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State v. Walker

Supreme Court of Connecticut

May 8, 1990

STATE of Connecticut
v.
Errol A. WALKER.

Argued Feb. 8, 1990.

Page 189

Jeremy N. Weingast, for appellant (defendant).

Geoffrey E. Marion, Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty. and Kevin McMahon, Asst. State's Atty., for appellee (plaintiff).

Before PETERS, C.J., and CALLAHAN, GLASS, COVELLO and HULL, JJ.

[215 Conn. 2] CALLAHAN, Associate Justice.

The defendant, Errol A. Walker, was charged with and convicted of the crime of arson in the first degree in violation of General Statutes § 53a-111(a)(1). [1] The charge arose out of an incendiary fire that occurred at a three-story multiple family dwelling at 483-485 Garden Street in Hartford at approximately 3:15 a.m. on June 9, 1987. [2]

[215 Conn. 3] There was evidence of the following facts. The defendant was the landlord of the building at 483-485 Garden Street. The building was in poor condition and needed considerable renovation and repair work. On the date of the fire, the premises were covered by a fire insurance policy issued by the Middlesex Mutual Insurance Company.

On the morning of June 9, 1987, Glenn Mauldin was visiting a friend at another address on Garden Street. At 3:15 a.m., when he left his friend's house and entered his automobile, his attention was attracted by an explosion and then flames emanating from 483-485 Garden Street. Immediately after hearing the explosion and observing the flames, Mauldin saw a man run from the side of the burning building. The man ran to a car that was parked in front of Mauldin's. Mauldin immediately drove to the rear of the car, took note of its license plate, and then pulled up and stopped alongside it. While parked alongside the car Mauldin was able to observe the man and the automobile for about thirty seconds in the light of his headlights, his side parking lights, and an overhead street light. Thereafter, Mauldin drove to the nearest fire station to report the fire. When he arrived at the station, however, he learned that the fire had already been reported. He then drove back to Garden

Page 190

Street and gave police officers who had responded to the fire the license plate number he had noted and a description of the car and the man he had seen. [3] Later, on June 18, he gave the police a written statement.

[215 Conn. 4] Kelton Merritt, who lived in the first floor apartment at 483-485 Garden Street and was home with his family at the time of the explosion and fire, told the investigating authorities that the car described by Mauldin belonged to his landlord, the defendant. The authorities made numerous attempts to contact the defendant over the next two weeks, and left messages at places that he frequented. The defendant, however, did not call the fire marshall's office until June 25, more than two weeks after the fire. Subsequent to contacting the authorities, the defendant gave a statement in which he said that he had gone to work in Putnam at 4 a.m. on the day of the fire. The police, however, learned from the defendant's employer that the defendant had actually gone to work in Norwich at 7 a.m. on the day of June 9. The defendant was arrested and charged with arson in the first degree pursuant to a warrant on August 26, 1987.

I

The defendant first claims that his constitutional right to a fair trial was violated by the admission into evidence, over his objection, of a photograph of his automobile. [4] The facts underlying the defendant's claim can be stated briefly.

At trial, Mauldin was shown a photograph of the defendant's automobile by the prosecutor who stated: "It's not a very good picture. Can you identify that?" Mauldin said that he could and proceeded to identify the photograph as depicting the same automobile and license plate he had seen on the morning of the fire. The defendant objected to the admission of the photograph on the ground that an insufficient foundation had been laid as to who had taken it and under what circumstances. The trial court denied the defendant's [215 Conn. 5] objection and the defendant took an exception. [5] Thereafter, on cross-examination Mauldin again identified the photograph as showing the automobile and license plate he had seen on the morning of June 9. He was then asked by defense counsel whether the photograph was "a fair representation of what [the car] looked liked that night." In response, he answered, "No." He then went on to explain that the background of the photograph was darker than the scene actually was on the morning of the fire, because on that morning the area of the defendant's automobile had been illuminated by a street light and the lights of his automobile. The defendant did not renew his objection at that point.

The defendant's claim that the admission of the photograph constituted constitutional error is without merit. " 'Generally, "the admissibility of evidence is a matter of state law and unless there is a resultant denial of fundamental fairness or the denial of a specific constitutional right, no constitutional issue is involved." State v. Periere, [186 Conn. 599, 611, 442 A.2d 1345 (1982) ], quoting United States ex rel. Bibbs v. Twomey, 506 F.2d 1220, 1222 (7th Cir.1974).' State v. Talton, 197 Conn. 280, 289-90, 497 A.2d 35 (1985)." State v. Vilalastra, 207 Conn. 35, 46, 540 A.2d 42 (1988). The defendant has failed to cite a single case from any jurisdiction wherein any court has held that the admission into evidence of a photograph in a situation even remotely analogous to that on appeal is constitutional error, state or federal. Clearly the defendant " 'has put a constitutional tag on a nonconstitutional evidentiary

Page 191

ruling.' State v. Douglas, 203 Conn. 445, 455, 525 A.2d 101 (1987)...." State v. Vilalastra, supra; State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985); State v. ...


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