State v. Mendoza

988 A.2d 329

119 Conn.App. 304

STATE of Connecticut v. Noel MENDOZA.

No. 29547.

Appellate Court of Connecticut.

Argued September 16, 2009.

Decided February 9, 2010.

Andrew S. Liskov, special public defender, Bridgeport, for the appellant (defendant).

Leonard C. Boyle, deputy chief state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, Marc G. Ramia, assistant state's attorney, and Melissa Patterson, deputy assistant state's attorney, for the appellee (state).

DiPENTIMA, GRUENDEL and LAVERY, Js.

GRUENDEL, J.

The defendant, Noel Mendoza, appeals from the judgment of conviction, rendered after a jury trial, of criminal possession of a firearm in violation of General Statutes § 53a-217 (a)(1).¹ He claims that the trial court abused its discretion in permitting the state to reopen its case-in-chief and improperly denied his motion for a judgment of acquittal. In addition, the defendant alleges a double jeopardy violation. We affirm the judgment of the trial court.

The following undisputed facts are relevant to our resolution of the present appeal. In the early hours of June 20, 2006, the defendant's girlfriend, Dianna DeJesus, sat on her front porch at 63 Arch Street in Meriden. At that time, a dispute arose between the defendant and another individual on the property, and the defendant brandished a handgun. Frightened, DeJesus fled inside her residence. She then heard two gunshots, which she reported to the police via a 911 call. Jason Smith, whose residence abuts that of DeJesus, similarly contacted the police after hearing gunshots and observing a man on the concrete retaining wall that separates the properties. Officers from the Meriden police department responded to the scene, where they found two nine millimeter shell casings on the steps leading to the rear porch of DeJesus' residence and a Kel-Tec P-11 nine millimeter semiautomatic pistol with live ammunition in the magazine in a doghouse at the rear of DeJesus' property.

The defendant thereafter was arrested and charged, by amended information dated September 12, 2007, with criminal possession of a firearm in violation of § 53a-217 (a)(1) and reckless endangerment in the first degree in violation of General Statutes § 53a-63 (a). The state further filed apart B information charging the defendant with being a persistent serious felony offender in light of two prior convictions for the sale of narcotics in violation of General Statutes § 21a-277 (a).

A jury trial commenced on September 18, 2007. As part of its case-in-chief, the state presented the testimony of the Meriden police officers who discovered the firearm and shell casings on the DeJesus property. The state also offered the testimony of Gerard Petillo, a forensic firearm examiner at the department of public safety. Petillo testified that testing confirmed that the recovered firearm was operable. In addition, both DeJesus and Smith testified, and the state introduced approximately two dozen exhibits into evidence. On September 19, 2007, the state rested, and the defendant immediately moved for a judgment of acquittal, stating that the state had not presented "evidence sufficient to support [the case] going to the jurors." The state objected, and a bench conference followed. Immediately thereafter, the following colloquy ensued:

"The Court: All right. The court is going to reserve decision on the [motion for a judgment of acquittal]. I'm going to review my notes. In the meantime, [counsel], [I] just excused the jury and [the state] rested about five minutes ago. [The prosecutor] indicated there was the issue ... which had been placed on the record earlier on, I forget what day, regarding [the] defendant's prior felony conviction with regard to the first count as a possible stipulation and you wish to be heard on that?

"[The Prosecutor]: Yes, Your Honor. I did approach counsel prior to the start of trial with regard to the element of count one² regarding the defendant previously being convicted of a felony. Subsequent to that ... the state indicated on the record, again, that the state was seeking a stipulation. Counsel indicated that he would consider that and discuss that with his client, and that issue was never broached again. So, if defense counsel's willing to stipulate, there won't be any issue at this point. If defense is not willing to stipulate, the state's going to make a motion to reopen its case so that it may satisfy that particular prong of count one.

"The Court: [Defense counsel], my recollection is ... that matter, I believe, was placed on the record. [The prosecutor] just noted that that matter has not been, apparently, resolved prior to the time [he] just rested, but it had been broached. It doesn't come as a surprise. What ... do you have to say?

"[Defense Counsel]: Well, Your Honor, the state is correct, Your Honor. They did ... approach me in regards to my client's willingness to stipulate to that issue. I indicated to them ... I couldn't make that decision until I approached my client and consulted with him and gave him my opinion. Throughout the, I guess, preparations for trial and preparations for evidence, I neglected to talk to my client about that issue, Your Honor. If I could, Your Honor, speak to him over the course of this evening and get back to the court tomorrow morning and to [the prosecutor], I'm pretty sure we'd be able to resolve it.

"The Court: All right."

The court thus reserved its decision on the motion and dismissed the jury for the day.

The next morning, the court addressed the defendant's motion for a judgment of acquittal outside the presence of the jury. After hearing from the parties, the court granted the motion with respect to the reckless endangerment charge. The court then shifted its attention to the criminal possession of a firearm charge, noting that the state filed a motion "to reopen its casein-chief in order to offer evidence of the defendant's felony status" that morning. During argument thereon, the state maintained that it "inadvertently rested prior to providing any evidence of the defendant's convicted felon status" and emphasized that "the defendant did not alert the state to the evidentiary gap" concerning his prior felony convictions. The state opined that "the defendant's felony status really is not a contested issue," stating that it earlier had filed a part B information detailing his prior convictions and "had ordered certified copies of conviction for the defendant's felony convictions...." In addition, the state averred that it had placed on the record the possibility of a stipulation regarding the defendant's prior convictions at the outset of trial.³ In response, defense counsel conceded that "mere inadvertence" caused the evidentiary gap and further acknowledged that "if the state had not inadvertently forgotten ... to introduce [that] evidence, there would be no prejudice [to the defendant]." Defense counsel nevertheless contended that the state's motion to reopen its case-in-chief should be denied. Relying on the decision of our Supreme Court in State v. Allen, 205 Conn. 370, 533 A.2d 559 (1987), counsel contended that "the defendant doesn't have to specifically state on the record what ... is lacking in the state's evidence, so long as he raises the motion for a judgment of acquittal ... and that becomes the trigger ... to alert the state ... to the deficiency ... in their evidence...."

In considering the arguments of counsel, the court emphasized that when the state originally expressed its intention to seek to reopen the case to introduce evidence of the defendant's felony convictions, the defendant "did not indicate that [the felony status issue] had been a basis for your motion for a judgment of acquittal" and stated "for the record that ... this discussion regarding the failure of the state to introduce the felony conviction occurred within ... minutes of the state resting its case." Concluding that the defendant "did not specifically call the state's attention, nor the court's attention, to the evidentiary gap" regarding prior felony convictions, the court granted the motion to reopen "for the limited purpose of the issue of the felony convictions."

The state proceeded to offer the testimony of Virginia Hemming, a deputy clerk with the Superior Court. Hemming testified that the defendant had been convicted of a felony on January 17, 1992. The state then rested, and the defendant renewed his motion for a judgment of acquittal, which the court denied. The jury thereafter found the defendant guilty of criminal possession of a firearm. The court rendered judgment accordingly and sentenced the defendant to a total effective term of five years incarceration. From that judgment, the defendant appeals.

I

We first consider the defendant's contention that the court abused its discretion in permitting the state to reopen its case-in-chief. Relying principally on State v. Allen, supra, 205 Conn. at 370, 533 A.2d 559, the defendant maintains that the court improperly permitted the state to reopen its case to prove an essential element of the crime of criminal possession of a firearm. Careful examination of that precedent persuades us otherwise.

"[I]f a trial court feels that, by inadvertence or mistake, there has been a failure to introduce available evidence upon a material issue in the case of such a nature that in its absence there is a serious danger of a miscarriage of justice, it may properly permit that evidence to be introduced at any time before the case has been decided." (Internal quotation marks omitted.) State v. Zoravali, 34 Conn.App. 428, 441, 641 A.2d 796, cert. denied, 230 Conn. 906, 644 A.2d 921 (1994). "The decision to reopen a criminal case to add further testimony lies within the sound discretion of the court, which should be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of...