State v. Smith

Page 250

699 A.2d 250

46 Conn.App. 285

STATE of Connecticut v. Devon SMITH.

No. 16024.

Appellate Court of Connecticut.

Argued May 1, 1997.

Decided Aug. 19, 1997.

Certification Denied Oct. 9, 1997.

Daniel S. Fabricant, Special Public Defender, for appellant (defendant).

Paul J. Ferencek, Assistant State's Attorney, with whom, on the brief, were James E. Thomas, State's Attorney, and Steven Preleski, Assistant State's Attorney, for appellee (State).

Before DUPONT, C.J., and LANDAU and SHEA, JJ.

LANDAU, Judge.

The defendant, Devon Smith, appeals ¹ from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a. ² On appeal, the defendant claims that the trial court improperly (1) excluded impeachment evidence regarding the prior conviction of a state's witness, (2) violated his right to confrontation, and (3) found the evidence sufficient to support his conviction. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On November 25, 1993, the victim, Michael Diaz, walked to Hartford Hospital with his girlfriend, Carmen Echevarria, to receive treatment. Anthony Carrier, the victim's friend, also known as "Teaspoon," was working at Hartford Hospital, saw Echevarria at the hospital and offered her and Diaz a ride home. Sometime later that night, Carrier, Diaz and Echevarria drove to Park Street near Putnam and Zion Streets to purchase marijuana. That area was controlled by gang members who were rivals of the gang to which Diaz.

In the early morning of November 26, 1993, Carrier parked his car on Park Street across from Portilla's Cafe. He exited the car and approached a group of men standing near the cafe. Diaz and Echevarria remained in Carrier's car. Carrier then returned to his car accompanied by two gang members who recognized Diaz as a rival, argued with him, threatened him, and told him to leave. Diaz got out of Carrier's car and told the group that he was no longer a part of "the gang thing."

Diaz and Carrier started to return to the car, when someone fired several shots at Diaz, fatally wounding him. Neither Carrier nor Echevarria was able to identify the person who fired the shots. Carrier's back was turned and Echevarria observed only that the person who fired the shots was dressed all in black.

Richard Rodriquez, a member of the defendant's gang at the time of the shooting, had moved to Connecticut from New Jersey to live with his gang "family" at the gang's headquarters in Hartford. He knew the defendant. He had been incarcerated shortly after moving to Hartford and, after his fellow gang members failed to post bond for him, he began to inform the Hartford police of gang activity, while outwardly maintaining his gang membership.

On November 26, 1993, prior to the shooting, Rodriquez spoke to the defendant on the porch of a Park Street building next door to Portilla's Cafe. The defendant told Rodriquez that he was watching for rival gang members in the area. The defendant and Rodriquez then went inside the building, and Rodriquez saw the black handle of a nine-millimeter gun in the defendant's front hip pocket. Rodriquez asked if he could be on the lookout with the defendant, and the defendant agreed. The defendant also told Rodriquez that he had another gun, but Rodriquez did not see the second gun.

Rodriquez told the defendant that he would be back shortly and went to the cafe. Rodriguez heard several shots fired, exited the cafe, and saw the defendant in the middle of Park Street firing more shots in the direction of the victim and Carrier. He saw the barrel of the gun, but not the handle, which was covered by the defendant's hand. The weapon was the same color as the gun that the defendant had seen.

On November 27, 1993, the police found the weapon that had been used to kill the victim. There were no fingerprints on the gun. When the police arrested the defendant, they seized his leather coat for testing. The coat did not test positive for gunpowder residue.

I

In his first claim, the defendant makes three distinct arguments. The defendant claims that the trial court (1) improperly excluded impeachment evidence regarding the prior conviction of a state witness, (2) violated his state and federal constitutional rights to present a defense and to confront the witnesses against him, and (3) violated his due process rights by inquiring into the underlying facts of the felony to determine whether it implicated veracity. We will address these arguments in turn.

A

The defendant argues that he should have been permitted to impeach Rodriquez, a critical state's witness, by naming his prior conviction, "Terroristic Threats," because that crime implicates veracity. At trial, the court granted the state's motion in limine to permit reference to the prior felony only as an unnamed felony, concluding that the felony, terroristic threats, did not implicate veracity. Defense counsel objected, arguing that the felony does implicate veracity.

According to General Statutes § 52-145(b), "[a] person's interest in the outcome of the action or his conviction of crime may be shown for the purpose of affecting his credibility." In addition, "[w]hen a trial court concludes that the fact of a prior felony conviction is admissible to impeach a witness' veracity, generally both the title of the offense and the date of conviction should be admitted before the jury. State v. Geyer, [194 Conn. 1, 8, 480 A.2d 489 (1984) ]; see State v. English, 132 Conn. 573, 580, 46 A.2d 121 (1946). [Our Supreme Court has] held, however, that when the conviction at issue is not for an offense that reflects directly on the veracity of the person convicted of it, 'the balance used to measure admissibility of prior convictions is weighted less heavily toward admitting the prior conviction....' State v. Geyer, supra [at] 13 .... To avoid unwarranted prejudice to the witness, when a party seeks to introduce evidence of a felony that does not directly bear on veracity, a trial court ordinarily should permit reference only to an unspecified crime carrying a penalty of greater than one year that occurred at a certain time and place. Id., [at] 16 ." State v. Pinnock, 220 Conn. 765, 780, 601 A.2d 521 (1992).

The trial court properly concluded that the crime of terroristic threats ³ does not directly reflect on the convicted witness' veracity. The defendant relies on three New Jersey cases ⁴ for the proposition that the crime of terroristic threats implicates veracity and can be used for impeachment. We are unpersuaded.

"We will not disturb the trial court's determination as to the admissibility of a prior conviction to impeach a witness absent an abuse of discretion. State v. Braswell, [194 Conn. 297, 307, 481 A.2d 413 (1984), cert. denied, 469 U.S. 1112, 105 S.Ct. 793, 83 L.Ed.2d 786 (1985) ]; State v. Nardini, [187 Conn. 513, 521-22, 447 A.2d 396 (1982) ]." State v. Webb, 37 Conn.App. 722, 732, 657 A.2d 711 (1995). In the present case, the trial court did not abuse its discretion in excluding the name of the offense and allowing only the fact of the witness' previous felony conviction for purposes of impeachment. See State v. Pinnock, supra, 220 Conn. 765, 601 A.2d 521 (trial court properly exercised discretion in limiting impeachment of critical state's witness to unspecified felony rather than naming offense because felony "was not directly related to his veracity"). Id., at 782, 601 A.2d 521.

B

The defendant next claims that, by precluding the defendant from impeaching the state's witness with the name of the felony, the trial court violated his right to confrontation and his right to present a defense as guaranteed under article first, § 8, of the Connecticut constitution and the sixth and fourteenth amendments to the United States constitution. The defendant claims that he is entitled to review of this unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). ⁵ Even if we assume arguendo that the record is adequate to review and the defendant's claim is of constitutional magnitude, his claim fails because the alleged constitutional violation does not clearly exist.

" 'The defendant's rights to confront and cross-examine witnesses and to present a defense do not give him the right to have admitted any evidence he chooses.' State v. Negron, 221 Conn. 315, 328, 603 A.2d 1138 (1992). In the exercise of his rights, the defendant, as well as the state, must comply with the established rules of evidence and procedure. Id.; State v. Kemp, 199 Conn. 473, 479, 507 A.2d 1387 (1986).' " State v. Boles, 223 Conn. 535, 550, 613 A.2d 770 (1992). As we discussed in part I A of this opinion, the trial court properly exercised its discretion by permitting the defendant to impeach the state's witness only with an unnamed felony. Therefore, the alleged constitutional violation does not clearly exist, and the third prong of Golding has not been met.

C

The defendant next claims that he is entitled to review pursuant to State v. Golding, supra, 213 Conn. at 240, 567 A.2d 823, because the trial court improperly inquired into the underlying facts of the terroristic threats conviction to determine whether that crime implicated veracity. The defendant asserts that the inquiry deprived him of his constitutionally guaranteed right to a fair trial pursuant to the due process clause. ⁶ We are unpersuaded that the defendant's claim is of constitutional magnitude.

The defendant argues that the facts and circumstances underlying the terroristic threats felony were unproven hearsay allegations, and, therefore, inadmissible. ⁷ By agreement, the prosecutor and the defense counsel delivered a copy of the relevant documents regarding the felony to the trial court for its review. ⁸ "The defendant ... bears the responsibility of demonstrating that his claim is indeed a violation of a fundamental constitutional right. Patently...