State v. Wilson, 18631.
| Decision Date | 30 April 2013 |
| Docket Number | No. 18631.,18631. |
| Citation | 308 Conn. 412,64 A.3d 91 |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. Donald Curtis WILSON. |
OPINION TEXT STARTS HERE
G. Douglas Nash, assigned counsel, for the appellant (defendant).
Timothy J. Sugrue, assistant state's attorney, with whom were Richard J. Colangelo, Jr., senior assistant state's attorney, and, on the brief, David I. Cohen, state's attorney, for the appellee (state).
ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, HARPER and VERTEFEUILLE, Js.*
The defendant, Donald Curtis Wilson, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a–54a.1 On appeal, the defendant claims that the trial court improperly (1) curtailed defense counsel's cross-examination of a jailhouse informant regarding the maximum sentence the informant faced on pending felony charges at the time he incriminated the defendant in violation of the defendant's constitutional right of confrontation and the state rules of evidence, (2) allowed inadmissible hearsay from the informant that his parole officer supported his application for a sentence modification in violation of the defendant's constitutional right of confrontation, and (3) admitted into evidence testimony regarding the defendant's gang membership. In addition, the defendant claims that the assistant state's attorney (prosecutor) engaged in prosecutorial impropriety during his cross-examination of the defendant's expert witness and during closing argument, thereby depriving the defendant of his due process right to a fair trial. We affirm the judgment of the trial court.
The jury reasonably could have found the following facts. On the night of December 25, 2007, the defendant shot and killed Larry Paulk (victim). That evening, several members of the Paulk family had gathered to celebrate the holiday at the home of the victim's mother at a housing complex in Norwalk. In attendance were two of the victim's brothers, Fred Paulk (Fred) and Ozell Paulk, and their wives and children. When Fred arrived at the complex, he noticed the defendant standing alone in front of the building. Fred had known the defendant since the defendant was a young child, and the two exchanged Christmas greetings.
Fred's son, Derrick Paulk (Derrick), arrived shortly after his father. As Derrick climbed the stairs to his grandmother's second floor apartment, he passed the defendant, who appeared to be selling drugs to a person named Kenny Jackson. Upon arriving at the party, Derrick said something to his father and the victim, which caused the victim to stand up and walk out the door. When the victim emerged from the apartment, Jackson and the defendant, who were now outside the apartmentdoor, left the area, but the victim followed them down the stairs and into the vestibule. There, Jackson and the defendant met Jason Gonzalez. Gonzalez and the victim exchanged words, and a fight broke out, during which Gonzalez drew a gun. Upstairs in his mother's apartment, Fred heard gunshots and ran to a second floor balcony that overlooked the vestibule. Below, he saw the victim fighting with Gonzalez over something in Gonzalez' hands. Fred also observed a young woman, later identified as Kim Martinez, holding Gonzalez around the waist, trying to restrain him and shouting for him to stop.
Two witnesses gave conflicting testimony as to the defendant's location during the fight. Fred testified that the defendant stood in the doorway with his back to the open door. At some point, Gonzalez and the victim broke apart from each other, causing Gonzalez and Martinez to fall to the floor and the victim to fall back against a wall of mailboxes. When Fred looked toward the doorway, he saw the defendant aiming the gun at the victim. Fred shouted for the defendant not to shoot. In response, the defendant looked directly at Fred but then turned and shot the victim, who collapsed onto Gonzalez. The defendant then grabbed Gonzalez, and the two fled from the scene.
A first floor resident, Barbara Thivierge, was also in the vestibule during the shooting. Thivierge testified that the defendant was standing near Gonzalez when the fight began but ended up next to her by a set of windows bordering the front door. Thivierge tried to escape but her shirt got caught on the front door latch and ripped, preventing her from leaving just as she heard the last shot. When Thivierge turned to look behind her, she saw Gonzalez slide out from underneath the victim. Unable to move, Thivierge held the door for Gonzalez and the defendant, who ran through it.
A police investigation of the crime scene resulted in the discovery of three spent .40 caliber Smith & Wesson cartridge casings. One bullet, which had struck a first floor resident's front door, was recovered at the crime scene. Two others were recovered from the victim's body. All three bullets were fired from the same handgun, which the state's firearms expert testified was almost certainly a Glock, but no gun was ever recovered.
The defendant was charged with the victim's murder on January 2, 2008, and subsequently was tried for that offense.2 The defendant did not testify at his trial. The jury in the defendant's first trial was unable to reach a verdict, and a mistrial was declared on May 8, 2009. The present appeal arises from the second trial of the defendant in which the jury returned a verdict of guilty of the crime of murder on October 9, 2009. Additional facts will be set forth as necessary in the context of the defendant's specific claims on appeal.
The defendant first claims that defense counsel's cross-examination of James F. McGourn, the state's jailhouse informant, was improperly curtailed when the court precluded counsel from asking McGourn about the maximum possible penalty he faced on his pending criminal charges. The defendant argues that (1) the trial court violated his right of confrontation by unduly restricting defense counsel's ability to attack McGourn's credibility through impeachment, (2) the trial court abused its discretion by precluding the impeachment evidence as irrelevant, and (3) such error, irrespective of whether it is determined to be evidentiary or constitutional, is harmful and warrants a new trial. The state responds that the defendant's right to confront McGourn was not infringed because defense counsel was permitted to adduce ample evidence from which the jury could infer any bias, motive or incentiveof McGourn to testify falsely. With respect to the evidentiary claim, the state contends that the trial court did not abuse its discretion by precluding cross-examination into McGourn's maximum potential sentence because the court reasonably could have concluded that the evidence, although relevant, was unduly prejudicial. In the alternative, the state asserts that, even if the trial court's ruling were an abuse of discretion, such error was harmless. Because we assume, arguendo, that there was constitutional error but nevertheless conclude that the impropriety was not harmful, we reject the defendant's claim that such impropriety would compel a new trial.
We set forth the following additional facts that are relevant to our resolution of this claim. On January 3, 2008, the defendant was arraigned on the murder charge before the trial court and transferred to the Bridgeport correctional center, where he shared a prison cell with McGourn for approximately one week. McGourn, who previously had been convicted of twelve felonies, was awaiting trial on pending felony charges. On January 16, 2008, McGourn contacted the Norwalk police department to report that, while he and the defendant were cellmates, the defendant confessed to shooting the victim. At trial, McGourn admitted that he shared this information with the police in an attempt to obtain favorable treatment from prosecutors on his pending charges.
During cross-examination, defense counsel sought to elicit McGourn's “maximum possible exposure” for the felony conviction to which he ultimately pleaded guilty on May 8, 2008, but the trial court sustained the prosecutor's objection to this question on relevancy grounds.3 Nevertheless, McGourn testified on cross-examination that, before he had encountered the defendant, the state had offered him a sentence of two and one-half years but that he ultimately “pled out to two.” Defense counsel further elicited from McGourn that his May 8, 2008 conviction was his thirteenth and that it resulted in a “flat” two year sentence, with no probation.
After serving the first year of his sentence, McGourn was released on parole and obtained employment in Massachusetts. McGourn, however, could not leave the state of Connecticut without violating the terms of his parole, so he filed a motion for sentence modification, seeking early termination of parole. Although McGourn testified that he was offered “[n]o promises; no deals,” from the state, and that he ultimately received no deal, he admitted that his motion for sentence modification was granted on April 6, 2009, prior to his testimony in the defendant's first trial on April 30, 2009. As a result, McGourn's parole was terminated after only one year, and he was permitted to, and did, move out of state. McGourn agreed with defense counsel's characterization that he was a “jailhouse snitch” with “a long list of felony convictions....” Because of McGourn's status as an informant, the trial court gave a special credibility instruction in its final charge to the jury, admonishing the jury to “review the testimony of an informant with particular scrutiny and weigh it with greater care than you would the testimony of an ordinary witness ... in light of any motive he may have for testifying falsely and inculpating the accused.” 4
Assuming, without deciding, that the trial court's curtailment of defense counsel's cross-examination of McGourn amounted to constitutional error, we begin by considering...
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