Opinion
No. CR01-553550
April 28, 2005
RULINGS RE MOTION FOR NEW TRIAL, MOTION FOR JUDGMENT OF ACQUITTAL
This matter is before the court on two pro se motions: motion for new trial, dated August 4, 2004; and motion for judgment of acquittal, dated January 14, 2005.
At trial, the defendant was represented by retained counsel; during the appellate stages, he was represented by counsel provided by the Division of Public Defender Services. (The Appellate Court decision, 84 Conn.App., infra, reads: ". . . assistant public defender, with whom, on brief, was Anthony Carter, pro se, for the appellant . . ."). On each of the days on which the present motions were heard, this court canvassed the defendant regarding his desire to proceed pro se; he repeatedly indicated that he did not wish trial counsel to represent him in these hearings, did not wish to retain other private counsel (and was not asking for a continuance to do so), and would not apply for public defender representation. Defendant stated he preferred representing himself, notwithstanding a lengthy canvass highlighting the drawbacks of self-representation. The court appointed stand-by counsel who was present, and available for consultation, during all phases of these proceedings.
The 1/14/05 motion, entitled "motion for judgment of acquittal" refers to Prac. Bk. Section 42-52, which establishes the time requirements for the filing of such motion. Section 42-52 of the 2005 Prac. Bk. makes reference to a post-judgment "motion for judgment of acquittal," as opposed to the former post-judgment "motion for acquittal."
Defendant was tried on a four-count Information charging Assault in the First Degree, in violation of General Statutes Section 53a-59(a)(5); Attempt to Commit Assault in the First Degree, in violation of General Statutes Sections 53a-49(a)(2) and 53a-59(a)(5); Risk of Injury, Section 53-21; and Criminal Possession of a Firearm, Section 53a-217(a)(1). On May 2, 2002, the jury returned verdicts of guilty on all four counts. At that time, the court granted counsel's request for an extension of the five-day period within which to file post-verdict motions; those motions were filed on June 11, 2002. Thereafter (on 8/2/02 — date of sentencing), this court heard, and denied, defendant's motions for "acquittal after verdict" and for a new trial; the court imposed a total effective sentence of twenty-seven years.
At all times, up to and including sentencing, defendant was represented by experienced, retained counsel: Attorney Gerald M. Klein, of Hartford. On the date of sentencing, defendant filed, and presented oral argument with respect to, a lengthy "Pro se Supplemental Memorandum Of Law In Support Of Motion For Acquittal After Verdict."
An appeal was filed, and the conviction was affirmed by the Appellate Court. State v. Carter, 84 Conn.App. 263 (2004). Certification for appeal from the Appellate Court was denied. State v. Carter, 271 Conn. 932 (2004).
Accordingly, all avenues of direct appellate review have been exhausted. In the present proceedings, the State has argued, persuasively, that the claims asserted in these motions were raised, or could have been raised, in the direct appeal.
As to collateral review, defendant indicated that a habeas petition is pending in the Superior Court system.
Defendant's present motion for a new trial asserts that his "convictions are based on perjured testimony . . . knowingly used by the prosecuting authority . . . in violation of his 14th Amendment right to a fair trial of the U.S. Constitution." The judgment of acquittal motion, filed while these hearings were pending, alleges that the trial evidence was insufficient on the first count, Assault in the First Degree, Section 53a-59(a)(5), because the State did not prove that he acted with specific intent to cause physical injury to the child victim. In support of these post-verdict motions, defendant filed a memorandum of law (directed, primarily, to the contentions set forth in the new trial motion); the State did not file a brief in response.
Hearings were conducted on the pending motions. Relative to these motions, the court has reviewed docket entries and limited documentation from the official court file; the exhibits admitted at these hearings, including a transcript of trial testimony on May 14, 2002 (State's witness, Maurice Miller); full transcripts covering each of the days on which these hearings were conducted; an amended petition for writ of habeas corpus filed by the defendant in the Judicial District of Tolland, dated 12/3/04; and authorities cited by the State's Attorney and the defendant. As set forth on the record, the court has taken judicial notice of the arrest warrant affidavit. I have carefully considered the oral arguments of the parties.
TIMELINESS
Prac. Bk. Section 42-52, entitled "Time for Filing Motion for Judgment of Acquittal," reads: "[u]nless the judicial authority, in the interests of justice, permits otherwise, a motion for judgment of acquittal shall be made within five days after a . . . verdict or within any further time the judicial authority allows during the five day period." Section 42-54, entitled "Time for Filing a Motion for New Trial," contains substantially identical language. As stated, motions for a new trial and an acquittal were filed by defendant's retained trial attorney, post-verdict, in June 2002, and were denied after hearing. Now, more than two years later, defendant has filed these pro se motions for a new trial and an acquittal.
As stated, at around the time the original post-verdict motions were before the court, defendant had filed a handwritten "Supplemental Memorandum of Law in Support of Motion of Acquittal After Verdict" (dated June 25, 2002, and, filed July 8, 2002) addressing the sufficiency of the evidence on all four counts of the Information, which filing, apparently, was intended to supplement his retained counsel's presentation on the motion for acquittal. Also as heretofore indicated, the court heard defendant's supplemental argument at sentencing and denied the motion.
Defendant argues that the "interests of justice" dictate that the time be extended to permit a hearing, at this late date, on these pro se motions. Of course, any extension granted at the present time would not be within the initial five-day period as required by Sections 42-52 and 42-54. In determining whether the "interests of justice" would be served by hearing these motions at this extraordinarily late date, it seems appropriate to consider, and assess, the substantive merit of defendant's contentions.
a. Motion for Judgment of Acquittal.
Defendant's asserted ground for a post-judgment acquittal is the State's not having proved that he acted with the specific intent to cause physical injury to the minor victim.
It is this court's view that the Appellate Court's opinion disposing of defendant's direct appeal resolved the sufficiency issue he is now raising. State v. Carter, 84 Conn.App., supra). The defendant was prosecuted, under Section 53a-59(a)(5), on First Degree Assault: that acting with the intent to cause physical injury to another person, he thereby caused such injury to [the named victim], a child under ten years of age, by means of the discharge of a firearm. That is precisely what was alleged in the first count of the long-form Information. The other person was Miller (as the investigative reports, the arrest warrant affidavit, and the trial evidence clearly indicated), and the case was prosecuted (and defended) on the theory of transferred intent pursuant to the express language of Section 53a-59(a)(5) ("causes such injury to such person or to a third person"). The evidence developed through the police investigation, as detailed in the investigative reports available to the defense prior to trial, and as set forth in the arrest warrant affidavit, as well as the evidence adduced at trial, depicted a factual scenario whereby defendant, while engaged in a drug turf dispute with Miller, repeatedly discharged a firearm at Miller intending to physically injure him, missed him, but shot, and seriously injured, a seven-year-old victim. On direct appeal, a principal issue raised by defendant's appellate counsel was whether this court was correct in charging the jury on transferred intent, absent evidence that defendant was aware of the child victim's presence nearby. Referring to the plain language of the statute (53a-59(a)(5)), and State v. Mullins, 76 Ohio App.3d 633, 602 N.E.2d 769 (1992), the Appellate Court held that the doctrine of transferred intent applied in the instant case, stating "the proximity of the victim and the knowledge of the perpetrator about the ultimate victim are immaterial."
Since it was not required that the shooter even be aware of the victim's presence, there was no requirement that the State prove he specifically intended to injure the child victim, provided it was proven he intended to injure the person at whom he was shooting (Miller). Clearly, there was evidence which, if believed by the jury, would support a conclusion that defendant specifically intended to injure Miller. As stated in the Appellate Court decision, the jury could reasonably have found the following facts: "[t]he defendant arrived in a rented red Blazer, exited the vehicle and then chased Miller along the alleyway while shooting at him. Miller saw a handgun in the defendant's hand and noticed the muzzle flash. A bullet fired from the defendant's gun struck and injured the victim, who was standing about one block away near a vehicle listening to music . . . While incarcerated . . . defendant told Brunson, his cell mate, about his dispute with Miller . . . the events of July 4, 2001 . . . [and] admitted that a bullet fired from his gun struck the victim."
The defendant's reliance on State v. Torres, 47 Conn.App. 205 (1997) is misplaced. Torres was convicted on counts one, three, and five of a five-count information; he was acquitted on the remaining counts. Factually, several persons were present at the scene of the shooting, including G and L. Under the first count, Torres was convicted of Conspiracy to Commit Murder of G, but, on the second count, he was acquitted of murdering G. Torres was also acquitted on the fourth count which charged Second Degree Assault, alleging that "with intent to cause physical injury to another person, [he] caused such injury to L by using a firearm." The Appellate Court reversed the conviction on the third count which charged Attempt to Commit Assault in the First Degree (Sections 53a-49(a)(2) and 53a-59(a)(1)), and alleged that when "acting with intent to cause serious physical injury to another person, [he] performed a substantial step in a course of conduct planned to culminate in the commission of the crime, to wit: arming himself with a deadly weapon, going to Allen Drive, and shooting [L]." (Emphasis added.) The State informed the jury that it did not claim that L, although receiving a gunshot shot wound, suffered serious physical injury (as defined in the Penal Code), thus explaining why Torres was charged with attempted First Degree Assault. The Appellate Court's review of the trial presentation disclosed that the defendant, the trial court, and the jury, reasonably believed that the "another person" in the count three allegation was L; that is, at trial, it had been claimed by the State, under count three, that Torres intended to cause serious physical injury to L. However, in defending the appeal, the State changed its theory of the case and, in undertaking to sustain the count three conviction, claimed that the intended victim in that count was actually G. Recognizing that at trial the entire thrust of the State's case, with regard to count three, was that L was the intended victim, the Appellate Court held that, on appeal, the State was not entitled to change its whole theory of the case from that which it pursued and presented to the jury at trial; the Appellate Court stated that "affirming a conviction on the basis of a theory not presented to the trial jury" would violate fundamental Due Process rights.
The fifth count charged Risk of Injury with reference to a child at the scene.
In Torres' appeal, his counsel argued that there was insufficient evidence to support the count three conviction because the State had failed to prove the requisite intent to harm L, and that Torres' intent to harm G was not transferrable on the attempt charge. See State v. Hinton, 227 Conn. 301 (1993). In contending that G was the intended victim of the count three attempted assault, the State's appellate counsel agreed that, notwithstanding the trial court's charge, the principle of transferred intent did not apply, stating: "[T]ransferred intent is simply not necessary because injury is not an essential element of criminal attempt . . . [T]ransferred intent is not needed to convict a defendant whose aim was poor of attempted assault . . . the issue in this appeal is not whether the doctrine of transferred intent applies to attempt liability generally. The state agrees it does not . . . transferred intent was irrelevant to the defendant's attempt to assault [G] . . ." The Appellate Court noted that in Hinton the Supreme Court stated ". . . under the circumstances of this case, the rule of lenity leads us to conclude that the transferred intent doctrine should not be applied to the crime of attempted murder."
More recently, the "theory of the case" doctrine was applied and explained by our Supreme Court in State v. Robert H., 273 Conn. 56, 78-85 (3/8/05). As discussed at length in both Torres and Robert H., this Due Process doctrine stems from the United States Supreme Court decision in Dunn v. United States and its progeny. cf Dunn v. United States, 442 U.S. 100 (1979); Chiarella v. United States, 445 U.S. 222 (1980); Cola v. Reardon, 787 F.2d 681, cert. denied, 479 U.S. 930 (1986).
In the instant case, unlike Torres, there exists no inconsistency between the State's position at trial and on appeal. As stated, this case was prosecuted and defended, at trial and on appeal, consistently, on the theory of transferred intent pursuant to the express language of Section 53a-59(a)(5); as the investigative reports, statements, and trial evidence indicated, the defendant specifically intended to cause physical injury to Miller, shot at him, missed, and the bullet hit the child victim, causing her physical injury.
In Torres, the Appellate Court, having determined that the State could not, under Due Process mandates, prevail in the appeal on grounds inconsonant with its position at trial, went on to consider the sufficiency of the evidence with respect to the third count. Since the State had presented no evidence at trial of Torres' intent as to L (the claimed victim at trial of the attempt), the conviction on that count could not stand. Here, as stated previously, ample evidence was presented at trial of this defendant's specific intent to cause physical injury to Miller. Thus, neither the Torres decision, nor the documentation submitted, supports this defendant's insufficiency claim asserted in the 1/14/05 motion for judgment of acquittal.
For essentially the same reason, defendant's contention (at oral argument) that the omission of Miller's name from the "another person" portion of the count one allegation deprived him of notice of the charge, and resulted in a variance in proof at trial, is unsupportable. It is, of course, true that "[t]he function of an accusatory pleading . . . is to inform a defendant of `the nature and cause of the accusation' as required by our federal and state constitutions." State v. Belton, 190 Conn. 496, 501 (1983). And, "an accused is required to defend only against the charge alleged." Also, "the state is limited to proving that the defendant has committed the offense in substantially the manner described" in a particular count. State v. Belton, id. However, the omission of the name of the "another person" from the first count allegation did not deprive defendant of notice of the crime charged. The allegation spelled out the transferred intent crime of First Degree Assault under the applicable statutory subdivision, with the name of the minor child appearing in the allegation only with respect to the person to whom physical injury was caused. In addition, the six-page arrest warrant affidavit, which was unsealed for delivery to defendant's trial counsel on October 17, 2001, months before the commencement of trial, sets forth a factual probable cause recitation, with which the trial presentation was essentially congruous, clearly premised on transferred intent, and identifying Miller as the intended victim and the minor child as the actual victim — the recipient of physical injury.
It is noted that this is not a case where, like Belton, the defendant was at risk of being convicted of a crime which was not alleged. In Belton, the burglary count of the information alleged only that the accused had "entered a building unlawfully," with the required specific intent; however, the trial court charged on both the unlawful entry portion of the burglary statute and on the "remains unlawfully" statutory language, thus creating a possibility, on a general verdict, that Belton was convicted of a crime not alleged. Here, the court's charge conformed to the allegation contained in count one, and evidence supporting that allegation was presented to the jury.
The arrest warrant issued on September 20, 2001, and the defendant was arrested the following day, 9/21. The court file entry reads: "10/17/01 Original warrant remains sealed — Attorney Kline to receive copy, but not allowed to disclose names of witnesses. Redacted copy to be given to public. S/Solomon, J." Thus, the defense had details of the alleged assault (and, certainly, the State's theory of the case) shortly after the day of the defendant's arraignment in Part A, and some six months prior to trial.
Similarly, the twenty-page "Prosecution Report" admitted in evidence in these proceedings (Defendant's Exhibit A) details the Hartford Police Department investigation revealing the scenario of shots fired by Carter at Miller, with intent to cause physical injury to Miller, missing Miller, and causing physical injury to the child victim; that is, facts indicating, and supporting, a transferred intent First Degree Assault. The investigation detailed in the "Prosecution Report" was completed prior to trial and was available to the defense; thus, there is no basis upon which to conclude that the defense did not have notice of the specifics of the charged offense.
On March 13, 2002, a motion for a bill of particulars was filed requesting that the State's Attorney file a long-form information "incorporating the facts and particulars which would disclose to the defendant information sufficient to enable him to prepare a defense." The defense did not object to the long-form information filed, and defended, at trial and thru appeal, on the basis of a charged transferred intent crime. Furthermore, as stated at oral argument, a motion for discovery was not filed. This court is, and certainly experienced trial counsel was, fully aware of the open file policy of the State's Attorney's office in this Judicial District and, as Mr. Thomas stated, investigative reports were made available prior to trial.
On the basis of the aforesaid, and particularly given the expiration of more than two and one-half years between the date the guilty verdicts were returned and the filing of this motion, the interests of justice do not weigh in favor of extending the filing period under Prac. Bk. Section 42-52.
b. Motion For New Trial
This motion alleges that the prosecuting authority knowingly used perjured testimony to obtain the conviction(s) in violation of defendant's Fourteenth Amendment rights.
According to the investigative report (Exhibit A), within a few hours of the shooting, the police ascertained that a drug dealer (Carter) had been shooting at another person (Miller), and that Carter was responsible for the gunshot injury sustained by the child victim as he (Carter) was chasing and firing at Miller, who was running away from behind a building on Enfield Street. On July 6, 2001, within roughly forty-eight hours of the shooting, the detectives located Miller; he detailed the ongoing dispute he had been having with Carter (known to him by a street name), and identified Carter from a photo array. He told the investigating detectives that at the time of the incident he was standing with a friend (Shorty) at the cut on Enfield Street when a red and black sports utility vehicle pulled up, a person got out, approached him asking "what's up," and began shooting at him. Miller stated that he ran through the cut toward Greenfield Street with the person chasing and firing a gun at him. He stated that he could not identify the person who was shooting at him. Miller indicated that shortly thereafter, he learned that a child had been shot. He refused to return to police headquarters to give a sworn written statement stating, "Oh I can't be doing that, I ain't no snitch." Miller also refused to sign the back of the photo board.
On September 20, 2001, a warrant was obtained for Carter's arrest (he was arrested the following day); the warrant was supported by a six-page affidavit setting forth substantially all of the above, including the indication by Miller that he could not identify the person who was shooting at him. On or about December 31, 2001, an arrest warrant issued for Miller.
The affidavit did not recite that Miller refused to provide a sworn written statement, the remark about not being a "snitch," and his unwillingness to sign the back of the photo board. In view of ample probable cause allegations contained in the supporting affidavit, such information was certainly not essential.
From Court's Exhibit #2, a transcript of Miller's trial testimony on May 14, 2002, it would appear that this arrest pertained to the 7/4/01 incident where Miller fired at Carter as he (Carter) ran back through the cut, in an opposite direction from the location of the child, to the red and black SUV, after his (Carter's) bullet supply had been exhausted. There were two other shooting incidents, on other dates/other locations, that were evidently part of the turf dispute between Carter and Miller; at trial, defense counsel's lengthy impeachment of Miller brought out, among other things, that Miller had never been charged with respect to those other occurrences.
On April 16, 2002, Miller had a number of pending criminal charges (together with outstanding VOP proceedings and uncharged criminal matters); on that date, he entered guilty pleas pursuant to a negotiated plea agreement with the State's Attorney's Office. The agreement provided for a total seven-year cap apparently conditioned on his testifying for the State in this trial, all of which was brought out in great detail, before the jury, through defense counsel's exceedingly thorough and incisive cross-examination of Miller.
It would appear from Exhibit #2 (cross-examination by defense counsel before the jury) that on or about this time (4/16/02), Miller, for the first time, gave the authorities a written statement.
At trial, Miller, in accordance with the plea agreement, testified fully concerning the facts of and surrounding, the 7/4/01 incident. He identified the defendant as the person who exited the red and black SUV, chased him through the cut, and fired shots at him. Defendant, in the instant motion, claims that this testimony constituted perjury in that it is inconsistent with what he orally told the investigating detectives on July 6, 2001.
A conviction obtained through the use of false evidence, known to be such by representatives of the State, must fail under Fourteenth Amendment standards. Napue v. United States, 360 U.S. 264, 264 (1959); Mooney v. Holohan, 294 U.S. 103 (1935).
Preliminarily, it is noted that, normally, more than simply an out of court, unsworn to, prior inconsistency is needed to establish the falsity element of perjury. cf. State v. Sanchez, 204 Conn. 472 (1987). As defendant's memorandum of law indicates, he relies on Agurs and the line of United States Supreme Court dealing primarily with nondisclosure by the prosecution, intentional or otherwise, of Brady impeaching material or information relevant to the defense of the case. United States v. Agurs, 427 U.S. 97 (1976) (non-disclosure of murder victim's criminal record evidencing violent character, pertinent to defendant's justification defense); Giglio v. United States, 405 U.S. 150 (1972) (failure to disclose promise to government's key witness that he would not be prosecuted if he testified); Napue v. Illinios, supra (government's key witness testified that he had not been promised anything in return for his testimony; thereafter, determined that a promise for reduction of sentence had been made, but never disclosed). Also, State v. Cohane, 193 Conn. 474 (1984) ( undisclosed, prior, inconsistent statement of witness). It is this court's view that the above decisions are generally inapplicable to this case; here, as stated, Miller's initial, oral statement to the investigating detective was disclosed to the defense early on, within a few weeks of the arrest, and months before trial, first through the arrest warrant affidavit and, thereafter, the investigative reports. This is not a case where, as described in Cohane, the truth seeking process was deliberately impeded by the withholding of impeachment evidence from the defense. Rather, here the Brady impeachment material was produced almost contemporaneously with the commencement of the prosecution; that is, the record substantiates disclosure of the information (Miller's 7/6 oral statement to the detectives) shortly following defendant's arrest, with the unsealing and production of the arrest warrant affidavit.
Perjury is defined by General Statutes Section 53a-156(a): "A person is guilty of perjury if, in any official proceeding, he intentionally, under oath, makes a false statement, swears, affirms or testifies falsely, to a material statement which he does not believe to be true."
Mooney v. Holohan, supra, and Pyle v. Kansas, 317 U.S. 213 (1942), state the obvious, and what is certainly universally acknowledged: the knowing use of perjured testimony to obtain a conviction violates Due Process, and can provide a ground for collaterally attacking a judgment of conviction. However, neither case held, nor in my reading, even implied, that such alleged ground would be established merely by pointing to a witness's previous, unsworn to, oral inconsistency, particularly when such a prior inconsistency was disclosed to the defense well in advance of trial. With regard, then, to the present situation, neither of these cases holds that collateral relief would be required, or even viable, where, as here, a prior inconsistency was disclosed and made available to the defense before trial.
In Mooney, the Attorney General of the State of California filed a return simply demurring to the Writ asserting that any acts or omissions of the prosecuting attorney, fraudulent or otherwise, were not in violation of Due Process unless the defendant was deprived of notice and hearing; the Supreme Court declined to "approve this narrow view of the requirement of due process," indicating that the requirement "cannot be deemed to be satisfied by mere notice and hearing if a State has contrived a conviction through . . . the presentation of testimony known to be perjured." Accordingly, the Court in Mooney rejected California's argument that it was not required to afford any corrective judicial process to address such alleged wrong, ultimately finding, however, that California did have such corrective process in place. Similarly, the Supreme Court in Pyle, citing Mooney, acknowledged that allegations of perjured testimony knowingly used to obtain a conviction would provide a ground for collateral attack on the basis of deprivation of Due Process. In terms of indicia of perjury, the submissions in Mooney revealed, among other things, that the State had previously filed a consent to reversal of the conviction, and to a new trial, which consent was rejected by the California Supreme Court on purely technical grounds, and in Pyle, information was presented indicating that evidence at a co-accused's trial entirely exonerated the petitioner, as well as documentation from the prosecutor stating that petitioner's conviction was a "grave mistake."
Defendant relies on the prior inconsistency as the principal indicia of perjury. But, as the State's Attorney argued: "The information that the defendant is referring to was . . . contained in the warrant. So . . . counsel at . . . time of trial . . . [was] aware of this information . . . Mr. Miller was a cooperating witness having reached an agreement with the state on the charges that were pending . . . And . . . that's very common for an individual, who was under suspicion of having committed a crime, not to give the police an accurate rendition of what took place. And then when they've limited their liability in terms of what charges they're facing and what potential sentences . . . to . . . give the entire and accurate story. And that's exactly what happened in this case."
Defendant's other assertions of perjury are neither persuasive nor particularly material. These principally had to do with "Shorty's" real name. Miller testified that Shorty was Marcus Jiles. To the extent that such was inconsistent with what is contained in the warrant, it was available prior to trial. Defendant testified that Shorty was Rich Porter, and that Porter was armed and in the cut on July 4. Although a transcript of the testimony of Maurice Bennefield, a rebuttal witness, was not placed in evidence, defendant represented that Bennefield testified Shorty's last name was Jiles, thus confirming Miller's testimony regarding the name. On 9/27/01, Marcus Jiles told the investigating detectives, as per Exhibit A, that he was not in the cut with Miller when the shooting occurred; Jiles did not testify at trial. In my view, neither Bennefield's nor Miller's testimony is rendered perjurious merely because Jiles, during the investigation, denied being in the cut at the time of the incident.
On the basis of the aforesaid, and again, given the expiration of over two years between the date when the guilty verdicts were returned in this case and the filing of this motion, the interests of justice do not weigh in favor of extending the Prac. Bk. Section 42-54 filing period.
CONCLUSION
The relief requested in both the motion for judgment of acquittal and the motion for new trial is denied.
The court wishes to express its gratitude to the Office of the Public Defender, judicial District of Hartford, and most particularly, to Attorney William O'Conner, for providing stand-by counsel services during these proceedings.
Mulcahy, JTR