State v. Jones

• Decision Date: 29 January 2013
• Docket Number: No. 33044.,33044.
• Citation: 59 A.3d 320,140 Conn.App. 455
• Parties: STATE of Connecticut v. William T. JONES.
• Court: Connecticut Court of Appeals

140 Conn.App. 455

59 A.3d 320

STATE of Connecticut

v.William T. JONES.

No. 33044.

Appellate Court of Connecticut.

Argued Oct. 11, 2012.

Decided Jan. 29, 2013.

Lisa J. Steele, special public defender, for the appellant (defendant).

Robert J. Scheinblum, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Mary Elizabeth Baran, senior assistant state's attorney, for the appellee (state).

ALVORD, BEAR and SHELDON, Js.

ALVORD, J.

The defendant, William T. Jones, appeals from the judgment of conviction, rendered after a jury trial, of assault of a police officer in violation of General Statutes § 53a–167c and increasing the speed of a motor vehicle in an attempt to escape or elude a police officer in violation of General Statutes § 14–223(b). On appeal, the defendant claims that the trial court (1) abused its discretion by not submitting an exhibit to the jury, (2) violated the defendant's confrontation clause rights by allowing a supervising physician, rather than the treating physician, to testify about the injury that resulted in the defendant's conviction, and (3) violated the defendant's confrontation clause rights by not reviewing a personnel file in camera and disclosing to the defendant any potentially exculpatory evidence found therein. We disagree with the defendant's claims and affirm the judgment of conviction.

The jury reasonably could have found the following facts in support of its verdict. On December 12, 2008, Detective Jose Rivera and Officer Christian Rodriguez of the Meriden police department observed the driver of a green Dodge Charger engage in what appeared to be a transaction involving narcotics. After the suspected narcotics transaction was completed, the driver of the Charger began to drive away, and Rivera and Rodriguez followed the Charger in their unmarked police vehicle. Rodriguez, through radio communication with the police dispatcher, learned that the Charger was a rented vehicle, and he requested that the dispatcher send a marked police cruiser to stop the Charger. Soon thereafter, Officer George Gonzalez, driving a marked police cruiser, activated the cruiser's emergency lights and stopped the Charger. Gonzalez parked the cruiser perpendicularly in front of the Charger, and Rodriguez parked the unmarked vehicle behind the Charger.

Rodriguez exited the unmarked vehicle and, as he was approaching the Charger, identified himself as a police officer and requested that the driver show him his hands. When the driver did not comply, Rodriguez drew his firearm and held it in a low, ready position while continuing to approach the Charger. Rodriguez arrived at the window on the driver's side of the Charger and again ordered the driver to show him his hands. The next series of events—in which the Charger backed up, accelerated forward and Rodriguez fired two gunshots from his firearm—occurred over the course of a couple of seconds. When the Charger backed up, the driver's side mirror, door area and quarter panel struck Rodriguez, and when it accelerated forward, one of the Charger's tires ran over Rodriguez' left foot. The two gunshots Rodriguez fired struck the side of the Charger, which sped away. Gonzalez pursued the Charger in the police cruiser, as did Rivera and Rodriguez in the unmarked vehicle, but their efforts were unsuccessful.

After disengaging from pursuit of the Charger, Rodriguez went to the Midstate Medical Center in Meriden (medical center), where he received treatment for his injured foot. The following day, he identified the defendant as the driver of the Charger from a photographic array. In the interim, the woman who had rented the Charger informed the police that she had rented the Charger at the request of the defendant. The defendant was arrested on January 12, 2009, in Rochester, New York, pursuant to a fugitive warrant. Additional facts will be set forth as necessary.

I

The defendant first claims that the court erroneously instructed the jury that, during deliberations, it could view a dashboard camera video recording, which had been introduced as a full exhibit, in the courtroom rather than in the jury deliberation room. He argues that the judgment should be reversed and the case remanded for a new trial because the court's ruling concerning the viewing of the video by the jury violated Practice Book § 42–23(a)(2).¹ We disagree and conclude that the court did not abuse its discretion in permitting the jury to view the video only in the courtroom during jury deliberations.

The record reflects the following procedural history and additional facts, which are relevant to this claim. On December 12, 2008, the marked police cruiser driven by Gonzalez activated its emergency lights to indicate to the driver of the Charger that he should stop the car. When the emergency lights in Gonzalez' cruiser were activated, a dashboard camera automatically turned on. The video recording from this camera revealed the Charger slowing and then stopping on a street that intersected with the street on which Gonzalez was driving, Gonzalez' cruiser stopping perpendicularly in front of the Charger, the sound of muffled voices and two gunshots, the Charger driving off rapidly and the ensuing unsuccessful car chase.

At trial, the state submitted, as a full exhibit and without objection, a digital versatile disc (DVD) recording of the video, which had been duplicated onto multiple DVDs. Both the state and the defendant utilized the video at various times throughout the trial by playing a DVD on the prosecutor's laptop computer, which projected the images so that the jury could view the video from the jury box. The record reveals that, during the trial, the jury viewed the entire video approximately eight times, and that the jury viewed selected portions of the video approximately eight additional times.

Both the state and the defendant showed the video during their closing arguments on April 12, 2010. After closing arguments, the court instructed the jury and adjourned court until the following day. On the morning of April 13, 2010, there was a chambers conference with the court, the prosecutor and defense counsel pertaining to a separate evidentiary matter. Once court was opened, defense counsel noted for the record that the conference had taken place. The court asked whether either party had anything to discuss before the jury was called, and both stated, through counsel, that they had nothing further. At that point, for the first time on the record, defense counsel asked whether the jurors would be able to view the video in the jury room. ² The court responded that it did not have equipment that could be sent into the jury room to play the video. The court offered that should the jury want the video replayed, it could be done in the courtroom, where counsel, the defendant and the court would be present. The court likened the procedure to the playback of testimony, in that the jury could submit a note to the court indicating its desire to replay the video, and all the aforementioned persons would congregate in the courtroom for the replaying. The jury was given this instruction, and after just less than one hour of deliberation, without asking to replay the video, the jury reached a verdict.

On June 25, 2010, at the defendant's sentencing hearing, defense counsel again voiced concern about the absence of the video from the jury deliberation room. The defendant moved for a judgment of acquittal and a new trial on the ground that requiring the jury to view the video in the courtroom “unfairly and unduly reduced [the jury's] ability to freely discuss the facts of the case....” The court reiterated that there was no mechanism available at the time that would have allowed the jury to view the video in the jury deliberation room. The court further stated that it was the court's belief that the access the jury had to the video—the same access juries are entitled to with regard to the playback of testimony—did not prejudice the defendant. The defendant's motion was denied, and he was sentenced to imprisonment of seventy-eight months for the assault on Rodriguez and one year for escaping from police pursuit, to be served concurrently with the sentence for the assault.

“[A]lthough the defendant's claim is not a classic evidentiary claim, in that it does not challenge the admission or exclusion of evidence or limitations upon the uses to which admitted evidence lawfully could be put, it concerns the process by which admitted evidence was made available to the jury for its review and consideration in the course of deliberations.” State v. Osbourne, 138 Conn.App. 518, 538, 53 A.3d 284, cert. denied, 307 Conn. 937, 56 A.3d 716 (2012). “The trial court's ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion.... We will make every reasonable presumption in favor of upholding the trial court's ruling, and only upset it for a manifest abuse of discretion.... [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Internal quotation marks omitted.) State v. Morquecho, 138 Conn.App. 841, 847, 54 A.3d 609 (2012).

Practice Book § 42–23(a) states in relevant part: “The judicial authority shall submit to the jury ... [a]ll exhibits received in evidence.” Such exhibits are distinguished from other items, listed in subsection (b), that “[t]he judicial authority may, in its discretion, submit to the jury....” Practice Book § 42–23(b). On appeal, the defendant argues that use of the word “shall” in subsection (a), as opposed to the word “may” in subsection (b), creates a mandatory directive with regard to exhibits received in evidence. The defendant further argues that the procedure the court followed for the replaying of the video—the procedure for the replaying of...