State v. Mercado

54 A.3d 633, 139 Conn. App. 99, 2012 WL 5357932, 2012 Conn. App. LEXIS 516
CourtConnecticut Appellate Court
DecidedNovember 6, 2012
DocketAC 34402
StatusPublished
Cited by2 cases

This text of 54 A.3d 633 (State v. Mercado) 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. Mercado, 54 A.3d 633, 139 Conn. App. 99, 2012 WL 5357932, 2012 Conn. App. LEXIS 516 (Colo. Ct. App. 2012).

Opinion

Opinion

LAVINE, J.

The defendant, Marcos R. Mercado, Jr., appeals from the judgment of conviction, rendered after a jury verdict, of murder in violation of General Statutes § 53a-54a, felony murder in violation of General Statutes § 53a-54c and robbery in the first degree in violation of General Statutes § 53a-134 (a) (2).1 On appeal,2 the defendant claims that (1) the court abused its discretion by permitting the prosecutor to cross-examine him about prior misconduct and (2) the prosecutor’s deliberate violation of the court’s evidentiary order warrants reversal of his conviction. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On December 26, 2007, the Southington police went to the apartment of the victim, Thomas Szadkow-ski, at 81 Academy Street to check on his welfare, as he had not reported to work that day. The police found the victim in his kitchen, lying dead of a gunshot wound. During their search of the victim’s apartment, the South-ington and state police observed a number of open [101]*101windows on the screen of the victim’s computer. One window depicted an America Online instant message exchange between the defendant and the victim, which took place between approximately 8:45 and 9:45 p.m. on December 24, 2007.

The instant message screen revealed that the victim had invited the defendant to his apartment. Another open screen displayed the defendant’s photograph and profile. The defendant accepted the invitation and drove to the victim’s apartment. After the defendant and the victim engaged in a sexual act, the defendant retrieved a gun from his motor vehicle, returned to the victim’s apartment and shot him. When he left the apartment, the defendant took the victim’s Xbox 360 game console (Xbox). On December 26, 2007, the defendant gave the Xbox to a former girlfriend, Laurel Brooks, as a gift for her younger brother. The defendant was arrested at his home in New Britain on December 30, 2007. He subsequently signed a written statement and confessed, during a videotaped interview, to having shot the victim.3

Following his conviction of all crimes charged, the defendant filed a motion for a new trial in which he claimed that the court improperly “permitted the state to introduce testimony of . . . Brooks, concerning [the] defendant’s statements to her that he had committed robberies in the past . . . .” The court denied the motion for a new trial. The defendant appealed.

The defendant’s claims on appeal concern Brooks’ rebuttal testimony. The following facts place the defendant’s claims in context for our review.

[102]*102During the course of his investigation, Jay Suski, then a Southington police detective, took a statement from Brooks.4 Before Brooks took the witness stand to testify during the state’s case-in-chief, the defendant filed a motion in limine to preclude her from “testifying concerning the defendant’s alleged past about committing crimes. The defendant submits that the probative value of such testimony would be outweighed by the'prejudicial impact.”5 (Emphasis added.) The court granted [103]*103the motion in limine with respect to the state’s direct examination of Brooks. In issuing its ruling, the court also stated that “the prejudice outweighs the probative value with respect to the statement that [the defendant] has talked to me [Brooks] in the past about committing crimes. He talked about wanting to do robberies. He would give me details about how he would tie people up or break into their homes when they weren’t home. And . . . [t]his is why I didn’t want to know what he was involved in.” The court also stated that “[n]ow, the motion is granted with respect to the testimony on direct examination. If the defense on cross-examination opens the door or upon cross-examination of the defendant, then this would not — the court’s order doesn’t apply.”

The state offered Brooks’ testimony in conformity with the court’s order. After the state rested its casein-chief, the defendant took the witness stand to present evidence of an alibi defense. He claimed that the only reason he signed the written statement was because the police “told” him to do so. See footnote 3 of this opinion. He denied having the online conversation with the victim, going to the victim’s apartment, shooting the victim and knowing who caused the victim’s death. During the state’s cross-examination, the defendant maintained that he spent the evening of December 24, 2007, with a then girlfriend, Sally Palomino, and that he purchased the Xbox for $150 from Richard Diaz on December 25, 2007.

The prosecutor then sought permission from the court to question the defendant as to whether he had [104]*104made the statements to Brooks that were the subject of the defendant’s motion in limine. See footnote 5 of this opinion. The prosecutor noted that “the motion in limine did not apply [to the defendant], it applied to . . . Brooks, but I do believe that the state has a good faith basis to inquire of [the defendant] on cross with respect to those conversations with . . . Brooks.” The defendant objected, arguing that the “probative value of [the defendant’s statements] would be minimal and the prejudicial impact would be great. So, in the balancing test, I believe the prejudice outweighs the probative value." (Emphasis added.) The court overruled the defendant’s objection, stating that “[i]t’s cross-examination and the probative value outweighs the prejudice.” The prosecutor continued his cross-examination of the defendant, asking if he had made statements to Brooks about committing crimes.6 The defendant denied having done so.

During its rebuttal case, the state recalled Brooks. Brooks testified that prior to December 24, 2007, the defendant had talked to her about committing robberies.7 The defendant did not object to the prosecutor’s [105]*105questions, move that the testimony be stricken or ask the court to issue a limiting instruction.

On appeal, the defendant claims that the court improperly permitted the state to question him about prior misconduct because it did not fall within § 4-5 (b) of the Connecticut Code of Evidence.8 The defendant also claims that his conviction should be reversed because the prosecutor deliberately violated the court’s ruling on the motion in limine. In his brief, the defendant argues that the prosecutor was guilty of prosecutorial impropriety.9 The defendant did not object to the prosecutor’s examination of Brooks during the rebuttal portion of trial, did not seek to have her rebuttal testimony stricken, nor did he request a limiting or curative [106]*106instruction from the court. On appeal, the defendant cannot obtain review of Brooks’ rebuttal testimony by labeling it prosecutorial misconduct. See State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982) (“[p]utting a constitutional tag on a nonconstitutional claim will no more change its essential character than calling a bull a cow will change its gender”). “[0]nce identified, unpre-served evidentiary claims masquerading as constitutional claims will be summarily dismissed.” State v. Golding, 213 Conn.

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Related

Mercado v. Commissioner of Correction
193 A.3d 671 (Connecticut Appellate Court, 2018)
Lappostato v. Terk
71 A.3d 552 (Connecticut Appellate Court, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
54 A.3d 633, 139 Conn. App. 99, 2012 WL 5357932, 2012 Conn. App. LEXIS 516, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mercado-connappct-2012.