State v. Shanks

• Decision Date: 09 June 1994
• Docket Number: No. 11633,11633
• Citation: 640 A.2d 155,34 Conn.App. 103
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Vernon SHANKS.

Page 155

640 A.2d 155

34 Conn.App. 103

STATE of Connecticut v. Vernon SHANKS.

No. 11633.

Appellate Court of Connecticut.

Argued Nov. 1, 1993.

Decided April 12, 1994.

Certification Denied June 9, 1994.

Brian J. Kornblath, with whom were Lisa M. Sosa, Certified Legal Intern, and, on the brief, Timothy H. Everett and Julie E. Daniele, Certified Legal Intern, for the appellant (defendant).

Frederick W. Fawcett, Assistant State's Attorney, with whom, on the brief, were Donald A. Browne, State's Attorney, and John C. Smriga, Assistant State's Attorney, for the appellee (state).

Before LANDAU, FREDERICK A. FREEDMAN and SCHALLER, JJ.

SCHALLER, Associate Judge.

The defendant, Vernon Shanks, appeals from the judgment of conviction, ¹ rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59(a)(1), ² and of carrying a pistol without a permit in violation of General Statutes § 29-35. ³ The defendant presents the two following issues on appeal: (1) whether the trial court improperly failed to grant the defendant's motion for a new trial without conducting any further inquiry to determine whether alleged prosecutorial misconduct had prejudiced the jury; and (2) whether the trial court improperly instructed the jury by failing to relate the law to the facts of the case with regard to the elements of assault in the first degree, the identification of the perpetrator and the credibility of the witnesses. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In 1991, Robert Cosme, the victim, lived at the Marina Apartments on Main Street in Bridgeport, across the street from Coamo's Bar. Cosme and James Peace, whose mother also lived at the Marina Apartments, had been involved for several years in a dispute. Peace had been convicted of stealing Cosme's car. After Peace's release from prison, he and Cosme had a fight; both men were arrested and placed on probation. Approximately two weeks prior to June 8, 1991, Peace and Cosme argued because Peace's vehicle was allegedly blocking Cosme's vehicle. The defendant witnessed this argument, and laughed at Cosme.

On June 8, 1991, Cosme was at Coamo's Bar from about 8 p.m. until 11:30 p.m. As Cosme left the bar, he noticed that the defendant was standing outside of the bar, talking with a woman. Cosme approached the defendant and asked him why he had laughed at him during his argument with Peace. The defendant responded that he had nothing to do with that incident, and stated, "You think I'm fucking around, Robert, you think I'm fucking around. I'll be back."

Cosme perceived the defendant's words as a threat. He went to his apartment to get a knife and returned to the area where he had met the defendant. ⁴ The defendant, however, was no longer standing outside the bar. Cosme took the knife back to his apartment and then returned to the bar for approximately ten to twenty minutes. When Cosme crossed the street on the way to his apartment, he heard someone call "Hey, Robert." Cosme looked in the direction of the voice and saw the defendant holding a 9 millimeter handgun. The defendant fired three shots at Cosme. The third shot struck Cosme in the right thigh, seriously fracturing his femur. Cosme spent the next three weeks recuperating at Park City Hospital.

The day after the incident, Detective Gregory Iamartino of the Bridgeport police department spoke with Cosme at the hospital. Cosme provided Iamartino with a description of the defendant and the name "Vernon." On June 16, 1991, in response to a phone call from Cosme, Iamartino sent a patrol car to the area of Main and Whiting Streets, where Officer Paul Nikola identified the defendant as having the first name "Vernon" and meeting the physical description provided by Cosme. Nikola then contacted Iamartino, who went to the scene. Iamartino informed the defendant that he was a suspect in the shooting, and asked if the defendant would go with him to the police station and give a statement. The defendant agreed. While at the police station, Iamartino took two photographs of the defendant.

Iamartino placed the photographs of the defendant in an album containing approximately fifty other photographs. He then gave the album to Cosme, who, without hesitation, chose the photographs of the defendant as being of the person who had shot him. Iamartino then applied for an arrest warrant and subsequently arrested the defendant.

I

The defendant first contends that we should remand this case to the trial court for a new hearing on his motion for a new trial due to alleged prosecutorial misconduct that may have prejudiced the jury. The following additional facts are relevant to this claim. Pamela Stewart, a Bridgeport police officer, was a member of the jury. On cross-examination of the defendant, the prosecutor asked the defendant if he knew someone by the name of Victor Martinez ⁵ or "Ears" Martinez. The defendant denied any personal knowledge of this individual, as the following colloquy ensued:

"[State's Attorney]: Now, in addition to the job that you have, did you have any other jobs in the area of Main and Whiting?

"[Witness]: No, sir.

"[State's Attorney]: You worked for a man named Ears at that location?

"[Witness]: No, sir.

"[State's Attorney]: You know a man named Ears that works out on Main Whiting Street.

"[Witness]: No, sir.

"[State's Attorney]: Do you know a man named Victor Martinez that works out there, sir?

"[Witness]: No, sir.

"[State's Attorney]: Ever heard that name before?

"[Witness]: Yes, sir. I believe I heard that name before."

Defense counsel did not object to this cross-examination. On redirect of the defendant, defense counsel touched on the defendant's knowledge of Ears and Victor Martinez. This exchange occurred:

"[Defense Counsel]: Are they known drug dealers?

"[Witness]: Yes, sir. They are.

"[Defense Counsel]: Have you ever dealt drugs?

"[Witness]: No, sir."

At the hearing on the defendant's motion for a new trial, which, as written, concerned the testimony of one witness, the twelve year old daughter of the victim, counsel for the defense also presented the following: "I would like to make an additional comment, however, on the motion for a new trial. It wasn't until I read the presentence investigation that I realized the potential net effect, disastrous effect, the mention of Mr. Hector Martinez may have had in this trial. As the court is aware, I selected a Bridgeport police officer [Stewart] as a member of this jury and all in all I thought it was a good choice.... There was a question that I thought ... was fair game--are you associated with Hector Martinez--do you know Hector Martinez? I didn't know who he was and the witness answered no, he didn't. And we went on. But now it turns out that Hector Martinez apparently was known by the entire ... Bridgeport police department as the person that assaulted Sergeant Louis Piccirillo during a drug raid or during some type of an outburst at one of the housing projects. I can only speculate on this argument. It would seem if he was that popular a character and perhaps by innuendo or whatever, Mr. Shanks, even though he denied his association with this Hector Martinez, that name ... would obviously, one would think, be knowledge to other police officers on the department. I don't know what effect that had, Your Honor. I can only say that it would appear as though, because of the ... assault on Louis Piccirillo, [Stewart], who's been ... [a member of the Bridgeport police department] a long time, I'm sure knows Piccirillo and ... Martinez, who apparently is a bad, real bad character, and ultimately has been arrested for the assault on Louis Piccirillo, [and] may have had an effect on that juror's ... thinking processes and one would suspect ... that outside agency would have influenced the deliberation process of that juror. And in all other respects I stand on what was contained in the written motion...." ⁶

"When the verdict in a criminal case is challenged on the basis of allegedly prejudicial remarks made by the prosecutor, the defendant bears the burden of proving such prejudice within the context of the trial as a whole. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct. State v. Evans, supra, [10 Conn.App. 605] 608, quoting State v. Binet, 192 Conn. 618, 628, 473 A.2d 1200 (1984)." (Internal quotation marks omitted.) State v. Wilson-Bey, 21 Conn.App. 162, 171, 572 A.2d 372, cert. denied, 215 Conn. 806, 576 A.2d 537 (1990). While the defendant bears the burden of proof in this matter, "[a] state's attorney should scrupulously avoid questions of probable impropriety.... State v. Piskorski, 177 Conn. 677, 719-20, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S.Ct. 283, 62 L.Ed.2d 194 (1979). A demonstrated deliberate effort by a prosecutor to influence the jury against the defendant through the attempted introduction of obviously inadmissible evidence may entitle the defendant to a new trial. United States v. Woods, 486 F.2d 172 (8th Cir. [1973]; State v. Hafner, 168 Conn. 230, 249, 362 A.2d 925, cert. denied, 423 U.S. 851, 96 S.Ct. 95, 46 L.Ed.2d 74 ( [1975]. State v. Baker, 182 Conn. 52, 58, 437 A.2d 843 (1980)." (Internal quotation marks omitted.) State v. Binet, supra, 192 Conn. at 629, 473 A.2d 1200.

At best, the above exposition by defense counsel during the hearing on a motion for a new trial is an offer of proof. The defendant, however, discussed how an "outside agency" may have impacted the jury decision without presenting any proof of the extrinsic matter claimed to affect the jury. In the appendix of the defendant's brief for this court, he included copies of three newspaper articles and the affidavit in support of an arrest warrant for Hector Martinez, all of which concern the...