State v. Whipper, (SC 16181)

Citation780 A.2d 53,258 Conn. 229
Decision Date02 October 2001
Docket Number(SC 16181)
CourtSupreme Court of Connecticut
PartiesSTATE OF CONNECTICUT v. ALPHONSO WHIPPER

Sullivan, C. J., and Norcott, Katz, Vertefeuille and Zarella, Js. Kent Drager, senior assistant public defender, for the appellant (defendant).

Bruce R. Lockwood, assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Edward Ricciardi, former senior assistant state's attorney, for the appellee (state).

Opinion

VERTEFEUILLE, J.

The defendant, Alphonso Whipper, appeals from a judgment of conviction, following a jury trial, of one count each of murder in violation of General Statutes ? 53a-54a,1 felony murder in violation of General Statutes ? 53a-54c,2 and manslaughter in the first degree in violation of General Statutes ? 53a-55 (a) (1),3 and two counts of robbery in the first degree in violation of General Statutes ? 53a-134 (a) (3).4 On appeal, the defendant raises multiple challenges to the validity of his convictions. We affirm the judgment of the trial court in all respects except with regard to the felony murder conviction, and with regard to the conviction of manslaughter in the first degree, which we reverse.

The jury reasonably could have found the following facts. In February of 1996, the defendant and James Gonzalez resided at the Saint Vincent DePaul homeless shelter in Waterbury. On the night of February 21, 1996, the defendant, who had no source of income, asked Gonzalez if he wanted to go out the next day and drink beer together. Gonzalez, who recently had received a social security check for $240, agreed.

At approximately 11:30 a.m. on February 22, 1996, after drinking beer in a nearby parking lot, the defendant and Gonzalez walked to the apartment of Luz Maria Santiago, Gonzalez' former mother-in-law, located in the Trinity Apartments at 41 Prospect Street in Waterbury to continue drinking. To gain entrance to the building, the defendant and Gonzalez waited outside until someone exiting the building opened the door. After they had entered the building, a video surveillance camera located in the lobby of the building recorded the defendant and Gonzalez while they waited for an elevator to take them to the sixth floor, where Santiago lived.

To gain access to Santiago's apartment, Gonzalez, who had met the defendant two weeks earlier at the homeless shelter, introduced the defendant to Santiago as his friend whom he loved as a brother. Santiago allowed them inside and they sat down in her living room and watched television. Gonzalez gave the defendant money to purchase more beer and the defendant left the apartment to make the purchase. The video surveillance camera in the lobby of the building recorded the defendant's exit and return.

While Gonzalez, Santiago and the defendant were sitting in the living room, Santiago's boyfriend, Hilario Rosado, arrived. After Rosado greeted Santiago and Gonzalez and introduced himself to the defendant, he went into Santiago's bedroom to watch television.

Suddenly, without provocation, the defendant struck Gonzalez on his forehead with an empty beer bottle, causing Gonzalez to bleed profusely. Gonzalez, who was physically disabled, pretended to be dead. When Santiago started to scream, the defendant began to hit her. Hearing Santiago's screams, Rosado came out of the bedroom. The defendant struck Rosado in the head with a crystal vase, breaking the vase and rendering Rosado semiconscious. The defendant next grabbed Rosado around the neck with both of his hands and strangled him to death. When Santiago attempted to call the police, the defendant took the telephone from her and broke it. Santiago then opened a window and attempted to yell for help. The defendant told her that if she did not stop yelling, he would throw her from the window.

The defendant then resumed beating Santiago, breaking two radios and ajar of pickled peppers over her head in an unsuccessful attempt to render her unconscious. After obtaining a long knife from the kitchen, the defendant went over to Gonzalez and stabbed him in the head, breaking the knife. The defendant then went back into the kitchen and washed his hands. Thereafter, he returned to the living room, reached into Rosado's pants pocket and removed his wallet. The defendant took money from the wallet and then discarded it. He then reached into Gonzalez' pants pocket, removed his wallet, and, after taking money from the wallet, he tossed the wallet aside. The defendant picked up his jacket and left the apartment, fleeing down a rear stairwell. He exited the building via a rear fire door.

After the defendant left, Santiago ran to the fourth floor apartment of the superintendent of the building, Sharon Murphy. Murphy's husband called the police. After police officers arrived, they took Santiago to the Waterbury police headquarters to obtain her statement. Santiago gave Sergeant James Nardozzi her description of the attack and of the perpetrator. Nardozzi then brought Santiago back to Murphy's apartment to view the surveillance videotape from the lobby. Upon seeing the defendant on the surveillance videotape, Santiago identified him as the perpetrator.

That evening, Sergeants Joseph Flaherty and Edward Pekrul, Detective Daniel Coleman, and Officer Edward Mills, all of the Waterbury police department, went to a second floor apartment at 632 Baldwin Street in Waterbury looking for the defendant. The officers found the defendant hiding in a bedroom closet and took him into custody. The defendant's hands had fresh wounds and were bloodied. After searching the defendant, the officers seized $78, the defendant's blue jeans, his shirt, his jacket, a pair of black sweatpants, and a box of cigarettes, all of which had bloodstains on them. The officers then brought the defendant to the police station, where they took his fingerprints. At the station, officers restrained the defendant because he had become agitated. In particular, the defendant physically resisted officers when a photographer from the state police forensic laboratory attempted to take photographs of his hands.

On March 22, 1996, Sergeant John Gray of the Waterbury police department prepared a photographic array, which included a photograph of the defendant along with photographs of other men with similar facial characteristics. Gray presented the array to Santiago, who identified the defendant immediately as the perpetrator of the crimes.

After a jury trial, the jury found the defendant guilty of one count each of murder, felony murder and manslaughter in the first degree, and two counts of robbery in the first degree. The court sentenced the defendant to a total effective term of sixty years incarceration. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the trial court improperly denied his postverdict motion for a new trial, in that, against the manifest weight of the evidence and in violation of his right to a fair trial, the state improperly made the scientifically impossible argument to the jury that the test results of three blood samples, which the police had taken from the crime scene, were inculpatory to the defendant. Relying on State v. Hammond, 221 Conn. 264, 267, 604 A.2d 793 (1992), the defendant maintains that the blood test results actually exculpated him and, therefore, the trial court improperly denied his postverdict motion for a new trial. The defendant also claims that the trial court improperly denied his motion for a new trial because the state's argument to the jury?€”that the deoxyribonucleic acid (DNA) test results regarding a blood sample taken from the defendant's jeans were inculpatory to the defendant and that the jury could ignore expert testimony stating that the test was invalid?€”violated his right to a fair trial. The defendant contends that he offered undisputed expert testimony that the DNA testing conducted on the defendant's jeans had been conducted improperly and therefore was inconclusive and unreliable. The defendant maintains, therefore, that the trial court abused its discretion by denying his motion for a new trial. We disagree.

A

The following facts are necessary for our resolution of the defendant's first claim. At trial, the state offered the expert testimony of Mary Beth Raffin, the lead criminalist for the forensic biology section of the state forensic laboratory. Raffin testified generally about antigenic substances and enzymes, which are found in the blood, and the results of certain blood tests that she had conducted on various blood samples that the police had taken from the crime scene.

Raffin explained the following with regard to human blood and blood-typing. Human blood consists of two major components, red blood cells and white blood cells. Generally, blood contains far more red blood cells than white blood cells, usually at a ratio of 1000 red blood cells to 1 white blood cell. Antigenic substances, which are distinguished by a combination of the letters A, B and 0, are found on the surface of the red blood cells. Enzymes, which are made of protein, are contained inside the red blood cells. Certain enzymes differ from person to person.

Raffin used different tests to identify the type of blood contained in the blood samples submitted to her by the state. First, she tested blood taken from the defendant, Gonzalez, Rosado and Santiago, as well as the blood samples taken from the crime scene and the defendant's clothing, to determine the blood types based on the antigenic substances from the red blood cells. Because the results revealed that all had type 0 blood, Raffin next tested the blood samples to determine blood types based on the enzyme phosphoglucomutase (PGM), which is found in ten different types. Raffin's testing showed that the defendant had a PGM type of 2+, 1+. Rosado's PGM type was 1+. Gonzalez and Santiago...

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