Opinion
No. CR08-233569 T
April 22, 2010
MEMORANDUM OF DECISION RE DEFENDANT'S POST-VERDICT MOTIONS
The defendant, Marquis Jones, was charged with murder and felony murder in connection with the December 27, 2002 homicide of Horace Cheatham. Following a jury trial, the defendant was found not guilty of murder but guilty of felony murder. Sentencing is presently scheduled for May 14, 2010.
The defendant has filed five motions attacking the jury's verdict, namely: (1) Motion to Dismiss, (2) Motion in Arrest of Judgment, (3) Motion for Acquittal, (4) Motion for New Trial (based on impossibility) and (5) Motion for New Trial (based on prosecutorial impropriety). A hearing on these motions was conducted on April 14, 2010.
The motions, in large part, challenge the factual basis for the jury's verdict. Based on the evidence adduced at trial, the jury could reasonably have found the following facts.
Since the trial transcript has not yet been prepared (other than counsels' closing arguments), this factual statement is based on the court's notes, its review of exhibits and recollection.
Shortly after 7:00 a.m. on December 27, 2002, a neighbor discovered a body lying in the rear yard of 58-60 Bunnell Street, Bridgeport, Connecticut. The neighbor called 911 and soon thereafter police and emergency medical personnel arrived. The body was later identified as Horace Cheatham.
Bunnell Street and Central Avenue run parallel to each other in a general north-south direction and both intersect with Stratford Avenue to the south and Connecticut Avenue to the north. In other words, Bunnell Street, Stratford Avenue, Central Avenue and Connecticut Avenue form one city block. The rear yards of the houses facing Bunnell Street back up to the rear yards of the houses facing Central Avenue. On December 27, 2002, the rear yard areas in the vicinity of the victim's body were snow-covered.
Several members of the Bridgeport Police Department Crime Unit processed the area behind 58-60 Bunnell Street. They photographed the area and searched for evidence. At the time, there were at least four police officers on scene. Upon arrival, a walk-through of the area was done as well as a video and photographs. Crime scene tape had been put up by patrol officers before the Crime Unit arrived.
The victim's body was lying near a tree. There was a gunshot wound to the back of his head. There were blood stains near the body. His pants had been pulled down and his jacket was across his legs. Near the body were a few coins and a set of car keys. The victim was wearing Timberland work boots. There were also shoe prints in the snow.
One shoe print showed the imprint of a star and appeared to be that of a Converse All-Star sneaker. There were also shoe prints that were consistent with the victim's Timberland boots. Detective Kimberly Biehn, one of the Crime Unit officers, unsuccessfully attempted to make a wax casting of the Converse shoe print. Some of the Converse shoe prints were going down the driveway toward Bunnell Street, some other Converse shoe prints were abundant in the immediate area of the victim's body and some traveled toward Central Avenue.
The evening before the victim's murder Rashea Campfield had attended a party at a facility known as the White Eagle. There she saw a lot of people including the victim and his cousin, Sam Moore. After leaving the White Eagle, Rashea Campfield went to a Chinese restaurant on the corner of Stratford Avenue and Bunnell Street. She arrived there between 1:15 a.m. and 1:30 a.m. Also at the restaurant were the victim, Sam Moore and a person she only knew by the nickname "Tuna." Rashea Campbell overheard the victim and Sam Moore talking to Tuna about a marijuana transaction and saw the victim with a $100 bill and singles. About that time, the defendant (known as "Kee Cee") and Gary Browning entered the Chinese restaurant. The defendant told the victim that he had better quality marijuana than Tuna. Rashea Campfield saw the butt of a gun sticking out of the defendant's pants. Gary Browning left the Chinese restaurant followed by the defendant and the victim.
Tunaune "Tuna" Tjitemisa was in the Chinese restaurant about 1:30 a.m. on December 27, 2002. He initially sold eight dollars worth of marijuana to Sam Moore. Later, Sam returned and asked for the money back. Three men came into the restaurant one of whom was the defendant. Tjitemisa said that the defendant and a person he identified as Gary Browning were trying to sell the victim one-half ounce of marijuana. Tjitemisa saw the victim leave with the defendant and Browning. Tjitemisa stayed in the area of the Chinese restaurant a few minutes longer and then went home. It took him ten minutes to get home and when he arrived at his doorstep he heard a gunshot.
Campfield and Tjitemisa noticed that the victim had new clothes and money. Two weeks earlier, the victim's grandmother had received a $5,000 check from the Victim's Compensation Fund made out to the victim. This money was in compensation for the 1991 murder of the victim's father. The victim and his grandmother deposited the check in a bank account. On December 26, 2002, the victim had withdrawn $3,000, some of which he used to buy new clothes.
Gary Browning testified as a cooperating state's witness who had originally been charged with murder and felony murder but who had agreed to testify in exchange for a reduction in charge and an agreed sentence of two years. During the early morning hours of December 27, 2002, Browning was in the Stratford Avenue area selling drugs. He went to the Chinese restaurant on the corner of Stratford Avenue and Bunnell Street and saw that Tuna was trying to sell marijuana to two guys. Browning interrupted and convinced them to buy from him. One of the guys (the victim) asked to buy a larger quantity and Browning told him he could sell him one ounce. The defendant entered the restaurant and talked to Browning. The defendant was standing there during the discussion about selling marijuana. The defendant told Browning, "Those dudes have money" and further stated that he wanted to rob them. Browning testified that he replied to the defendant that he didn't care if the defendant robbed them; he just wanted to sell marijuana.
Browning left the Chinese restaurant and took the victim to the rear yard of a house on Bunnell Street. After leaving the victim in the backyard, Browning proceeded to the rear of his house on Central Avenue and retrieved some marijuana from a trash can on the rear porch. Browning then returned to where the victim was standing and sold him the "weed." As Browning walked away from the victim, he saw the defendant coming into the backyard area from Central Avenue. He knew the defendant was going to rob the victim because that was the plan. While Browning walked up the driveway toward Bunnell Street, he heard the defendant say to the victim "You know what time it is, run that shit." Browning then heard one shot. When he turned to look, he saw the victim on the ground and the defendant walking away.
On December 28, 2002, the police talked to the defendant about the Horace Cheatham homicide. The police asked the defendant about his whereabouts around the time of the killing. The defendant stated that he had been at a party at the White Eagle Club and had left about 1:00 a.m. and went to the Chinese restaurant on the corner of Stratford Avenue and Bunnell Street. Inside the restaurant he saw a drug deal occurring between Tuna and the victim and Moore. The defendant told them that his marijuana was of better quality. The defendant said he left the Chinese restaurant and called for a taxicab around 1:30 a.m. While waiting for the cab outside the Chinese restaurant, he heard one gunshot from nearby. The defendant said he was picked up by the cab and left the area.
On January 13, 2003, the defendant was interviewed by the police a second time. In this interview, the defendant for the first time stated that Gary Browning was at the Chinese restaurant and he overheard Browning speaking to the victim about purchasing a large amount of marijuana. The defendant said he walked to the Central Avenue home of a friend to use the telephone to call a cab. While waiting for the cab, he heard a gunshot. He took the cab to his cousin's house but later returned to the area to go to the Chinese restaurant. As he drove down Bunnell Street, he saw a body in a backyard but did nothing about it.
The defendant told the police that he had been wearing Nike Air Force One sneakers. The investigation determined that Browning was wearing Converse All-Star sneakers on the night of the crime.
I Motion to Dismiss and Motion in Arrest of Judgment
In these two motions, the defendant asserts that the court lacked jurisdiction over his person because the probable cause finding made by the Court (Thim, J.) on July 11, 2008, was based on the perjured testimony of Sam Moore. Both of these motions must be denied because the defendant has provided no record to support his bold assertions.
As noted above, the victim was killed and robbed on December 27, 2002. The defendant was not arrested until the spring of 2008. The arrest warrant for the defendant is dated April 23, 2008 and is based, in part, on a statement made by Sam Moore to the police on April 9, 2008. Following the defendant's arrest, a probable cause hearing was held as required by General Statutes § 54-46a. At that hearing, Sam Moore testified and implicated the defendant in the shooting death of the victim. Following the hearing, Judge Thim made findings of probable cause and approved the prosecution of the defendant for the murder and felony murder charges.
The defendant does not assert that the evidence submitted to Judge Thim was insufficient to support a finding of probable cause. Instead, the defendant claims that Sam Moore perjured himself at the probable cause hearing. The defendant's argument is that: since Sam Moore did not testify at trial and Gary Browning's trial testimony described the event differently than did Sam Moore, "[t]he State concluded that Sam Moore was not truthful about his testimony concerning the murder of Horace Cheatham and the defendant's involvement therein." Motion to Dismiss.
The defendant correctly states that an error at a probable cause hearing can deprive the court of a personal jurisdiction over the defendant. State v. Mitchell, 200 Conn. 323, 331 (1986). Our Supreme Court has also ruled that such an error can require a reversal of a conviction even if such conviction was the result of a fair trial. State v. Boyd, 214 Conn. 132, 141-42 (1990). Although our Supreme Court has incorporated a harmless error approach to some claimed defects in probable cause hearings, the holdings of Mitchell and Boyd remain good law. See State v. Brown, 279 Conn. 493, 509 n. 6 (describing the "numerous occasions" that the Supreme Court has been invited to reconsider Boyd).
The problem with the defendant's motions is that he has not in any way shown that Sam Moore committed perjury at the probable cause hearing. The fact that Moore and Browning differed is insufficient to support an inference of perjury let alone the inference that the state knowingly allowed such a situation to go uncorrected. Moreover, the fact that Moore did not testify at the trial could be due to a host of reasons other than that he lied in his probable cause hearing testimony. Finally, at the hearing on these present motions, the prosecutor expressly stated that the state had not concluded that Moore had given untruthful testimony.
The motion to dismiss and motion in arrest in judgment based on claimed insufficiency in the probably cause finding are denied.
II Motion for Acquittal Motion for New Trial — Impossibility Motion for New Trial — Improper Argument
The defendant has moved for acquittal on the felony murder asserting that the evidence did not reasonably permit a finding of guilt beyond a reasonable doubt. The defendant has also moved for a new trial in two separate motions. In one motion, he has moved for a new trial on the ground that it was impossible for him to have committed the crime; and in the other motion, he has moved for a new trial asserting that the prosecutor committed impropriety in closing argument. These three motions are grouped for discussion because they ultimately turn on the facts supporting the defendant's conviction for felony murder.
A. Motion for Acquittal
In evaluating a motion for acquittal filed under Practice Book § 42-51, the evidence must be given a consideration most favorable to sustaining the verdict. State v. Morgan, 274 Conn. 790, 799 (2005). The court does not act as a thirteenth juror but should defer to the jury's assessment as to the credibility of witnesses, Id., 800. In other words, evidentiary inconsistency is for the jury to resolve. Id. Moreover, the question is not whether there is a reasonable view of the evidence that would support a hypothesis of innocence, but rather whether there is a reasonable view of the evidence that supports the jury's verdict of guilty. State v. Calabrese, 279 Conn. 393, 403 (2006). In this regard, it is axiomatic that the jury is free to accept all, some or none of any witness's testimony.
As stated above, the jury found the defendant guilty of felony murder but acquitted him of murder. To find the defendant guilty of felony murder, the jury was required to find beyond a reasonable doubt (1) that the defendant committed robbery first degree, (2) that he (or another participant in the robbery) caused the death of the victim, (3) that the death of the victim was caused by the defendant (or other participant in the robbery) in the course of and in furtherance of the robbery or in immediate flight from the crime, and (4) the victim was not a participant in the robbery.
The defendant's principal claim in this motion and the motions for new trial is that the footprint evidence at the crime scene excluded the defendant from being present, thereby undermining the jury's verdict. This position is based on two premises: (1) that the footprints observable near the victim's body were only those of the victim and Gary Browning and (2) that all of the other footprints in the snow are unconnected to the crime.
It should be noted that while the police crime scene photos show footprints in the snow, there was no expert evidence offered on this subject. Some footprints appear to show a pattern similar to those of the Timberland boots worn by the victim; and some footprints appear to show the "star" symbol typical of the Converse brand sneakers. In addition, there were many other footprints in the snow for which no evidence was offered. That is, such other footprints were neither included nor excluded from having relevance to the crime.
Given the legal framework discussed above, there are at least two reasonable views of the evidence that support the jury's verdict. First, notwithstanding the footprint evidence, the jury could have accepted Gary Browning's testimony that the defendant shot the victim while robbing him. Alternatively, the jury could have believed that Browning was correct as to the defendant's involvement but minimized his own involvement. In this view, the jury could have found that the footprints immediately proximate to the victim's body were, in fact, those of Browning and the victim. The jury could have further found that the defendant was also present in the backyard, although at a location farther away from the victim than Browning stated, and that the police had failed to connect the defendant's footprints to the crime.
While Browning's testimony was the only evidence describing what happened in the backyard of 58-60 Bunnell Street, his account of the defendant's involvement was corroborated by other evidence. As stated above, shortly prior to the robbery, the victim was inside a nearby Chinese restaurant. Rashea Campbell and Tuane Tjitemisa placed the defendant there with the victim. Campbell also said that the defendant was armed with a gun. In addition, these witnesses saw the victim with new clothes and flashing money. Moreover, Browning's testimony that the defendant noticed this and said he wanted to rob the victim could have been accepted by the jury. Finally, the defendant, in his statements to the police, placed himself in the Chinese restaurant and said that he had later seen a body in a backyard and did nothing about it.
The import of this evidence is that, minutes before the crime, the defendant was (1) armed, (2) with the victim and (3) had expressed the intent to rob him. In addition, shortly after the crime, the defendant was also in the area and knew where the victim's body lay. These facts, together with Browning's testimony, adequately supported the jury's guilty verdict on the felony murder count.
B Motion for New Trial — Impossibility
In State v. Hammond, 221 Conn. 264 (1992), semen stains from a sexual assault victim's underpants were subjected to DNA testing that excluded the defendant as a source of the semen found on the sample. Our Supreme Court ruled, on those facts, that it was physically impossible for the defendant to have committed the crime and reversed his conviction. Id., 268. In the present motion, the defendant likewise asserts that, based on the footprint evidence, it was impossible for him to have committed felony murder.
The defendant's position is based on the premises that the jury had to find that the crime occurred exactly as described by Browning, the footprints shown in the photographs were only those of the victim and Browning and all the other footprints shown in the photographs were unconnected to the crime. For the reasons described above, those premises are not necessarily true. To commit felony murder, the defendant did not have to be in the immediate vicinity of the victim at the time of his death. The jury may not have fully accepted Browning's account of what happened. Indeed, in light of the fact that the jury acquitted the defendant of murder, such selective approach to Browning's testimony seems likely. Moreover, the jury may not have viewed the police examination of the footprints at the scene as comprehensive and flawless. As stated above, there were many footprints in the snow shown in the photographs that were unaccounted for in the evidence.
This case is distinguishable from Hammond. It was not impossible for the defendant to have committed the crime.
C Motion for New Trial — Prosecutor Impropriety
The defendant has filed a separate motion for new trial asserting prosecutorial impropriety during closing argument. Specifically, the defendant asserts that during argument, the prosecutor suggested that a trail of footprints shown in the crime scene photographs were those of the defendant when there was no evidence to support that interpretation.
Our law provides for a two-step process to examine claims of prosecutor misconduct. State v. Camacho, 282 Conn. 328, 367 (2007). The first step is a determination as to whether impropriety occurred, and the second step is a determination as to whether the impropriety deprived the defendant of his due process right to a fair trial. Id. Prosecutorial impropriety can occur in the course of closing argument. Id. The prosecutor must confine the argument to the record in the case. Statements as to facts that have not been proven amount to un-sworn testimony which is not the proper subject of closing argument. State v. Therrien, 117 Conn.App. 256, 272 (2009). A prosecutor may invite the jury to draw reasonable inferences from the evidence; however, he or she may not invite sheer speculation unconnected to the evidence. Id. It is well settled that a prosecutor must not comment on evidence that is not part of the record, nor is he or she to comment unfairly on the evidence adduced at trial, so as to mislead the jury. State v. Ayuso, 105 Conn.App. 305, 329, cert denied, 286 Conn. 911 (2008).
In the present case, the state's initial closing argument was a mere five minutes long and did not address the issue of the defendant's footprints being at the scene. The defense attorney then presented his argument and asserted, among other points, that the lack of evidence of the defendant's footprints undermined Gary Browning's testimony and raised a reasonable doubt as to the defendant's guilt. Counsel argued that, to accept the theory of the crime articulated by Browning, the defendant would have had to "float" into the snow-covered backyard.
During his rebuttal argument, the prosecutor reviewed Browning's account of what occurred and specifically his testimony that the defendant had approached the crime scene from Central Avenue into the backyards. The prosecutor then directed the jury's attention to a photograph introduced as State's Exhibit 6 and while displaying that photo stated the following:
"And then take a look at State's 6 . . . look over here along the tree line on that direct shot. There are footprints over here that seem to be coming through the snow leading directly up to where the body in the snow that lead directly up to the victim from behind."
The prosecutor then displayed Exhibit 8 and stated:
"You can also see them in State's 8 where from where the victim's body is laying, if you look directly behind where the victim's body is, you will see a set of prints that are coming up directly behind the victim back in there, walking right up."
This argument suggested to the jury that it was the defendant who made the footprints in the snow that were visible in the two photographs. The defense did not object to this argument.
The problem with this argument is that there was no evidence offered during the trial concerning the footprints pointed out on the photographs by the prosecutor. Moreover, it is apparent from the crime scene tape and police vehicles shown in the photographs that they were taken after police personnel had been on the scene. The footprints could have been those of police personnel, emergency medical personnel, unknown third parties or (as argued by the prosecutor) the defendant.
The state asserts that because these photographs were admitted as full exhibits without limitation, the argument was proper. This position goes too far. The photographs were offered only as general views of the crime scene as observed by the Crime Unit Detective Biehn. No testimony or other evidence identified the footprints highlighted in the prosecutor's argument as being relevant to the investigation. To the contrary, the only footprints mentioned in the evidence were the Timberland boot prints and Converse All-Star sneaker prints. As Professor Tait observes:
"Evidence admitted for one purpose at trial, however, cannot be used after the close of evidence for a different purpose. To do so would deprive an opponent from submitting rebuttal evidence, meaningful cross-examination or impeachment."
Tait's Handbook of Connecticut Evidence, Fourth Edition § 1.24.5.
In the present case, because the claim that the footprints in Exhibits 6 and 8 were those of the defendant first came into the case during the state's rebuttal argument, the defense was deprived of any meaningful opportunity to meet this assertion.
On the record of the trial as it existed, the prosecutor's argument asked the jury to speculate, or worse, amounted to a form of un-sworn testimony. The argument was improper.
Since there was prosecutorial impropriety in the argument, the question becomes whether such impropriety deprived the defendant of a fair trial. For two reasons, this court finds that a new trial is not required. First, no objection was made to the challenged argument. Our Supreme Court has stated that when defense counsel does not object, request a curative instruction or move for mistrial, he or she presumably does not view the alleged impropriety as prejudicial enough to jeopardize seriously the defendant's right to a fair trial. State v. Camacho, supra, 282 Conn. 370.
Prior to the portion of the argument summarized above, defense counsel had objected eleven times to the state's rebuttal argument. The court had sustained ten of these objections and in several instances instructed the jury to disregard the argument that had been made. The defense's failure to object to the footprint argument deprived the court of the opportunity to consider the objection and likely admonish theory to disregard that argument.
The second reason why a new trial is not warranted is that it is highly likely that the jury did not fully accept Browning's version of the crime as shown by their verdict of not guilty on murder. The prosecutor's argument about the footprints was made in an effort to corroborate Browning's testimony that the defendant shot the victim in the backyard near where the body was found. As discussed above, there were other scenarios that supported the defendant's involvement in the crime that did not require him to be in a position immediately proximate to the victim.
In sum, although there was prosecutorial impropriety, it was not so blatantly egregious or inexcusable as to require the invalidation of the jury's verdict and an order for a new trial.
Conclusion
For the reasons set forth above, the following defense motions are denied:
Motion to Dismiss
Motion in Arrest of Judgment
Motion for Acquittal
Motion for New Trial (impossibility)
Motion for New Trial (improper argument)
So ordered at Bridgeport, Connecticut this 22nd day of April 2010.