State v. Jones

Page 710

700 A.2d 710

46 Conn.App. 640

STATE of Connecticut v. Maleek JONES.

No. 16447.

Appellate Court of Connecticut.

Argued May 29, 1997.

Decided Sept. 9, 1997.

Susan M. Hankins, Assistant Public Defender, for appellant (defendant).

Leon F. Dalbec, Jr., Assistant State's Attorney, with whom, on the brief, were Michael Dearington, State's Attorney, and David P. Gold, Senior Assistant State's Attorney, for appellee (State).

Before FOTI, LANDAU and HEIMAN, JJ.

HEIMAN, Judge.

The defendant appeals ¹ from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes §§ 53a-54a ² and 53a-8, ³ conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) ⁴ and 53a-54a (a) ⁵, and carrying a pistol without a permit in violation of General Statutes § 29-35. ⁶ On appeal, the defendant asserts that the trial court improperly (1) excluded a confession allegedly made by a participant in the crime to a third party, thereby denying the defendant his constitutional right to present a defense, (2) allowed the state to offer misconduct evidence that was more prejudicial than probative concerning the defendant's drug dealing activities and a violent dispute with his girlfriend's former boyfriend, (3) refused to give a missing witness charge to which the defendant was entitled, and (4) failed to make proper inquiry into a midtrial claim by the defendant that he was denied proper investigation and preparation of his case because of his indigency, thereby denying him his due process rights to effective assistance of counsel and a fair trial, and his right to equal protection of the law. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. Maleek Jones was a member of a group of about eight persons who sold narcotics in the Edgewood Avenue area of New Haven. The group was known by the name Red Line because of the color of the bags they used to sell narcotics. The group used a second floor apartment on the corner of Chapel and Beers Streets as its base of operation. The apartment was located a short distance from Saint Raphael's Hospital.

The defendant was involved in a relationship with Teeba Henderson, who had previously had a long term relationship with Steven Gary. Gary did not take the break up of their relationship well and continued to pursue Henderson. The defendant and Gary had argued and, subsequently, in April, 1992, had a fight in which Gary was knocked unconscious.

There was animosity between the Red Line group and individuals friendly with Gary who lived in the area of Carmel Street. The animosity between the two groups had escalated to the point that members of the Red Line group had gone to Gary's neighborhood, and the groups exchanged gunfire.

On October 14, 1992, at approximately 1:30 a.m., Eddie Harp, a friend of Gary, was driving his station wagon in the vicinity of Saint Raphael's Hospital. Harp pulled the vehicle into the emergency room parking lot and parked in an area reserved for security vehicles. Louis Yanac, a security officer, approached Harp, who informed Yanac that he was visiting Sheila McCray, a hospital employee, during her lunch break. Yanac observed McCray and Harp conversing in the waiting area of the emergency room. Yanac left the area to make rounds and, when he returned to the emergency room area, he noted that Harp, McCray and Harp's station wagon were gone. Harp returned to the hospital and dropped off McCray at the main entrance. At about 2:10 a.m., as Harp left the hospital driveway, shots were fired, and the vehicle rolled into a parking lot across from the hospital's main entrance.

When the police arrived at the scene, they found Harp's car running with Harp unconscious in the driver's seat. The victim was transported by ambulance to the hospital, where it was found that he had suffered three gunshot wounds, one of which had penetrated his brain, resulting in his death about six hours after the shooting.

Several hours before the murder, the defendant was in the apartment at the corner of Chapel and Beers Streets with Tyrone Spears, Gene John, who was known as Pepper, and two individuals from New York. The defendant and Pepper left the apartment and returned about two hours later. The defendant was excited and said that "the kid from Carmel Street is outside." He and Pepper immediately ran outside armed with .357 revolvers. Spears obtained a .357 revolver that was concealed in the ceiling of a closet in the common hallway of the building and joined the defendant and Pepper outside.

As Spears exited the apartment building, Pepper and the defendant were near the driveway leading to the main entrance of the hospital. When the victim's vehicle pulled out of the driveway, the defendant, Pepper and Spears began shooting at the vehicle. The defendant and Pepper were about nine feet from the driver's side of the vehicle when they opened fire. They continued to fire at the vehicle as the car rolled slowly into the parking lot opposite the main entrance. After the shooting, the three individuals ran back to the Red Line apartment.

I

The defendant asserts that the trial court improperly excluded "Lee Bember's testimony of a third party confession that he shot the victim, thereby denying the defendant his constitutional right to present a defense, and this exclusion also constituted evidentiary error and an abuse of discretion under the circumstances of this case." At oral argument, the defendant conceded that he had not raised with the trial court a claim that the statement was admissible under the residual or catch-all exception to the hearsay rule, and he abandoned that claim. We must resolve the constitutional claim and the claim that the statement was admissible as a third party declaration against penal interest. We find neither claim meritorious.

Certain additional facts and procedural history are necessary to our resolution of this issue. The defendant sought to offer the testimony of Bember, claiming that his testimony would raise a claim of a declaration against penal interest by reason of a statement Pepper allegedly made to Bember. In the absence of the jury, Bember testified that after the shooting, he and Pepper were "at a pay phone at Orchard and Edgewood Avenue. Two girls approached me, two girls I never seen before and told me 'Oh, you Red Line mother fuckers killed my brother' and boom, Pepper's like let's leave, let's leave, let's go get strapped, meaning, let's go get our guns, which we did, when we got in my house [Pepper] told me, 'Yo, um, last night me and Ty caught a body', meaning that we killed this dude last night." He further testified, in the absence of the jury, that that conversation took place the day after the shooting and that, in his conversation with Pepper, the defendant's name was not mentioned.

The state called as a witness Thomas Trocchio, a New Haven police officer, who testified in the absence of the jury that he had talked with Bember at approximately 9 p.m. on October 14, 1992, about nineteen hours after the shooting. He testified that Bember told him that he and Pepper were approached by two black females, one of whom he knew as Monique, and the other whom he knew as Theresa Garrett. Trocchio also testified that Bember told him that Garret had said that Spears had shot Harp. Trocchio also stated that Bember told him that when he and Pepper returned to Bember's home, Pepper told Bember that Spears was responsible for the shooting death of Harp. Trocchio said that Bember told him that Pepper had told him, "Your boy Ty [Spears] shot that dude last night." The officer also asserted that Bember did not tell him that Pepper had implicated himself as having been a participant in the murder. After hearing the offers of proof as to the admissibility of the statement allegedly made by Pepper to Bember, the trial court excluded the testimony because it found that the evidence was not trustworthy.

The defendant first asserts that the trial court's exclusion of the evidence of the statement allegedly made by Pepper to Bember implicates the defendant's due process right to present a complete defense. We are not persuaded that the defendant's constitutional rights were compromised in any way by the exclusion of this evidence.

We first note, as we have in a number of other opinions, that "[r]obing garden variety claims [of an evidentiary nature] in the majestic garb of constitutional claims does not make such claims constitutional in nature." (Internal quotation marks omitted.) State v. Hansen, 39 Conn.App. 384, 390, 666 A.2d 421, cert. denied, 235 Conn. 928, 667 A.2d 554 (1995). Moreover, our Supreme Court has clearly stated that the right to present a defense does not include the right to offer evidence that is incompetent, irrelevant or otherwise inadmissible. See State v. Boles, 223 Conn. 535, 550, 613 A.2d 770 (1992). "Every evidentiary ruling that denies a defendant a line of inquiry to which he thinks he is entitled is not constitutional error. [Here] the defendant has put a constitutional tag on a nonconstitutional claim." State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985). "Putting a constitutional tag on a nonconstitutional claim will no more change its essential character than calling a bull a cow will change its gender." State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982). "In the exercise of his sixth amendment right to compulsory process the accused, as required of the state, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence." (Internal quotation marks omitted.) State v. Stange, 212 Conn. 612, 625, 563 A.2d 681 (1989).

"The right to present a defense is not ... absolute. Rather, the Supreme Court has never questioned the power of the states to exclude evidence that is repetitive ... only marginally relevant or poses...