State v. Mendoza

988 A.2d 329, 119 Conn. App. 304, 2010 Conn. App. LEXIS 46
CourtConnecticut Appellate Court
DecidedFebruary 9, 2010
DocketAC 29547
StatusPublished
Cited by6 cases

This text of 988 A.2d 329 (State v. Mendoza) 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. Mendoza, 988 A.2d 329, 119 Conn. App. 304, 2010 Conn. App. LEXIS 46 (Colo. Ct. App. 2010).

Opinions

Opinion

GRUENDEL, J.

The defendant, Noel Mendoza, appeals from the judgment of conviction, rendered after a jury trial, of criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (l).1 He claims that the trial court abused its discretion in permitting the state to reopen its case-in-chief and improperly denied his motion for a judgment of acquittal. In addition, the defendant alleges a double jeopardy violation. We affirm the judgment of the trial court.

The following undisputed facts are relevant to our resolution of the present appeal. In the early horns of June 20, 2006, the defendant’s girlfriend, Dianna DeJesus, sat on her front porch at 63 Arch Street in Meriden. At that time, a dispute arose between the defendant and another individual on the property, and [307]*307the defendant brandished a handgun. Frightened, DeJesus fled inside her residence. She then heard two gunshots, which she reported to the police via a 911 call. Jason Smith, whose residence abuts that of DeJesus, similarly contacted the police after hearing gunshots and observing a man on the concrete retaining wall that separates the properties. Officers from the Meriden police department responded to the scene, where they found two nine millimeter shell casings on the steps leading to the rear porch of DeJesus’ residence and a Kel-Tec P-11 nine millimeter semiautomatic pistol with live ammunition in the magazine in a doghouse at the rear of DeJesus’ property.

The defendant thereafter was arrested and charged, by amended information dated September 12,2007, with criminal possession of a firearm in violation of § 53a-217 (a) (1) and reckless endangerment in the first degree in violation of General Statutes § 53a-63 (a). The state further filed a part B information charging the defendant with being a persistent serious felony offender in light of two prior convictions for the sale of narcotics in violation of General Statutes § 21a-277 (a).

A jury trial commenced on September 18, 2007. As part of its case-in-chief, the state presented the testimony of the Meriden police officers who discovered the firearm and shell casings on the DeJesus property. The state also offered the testimony of Gerard Petillo, a forensic firearm examiner at the department of public safety. Petillo testified that testing confirmed that the recovered firearm was operable. In addition, both DeJesus and Smith testified, and the state introduced approximately two dozen exhibits into evidence. On September 19, 2007, the state rested, and the defendant immediately moved for a judgment of acquittal, stating that the state had not presented “evidence sufficient to support [the case] going to the jurors.” The state [308]*308objected, and a bench conference followed. Immediately thereafter, the following colloquy ensued:

“The Court: All right. The court is going to reserve decision on the [motion for a judgment of acquittal]. I’m going to review my notes. In the meantime, [counsel], [I] just excused the jury and [the state] rested about five minutes ago. [The prosecutor] indicated there was the issue . . . which had been placed on the record earlier on, I forget what day, regarding [the] defendant’s prior felony conviction with regard to the first count as a possible stipulation and you wish to be heard on that?
“[The Prosecutor]: Yes, Your Honor. I did approach counsel prior to the start of trial with regard to the element of count one2 regarding the defendant previously being convicted of a felony. Subsequent to that . . . the state indicated on the record, again, that the state was seeking a stipulation. Counsel indicated that he would consider that and discuss that with his client, and that issue was never broached again. So, if defense counsel’s willing to stipulate, there won’t be any issue at this point. If defense is not willing to stipulate, the state’s going to make a motion to reopen its case so that it may satisfy that particular prong of count one.
“The Court: [Defense counsel], my recollection is . . . that matter, I believe, was placed on the record. [The prosecutor] just noted that that matter has not been, apparently, resolved prior to the time [he] just rested, but it had been broached. It doesn’t come as a surprise. What ... do you have to say?
“[Defense Counsel]: Well, Your Honor, the state is correct, Your Honor. They did . . . approach me in regards to my client’s 'willingness to stipulate to that issue. I indicated to them ... I couldn’t make that [309]*309decision until I approached my client and consulted with him and gave him my opinion. Throughout the, I guess, preparations for trial and preparations for evidence, I neglected to talk to my client about that issue, Your Honor. If I could, Your Honor, speak to him over the course of this evening and get back to the court tomorrow morning and to [the prosecutor], I’m pretty sure we’d be able to resolve it.
“The Court: All right.”

The court thus reserved its decision on the motion and dismissed the jury for the day.

The next morning, the court addressed the defendant’s motion for a judgment of acquittal outside the presence of the jury. After hearing from the parties, the court granted the motion with respect to the reckless endangerment charge. The court then shifted its attention to the criminal possession of a firearm charge, noting that the state filed a motion “to reopen its casein-chief in order to offer evidence of the defendant’s felony status” that morning. During argument thereon, the state maintained that it “inadvertently rested prior to providing any evidence of the defendant’s convicted felon status” and emphasized that “the defendant did not alert the state to the evidentiary gap” concerning his prior felony convictions. The state opined that “the defendant’s felony status really is not a contested issue,” stating that it earlier had filed a part B information detailing his prior convictions and “had ordered certified copies of conviction for the defendant’s felony convictions . . . .” In addition, the state averred that it had placed on the record the possibility of a stipulation regarding the defendant’s prior convictions at the outset of trial.3 In response, defense counsel conceded that [310]*310“mere inadvertence” caused the evidentiary gap and further acknowledged that “if the state had not inadvertently forgotten ... to introduce [that] evidence, there would be no prejudice [to the defendant].” Defense counsel nevertheless contended that the state’s motion to reopen its case-in-chief should be denied. Relying on the decision of our Supreme Court in State v. Allen, 205 Conn. 370, 533 A.2d 559 (1987), counsel contended that “the defendant doesn’t have to specifically state on the record what ... is lacking in the state’s evidence, so long as he raises the motion for a judgment of acquittal . . . and that becomes the trigger ... to alert the state ... to the deficiency . . . in their evidence . . . .”

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Related

State v. Simmons
Connecticut Appellate Court, 2019
State of Minnesota v. Quintin Lynn Thomas
882 N.W.2d 640 (Court of Appeals of Minnesota, 2016)
State v. Freeman
33 A.3d 256 (Connecticut Appellate Court, 2011)
State v. Mendoza
990 A.2d 868 (Supreme Court of Connecticut, 2010)
State v. Mendoza
988 A.2d 329 (Connecticut Appellate Court, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
988 A.2d 329, 119 Conn. App. 304, 2010 Conn. App. LEXIS 46, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mendoza-connappct-2010.