State v. Lopez

• Decision Date: 02 January 2007
• Docket Number: No. 17198.,17198.
• Citation: 911 A.2d 1099,289 Conn. 779
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Ramon LOPEZ.

911 A.2d 1099

289 Conn. 779

STATE of Connecticut v.Ramon LOPEZ.

No. 17198.

Supreme Court of Connecticut.

Argued September 20, 2006.

Decided January 2, 2007.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Kent Drager, senior assistant public defender, for the appellant(defendant).

Rita M. Shair, senior assistant state's attorney, with whom were Jonathan C. Benedict, state's attorney, and, on the brief, C. Robert Satti, Jr., senior assistant state's attorney, for the appellee(state).

BORDEN, NORCOTT, KATZ, PALMER and ZARELLA, Js.

BORDEN, J.

The defendant, Ramon Lopez, appeals¹ from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a(a),² two counts of attempted murder in violation of General Statutes §§ 53a-49(a)³and53a-54a(a), and two counts of assault in the first degree in violation of General Statutes § 53a-59(a)(5).⁴The defendant claims that the trial court improperly: (1) denied his postconviction motion for a continuance so that his substitute counsel could review the trial transcript in preparation for sentencing; (2) admitted evidence of the defendant's prior misconduct; and (3) instructed the jury on accessorial liability.In addition, the defendant claims that the prosecutor engaged in numerous acts of misconduct, thereby depriving him of his right to a fair trial, and that there was insufficient evidence to establish his guilt beyond a reasonable doubt on any of the charges.We affirm the judgment of the trial court.

The jury reasonably could have found the following facts.In the early morning hours of February 2, 2002, several people were gathered inside and outside of Pettway's Variety Store (Pettway's) at the northwest corner of the intersection of Stratford Avenue and Fifth Street in Bridgeport.Stratford Avenue runs in a generally east-west direction and has one-way traffic heading east.Fifth Street runs in a generally north-south direction and ends at Stratford Avenue.The three victims, Shariff Abdul-Hakeem, also known as "Polo," his brother, Manuel Rosado, and Gary Burton, were standing outside the store.Lou Diamond and a man known as "Chef" came out of Pettway's, gave Abdul-Hakeem and Rosado a "grim" look and then walked north on Fifth Street.Shortly thereafter, Diamond and Chef, who had covered the lower parts of their faces with some type of cloths, turned around and walked back down Fifth Street toward Pettway's.At the same time, a third unidentified person carrying a gun ran from the east side of Fifth Street to the west side and joined Diamond and Chef.

Meanwhile, a white car had come down Fourth Street, the next street to the west of Fifth Street, turned east onto Stratford Avenue and stopped on the north side of that street.Two men got out of the rear driver's side door and the car then crossed Stratford Avenue and parked on the south side of the street.Although two men wore cloths over their lower faces, an eyewitness, Tony Payton, knew both men and was able to identify them as Boo McClain and the defendant.McClain carried a handgun and the defendant carried a shotgun.⁵As McClain and the defendant approached Pettway's, the defendant said to the people gathered on the sidewalk, "All right freeze, nobody move," and he cocked the shotgun.The people on the sidewalk then rushed toward and started banging on the door to Pettway's, which had a "buzzer lock."The door opened and several people were able to get inside the store.Rosado, who was standing outside the store facing Fifth Street, turned toward Fourth Street to see the reason for the commotion.He saw the defendant, whom he had known for about one year before the shooting and with whom he had been incarcerated, aiming a gun at him.As Rosado dove for the door to Pettway's, McClain, the defendant and the three men who were approaching Pettway's down Fifth Street opened fire on the crowd.After the shooting, the defendant yelled, "I told you I was going to get you, Polo, I told you I was going to get you."McClain and the defendant then ran back up Stratford Avenue and reentered the white car, which turned around and sped back up Fourth Street.At the same time, Diamond and Chef ran back up Fifth Street.A later ballistics analysis revealed that two separate shotguns and four separate handguns had been used in the shooting.

Abdul-Hakeem received bullet wounds in his left calf and left buttock.The bullet that hit his left buttock exited from the right side of his abdomen, and Abdul-Hakeem died several hours after the shooting as the result of uncontrollable bleeding from the wound.Rosado received shotgun wounds to his legs.Burton was wounded when a bullet hit him in the ribs and another bullet grazed his hip.Additional facts will be set forth as necessary.

The defendant was charged with the murder of Abdul-Hakeem, the attempted murder of Rosado and Burton, and assault in the first degree with respect to Rosado and Burton.He was found guilty of all charges after a jury trial.After the verdict, the defendant filed a motion to dismiss his trial counsel on the ground that counsel had failed to perform his duties properly.On November 10, 2003, the trial court granted the motion and appointed new counsel for the defendant.On that date, the trial court also rescheduled the sentencing hearing from November 14, 2003, to December 12, 2003.

On November 14, 2003, substitute counsel for the defendant filed a motion for a continuance of the sentencing hearing until February 6, 2004, so that he could review the trial transcript, which was not going to be available until January 20, 2004.In the motion, defense counsel stated that he needed to review the transcript in order to address the defendant's complaints against his trial counsel.The trial court held a hearing on the motion, at which defense counsel argued that he needed to review the transcript in order to determine whether he should file a motion for a new trial.When the trial court responded that the time for filing a motion for a new trial had passed,⁶the defendant argued that the court could grant a request to file an untimely motion.The trial court then stated that the purpose of a sentencing hearing was not to review the adequacy of trial counsel.Rather, the court stated, "[t]he purpose of a sentencing hearing is to allow the parties to be heard with respect to what constitutes an appropriate sentence . . . based on factors, including the circumstances of the offense, the attitude of the victim [in] the case of a homicide, the family, and the history of [the defendant], including the social and criminal background."The court further noted that the presentencing investigation report would be available to counsel and that he could discuss all relevant matters with the victim's advocate and the defendant.The court concluded that, although "a transcript of the trial may be necessary on appeal of [the defendant's] conviction or for a proceeding before a habeas court, it is not necessary for effective representation of [the defendant] at a sentencing hearing."Accordingly, the trial court denied the defendant's motion for a continuance.

Thereafter, the trial court rendered judgment in accordance with the verdict and sentenced the defendant to sixty years imprisonment on the murder charge, twenty years imprisonment on the attempted murder charges, and twenty years imprisonment on the assault in the first degree charges, for a total effective sentence of 100 years imprisonment.This direct appeal followed.

I

The defendant first claims that the trial court improperly denied his motion for a continuance of the sentencing hearing.He contends that, by doing so, the court effectively deprived him of his constitutional right to counsel during critical postverdict proceedings and, therefore, he is entitled to a new sentencing hearing.We conclude that there is no need to decide whether the trial court abused its discretion in denying the defendant's motion for a continuance because, even if the denial was improper, it was harmless.We further conclude that the defendant was not deprived of his constitutional right to counsel.

"It is well settled that [t]he determination of whether to grant a request for a continuance is within the discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion. . . .A reviewing court is bound by the principle that [e]very reasonable presumption in favor of the proper exercise of the trial court's discretion will be made. . . .Our role as an appellate court is not to substitute our judgment for that of a trial court that has chosen one of many reasonable alternatives. . . .Therefore, on appeal, we . . . must determine whether the trial court's decision denying the request for a continuance was arbitrary or unreasonabl[e]."(Citations omitted; internal quotation marks omitted.)State v. Delgado,261 Conn. 708, 711, 805 A.2d 705(2002).

"We have identified several factors that a trial court may consider when exercising its discretion in granting or denying a motion for continuance. . . .These factors include the likely length of the delay . . . the impact of delay on the litigants, witnesses, opposing counsel and the court . . . the perceived legitimacy of the reasons proffered in support of the request . . . [and] the likelihood that the denial would substantially impair the defendant's ability to defend himself. . . ."(Citation omitted; internal quotation marks omitted.)Id., at 714, 805 A.2d 705.

"A sentencing judge has very broad discretion in imposing any sentence within the statutory limits and in exercising that discretion he may and should consider matters that would not be admissible at trial."(Internal quotation marks omitted.)State v. Eric M.,271 Conn. 641, 649, 858 A.2d 767(2004)."Consistent...