State v. McCall

• Decision Date: 06 March 2001
• Docket Number: (AC 18073)
• Citation: 62 Conn. App. 161,780 A.2d 134
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. BRENT MCCALL

62 Conn. App. 161

780 A.2d 134

STATE OF CONNECTICUT v. BRENT MCCALL

(AC 18073)

Appellate Court of Connecticut.

Argued December 8, 2000.

Officially released March 6, 2001.

Foti, Landau and Pellegrino, Js. Michael T. Wade, special public defender, for the appellant (defendant).

Denise B. Smoker, assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Joan K. Alexander, former assistant state's attorney, for the appellee (state).

Opinion

LANDAU, J.

The defendant, Brent McCall, appeals from the judgment of conviction, following a jury trial, of criminal attempt to commit murder in violation of General Statutes §§ 53a-49 (a) (2) and 53a-54a, assault in the first degree in violation of General Statutes § 53a-59 (a) (1), assault of a peace officer in violation of General Statutes (Rev. to 1995) § 53a-167c (a) (1), and two counts each of attempt to commit assault of a peace officer in violation of General Statutes § 53a-49 (a) (2) and General Statutes (Rev. to 1995) § 53a-167c (a) (1), and attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (1). The defendant pleaded guilty to criminal possession of a firearm in violation of General Statutes § 53a-217 and carrying a pistol without a permit in violation of General Statutes § 29-35.¹ The court imposed an effective sentence of forty-five years imprisonment. On appeal, the defendant claims that the court improperly (1) permitted the state (a) to introduce evidence of the defendant's prior misconduct and (b) to cross-examine the defendant about other misconduct, and (2) denied his motion for a new trial in which he claimed that the jury improperly interpreted the evidence and the instructions given by the court. We disagree.

The jury reasonably could have found the following facts. At approximately 7:30 p.m. on May 18, 1996, John Reilly, a Bristol police officer, was sitting in his police vehicle on Addison Street in Bristol, conducting surveillance in an unrelated matter.² When he saw the defendant drive a white Oldsmobile into the driveway at 11 Addison Street, Reilly drove his vehicle into the driveway behind the defendant's vehicle.

The defendant remained in his vehicle for five to ten seconds, frequently looking into his rearview mirror. He then got out of the vehicle and walked through the yard, keeping his back to Reilly. The defendant walked quickly and with his hands exposed. Reilly thought that the defendant was trying to evade him but perceived no danger. Reilly lost sight of the defendant when he walked behind a garage on the premises. Reilly exited his vehicle and followed the defendant. As Reilly stepped around a corner of the garage, the defendant turned toward him with a gun in his hand and shot Reilly twice, once in the arm and once in the leg. Although he had fallen to the ground, Reilly drew his service weapon and shouted, "Police." The defendant ran but stopped in front of Reilly, aimed his gun and fired six more shots at the officer.³ Reilly shot the defendant twice in the left leg before the defendant fled the scene on foot. The defendant was identified as a suspect in the shooting. Kevin Mellon and Brian Suchinski, detectives with the Bristol police department, were assigned to observe 307-309 Main Street in Bristol, where the defendant's mother lived. At about 11:30 p.m., Mellon walked through the backyard of the premises to a vacant lot on Summer Street and saw the defendant across the street, walking toward him. Mellon alerted Suchinski and observed the defendant walk away from him. Both detectives shouted, "Stop, police!" At first, the defendant did not respond to the detectives but continued walking away. Suddenly, the defendant turned and fired two shots at the detectives. Mellon returned fire, striking the defendant several times. The defendant fell to the ground with his gun still in his hand.

The defendant was taken to Bristol Hospital, where he received emergency treatment. While he was being treated, the defendant told Barry McNeil, a physician, that he was in trouble for shooting at several police officers. As he was being transported to Hartford for surgery, the defendant answered, in response to a medically related question from Jamie Young, an emergency medical technician, "Because I shot at three police officers." At the Walker Reception Center, where he was incarcerated, the defendant told Brian Sherman, a paramedic, that he shot Reilly in the stomach and fired at Mellon and Suchinski. The defendant told Sherman that he shot Reilly because he, the defendant, was afraid of being arrested and because Reilly worked for the judicial system that had failed the defendant. The defendant also told Sherman that he wished that he had killed Reilly before the officer shot at him, and that he shot at Mellon and Suchinski to "take them out" before they "took me out." At trial, the defendant admitted that he shot Reilly, but claimed that he did so because he was under the influence of hallucinogenic mushrooms. He denied shooting at Mellon and Suchinski.

The state introduced evidence from the Oldsmobile and the Addison Street shooting that confirmed that the defendant fired at Reilly. The defendant's fingerprints were found in the Oldsmobile and on the shell casings found at the scene of the shooting. The police, however, found no shell casings from the defendant's gun at the Summer Street shooting scene.

The jury returned a verdict of guilty on all counts. The court gave the defendant one week to file posttrial motions. The defendant filed a motion for a new trial, claiming that the jury improperly interpreted the facts in light of the court's jury instructions. The court denied the motion. Following sentencing, the defendant appealed.

I

The defendant claims that the court abused its discretion by permitting the state to present evidence of the defendant's prior misconduct. Specifically, the defendant claims that the court improperly permitted the state (1) to introduce evidence of the defendant's prior misconduct during its case-in-chief and (2) to cross-examine the defendant about his prior misconduct. We disagree.

The following facts are relevant to this claim. Prior to trial, the defendant informed the state that he intended to rely on the special defense of impaired mental capacity because, at the time of the incidents, he claims to have been under the influence of hallucinogenic mushrooms and therefore was incapable of forming the intent to cause serious bodily injury. To prove the element of intent to cause serious bodily injury during its case-in-chief, the state proffered the testimony of Kevin Hayes, Amy Dandelski and Thomas Veiva to prove that the defendant had a motive to injure the police officers and to avoid arrest. The defendant objected to the testimony as being irrelevant and extremely prejudicial to his case. Outside the presence of the jury, the state made offers of proof with respect to each witness.⁴ The court ruled that the proffered testimony concerning the outstanding warrants and a particular bank robbery was relevant to the defendant's intent but that the details with respect to the warrants were more prejudicial than probative. The court therefore limited the testimony that the state could elicit from Hayes and Dandelski.⁵ The state abided by the court's ruling. At the conclusion of Hayes' testimony, the court instructed the jury that his testimony was "not offered as evidence of any other crime or occurrence reflecting on the defendant's character," and could be used "only to show a reason for concern on the defendant's part with respect to the presence of a police officer at 11 Addison Street."

"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 166A prejudice or injustice.... In reviewing claims that the trial court abused its discretion, great weight is given to the trial court's decision and every reasonable presumption is given in favor of its correctness.... We will reverse the trial court's ruling only if it could not reasonably conclude as it did." (Internal quotation marks omitted.) State v. McClendon, 45 Conn. App. 658, 671, 697 A.2d 1143 (1997), aff'd, 248 Conn. 572, 730 A.2d 1107 (1999).

A

The defendant's first evidentiary claim is that the court abused its discretion by permitting the state to introduce evidence during its case-in-chief concerning the defendant's prior misconduct. We disagree.

"Although evidence of other misconduct is not ordinarily admissible to prove the bad character or criminal tendencies of the accused, it may be allowed for numerous other purposes.... Proof of motive is a widely recognized exception to the prohibition against the admissions of such evidence.... Before evidence can be admitted under the motive exception, it must satisfy a two-pronged test: (1) it must be relevant and material, and (2) its probative value must outweigh its prejudicial effect." (Citations omitted.) State v. Jenkins, 24 Conn. App. 330, 335, 588 A.2d 648, cert. denied, 219 Conn. 903, 593 A.2d 132 (1991).

Here, the court listened to the state's offer of proof and heard the arguments of both parties. It then weighed the relevance of the proffered evidence against the prejudice to the defendant. The defendant put his ability to formulate the intent to cause serious physical injury at issue by asserting an impaired mental capacity defense. The testimony from the three witnesses about the warrants outstanding against the defendant and his involvement in a bank robbery was therefore relevant to explain his wanting to avoid the police. The court 166B minimized the prejudicial effect of the proffered evidence by limiting the scope of the testimony and by giving the jury a limiting instruction immediately after...