State v. Murrell, 2729

• Decision Date: 15 April 1986
• Docket Number: No. 2729,2729
• Citation: 507 A.2d 1033,7 Conn.App. 75
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Derrick MURRELL.

Page 1033

507 A.2d 1033

7 Conn.App. 75

STATE of Connecticut v. Derrick MURRELL.

No. 2729.

Appellate Court of Connecticut.

Argued Jan. 8, 1986.

Decided April 15, 1986.

Martin Zeldis, Asst. Public Defender, with whom, on brief, was Joette Katz, Public Defender, for appellant (defendant)

Randy L. Cohen, Sp. Asst. State's Atty., with whom, on brief, were James G. Clark, Deputy Asst. State's Atty., and Dennis O'Connor, Asst. State's Atty., for appellee (state).

Before DUPONT, C.J., and BORDEN and BIELUCH, JJ.

BORDEN, Judge.

The defendant appeals from the judgment of conviction, after a jury trial, of burglary in the third degree, in violation of General Statutes § 53a-103(a), larceny in the fifth degree, in violation of General Statutes § 53a-125a(a), and criminal mischief in the third degree, in violation of General Statutes § 53a-117(a)(1)(A). The sole issue in this appeal involves the admission into evidence during the state's case-in-chief of the defendant's prior misconduct as substantive proof of identity and a common scheme to commit the The jury reasonably could have found the following facts: On May 18, 1983, Richard Perretta, a Hartford police officer, was employed on private duty as a guard in a downtown parking garage in Hartford. While patrolling an underground level of the garage during the noon hour in his vehicle, Perretta observed a man who was holding car stereo speakers in the vicinity of a 1979 Saab automobile which appeared to have been burglarized. The individual, who was within approximately thirty feet of Perretta, saw him and began to flee. Perretta got out of his car and chased the individual up a stairway whereupon the individual threw the speakers at him and dropped a car stereo radio. Perretta was able to see the individual's face several times during the chase from a distance of approximately ten feet. After a street chase, Perretta lost sight of the individual a block away. Perretta stopped a passing police cruiser and radioed a description of the suspect. The individual was described as a black male, about five feet six inches tall, wearing a striped rugby-type shirt, blue jeans and a dark blue or black waist-length jacket. Perretta and the other police officer returned to the parking garage to contact the owner of the burglarized car and to make a report of the incident. The front driver's side window of the car had been smashed and a radio, later identified to be a Blaupunkt AM/FM stereo radio and cassette tape deck, had been ripped out of the dashboard.

                charged offenses.   We find no reversible error
                

Officer Peter Matarangas, who was on patrol in the downtown area, received the radio bulletin at approximately 1 p.m. Shortly thereafter, he observed an individual, who fit the description of the suspect, exiting a nearby parking garage. The individual was wearing the same type and color of clothing as described by Perretta, and was carrying a black jacket. Matarangas and two other police officers apprehended the defendant and, upon patting down the jacket, they found two black radio knobs inside a pocket. The defendant was transported to the first parking garage where Perretta identified him as the perpetrator. Perretta placed the knobs on the Blaupunkt radio and found that they fit. The defendant was then placed under arrest.

Prior to trial, the defendant filed a motion in limine requesting the exclusion from evidence of any and all prior felony or misdemeanor convictions which the state might seek to offer for impeachment purposes. The defendant had been previously convicted of larceny in the third degree, of being a persistent larceny offender, and of escape from custody. During a preliminary hearing, the state disclosed its intention to introduce evidence of the defendant's prior involvement in a similar unrelated burglary of a car parked in a downtown parking garage. This evidence was also the factual basis for the defendant's prior larceny conviction. The trial court granted the motion in limine in part, thereby excluding from evidence the conviction of escape from custody, and deferred ruling on the motion regarding the larceny convictions and the evidence of the prior misconduct until the state's proffer.

At trial, the state sought to offer the testimony of Hartford police detective Richard Klaus as evidence of the defendant's prior misconduct. Out of the presence of the jury, Klaus testified that on March 27, 1982, while assigned to patrol the downtown Hartford area and parking facilities, he observed an individual, later identified as the defendant, exiting a parking garage. Klaus stopped the defendant and noticed that he was partially concealing a car radio. The defendant thereupon dropped the radio and fled. Upon being apprehended, the defendant agreed to show Klaus where he obtained the radio and they proceeded to a lower level of the parking garage where the defendant pointed out a late model Chevrolet. The window of the driver's side front door was broken and the dashboard was damaged by the forcible removal of the radio. Klaus identified the The state limited the offer of this evidence to proof of identity and a common scheme, and stipulated that there would be no offer of the felony convictions for impeachment purposes if the defendant chose to testify. The trial court ruled that the prior misconduct evidence was admissible for the purposes offered and accordingly denied the defendant's motion in limine as to that evidence. ¹ In the presence of the jury, Klaus testified as set forth above. Upon the conclusion of his testimony, the trial court cautioned the jury that the evidence was admitted for the limited purpose of proving identity and a common scheme to commit such a crime. On appeal, the defendant claims that the trial court erred in admitting this evidence. We agree.

                radio as a Blaupunkt make.   This incident occurred in the early evening in a parking garage located approximately one hundred yards from the parking garage involved in the present case
                

"Evidence of similar but unconnected crimes is excluded because it violates the rule of policy which forbids the state initially to attack the character of the accused and also the rule of policy that bad character may not be proved by particular acts." State v. Esposito, 192 Conn. 166, 169, 471 A.2d 949 (1984). "It is not because other crimes evidence offered to prove criminal proclivity lacks any probative value that it is ordinarily rejected, however, but because it is commonly regarded as having too much. McCormick, Evidence (2d Ed.1972) § 190; 1 Wigmore, Evidence (3d Ed.1940) § 194." State v. Esposito, supra, 181, 471 A.2d 949 (Shea, J., dissenting). Notwithstanding these general principles, " '[s]uch evidence [may be] admissible ... when it is particularly probative in showing such things as intent, an element in the crime, identity, malice, motive or a system of criminal activity....' " State v. Gilnite, 4 Conn.App. 676, 680, 496 A.2d 525 (1984).

Where the state's offer of evidence of a defendant's prior misconduct is directed to the proof of one or more of those commonly recognized items, the question of admissibility lies in the trial court's discretion. State v. Gilnite, supra. The principles underlying the general rule of exclusion, however, continue to apply. See State v. Onofrio, 179 Conn. 23, 28-30, 425 A.2d 560 (1979); State v. Gilligan, 92 Conn. 526, 530-33, 103 A. 649 (1918). "When assessing the admissibility of 'other crimes' evidence, the application of a mechanical test determining that the proffered evidence fits within some class of exception to the rule of nonadmissibility, may obscure sight of the underlying policy of protecting the accused against unfair prejudice. That policy ought not to evaporate through the interstices of the classification. The problem is thus one of balancing the actual relevancy of the 'other crimes' evidence in light of the issues and the other evidence available to the prosecution against the degree to which the jury will probably be roused by the evidence." State v. Onofrio, supra, 179 Conn. at 29, 425 A.2d 560. With these general principles in mind, we turn to the specific grounds upon which the evidence of the defendant's prior misconduct was admitted.

I

IDENTITY

"It is the state's burden to prove every element of the crime, including [identity.]" State v. Perry, 195 Conn. 505, 521, 488 A.2d 1256 (1985). "The first threshold for the use of evidence of other crimes or misconduct on the issue of identity is that the methods used be 'sufficiently unique to warrant a reasonable inference that the person who performed one misdeed also did the other.' [State v. Ibraimov The state argues that the similarities between the incidents outweigh the dissimilarities and that there are no particularly distinctive dissimilarities. This argument fails for two reasons.

                87 Conn. 348, 354, 446 A.2d 382 (1982) ].  If this initial criterion is satisfied, the trial court must then balance the probative value of the evidence against its prejudicial effect and, before admitting it, must find that the former outweighs the latter.   State v. Braman, 191 Conn. 670, 676, 469 A.2d 760 (1983)."   State v. Crosby, 196 Conn. 185, 190, 491 A.2d 1092 (1985)
                

First, it misstates the applicable legal standard. As previously indicated, the law requires not only a high degree of similarity between the events and circumstances of the past and present incidents, it imposes the additional requirement that those common features be "sufficiently unique"; State v. Ibraimov, supra; to warrant the desired inference. The standard is not, as the state suggests, that the similarities outweigh the dissimilarities and that those dissimilarities be unique or distinctive.

Second, although the state has pointed out several similarities between the defendant's prior misconduct and the present charges, the state has not demonstrated that those commonalities share any sufficiently...