State v. Perry
| Decision Date | 30 May 2000 |
| Citation | 58 Conn. App. 65,751 A.2d 843 |
| Court | Connecticut Court of Appeals |
| Parties | (Conn.App. 2000) STATE OF CONNECTICUT V. DAMON PERRY AC 18153 |
Richard Hustad Miller, special public defender, for the appellant (defendant).
John A. East III, assistant state's attorney, with whom, on the brief, were Mary M. Galvin, state's attorney, and Francis J. McQuade, supervisory assistant state's attorney, for the appellee (state).
OPINION
The defendant, Damon Perry, appeals from the judgments of conviction, following a jury trial, of three counts of sale of cocaine in violation of General Statutes §§ 21a-278 (b).2 The defendant claims that (1) his federal and state constitutional rights to due process and equal protection were violated when the state's attorney on cross-examination asked two defense witnesses about the defendant's employment, business practices and income tax returns in an effort to have the jury infer that drug sales were the defendant's only means of supporting himself, (2) the state's attorney engaged in prosecutorial misconduct that deprived the defendant of his constitutional rights to a fair trial and an impartial jury and (3) the trial court improperly accepted a verdict from the jury based on insufficient evidence. We affirm the judgments of the trial court.
The following facts and procedural history are relevant to our resolution of this appeal. The defendant was charged in five separate informations with selling cocaine to an undercover police officer five times between October 30, 1995, and December 5, 1995, in violation of §§ 21a-278 (b). During trial, the defendant presented several alibi witnesses.
The defendant first claims that the state's attorney, on cross-examination of two defense witnesses, improperly asked questions concerning the defendant's employment, business practices and income tax returns in an effort to have the jury infer that drug sales were his only means of supporting himself. The defendant contends that this line of inquiry constituted improper and discriminatory use of his economic status to prejudice the jury against him, thereby denying him his constitutional right to equal protection of the law under article first, §§§§ 1 and 20, and amendments five and twenty-one of the constitution of Connecticut and under the fourteenth amendment to the United States constitution and article first, §§ 8, of the constitution of Connecticut. We decline to review this claim.
Because this claim was not preserved at trial, the defendant seeks review in this court under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and the plain error doctrine. Practice Book §§ 60-5; see State v. Quinones, 56 Conn. App. 529, 531, 745 A.2d 191 (2000). It is well established that (Internal quotation marks omitted.) State v. Connelly, 46 Conn. App. 486, 509, 700 A.2d 694 (1997), cert. denied, 244 Conn. 907, 908, 713 A.2d 829, cert. denied, 525 U.S. 907, 119 S. Ct. 245, 142 L. Ed. 2d 201 (1998).
This is not a claim of first impression. We previously have held that questions designed to show that a defendant is poor and, thus, might have a motive to commit a crime are not of constitutional magnitude and, accordingly, do not satisfy the second prong of Golding. State v. Hansen, 39 Conn. App. 384, 394, 666 A.2d 421, cert. denied, 235 Conn. 928, 667 A.2d 554 (1995). Accordingly, we conclude that the defendant is not entitled to Golding review of this claim.
The defendant does not fare better on his claim for review under the plain error doctrine. Practice Book §§ 60-5.3 Review under the plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. State v. Miller, 202 Conn. 463, 469, 522 A.2d 249 (1987).
"Numerous courts have recognized that evidence of an imminent financial burden on the defendant is admissible for the purpose of proving motive." United States v. Reed, 700 F.2d 638, 643 (11th Cir. 1983). Financial condition and employment status may be relevant to a defendant's motive to commit a crime and, thus, are admissible on purely non-constitutional evidentiary grounds. We conclude, therefore, that the state's attorney's line of inquiry regarding the defendant's impecuniosity did not affect the fairness of the trial and, thus, did not constitute plain error. Accordingly, we decline to review this claim under both Golding and the plain error doctrine.
The defendant's next claim, which also was unpreserved at trial, is that the state's attorney engaged in misconduct throughout the trial that effectively deprived the defendant of his rights to due process of law and an impartial jury under article first, §§ 8, of the constitution of Connecticut, and the fifth and fourteenth amendments to the United States constitution. He claims that the state's attorney engaged in a "seamless web" of misconduct by making improper inflammatory comments and intentionally portraying the defendant as a criminal whose incarceration was necessary to protect society. We do not agree.
Because the defendant neither objected at trial nor filed a motion for a mistrial, he seeks review under State v. Golding, supra, 213 Conn. 239-40, and the plain error doctrine. Practice Book §§ 60-5. It is well established that "[w]e will not afford Golding review to [unpreserved] claims of prosecutorial misconduct where the record does not disclose a pattern of misconduct pervasive throughout the trial or conduct that was so blatantly egregious that it infringed on the defendant's right to a fair trial." (Internal quotation marks omitted.) State v. Williams, 231 Conn. 235, 246, 645 A.2d 999 (1994); see State v. Atkinson, 235 Conn. 748, 769, 670 A.2d 276 (1996).
The defendant asserts that the elicitation of the following evidence by the state's attorney constituted a pervasive pattern of prosecutorial misconduct warranting reversal of the judgments of conviction: The defendant (1) was not employed; (2) made no profit from legitimate private endeavors; (3) had no taxable income during 1995; (4) despite his lack of income, he had assets such as a car and an apartment; (5) was targeted because he was a lieutenant in an organized drug selling operation; and (6) lived in a high crime area. This evidence was introduced properly either to establish the defendant's motive to sell drugs or to test the knowledge or credibility of his alibi witnesses. Accordingly, there was no prosecutorial misconduct in the elicitation of this evidence, and the defendant is therefore unable to establish the clear violation of a constitutional right for purposes of Golding review.
The defendant also claims that the state's attorney on cross-examination improperly asked a defense witness how many times the witness had heard the defendant's beeper go off during an earlier occasion when the witness and the defendant watched a videotape. The defendant asserts that this question prejudiced the jury against him because of the inference that drug dealers carry beepers. The basis for the question, however, was to test the credibility of the witness. Because there was a legitimate basis for the question, the state's attorney did not commit misconduct. Furthermore, the court sustained the defendant's objection to the question and instructed the jury to disregard it.
Finally, the defendant claims that by commenting during his closing argument that the defendant failed to present evidence of gainful employment or of an alibi for a particular drug transaction, the state's attorney violated the defendant's right against compelled self-incrimination.4 As we discussed previously, however, evidence regarding the defendant's financial status was relevant to the issue of motive, and the defendant based his defense on alibi witnesses. The state's attorney did not assert or imply that the jury should draw a negative inference from the defendant's failure to testify, but rather, he pointed out that the defendant's witnesses did not testify as to an alibi for the date in question or to counter the state's arguments concerning the defendant's lack of income. See State v. Forde, 52 Conn. App. 159, 173-74, 726 A.2d 132, cert. denied, 248 Conn. 918, 734 A.2d...
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