State v. Gonzalez

941 A.2d 989

106 Conn.App. 238

STATE of Connecticut v. Angel GONZALEZ.

No. 27820.

Appellate Court of Connecticut.

Argued September 17, 2007.

Decided March 11, 2008.

Christopher M. Neary, special public defender, for the appellant (defendant).

Nancy L. Chupak, assistant state's attorney, with whom, on the brief, were James E. Thomas, former state's attorney, and David L. Zagaja, assistant state's attorney, for the appellee (state).

BISHOP, DiPENTIMA and FREEDMAN, Js.

DiPENTIMA, J.

The defendant, Angel Gonzalez, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes 53a-54a. On appeal, the defendant claims that the trial court (1) failed to provide the jury with a special credibility instruction with respect to jailhouse informants, (2) improperly admitted into evidence certain hearsay testimony, (3) improperly instructed the jury, (4) improperly admitted evidence pertaining to motive, (5) improperly denied the defendant's motion for a new trial and (6) improperly permitted the state to question a witness with respect to the issue of alibi.¹ We are not persuaded by any of the defendant's claims and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts relating to two separate homicides. The first homicide occurred on the evening of November 15, 2003. Detective Michael Sheldon of the Hartford police department participated in the investigation of this crime, which occurred in the area of Farmington Avenue in Hartford. In this shooting, Smaely Tineo shot and killed Michael Zuckowski, also known as "Psyche." Zuckowski and Lamar Williams, the victim in the present case, were friends. During his investigation, Sheldon learned that the victim was seen removing a shotgun from the scene at Farmington Avenue and handing it to Jasenia Rodriguez, who had witnessed Tineo shoot Zuckowski.² Rodriguez was frightened and, following the victim's instructions, took the shotgun to her home. The victim retrieved the shotgun later that night. Sheldon also became aware that Tineo "hung out" and "was friends" with a person known as "Clowny," who was later identified as the defendant. About one hour after the shooting of Zuckowski, a video camera at a Taco Bell restaurant recorded the defendant, who performed at children's parties as a clown, riding his unicycle while wearing his clown attire in a parking lot across the street from the Zuckowski-murder scene.

With respect to the second homicide, which led to the prosecution that is the subject of this appeal, the jury reasonably could have found the following facts. During the early morning hours of November 16, 2003, Robert Riley went to 198-200 South Marshall Street in Hartford to purchase drugs from the victim. Riley, the victim and another person were in the hallway conducting their transaction while a fourth individual, Anthony Mickens, went upstairs. The defendant, wearing a mask, entered the building and shot the victim two times. Officer Michael Kot of the Hartford police department arrived on the scene and found the victim on a landing with no pulse and dilated pupils. It was later determined that the victim died as a result of bleeding from his gunshot wounds. The defendant was arrested on December 9, 2003, for this shooting.

The jury found the defendant guilty of murder. The court sentenced the defendant to a total effective term of forty-two years incarceration. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court failed to provide the jury with a special credibility instruction with respect to jailhouse informants. Specifically, he argues that the failure to provide the jury with such an instruction deprived him of his right to due process under both the state and federal constitutions.³ We disagree.

The following additional facts are necessary for our discussion. Charles McClairen testified that he had a felony narcotics conviction in 2000, and, at the time of his testimony, had pending charges of sale of a controlled substance and robbery in the first degree. McClairen knew the defendant as "Clown." While incarcerated, McClairen spoke with the defendant in late March or early April, 2003, and the defendant opined that he would not be convicted because the state would not be able to use an individual known as "Butter" as a witness against him. According to the defendant, without Butter's testimony, the state's case would fail. Later that day, after the defendant returned to the lockup from a court proceeding, he appeared dejected because his case was going to proceed. The defendant then told McClairen that he had shot a person on South Marshall Street.⁴

Trevor Bennett testified that he had been convicted of a felony in 1999 and had several pending charges relating to a stolen firearm, as well as a violation of his probation. He also knew the defendant as "Clown." The defendant and Bennett were cell mates in January, 2004. The defendant told Bennett that he and Tineo were "like brothers" and that Tineo was responsible for Zuckowski's death. Bennett also testified that the defendant admitted to having killed the victim.⁵

During a colloquy between the court and counsel regarding the jury instruction, the court indicated that it had a change to the "usual" charge with respect to the credibility of witnesses. It then inquired whether either party had any objection. Both the prosecutor and defense counsel expressly indicated that there was no objection to the court's charge. Following the conclusion of the jury charge, defense counsel raised a solitary objection to the charge as it pertained to the issue of consciousness of guilt. He did not raise any objection with respect to the issue of the credibility of witnesses.

As a preliminary matter, we must determine whether the defendant preserved this claim for appellate review. The defendant concedes that "no specific request was made by defense counsel for an instruction regarding jailhouse informants in the manner of Patterson."⁶ He then states that because the court altered its charge with respect to the issue of credibility of witnesses, the Patterson issue was preserved. The state disagrees with the defendant's arguments and maintains that the issue is not preserved. We agree with the state.

Our Supreme Court has stated: "It is well settled, therefore, that a party may preserve for appeal a claim that an instruction, which was proper to give, was nonetheless defective either by: (1) submitting a written request to charge covering the matter; or (2) taking an exception to the charge as given . . . . Moreover, the submission of a request to charge covering the matter at issue preserves a claim that the trial court improperly failed to give an instruction on that matter. . . In each of these instances, the trial court has been put on notice and afforded a timely opportunity to remedy the error . . . It does not follow, however, that a request to charge addressed to the subject matter generally, but which omits an instruction on a specific component, preserves a claim that the trial court's instruction regarding that component was defective." (Citations omitted; emphasis added.) State v. Ramos, 261 Conn. 156, 170-71, 801 A.2d 788 (2002); State v. William C., 71 Conn. App. 47, 76, 801 A.2d 823 (2002), rev'd on other grounds, 267 Conn. 686, 841 A.2d 1144 (2004); see also Practice Book § 42-16.

In the present case, defense counsel, at the conclusion of the court's charge, indicated on the record that there was no objection with respect to the instructions pertaining to the credibility of the witnesses. The mere fact that an issue was discussed prior to charging the jury does not preserve the issue for appellate review. We therefore conclude that the defendant failed to preserve the issue of an instruction regarding jailhouse informants in the manner articulated in Patterson for our review.

The defendant requests, in the alternative, that we review his claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). "Under Golding, a defendant can obtain review of an unpreserved claim only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail . . . . The first two steps in the Golding analysis address the reviewability of the claim, whereas the last two steps address the merits of the claim." (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Solomon, 103 Conn.App. 530, 533-34, 930 A.2d 716 (2007).

A recent decision of this court has foreclosed the argument set forth by the defendant. In State v. Martinez; 95 Conn. App. 162, 166 n. 3, 896 A.2d 109, cert denied, 279 Conn. 902, 901 A.2d 1224 (2006), the defendant argued that the jury instruction rule set forth in Patterson should be applied retroactively. In rejecting this claim, we noted that the Patterson rule is not constitutional in nature. Id.; see also State v. Patterson, 276 Conn. 452, 471-72, 886 A.2d 777 (2005); State v. Solomon, supra, 103 Conn.App. at 536, 930 A.2d 716. We also stated that because the defendant in Martinez had failed to request such an instruction or raise the issue before the trial court, to permit him to do so on appeal would result in a substantially inequitable result and "would be nothing more than a trial by ambuscade of the trial judge." (Internal quotation marks omitted.) State v. Martinez, supra, at 167 n. 3, 896...