State v. McCoy

• Decision Date: 07 March 2017
• Docket Number: AC 38789
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Kenneth Lee MCCOY

171 Conn.App. 311

157 A.3d 97

STATE of Connecticut

v.Kenneth Lee MCCOY

AC 38789

Appellate Court of Connecticut.

Argued October 20, 2016

Officially released March 7, 2017

Daniel J. Foster, assigned counsel, for the appellant (defendant).

Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, Maxine V. Wilensky, senior assistant state's attorney, and Mary Elizabeth Baran, former senior assistant state's attorney, for the appellee (state).

Beach, Sheldon and Flynn, Js.^*

BEACH, J.

The defendant, Kenneth Lee McCoy, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a–54a (a). The defendant claims that (1) the state engaged in prosecutorial misconduct, thereby depriving him of his due process right to a fair trial, and (2) the court erred in dismissing his motion for a new trial for lack of jurisdiction. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. During the fall of 2011, the victim, Dallas Boomer, saw both the defendant and Tramont Murray, his close friends, on a daily basis. The three men often conducted drug deals together out of rental cars with out of state license plates. During November, 2011, the defendant became estranged from both the victim and Murray. According to Murray, the defendant and the victim were involved in a financial dispute after the victim crashed a car belonging to the defendant's girlfriend. In addition, both the victim and Murray wanted to distance themselves from the defendant because of the defendant's alleged alcoholism and increasingly erratic behavior.

On December 6, 2011, at approximately 1 o'clock in the morning, the victim was sitting in the driver's seat of a parked rental car on a residential street in New Haven. Murray was sleeping in the reclined passenger seat. The victim saw the defendant's car pull over to the side of the road and idle nearby, so he shook Murray awake. Murray instructed the victim to drive away. The defendant then approached the victim's parked vehicle with his hand in his sleeve and began shooting at the windshield. The victim attempted to drive away, but could not. Six bullets struck the rental car, and the victim suffered fatal injuries as a result.

Immediately after the shooting, Murray, the sole witness, was questioned by the police. When the police asked Murray to identify the shooter, he stated that he had not seen the shooter, that he could not tell whether the shooter was white or black, and that he did not know whether there was one shooter or multiple shooters. Three weeks later, on December 27, Murray made a second statement to the police in which he identified the defendant as the shooter. Murray testified consistently with this statement at the defendant's trial. Murray, who then had three criminal cases pending against him, was questioned extensively as to whether he had received a plea deal in exchange for his testimony. He denied having received a plea deal, but admitted that he had received immunity for his testimony and $1100 in cash for relocation as part of a witness protection program.

Three months after the jury found the defendant guilty, the court, Blue, J. , sentenced him to sixty years incarceration. This appeal followed. Additional relevant facts will be set forth as necessary.

I

The defendant first claims that prosecutorial impropriety deprived him of his constitutional right to a fair trial. Specifically, the defendant claims that the prosecutor acted improperly when she (1) attempted to elicit inadmissible prior consistent statements made by Murray, (2) asked the jury during closing argument to speculate as to a conversation that was not in evidence, and (3) argued during closing argument that, in order for the jurors to determine that Murray had received a special plea agreement in exchange for his testimony, they must believe defense counsel's argument that the state's witnesses were lying. Although we conclude that some of the prosecutor's actions were improper, we disagree with the defendant's claim that any impropriety deprived him of a fair trial.

Our standard of review on a claim of prosecutorial impropriety is well established. "[I]n analyzing claims of prosecutorial [impropriety], we engage in a two step analytical process. The two steps are separate and distinct: (1) whether [impropriety] occurred in the first instance; and (2) whether that [impropriety] deprived a defendant of his due process right to a fair trial. Put differently, [impropriety] is [impropriety], regardless of its ultimate effect on the fairness of the trial; whether that [impropriety] caused or contributed to a due process violation is a separate and distinct question that may only be resolved in the context of the entire trial ...." (Internal quotation marks omitted.) State v. Luster , 279 Conn. 414, 428, 902 A.2d 636 (2006). "In determining whether prosecutorial [impropriety] was so serious as to amount to a denial of due process, this court, in conformity with courts in other jurisdictions, has focused on several factors. Among them are the extent to which the [impropriety] was invited by defense conduct or argument ... the severity of the [impropriety] ... the frequency of the [impropriety] ... the centrality of the [impropriety] to the critical issues in the case ... the strength of the curative measures adopted ... and the strength of the state's case." (Citations omitted.)

State v. Williams , 204 Conn. 523, 540, 529 A.2d 653 (1987).

We will first determine whether the particular conduct was, in fact, improper. We will then consider whether the totality of the established improprieties deprived the defendant of a fair trial.

A

The defendant first claims that the prosecutor engaged in impropriety when, on three occasions, she attempted to elicit prior consistent statements in violation of a court order. The following additional facts are relevant to this claim.

On the first day of trial, outside the presence of the jury, the prosecutor asked the court whether Murray's second statement to the police, in which he identified the defendant as the shooter, would be admissible as a prior consistent statement. The court responded: "Well, again, without finally ruling on that, the answer is not necessarily because the rule generally is that when a witness is impeached for a prior inconsistent statement, prior consistent statements are not normally admissible. They can be admissible under the discretion of the court, particularly—and I emphasize particularly —where the prior consistent statement precedes the prior inconsistent statement. But, frankly, if following the prior consistent statement the witness has given a bunch of consistent statements, that ordinarily does not come in. You know, be aware of that. The case law is quite clear on that. ... I may have, you know, some ultimate discretion, we have to see what develops, but certainly the answer to what you just said is not necessarily." The court further stated: "I haven't given my final ruling on this because I have to see what the witness says on direct, obviously, but I think you must be aware of the general way that I look at this so that you are not surprised, and I think that I have said so."

Two days later, on direct examination, the prosecutor addressed Murray as follows: "Now, with regard to giving that statement [to the police] on December 27, which is essentially what you spoke about today ...." Defense counsel objected, and the court sustained the objection, noting that "[t]he contents of the second interview should not be divulged further than they already have been without expressed permission of the court. As you know, there are evidentiary rules pertaining thereto."

Later, the prosecutor asked Murray: "And let me just ask you this: when you spoke to the police again, what did you tell them with regard to who was the shooter?" The court sua sponte excused the jury and addressed the prosecutor, stating: "I don't know how many times I have told you on the record, and, I believe, explicitly, that consistent statements—prior consistent statements are not admissible into evidence unless they precede prior inconsistent statements. ... I have told you, with respect to the second interview, on multiple occasions, multiple occasions do not get into the contents."

After the prosecutor indicated that she did not think that the court had been explicit in ruling that Murray's prior consistent statements were inadmissible, the court stated that "[u]nder no circumstances without prior permission of the court must you—may you ask this witness about any prior consistent statement postdating the original inconsistent statement of December 6. You may not ask him about the substance of that without prior permission of the court, that includes, but is not limited to, his—the substance of his statement to the police on December 27. I had thought that I was explicit, but perhaps I was not, and if so, please forgive me." The court continued, stating: "I have told you repeatedly not to go there. If you go there again, without prior permission of the court, you are asking—you are basically going to require me to do things that, believe me, I do not want to do. So, don't go there."

Subsequently, after asking Murray whether he had visited the victim's family the day after the victim's murder, the prosecutor asked: "With regard to what had occurred with [the victim's] murder, did you tell them what happened?" Defense counsel objected, and the court sustained the objection, instructing the prosecutor to "[a]sk your next question, keeping in mind rulings that the court has already made."

The defendant argues that these comments and questions were improper because the prosecutor "repeatedly sought to introduce hearsay statements that the trial court had ruled inadmissible." The state responds that the prosecutor's questions were not...