State v. McIntyre, (SC 15712)

• Decision Date: 31 August 1999
• Docket Number: (SC 15712)
• Citation: 737 A.2d 392,250 Conn. 526
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT v. CRAIG MCINTYRE

250 Conn. 526

737 A.2d 392

STATE OF CONNECTICUT v. CRAIG MCINTYRE

(SC 15712)

Supreme Court of Connecticut.

Argued June 1, 1999.

Officially released August 31, 1999.

Borden, Berdon, Norcott, Palmer and Peters, JS. Glenn W. Falk, special public defender, for the appellant (defendant).

Robert J. Scheinblum, assistant state's attorney, with whom were Warren Murray, senior assistant state's attorney, and, on the brief, Eugene J. Callahan, state's attorney, for the appellee (state).

Opinion

PALMER, J.

A jury found the defendant, Craig McIntyre, guilty of felony murder in violation of General Statutes § 53a-54c,¹ and attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (2)² and 53a-49.³ On appeal,⁴ the defendant's sole contention is that the trial court improperly denied his motion for a new trial in which he had claimed that the stricken testimony of a state's witness was so prejudicial that it deprived him of a fair trial. We reject the defendant's claim and, consequently, affirm his conviction.

The jury reasonably could have found the following facts. On the evening of March 3, 1989, the defendant, who was then sixteen years old and resided in Brooklyn, New York, went with Andre Murray, Fred Kitt and Darnell Burgess to the apartment of Brent Green in the Meadow Gardens apartment complex in Norwalk. They remained there until around midnight, when they decided to go to an after hours club in Norwalk known as "Bootsy's."

The five young men took a taxicab to Bootsy's and stayed there for approximately two hours. Eventually, Burgess and Kitt attempted to call a taxi to return them to Green's apartment. Green, however, informed them that a cab already was waiting outside. The defendant and Murray followed Burgess, Kitt and Green out of Bootsy's. As the defendant and Murray proceeded through the club's front hallway toward the door, the defendant, during the course of a robbery attempt, shot Ronald Wooten (victim), Green's cousin, once in the head at close range. A patron of Bootsy's called an ambulance, which transported the victim to the hospital. The victim died from injuries sustained as a result of the gunshot wound.

Upon hearing the gunshot, the driver of the cab that Burgess already had entered started to drive away. The defendant, Murray, Green and Kitt fled from Bootsy's and managed to flag down the cab in which Burgess was riding. While the five men were riding in the cab, Green asked the defendant if he had shot the victim. The defendant put his hand to his mouth, indicating to Green that he should be quiet. Once the group arrived at Green's apartment, Green again questioned the defendant about whether he had shot the victim. The defendant acknowledged that he had done so, but stated that "it was by mistake."

Kitt thereafter left Green's apartment and returned to his house. Upon his return home, Kitt's mother gave him a ride to the police station, and Kitt gave the police a statement regarding the shooting. The defendant and Murray remained in Green's apartment for approximately one hour, then went to the South Norwalk train station to return to Brooklyn. Both the defendant and Murray were arrested at the train station early in the morning on March 4, 1989. Later that day, the defendant gave a statement to the police in which he admitted shooting the victim, claiming, however, that the shooting was accidental.

The jury found the defendant guilty of felony murder and attempt to commit robbery in the first degree. Prior to sentencing, the defendant moved for a new trial.⁵ In support of his motion, the defendant claimed, inter alia, that certain testimony adduced by the state, although ultimately stricken by the trial court, was so prejudicial as to require a new trial.⁶ The court denied the defendant's motion and, thereafter, rendered judgment sentencing the defendant to a term of imprisonment of twenty-five years.⁷

The defendant's sole claim on appeal is that the stricken testimony of Green, the state's witness, so prejudiced the jury that, contrary to the conclusion of the trial court, the defendant is entitled to a new trial. The state claims that, in light of the nature of Green's testimony and the trial court's curative instructions, there is no reasonable possibility that the defendant was prejudiced by the stricken testimony. We agree with the state.

The following additional facts are necessary to our resolution of the defendant's claim. At trial, the state called Kitt and Green to testify as eyewitnesses to the shooting. Kitt testified that, earlier in the evening on which the shooting had occurred, he heard the defendant say that the defendant "wanted to get somebody" before the night was over. Kitt explained that he had thought the defendant meant that he wanted to beat someone up. Kitt testified that he had not seen any member of the group with a weapon prior to the shooting.⁸ Kitt further testified that he had left Bootsy's before the defendant, and was about to get into the cab when he turned to look back toward the club. At that moment, Kitt saw the defendant fire the gun. Kitt testified: "It happened so fast. When it went off, it looked like he had just shot up the gun in the air and [the victim] was ducking. And, so the cab pulled off. And I chased [the cab] around the corner and I got in it." Kitt recalled that the defendant was about three feet away from the victim when the defendant fired the fatal shot.

Green, who was fifteen years old at the time of the shooting, testified that he had not heard the defendant make any comment regarding his desire to "get" anyone that evening. Green also indicated that, while the men were in Bootsy's, he observed that the defendant had a gun in his pocket.⁹ Green testified that, when the shooting occurred, the defendant and the victim were approximately one to two feet apart. Green further stated that the defendant's arm had been "extended out" and that he had seen the defendant's "arm go up and ... heard a gun go off." Green also indicated, however, that he had not been paying close attention to the defendant at the time of the shooting.

Before the state had completed its direct examination of Green, an issue arose regarding the prosecution of Green as a juvenile in connection with the shooting and attempted robbery of the victim. Specifically, the state asked Green whether he ever had indicated to anyone that he was involved in a robbery. Green replied no. At the defendant's request, the jury was excused. The defendant then informed the court that Green might have made such an admission in connection with his prosecution in juvenile court stemming from the same incident. The trial court, citing the confidentiality of the juvenile proceedings, determined that "a serious cross-examination and confrontation issue" existed, and ordered the state to obtain Green's permission for the release of the relevant juvenile court records before proceeding with its examination of Green. After the jury returned to the courtroom, the court instructed the jury to disregard the last question and answer regarding any admission by Green about his involvement in a robbery.

Two days later, Green's counsel informed the court that Green had refused to waive his right to confidentiality with respect to the juvenile proceedings.¹⁰ The court concluded that the unavailability of those records deprived the defendant of a meaningful opportunity to cross-examine Green and, consequently, ordered Green's entire testimony stricken.

The trial court then instructed the jury as follows: "[T]he testimony of Brent Green, [whom] you heard two days ago, is being stricken in its entirety. It never happened. You never heard it. It plays no role in this case. It exists no longer and, therefore, is not part of this trial, and is not to be considered by you in deliberation in any way, shape or form, either by itself for substantive purposes or to contradict what another witness [had] said. The simplest, shortest way [to] say it is it never happened." The defendant did not then seek a mistrial on the basis of Green's testimony, nor did he express any disagreement with the court's curative instructions.

Thereafter, in its final instructions to the jury, the trial court charged the jury as follows: "If some evidence was presented and stricken from the record ... you must not consider it. You must dismiss it from your minds and draw no inference from any [question] whose answer was stricken or from any testimony which was ultimately stricken. These matters are to be treated as though you had never known of them." Again, the defendant raised no objection to these instructions.

The principles governing our review of a trial court's ruling on a motion for a new trial are well established. "Appellate review of a trial court's decision granting or denying a motion for a new trial must take into account the trial judge's superior opportunity to assess the proceedings over which he or she has personally presided." State v. Hammond, 221 Conn. 264, 269, 604 A. 2d 793 (1992). Thus, "[a] motion for a new trial is addressed to the sound discretion of the trial court and is not to be granted except on substantial grounds.... In our review of the denial of a motion for mistrial, we have recognized the broad discretion that is vested in the trial court to decide whether an occurrence at trial has so prejudiced a party that he or she can no longer receive a fair trial. The decision of the trial court is therefore reversible on appeal only if there has been an abuse of discretion." (Citation omitted; internal quotation marks omitted.) State v. Newsome, 238 Conn. 588, 628-29, 682 A.2d 972 (1996).

"It is to be presumed that the jury followed the court's [curative] instructions unless the contrary appears." (Internal quotation marks omitted.) State v. Correa, 241 Conn. 322, 353, 696 A.2d 944 (1997); accord State v. Chance, 236 Conn. 31, 51, 671 A.2d 323 (19...