State v. Muhammad, No. 24536.

881 A.2d 468

91 Conn.App. 392

STATE of Connecticut v. Naji MUHAMMAD.

No. 24536.

Appellate Court of Connecticut.

Argued June 3, 2005.

Decided September 20, 2005.

Deborah G. Stevenson, special public defender, for the appellant (defendant).

Julia K. Conlin, deputy assistant state's attorney, with whom, on the brief, were Mary M. Galvin, state's attorney, and Kevin S. Russo, assistant state's attorney, for the appellee (state).

SCHALLER, GRUENDEL and HARPER, Js.

GRUENDEL, J.

The defendant, Naji Muhammad, appeals from the judgment of conviction, rendered following a jury trial, of assault in the first degree in violation of General Statutes § 53a-59(a)(3). On appeal, the defendant claims that the trial court improperly (1) allowed facts concerning two prior convictions of the defendant to be admitted into evidence and (2) precluded certain evidence of the victim's prior assault of a third party. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On February 10, 2001, the defendant was at home in West Haven with his wife, Ann Muhammad, and their three children, including Randall Deneutte, the sixteen year old son of Ann Muhammad and the victim, Randall Smith. When Deneutte interrupted a conversation between the defendant and his mother, the defendant ordered Deneutte to go downstairs, where his bedroom was located, and to get dressed to leave. The defendant took Deneutte by the arm and forcibly walked him to the stairs leading to his room. Deneutte informed the defendant that he was going to call his father, the victim. Deneutte did so and asked the victim to come to the house because the defendant had tried to push him down the stairs.

The victim drove to the defendant's house and entered to retrieve his son. Upon entering, the victim began to argue with the defendant and Ann Muhammad. The argument escalated, and the defendant grabbed a sword from a nearby room and approached the victim. The victim and the defendant exited the house and continued to fight in the driveway. During the course of the altercation, the defendant struck the victim a number of times with the sword. While the victim and the defendant continued to struggle in the driveway, Deneutte went to a neighbor's house to get help. When the neighbor arrived, he kicked the sword away and pulled the victim away from the defendant.

The defendant went inside his house to clean up and left when told that the police were arriving. He later surrendered when the police located him nearby. The defendant acknowledged to the officer transporting him to the police station that he was the person they were looking for in connection with the incident at his house.

The state charged the defendant with one count of assault in the first degree in violation of § 53a-59(a)(1) and one count of assault in the first degree in violation of § 53a-59(a)(3). On November 1, 2001, the defendant pleaded not guilty to the charges and elected a jury trial. Following the trial, on January 17, 2003, the jury returned a verdict of guilty on the count of assault in the first degree in violation of § 53a-59(a)(3) and a verdict of not guilty with respect to the other count. The court rendered judgment of conviction in accordance with the verdict and, on April 10, 2003, sentenced the defendant to nine years of incarceration plus six years of special parole. This appeal followed.

I

The defendant first claims that the court abused its discretion by improperly admitting into evidence facts concerning two prior convictions.¹ We disagree.

The defendant's first claim arises from the denial of his April 15, 2003 motion in limine to preclude evidence regarding the defendant's 1987 convictions of sexual assault in the first degree and kidnapping in the first degree.² The state sought to admit the prior convictions into evidence to impeach the defendant's credibility pursuant to § 6-7 of the Connecticut Code of Evidence. The defendant argues that the prior convictions should have been precluded because they (1) did not indicate dishonesty, (2) were too remote in time and (3) were prejudicial and established a pattern of violent behavior such that a jury would believe that if he had assaulted before he would do it again. After oral argument, the court found that the probative value of the evidence outweighed any possible prejudice to the defendant. The court ruled that only the name of each offense, and when and where it was committed, was admissible, and the defendant testified accordingly on direct examination.

We begin by setting forth the standard of review. "Our standard of review for evidentiary matters allows the trial court great leeway in deciding the admissibility of evidence. The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done.... The exercise of such discretion is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law.... Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law .... And [it] requires a knowledge and understanding of the material circumstances surrounding the matter .... In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court's ruling." (Citation omitted; internal quotation marks omitted.) State v. Ciccio, 77 Conn. App. 368, 382, 823 A.2d 1233, cert. denied, 265 Conn. 905, 831 A.2d 251 (2003). Thus "[a] trial court's decision denying a motion to exclude a witness' prior record, offered to attack his credibility, will be upset only if the court abused its discretion." (Internal quotation marks omitted.) Id., at 385, 823 A.2d 1233.

"It is well settled that evidence that a criminal defendant has been convicted of crimes on a prior occasion is not generally admissible.... There are, however, several well recognized exceptions to this rule, one of which is that [a] criminal defendant who has previously been convicted of a crime carrying a term of imprisonment of more than one year may be impeached by the state if his credibility is in issue." (Internal quotation marks omitted.) Id.³ "In determining whether to admit evidence of a conviction, the court shall consider: (1) the extent of the prejudice likely to arise; (2) the significance of the particular crime in indicating untruthfulness; and (3) the remoteness in time of the conviction .... Moreover, [i]n evaluating the separate ingredients to be weighed in the balancing process, there is no way to quantify them in mathematical terms .... Therefore, [t]he trial court has wide discretion in this balancing determination and every reasonable presumption should be given in favor of the correctness of the court's ruling .... Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done." (Citations omitted; internal quotation marks omitted.) Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 307, 852 A.2d 703 (2004).

The burden lies with the party objecting to the admission of evidence of prior convictions to demonstrate the prejudice that is likely to arise from its admission. Id., at 312, 852 A.2d 703. "Although the probative value of evidence of his prior convictions is certainly damaging to [the defendant's] credibility, that does not necessarily impart an undue degree of prejudicial effect as well." (Emphasis in original.) Id., at 315, 852 A.2d 703. "The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jury." (Internal quotation marks omitted.) State v. Ciccio, supra, 77 Conn.App. at 387, 823 A.2d 1233.

The defendant first argues that the prior convictions of sexual assault and kidnapping were sufficiently similar to assault in the first degree such that their introduction created prejudice to an extent that warranted preclusion. "There is, of course, no per se rule prohibiting impeachment of a defendant by proof of a prior conviction of a crime similar to that for which he is being tried when that prior conviction is offered to attack his credibility." State v. Binet, 192 Conn. 618, 622, 473 A.2d 1200 (1984). Rather, the court must look to the prejudice that would arise from admission of the evidence. "[A]high degree of prejudice can be expected when the prior crime is quite similar to the crime charged because of the jury's tendency to believe that if he did it before, he probably did it again .... This generic prejudice is insufficient to render the disclosure of his prior conviction inadmissible." (Citations omitted; internal quotation marks omitted.) State v. Rivera, 221 Conn. 58, 73-74, 602 A.2d 571 (1992). The court reasonably could have found that the assault charges were not so similar to the prior convictions of sexual assault and kidnapping as to prejudice the jury in the same manner as would a previous conviction for assault.⁴ Cf. State v. Carter, 189 Conn. 631, 458 A.2d 379 (1983) (excluding prior conviction of sexual assault when current charges were for the same offense). The defendant further argues that the similarity between the prior convictions of kidnapping and sexual assault and the assault charges as crimes of violence is evident in the statutory language defining each offense. We are not persuaded by that argument, as the jury was never informed of the elements of the prior offenses, and, thus, it was unable to make such comparisons. Accordingly, we conclude that the prejudice that arose from admitting into evidence testimony concerning the defendant's prior convictions of sexual assault and kidnapping was of the general sort that was insufficient to render them inadmissible.

The defendant...