State v. Martin, (AC 22976).

Decision Date08 July 2003
Docket Number(AC 22976).
Citation77 Conn. App. 778,825 A.2d 835
CourtConnecticut Court of Appeals
PartiesSTATE OF CONNECTICUT v. CARLTON MARTIN.

Dranginis, Flynn and McDonald, Js. James B. Streeto, assistant public defender, for the appellant (defendant).

Mitchell S. Brody, senior assistant state's attorney, with whom were Patricia M. Froelich, state's attorney, and, on the brief, Walter D. Flanagan, state's attorney, and David R. Shannon, assistant state's attorney, for the appellee (state).

Opinion

MCDONALD, J.

The defendant, Carlton Martin, appeals from the judgments of conviction, rendered after a jury trial, of felony murder in violation of General Statutes § 53a-54c, robbery in the first degree in violation of General Statutes § 53a-134 (a) (2) and five counts of tampering with a witness in violation of General Statutes § 53a-151. On appeal, the defendant claims that the trial court improperly (1) failed to recuse itself, (2) denied his motion to suppress certain letters and telephone call tapes, (3) refused to give a requested jury instruction on specific intent, (4) charged the jury as to consciousness of guilt, (5) denied his motion to suppress evidence pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), and (6) denied him his constitutional right to present a defense as a result of certain evidentiary rulings. We affirm the judgments of the trial court. The jury could have reasonably found the following facts. At 6 a.m., on January 18, 1999, the defendant called Nicole Harris and asked her to drive from Bridgeport to Danbury to pick up his cousin, Tommie L. Martin. At approximately 8:30 a.m., Harris and the defendant picked up Tommie Martin in Danbury. Harris then drove Tommie Martin and the defendant to a gasoline station located next to Gallo's Hi-Way Package Store (Gallo's) in Danbury. After filling Harris' brown Chevrolet Chevette with gas, Harris drove along the street, passing Gallo's, and turned onto the street next to Gallo's, where she parked. The defendant and Tommie Martin left Harris' vehicle and went toward Gallo's. After five minutes, the defendant and Tommie Martin returned to the vehicle and Tommie Martin told Harris to drive around the block. When the vehicle was in front of Gallo's, Tommie Martin told Harris to drive by slowly. As Tommie Martin peered into Gallo's, he said, "[h]e's by himself," and the defendant responded, "I have my heat on me, we'll go back in." Tommie Martin told Harris to turn her vehicle around and park next to Gallo's. The defendant and Tommie Martin left the vehicle and returned ten minutes later with bottles of E & J brandy. When they reentered the vehicle, Tommie Martin told Harris to drive onto the highway. While driving toward Bridgeport, the defendant and Tommie Martin talked excitedly and were asking each other, "[W]as it worth it?" Shortly thereafter, police were called to the liquor store, where they found the victim, Robert Gallo, lying motionless, having been shot multiple times. The cash register had been disturbed, and two bottles of E & J brandy were missing. Gallo died as a result of his injuries. The defendant subsequently told Harris that he and Tommie Martin were involved in the robbery and shooting at Gallo's.

On January 20, 1999, the defendant called Harris and told her to come to his apartment to pick up something. When she arrived, the defendant handed Harris a shoebox containing a .25 caliber handgun wrapped in a towel. In March, 1999, Harris turned the gun over to the police, and ballistics tests confirmed that it had been used to fire the bullets that killed Gallo.

On January 25, 1999, the Danbury police department obtained a search warrant for the defendant's and Tommie Martin's residence at 2108 Seaview Avenue in Bridgeport. The police executed the warrant. The police seized a sawed-off shotgun, a box of .25 caliber ammunition, a .22 caliber firearm and a magazine for a .22 caliber firearm. Subsequent laboratory analysis of the bullets recovered from the victim's body and those in a box of .25 caliber cartridges found at the defendant's apartment revealed their chemical elements to be indistinguishable. They all had come from that box of ammunition.

While awaiting trial, the defendant attempted to contact Harris from prison and did contact associates of Harris to urge her not to cooperate with the state and to dispose of the .25 caliber handgun, which she had been hiding.

I

The defendant first claims that the court, Carroll, J., improperly failed to recuse Judge White. We disagree.

The following facts are relevant to our resolution of the defendant's claim. At a pretrial hearing, Judge White had ordered Barbara Profit, the mother of Antoni Profit and Gregory "Trell" Profit, to leave the courtroom pursuant to a sequestration order. At that time, Barbara Profit, who was the defendant's aunt, recognized Judge White as the public defender who had represented her son, Antoni Profit, in 1995.

Antoni Profit, listed as a witness by the state, was the addressee of jail correspondence from the defendant, which the state claimed showed that the defendant had sought to tamper with the witness, Harris. Gregory Profit also was listed by the state to be a witness to the sale of the murder weapon by Eugene Laurel to the defendant.

The defendant subsequently presented a motion asking Judge White to recuse himself. Judge White, after hearing arguments from the defendant and the prosecutor, stated: "I'll state for the record that I don't have any personal animus or dislike toward [the defendant]. . . . I never knew, saw or heard of any one of these individuals before this trial started. Insofar as Antoni Profit is concerned, after looking at the paperwork that was submitted to me, I would agree that I represented him as a public defender as long ago as 1996, over four years ago, and I do not have any independent memory of him. I don't remember any of the facts of his case. If he walked through that door right now, I wouldn't know who he was.

"Insofar as Barbara Profit is concerned, I have no independent memory of her. I have no personal dislike for her. When I ordered her sequestered, my ruling had nothing to do with her as an individual. I was told that she was a witness in this case, and as indicated by [the prosecutor], she was a participant and perhaps a subject of some of those telephone calls that we heard recorded and were submitted into evidence in the motion to suppress, and, apparently, she's going to be called at trial. My ruling had nothing to do with any thoughts or feelings about her as an individual. So, I would say I don't have any actual bias toward any of the parties or any of the witnesses in the case. And I understand the question is what an objective observer might think.

"Insofar as Antoni Profit's criminal history with the court is concerned or my representation of him is concerned, as far as I know, anything I represented him in connection with has nothing, absolutely nothing to do with this case.... I think, under all the circumstances here, I don't think there's a basis for me to recuse myself. Nevertheless, I'm going to pass the matter, and I'm going to ask Judge Carroll to come up and listen to your arguments."

A hearing was then held before Judge Carroll. At the hearing, it was stipulated that Judge White, as a public defender, had represented Antoni Profit, a prospective state's witness, in one case involving two charges in 1995 and 1996. The state then told Judge Carroll that it no longer intended to call Antoni Profit as a witness.

The only witness at the hearing was Barbara Profit. Barbara Profit testified that Judge White had represented her son, Antoni Profit, in 1996, and that Judge White was not receptive to the information that she provided to him at that time. She testified that she believed that Judge White could not be fair in this case.

During Barbara Profit's testimony, she stated that another son, Gregory Profit, had been represented at some unspecified time by someone at the Norwalk public defender's office. That office was the one at which Judge White had worked. Barbara Profit also stated that she did not know if Judge White ever had represented Gregory Profit. Gregory Profit was anticipated to testify for the state that he had purchased the murder weapon from Laurel, and the defense claimed there was evidence that Gregory Profit had done so to commit a robbery with Laurel.

After the hearing, the court, Carroll, J., denied the defendant's motion, ruling that "based upon all the evidence that is before me, and based upon my assessment of the credibility of the one [witness] who has testified, there is no evidence of any conduct that would lead a reasonable person, knowing all of the circumstances, to the conclusion that [Judge White's] impartiality might reasonably be questioned." The defendant appeals from Judge Carroll's ruling, claiming that Judge White should have been disqualified because of the appearance of impropriety.

"Accusations of judicial bias or misconduct implicate the basic concepts of a fair trial. . . . The appearance as well as the actuality of [partiality] on the part of the trier will suffice to constitute proof of bias sufficient to warrant disqualification." (Internal quotation marks omitted.) State v. Montini, 52 Conn. App. 682, 694, 730 A.2d 76, cert. denied, 249 Conn. 909, 733 A.2d 227 (1999).

"The standard for such a determination is well established. The standard to be employed is an objective one, not the judge's subjective view as to whether he or she can be fair and impartial in hearing the case. In Connecticut, the disqualification of judges is governed by General Statutes § 51-391 and Canon 3 [c] of the Code of Judicial Conduct. Under Canon 3 [c] (1) of the Code of Judicial Conduct [a] judge should disqualify himself. . . in a proceeding in which his . . . impartiality might rea...

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