State v. Jones
| Decision Date | 15 September 1998 |
| Docket Number | No. 18050,18050 |
| Citation | 718 A.2d 470,50 Conn.App. 338 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. Melvin JONES. |
Melvin Jones, pro se, appellant (defendant).
Judith Rossi, Senior Assistant State's Attorney, with whom, on the brief, were Michael Dearington, State's Attorney, and James G. Clark, Senior Assistant State's Attorney, for appellee (State).
Before LAVERY, SPEAR and SULLIVAN, JJ.
The defendant, Melvin Jones, appeals from the judgment of conviction, rendered after a jury trial, of capital felony in violation of General Statutes § 53a-54b (3) 1 and carrying a pistol without a permit in violation of General Statutes § 29-35. 2 On appeal, the defendant claims that (1) the trial court improperly permitted the state to refer to the previous proceedings and his conviction in his first trial, (2) the trial court improperly denied his motion in limine in which he sought to preclude the state from offering into evidence the testimony of Frankie Harris and the camouflage jacket she retrieved from a dumpster, (3) the state's failure to preserve the jacket seized from the defendant at the time of his arrest violated his state and federal constitutional rights to due process of law and confrontation, (4) there was insufficient evidence to support the conviction, and (5) the trial court improperly commented on the evidence in responding to a written interrogatory posed by the jury.
The defendant appealed to this court from a judgment of conviction from his second trial. In the first proceeding, the case was tried to the jury before Hadden, J., and the defendant was convicted of capital felony in violation of § 53a-54b (3) and carrying a pistol without a permit in violation of § 29-35. The defendant appealed to our Supreme Court. While that appeal was pending, the defendant filed a petition for a new trial, which the trial court, Booth, J., granted. The Supreme Court then considered the defendant's appeal and reversed the conviction and remanded the case for a new trial. See State v. Jones, 234 Conn. 324, 662 A.2d 1199 (1995). The defendant was tried to a jury for a second time before Fracasse, J., and convicted of capital felony and carrying a pistol without a permit. 3 He was sentenced to life imprisonment without the possibility of parole. This appeal followed. We affirm the judgment of conviction.
The jury reasonably could have found the following facts. On the morning of October 17, 1990, Bonaventure Console, who resided at 365 Howard Avenue, New Haven, saw the defendant walking toward an automobile parked across the street from his home. A white male, later identified as the victim, Wayne Curtis, was seated in the front of the vehicle. Console had frequently seen the defendant in that neighborhood and later that same day, described him to the police as a black male with braided hair who always wore camouflage clothing.
Shortly thereafter, Nilda Mercado, an eleven year old girl, passed the victim's vehicle on her way to school. Mercado witnessed a black male banging the head of a white male, who was seated in the vehicle, against the car door. As she walked past the car, Mercado heard two gunshots fired. Immediately after the incident, Mercado informed her aunt that the black man had braids in his hair and wore camouflage clothing. Although Mercado could not make a positive in-court identification, she testified that the defendant had similar braids and the same features as the perpetrator.
Angel Delgado, a seventeen year old boy who lived on Howard Avenue, was looking out a second story window of his home at approximately 7:15 a.m. on October 17, 1990, when he witnessed the defendant and the victim across the street. The victim was seated in a vehicle and the two men were arguing. Although Delgado saw only the side of the defendant's face, and his view may have been somewhat obscured by a tree, he recognized the defendant as someone he frequently had seen around that neighborhood during the weeks preceding the homicide. Delgado looked away for a moment and then heard gunshots. When he looked back, the defendant was gone and the victim was lying in the driver's seat. Delgado saw a young girl, later identified as Mercado, running down Howard Avenue. He also described the defendant as having braids and wearing camouflage clothing.
Harris, who also knew the defendant from that neighborhood, heard the shots and moments later saw the defendant run toward her, remove a camouflage jacket and throw it in a nearby dumpster. She retrieved the jacket, which contained a work order from a service station for a wheel alignment performed on the victim's car. Harris admitted that she was a drug addict and a police informant. Harris testified, however, that at the time of the murder, she had not ingested any drugs and, at the time she spoke to the police, she was informed that she would not be paid for her information in connection with this case.
Larry Hodge, also a narcotics user and police informant, first met the victim at a gas station on Route 80 in New Haven at 3 a.m. on October 17, 1990. Hodge paid the victim for a ride to Anastasio's truck stop in New Haven. After Hodge exited the vehicle and began to walk away, he saw a black male with braided hair approach the victim and get into the vehicle. After learning of the victim's death, Hodge, out of concern that his fingerprints in the automobile would be identified in the homicide investigation, contacted the police. In his interview with the police, Hodge gave a sworn statement identifying the defendant from a photographic array as the man he had seen get into the victim's car. Hodge later retracted that identification before the jury. There was evidence that Hodge retracted the identification because he feared retaliation by people who had pressured him not to testify in the trial.
Officer Brendan Cannon of the New Haven police department arrested the defendant on October 19, 1990. At the time of his arrest, the defendant had four braids and was wearing a size extra small camouflage jacket. There was evidence that this jacket was too small for the defendant. The camouflage jacket Harris retrieved from the dumpster was size large.
Arkady Katznelson, an assistant state medical examiner, testified that the victim had died from loss of blood as a result of being shot in the abdomen at close range and that he had suffered facial bruises consistent with having had his head slammed against the armrest of the car door. A second bullet was recovered from the driver's side door.
The defendant first claims that the trial court improperly permitted the state to disclose, on several occasions in the presence of the jury, that there had been prior proceedings and that the defendant had been convicted in the first trial.
On February 26, 1996, the trial court granted the state's motion in limine, precluding both parties from referring to the outcome of the prior proceedings. Defense counsel recognized, however, that it might be necessary to refer to testimony from the prior proceedings, and the trial court granted the motion with the understanding that the parties would inform the court when and if the need to refer to the prior conviction arose. 4 A
Reference to the prior proceedings first occurred during the state's redirect examination of Console. Console testified for the state that he saw the defendant in close proximity to the victim's car shortly before the homicide. At the conclusion of Console's direct testimony, defense counsel informed the court that on cross-examination he intended to discuss Console's criminal record in an effort to impeach Console's credibility. Defense counsel sought to demonstrate that Console might be inclined to testify favorably for the state because he had several pending criminal charges. Out of the presence of the jury, the state requested that it be afforded an opportunity to rehabilitate Console with his prior consistent testimony from the first trial, which had taken place before Console incurred any of the pending criminal charges. The trial court ruled that "[t]o the extent the testimony [Console] gives here is consistent with the testimony he gave in the first trial, [the prior testimony] is admissible as a prior consistent statement [made] prior to these arrests." The defendant took an exception to the trial court's ruling.
Thereafter, defense counsel impeached Console with his criminal record. On redirect examination, the state offered a transcript of Console's testimony from the first trial as a prior consistent statement to refute the suggestion that his current testimony was influenced by bias or interest. Defense counsel did not take an exception to the state's offer of evidence. Immediately after the state read Console's prior testimony into the record, the trial court gave a limiting instruction to the jury. 5
The defendant's claim is an evidentiary one. (Internal quotation marks omitted.) State v. Williams, 48 Conn.App. 361, 366, 709 A.2d 43, cert. denied, 245 Conn. 907, 718 A.2d 16 (1998).
As a general rule, a witness' prior consistent statement is inadmissible at trial. State v. Pollitt, 205 Conn. 61, 76, 530 A.2d 155 (1987); State v. Anonymous (83-FG), 190 Conn. 715, 728, 463 A.2d 533 (1983). (Citation omitted.) State v. Valentine, 240 Conn. 395, 413, 692 A.2d 727 (1997); State v. Brown, 187 Conn. 602, 608, 447 A.2d 734 (1982); State v. Dolphin, 178...
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