State v. Rosa, 28186.
Decision Date | 06 November 2007 |
Docket Number | No. 28186.,28186. |
Citation | 104 Conn.App. 374,933 A.2d 731 |
Court | Connecticut Court of Appeals |
Parties | STATE of Connecticut v. Vicente ROSA. |
Neal Cone, senior assistant public defender, for the appellant (defendant).
Timothy J. Sugrue, senior assistant state's attorney, with whom, on the brief, were James E. Thomas, former state's attorney, and Vicki Melchiorre, senior assistant state's attorney, for the appellee (state).
FLYNN, C.J., and HARPER and DUPONT, Js.
The defendant, Vicente Rosa, appeals from the judgment of conviction, rendered after a jury trial, of felony murder in violation of General Statutes § 53a-54c, criminal use of a firearm in violation of General Statutes § 53a-216 and criminal possession of a firearm in violation of General Statutes § 53a-217 (a)(1). The defendant claims that the trial court improperly admitted evidence of his employment status. We affirm the judgment of the trial court.
The jury reasonably could have found the following facts. On December 23, 2002, the defendant contacted the victim, Orlando Ocasio, in order to purchase a quantity of cocaine. The defendant later met the victim outside of the victim's apartment building. At the victim's suggestion, the two entered the building to consummate the transaction. While ascending the stairs to the victim's apartment, the defendant pointed a nine millimeter handgun at the victim and demanded, "give me your shit." The victim refused and reached behind his back. The defendant, fearful that the victim possessed a firearm, fired at the victim seven times. The defendant then quickly fled the scene without taking anything from the victim. Upon questioning by investigating police officers, the defendant confessed to shooting the victim. The state subsequently charged the defendant with murder, felony murder, criminal use of a firearm and criminal possession of a firearm.
At trial, the state sought to introduce the defendant's oral statement made during booking that he had been unemployed at the time of the victim's shooting. The defendant objected, arguing "probative value versus prejudice." The court ruled that the evidence was probative with regard to the charge of attempt to commit robbery, the predicate crime of the felony murder charge, and admitted the evidence. The state subsequently relied on this evidence during its closing argument, stating in relevant part: 1
The defendant's primary contention on appeal is that the admission of evidence that he was unemployed at the time of the incident at issue violated his state and federal constitutional rights to a fair trial and equal protection of the laws. The defendant acknowledges that these claims were not preserved at trial and requests that we afford them Golding review.
Under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), a claim is reviewable if the record is adequate to review the claim, and "the claim is of constitutional magnitude alleging the violation of a fundamental right . . . ." Because we are unconvinced that the defendant's claim is one of constitutional magnitude, we decline to afford it review.
As a preliminary matter, we note that "[w]e 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. Perry, 58 Conn.App. 65, 68, 751 A.2d 843, cert. denied, 254 Conn. 914, 759 A.2d 508 (2000). Such is the case here. The defendant's claim is essentially an evidentiary, and not a constitutional, matter. "Evidentiary claims are not of constitutional magnitude and are thus not entitled to Golding review." (Internal quotation marks omitted.) State v. Hansen, 39 Conn.App. 384, 390, 666 A.2d 421, cert. denied, 235 Conn. 928, 667 A.2d 554 (1995). Despite the defendant's assertion that equal protection and fair trial issues "plainly [arise] if the jury is allowed to use unemployment when deciding on guilt in attempted robbery cases," he provides no persuasive authority for such a proposition. Rather, each case relied on by the defendant treats the matter as an evidentiary, as opposed to a constitutional, inquiry. Simply "[p]utting a constitutional tag on a nonconstitutional claim will no more change its essential character than calling a bull a cow will change its gender." State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982). We accordingly decline to review defendant's claim pursuant to Golding.
We next turn to the defendant's nonconstitutional argument that evidence of his unemployment was unduly prejudicial and, thus, improperly admitted into evidence. We cannot conclude that the court abused its discretion in determining that this evidence was not so unduly prejudicial as to outweigh its probative value.
We begin our analysis by noting that (Internal quotation marks omitted.) State v. Smith, 275 Conn. 205, 219, 881 A.2d 160 (2005).
(Internal quotation marks omitted.) State v. Cummings, 91 Conn.App. 735, 743-44, 883 A.2d 803, cert. denied, 276 Conn. 923, 888 A.2d 90 (2005).
Evidence of unemployment generally is relevant to one's motive to attempt robbery. See State v. Perry, supra, 58 Conn.App. at 69, 751 A.2d 843 (...
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