State v. Little

• Decision Date: 03 May 2005
• Docket Number: No. 25590.,25590.
• Citation: 88 Conn.App. 708,870 A.2d 1170
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Troy LITTLE.

870 A.2d 1170

88 Conn.App. 708

STATE of Connecticut v. Troy LITTLE.

No. 25590.

Appellate Court of Connecticut.

Argued February 9, 2005.

Decided May 3, 2005.

Richard E. Condon, Jr., assistant public defender, for the appellant (defendant).

Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and John Waddock, supervisory assistant state's attorney, for the appellee (state).

DRANGINIS, DiPENTIMA and STOUGHTON, Js.

STOUGHTON, J.

The defendant, Troy Little, 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-55a and carrying a pistol without a permit in violation of General Statutes § 29-35(a). On appeal, the defendant claims that (1) the trial court improperly marshaled the evidence in favor of the state and (2) the prosecutor committed misconduct that resulted in a denial of his due process right to a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of August 16, 2000, the defendant was walking with four young women along the sidewalk on Lilac Street in New Haven. The victim, Kishawn Council, drove a black car alongside the group as they walked. There were three other men in the victim's car. The victim called out to the women to get their attention, and the defendant began to stare into the victim's car. The victim asked the defendant, "What you looking at?" and the defendant and the victim began to argue. The victim's car continued to follow alongside the group as the two men argued.

When the defendant and the women reached the corner of Lilac and Newhall Streets, they turned right and continued down Newhall Street. The victim followed the group and then stopped his car on Newhall Street. The victim got out of his car and approached the defendant. The defendant picked up a stick and continued to argue with the victim. The victim punched the defendant in the face, and the defendant tried to hit the victim with the stick. The victim began to choke the defendant to the point where the defendant was "on his tippytoes about to come off his feet." The two men then fell to the ground as the defendant tried to break free.

A bystander broke up the fight and separated the two men. The victim returned to his car, and the defendant ran across the street to a friend who was standing nearby. The defendant yelled to his friend, asking him for a gun. The defendant's friend initially refused but gave a nine millimeter black handgun to the defendant after he saw the victim reach inside the car. Armed with the gun, the defendant started to run after the victim. The defendant chased the victim in between two houses on Lilac Street and then fired at the victim from the driveway between the two houses.

The next morning, one of the occupants of the house at 25 Lilac Street found the victim's body on the back steps of the house. The cause of death later was determined to be a gunshot wound to the jaw, which traveled through the victim's neck causing extensive bleeding. The defendant surrendered himself to the police on April 1, 2001, and he was arrested. He was charged with murder and carrying a pistol without a permit. A jury found the defendant guilty of the lesser included offense of manslaughter in the first degree and of carrying a pistol without a permit. Additional facts will be set forth as necessary.

I

The defendant first contends that during its charge to the jury, the court improperly marshaled the evidence against the defendant and in favor of the state.¹ The defendant argues that the only time the court referred to the evidence was during its charge on motive and that the court ignored the defendant's evidence and his defense theory throughout the jury charge. He claims that the court thus improperly endorsed the state's case, thereby depriving him of a fair trial. We disagree.

The defendant did not object to the court's charge and now seeks review pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Under Golding, a defendant can prevail on an unpreserved claim of constitutional error "only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Emphasis in original.) Id., at 239-40, 567 A.2d 823. We agree with the defendant that the record is adequate for review and that the claim is of constitutional magnitude. We therefore must determine whether the alleged constitutional violation clearly exists.

This court has stated: "A trial court has broad discretion to comment on the evidence adduced in a criminal trial.... A trial court often has not only the right, but also the duty to comment on the evidence.... The purpose of marshaling the evidence ... is to provide a fair summary of the evidence, and nothing more; to attain that purpose, the [trial] judge must show strict impartiality.... To avoid the danger of improper influence on the jury, a recitation of the evidence should not be so drawn as to direct the attention of the jury too prominently to the facts in the testimony on one side of the case, while sinking out of view, or passing lightly over, portions of the testimony on the other side, which deserve equal attention....

"On review, we do not evaluate the court's marshaling of the evidence in isolation. Rather, [t]o determine whether the court's instructions were improper, we review the entire charge to determine if, taken as a whole, the charge adequately guided the jury to a correct verdict.... The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law.... [I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled." (Internal quotation marks omitted.) State v. Thompson, 81 Conn.App. 264, 282, 839 A.2d 622, cert. denied, 268 Conn. 915, 847 A.2d 312 (2004).

At trial, the defendant's theory of defense was that there were inconsistencies in the testimony of the state's witnesses, that the state's witnesses were not credible, that the forensic evidence did not support the state's case and that the state had not proved its case. The trial court instructed the jury that it was the finder of fact and, therefore, to the extent that the court referred to the facts, if the jury's recollection of the facts was different, the jury's recollection would control. The court informed the jury that it was the sole judge of the facts and that it was to form its own conclusion from the evidence as to what the facts were. The court instructed the jury that the evidence consisted of the sworn testimony of the witnesses, both on direct examination and cross-examination, regardless of who called the witness, along with the exhibits. It instructed the jury on the presumption of innocence and the burden of proof. The court also instructed the jury on the credibility of witnesses and on various factors relating to the determination of the credibility and the weight, if any, to be given to the testimony of witnesses.

We have reviewed the charge in its entirety and conclude that the court did not unfairly focus on the state's case. There were few references to specific evidence during the charge. One of the few references to the state's evidence occurred during the court's instruction regarding motive. The court explained that the prosecution contended that this evidence, if believed, demonstrated that the defendant had a motive to cause and intended to cause the death of the victim. The court left it to the jury to determine whether, upon all the evidence, the defendant had a motive to commit the crime. Although the court did not refer to any defense specifically, it did inform the jury that the state had the burden of proving the defendant's guilt beyond a reasonable doubt. What little reference the court made to the state's evidence was prefaced by the court's instructions about the role of the jury and was proportional to the quantum of evidence offered at trial. The court explained to the jurors at the beginning of its instruction as follows: "[Y]ou are the finders of fact, and, therefore, to the limited extent, and it will be limited, that [the court] refer[s] to any of the evidence in the case or the facts that the state or the defense are alleging, it's not [the court's] recollection that controls, it's yours that controls. If you recollect the evidence differently than [the court], it's your recollection that controls, not [the court's]."

After reviewing the charge in its entirety, we conclude that the court did not marshal the evidence so as to unduly prejudice the defendant or deprive him of his right to a fair trial. Accordingly, the defendant's claim fails under the third prong of Golding.

II

The defendant also claims that several comments made by the prosecutor during closing argument constituted prosecutorial misconduct. First, the defendant contends that the prosecutor improperly appealed to the jury's passions, emotions and prejudices. Second, the defendant claims that the prosecutor maligned his theory of defense and impugned the integrity and role of defense counsel.² We disagree.

We first set forth the applicable standard of review. "[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, and not the culpability of the prosecutor.... In determining whether the...