State v. McCarthy

• Decision Date: 05 February 2008
• Docket Number: No. 28452.,28452.
• Citation: 105 Conn.App. 596,939 A.2d 1195
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Troy McCARTHY.

939 A.2d 1195

105 Conn.App. 596

STATE of Connecticut v. Troy McCARTHY.

No. 28452.

Appellate Court of Connecticut.

Argued October 24, 2007.

Decided February 5, 2008.

George G. Kouros, special public defender, with whom, on the brief, were Richard A. Reeve, Michael O. Sheehan and Cyd O. Oppenheimer, special public defenders, for the appellant (defendant).

John A. East III, senior assistant state's attorney, with whom, on the brief, were James E. Thomas, former state's attorney, and David L. Zagaja, senior assistant state's attorney, for the appellee (state).

FLYNN, C.J., and LAVINE and WEST, Js.

FLYNN, C.J.

The defendant, Troy McCarthy, appeals from the judgment of conviction, following a jury trial, of one count of murder in violation of General Statutes § 53a-54a. On appeal, the defendant claims that (1) the court improperly denied his motion for a new trial, (2) the court improperly admitted certain impeachment evidence for substantive purposes, (3) the court improperly instructed the jury and (4) he was deprived of a fair trial due to prosecutorial impropriety. We affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, are relevant to our resolution of the defendant's claims on appeal. On September 25, 2003, the defendant and the victim, Raymond Moore, were standing near the corner of Westland Street and Garden Street in Hartford, in front of the former Nelson & Son's Market, when they engaged in a physical altercation. After the victim slammed the defendant's body onto the sidewalk, several people intervened and stopped the fight. The defendant, humiliated, left the scene but stated that he would be back. Later, the defendant returned with a gun, but the victim was not there. A friend of the victim, Robert Ware, and others told the defendant that "it wasn't worth it." The defendant, however, responded that the victim was going to respect him.

Two days later, on September 27, 2003, the victim returned to the area and was standing in front of Nelson & Son's Market speaking with Ware. Ware then went across Westland Street and entered Melissa's Market to buy cigarettes. A homeless woman from the area, Mary Cauley, who was on her way to the C-Town Market on Barbour Street, approached the victim and told him that he should go home to his family. She then continued on her way to the C-Town Market, walking north on Garden Street, where she saw the defendant standing on his front porch. Cauley said hello to the defendant, who instructed her to get out of the way. When she got to the C-Town Market, Cauley heard gunshots.

Upon hearing a gunshot, Ware immediately ran out of Melissa's. Market as a second gunshot was fired. Looking up Garden Street, Ware saw the victim falling to the ground and saw the defendant running in the opposite direction carrying a gun. At that same time, Maurice Henry, Chauncey Odum and Tylon Barlow were in a vehicle in the parking lot behind Nelson & Son's Market smoking "blunts."¹ Henry was in the driver's seat. As he began to drive out of the parking lot onto Garden Street, Henry saw the victim walking north. He then saw the defendant emerge from the rear yard of a Garden Street building, carrying a gun. Henry saw the defendant shoot the victim twice.

The defendant was charged with one count of murder, tried by the jury and convicted. He received a total effective sentence of fifty years imprisonment. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court abused its discretion in denying his motion for a new trial on the grounds that the state's case was so weak that the jury's verdict could not be relied on and that the "state's witnesses were so lacking in credibility that the conviction constituted a miscarriage of justice." We note that the defendant does not contend that the state's evidence was insufficient, as a matter of law, to establish guilt beyond a reasonable doubt, which, if true, would entitle him to a judgment of acquittal. Rather, the defendant asserts that the state's case was so weak and incredible that it raises a substantial question regarding the reliability of the verdict. Thus, the defendant claims that he should be granted a new trial because of the serious danger that he was wrongly convicted. See State v. Griffin, 253 Conn. 195, 200, 749 A.2d 1192 (2000).

The defendant's argument is threefold: (1) the testimony of Ware was grossly discrepant from the physical evidence and was not credible; (2) the testimony of Henry was replete with lies, recantations and inconsistencies, such that it completely was unreliable; and (3) the state's only purpose in calling Cauley, Odum and Raymond Rodriguez to testify was to get the jury to make improper negative inferences on the basis of its disbelief of the witnesses' testimony that they did not see the defendant shoot the victim. After setting forth our appropriate standard of review, we will consider the arguments related to the testimony of Ware and Henry before considering the argument related to the testimony of Cauley, Odum and Rodriguez.

"The trial court should not set [aside] a verdict ... where there [is] some evidence upon which the jury [reasonably could have] based its verdict, but [the court should set aside the verdict] where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles, or as to justify the suspicion that [the jurors] or some of them were influenced by prejudice, corruption or partiality.... Within these parameters, furthermore, the trial court may set [aside] a verdict even if the evidence was conflicting and there was direct evidence in favor of the party who prevailed with the jury.... The authority of the trial court to set aside a verdict that is against the weight of the evidence is grounded in the fact that the action of a jury may be as unreasonable, and as suggestive of being produced by improper influences, in passing upon the credibility of witnesses and in the weighing of conflicting testimony, as in any other respect. It is one of the duties of a judge, in the due performance of his [or her] part in jury trials, to see to it that such influences, apparently operating upon the jury, do not prevail, and manifest injustice thereby be done

"As [our Supreme Court] repeatedly [has] emphasized, the trial court is uniquely situated to entertain `a motion to set aside a verdict as against the weight of the evidence because, unlike an appellate court, the trial [court] has had the same opportunity as the jury to view the witnesses, to assess their credibility and to determine the weight that should be given to their evidence.... Indeed, [our Supreme Court has] observed that, [i]n passing upon a motion to set aside a verdict, the trial judge must do just what every juror ought to do in arriving at a verdict.... [T]he trial judge can gauge the tenor of the trial, as [an appellate court], on the written record, cannot, and can detect those factors, if any, that could ... have influenced the jury [improperly].... Of necessity, therefore, an appellate court's inquiry must focus on whether the trial court abused its broad discretion in acting on a motion to set aside a verdict that allegedly is contrary to the weight of the evidence." (Citations omitted; internal quotation marks omitted.) Id., at 200-202, 749 A.2d 1192

A Ware's Testimony

The defendant argues in his brief that "the inconsistencies between Ware's testimony and the physical evidence [were] too great to place any weight on Ware's claimed observations.... Given the gross discrepancies between Ware's testimony and the physical evidence, it is doubtful that Ware was even at the scene of the shooting." (Citations omitted.) The state does not dispute that Ware provided discrepant testimony. Rather, it acknowledges that Ware testified that the distance between him and the victim was the same as the distance between the witness stand and the rear door of the courtroom, which measured approximately forty-two feet. This testimony did not coincide with the testimony of three private investigators, who had measured the distance between the corner, in front of Melissa's Market, where Ware alleges he was standing immediately after hearing gunshots, and the place where the victim was shot, which measured more than 300 feet. Although it acknowledges this discrepancy, the state argues that "[t]he private investigators also took photographs of the scene with a thirty-five millimeter camera equipped with a fifty millimeter lens, which the private investigators alleged would represent what a person with 20/20 vision would [have seen].... The jury had unfettered access to the photographs, in which the defendant claims it is `impossible' to see the person standing where the victim fell from the front of Melissa's store." (Citations omitted.) Thus, the state maintains that the jury reasonably could have inferred that Ware could have seen the incident even if it had occurred from a distance that was farther away than Ware had estimated.

The defendant further challenges Ware's testimony because it took Ware two years to come forward as a witness, despite his close friendship with the victim. The defendant also points out that Ware claimed to have gotten into his vehicle almost immediately after the shooting and to have driven west on Westland Street. Yet, Officer Peter Cricco of the Hartford police department, who immediately responded to the gunshots, testified that he drove east on Westland Street immediately after the shooting and that he did not see any vehicle leave the intersection and travel west down Westland Street. The defendant argues that not only was Ware's testimony not credible, it was not physically possible for him to have seen much of what he said he witnessed.

We are mindful that a verdict based on physical...