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State v. Franklin

Appellate Court of Connecticut

December 29, 2015

STATE OF CONNECTICUT
v.
ZACKERY C. FRANKLIN

Argued September 25, 2015.

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Substitute information charging the defendant with the crimes of murder, felony murder, attempt to commit robbery in the first degree, carrying a pistol without a permit and criminal possession of a pistol or revolver, brought to the Superior Court in the judicial district of New Haven, where the charges of murder, felony murder and attempt to commit robbery in the first degree were tried to the jury before B. Fischer, J., and the charges of carrying a pistol without a permit and criminal possession of a pistol or revolver were tried to the court; verdict and judgment of guilty, from which the defendant appealed.

SYLLABUS

Convicted, after a jury trial, of the crimes of murder, felony murder and robbery or attempt to commit robbery in the first degree, and, after a trial to the court, of the crimes of carrying a pistol without a permit and criminal possession of a pistol or revolver, arising out of the shooting death of the victim, the defendant appealed. L, who knew both the defendant and the victim, testified as an eyewitness to the shooting. The victim was shot outside an apartment building where there were recessed alcoves between each unit on the ground floor. From L's vantage point in his backyard across the street, he could not see into the alcove, but could see people enter and leave. He testified that he saw the defendant shoot the victim, described the defendant's gun, and saw the defendant and another person, S, who was not holding a gun, running away from the scene and toward L's home. L then spoke to both the defendant and S in his kitchen, where L refused their offer of money and marijuana. Shortly thereafter, the defendant and S left the state. The defendant gave a false name to the police during a traffic stop and again when he was arrested in Virginia in connection with the shooting incident. Other witnesses for the state testified that the defendant had wanted the victim's gold chain and pendant, which was found in the front part of the alcove. On appeal, the defendant claimed, inter alia, that the evidence demonstrated that L could not have witnessed the shooting because it occurred in the alcove and the victim ran while injured and fell in the parking lot where the first responders found his body. Held :

1. Contrary to the defendant's claim that L could not have witnessed the shooting as it was physically impossible for his testimony to be true and that the remaining circumstantial evidence was insufficient to convict him, the evidence presented at trial was sufficient to support the defendant's convictions:

a. The jury could have concluded that the defendant was standing in a place where L could see him shooting the victim, despite the fact that shell casings were found inside the alcove where L could not see, as the state's experts testified that the location of the shell casings did not prove precisely from where the shots originated, and because the issue was one of L's credibility, and not impossibility, this court would not revisit the jury's determination on that issue.

b. The evidence was sufficient to prove the elements of the crimes charged, as L's testimony alone reasonably allowed the jury to infer that the defendant had committed all of the elements of the crime of murder, and coupled with certain stipulations, for the court to convict the defendant of criminal possession of a pistol or revolver and carrying a pistol without a permit; moreover, the cumulative force of other circumstantial evidence was sufficient to prove the elements of robbery or attempt to commit robbery and, accordingly, felony murder, which included testimony that the defendant had a motive to take the victim's necklace and that the victim's cell phone was missing, as well as evidence of the defendant's consciousness of guilt by his offer of money and marijuana to L, his departure from the state shortly after the shooting, and his twice giving a false name to the police.

2. The defendant could not prevail on his unpreserved claim that the verdict was against the weight of the evidence and thus required a new trial; the defendant's claim turned on whether the jury should have been prohibited from crediting L's testimony, and this court previously had concluded that there was no basis for that claim.

3. The trial court did not abuse its discretion by admitting certain evidence of the defendant's prior uncharged misconduct, namely, that approximately one month before the shooting he had threatened a witness with what looked like a concealed gun, as the trial court had a sufficient factual basis to admit the testimony notwithstanding the defendant's claim that the gun that the witness described was dissimilar to the murder weapon; moreover, the challenged testimony was relevant evidence that the defendant possessed the means to commit the crimes charged, and the trial court properly determined that its probative value outweighed any prejudicial effect in light of the limiting instruction that the court gave to the jury immediately following the testimony.

4. The defendant could not prevail on his unpreserved claim that certain alleged prosecutorial impropriety deprived him of a fair trial: contrary to the defendant's claim, the prosecutor's summary of the evidence during his closing argument was not prejudicially inaccurate but, rather, included inferences that the jury reasonably could have drawn from the cumulative evidence; moreover, this court found unavailing the defendant's attempt to turn an unpreserved evidentiary claim into one of prosecutorial impropriety, as the defendant did not seek to limit the scope of the witnesses' testimony during trial concerning certain statements he made about the victim's gold chain such that it was not improper for the prosecutor to invite the jury to draw substantive inferences concerning the defendant's motive from the statements of those witnesses; furthermore, although the prosecutor improperly argued in his closing and rebuttal arguments that certain uncharged misconduct evidence demonstrated that the defendant had the propensity to commit crimes, the comments did not deprive the defendant of a fair trial as this court was not persuaded that the jury would have reached a different conclusion about the shooter's identity had it not heard the improper remarks.

5. The trial court improperly merged the defendant's convictions for murder and felony murder and, pursuant to State v. Miranda (317 Conn. 741, 120 A.3d 490), this court remanded the case with direction to vacate the conviction of felony murder.

6. The defendant could not prevail on his claim that the judgment file had to be corrected because the trial court violated his right to a unanimous verdict by instructing the jury that it did not have to be unanimous as to whether the defendant had committed robbery or attempted to commit robbery, as long as the verdict was unanimous that he had committed one of those offenses; either offense was a class B felony that could serve as the predicate felony for a conviction of felony murder, and it was unclear what relief the defendant would receive from his request to correct the judgment file in this case.

G. Douglas Nash, for the appellant (defendant).

Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Kevin C. Doyle, former senior assistant state's attorney, for the appellee (state).

Gruendel, Lavine and Bishop, Js. LAVINE, J. In this opinion the other judges concurred.

OPINION

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LAVINE, J.

[162 Conn.App. 81] The defendant, Zackery C. Franklin, appeals from the judgment of conviction, rendered after a jury trial, of one count of murder in violation of General Statutes § 53a-54a (a), one count of felony murder in violation of General Statutes § 53a-54c, and one count of robbery or attempt to commit robbery in the first degree in violation of General Statutes § § 53a-49 (a) (2) and 53a-134 (a) (1). The defendant also appeals from the judgment of conviction rendered after a trial to the court of one count of carrying a pistol without a permit in violation of General Statutes § 29-35, and one count of criminal possession of a pistol or revolver in violation of General Statutes (Rev. to 2011) § 53a-217c (a) (1). On appeal, the defendant claims that (1) the evidence was insufficient to support the judgment of conviction on all counts because the state relied on a single eyewitness whose testimony was contradicted by the physical evidence; (2) the verdicts were against the weight of the physical evidence, entitling him to a new trial; (3) the court erred in admitting prior misconduct evidence to show that he possessed the means to commit the crimes; (4) the prosecutor engaged in impropriety during closing argument; (5) the court erred in merging the convictions for murder and felony murder; and (6) the judgment file must be corrected because the conviction for " robbery or attempted robbery" encompassed a unanimous finding on the lesser offense of attempt but not the greater completed offense of robbery. We reverse the judgment of the court as to the felony murder conviction. We affirm the judgment in all other respects.

The defendant's convictions arise from the murder of John Claude James (victim). On July 9, 2011, the [162 Conn.App. 82] victim was in the area of Howard Avenue and Putnam Street in New Haven. At approximately 6 p.m., firefighters responded to a call that someone had been shot; they found the victim on the sidewalk adjacent to the entrance to the parking lot behind 518-526 Howard Avenue. The victim had been shot three times and he died shortly after being taken to the hospital.

The jury reasonably could have found the following facts. The defendant had a motive to kill the victim so that he could obtain the victim's gold chain, holding a joker medallion.[1] The victim was wearing this chain on July 9, 2011. Two witnesses, Carol Boxley and Charles Caple, stated individually to police that on or about July 9, 2011, they overheard the defendant discussing gold jewelry, including the victim's joker chain. Boxley told police that the defendant said " we're going to get the joker chain 'cause gold is high now." Caple

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told police that on the day the victim was shot, the defendant may have said that he was " gonna get" the victim.

Boxley and her family lived at 536 Howard Avenue. Her daughter, Renicka (Nicky) Boxley, had a relationship with the defendant and was pregnant with his child. Boxley's son, Antonio Lofton, Jr., witnessed the victim's shooting.

At approximately 5:30 p.m. on July 9, 2011, Dorothy Council was on the back porch of 530 Howard Avenue when the victim stopped by to greet her. The victim left soon after and approximately fifteen minutes later, Council heard gunshots and ran inside 530 Howard Avenue. Looking through a window, Council saw the victim run across the parking lot toward Putnam Street, lose his balance, spin around, and fall down at the entrance of the parking lot to 518-526 Howard Avenue.

[162 Conn.App. 83] At this time, Lofton was in his backyard at 536 Howard Avenue, from where he could see across Putnam Street and into the parking lot of 518-526 Howard Avenue. Lofton saw the defendant shoot the victim in the chest. The defendant fired " three or more" or " maybe four or five shots" while the victim was facing him. Lofton saw the defendant, with a " silvery handgun" in his hand, and his friend, Earl Simpson, run from the back of Putnam Street toward the front of his house. He did not see anything in Simpson's hands. Lofton was able to identify the defendant because he had known him for about a year. He had known the victim for longer, and was able to identify him as well.

Lofton went into his house using a rear entrance and saw the defendant in his kitchen. Both Simpson and the defendant offered Lofton marijuana and money, which Lofton did not accept. The defendant and Simpson ran out of the apartment toward Carlisle Street and got into a waiting black car.

At this time, Caple was in the area and heard the gunshots. He saw a black Acura, which he thought belonged to Isis Hargrove, drive by on Carlisle Street. Hargrove was Simpson's sister and Caple was familiar with her. He knew that she had been involved with the defendant, and had seen her previously driving a black Acura in the area. Police later confirmed that she had a black Acura registered in her name. The police gathered evidence from the area, including several of the victim's belongings, in the front part of the alcove between 518 and 522 Howard Avenue. The police found the victim's unbroken joker chain on the ground. Although the victim had a cell phone with him that afternoon, the police recovered only the leather cell phone case that the victim was known to wear on his belt. The police found six nine millimeter shell casings in the alcove, as well as blood-like substances near the alcove and on the [162 Conn.App. 84] sidewalk near the entrance to the parking lot where the victim was found.

On July 11, 2011, the police spoke with Hargrove about the shooting. On the night of July 12, 2011, the defendant and Hargrove, along with Simpson and his girlfriend Mikia Gary, rented a car and drove to North Carolina. On the way, the car was stopped for speeding in New Jersey. The state trooper asked for the occupants' identifications, and the defendant gave his brother's name. In the following weeks, the defendant was not seen in the area of Howard Avenue and Putnam Street, although he regularly spent time there prior to the shooting.

On November 16, 2011, the defendant was arrested in Virginia. When the deputy making the arrest asked the defendant for identification, he gave a YMCA card with his photograph on it but with a name

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other than his own. At trial, the state asserted that the defendant's use of false names and his flight from the state were ...


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