State v. Campbell

STATE OF CONNECTICUT v. KEVIN PATRICK CAMPBELL

AC 35571

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued November 12, 2013

Officially released April 15, 2014

The "officially released" date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the "officially released" date appearing in the opinion. In no event will any such motions be accepted before the "officially released" date.

All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative.

The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.Gruendel, Bear and Flynn, Js.

(Appeal from Superior Court, judicial district of

Litchfield, Ginocchio, J.)

Moira L. Buckley, for the appellant (defendant.)

Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were David M. Shepack, state's attorney, and Dawn G. Gallo, senior assistant state's attorney, for the appellee (state).

Opinion

GRUENDEL, J. The defendant, Kevin Patrick Campbell, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a, as enhanced by General Statutes § 53-202k for having used a firearm. On appeal, the defendant claims that (1) the court improperly marshaled evidence during the jury charge; (2) the court abused its discretion in granting the state's request to make a missing witness argument; (3) the court erroneously precluded the testimony of proffered defense expert witnesses, Peter Morgan and Gregory Danas; and (4) prosecutorial impropriety deprived the defendant of a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On June 27, 2008, the five members of a group called the Forbidden Motorcycle Club (club) held a weekly meeting at their clubhouse in Torrington. The members of this group included the victim, Roland Lagasse; the defendant; the defendant's brother, James Campbell (Campbell); Eugene Thebarge; and Jerome Welsh. These members sat around a table to discuss "usual club stuff . . . about what happened [in] previous weeks, what club members have done, [and to] pay dues." After finishing with old business, they moved on to new business. The victim announced that Welsh would receive his one year patch, demonstrating that he had fulfilled all his duties associated with the club. An argument thereafter ensued between the victim and Campbell.¹ Thebarge testified that "[the victim] was trying to make a point . . . and [Campbell] kept seeming to interrupt him." The defendant "would chime in once in a while to [Campbell's] defense to help [Campbell] make his point." The victim "started to get a little steamed, a little angry" and "after [the victim] got fed up with [Campbell] interrupting him, he said, 'Do you want to step outside and settle this old school?' " and Campbell said, "Yeah, if that's what you wanna do." The defendant also got up and said, "Yeah, I'll go outside." All five members then went outside, led by the victim. The victim then "struck [Campbell] with his right hand on the left temple . . . knocking [him] up against the building, where [he] hit the building and slid down." "[A]fter [the victim] knocked [Campbell] against the building . . . [the defendant] was approaching, and [the victim] . . . [said] 'What, you want some too?' [The defendant said] 'Yeah, I want some . . . you fucked up now, you're a dead man.' " Thebarge further testified that as the defendant was making that statement, he saw the defendant "kind of fumbling around on the right side . . . and that's when the pistol came out, and [he] kind of cocked his head forward, drew the pistol up straight, and then pulled the trigger."² The victim then stumbled back a step or step and a half and fell backward. Thebarge asked thedefendant, "What . . . did you do . . . ?" And the defendant said, "I . . . killed him." Thebarge began cardiopulmonary resuscitation on the victim and told his fiancé, Jennifer Mercado, to call 911. Police officers arrived shortly thereafter and asked who the shooter was, to which the defendant replied, "I am."

The defendant thereafter was arrested and charged with murder with a firearm. The case proceeded to a jury trial, after which the jury found the defendant guilty. The court rendered judgment accordingly and sentenced him to a total effective term of thirty-five years incarceration, with a five year enhancement, for a total effective sentence of forty years. This appeal followed.

I

The defendant first claims that the court improperly marshaled evidence during the jury charge, which he argues deprived him of his constitutional right to a fair trial. Assuming, without deciding, that the court improperly marshaled evidence, we conclude that, in considering the charge as a whole, the error was harmless.

The following additional facts are relevant to this claim. The defendant testified that the victim first hit Campbell with three or four quick punches to the head until he fell to the ground. The victim then continued to hit and kick Campbell while he was down. According to the defendant, Thebarge also was standing nearby, with brass knuckles in his right hand, striking his fist into his left palm. The defendant told the victim, twice, to stop hitting Campbell, and after the second time, the victim charged at the defendant asking him, "you want some too?" After the victim hit the defendant, the defendant reached for the gun in the waistband of his pants. The defendant testified that he drew his gun in order to stop any further violence, but that he did not intend to shoot it. Rather, he stated that he caused the victim's death accidentally when the gun went off unintentionally. As an alternative to the lack of intent defense, the defendant also claimed that he was acting in selfdefense.

In its charge to the jury, the court instructed: "You must follow all my instructions and not single out some and ignore others. They are all equally important. You are the sole judges of the facts. It is your duty to find the facts. You are to recollect and weigh the evidence and form your own conclusions as to what the ultimate facts are." The court cautioned: "In this case the defendant testified. An accused person having testified, stands before you just like any other witness. . . . You have no right to disregard his testimony or to disbelieve his testimony merely because he is accused of a crime."

The court then addressed the substance of the murder charge against the defendant, stating: "I will nowinstruct you on the law applicable to the charge of murder. Following that I will instruct you on the elements of what are called the lesser included offenses. And as I will advise you further, as I address such offenses, you are to consider . . . any of them only in the event that you find the defendant not guilty of the charge of murder. . . . A person is guilty of murder when with intent to cause the death of another person he causes the death of such person." The court went on to address each element of the crime of murder with a firearm, and the state's burden to prove each element. It further detailed the issue of self-defense and its application to the charge of murder.

The court thereafter addressed the lesser included offenses of manslaughter in the first and second degrees with a firearm, again instructing the jury that it must find that the defendant was not guilty of murder before considering the lesser included offenses. In its instructions on the lesser included offenses, the court addressed the first element required for the state to prove a person guilty of manslaughter in the first degree: "The first element is that the defendant engaged in conduct that created a grave risk of death. Pointing a loaded weapon at another person may be considered conduct that inherently creates a risk of death. The inference is not a necessary one." It further explained: "Displaying a loaded gun that accidentally discharges, even without the intent to achieve a wrongful purpose, may provide evidence of lack of due care sufficient to support a finding of reckless criminal culpability. . . . The state of mind amounting to recklessness may be inferred from conduct. The inference is not a necessary one."

"The standard of review for a challenge to the propriety of a jury instruction is well established. [J]ury instructions are to be read as a whole, and instructions claimed to be improper are read in the context of the entire charge. . . . A jury charge is to be considered from the standpoint of its effect on the jury in guiding it to a correct verdict. . . . The test to determine if a jury charge is proper is whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . [I]nstructions to the jury need not be in the precise language of a request. . . . Moreover, [j]ury instructions need not be exhaustive, perfect or technically accurate, so long as they are correct in law, adapted to...