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State v. Small

Court of Appeals of Connecticut

April 3, 2018

STATE OF CONNECTICUT
v.
CARL SMALL

          Argued December 6, 2017

         Procedural History

         Substitute information charging the defendant with the crimes of burglary in the first degree, murder, larceny in the third degree, larceny in the fourth degree, stealing a firearm, criminal possession of a firearm, sale of narcotics and possession of narcotics, brought to the Superior Court in the judicial district of Hartford and tried to the jury before Bentivegna, J.; thereafter, the court denied the defendant's motion to preclude certain evidence; verdict of guilty; subsequently, the court denied the defendant's motion for a new trial and rendered judgment in accordance with the verdict, from which the defendant appealed. Affirmed.

          Robert L. O'Brien, assigned counsel, with whom, on the brief, was Christopher Duby, assigned counsel, for the appellant (defendant).

          Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, Vicki Melchiorre, supervisory assistant state's attorney, and Elizabeth S. Tanaka, assistant state's attorney, for the appellee (state).

          Lavine, Sheldon and Bear, Js.

          OPINION

          SHELDON, J.

         The defendant, Carl Small, was convicted, after a jury trial, of murder in violation of General Statutes § 53a-54a (a), burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), larceny in the third degree in violation of General Statutes § 53a-124 (a) (1), larceny in the fourth degree in violation of General Statutes § 53a-125 (a), stealing a firearm in violation of General Statutes § 53a-212, criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1), sale of narcotics in violation of General Statutes § 21a-277 (a), and possession of narcotics in violation of General Statutes § 21a-279 (a). On appeal, the defendant claims that: (1) the trial court abused its discretion in admitting evidence of criminal gangs; (2) he was deprived of his constitutional right to a fair trial by prosecutorial improprieties; and (3) the court abused its discretion in denying his motion for a new trial. We affirm the judgment of the trial court.

         The jury reasonably could have found the following facts. In June, 2012, the defendant lived in Bloomfield with Lenionell Frost and Frost's mother. Frost was a customer at Sovereign Bank in West Hartford, where he became acquainted with the victim, Christopher Donato, a bank teller. On June 4, 2012, the defendant and Frost visited the victim at his apartment in Hartford. The victim had a collection of rifles, handguns, ammunition, knives, guitars and electronic equipment. The victim allowed the defendant and Frost to handle the guns. The victim expressed an interest in obtaining ecstasy pills, and the defendant indicated that he could assist the victim.

         Sometime thereafter, the victim gave the defendant approximately one thousand dollars and, on June 8, 2012, the defendant and Frost returned to the victim's apartment. During the visit, the defendant gave the victim a bag of ecstasy pills. The defendant asked the victim if he could borrow one of his guns, and the victim replied in the negative. After the defendant and Frost left the apartment, the victim showed the ecstasy pills to his girlfriend, Katherine Robert, and informed her that he intended to sell them.

         On June 11, 2012, the victim told his college friend, Andrew Zippin, that he had purchased ecstasy pills and suspected that the seller had sold him a substandard product. After testing some of the pills, Zippin agreed with the victim's assessment. Sometime thereafter, the victim informed Zippin that he was meeting with the defendant in order either to obtain new ecstasy pills or to get his money back.

         On June 16, 2012, the victim called Robert, and the two agreed that Robert would visit the victim at his apartment at approximately 6 p.m. or 7 p.m. that night. Cell phone records indicate that the last phone call the victim made to Robert from his cell phone was at 3:12 p.m. The victim's father sent a text message to him at 5:33 p.m., and the victim replied. Robert arrived at the rear parking lot of the apartment building where the victim lived at 7:15 p.m. Robert called and sent a text message to the victim, but did not receive a response. When Robert did not find a key under the doormat to the victim's apartment as the two previously had arranged, she knocked on the door. When the victim failed to respond, Robert banged on the door and screamed to the victim to let her in. At 7:29 p.m., when Robert was outside the victim's apartment, she received a text message from the victim's phone stating that he had walked to a store, was ‘‘2 messed up 2 drive, '' and asking her to ‘‘plz'' pick him up at the corner of Prospect Avenue and Kane Street. Robert thought it was unusual that the text contained the abbreviation ‘‘plz, '' which the victim did not use in text messages, and that the victim had walked to the store because the victim was unwilling to walk distances as a result of constant pain he experienced due to scoliosis.

         Robert walked to her car and received another text message from the victim's cell phone, at 7:31 p.m., asking her location. Robert replied that she was coming to get him. Robert drove to the designated location, but could not locate the victim. Robert sent a text message to the victim's cell phone numerous times and received no response. Robert returned to the victim's apartment building, but returned home when she noticed that the victim's car, which had been in the parking lot when she left to find the victim, was gone. At 9 p.m., the victim's neighbor noticed red shoe treads on the common hallway floor.

         That evening, the defendant arrived at Lechaun Milton's residence in Hartford with a duffle bag. He asked Milton if she had ammonia to clean a gun and inquired whether she knew someone who wanted to buy a gun. Milton responded in the negative to both questions. The defendant left on foot and arrived on Vine Street at the nearby house of Milton's sister, Latasha Drummond, at about sunset. While he was there, Latasha Drummond noticed that he was pacing, appeared nervous, and made several phone calls. When Latasha Drummond asked the defendant why he was bleeding, he explained that he had cut his hand. At 8:44 p.m., the defendant used his cell phone to call Felix Rodriguez, a ranking member of the Bronx, New York chapter of the national street gang, the Bloods. At about 9:45 p.m., the defendant called Frost and asked Frost to drive him home. Upon returning to his Bloomfield residence, the defendant told Frost that he needed to take a shower and to change his clothes. The defendant borrowed a pair of Frost's sneakers. Frost drove the defendant to a shopping center in Bloomfield, where the defendant wanted to take a bus to Hartford so that he could return to Vine Street.

         The following morning, the defendant telephoned Frost and asked him to launder his black jeans, then place them in the trash. The defendant arrived at Shanell Milner's residence in Hartford with a bag containing guns, bullets, knives, laptops and headphones. He asked Milner if she knew anyone who might be interested in purchasing the items, and Milner responded that she did not.

         The victim did not report for work the following Monday, June 18, 2012, nor did he respond to text messages or phone calls from the bank manager. The police went to the victim's apartment at the request of his parents. The police found bloody shoe prints on the hallway floor and the victim's body in his apartment. The victim had died from multiple stab wounds to his torso. The apartment appeared to be ransacked, and the victim's firearms and other possessions were missing. There was a bloodied Swiffer mop in the bathtub and a bloody fingerprint on the latch of the bathroom window. DNA testing of the blood on the latch eliminated the victim as a contributor but was not sufficient to include or exclude the defendant as a contributor. The following day, the police found the victim's car near Vine Street. DNA testing of bloodstains on the steering wheel and the interior latch of the driver's door matched the defendant's DNA profile. The expected frequency of individuals who could be a contributor of DNA to the bloodstains was less than 1 in 7 billion.

         On June 19, 2012, Latasha Drummond's boyfriend, Andrew Rison, noticed that the defendant was carrying a bag and saw that the defendant's hand was injured. When Rison asked the defendant, who appeared nervous, what was wrong, the defendant replied that he ‘‘had to fuck up this cracker real bad'' and mentioned a robbery. The defendant then asked Rison if he knew anyone who wanted to purchase a gun.

         The defendant spent the evening of June 20, 2012, at Milner's residence. The defendant told Milner that he ‘‘caught a body, '' which Milner understood to mean that he had killed someone. That evening, the defendant communicated on Facebook with Rodriguez. The Face-book messages between the defendant and Rodriguez at that time concerned guns, money, and ecstasy.

         The defendant was arrested on June 28, 2012, in Philadelphia, Pennsylvania. He thereafter was charged with murder in violation of § 53a-54a (a), burglary in the first degree in violation of § 53a-101 (a) (2), larceny in the third degree in violation of § 53a-124 (a) (1), larceny in the fourth degree in violation of § 53a-125 (a), stealing a firearm in violation of § 53a-212, criminal possession of a firearm in violation of § 53a-217 (a) (1), sale of narcotics in violation of § 21a-277 (a), and possession of narcotics in violation of § 21a-279 (a). Following a jury trial, the defendant was convicted of all charges. The court imposed a total effective sentence of seventy years incarceration. This appeal followed. Additional facts will be set forth as necessary.

         I

         The defendant first claims that the court abused its discretion in admitting certain evidence relating to the Bloods. We disagree.

         During the state's case-in-chief, defense counsel filed a motion in limine seeking to preclude Matthew King, an agent with the Federal Bureau of Investigation, from testifying about Rodriguez' involvement with the Bloods. The prosecutor argued that the state was not making any claim that the defendant was a member of the Bloods, but that the evidence would tend to show that the defendant contacted an individual who as a member of the Bloods might be interested in purchasing guns. The court denied the motion, concluding that the testimony was relevant and that its probative value outweighed its prejudicial effect.

         King testified that he had studied the Bloods for more than three years and that during that time he had become familiar with terminology used by the Bloods. He testified that Rodriguez' street name was ‘‘Murdaveli Cokeboy Rollack, '' which indicated that Rodriguez was a member of the ‘‘sex, money, murder Bloods'' based in Bronx, New York, who were active in the south end of Hartford. King explained that the Bloods use guns to engage in criminal activity and that they obtain their guns in any way they can. He defined certain slang terminology used by the defendant and Rodriguez in their Facebook communications. When questioned about the defendant's June 7, 2012 Facebook message to Rodriguez, asking, ‘‘[g]ot anybody dat got skittles, '' King explained that the word ‘‘skittles'' referred to ecstasy. King also clarified that when the defendant informed Rodriguez on June 20, 2012, that: ‘‘I got to get low but I need extra paper, mu, '' and, ‘‘[t]ake this bag of goodies off my hand for seven ...


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