State v. Johnson, 82 Conn. App. 777 (CT 5/11/2004)

Page 777

82 Conn. App. 777

STATE OF CONNECTICUT

v. JOHNNY J. JOHNSON

(AC 23967).

Appellate Court of Connecticut.

Argued December 3, 2003.

Officially released May 11, 2004.

Syllabus

Convicted of the crimes of murder, conspiracy to commit murder and assault in the first degree in connection with a shooting that allegedly involved rival gangs, the defendant appealed, claiming, inter alia, that the trial court improperly denied his motion for a mistrial, which was based on his claims that a juror and the prosecutor had engaged in misconduct. Held:

1. The trial court did not abuse its discretion in admitting the testimony of certain witnesses concerning the defendant's membership in a gang, describing an ongoing dispute between the defendant's gang and a rival gang with which the victims were all associated and establishing the defendant's presence at the scene of the shooting; that evidence was relevant to prove motive and a conspiracy to commit the crimes charged, was not unduly prejudicial and did not constitute evidence of prior misconduct as claimed by the defendant, the evidence of the defendant's gang affiliation not having demonstrated any bad act or criminal conduct on the part of the defendant.

2. The defendant's claim that the trial court improperly denied his motion to suppress a pretrial photographic identification of him made by one of the victims shortly after the shooting was unavailing, the identification procedure used not having been unnecessarily suggestive; that court properly concluded that there was not a very substantial likelihood of irreparable misidentification given the victim's familiarity with the defendant, the victim's testimony that certain photographs in the array of other gang members with whom he was familiar had no bearing on his selection of the suspects and the fact that the victim had named the four individuals allegedly involved in the shooting, including the defendant, prior to his selection of those suspects from an array of thirty-two photographs.

3. The defendant's claim that the trial court improperly denied his constitutional right to confront the witnesses against him by unduly restricting his cross-examination of certain witnesses was not reviewable, he having failed to brief the claim adequately.

4. The defendant's claim that the prosecutor engaged in misconduct during closing argument by mischaracterizing the nature of the weapons used in the shooting was unavailing, an isolated misstatement characterizing the weapon used as an "essential machine gun" not having misled the jury or deprived the defendant of a fair trial in light of the fact that one of the actual weapons used was an automatic weapon.

5. The defendant could not prevail on his claim that he was prejudiced by certain juror misconduct, which allegedly occurred when a juror conversed with a third party during a break from deliberations, and by the scope of the trial court's inquiry into that alleged misconduct; the trial court reasonably concluded that the defendant had suffered no prejudice from the alleged misconduct, the juror having spoken with the third party for the sole purpose of explaining that he could not talk to her, and the defendant failed to demonstrate that the scope of the inquiry conducted by that court was inadequate to safeguard his right to a trial before an impartial jury.

Procedural History

Substitute information charging the defendant with two counts of the crime of assault in the first degree and with one count each of the crimes of murder and conspiracy to commit murder, brought to the Superior Court in the judicial district of New Haven, where the court, Fracasse, J., denied the defendant's motions to suppress and to preclude certain evidence; thereafter, the matter was tried to the jury; subsequently, the court denied the defendant's motion for a mistrial; verdict and judgment of guilty, from which the defendant appealed. Affirmed.

Avery S. Chapman, special public defender, 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).

Foti, West and Hennessy, Js.

Opinion

HENNESSY, J.

The defendant, Johnny J. Johnson, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes §§ 53a-54a (a) and 53a-8 (a), conspiracy to commit murder in violation of General Statutes §§ 53a-54a (a) and 53a-48 (a), and two counts of assault in the first degree in violation of General Statutes §§ 53a-59 (a) (5) and 53a-8 (a). On appeal, the defendant claims that the trial court improperly (1) admitted into evidence testimony regarding his alleged gang membership, (2) denied his motion to suppress a victim's pretrial photographic identification, (3) violated his constitutional right to confrontation and (4) denied his motion for a mistrial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant was a member of a New Haven street gang known as the Island Brothers. On December 14, 1996, at approximately 2 a.m., the defendant and three other gang members¹ emerged from a tunnel firing bullets into the courtyard of a New Haven housing project. One victim, Jason Smith, died as a result of the gunfire. Two other victims, Marvin Ogman and Andre Clark, suffered serious injuries. Additional facts will be set forth as they become relevant to resolving the defendant's claims.

I

The defendant claims that the court improperly admitted into evidence testimony regarding his gang membership. He specifically argues (1) that the testimony was not relevant to prove whether he committed the crimes at issue and, furthermore, that the prejudicial effect of such testimony outweighed its probative value because none of the witnesses could establish that he was a known member of the Island Brothers or that he was acting in concert with the Island Brothers on the evening in question, and (2) the testimony amounted to what was essentially uncharged misconduct evidence that did not satisfy any exception to the prohibition against the introduction of uncharged prior misconduct evidence. We disagree with the defendant.

The following additional facts are necessary for our resolution of the defendant's claim. During the presentation of the state's case-in-chief, three witnesses testified that the defendant was a member of the Island Brothers gang.² On the night in question, several Island Brothers attended a function at the Melebus Club in New Haven. At trial, the state introduced photographs that were taken at the Melebus Club by a professional photographer. Sean Adams, Darcus Henry and Carlos Ashe, who have been convicted of various crimes as a result of the incident at issue; see footnote 1; appear in those photographs; the defendant, however, does not. There was no indication that the defendant was at the Melebus Club that evening. The defendant's girlfriend testified that the defendant was in her company from approximately 11:15 p.m. on the evening in question until sometime the next morning. Ogman, however testified that he clearly saw the defendant in the courtyard during the shooting.

The testimony at trial also revealed a strained relationship between the Island Brothers and another New Haven gang, the Ghetto Boys. The victims in the present case, Ogman, Clark and Smith, were all associated with the Ghetto Boys. Clark testified that an ongoing dispute between the rival groups "just got deeper" in December, 1996. Detective Richard Pelletier, a member of the state police gang task force, who was familiar with the defendant as a result of working on the task force, also testified as to the ongoing dispute. He testified that the events of December 4, 1996, may have been retaliation by the Island Brothers for the recent killing of one of its members, sixteen year old Tyrese Jenkins.³ Pelletier testified that the Island Brothers had decided to kill one Ghetto Boy for every year of Jenkins' life.⁴ In light of that information, the state proffered testimony regarding the defendant's gang membership, the Island Brothers' vow to avenge the death of Jenkins and Ogman's testimony placing the defendant in the housing project, as necessary to show conspiracy and motive.

A

It is well settled that absent a clear abuse of discretion, a trial court's determination of relevancy will not be disturbed. State v. Perry, 48 Conn. App. 193, 201, 709 A.2d 564, cert. denied, 244 Conn. 931, 711 A.2d 729 (1998).

The defendant first claims that the testimony regarding gang affiliation was not relevant because "there was no established membership of the defendant to a gang." That argument is baseless given that three witnesses testified that the defendant was a member of the Island Brothers gang.⁵ We therefore find it unnecessary to review that claim.

The defendant next claims that the testimony of Pelletier relating to the ongoing dispute between the Island Brothers and the Ghetto Boys did not directly implicate the defendant and was therefore irrelevant to material issues and was prejudicial. We disagree with the defendant's claim and conclude that the court properly found that the evidence of gang affiliation was relevant to prove motive and conspiracy.

The evidence presented showed that the Island Brothers and the Ghetto Boys were feuding, and that the Island Brothers intended to harm members of the Ghetto Boys. In addition, the defendant was shown to be a member of the Island Brothers. In determining the relevancy of the gang evidence, the court aptly stated that "the fact that there are two rival gangs may tend to be evidence bearing on motive, identification and with respect to conspiracy and agreement and the parties knowing each other in one group, and the evidence with respect to gang affiliation is relevant to the issues in this case...