State v. Prioleau, 14896

CourtSupreme Court of Connecticut
Citation664 A.2d 743,235 Conn. 274
Decision Date22 August 1995
Docket NumberNo. 14896,14896
PartiesSTATE of Connecticut v. Herbert PRIOLEAU.

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664 A.2d 743
235 Conn. 274
STATE of Connecticut
No. 14896.
Supreme Court of Connecticut.
Argued May 23, 1995.
Decided Aug. 22, 1995.

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Susan M. Hankins, Asst. Public Defender, for appellant (defendant).

Carolyn K. Longstreth, Asst. State's Atty., with whom were Elpedio Vitale, Asst. State's Atty., and, on the brief, Michael Dearington, State's Atty., for appellee (State).


CALLAHAN, Associate Justice.

The defendant, Herbert Prioleau, was convicted by a jury of murder in violation of General Statutes § 53a-54a, 1 for fatally shooting the victim, [235 Conn. 276] Anthony Vitale. On appeal, 2 the defendant claims that the trial court improperly: (1) instructed the jury on his claim of self-defense; (2) permitted the state to cross-examine him and offer rebuttal evidence regarding certain weapons and other related items found in his bedroom on the

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night of the shooting; (3) permitted the state to engage in inappropriate closing argument; and (4) instructed the jury on the element of intent. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In July, 1990, the defendant, Theresa Pierce and her two children 3 moved into the first floor apartment of a multiple unit dwelling at 422 Crown Street in Meriden. The victim and his young daughter resided directly across the street at 419 Crown Street.

Relations between the defendant and the victim, although initially cordial, began to deteriorate in April, 1991, because the defendant suspected that the victim had placed scratch marks on his motor vehicles. The defendant communicated his suspicions to the victim [235 Conn. 277] through a mutual acquaintance, but the victim denied having had anything to do with the vandalism. Thereafter, in June, 1991, the defendant discovered that the windows of his truck had been shattered with a rock, and he again suspected the victim of being the culprit. The defendant notified the police, who briefly questioned the victim, but did not make an arrest.

On October 21, 1991, and again on October 30, 1991, Officer Mary Cushman of the Meriden police department was dispatched to Crown Street in order to investigate complaints made by the victim against the defendant. As a result of the October 30 complaint, Cushman arrested the defendant and transported him to police headquarters for processing, after which the defendant was released pending a court appearance. 4

In November, 1991, John L. Cardini, an acquaintance of both the defendant and the victim, told the defendant to avoid the victim because the victim, who was white, had told him that he intended "to kill that black motherfucker." Soon thereafter, however, the defendant encountered the victim in front of the defendant's house, and the two men engaged in a heated argument, at which time the defendant told the victim that he would "get him." The victim on several occasions during this time period expressed his fear that the situation between him and the defendant had escalated out of control.

On December 1, 1991, at approximately 6:15 p.m., the victim went to the apartment of Darlene Huffman, which was located on the second floor of the building where the defendant resided at 422 Crown Street, to pick up his daughter who was playing with Huffman's daughter. After his daughter persuaded him to permit her to stay a bit longer, the victim, at Huffman's invitation, took several butter cookies from Huffman's cookie tray and [235 Conn. 278] left the apartment. As the victim descended the stairs leading to the first floor, Huffman, who had not yet closed her apartment door, heard the defendant say "you got a gun." Huffman immediately thereafter heard four to five gunshots fired in rapid succession. Huffman did not hear the victim say anything.

The defendant and a neighbor both immediately called the 911 emergency number, and several Meriden police officers were dispatched to the scene. Upon arrival, Officer Michael Zakrzewski saw the defendant standing in the first floor doorway, holding a .38 caliber revolver. The defendant was ordered to drop the gun, and thereafter was handcuffed and taken into custody.

When Zakrzewski entered the first floor foyer area of 422 Crown Street, he found the victim lying face up at the foot of the stairs, suffering from multiple gunshot wounds to various parts of his body. As the officers attended to the victim, they noticed that the victim had portions of a butter cookie in his mouth and had three whole butter cookies grasped in his right hand. 5 The officers also found a loaded .357 caliber revolver in the left rear pocket of the victim's pants. An ambulance transported the victim to a nearby

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hospital, where he later died from a gunshot wound to the head.

The defendant testified at trial and admitted that he had shot and killed the victim. He claimed, however, that he had done so in self-defense. 6 In support of his [235 Conn. 279] claim of self-defense, the defendant recounted a series of events that, he argued, had caused him reasonably to believe that he was in serious and imminent danger of death or serious bodily harm when he had encountered the victim descending the stairs from Huffman's apartment on December 1, 1991, and that had caused him reasonably to believe that he had needed to use deadly physical force in order to protect himself.

According to the defendant, on July 2, 1991, soon after his relationship with the victim began to deteriorate, he was climbing the steps leading from Crown Street to his house, when he heard a sound like the click of a gun's firing pin come from the vicinity of the victim's house. He spun around quickly and looked in the direction of the noise, but did not see anyone. He was convinced, however, that it had been the victim's actions that had caused the sound.

The defendant also testified that on one occasion when he arrived home in the afternoon, he encountered the victim and several of the victim's friends sitting on [235 Conn. 280] motorcycles in front of the victim's house. 7 The victim's friends were large, imposing individuals, attired in "motorcycle outfits" and toting "big guns." As the defendant ascended the steps to his home, he heard one of the victim's friends ask "You haven't got the low life out of the neighborhood yet?" The victim responded "He's going to leave."

The defendant testified that on the Monday before the Sunday shooting, the victim had approached him and stated "I told you if you call the cops on me again, I'm going to kill you." The defendant further testified that two days later, on Wednesday, the victim had said to him "You'll be dead before the end of the week."

The defendant also testified regarding a certain leather vest that the victim sometimes wore. The defendant had heard the victim on occasion describe this particular vest as his "killer jacket" that he liked to wear when he was "taking care of business." The evidence at trial indicated that the victim had been wearing the vest at the time of his death.

The defendant's testimony concerning the immediate circumstances surrounding the shooting death of the victim was as follows. He arrived home at 6 p.m., took off his jacket and began to watch television. Approximately thirty minutes later, he put his jacket back on because he was going to walk outside to

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"check on [his] car." 8 The jacket contained a loaded .38 caliber revolver in one of its pockets.

As the defendant walked into the foyer area immediately outside of his apartment, his front door closed and locked behind him. At precisely that moment, according to the defendant, the victim had completed his descent of the stairs from Huffman's apartment and was also [235 Conn. 281] standing in the small foyer, just a few feet away from the defendant. When the victim saw him, the victim said "Here I am." The defendant responded by asking the victim "Tony, why are you trying to hurt me?" and by turning around and attempting to reenter his apartment. When the defendant realized that his door was locked, he turned around and saw the victim's hand reaching for the victim's rear pants pocket. At this point, the defendant realized for the first time that the victim had a gun. He then quickly pulled out his own weapon and began firing at the victim. The defendant testified that he believed that had he not shot the victim, he "wouldn't be here now." Additional facts and testimony will be enumerated hereinafter as pertinent.

At the conclusion of the evidence at trial, the trial court instructed the jury on the defendant's claim of self-defense. The jury, however, returned a guilty verdict, and the trial court thereafter sentenced the defendant to an effective term of life imprisonment. This appeal followed.


The defendant first contends that the trial court improperly instructed the jury on his claim of self-defense. 9 According to the defendant,

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the court improperly: [235 Conn. 282] (1) directed the jury to use a purely objective test, rather than the required subjective-objective test, in determining whether the defendant reasonably had believed that the use of deadly force was necessary; (2) failed to instruct the jury that the first person to [235 Conn. 283] use physical force is not necessarily the "initial aggressor"; and (3) instructed the jury on the issue of provocation when the evidence did not support such an instruction. 10

The applicable principles of law governing the defendant's claims are well established. " '[A] fundamental element of due process is the right of a defendant charged with a crime to establish a defense. Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920 [1923], 18 L.Ed.2d 1019 (1967); State v. Bethea, 167 Conn. 80, 83, 355 A.2d 6 (1974). This fundamental constitutional right includes proper jury instructions on the elements of self-defense...

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