State v. Peeler, 16362, 16354.

Citation271 Conn. 338,857 A.2d 808
Decision Date12 October 2004
Docket NumberNo. 16362, 16354.,16362, 16354.
CourtSupreme Court of Connecticut
PartiesSTATE of Connecticut v. Russell PEELER

Harry Weller, Supervisory Assistant State's Attorney, with whom were Jonathan C. Benedict, State's Attorney, and, on the brief, Joseph Corradino and Susann Gill Riley, Senior Assistant State's Attorneys, for the appellant-appellee (State).

Mark Rademacher, Assistant Public Defender, for the appellee-appellant (defendant).

SULLIVAN, C. J., and BORDEN, NORCOTT, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.

Opinion

VERTEFEUILLE, J.

After a jury trial, the defendant was convicted of one count of murder in violation of General Statutes ? 53a-54a (a),1 two counts of capital felony in violation of General Statutes (Rev. to 1999) ? 53a-54b (8) and (9), respectively,2 and one count of conspiracy to commit murder in violation of General Statutes ?? 53a-54a (a) and 53a-48 (a)3 in connection with the shooting death of a woman and her young son. At a separate sentencing hearing for the two counts of capital felony pursuant to General Statutes ? 53a-46a (b),4 the same jury considered further evidence of aggravating and mitigating factors, but was unable to reach a unanimous verdict with regard to the imposition of the death penalty on either of the charges. The trial court thereafter denied the state's motion for mistrial of the penalty hearing and rendered judgment sentencing the defendant to life imprisonment without the possibility of parole.5 The defendant appealed from his conviction to this court in accordance with General Statutes ? 51-199(b).6 The state appealed7 from the trial court's judgment sentencing the defendant to life imprisonment.8 We affirm the defendant's conviction on all charges, but we reverse the judgment imposing a sentence of life imprisonment and remand the case for a new penalty hearing on both capital felony counts.

On appeal, the defendant claims that the trial court: (1) improperly instructed the jury that it could convict the defendant of a capital felony based upon a theory of conspiratorial liability under Pinkerton v. United States, 328 U.S. 640, 647-48, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946); (2) improperly charged the jury on an element of conspiratorial liability under the Pinkerton doctrine by failing to instruct the jury that, in order to find the defendant guilty of murder, it must find that the coconspirator intentionally caused the victims' deaths; (3) deprived the defendant of his federal and state constitutional rights to confront witnesses and to present a defense by refusing to disclose certain medical, drug treatment and psychiatric records of a state's key witness for the purpose of cross-examination; (4) violated his constitutional rights to be present at all stages of his trial and to presence of counsel when it conducted two ex parte proceedings with the attorney for a key witness for the state; and (5) violated the Code of Judicial Conduct when the presiding judge failed to recuse himself, sua sponte, after conducting those two ex parte proceedings. We conclude that the defendant's first, second and fifth claims are without merit. Furthermore, even if we assume that the defendant's third and fourth claims are valid, we nevertheless conclude that the improprieties were harmless. Accordingly, we affirm the conviction portion of the judgment of the trial court.

The second appeal is the state's appeal from the sentencing portion of the defendant's conviction. Specifically, the state appeals from: (1) the trial court's denial of the state's motion for a mistrial, its dismissal of the penalty phase proceedings, and the subsequent imposition of a sentence of life imprisonment without the possibility of parole; and (2) the trial court's subsequent denial of the state's request for permission to appeal, pursuant to General Statutes ? 54-96.9 The state claims that the trial court abused its discretion by denying permission to appeal, after concluding, among other things, that a deadlocked jury can reach a lawful verdict. The state further argues that the trial court abused its discretion by denying its motion for a mistrial after improperly instructing the jury that if it remained deadlocked, the trial court would be required to impose a sentence of life imprisonment "without the benefit of release." Such an improper instruction, the state argues, was not only based upon an unsound legal premise, but tainted the jury deliberations by: (1) leading the jury to believe that the responsibility for determining the appropriateness of whether the defendant should be sentenced to life imprisonment or put to death did not rest solely in its discretion; and (2) increasing the likelihood that the jury would remain deadlocked.

In response to the state's claims, the defendant presents four alternate grounds for affirmance. The defendant argues that the judgment of the trial court, sentencing him to life imprisonment, should be affirmed because: (1) ? 53a-46a (b) does not permit a trial court to impanel a new jury after the original jury becomes deadlocked in the penalty phase of a capital case; (2) principles of vicarious liability cannot be used to prove aggravating factors, and, therefore, the state presented insufficient evidence to prove any of the aggravating factors necessary for the imposition of the death penalty; (3) the state failed to produce sufficient evidence to prove beyond a reasonable doubt that the defendant had the particularized mental state required by each aggravating factor; and (4) Pinkerton liability cannot be used to prove aggravating factors, and therefore the state presented insufficient evidence to prove any aggravating factors. We agree with the state's arguments and reject the defendant's alternate grounds for affirmance.10 Accordingly, we reverse the trial court's imposition of a sentence of life imprisonment and remand the case for a new penalty hearing.

I THE FACTS

The jury reasonably could have found the following facts. In the late 1990s, the defendant and his brother, Adrian Peeler (Adrian), operated a large-scale drug trafficking network that sold crack cocaine (crack) throughout the city of Bridgeport. In 1997, the defendant partnered with Rudolph Snead, Jr., to produce and distribute the crack. Snead's responsibilities included providing the defendant with powdered cocaine, which the defendant, with the help of several associates, processed into crack and then sold on the streets. The partnership began to sour when, in 1997, the defendant accused Snead of overcharging him for the powdered cocaine. Snead responded to the accusation by "shooting up" a building on Benham Street in Bridgeport that the defendant used as a "crack house." According to one of the defendant's associates, the defendant vowed to retaliate.

In September, 1997, the defendant, Corey King, Shawn Kennedy, and the defendant's cousin, Ryan Peeler (Ryan), were driving in Bridgeport when the defendant noticed Snead's car parked in the lot of a barber shop. The defendant observed Snead leave the barber shop, get into his car and drive away. At the time, the defendant was aware that two young boys, later identified as Leroy Brown, Jr., and Tyrell Snead (Tyrell), were passengers in Snead's car.

The defendant's car followed Snead's car to the Lindley Avenue entrance ramp to Route 25. As Snead proceeded up the ramp, he slowed down and pulled off to the side. The defendant's vehicle pulled up next to Snead's car, and the defendant, who was seated in the right front passenger seat, fired several shots at Snead from a .40 caliber, semi-automatic handgun.11 The defendant kept shooting until his gun jammed.

Several of the shots fired by the defendant hit Snead, injuring him, but not so severely that he was unable to drive away. A Bridgeport police officer, who noticed glass falling from Snead's car as he drove by, stopped the vehicle. After Snead explained what had happened, the officer sent him to St. Vincent's Medical Center for treatment.

At the hospital, another officer from the Bridgeport police department interviewed Snead and his two young passengers, Brown and Tyrell. The officer's investigative report included the names of all three interviewees. On the basis of Snead's identification of the defendant as the person who had shot him, the defendant was arrested and charged with attempted murder.

The defendant, however, posted bond and was released from custody. After his release, the defendant made it clear to his associates that he was furious with Snead for reporting the Lindley Avenue shooting to the police, and that he was going to "get" him for giving a statement to the police. Subsequently, in May, 1998, while free on bond, the defendant shot and killed Snead in the same barber shop that Snead had patronized immediately prior to the Lindley Avenue shooting.

While investigating Snead's death, the Bridgeport police department performed ballistics tests comparing the shell casings retrieved from the murder scene with those from the Lindley Avenue shooting. The tests revealed that all of the bullets had been discharged from the same gun. The police were also aware that Brown could identify the defendant as the shooter in the Lindley Avenue shooting, thus linking him directly to Snead's murder. On the basis of this information, the defendant was arrested and charged with Snead's murder.

The defendant, however, again secured his release by posting bond. As a condition of his release, the defendant was required to observe a curfew and wear an electronic ankle bracelet to ensure compliance. Despite these precautions, the defendant continued operating his drug trafficking business, albeit from a new location.

In January, 1998, during the course of pretrial discovery in connection with the Lindley Avenue shooting, the state provided defense counsel with the police report identifying Brown and Tyrell...

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