State v. L'MINGGIO

• Decision Date: 20 August 2002
• Docket Number: (AC 22787)
• Citation: 71 Conn. App. 656,803 A.2d 408
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. JASON L'MINGGIO

71 Conn. App. 656

803 A.2d 408

STATE OF CONNECTICUT v. JASON L'MINGGIO

(AC 22787)

Appellate Court of Connecticut.

Argued May 28, 2002.

Officially released August 20, 2002.

Foti, Dranginis and Healey, Js. Lisa J. Steele, special public defender, for the appellant (defendant).

Christopher T. Godialis, assistant state's attorney, with whom, on the brief, was Mary M. Galvin, state's attorney, for the appellee (state).

Opinion

FOTI, J.

The defendant, Jason L'Minggio, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a¹ and carrying a pistol or revolver without a permit in violation of General Statutes § 29-35 (a).² On appeal, the defendant claims (1) that the trial court abused its discretion, and violated his rights to present a defense and to testify, when it excluded certain testimony, (2) that the court improperly instructed the jury as to the crime of carrying a pistol or revolver without a permit and (3) that the prosecutor, during her closing argument, committed prosecutorial misconduct that deprived him of a fair trial. We affirm the judgment of the trial court.

The relevant facts underlying this conviction, as the jury reasonably could have found them, began to unfold on October 16, 1998, during a high school football game in West Haven. Sometime prior to the end of the game, several individuals attending the game became involved in a physical confrontation. During the incident, Nyron Dumas, the defendant's thirteen year old brother, sustained stab wounds. Several eyewitnesses told police that Larry Mayes had stabbed Dumas. The next morning, the defendant, then aged sixteen, told an acquaintance that he would "put [Mayes] in a body bag."

During the afternoon of October 17, 1998, the defendant and two acquaintances, Jeremiah Jeter and Fred Dennison, were standing outdoors near the defendant's apartment in West Haven. Mayes approached the defendant and his acquaintances on foot. Shortly thereafter, the defendant began yelling at Mayes. The defendant walked into a nearby wooded area and retrieved a semiautomatic pistol. As Jeter and Dennison looked on, the defendant fired several shots at Mayes. Mayes began yelling and attempted to flee the scene. The defendant shot Mayes in each of his legs; the gunshot wound to Mayes' left leg was fatal.

After the shooting, the defendant went to his apartment, washed his hands with bleach, retrieved his mother's car keys and drove off in his mother's car with Jeter and Dennison. An eyewitness reported the shooting to police, who apprehended and arrested the defendant in Bridgeport several days later following a pursuit on foot.

I

In support of his theory of defense, the defendant attempted to demonstrate that Jeter had shot Mayes. The defendant sought to introduce his own testimony concerning conversations he had with Jeter before and after the shooting. The defendant also sought to introduce his testimony as to why he had fled from police after the shooting. On appeal, the defendant claims that in several instances, the court improperly excluded such testimony. He argues that the court's rulings violated his constitutional rights to present a defense and to testify. We disagree.

Before addressing each of the court's challenged rulings in turn, we first set forth our standard of review. The defendant concedes that at trial, he did not challenge the court's rulings on constitutional grounds, as he does on appeal. "Once an objection has been made and the grounds stated, a party is normally limited on appeal to raising the same objection on the same basis as stated at trial." (Emphasis added.) State v. Adams, 225 Conn. 270, 287 n.12, 623 A.2d 42 (1993). The defendant requests review of his claims under the four part standard set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).³ We decline to afford Golding review to the defendant's claims because they are evidentiary, and not constitutional, in nature. As such, they fail under Golding's second prong.

This court has stated that "[a] defendant's right to present a full defense, including the right to testify on his own behalf, is not without limits. In responding to the charges against him, an accused must comply with the established rules of procedure and evidence, as must the prosecution, in order to insure a fair trial.... A criminal defendant's right to present a full defense and to receive a fair trial does not entitle him to place before the jury evidence normally inadmissible." (Citation omitted; internal quotation marks omitted.) State v. Rogers, 9 Conn. App. 208, 214, 518 A.2d 399 (1986), cert. denied, 202 Conn. 806, 520 A.2d 1288, cert. denied, 481 U.S. 1051, 107 S. Ct. 2185, 95 L. Ed. 2d 841 (1987).

Furthermore, "the right to present a defense does not include the right to offer evidence that is incompetent, irrelevant or otherwise inadmissible.... Every evidentiary ruling that denies a defendant a line of inquiry to which he thinks he is entitled is not constitutional error." (Citation omitted; internal quotation marks omitted.) State v. Jones, 46 Conn. App. 640, 646, 700 A.2d 710, cert. denied, 243 Conn. 941, 704 A.2d 797 (1997). "The trial court retains the power to rule on the admissibility of evidence pursuant to traditional evidentiary standards." (Internal quotation marks omitted.) State v. Bridges, 65 Conn. App. 517, 524, 782 A.2d 1256, cert. denied, 258 Conn. 934, 785 A.2d 230 (2001).

Because the claims are evidentiary in nature and were preserved at trial on such grounds, we will review them according to a familiar standard of review. "Our standard of review regarding challenges to a trial court's evidentiary rulings is that these rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.... It is a well established principle of law that the trial court may exercise its discretion with regard to evidentiary rulings, and the trial court's rulings will not be disturbed on appellate review absent abuse of that discretion.... Sound discretion, by definition, means a discretion that is not exercised arbitrarily of wilfully, but with regard to what is right and equitable under the circumstances and the law.... And [it] requires a knowledge and understanding of the material circumstances surrounding the matter.... In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court's ruling." (Internal quotation marks omitted.) State v. Vasquez, 68 Conn. App. 194, 199-200, 792 A.2d 856 (2002).

Further, even if the defendant can demonstrate that the court's ruling reflects an abuse of discretion, "[u]nder the current and long-standing state of the law in Connecticut, the burden to prove the harmfulness of an improper evidentiary ruling is borne by the defendant. The defendant must show that it is more probable than not that the erroneous action of the court affected the result." (Internal quotation marks omitted.) State v. Lewis, 67 Conn. App. 643, 653, 789 A.2d 519 (2002).

The excluded testimony that is the subject of the defendant's claims falls into three general categories: (1) statements made by the defendant and Jeter before the shooting; (2) statements made by the defendant and Jeter after the shooting; and (3) testimony concerning the defendant's state of mind.

A

At trial, the defendant testified that just prior to the shooting, Jeter had told him, "`Hey, yo, I'm about to scare [Mayes]' .... He said, `I'm about to scare him.'" The state objected on hearsay grounds. The defendant's counsel argued that the evidence was relevant to "state of mind." The court struck the statement on hearsay grounds, noting that the defendant was "testifying directly as to a conversation that he says he heard."

The defendant then testified that Jeter walked to where Mayes was standing and that while Jeter was holding a gun at his side, Jeter said to Mayes, "`Hey, yo, you know you violated the fam, right?'" The state objected and the defendant's counsel responded to the objection by stating "state of mind." The court stated: "That's not state of mind .... This is an observation that he's making. What state of mind is there? I'll sustain the objection. Ladies and gentlemen [of the jury], you can accept whatever this witness testifies to as to what he observed. Any conversations that he relates from a third party, you're to strike from your mind and memory."

Immediately thereafter, the defendant testified that Mayes said to Jeter, "`What do you mean?'" The defendant next testified that Jeter told Mayes, "`You know what I mean.'" The state immediately objected, and the court again disallowed the testimony and instructed the defendant to describe what he observed and not to relate conversations to the jury.

"[A]n out-of-court statement that is offered to establish the truth of the matter asserted is inadmissible hearsay unless the statement falls within a recognized exception to the hearsay rule.... An out-of-court statement is not hearsay, however, if it is offered to illustrate circumstantially the declarant's then present state of mind, rather than to prove the truth of the matter asserted.... Of course, for any such out-ofcourt statement to be admissible, it must be relevant to an issue in the case." (Citations omitted; internal quotation marks omitted.) State v. Wargo, 255 Conn. 113, 137-38, 763 A.2d 1 (2000).

The court properly declined to admit the defendant's testimony concerning what Jeter or Mayes allegedly said prior to the shooting. The statements were hearsay. Although the defendant apparently sought to introduce the statements for the purpose of demonstrating the defendant's then existing state of mind, the statements did not support such a use. That is because the defendant did not make the statements. The...