State v. Mullings

519 A.2d 58, 202 Conn. 1, 1987 Conn. LEXIS 727
CourtSupreme Court of Connecticut
DecidedJanuary 6, 1987
Docket12914
StatusPublished
Cited by42 cases

This text of 519 A.2d 58 (State v. Mullings) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Mullings, 519 A.2d 58, 202 Conn. 1, 1987 Conn. LEXIS 727 (Colo. 1987).

Opinion

Dannehy, J.

The defendant, Glen A. Mullings, was found guilty by a jury of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4).1 After denying motions for a judgment of acquittal at the close of the state’s case and for a new trial at the close of all the evidence, the trial court sentenced the defendant to imprisonment for a term of ten years. On appeal, the defendant contends that the trial court erred: (1) in refusing to strike the testimony of a certain witness; (2) in its instructions regarding circumstantial evidence; (3) in allowing certain cross-examination of the defendant’s alibi witnesses; and (4) in refusing to give an adverse inference instruction concerning the unavailability of evidence. We find no error.

After the jury was selected, the trial court heard evidence on the defendant’s motion in limine to exclude the testimony of Charles Bryant, the victim of the crime and the key witness for the state.2 After conducting [3]*3a hearing outside of the jury’s presence, the court denied the defendant’s motion. The evidence received by the court at the hearing will be stated subsequently when we consider that issue. This opinion will commence with a summary of the pertinent evidence during the state’s case in chief.

The evidence most favorable to the state indicates that on December 22,1984, Bryant was working at the Arco AM-PM Minimart in New Haven. He testified that he was alone in the store when the defendant entered between 2:30 and 3 a.m. and asked for a person called “Rerun.” Bryant told the defendant that he had not seen Rerun. At the same time the defendant began walking toward an office in the rear of the store. As he reached the office he inquired whether the Chungs, who owned the Minimart, were on the premises. The defendant returned from the office to the counter where Bryant was standing. He put his hand in his pocket, withdrew a gun, replaced the gun in his pocket and said, “This is a robbery.” The defendant demanded and was given the money from the cash register and a change box that was hidden under the counter. He ordered Bryant not to push the “panic button” and to move away from the counter. Bryant complied with both orders. The defendant stated that he knew where the panic button was and also knew the “angle of the [surveillance] camera.” While these events were transpiring, Bryant had a good opportunity to view the defendant. He later described the robber as a black male, between five feet eight inches and six feet tall, about twenty-eight to thirty years old, and of average build. The man was beardless, with a “Jeri curl” hairstyle, and was wearing a black velvet jacket and brown trousers. According to Bryant, the defendant went into [4]*4the office to disconnect the surveillance camera, returned to the counter, and asked for a box of Newport cigarettes. He assured Bryant that he would not hurt him and stated that he committed the robbery to get back at the Chungs. After the defendant left the store Bryant looked out and saw him driving away in a large, dark-colored automobile.

Bryant reported the robbery to the police and several uniformed officers of the New Haven police department promptly responded. At the scene Bryant furnished the investigating officers with a detailed description of the man who had robbed him, including the man’s height, weight, build, age, hair length and clothing. Bryant was immediately taken to police headquarters to view some photographs. The police showed Bryant a group of photographs but Bryant made no identification. Thereafter Bryant was shown a second array of photographs but again he made no identification.

Within two weeks after the robbery, Bryant again saw the defendant while working the night shift at the Minimart. He testified that one evening he heard someone rattling the Minimart door, which was locked. According to Bryant, as he approached the door he saw the defendant standing outside. The defendant took one look at Bryant, turned and ran. Bryant watched the defendant drive away in a dark-colored Cadillac automobile.

On January 14, 1985, Bryant was asked to come to police headquarters to look at a third array of photographs. At this time, he selected the defendant’s photograph and said that he was “98 percent sure” that the defendant was the robber. In court, Bryant positively identified the defendant as the man he had personally observed on the morning of the robbery. During Bryant’s testimony, the jury also saw a videotape of [5]*5the robbery up until the time the robber turned off the machine. The videotape corroborated Bryant’s version of the events. After Bryant finished his testimony, he stood side by side with the defendant to allow the jury to compare their sizes because Bryant had testified that the robber was shorter than he.

Hsick Chung, the owner of the Minimart, testified that he had employed the defendant on the night shift for approximately one month in the summer of 1984. When the defendant left Chung’s employ he was an angry man, apparently because of an argument he had had with Chung’s wife. Chung testified that the defendant knew the location of the surveillance system and the panic button in the store. He also knew where the cash box was concealed.

The defendant was apprehended on March 1, 1985, and at the time of his arrest was in or near his 1970 Cadillac automobile. A package of Newport cigarettes was found in the car and the defendant told the police that he smoked that brand of cigarettes. The defendant also told the police that he had worked at the Minimart and that he knew the location of the panic button and the video camera. Although the defendant had not been informed that Bryant was the Minimart clerk on duty during the night of the robbery, he told the police that the store clerk wore glasses and therefore could have been mistaken about his identification.

I

The defendant’s first contention on appeal is that his motion to exclude Bryant’s testimony was erroneously denied. This motion was filed prior to trial and was based on the alleged prejudicial effect of the loss of a statement Bryant had given to the police. The defendant claimed that the statement Bryant made to the police after the robbery had been deliberately destroyed and, therefore, the interests of justice required exclud[6]*6ing Bryant’s testimony from the record. See Practice Book § 755; State v. Myers, 193 Conn. 457, 479 A.2d 199 (1984). After hearing the evidence on the motion, the court denied it.3

The court’s ruling must be examined in light of the testimony adduced at the pretrial hearing on the defendant’s motion in limine. The preliminary testimony revealed facts similar to those recounted above. Bryant testified first, relating his account of the armed robbery of the Minimart as it had occurred early in the morning of December 22,1984. Bryant also stated that shortly after the robbery when police officers arrived at the store, he recapitulated the robbery and gave them a description of the man who had robbed him. One officer, Andrew Gambardella, took notes while Bryant was interviewed, and read back portions of the notes to Bryant to ensure their accuracy. Bryant then went to the police station to view an array of photographs. While at the station, Bryant also recounted the robbery incident and described the robber to Detective Donna Amato, who tape-recorded his statements.

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Bluebook (online)
519 A.2d 58, 202 Conn. 1, 1987 Conn. LEXIS 727, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mullings-conn-1987.