a gym bag. Henry claimed that Outlaw told him that the shotgun was his "Mastercharge" and that "with this I can get anything." Henry identified the sawed-off shotgun and gym bag exhibited in evidence as those displayed to him by Outlaw on June 12, 1984.

Thus, it appears that the case was in great part one of credibility of the defense witness as opposed to that of Outlaw and the other witnesses who were called by the state. It is unnecessary to relate additional facts, as this appeal is based wholly upon the defendant's claims that the trial court erred in denying his oral motion for a mistrial and in a certain instruction to the jury.

The defendant's first claim on appeal is that the trial court erred in refusing to discharge the jury because of what he asserts was inadmissible and prejudicial testimony. The incident to which the defendant refers occurred during the redirect examination of Outlaw's mother, Barbara Bethea, called as a witness by the state. On recross-examination,² Bethea had testified that the defendant in a conversation with her had said "that he was going to see that Vaughn Outlaw walked." Bethea also testified that in the same conversation she had told the defendant that unless the situation involving her son was cleared up, she "was going to come down here and tell ... what she knew." Her redirect examination proceeded as follows: "Q. When you say you were going to come down here and tell what you know, what were you referring to? A. What was I referring to? The conversation I had with his mother. She had told me it was Reggie's gun." The defendant objected to the hearsay response and asked that it be stricken. The objection was sustained. The court struck the answer from the record and admonished the jury not to consider it. When Bethea finished her testimony, the trial was interrupted at the defendant's request, and a proceeding took place outside the presence of the jury during which defense counsel moved for a mistrial. The trial judge stated to defense counsel that he saw no grounds for finding any attempt on the part of the state to elicit the hearsay response. The defense counsel agreed but told the court: "What I think, your Honor, it presents us in a precarious position where I don't think the defendant can receive a fair trial at this point. I don't think a jury can disregard such a statement." The trial judge denied the motion, noting, in effect, that the occurrence could be cured by instruction.³

Our general rule on the subject of motions for mistrial is well settled. A motion for mistrial is granted only where it is apparent to the court that as a result of some occurrence during trial a party has been deprived of the opportunity for a fair trial. State v. Gaston, 198 Conn. 490, 495, 503 A.2d 1157 (1986); State v. Maldonado, 193 Conn. 350, 356, 478 A.2d 581 (1984); State v. Ubaldi, 190 Conn. 559, 562, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed.2d 259 (1983). A determination of whether a mistrial is warranted is left to the sound judgment and discretion of the trial judge. State v. Gaston, supra, 496; State v. Maldonado, supra. When Bethea repeated a statement made to her out of court and outside the presence of the defendant, the trial judge was in the best position to decide whether the statement was so prejudicial, in light of the entire proceedings, as to deny the defendant a fair trial. The trial judge acted promptly in striking the hearsay statement and in instructing the jury not to consider it in reaching a decision. The instruction was repeated in the final charge. We must assume that the trial judge was satisfied that Bethea's hearsay response did not place the defendant in a "precarious position" from which a curative instruction could not extricate him. Under these circumstances, we find no error in the trial court's determination that the hearsay statement did not deprive the defendant of a fair trial. State v. Ubaldi, supra, 563. The motion for a mistrial on the basis of Bethea's hearsay response was properly denied.

We next consider the defendant's contention that the jury was erroneously instructed regarding "possession," an element of the offense with which the defendant was charged. The defendant argues that the statutory definition of the word "possess," contained in General Statutes § 53a-3 (2)⁴ is satisfied in only two situations: first, where a person has actual physical possession; and second, where a person has exercised dominion or control over an object. The essence of the defendant's claim is that the trial judge erroneously defined "possession" to include a third situation: Where a person has the opportunity or power to exercise dominion or control over an object.

We must first consider whether this issue was properly preserved for review. At the conclusion of both the court's instructions and reinstruction, extended colloquy occurred between the court and defense counsel in which counsel made a number of suggestions to the court concerning the instructions and took exception to a part of the instructions. Defense counsel did not, however, suggest that the court had not accurately defined the word "possession," nor did he object or except to the definition given. We generally do not consider a claimed error regarding the giving of or failure to give an instruction "unless the matter is covered by a written request to charge or exception has been taken ... immediately after the charge is delivered." Practice Book § 852 (formerly § 854); see State v. Fullwood, 193 Conn. 238, 259, 476 A.2d 550 (1984); State v. Alston, 5 Conn. App. 571, 573, 501 A.2d 764 (1985), cert. denied, 198 Conn. 804, 503 A.2d 1186 (1986). In addition, the exception taken must "state distinctly the matter objected to and the ground of objection." Practice Book §...