State v. Rowe

• Decision Date: 19 October 2004
• Docket Number: (AC 23586).
• Citation: 85 Conn. App. 563,858 A.2d 792
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. SHAUN ROWE.

85 Conn. App. 563

858 A.2d 792

STATE OF CONNECTICUT v. SHAUN ROWE.

(AC 23586).

Appellate Court of Connecticut.

Argued February 17, 2004.

Officially released October 19, 2004.

Flynn, West and McDonald, Js.

Janice N. Wolf, assistant public defender, with whom was Suzanne Zitser, assistant public defender, for the appellant (defendant).

Julia K. Conlin, deputy assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Kevin C. Doyle, assistant state's attorney, for the appellee (state).

Opinion

MCDONALD, J.

The defendant, Shaun Rowe, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), larceny in the second degree in violation of General Statutes § 53a-123 (a) (3), carrying a pistol without a permit in violation of General Statutes § 29-35 and having a weapon in a vehicle in violation of General Statutes § 29-38. The defendant also appeals from the trial court's judgment of conviction of criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c (a) (1) and the enhancement of his sentence for having been found guilty of committing a class A, B or C felony with a firearm in violation of General Statutes § 53-202k. The defendant claims that his due process right to a fair trial was violated by the introduction of misleading consciousness of guilt evidence and improper comments by the prosecutor. We agree and reverse the judgment of the trial court.

The jury and the court reasonably could have found the following facts. At approximately 10:45 p.m. on April 30, 2001, the defendant and Antoine Odum went to the drive through window at the McDonald's restaurant on Whalley Avenue in New Haven. Odum was driving his vehicle, and the defendant was in the passenger seat. While the defendant and Odum were at the drive through window, the victim, Marquise Avery, parked his vehicle in the McDonald's parking lot and entered the restaurant. There were no other cars in the parking lot when the victim arrived. After the defendant and Odum purchased food, they parked their vehicle in the parking spot next to the victim's vehicle. When the victim exited McDonald's, the defendant told the victim to "come here." The victim responded that he did not know the defendant. The defendant then pointed a handgun at the victim and cocked it. At that point, the victim approached the vehicle and was ordered to give the defendant the chain that he was wearing around his neck and to empty his pockets.

The defendant argues on appeal that the state improperly introduced evidence relating to his consciousness of guilt, sought a jury charge on consciousness of guilt and improperly misled the jury to believe that his flight from the police on May 13, 2001, could be related only to the charges for which he was on trial.

The following facts are relevant to that issue. During its case, the state called Odum, who had pleaded guilty to the robbery and was awaiting sentencing. Before the jury, the prosecutor first established that Odum knew the defendant. He then asked what Odum did with the defendant, and Odum testified that he sold drugs with him. Odum then testified that he was present in his vehicle on April 30, 2001, when the defendant robbed the victim at gunpoint. Odum also testified that he was driving that car on May 13, 2001, when he and the defendant, along with another individual, fled from the police.

Prior to calling Odum, the prosecutor informed the court that he had instructed Odum that "we weren't going to bring out on direct anything related to the arrest on May 13, 2001, when [Odum] was with this defendant, about the defendant having narcotics because that's not an issue before the court." The prosecutor then added, "if it's brought up on cross-examination, then I may follow up on it."

Before Odum's examination had begun, the state gave defense counsel a copy of Odum's statement to the police, which was marked for identification. In Odum's statement to the police, Odum stated that he fled from the police on May 13, 2001, because he was on probation, and the defendant, also on probation, was in possession of drugs.

The state later called Officer David Rivera of the New Haven police department. Rivera testified that he was on patrol on the evening of May 13, 2001. The prosecutor asked Rivera whether he prepared a report relating to an incident on that date. While examining Rivera, the prosecutor showed him a copy of his police report, which was not marked as an exhibit. The defendant objected to the officer's testimony, arguing that there was no evidence regarding an incident occurring on May 13, 2001. The court overruled the defendant's objection. Later, the defendant stated: "For the record . . . no foundation has been laid that there is any incident so far."

Rivera then testified that he was on patrol on May 13, 2001, with two other officers. At approximately 11 p.m., Rivera observed a vehicle fail to obey a traffic signal. Rivera activated the overhead lights and siren on his police car in an attempt to stop the vehicle. When the vehicle stopped, the officers exited their cruiser and approached the vehicle. Once the officers exited their cruiser, the vehicle sped off. The officers returned to their cruiser and proceeded to follow the vehicle. After traveling a short distance, the vehicle stopped, and the three individuals inside exited and ran in different directions.

Rivera also testified that the officers pursued the individuals on foot. After chasing the driver for approximately two blocks, Rivera apprehended the defendant as the defendant was cut attempting to climb over a barbed wire fence. Odum was also in the vehicle, along with another individual. In his incident report, Rivera wrote that while chasing the defendant on foot, he observed the defendant throw a small bag to the ground. After the defendant was apprehended, Rivera retrieved the bag, in which were twenty-nine smaller bags containing a white rock-like substance that field tested as crack cocaine. According to the report, numerous empty plastic bags used to package crack cocaine were found in the vehicle.

At the close of the evidence, the state filed a request to charge, and the court instructed the jury as to consciousness of guilt on the basis of the defendant's flight on May 13, 2001. In closing argument, the defendant argued that the robbery never occurred and that the victim, who had a criminal record and whose testimony was contradicted by a police officer, was lying. He also pointed out that Odum, who had pleaded guilty to involvement in the robbery, hoped for leniency and probation because of his testimony.

During closing argument¹ and again during rebuttal argument,² the prosecutor commented on the defendant's consciousness of guilt in relation to Rivera's testimony. In its charge to the jury, the court instructed the jury on consciousness of guilt.³ During its deliberation, the jury asked to have Rivera's testimony read back before returning a guilty verdict.

The defendant claims on appeal that the consciousness of guilt evidence was misleading and that the prosecutor's comments exacerbated its prejudice. At trial, the defendant objected to the introduction of Rivera's testimony because of a "lack of foundation," but did not object to the court's instructions or the prosecutor's remarks during closing argument. Should we conclude that the defendant did not preserve his claims, he seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

Our Supreme Court has held that it is unnecessary for a defendant to seek to prevail under the specific requirements of Golding in these circumstances. State v. Stevenson, 269 Conn. 563, 572-73, 849 A.2d 626 (2004). The court explained: "The reason for this is that the touchstone for appellate review of claims of prosecutorial misconduct is a determination of whether the defendant was deprived of his right to a fair trial, and this determination must involve the application of the factors set out by this court in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987). As we stated in that case: In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court, in conformity with courts in other jurisdictions, has focused on several factors. Among them are the extent to which the misconduct was invited by defense counsel or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state's case. . . .

"Regardless of whether the defendant has objected to an incident of misconduct, a reviewing court must apply the Williams factors to the entire trial, because there is no way to determine whether the defendant was deprived of his right to a fair trial unless the misconduct is viewed in light of the entire trial. The application of the Williams factors, therefore, is identical to the third and fourth prongs of Golding, namely, whether the constitutional violation exists, and whether it was harmful. . . . Requiring the application of both Williams and Golding, therefore, would lead, as in fact has occurred in the present case, to confusion and duplication of effort. Furthermore, the application of the Golding test to unchallenged incidents of misconduct tends to encourage analysis of each incident in isolation from one another. Because the inquiry must involve the entire trial, all incidents of misconduct must be viewed in relation to one another and within the context of the entire trial. The object of the inquiry before a reviewing court in claims involving prosecutorial misconduct, therefore, is always and only the fairness of the entire trial, and not the specific incidents of misconduct...