State v. Moore

• Decision Date: 25 September 2001
• Docket Number: (AC 20037)
• Citation: 783 A.2d 1100,65 Conn. App. 717
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. GEORGE MOORE

65 Conn. App. 717

783 A.2d 1100

STATE OF CONNECTICUT v. GEORGE MOORE

(AC 20037)

Appellate Court of Connecticut.

Argued June 6, 2001.

Officially released September 25, 2001.

Lavery, C. J., and Mihalakos and O'Connell, Js.

Martin Zeldis, senior public defender, with whom were Andrea A. Dunn, certified legal intern, and, on the brief, Pamela S. Nagy, assistant public defender, and Rebecca A. Steeves, certified legal intern, for the appellant (defendant).

Ronald Weller, assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Vicki Melchiorre, senior assistant state's attorney, for the appellee (state).

Opinion

O'CONNELL, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and (3),¹ and assault in the third degree in violation of General Statutes § 53a-61 (a) (1).² The defendant claims that the judgment of conviction should be reversed and that he should be given a new trial because (1) the trial court improperly admitted evidence of his prior assault on the victim, (2) he was deprived of a fair trial by prosecutorial misconduct and (3) the trial court failed to maintain impartiality. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant and Willard Young, the victim of the first degree assault, both resided on the third floor of an apartment house on Mather Street in Hartford and had a history of disagreements culminating in violence. On May 6, 1998, the defendant and Young engaged in a fight in which the defendant, after knocking a butter knife out of Young's hand, was fearful that Young was returning to his room for another weapon. The defendant, who was wearing cowboy boots and who claimed to have martial arts training,³ kicked Young fifty-four times. After Young fell to the floor, the defendant satisfied himself that Young was unconscious by checking his pulse and then proceeded to stomp on his head three times. The defendant argues that his conduct was justified as self-defense.

Young was transported to Saint Francis Hospital and Medical Center where he was placed on a life support apparatus. He suffered serious injuries including brain trauma, subdural hematoma, scars over his eyes, speech problems and sleeplessness. He was a heavy drinker and, at the emergency room, had a 0.34 blood alcohol content.⁴

Willie Fair, the third degree assault victim, also resided in the same apartment building and was attracted to the scene by the noise. Thinking that Fair was going to intervene, the defendant kicked him in the groin, causing him pain.⁵

I

The defendant first claims that the court abused its discretion by permitting the state to introduce evidence that the defendant had assaulted Young approximately six months prior to the present assault. The record shows that the court granted the defendant's motion in limine to preclude the state from referring to his prior criminal record. The defendant also obtained an order requiring the state to give him notice of all prior acts of misconduct that the state intended to use against him. The general rule is that evidence of prior acts of misconduct or involvement in prior crimes is not admissible to show a defendant's bad character or tendency to commit criminal acts. State v. Pollitt, 205 Conn. 61, 69, 530 A.2d 155 (1987).

The defendant challenges (1) the admissibility of evidence of his prior assault on Young and (2) the admissibility, both in the state's case-in-chief and on rebuttal, of the counseling for violence that he received as a result of the previous assault.

The issue arose when the state, on cross-examination of the defendant, began questioning him concerning a prior incident in which he allegedly also kicked Young in the head, which incident resulted in the defendant receiving counseling on alternative solutions to violence. The defendant argues that this cross-examination, as well as the testimony on rebuttal from the defendant's violence counselor, violated the letter and spirit of the motion in limine and the order pertaining to prior bad acts. The purpose of the motion in limine and the order was to ensure that the jury did not learn of the prior incident and counseling until the court had heard and ruled on their admissibility. This was a proper utilization of these motions and a violation of them might lead to a valid objection if there was nothing more to the equation.

In this case, however, the jury already had learned of the prior assault when the court admitted the defendant's voluntary written statement into evidence without objection.⁶ The defendant initially had objected to the admission of this statement, but then specifically withdrew his objection and asked that the statement be admitted. Even if we were to assume, without deciding, that the court's ruling was improper, it would not be a reason to reverse the judgment of conviction. It is well established that an improper ruling should not be considered reversible error if the evidence admitted thereby has already properly entered the case. State v. McNair, 54 Conn. App. 807, 814, 738 A.2d 689, cert. denied, 251 Conn. 913, 739 A.2d 1249 (1999). Accordingly, the admission of evidence of the prior assault was not improper because it was merely cumulative of what was already before the jury from the defendant's statement. See State v. Randolph, 190 Conn. 576, 589-90, 462 A.2d 1011 (1983).

On cross-examination, the defendant denied that he had received counseling for violence. To rebut this denial, the state called John Mahoney, who had worked for a program called "Community Solution Pretrial Services." Mahoney testified concerning his counseling of the defendant in alternative responses to avoid violence.

The defendant's sole objection to Mahoney's testimony was on the ground that it was a privileged communication. The court denied the objection on that ground, and the defendant does not appeal concerning the court's ruling on the issue of privilege. Instead, he now argues that Mahoney's testimony was improperly offered to impeach a collateral matter.

"Appellate review of evidentiary rulings is ordinarily limited to the specific legal issue raised by the objection of trial counsel. See State v. Rothenberg, 195 Conn. 253, 263, 487 A.2d 545 (1985). The purpose of requiring trial counsel to object properly is not merely formal: it serves to alert the trial court to purported error while there is time to correct it without ordering a retrial. Id. By failing to object ... the defendant failed to preserve this claim. State v. Couture, 194 Conn. 530, 553-54, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985); see also Practice Book §§ 288 and 4185 now §§ 5-5 and 60-5." State v. Christiano, 228 Conn. 456, 464, 637 A.2d 382, cert. denied, 513 U.S. 821, 115 S. Ct. 83, 130 L. Ed. 2d 36 (1994); see State v. Dukes, 29 Conn. App. 409, 416-17, 616 A.2d 800 (1992), cert. denied, 224 Conn. 928, 619 A.2d 851 (1993). "We have not yet reached a jurisprudential stage where we require trial judges to be mentally telepathic. Thus, we have consistently declined to review claims based on a ground different from that raised in the trial court." State v. Ulen, 31 Conn. App. 20, 29, 623 A.2d 70, cert. denied, 226 Conn. 905, 625 A.2d 1378 (1993). Accordingly, we will not review this unpreserved claim.

II

The defendant next claims that the state's attorney violated his right to a fair trial by expressing her personal opinion, by improperly characterizing another witness' testimony and by violating the motion in limine concerning evidence of prior bad acts.

Our standard of review of prosecutorial misconduct is well established. "In analyzing this claim, we do not focus solely on the prosecutor's conduct. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct." (Internal quotation marks omitted.) State v. Jeudis, 62 Conn. App. 787, 793, 772 A.2d 715, cert. denied, 256 Conn. 923, 774 A.2d 140 (2001). "In determining whether the defendant was denied a fair trial we must view the prosecutor's comments in the context of the entire trial.... In examining the prosecutor's argument we must distinguish between those comments whose effects may be removed by appropriate instructions ... and those which are flagrant and therefore deny the accused a fair trial.... The defendant bears the burden of proving that the prosecutor's statements were improper in that they were prejudicial and deprived him of a fair trial.... In determining whether prosecutorial misconduct 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 misconduct was invited by defense conduct or argument ... the severity of the misconduct... the frequency of the misconduct ... the centrality of the misconduct to the critical issues in the case ... the strength of the curative measures adopted ... and the strength of the state's case." (Citations omitted; internal quotation marks omitted.) State v. Brown, 256 Conn. 291, 297-98, 772 A.2d 1107 (2001).

The defendant claims that during cross-examination and closing argument, the prosecutor, through sarcasm and direct comments, improperly injected her own opinion as to the credibility of the defendant's self-defense theory.

During cross-examination of the defendant, the prosecutor questioned him regarding his claim of self-defense and stated: "All right. So you're telling me now, it wasn't self-defense? You just snapped, lost your temper.... All right. So he didn't lose consciousness until the fifty-fourth kick, is that what you're telling me?" Defense counsel objected to both...