State v. Ortiz

• Citation: 40 Conn.App. 374,671 A.2d 389
• Decision Date: 01 April 1996
• Docket Number: No. 13786,13786
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Jose ORTIZ.

Page 389

671 A.2d 389

40 Conn.App. 374

STATE of Connecticut v. Jose ORTIZ.

No. 13786.

Appellate Court of Connecticut.

Argued Sept. 21, 1995.

Decided Feb. 20, 1996.

Certification Denied April 1, 1996.

Christopher L. Ulrich, Special Public Defender, for appellant (defendant).

Frederick W. Fawcett, Assistant State's Attorney, with whom, on the brief, were Donald A. Browne, State's Attorney, and C. Robert Satti, Assistant State's Attorney, for appellee (State).

Before FOTI, LAVERY and LANDAU, JJ.

LANDAU, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55. ¹ On appeal, the defendant claims that the trial court improperly (1) determined that it had jurisdiction over him so as to allow it to convict him of the lesser included offense of manslaughter in the first degree, (2) admitted evidence of prior uncharged crimes and misconduct, (3) failed to rectify its acknowledged error of admitting evidence that the defendant threatened a witness, (4) admitted evidence of a threat made against the defendant and (5) denied the defendant's written motion for appointment of new counsel. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On January 19, 1993, the victim, Teranon Watts, was walking near the intersection of Fairfield Avenue and Poplar Street in Bridgeport with James Hawkins, Ronald Miley and James Diggs. At the same time, the defendant and a second individual identified by two witnesses as "Black Mike" ² were standing on the front porch of a rooming house located at 1523 Fairfield Avenue, a short distance away. The defendant observed Watts and the others walking nearby and stated "there goes the smart mouth niggers that is down with the Foundation."

Armed with handguns, the defendant and Black Mike then approached the group. The defendant stated, "I heard you all wanted to kill us," and then he and Black Mike began shooting at the group, firing approximately eleven or twelve rounds. As Hawkins, Miley and Diggs fled the area, Watts was struck by a bullet and fell to the ground. Watts died as a result of injuries he received from a gunshot wound to his back.

I

The defendant first claims that the trial court improperly determined, at a probable cause hearing on June 18, 1993, that there was probable cause to proceed on the murder charge. Absent probable cause, he argues, the trial court lacked jurisdiction to convict him of the lesser included offense of manslaughter in the first degree.

The resolution of this claim is controlled by this court's decision in State v. Timmons, 7 Conn.App. 457, 462, 509 A.2d 64 (1986), appeal dismissed, 204 Conn. 120, 526 A.2d 1340 (1987) (certification improvidently granted). In Timmons, we held that when a defendant is charged with the crime of murder by information, the information gives notice to him of all lesser included offenses. Id., at 463, 509 A.2d 64. In both Timmons and the present case, "[j]urisdiction of the defendant's person was properly obtained, and retained [by the trial court] for [the defendant's] trial and conviction on the charge of manslaughter in the first degree." Id.

In this case, because the state properly charged the defendant with murder by information, we conclude that, in accordance with Timmons, the state was not precluded "from proceeding to trial against the defendant on the lesser included offense of manslaughter in the first degree...." Id., at 462, 509 A.2d 64. Because no probable cause hearing is required prior to a prosecution on a manslaughter charge; id.; we need not consider the defendant's claim that the trial court improperly determined that it had probable cause to proceed on the murder charge.

II

The defendant next claims that he was deprived of a fair trial and due process of law because the trial court improperly allowed a witness to testify (1) that the witness had worked as a drug runner for the defendant and knew that the defendant was a drug dealer, and (2) that the victim was selling drugs for a group of rival drug dealers. The defendant asserts that because of the highly inflammatory nature of this evidence, even if it was admissible, his conviction must be reversed because the trial court failed to provide a limiting instruction to the jury that evidence of uncharged criminal conduct is inadmissable to show the bad character of the defendant or his tendency to commit such bad acts. Without the limiting instruction, he argues, the jury was permitted to infer that the defendant was prone to commit the crime in this case.

Additional facts are necessary to create a context for our discussion. James Garner had formerly worked for the defendant for several months taking money from drug customers and returning to them with vials of crack cocaine they had purchased from the defendant. On numerous occasions, Garner had also purchased crack cocaine from the defendant for his own use. At the time of the shooting, the victim was selling drugs for a group of rival drug dealers known as the "Foundation," which had formerly sold drugs for the defendant. Although the defendant objected to the admissibility of this testimony, he did not request a limiting instruction.

"As a general rule, evidence of a defendant's prior crimes or misconduct is not admissible.... We have, however, recognized exceptions to the general rule if the purpose for which the evidence is offered is to prove intent, identity, malice, motive, a system of criminal activity or the elements of a crime.... [Prior misconduct] evidence may also be used to corroborate crucial prosecution testimony.... Moreover, we have held that such evidence may be used to complete the story of the crime on trial by placing it in the context of nearby and nearly contemporaneous happenings....

"To determine whether evidence of prior misconduct falls within an exception to the general rule prohibiting its admission, we have adopted a two-pronged analysis.... First, the evidence must be relevant ... to at least one of the ... exceptions. Second, the probative value of such evidence must outweigh the prejudicial effect of the ... evidence." (Citations omitted; internal quotation marks omitted.) State v. Cooper, 227 Conn. 417, 424-25, 630 A.2d 1043 (1993). "[E]vidence is relevant if it has a tendency to establish the existence of a material fact...." (Citation omitted; internal quotation marks omitted.) State v. Wieler, 35 Conn.App. 566, 576, 645 A.2d 1032 (1994), aff'd, 233 Conn. 552, 660 A.2d 740 (1995).

Our examination of the proffered evidence reveals that the trial court properly ruled that Garner's testimony was relevant and material to more than one of the exceptions that allow evidence of uncharged misconduct. First, the court found that Garner's testimony that he had previously sold drugs for the defendant and that the defendant was a drug dealer was relevant to prove the identity of the defendant. Second, the court found that the testimony that the victim was selling drugs for another group of drug dealers was relevant to corroborate other evidence adduced prior to Garner's testimony that the victim had several vials of crack cocaine on him when he was killed.

Upon finding the challenged evidence to be relevant, the court then carefully balanced the probative value of the challenged evidence against its prejudicial effect. Relevant evidence of prior uncharged misconduct that is prejudicial in nature "is admissible if the trial court, in the exercise of its sound discretion, determines that its probative value, for one or more of the purposes for which it is admissible, outweighs its prejudicial impact on the accused." State v. Ramsundar, 204 Conn. 4, 15, 526 A.2d 1311, cert. denied, 484 U.S. 955, 108 S.Ct. 348, 98 L.Ed.2d 374 (1987). Because the entire case involved drugs and drug dealing, the court admitted the challenged testimony after finding that the evidence, although prejudicial to the defendant, was necessary to allow the jury to get the "whole flavor of this case" and to avoid having it look at the circumstances surrounding the death of the victim "in a semivacuum."

This court will uphold the trial court's ruling on the admission of uncharged misconduct evidence unless there is a manifest abuse of discretion. See State v. Kulmac, 230 Conn. 43, 61, 644 A.2d 887 (1994). It is unlikely that the evidence of the defendant's prior involvement with drugs could have shocked or influenced the jury to the extent that the defendant was deprived of a fair trial. See State v. Artieri, 206 Conn. 81, 88-89, 536 A.2d 567 (1988). Accordingly, we reject the defendant's claim that the trial court abused its discretion in admitting the challenged evidence.

The defendant further argues, however, that, even if the challenged evidence was admissible, the court committed reversible error by failing to instruct the jury that it could not use the evidence to infer that the defendant had bad character or that he had a tendency to commit the crime charged. Because the defendant failed to preserve this claim by requesting a limiting instruction at trial, he now seeks appellate review pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). ³ "We have previously held that the failure of the trial court to give a limiting instruction concerning the use of evidence of prior misconduct is not a matter of constitutional magnitude. State v. Servello, 14 Conn.App. 88, 94-95, 540 A.2d 378, cert. denied, 208 Conn. 811, 545 A.2d 1107 (1988)." State v. Ulen, 31 Conn.App. 20, 37, 623 A.2d 70, cert. denied, 226 Conn. 905, 625 A.2d 1378 (1993). Absent a claim of constitutional magnitude, the defendant's unpreserved claim fails to satisfy the second prong of Golding and is, therefore, not reviewable. ⁴

The defendant also challenges, pursuant to Golding, the admission of certain other prior uncharged misconduct evidence...