State v. Mitchell

• Decision Date: 16 September 2008
• Docket Number: No. 28998.,28998.
• Citation: 955 A.2d 84,110 Conn.App. 305
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. James MITCHELL.

955 A.2d 84

110 Conn.App. 305

STATE of Connecticut v. James MITCHELL.

No. 28998.

Appellate Court of Connecticut.

Argued April 28, 2008.

Decided September 16, 2008.

Pamela S. Nagy, special public defender, for the appellant (defendant).

Harry Weller, senior assistant state's attorney, with whom were Gail P. Hardy, state's attorney, and Sandra L. Tullius, senior assistant state's attorney, for the appellee (state).

FLYNN, C.J., and HARPER and BEACH, Js.

FLYNN, C.J.

The defendant, James Mitchell, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit murder in violation of General Statutes §§ 53a-49(a), 53a-8 and 53a-54a, conspiracy to commit murder in violation of General Statutes §§ 53a-48(a) and 53a-54a, kidnapping in the first degree in violation of General Statutes §§ 53a-8 and 53a-92(a)(2)(A), conspiracy to commit kidnapping in the first degree in violation of General Statutes §§ 53a-48 and 53a-92(a)(2)(A), sexual assault in the first degree in violation of General Statutes §§ 53a-8 and 53a-70(a)(1), conspiracy to commit sexual assault in the first degree in violation of General Statutes §§ 53a-48 and 53a-70(a)(1), assault in the first degree in violation of General Statutes §§ 53a-8 and 53a-59(a)(5), conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48(a) and 53a-59(a)(5), and criminal possession of a firearm in violation of General Statutes § 53a-217(a)(1). On appeal, the defendant claims that (1) the trial court, sua sponte, should have declared a mistrial after witnesses for the state testified about the defendant's criminal history and prior arrests, (2) the prosecutor engaged in impropriety, (3) the court improperly admitted into evidence a letter written by the defendant discussing escape plans and (4) the court improperly instructed the jury as to accessory liability. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 23, 2003, following an evening at a nightclub, the victim¹ was dropped off at a friend's house in East Hartford. Wanting to return home, and with her residence too distant to walk, the victim called the defendant for a ride. The victim chose to call the defendant because she knew that Denasha Sanders, the mother of one of the defendant's children, had lived in the same building as the victim and that the defendant was frequently in the vicinity. The defendant and the victim's brother had had a prior confrontation concerning the fact that the victim's brother had dated Sanders. Shortly before August 23, the victim's brother and Sanders had moved to North Carolina with the child of Sanders and the defendant.

The defendant arrived driving a gold Nissan Altima accompanied by another man, unknown to the victim at the time, but later identified as Travis Hampton. The victim agreed to go with the defendant and Hampton to downtown Hartford to get something to eat. Upon leaving a restaurant, the defendant became violent with the victim, striking her with his cell phone and demanding to know the location of the victim's brother. Out of fear that the defendant would harm her, the victim lied to the defendant and told him that her brother was at her grandfather's house. The victim attempted to leave the car, but the defendant pulled her by the hair and locked the doors. During this time, Hampton remained in the backseat of the vehicle.

The defendant subsequently determined that the victim's brother was not at her grandfather's house. He drove the victim and Hampton to his mother's house in Hartford and ordered the victim out of the car. The victim briefly complied and then returned to the vehicle while the defendant and Hampton entered the house. When the defendant and Hampton returned, the three proceeded to leave the area by car. The defendant apologized to the victim for hitting her and offered her marijuana, which she accepted. Instead of driving the victim home, however, the defendant drove to Market Street in Hartford and parked his vehicle. The defendant told the victim he wanted to have sex with her and proposed that they go to a hotel or to Sanders' house.

The victim refused and got out of the car, intending to walk home. The defendant produced a shotgun which he gave to Hampton, who pointed the weapon at the victim's face. The defendant and Hampton told the victim to remove her pants. The victim testified that the defendant raped her vaginally from behind. When the defendant was finished, he forced the victim to perform fellatio on Hampton. The victim complied briefly, and Hampton proceeded to rape her vaginally, while the defendant regained and held the shotgun. The victim grabbed her pants and yelled at the defendant to let her leave. The defendant told the victim she could get into a nearby dumpster or run. As the victim attempted to run, the defendant shot her in the side of the stomach. The victim continued her attempt to run away, followed by Hampton, who now had the shotgun. The defendant pursued the victim in the car and blocked her path. Hampton shot the victim again. He and the defendant then left the scene. Shortly thereafter, the defendant and Hampton returned briefly and then left the area again. The victim dragged herself to the street, where she was found by a passing driver. The police and paramedics were summoned and the victim was taken to Hartford Hospital for treatment.

The defendant thereafter was arrested and, by amended information, charged with attempt to commit murder, conspiracy to commit murder, kidnapping in the first degree, conspiracy to commit kidnapping in the first degree, sexual assault in the first degree, conspiracy to commit sexual assault in the first degree, assault in the first degree, conspiracy to commit assault in the first degree and criminal possession of a firearm. The jury found the defendant guilty on all counts. The court imposed a total effective sentence of fifty-seven years imprisonment. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court, sua sponte, should have declared a mistrial following certain testimony as to his prior bad acts. The defendant argues that this testimony unduly prejudiced him, thereby interfering with his right to a fair trial. We disagree.

The following additional facts are relevant to our resolution of the defendant's claim. During cross-examination of the victim, defense counsel inquired as to why the victim had called the defendant in the early morning hours of August 23, 2003. The victim responded: "For a ride, because I know he was—he used to sell crack in front of my mother's building. And he would be out there at that time of night." The defendant objected, requesting the court to strike the victim's response. The court struck the testimony and instructed the jury to disregard it.

The state called William Rivera, a detective with the Hartford police department. In August, 2003, Rivera had been a patrol officer serving in the department's community response division. In response to the prosecutor's question as to how he knew the defendant, Rivera stated: "He primarily frequented the area that I worked in. There were times when we stop and have conversations. I've also arrested him in a narcotics related arrest." The defendant did not object. On cross-examination, defense counsel inquired further into Rivera's relationship to the defendant. When defense counsel asked when Rivera first met the defendant, Rivera answered: "Within that past year [prior to August 2003]. There were different—different interactions with him. I made a narcotics arrest on him." Defense counsel did not object but continued with his line of questioning, asking Rivera how the defendant had acquired Rivera's cell phone number. Rivera responded: "Well, during the narcotics arrest I made on him, he wanted to help himself in the case. So, usually when police officers have informants that want to help themselves out, they'll give the phone number just to get in contact with him." Defense counsel immediately asked Rivera: "So, because he had a pending case, he was cooperating with you in the role of an informant?" Rivera answered affirmatively.

Following the conclusion of the state's redirect examination of Rivera, and outside the presence of the jury, the court noted Rivera's testimony as to the defendant's prior arrest and asked the defendant whether he wanted a curative instruction. Counsel for the defendant declined the offer, indicating a desire not to emphasize Rivera's testimony.

The state also called as a witness Alfred Henderson, a detective with the major crimes division of the Hartford police department and the lead detective in the case. Henderson testified as to the following facts pertaining to how the police gathered the information that led ultimately to their identification of the defendant as a suspect. The victim provided police detectives with the defendant's first name and indicated that the defendant had had a "prior incident" in East Hartford with Sanders. The detectives searched the East Hartford police computers, gaining information concerning a domestic dispute between the defendant and Sanders. The detectives proceeded to the Hartford police department, where they obtained a photograph of the defendant. The photograph was arranged in an eight person photographic array, from which the victim identified the defendant. Defense counsel raised no objection during this portion of Henderson's testimony.

The prosecutor asked Henderson how, subsequent to the victim's identification, the police attempted to locate the defendant. Henderson responded: "Well, we punched up his past criminal history in our computers and we get several...." The court interrupted Henderson at this point, and the prosecutor asked the court to strike the testimony. The court struck Henderson's remark and instructed the jury to...