State v. Oliver

• Decision Date: 28 April 1998
• Docket Number: No. 15854,15854
• Citation: 708 A.2d 594,48 Conn.App. 41
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Gary OLIVER.

Page 594

708 A.2d 594

48 Conn.App. 41

STATE of Connecticut v. Gary OLIVER.

No. 15854.

Appellate Court of Connecticut.

Argued Dec. 4, 1997.

Decided March 10, 1998.

Certification Denied April 28, 1998.

J. Brendan Sharkey, Special Public Defender, for appellant (defendant).

Ellen A. Jawitz, Deputy Assistant State's Attorney, with whom, on the brief, were Michael Dearington, State's Attorney, and James Dinnan, Assistant State's Attorney, for appellee (State).

Before EDWARD Y. O'CONNELL, C.J., and LAVERY and DALY, JJ.

LAVERY, Judge.

The defendant, Gary Oliver, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a)(2), ¹ and larceny in the second degree in violation of General Statutes § 53a-123 (a)(3). ² On appeal, the defendant claims that the trial court improperly (1) refused to instruct the jury that it could draw an adverse inference from the state's failure to call a witness and (2) allowed the introduction of prejudicial evidence of previous misconduct on the part of the defendant. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At the time of the incident in question, the victim, Martin Leaks, was approximately sixty years old and unemployed. Leaks suffered from a disabling condition and received supplemental security income (SSI) in the amount of $400 per month and supplemental payments from the state in the amount of $300 per month. Leaks' SSI check arrived on the first of the month and his supplemental check from the state arrived on the third of the month. Leaks testified that he occasionally used cocaine. He further testified that he had known the defendant for four to six months and that the defendant had sold him drugs at his apartment. As the result of their dealings, the defendant knew when Leaks received his checks.

On October 4, 1994, Leaks and his son, Rodney Boyd, were in Leaks' apartment at 5:30 or 5:45 p.m. when there was a knock at the door. Leaks asked who it was, and someone responded, "G." Because Leaks knew someone who went by G, Boyd opened the door. The defendant and three or four other men then entered the apartment. Leaks was sitting on a couch when the men entered. The defendant sat in a chair while the other men remained standing. The defendant then said to Leaks, "Pops, you got money?" ³ Leaks responded, "No, I don't have no money." One of the other men then said to the defendant, "G, search him, see if he got money." This same man had a gun in his hand and began looking around the apartment. Suddenly, Leaks noticed that the defendant "was back at the door." The man with the gun walked up to Leaks, looked at him, said, "Why are you smiling?" and shot him. The shooter then reached into Leaks' pockets and took his money and food stamps. The defendant, the shooter, and the other men left the apartment through the back door. Leaks managed to get to a neighbor's apartment and called the police.

Officer Pasquale Marino arrived on the scene within minutes and found Leaks lying on the floor in front of the couch suffering from a gunshot wound to the hip. Leaks and Boyd gave Marino a description of one of the perpetrators and said the man's name was G. Also at the scene was Detective William Piascyk, who spoke to Boyd and requested that he accompany him to the police station, but Boyd refused. Leaks was taken by ambulance to a hospital and treated for the gunshot wound.

Later that evening, Marino saw a man in the parking lot outside Leaks' apartment who matched the description provided by Leaks and Boyd. The man was later identified as the defendant. Marino asked the defendant if he went by the name of G and the defendant responded, "Some people call me that." Marino then asked the defendant if he knew anything about the earlier incident. The defendant replied that he had been there when Leaks was shot. The defendant was taken into custody and brought to the New Haven police station. After having been read his rights and signing a waiver, the defendant gave an oral statement to the police. ⁴ The defendant gave the police a description of one of the men who was at Leaks' apartment, whom he referred to as Mike, and said that the shooter was "Mike's home boy."

I

The defendant first claims that the trial court improperly refused to deliver an adverse inference instruction in its jury charge regarding the state's failure to call as a witness the victim's son, Boyd. We are unpersuaded.

At trial, the defendant filed a proper request with the trial court seeking a charge to the jury as to Boyd as a missing witness pursuant to Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960). The trial court did not charge as requested and the defendant duly excepted.

"The failure to produce a witness for trial who is available and whom a party would naturally be expected to call warrants an adverse inference instruction against the party who would be expected to call that witness.... An inquiry into the appropriateness of a Secondino instruction is, accordingly, two-pronged: whether the witness is available and whether, under the facts of this case, the witness is one whom the state would naturally be expected to produce." (Citations omitted; internal quotation marks omitted.) State v. Wood, 208 Conn. 125, 140, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S.Ct. 235, 102 L.Ed.2d 225 (1988). "A witness who would naturally be produced by a party is one who is known to that party and who, by reason of his relationship to that party or to the issues, or both, could reasonably be expected to have peculiar or superior information material to the case which, if favorable, the party would produce." Secondino v. New Haven Gas Co., supra, 147 Conn. at 675, 165 A.2d 598.

"This court has consistently held that [w]hether an absent witness has superior or peculiar information and whether an adverse inference can be drawn is a question of fact for the trier. Perl v. Case, 3 Conn.App. 111, 115, 485 A.2d 1331 [cert. denied, 195 Conn. 803, 491 A.2d 1103] (1985). This court cannot reverse or modify the trial court's determinations of fact unless they are clearly erroneous. Buddenhagen v. Luque, 10 Conn.App. 41, 44, 521 A.2d 221 (1987). State v. Williams, 20 Conn.App. 263, 266, 565 A.2d 1365 (1989)." (Internal quotation marks omitted.) State v. Jurgensen, 42 Conn.App. 751, 758, 681 A.2d 981, cert. denied, 239 Conn. 931, 683 A.2d 398 (1996).

"To take advantage of this rule permitting an adverse inference, the party claiming the benefit must show that he is entitled to it...." (Internal quotation marks omitted.) State v. Rosa, 170 Conn. 417, 431, 365 A.2d 1135, cert. denied, 429 U.S. 845, 97 S.Ct. 126, 50 L.Ed. 2d 116 (1976). "That is, the party claiming the benefit of the ruling must show that the witness is available and that the witness is one whom the party would naturally produce." (Internal quotation marks omitted.) State v. Kish, 186 Conn. 757, 771, 443 A.2d 1274 (1982). "[T]he trial court must make a preliminary determination that there is evidence in the record to support these elements." Hines v. St. Vincent's Medical Center, 232 Conn. 632, 638, 657 A.2d 578 (1995).

In denying the defendant's request, the trial court stated that "the evidence in the case of his apparent noncooperation with the police in connection with the investigation into this crime ... causes the court to conclude that he is not a witness that naturally the state would produce." ⁵ When initially questioned, Boyd gave an oral statement to Marino. Boyd then refused to cooperate further when Piascyk requested that he come to the police station to give a formal statement and to look at some photographs. ⁶

In reviewing a trial court's findings of fact, we are governed by the clearly erroneous standard of review. "A finding of fact is clearly erroneous when there is no evidence to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.... In making this determination every reasonable presumption must be given in favor of the trial court's ruling...." (Internal quotation marks omitted.) State v. Strickland, 42 Conn.App. 768, 773, 682 A.2d 521 (1996), rev'd on other grounds, 243 Conn. 339, 703 A.2d 109 (1997).

Upon our review of the entire record, we cannot say that the trial court's determination that Boyd was uncooperative with the police and, therefore, someone unlikely to be a good witness for the state or a witness whom the state would naturally produce is clearly erroneous. The trial court's decision not to deliver the Secondino instruction was, therefore, not an abuse of discretion. Because we agree with the trial court's determination as to the second prong for determining the appropriateness of a Secondino charge, we do not address the defendant's claim respecting availability.

II

The defendant next claims that the trial court improperly admitted evidence that he had a drug dealing relationship with Leaks. The defendant argues that the prejudicial impact of this testimony clearly outweighs its limited probative value. We disagree.

Prior to the commencement of trial, the state sought to present testimony that the defendant had sold narcotics to Leaks during the four to five month period prior to the shooting. The trial court, after hearing arguments concerning the admissibility of the proffered testimony, allowed it into evidence. ⁷

Leaks then testified that he had known the defendant for four to six months prior to the shooting and that he knew the defendant because the defendant sold drugs to him. He further testified that the defendant knew that he received his disability checks on the first and third of each month. The only evidence of the defendant's drug dealing came in through this testimony by Leaks.

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