State v. Figueroa

Page 319

810 A.2d 319

166 Conn.App. 165

STATE of Connecticut v. George FIGUEROA.

No. 22646.

Appellate Court of Connecticut.

Argued September 19, 2002.

Decided December 17, 2002.

LAVERY, C. J., and DRANGINIS and DUPONT, Js.

Richard E. Condon, Jr., assistant public defender, for the appellant (defendant).

Thomas M. DeLillo, special deputy assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Michael A. Pepper, senior assistant state's attorney, for the appellee (state).

DRANGINIS, J.

The defendant, George Figueroa, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a) and carrying a pistol or revolver without a permit in violation of General Statutes § 29-35. He was sentenced to a total effective term of sixty years incarceration. On appeal, the defendant claims that the trial court improperly directed the jury to two pages of a witness' twenty-one page statement in response to a question by the jury during its deliberations. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In the summer of 1995, the defendant and the victim, John Corbett, were involved in a physical altercation on Lilac Street in New Haven. During that altercation, Corbett hit the defendant in the face. Thereafter, the defendant retreated to his then residence at 40-42 Lilac Street, retrieved his gun and, from a window of his third floor apartment, began firing at Corbett, who was standing in the street. Corbett was not injured during that incident, which never was reported to the police.

Shortly thereafter, Corbett was incarcerated. He was released from prison sometime in November, 1997. Approximately two weeks later, on December 7, 1997, at about 2:30 p.m., Corbett was standing at the corner of Lilac and Newhall Streets, speaking with Edward Wells. After speaking with Wells for about twenty minutes, Corbett left the area but returned a short time later and resumed his conversation with Wells. The two men were standing in front of 44-46 Lilac Street when the defendant approached, driving his white 1997 Toyota Camry, which he parked in front of a red sports car that also was parked along the side of Lilac Street. The defendant got out of his car and entered the house at 40-42 Lilac Street, where his brother resided.¹

In the meantime, Ebonie Moore approached, driving her black Laser, which she parked along Lilac Street in back of the red sports car that was parked there. She and her passenger, Takheema Williams, who had dated the defendant, were sitting in Moore's car listening to music.

Thereafter, the defendant emerged from the 40-42 Lilac Street residence and stood near his car. It was at that time that Corbett told Wells that he wanted to speak with the defendant.² Corbett walked to where the defendant was standing. The two talked for a short time, they shook hands and then a shot was fired. As Corbett turned away from the defendant, he fell face down onto the sidewalk. Wells and Moore then watched as the defendant stood over Corbett, with his arm fully extended and a pistol in his hand, and fired several additional shots into Corbett's body. The defendant then walked to his white Toyota Camry, which was parked a few feet away, got into the driver's seat and sped along Lilac Street toward Newhall Street.

Wells then ran to Moore's parked car, banged on the window and yelled for Moore to call for an ambulance because, in his words, "George [the defendant] had just shot John." Moore and Williams exited the vehicle. Moore attempted to call for an ambulance on her cellular telephone. She and Wells then administered cardiopulmonary resuscitation to Corbett until the police arrived. Williams walked away from the scene. Shortly thereafter, an ambulance arrived and transported Corbett to Yale-New Haven Hospital where he was pronounced dead about eight minutes after his arrival. Corbett suffered six gunshot wounds. He was shot once in the stomach, four times in the lower back and once in the back of his left shoulder. Either or both of two of the wounds to Corbett's lower back were fatal.

Soon thereafter, Wells and Moore arrived at the hospital where they told a New Haven police detective that it was the defendant who had shot Corbett. Within the next few days, both Wells and Moore gave statements to the police implicating the defendant as the shooter and selected the defendant's photograph from a photographic array, identifying him as the man who shot Corbett. On December 10, 1997, Williams gave the police a tape-recorded statement regarding the December 7, 1997 shooting on Lilac Street.

At trial, the defendant testified that he could not have shot Corbett because he was living in New York at the time. Both Wells and Moore testified, however, that they saw the defendant shoot Corbett. Williams also testified, but her testimony was inconsistent with the tape-recorded statement that she had given to the police on December 10, 1997, just three days after the shooting.³ Accordingly, her taped statement and a twentyone page transcript of that tape were admitted into evidence as full exhibits for substantive and impeachment purposes pursuant to State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L.Ed.2d 598 (1986).⁴

On April 27, 2000, during the fifth day of jury deliberations, the jury submitted the following question to the court: "We would like to hear if Takheema Williams was ever asked and answered the question: `[D]id you see [the defendant] at the scene?'" Outside the presence of the jury, in discussing the jury's question with counsel, the court indicated that it could not find a definitive answer to that question in its notes.

Consequently, the court determined that the only way to answer the jury's question accurately was to listen to the testimony. The court and counsel then listened to Williams' in-court testimony. After doing so, the court stated that "the literal answer is no, she was never asked that question." The court went on to state, however, that Williams' Whelan statement had been admitted for substantive and impeachment purposes, and that on pages eighteen and twenty of the transcript of that statement, she did testify as to what she saw. The court then heard comment from counsel on its proposal to direct the jury to those particular pages of Williams' Whelan statement. Counsel for the state supported the court's proposal. Defense counsel did not. He argued that the court should instruct the jury only that the answer to its question is "no," but that it could consider Williams' entire Whelan statement as substantive evidence. Defense counsel specifically objected to the court's "highlighting" the portions of the statement that the court and the state believed answered the jury's question because defense counsel believed "that would be, in a sense, marshaling the evidence."

Thereafter, the court had the jury brought back to the courtroom where it explained to the jury that "[c]ounsel and I have reviewed the taped testimony of the witness, Takheema Williams, presented to you here in court, and the answer to your question: `[W]as she asked, [D]id you see [the defendant] at the scene?' is no. She was not asked during her testimony here in court." The court then went on to remind the jury that Williams' prior tape-recorded statement and the transcript of that statement were in evidence. The court referred the jury to its written copy of the court's instructions regarding the use of the Whelan statement. It then directed the jury to the tape-recorded statement and to pages eighteen and twenty of the transcript of Williams' Whelan statement, stating: "[B]ut again, it's up to you as to what weight you accord to any evidence. I just want to remind you of that." Four days later, on May 1, 2000, the jury returned a verdict of guilty as to both counts. Additional facts will be set forth as necessary.

I

The defendant claims that the court improperly referred the jury to two pages of Williams' twenty-one page Whelan statement in responding to the jury's question as to whether she had ever said that she saw the defendant at the crime scene. The defendant proffers two arguments in support of his claim. He argues that the court's response to the jury's inquiry was improper and violated his right to a fair trial because (1) the court had authority to refer the jury to Williams' in-court testimony only and lacked authority to direct the jury to Williams' Whelan statement, and (2) referring to only two pages of the twenty-one page Whelan statement constituted an improper marshaling of the evidence by the court in favor of the state. We address each of those arguments in turn.

A

The defendant first claims that the court acted beyond the scope of the authority accorded to it pursuant to Practice Book § 42-26 when it referred the jury to Williams' Whelan statement in response to the jury's question as to whether Williams ever had been asked to answer the question: "[D]id you see [the defendant] at the scene?" which violated his right to a fair trial. Specifically, he claims that because Practice Book § 422-6 authorizes the court only to respond to jury requests for a review of in-court testimony, the court acted without authority and in violation of his fundamental right to a fair trial in referring the jury to Williams' Whelan statement.

The defendant concedes that he did not preserve his claim at trial. Accordingly, he seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or, in the alternative, under the plain error doctrine. Practice Book § 60-5. Because we conclude that the record is adequate for review and that the claim is of constitutional magnitude alleging the violation of a fundamental right; see State v. Smith, 35 Conn.App. 51, 66, 644 A.2d 923 (1994); we will review the claim. W...