STATE v. HARRIS, 43 Conn. App. 830 (1996)

687 A.2d 544

(14466)Appellate Court of Connecticut

Dupont, C.J., and Landau and Heiman, Js.

Convicted of the crime of conspiracy to commit murder, the defendant appealed to this court. Held:

1. The trial court did not abuse its discretion in admitting evidence of the defendant’s prior uncharged misconduct as evidence of the relationship among the three conspirators and as evidence of their changed course of conduct following the murder.

2. The trial court did not abuse its discretion in admitting into evidence a mug shot of the defendant that was identified by a witness who had been with the victim when he was shot, but had not seen the assailant; although the photograph had only limited probative value as it merely confirmed the witness’ testimony that he knew the defendant, the defendant did not sustain his burden of proving that its admission was harmful.

Argued November 4, 1996

Officially released December 24, 1996

Substitute information charging the defendant with the crime of conspiracy to commit murder, brought to the Superior Court in the judicial district of New Haven and tried to the jury before Hadden, J.;
verdict and judgment of guilty, from which the defendant appealed to this court. Affirmed.

Donald Dakers, special public defender, for the appellant (defendant).

Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Michael A. Pepper, assistant state’s attorney, for the appellee (state).

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LANDAU, J.

The defendant, Willie Harris, appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a)[1] and 53a-54a (a).[2]
On appeal, the defendant claims that the trial court improperly (1) admitted prior misconduct evidence, and (2) admitted a mug shot of the defendant that a witness used in making an out-of-court identification. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On April 27, 1993, at approximately 9 p.m., Ticey Brown was walking on the sidewalk in front of 75 County Street in New Haven when he was struck by two bullets, one in the head and one in the chest, causing his death. The shots were fired from the back of a vacant lot on the side of 75 County Street. Subsequent ballistic tests established that the bullets had been fired from two different weapons. At the time of the shooting, Brown was walking near 75 County Street with Ephraim Gilliard and Sam Hook. Gilliard and Hook were walking behind Brown when the shots were fired and did not see who fired the shots.

Approximately fifteen minutes before the shooting, Antonio West observed the defendant, Bobby Jones and Darryl McIntyre sitting in a burgundy Ford Mustang in a parking lot near the crime scene. When they exited the car, West saw Jones and McIntyre put on black masks and saw that the defendant was wearing a green hooded sweatshirt. West noted that Jones was taller

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than the defendant and McIntyre. He observed the three men cross the street, walk through a parking lot, and proceed toward 75 County Street.

On the night of the shooting, Latisha Lewis, from a window that overlooked the rear of 75 County Street, observed three individuals near the back edge of 75 County Street. She noted that two of them were wearing black clothing, that the other wore a hooded sweatshirt, and that one individual was taller than the others. From her window, she observed two of the three individuals fire their weapons in the direction of County Street. The three individuals then fled the scene. Priscilla Harris, who heard the gunshots and looked out her window, observed two individuals running toward Goffe Street and the defendant, whom she positively identified, running toward Orchard Street.

On June 16, 1993, the police issued a warrant for the arrests of the defendant, Jones and McIntyre. On November 9, 1993, while searching a residence pursuant to a warrant, the police found the defendant hiding in the darkened kitchen and Jones underneath a bed.

I
The defendant first argues that the trial court improperly admitted evidence of prior misconduct. The trial court admitted evidence proffered by two state witnesses that the defendant, Jones and McIntyre engaged in the sale of narcotics. The state argued that the evidence was highly probative of the relationship between the three individuals. The defendant objected to the admission of this evidence, arguing that its probative value was outweighed by its prejudicial effect.

At trial, West testified that he had observed the defendant, Jones and McIntyre, on several occasions, selling narcotics at the corner of Dickerman and

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Orchard Streets.[3] Immediately following this testimony, the trial court gave a limiting instruction pointing out to the jury that the defendant is charged with conspiracy to commit murder, “not with drug cocaine possession, sale of cocaine or anything of that nature.” It also instructed the jury that the evidence was admitted because it “is the state’s claim that these three people, the [defendant, Jones] and this McIntyre had a relationship with each other . . . tend[ing] to corroborate the fact that the three of them hung around together . . . .” The fact that they were selling drugs “is not to be used against them in deciding this case.”[4]

Another witness, Jeffrey Covington, testified that he was actively engaged in the narcotics trade with the defendant, Jones and McIntyre and that the defendant controlled the operation. He testified that Jones supplied him with the drugs to sell and that each day he

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returned the proceeds from the sale of the drugs to Jones. Finally, he testified that following Brown’s murder he could not reach Jones for three days. The defendant objected to the admissibility of the testimony, and argued that its probative value was outweighed by its prejudicial effect. The state asserted that the evidence was highly probative of the relationship among the three conspirators and also highly probative of the conspirators’ changed course of conduct subsequent to the murder. After ruling that the probative value of the evidence outweighed the prejudicial impact, the trial court overruled the objection.[5] The trial court then gave a limiting instruction as to the permissible use of Covington’s testimony.[6] Finally, in the trial court’s charge to the jury

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on the issue of prior misconduct evidence,[7] it reiterated the purposes for which the evidence could be used.

“As a general rule, evidence of a defendant’s prior crimes or misconduct is not admissible. State v. Crumpton,

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202 Conn. 224, 228, 520 A.2d 226 (1987); State v. Geyer, 194 Conn. 1, 5, 480 A.2d 489 (1984). We have, however, recognized exceptions to the general rule if the purpose for which the evidence is offered is to prove intent, identity, malice, motive, a system of criminal activity or the elements of a crime. State v. Mooney, 218 Conn. 85, 126, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S.Ct. 330, 116 L.Ed.2d 270 (1991); State
v. Brown, 199 Conn. 47, 56, 505 A.2d 1225 (1986); State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982). `[Prior misconduct] evidence may also be used to corroborate crucial prosecution testimony. United States
v. Everett, 825 F.2d 658, 660 (2d Cir. 1987), cert. denied, 484 U.S. 1069, 108 S.Ct. 1035, 98 L.Ed.2d 999 (1988) . . . .’ State v. Santiago, 224 Conn. 325, 338, 618 A.2d 32 (1992); State v. Duntz, 223 Conn. 207, 240, 613 A.2d 224 (1992).” State v. Cooper, 227 Conn. 417, 424, 630 A.2d 1043
(1993).

Our analysis of whether evidence of prior misconduct is admissible is two-pronged. First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. “Second, the probative value of such evidence must outweigh the prejudicial effect of the other crimes evidence.” State v. Figueroa, 235 Conn. 145, 162, 665 A.2d 63 (1995); State v. Braman, 191 Conn. 670, 676, 469 A.2d 760
(1983). Applying the foregoing principles in our examination of the proffered evidence, we conclude that the trial court properly ruled that West’s testimony was relevant and material to at least one of the exceptions that allow evidence of uncharged misconduct to be admitted. First, the court found that West’s testimony that he saw the conspirators selling cocaine together corroborated the state’s claim that they had a relationship with each other and, therefore, was relevant to the charge of conspiracy. Second, the trial court found that Covington’s testimony that he was looking to turn over

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money to Jones, who worked with the defendant, as part of an ongoing drug operation, and that suddenly he could not find him is relevant to corroborate other evidence that the defendant was in hiding.

In finding the challenged evidence to be relevant, the trial court carefully balanced the probative value of the challenged evidence against its prejudicial effect, ruled that the probative value outweighed its prejudicial effect, and admitted the proffered testimony. Relevant evidence of prior uncharged misconduct that is prejudicial in nature “is admissible if the trial court, in the exercise of its sound discretion, determines that its probative value, for one or more of the purposes for which it is admissible, outweighs its prejudicial impact on the accused.”State v. Ramsundar, 204 Conn. 4, 15, 526 A.2d 1311, cert. denied, 484 U.S. 955, 108 S.Ct. 348, 98 L.Ed.2d 374 (1987).

We will uphold the trial court’s ruling on the admission of uncharged misconduct evidence unless there is a manifest abuse of discretion. Se State v. Braman, supra, 191 Conn. 676. It is unlikely that the evidence of the defendant’s involvement with drugs could have shocked or influenced the jury to the extent that the defendant was deprived of a fair trial. See State v. Artieri, 206 Conn. 81, 88-89, 536 A.2d 567 (1988). Considering the purpose of the challenged evidence and the trial court’s limiting instruction and its charge, we cannot conclude that the trial court abused its discretion in finding that the probative value of the evidence outweighed its prejudicial effect and in admitting prior uncharged misconduct by the defendant. See State v. Brown, supra, 199 Conn. 58. Accordingly, we conclude that the trial court did not abuse its discretion in admitting the prior misconduct evidence.

II
The defendant next claims that the trial court improperly permitted the state to introduce a mug shot of the

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defendant that Gilliard used in making an out-of-court identification. The defendant argues that the testimony had no evidentiary value and cannot be justified as buttressing Gilliard’s subsequent in-court identification. The state maintains that this particular evidentiary claim was not raised in the trial court and, thus, should not be reviewed on appeal. The state further maintains that, if this court decides to review this claim, the trial court properly exercised its discretion, and, even if the admission of the mug shot was improper, such impropriety was harmless.

At trial, three mug shots of the defendant were introduced through three separate witnesses. On appeal, the defendant objects only to the mug shot introduced through Gilliard.[8] Gilliard, unlike West and Harris, did not testify that he had observed the defendant or the other conspirators in the area of the crime scene that night. Rather, he testified that he had been asked by the police if he knew the conspirators and, when he said that he did, he was shown a mug shot of each of them, which he identified.

“`A “mug shot” is admissible if it is relevant and material and if its probative value outweighs its prejudicial tendency.'” State v. Peary, 176 Conn. 170, 175, 405 A.2d 626 (1978), quoting State v. Crowe, 174 Conn. 129, 131, 384 A.2d 340 (1977). “The primary responsibility for conducting the prejudicial-probative balancing test rests with the trial court, and its conclusion will be disturbed only for a manifest abuse of discretion.” State v. Figueroa, supra, 235 Conn. 162.

In the present case, the mug shot had limited probative value because it merely confirmed Gilliard’s testimony

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that he knew the defendant. The trial court did not consider the prejudicial-probative balancing test in determining the admissibility of the mug shot. The trial court did, however, require the state to cover any objectionable material that mitigated the prejudicial effect of the mug shot. See State v. Woods, 171 Conn. 610, 612-13, 370 A.2d 1080
(1976). While we caution against the indiscriminate use of mug shots for identification; see generally annot., 30 A.L.R.3d 908 (1970); we find no manifest abuse of discretion here.

Furthermore, even if the defendant had met his burden of showing an improper exercise of the trial court’s discretion in admitting the mug shot into evidence, we conclude that the defendant has nonetheless failed to sustain his burden of proving that such evidentiary impropriety was harmful. See State v. Dolphin, 178 Conn. 564, 572, 424 A.2d 266 (1979). “In general, the admissibility of evidence does not constitute a constitutional issue. State v. Walker, [215 Conn. 1, 5, 574 A.2d 188
(1990)]; State v. Smith, 198 Conn. 147, 156, 502 A.2d 874 (1985). When a trial error in a criminal case does not involve a constitutional violation the burden is on the defendant to demonstrate the harmfulness of the court’s error. . . . The defendant must show that it is more probable than not that the erroneous action of the court affected the result. . . . State v. Sierra, [213 Conn. 442, 436, 568 A.2d 448 (1990)].” (Internal quotation marks omitted.) State v. Polanco, 26 Conn. App. 33, 42, 597 A.2d 830 (1991).

The admission of the defendant’s photograph identified by Gilliard was cumulative. Two other witnesses, West and Priscilla, identified two other photographs and both were properly admitted. We find it improbable that the result in this case would have been different

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had the state introduced only two photographs, rather than three. Se State v. Fiocchi, 17 Conn. App. 326, 338-39, 553 A.2d 181, cert. denied, 210 Conn. 812, 556 A.2d 611 (1989).

The evidence of the defendant’s guilt was very strong. The jury could reasonably have found that the three conspirators arrived in Jones’ burgundy Ford Mustang at the area of the shooting about fifteen minutes prior to the murder. They parked the vehicle one block from the scene. Jones and McIntyre wore black clothing and masks and the defendant wore a green hooded sweatshirt. Two of the three men opened fire in the direction of County Street, and the victim was shot in the head and chest from gunfire coming from the back of 75 County Street. The three men then fled the scene. All this is contrary to the defendant’s statement to the police that he was nowhere near the scene of the murder that night.

In light of the evidence presented at trial, the defendant has failed to sustain his burden and, thus, we conclude that the admission of the evidence was harmless.

The judgment is affirmed.

In this opinion the other judges concurred.