State v. Colon

799 A.2d 317, 70 Conn. App. 707, 2002 Conn. App. LEXIS 346
CourtConnecticut Appellate Court
DecidedJuly 2, 2002
DocketAC 22339
StatusPublished
Cited by14 cases

This text of 799 A.2d 317 (State v. Colon) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Colon, 799 A.2d 317, 70 Conn. App. 707, 2002 Conn. App. LEXIS 346 (Colo. Ct. App. 2002).

Opinion

Opinion

MIHALAKOS, J.

The defendant, Nelson Colon, appeals from the judgment of conviction, rendered after a jury trial, of criminal possession of a pistol or revolver in violation of General Statutes (Rev. to 1995) § 53a-217c1 and murder in violation of General Statutes § 53a-[709]*70954a.2 On appeal, the defendant claims that the trial court improperly (1) denied his motion for a mistrial following improper comments made by the prosecutor during closing argument, (2) instructed the jury regarding the element of intent, (3) admitted into evidence a videotape of the crime scene and (4) denied his motion to suppress out-of-court identifications of him made by several witnesses on the basis of a single photograph. In addition, the defendant argues that there was insufficient evidence to prove intent, an essential element of the crime of murder. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 2, 1996, Paul Tirado resided at 1 Malikowski Circle, New Britain. Noel Soto was temporarily living with Tirado during the previous months, and Amy Finn also occasionally stayed at the apartment. In addition, Marcos Jimenez lived at 23 Malikowski Circle and the defendant, Nelson Colon, resided with Luz Gonzalez at 65 Malikowski Circle. All of these people knew one another and were present at Tirado’s home on August 2, 1996. Over the course of the day, Tirado, Soto, Finn, Jimenez and the defendant smoked “ready rock”3 and drank alcohol in the apartment.

At approximately 4 p.m., the defendant drove Soto to his mother’s home to retrieve either his keys or his wallet. At that time, the defendant was intoxicated and had trouble operating the vehicle. The two returned to Tirado’s home, but the defendant left after about one [710]*710hour. At approximately 7 p.m., the defendant returned to Tirado’s house with Jimenez. Jimenez brought with him a supply of “ready rock” that he shared with the group. Shortly thereafter, the defendant and Tirado argued, and the defendant angrily left the apartment.

About fifteen minutes after the defendant departed, the victim, Ramon Rivera, arrived. Soto was the only person in the apartment who previously had known Rivera. Rivera planned to stay for the night and took a shower shortly after he arrived.

In the meantime, the defendant drove home after leaving the apartment. He walked into his home, walked upstairs and left right away. The defendant returned to Tirado’s home and entered the apartment without knocking on the door, causing a ruckus. As Rivera was walking out of the bathroom, he told the defendant to “lower your voice and respect the man’s house.” The defendant responded, “I don’t like you.” After stating, “[A]s a matter of fact, I really don’t like you,” the defendant began shooting at Rivera. Soto witnessed a struggle between the defendant and Rivera, and watched as Jimenez attempted to intervene. Soto escaped through the kitchen door.

While this was happening, Tirado and Finn were in the bedroom. They heard the gunshots and Finn looked to see what was happening. She saw the defendant shooting. Both Tirado and Finn escaped through the bedroom window and hid behind a dumpster across the street. As they waited, they saw the defendant exit the apartment with an object in his hand that resembled a handgun and Jimenez trailed behind. The defendant sped off in his vehicle and Jimenez walked toward his home at 23 Malikowski Circle.

After the defendant left, Soto reentered the apartment and called 911. When the New Britain police arrived shortly after 9 p.m., Soto, Tirado, Finn and Jimenez [711]*711were all at the apartment waiting and cooperated with the police. The four friends voluntarily went to the police station and provided statements regarding the shooting. They each said that “Nelson” shot the victim, although none knew his last name, and they gave a detailed description of the defendant and his vehicle. Soto informed the police as to where the defendant was living at the time. In addition, Tirado, Finn, Soto and Jimenez each voluntarily submitted to an atomic absorption test,4 and each tested negative for gunpowder residue. After he left the police station, Jimenez could not be located to testify at trial.

Later that evening, the defendant’s vehicle was located in Hartford. The vehicle was impounded and searched. New Britain police found what appeared to be blood on the steering wheel and the trunk. The defendant, however, was not in the area. Later testing of the blood found on the trunk of the defendant’s vehicle revealed traces of DNA consistent with the victim’s DNA.

On January 23, 1997, the defendant was found at a bus station in Philadelphia and taken into custody. The defendant was charged with criminal possession of a pistol and murder. On April 24, 2000, the jury returned a guilty verdict on both counts, and the defendant received a total effective sentence of sixty-five year’s incarceration. This appeal followed. Additional facts will be set forth where necessary to our disposition of the issues on appeal.

I

The defendant first claims that he was deprived of his right against self-incrimination as guaranteed by the fifth amendment to the United States constitution. This claim stems from remarks made by the prosecutor dur[712]*712ing his rebuttal closing argument, which the defendant views as comments on his failure to testify. Furthermore, the defendant claims that the court’s curative instructions were insufficient to remedy the harm. We disagree.

The defendant claims that the following portion of the state’s closing argument violated his constitutional rights: “Do you remember — I don’t remember hearing a reason why Nelson Colon fled to Philadelphia. What did he say? Fled to Philadelphia — drugs, drugs, drugs. That’s what you’re supposed to do is ignore all the evidence in this case and just remember the people were using drugs, and then it’s easy, isn’t it?

=!= * *

“Nelson Colon was not on the scene. Nelson Colon was the only person who was not on the scene when the police arrived. The judge will tell you that it’s up [to] you to decide. But when someone flees the scene of a crime, that can be strong evidence that they knew they were guilty and that’s why they left.

“And you have to decide, is there any evidence at all which indicates any other reason for Nelson Colon leaving?” (Emphasis added.)

“[T]he Fifth Amendment, in its direct application to the Federal Government, and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” (Internal quotation marks omitted.) State v. Burton, 258 Conn. 153, 172, 778 A.2d 955 (2001), quoting Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965); see also General Statutes § 54-84.5 “An indirect remark by the prosecuting attorney [713]*713which draws the jury’s attention to the fact that the accused failed to testify may also violate the accused’s right.” State v.

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Cite This Page — Counsel Stack

Bluebook (online)
799 A.2d 317, 70 Conn. App. 707, 2002 Conn. App. LEXIS 346, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-colon-connappct-2002.