State v. McCoy

• Decision Date: 07 May 2019
• Docket Number: SC 19905
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Kenneth Lee MCCOY

331 Conn. 561

206 A.3d 725

STATE of Connecticut

v.Kenneth Lee MCCOY

SC 19905

Supreme Court of Connecticut.

Argued March 28, 2018

Officially released May 7, 2019

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 Wilensky, senior assistant state's attorney, and Mary Elizabeth Baran, former senior assistant state's attorney, for the appellee (state).

Palmer, McDonald, Robinson, D'Auria, Mullins, Kahn and Vertefeuille, Js.^*

MULLINS, J.

In this appeal, the defendant, Kenneth Lee McCoy, challenges the judgment of the Appellate Court affirming the judgment of conviction rendered after a jury trial of one count of murder in violation of General Statutes § 53a-54a (a). On appeal, the defendant contends that the Appellate Court improperly concluded that (1) he was not deprived of a fair trial due to prosecutorial improprieties, and (2) the trial court properly denied his motion for a new trial for lack of jurisdiction. We disagree but conclude that the form of the trial court's judgment is improper in that the trial court should have dismissed rather than denied the motion for a new trial. Accordingly, we reverse in part the judgment of the Appellate Court and remand the case to that court with direction to render judgment consistent with this opinion.

The following underlying relevant facts and procedural history are set forth in the Appellate Court's decision. "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 .... During November, 2011, the defendant became estranged from both the victim and Murray ....

"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 .... 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." State v. McCoy , 171 Conn. App. 311, 312–13, 157 A.3d 97 (2017).

After the jury returned its verdict, but prior to the sentencing date, the defendant filed a motion for a new trial. Id., at 323, 157 A.3d 97. At the sentencing hearing, the defendant sought to have the motion heard by the trial court; however, the parties and the trial court subsequently agreed to go forward with the sentencing and to hear the motion at a later date. Id., at 323–24, 157 A.3d 97. As a result, the sentencing hearing went forward, and the court sentenced the defendant to sixty years incarceration. Id., at 324, 157 A.3d 97.

Months after the sentencing, the defendant attempted to have his motion for a new trial heard. Because the defendant's sentence already had been executed, however, the court denied the motion without a hearing on the ground that it had lost jurisdiction. Id. The defendant then appealed from the judgment of conviction,¹ asserting that the prosecutor had engaged in a series of improprieties that deprived him of his constitutional right to a fair trial and that the trial court improperly denied his motion for a new trial for lack of jurisdiction. Id., at 312, 157 A.3d 97.

The Appellate Court concluded that, regardless of any improprieties that may have been committed by the state during the trial, the defendant was not deprived of his due process right to a fair trial. Id., at 314–23, 157 A.3d 97. The Appellate Court also concluded that the trial court lost jurisdiction once the defendant's sentence was executed and, therefore, that the trial court did not improperly deny the defendant's motion for a new trial. Id., at 323–27, 157 A.3d 97. This certified appeal followed.² Additional facts will be set forth as necessary.

I

The defendant first claims that the Appellate Court improperly determined that he was not deprived of a fair trial by prosecutorial improprieties committed during his trial. Specifically, the defendant claims that the Appellate Court improperly concluded that the prosecutor did not deprive him of a fair trial when she (1) violated a court order by attempting on three occasions to elicit inadmissible prior consistent statements made by Murray, and (2) asked the jury during closing argument to speculate about the contents of a conversation between Murray and his mother that was not in evidence. In response, the state asserts that the Appellate Court properly concluded that these claimed improprieties did not deprive the defendant of his right to a fair trial.³ We agree with the state.

With respect to the defendant's claim that the prosecutor thrice violated the trial court's order related to the inadmissibility of Murray's prior consistent statements, the Appellate Court's decision sets forth the following relevant facts. "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 pre-cedes the prior inconsistent statement .... [W]e may 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 rulings 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.’ " (Emphasis omitted.) Id., at 315–16, 157 A.3d 97.

During the state's direct examination of Murray, after establishing that Murray had failed to identify the defendant as the shooter in his initial encounter with the police, the prosecutor engaged in the following colloquy with Murray:

" ‘[The Prosecutor]: Did there come a time about three weeks later when you went back into the police department and gave another statement?

" ‘[Murray]: Yes.

" ‘[The Prosecutor]: And in that statement, did you essentially tell the police what you have testified to today in court?

" ‘[Murray]: Yes.’ " Id., at 322 n.4, 157 A.3d 97

Defense counsel did not object to this testimony.

After this testimony, the prosecutor committed the first of the alleged improprieties when she asked: " ‘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 [express] permission of the court. As you know, there are evidentiary rules pertaining thereto.’ " Id., at 316, 157 A.3d 97.

Later, during that same direct examination, the second alleged impropriety occurred when "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 ... 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 ... 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 ... 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.’ " Id., at 316–17, 157 A.3d 97.

Finally, the prosecutor engaged in the third alleged impropriety related to prior consistent statements. This impropriety occurred when, "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...