State v. Gibson

969 A.2d 784

114 Conn.App. 295

STATE of Connecticut v. Gary D. GIBSON.

No. 28273.

Appellate Court of Connecticut.

Argued December 1, 2008.

Decided May 12, 2009.

David B. Rozwaski, special public defender, for the appellant (defendant).

Timothy F. Costello, deputy assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Christian M. Watson, former assistant state's attorney, for the appellee (state).

BISHOP, GRUENDEL and ROBINSON, Js.

ROBINSON, J.

The defendant, Gary D. Gibson, appeals from the judgment of conviction, rendered after a jury trial, of failure to appear in the first degree in violation of General Statutes § 53a-172 (a)(1) and the judgment of the trial court, rendered following a hearing, revoking his probation pursuant to General Statutes § 53a-32 and imposing the remainder of his sentence. On appeal, the defendant claims that (1) there was insufficient evidence to support his conviction of failure to appear in the first degree and (2) the court incorrectly found that he violated his probation. The defendant additionally claims that impropriety by the prosecutor violated his constitutional right to a fair trial. We agree with the defendant's allegation of prosecutorial impropriety and, accordingly, reverse the conviction on the count of failure to appear in the first degree and remand the matter for a new trial. We affirm the judgment of the court in regard to the finding of violation of probation.

A warrant was issued for the defendant's arrest on November 28, 2005, charging him with stalking in the first degree under General Statutes § 53a-181c.¹ The defendant previously had been convicted of stalking in the second degree under General Statutes § 53a-181d on March 19, 2003, and his sentence included imprisonment followed by a two year period of probation.² Following his 2005 arrest, bond was set at $25,000 on the warrant, and the defendant was arraigned on December 12, 2005.

The record reveals the following facts underlying the November 28, 2005 stalking charge. The victim, who was the same victim in the case resulting in the defendant's 2003 stalking conviction, had arrived at Stop & Shop in Bristol on the evening of October 23, 2005, when he noticed a blue Jeep Liberty backed into a parking space along Pine Street. When the victim left Stop & Shop a few minutes later, he noticed that the Jeep was behind him, appeared to follow him to a Citgo gasoline station and continued to follow him as he proceeded home. The victim testified that he recognized the driver of the Jeep as the defendant because the defendant was the person who had been convicted of stalking him on a previous occasion. The defendant was found not guilty on the stalking charge. The defendant was found guilty, however, of failure to appear in the first degree. The basis of the failure to appear charge is as follows. As part of the pretrial proceedings associated with the defendant's stalking charge, the defendant was scheduled to appear in court on April 4, 2006. That appearance, before the court, Dunnell, J., consisted only of a brief exchange between the attorneys and the court.

"[The Prosecutor]: Twenty, twenty-one, pretrial docket, [the defendant].

"[Defense Counsel]: Good morning, Your Honor. Frank Canace for [the defendant]. I spoke with the state yesterday. I think we're looking for a date for victim's contact?

"[The Prosecutor]: Yes.

"[Defense Counsel]: May I have May 5, if that's convenient with the court?

"The Court: May 5?

"[Defense Counsel]: Yes, ma'am.

"The Court: Yes."

On May 5, 2006, however, the defendant did not appear in court. The defendant's attorney stated: "Your Honor, I have no way of contacting him. He knew today was the court date. I don't know why he wouldn't show up other than the fact that I believe it was going to go on the trial list today." The state requested a rearrest, and the court ordered the defendant rearrested. The bond was called and ordered forfeited by the court, and a new bond of $300,000 was set. After being notified that there was a warrant out for his arrest, the defendant turned himself in to the police on May 11, 2006. He was convicted of failure to appear in the first degree on September 26, 2006, and, after a hearing, was found by the court to be in violation of his probation on October 4, 2006. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that there was insufficient evidence to support his conviction of failure to appear in the first degree. The defendant specifically claims that the state did not prove that his failure to appear in court on May 5, 2006 was wilful. As we conclude that this is an issue of credibility, we disagree.

The following additional facts are relevant to the defendant's claim. The defendant testified that approximately three weeks after his April 4, 2006 court date, he entered into the calendar on his cellular telephone the date of May 16, 2006, as his next court date. He testified: "I didn't write it down then I left court that day, and, apparently, I just forgot it, and I—for some reason, I thought May 16 was [the] court date [and] about three weeks later, and I entered it in my cell phone. And I thought for sure that was the court date from then on."

We first set forth the standard of review with regard to a sufficiency of the evidence claim. "In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt....

"We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proven beyond a reasonable doubt.... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all of the elements of the crime charged beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Jason B., 111 Conn.App. 359, 363, 958 A.2d 1266 (2008), cert. denied, 290 Conn. 904, 962 A.2d 794 (2009).

General Statutes § 53a-172 sets forth the elements of the crime of failure to appear in the first degree. "[A] person is guilty of failure to appear in the first degree when (1) while charged with the commission of a felony and while out on bail ... he wilfully fails to appear when legally called according to the terms of his bail bond...." General Statutes § 53a-172 (a). "[T]he word wilful means doing a forbidden act purposefully in violation of the law. It means that the defendant acted intentionally in the sense that his conduct was voluntary and not inadvertent.... Thus, wilful misconduct is intentional misconduct, which is conduct done purposefully ...." (Emphasis in original; internal quotation marks omitted.) State v. Outlaw, 108 Conn.App. 772, 777, 949 A.2d 544, cert. denied, 289 Conn. 915, 957 A.2d 880 (2008). "In order to prove the wilful element of ... § 53a-172, the state must prove beyond a reasonable doubt either that the defendant received and deliberately ignored a notice to appear or that he intentionally embarked on a course of conduct designed to prevent him from receiving such notice." (Internal quotation marks omitted.) State v. Laws, 39 Conn.App. 816, 819, 668 A.2d 392 (1995), cert. denied, 236 Conn. 914, 673 A.2d 1143 (1996). "Because direct evidence of the accused's state of mind is rarely available ... intent is often inferred from conduct ... and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom." (Internal quotation marks omitted.) State v. Rice, 105 Conn.App. 103, 108, 936 A.2d 694 (2007), cert. denied, 285 Conn. 921, 943 A.2d 1101 (2008).

Sufficient evidence was presented at trial to sustain the defendant's conviction of failure to appear in the first degree. During its case-in-chief, the state placed in evidence the transcript of the defendant's April 4, 2006 court appearance. The defendant testified that he was present in court on April 4, 2006, when his attorney requested May 5, 2006, as the next court date. The date of the defendant's next court appearance was stated twice on the record in the defendant's presence, once by his attorney and once by the court. On April 4, 2006, the defendant's attorney stated that the purpose of the defendant's May 5, 2006 court appearance was for "victim contact." The state argued during its rebuttal that the fact that "victim contact" was scheduled for May 5, 2006, gave the defendant a reason to not appear in court intentionally on that date because at that point, the prosecutors would likely choose to move forward with the case, and the defendant was acutely aware of this, given his prior stalking conviction. The defendant did not contact his attorney or the court at any point after April 4 to confirm his May court date.³

Under the standard of review applicable to the facts of this case, the jury reasonably could have found, on the basis of the evidence presented and the reasonable inferences to be drawn therefrom, that the defendant's actions were intentional and that he therefore wilfully failed to appear in court on May 5, 2006. Moreover, although the jurors could have accepted the defendant's uncorroborated testimony that he mistakenly believed that his court date was actually May 16, 2006, they did not.

We note that the trial judge acknowledged that this was a very...