State v. Hilton

79 Conn. App. 155

829 A.2d 890

STATE OF CONNECTICUT v. JAMES HILTON.

(AC 22413).

Appellate Court of Connecticut.

Argued March 31, 2003.

Officially released September 2, 2003.

Dranginis, Flynn and Bishop, Js.

Frank P. Cannatelli, for the appellant (defendant).

Timothy J. Sugrue, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and James G. Clark, senior assistant state's attorney, for the appellee (state).

Opinion

DRANGINIS, J.

The defendant, James Hilton, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a),¹ carrying a pistol or revolver without a permit in violation of General Statutes § 29-35 (a)² and criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c.³ The sole issue on appeal is whether certain remarks made by the prosecutor during cross-examination of the defendant and in closing argument to the jury amounted to misconduct that denied the defendant a fair trial. We conclude that the defendant was not clearly deprived of a fair trial, and, therefore, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim, William Rodriguez, was shot on July 14, 2000, at approximately 9 p.m. in the area of Truman Street and King Place in New Haven. Sergeant Anthony Duff arrived at the scene of the shooting and discovered the victim's body on the sidewalk, surrounded by a crowd of people. An autopsy performed on the victim's body revealed that he died from a single gunshot at close range to the left side of his head. Bullet fragments removed during the victim's autopsy were tested and found to be consistent with having been fired from either a .38 special or a .357 magnum firearm. No gun was ever recovered.

The shooting was precipitated by a drug turf war. Anna Rodriguez, the victim's longtime friend, testified that two days before the murder, she and her boyfriend had gone to visit the victim, who had just moved to an apartment on Truman Street. Rodriguez testified that upon arriving outside the victim's apartment, her boyfriend sounded his car horn,⁴ and the victim and his girlfriend, Cora Moore, came outside to visit them. At that point, the defendant suddenly approached on the passenger's side of the car and peered inside. When the defendant recognized Rodriquez' boyfriend, he walked away.

The jury also heard testimony from Sherice Mills, who stated that on the afternoon of the shooting, "Shawn," an associate of the victim, verbally confronted the defendant and one of his associates regarding Shawn's drug dealing activities on Truman Street, which was part of the defendant's drug territory. During that conversation, Shawn threatened the defendant and his associate. The confrontation soon ended, and Shawn and the victim drove off in the victim's car.

Two women testified as eyewitnesses to the actual shooting. Mills testified that the victim left his porch to make a drug sale to someone in a car. She testified that moments later, while the victim was at the car, she heard the defendant state that he was "about to kill [the victim]," and observed the defendant walk across the street and shoot the victim in the head. According to Mills, the defendant fell to the ground with the victim, and the defendant "kept holding [the victim's] head, saying he didn't mean to do it and [telling] somebody to call the police." Mills later identified the defendant as the shooter from an array of photographs.

A second eyewitness, Simone Williams, who was on the porch at the time of the shooting, testified about essentially the same events as did Mills. Williams' testimony added that the defendant had approached the victim from behind and stated: "You ain't from around here, son," and, "You need to move from around here, son," and that she then saw the defendant take a gun from behind his back and shoot the victim. When the shooting stopped, Williams testified, the victim fell to the ground, and the defendant yelled for someone to call an ambulance. A short time later, the defendant fled the scene. Williams went to the police station sometime later and related to the police what she had observed concerning the shooting. At that time, she positively identified the defendant in a photographic array and did so again at trial.

The state also presented testimony from Moore, the victim's girlfriend, that while she was in Toisann Henderson's second floor apartment on Truman Street playing with Henderson's baby and listening to music, she heard a gunshot. Minutes after the shooting, Henderson⁵ ran from the porch into the apartment and told Moore that the defendant had shot her boyfriend. Moore ran outside where she found the victim lying motionless on the ground. She fell to the ground and started crying and hugging him. Shortly thereafter, Duff arrived. On the basis of the information that the witnesses provided, Duff dispatched the defendant's description over the police radio.

At trial, the defendant testified that after meeting with his family, he voluntarily went to the police station, accompanied by his brother-in-law, Sergeant Nate Blackman, and provided a statement about the shooting. While he was in police custody, the defendant stated that he had been sitting on his porch when he heard a commotion and went to see what was happening. The defendant further told the police that a third man had drawn a gun, that the defendant had grappled for the gun, and "it went bashing across [the victim's] head." Later in the interview, the defendant was asked if he could give more detail about the shooting. It was at that point that the defendant ended the interview. At trial, he described how several seconds after he fought with the third man, a fourth man shot the victim and ran away. Immediately after the gunshot, the defendant testified, he applied pressure to the victim's wound to stop the bleeding. He further testified that he left the victim to make sure someone had called an ambulance. When he returned and saw that the victim was receiving aid, he went to and sat on the porch. The defendant testified that he sat on the porch until people in the crowd began to tell the police that he did the shooting. He then stated that he became scared, and went directly to see his children and then to Blackman's house. During their investigation, the police learned that after the shooting, the defendant went to see his fiancee, Maybertha Ashley. She and her sister, Andrea Ashley, testified that the defendant had given his bloody clothes to his fiancee, who in turn gave them to Andrea Ashley to wash. When the police arrested the defendant at the police station, they took the clothing he had worn on the evening of the shooting. The blood samples and clothes collected from both the victim and the defendant were sent to the state forensic laboratory. A state's expert testified that a drop of blood found on the defendant's boxer shorts matched the victim's blood type and DNA. Despite the fact that the victim had been shot at fairly close range, there was no detectable blood on the defendant's other clothes. The defendant denied ever having his clothes washed after the shooting, and explained that his clothes were not covered in blood because he wore his shirt over his head and his pants around his knees.

On September 12, 2000, the defendant was charged with murder, and criminal possession of and carrying a pistol or revolver without a permit. Following a trial in July, 2001, the jury returned a verdict of guilty on all counts. On September 28, 2001, the court sentenced the defendant to a term of sixty years imprisonment on the charge of murder, a consecutive term of five years imprisonment on the charge of carrying a pistol without a permit and a concurrent term of five years imprisonment on the charge of criminal possession of a pistol or revolver for a total effective sentence of sixty-five years imprisonment. This appeal followed. Additional facts will be set forth as necessary.

The defendant claims that the prosecutor's questions and comments during cross-examination and closing argument constituted misconduct, thereby requiring a new trial. We disagree. Because the defendant failed to raise any objection at trial, he concedes that he did not properly preserve his claim for review, but argues, nonetheless, that he is entitled to relief under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989),⁶ or under the plain error doctrine. Practice Book § 60-5.⁷ The claim is reviewable under Golding because the record is adequate to do so, and an allegation of prosecutorial misconduct is of constitutional magnitude. See State v. Radzvilowicz, 47 Conn. App. 1, 44, 703 A.2d 767, cert. denied, 243 Conn. 955, 704 A.2d 806 (1997). The defendant, however, cannot prevail under the third prong of Golding because he has failed to establish that a constitutional violation clearly exists and that it clearly deprived him of a fair trial.

We first set forth our standard of review for claims of prosecutorial misconduct. "To prove prosecutorial misconduct, the defendant must demonstrate substantial prejudice.... In order to demonstrate this, the defendant must establish that the trial as a whole was fundamentally unfair and that the misconduct so infected the trial with unfairness as to make the conviction a denial of due process.... State v. Singh, 259 Conn. 693, [699-700], 793 A.2d 226 (2002).

"Prosecutorial misconduct may occur in the course of cross-examination of witnesses; State v. Hafner, 168 Conn. 230, 249, 362 A.2d 925, cert. denied, 423 U.S. 851, 96 S. Ct. 95, 46 L. Ed. 2d 74 (1975); and may be so clearly inflammatory as to be incapable of correction by action of the court. Id., 252-53. In such instances there is a reasonable possibility that the improprieties in the cross-examination either contributed to the jury's verdict...