State v. Bellamy

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STATE OF CONNECTICUT v. BRANDON
MONTRELL BELLAMY
(AC 35399)
DiPentima, C. J., and Bear and Keller, Js.
Argued December 9, 2013—officially released April 22, 2014
(Appeal from Superior Court, judicial district of New
Haven, Alexander, J.)
James B. Streeto, assistant public defender, for the
appellant (defendant).
James M. Ralls, assistant state’s attorney, with
whom, on the brief, were Michael Dearington, state’s
attorney, and Michael Pepper and Kevin Doyle, senior
assistant state’s attorneys, for the appellee (state).
Opinion
DiPENTIMA, C. J. The defendant, Brandon Montrell
Bellamy, appeals from the judgment of conviction, ren-
dered after a jury trial, of two counts of murder in
violation of General Statutes § 53a-54a (a), assault in
the first degree in violation of General Statutes § 53a-
59 (a) (5), criminal possession of a pistol in violation
of General Statutes § 53a-217c (a) and carrying a pistol
without a permit in violation of General Statutes § 29-
35. On appeal, the defendant claims that the trial court
improperly (1) delivered prejudicial instructions to the
jury, (2) granted the state’s motion in limine barring
evidence of an eyewitness’ conviction for and involve-
ment with prostitution, and (3) allowed the state to
elicit prejudicial testimony from the mother of one of
the victims. We affirm the judgment of the court.
The jury reasonably could have found the following
facts. In 2008, two of the victims, Christopher Duncan
and Justin Davis, lived together with Duncan’s girl-
friend, D,1 in an apartment on the second and third
floors of a house located at 124 County Street in New
Haven. At times, the third victim, William Burruss, also
stayed at the same apartment. On April 18, 2008, Dun-
can, Davis and Burruss drove to Gotham City, a New
Haven nightclub. The defendant, with whom the victims
were acquainted, also attended Gotham City that night.
Sometime during that evening, an altercation
occurred between Burruss and the defendant; the two
men pushed each other back and forth for approxi-
mately three or four minutes until club security broke
up the fight. Following the incident, the three victims
stayed at the club until it closed at approximately 3
a.m. without further interaction with the defendant. The
victims left the club and, after dropping off another
friend, drove back to County Street, listening to loud
music on the way. Because the street was dark, the
men drove past the house where they lived with the
high beams activated to ensure that no one was waiting
for them. Seeing no one, they turned around and parked
in front of the house. Exiting the car, Duncan dropped
something and stopped to pick it up, such that he was
behind the others as they approached the house.
Upon coming to the driveway of the house, the vic-
tims heard a male voice from the side of the house
saying, ‘‘What up, now?’’ A man in a hooded sweatshirt
ran out from the shadows, firing several gunshots at
the victims. Burruss was shot and fell to the ground.
Duncan and Davis looked at each other and ran off in
opposite directions. Duncan ran toward Goffe Street.
He was shot in the arm and fell to the ground. When
he jumped back up, he was shot again through the back.
He continued to run, and when he reached the nearby
street he flagged down a driver, who brought him to
a hospital.
D, who was waiting for the victims at the house, had
heard the loud music from the car and was coming
down from the third floor to open the front door when
she heard more than fifteen gunshots from the street.
She ran into a bedroom on the second floor of the
house and looked out the front window to see what
was happening below. She saw a body lying motionless
on the sidewalk in front of the house. Farther out into
the street, she saw a man facing in the direction of Goffe
Street. When the man turned his head, D recognized him
as the defendant. She was unable to see whether he
was carrying a gun. After a few seconds, the defendant
ran off.
D went downstairs and exited the house, where she
found Davis lying on the ground by the stairs to the
house. After retrieving her cell phone from the apart-
ment, she went back outside, where she saw Burruss’
body. She then called emergency dispatch.
The police arrived on the scene at approximately 4
a.m. Burruss and Davis were taken to nearby hospitals,
where they both were pronounced dead from multiple
gunshot wounds.
The crime scene investigators swept the scene for
evidence relating to the shooting. Twenty-two nine mil-
limeter cartridge casings were recovered from the
scene, and it was determined that all had been fired
from the same weapon, most likely a Glock semiauto-
matic pistol. The weapon was never recovered. No fin-
gerprint or DNA evidence recovered by the police tied
the defendant to the scene.
After an investigation, the police arrested the defen-
dant. Following a trial, the jury found the defendant
guilty of two counts of murder, assault in the first
degree, criminal possession of a pistol and carrying a
pistol without a permit. The defendant received a total
effective sentence of 100 years of incarceration. This
appeal followed. Additional facts will be set forth as
necessary.
I
The defendant first claims that the court delivered
prejudicial jury instructions. He argues that (1) the
instructions on the issue of identification were prejudi-
cially erroneous and deprived him of a fair trial, and
(2) the entire charge was delivered at such a rapid speed
that the jury was unable to follow it. We affirm the
judgment of the court.
A
In support of his first claim, the defendant argues
that the court’s instructions prejudiced the defendant
in that, contrary to the model instructions promulgated
by the Judicial Branch, they emphasized the importance
of the eyewitness’ certainty without any qualification
that certainty does not mean accuracy. He also argues
that the court did not instruct the jury as to certain
factors for consideration that arguably would have
favored the defendant, such as distance, lighting, the
emotional state of the witness and the length of time
between the crime and identification. We conclude that
the defendant waived this claim.
The following additional facts and procedural history
are relevant to our discussion. As both the state and
the defense acknowledged in their closing arguments,
the critical issue at trial was the identity of the shooter.
The state’s primary evidence establishing the defendant
as the shooter was the testimony of D.
At trial, the defense pursued several strategies for
discrediting D’s testimony. This included noting the cir-
cumstances of her identification. When the police ini-
tially interviewed D on the night of the shooting in April,
2008, she denied having seen anyone responsible for
the crime. It was not until August, 2010, after having
moved out of state, that she communicated with the
Office of the State’s Attorney and told an inspector
what she had seen that night. She explained her initial
hesitance in revealing the identity of the shooter as
being based on fear that the defendant would retaliate
against her. The defense also highlighted the conditions
under which D had witnessed the events in question,
including the lighting, the distance, the viewing angle
and her emotional state at the time.
The court gave the following instruction on identifica-
tion: ‘‘Identity is an issue in every criminal case. An
element of each offense is the identity of the perpetra-
tor. The state must prove to you beyond a reasonable
doubt that this defendant was the individual who com-
mitted the crimes that the jury considers. Therefore,
the burden in this case is on the prosecution to prove
beyond a reasonable doubt not only that the crimes
charged were committed, but also that the defendant
was the person who committed the crime. If the state
does not prove the identity of the defendant as the
perpetrator beyond a reasonable doubt in any of the
offenses charged, you must find him not guilty of the
offense. You must be satisfied beyond a reasonable
doubt of the accuracy of the identification of the defen-
dant before you convict him. It is your duty to recall
and weigh and consider all of the evidence relating to
the identification of the defendant. You should consider
the opportunity the witness had to observe the defen-
dant, the degree of certainty of the identification made
by the witness, [and] whether the witness knew the
defendant before the identification in any other circum-
stances that you think are relevant to the issue of identi-
fication of the defendant.’’
On appeal, the defendant claims for the first time
that these instructions prejudiced him to the extent that
his constitutional right to a fair trial was violated. The
defendant seeks review of this unpreserved claim pur-
suant to State v. Golding, 213 Conn. 233, 567 A.2d 823(1989).2 We will review an unpreserved claim when ‘‘(1)
the record is adequate to review the alleged claim of
error; (2) the claim is of constitutional magnitude alleg-
ing the violation of a fundamental right; (3) the alleged
constitutional violation clearly exists and clearly
deprived the defendant of a fair trial; and (4) if subject
to harmless error analysis, the state has failed to demon-
strate harmlessness of the alleged constitutional viola-
tion beyond a reasonable doubt. In the absence of any
one of these conditions, the defendant’s claim will fail.’’
(Footnote omitted.) Id., 239–40.
In order to determine initially whether the defen-
dant’s claim is reviewable under Golding, we must first
consider whether that claim was waived at trial. ‘‘A
defendant in a criminal prosecution may waive one or
more of his or her fundamental rights. . . . [I]n the
usual Golding situation, the defendant raises a claim
on appeal [that], while not preserved at trial, at least
was not waived at trial. . . . [A] constitutional claim
that has been waived does not satisfy the third prong
of the Golding test because, in such circumstances, we
simply cannot conclude that injustice [has been] done
to either party . . . or that the alleged constitutional
violation clearly exists and clearly deprived the defen-
dant of a fair trial . . . .’’ (Citation omitted; internal
quotation marks omitted.) State v. Kitchens, 299 Conn.
447, 467, 10 A.3d 942 (2011).
In Kitchens, our Supreme Court held that ‘‘when the
trial court provides counsel with a copy of the proposed
jury instructions, allows a meaningful opportunity for
their review, solicits comments from counsel regarding
changes or modifications and counsel affirmatively
accepts the instructions proposed or given, the defen-
dant may be deemed to have knowledge of any potential
flaws therein and to have waived implicitly the constitu-
tional right to challenge the instructions on direct
appeal.’’ Id., 482–83. The court cautioned that ‘‘[s]uch
a determination by the reviewing court must be based
on a close examination of the record and the particular
facts and circumstances of each case.’’ Id., 483.
In this case, the record reflects that the state and the
defense were provided with a copy of a draft version
of the jury instructions on November 4, 2010.3 On
November 8, 2010, the court solicited comments from
both sides regarding changes or modifications to the
instructions. Defense counsel did not make any objec-
tions to the instructions at that time. Subsequent to
instructing the jury, the court again provided defense
counsel with an opportunity to object to any portion
of the instructions, and no objection was made as to
the instruction on identification. At sentencing, defense
counsel reiterated that the defense had been given an
opportunity to view the instructions and voice any
objections, and had declined to do so. In fact, defense
counsel explicitly stated that he did not have any issue
with the content of the instructions and had ‘‘agreed
on them’’ at the charging conference.
Since Kitchens, this court has found waiver in situa-
tions that resemble the facts of this case. In State v.
Beebe, 131 Conn. App. 485, 493, 27 A.3d 26 (2011), cert.
denied, 303 Conn. 921, 34 A.3d 397 (2012), we held
that a defendant had waived the right to challenge jury
instructions where ‘‘the court provided defense counsel
with a copy of the draft jury charge,’’ and ‘‘defense
counsel had meaningful and multiple opportunities to
review the trial court’s instructions and to object to
any language therein, and, in response to solicitation
by the trial court, repeatedly indicated his satisfaction
with the charge.’’ (Internal quotation marks omitted.)
In State v. Charles, 134 Conn. App. 242, 252, 39 A.3d
750, cert. denied, 304 Conn. 930, 42 A.3d 392 (2012),
we held that a defendant had waived the right to chal-
lenge jury instructions where ‘‘defense counsel had a
meaningful opportunity to review the court’s written
instructions and to object to any language therein [but]
. . . proposed no instructions of his own and took no
exceptions to the charge as given.’’
Here, defense counsel, having been provided with a
draft copy of the jury instructions and a meaningful
opportunity to review them and to alert the court to
any potential issues, declined to object in any way to
the portion concerning identification, and affirmatively
expressed his satisfaction with the content of the
instructions. Under these circumstances, the defendant
has waived his claim of instructional error and, accord-
ingly, it fails under the third prong of Golding.4
B
The defendant also claims that the court erred in
delivering the jury instructions at such a rapid speed
that the jury was unable to follow them. We disagree.
Following final arguments, the court read the instruc-
tions to the jury. The court then asked whether either
side wanted to object to the instructions. The defense
did not object to the speed at which the instruction
was delivered or state any concerns about the clarity
or comprehensibility of the instructions. While deliber-
ating, the jury asked for a copy of the instructions,
which was provided in written form.
After the guilty verdict, the defendant filed a motion
for a new trial on the ground that, among other things,
‘‘[t]he court’s instructions tilted the scales of justice in
a fundamentally unfair manner, causing material injury
to the defense’s case . . . .’’ At sentencing, defense
counsel was heard on the motion, and he explained
that his issue with the instructions ‘‘was the speed with
[which] the court went through the instructions to the
jury.’’ He explained that he had a hard time following
the instructions and argued that the fact that the jury
had requested a copy of the instructions supported his
argument. The court denied the motion, finding that
‘‘the instructions are given at the same rate of speed
for every trial’’ and were delivered in ‘‘the court’s normal
manner of speaking out when it relates its instructions.’’
The court also noted that ‘‘the jury did have the benefit
of the actual transcript of the court’s instructions going
in with them in their deliberative process.’’
On appeal, the defendant challenges the court’s
denial of the motion for a new trial on the ground that
the court erred in finding that the instructions were
comprehensible. The defendant argues that the claim
is properly preserved by the postjudgment motion for
a new trial or, alternatively, that the claim is reviewable
under Golding, as the rapid delivery deprived him of a
constitutionally guaranteed fair trial.
As a preliminary matter, we note that a party who is
concerned with the speed in which a judge is delivering
instructions should object at the time the instructions
are being read so that the judge is aware of the party’s
concerns and can adjust the speed of delivery or take
other corrective steps if appropriate. Waiting until after
the verdict has been entered and the jury has been
discharged places the judge and the other parties in an
unfair position. In this case, however, we agree that
the defendant’s motion for a new trial preserved the
claim, and we therefore proceed to its merits without
consideration of Golding.
‘‘Appellate review of a trial court’s decision granting
or denying a motion for a new trial must take into
account the trial judge’s superior opportunity to assess
the proceedings over which he or she has personally
presided. . . . Thus, [a] motion for a new trial is
addressed to the sound discretion of the trial court and
is not to be granted except on substantial grounds.’’
(Internal quotation marks omitted.) State v. Holmes, 75
Conn. App. 721, 727, 817 A.2d 689, cert. denied, 264
Conn. 903, 823 A.2d 1222 (2003). We will not disturb a
trial court’s findings of fact in ruling on a motion for a
new trial unless they are clearly erroneous. Id., 728. ‘‘A
finding of fact is clearly erroneous when there is no
evidence to support it . . . or when . . . the
reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed. . . . In making this determination, every
reasonable presumption must be given in favor of the
trial court’s ruling . . . .’’ (Internal quotation marks
omitted.) Id.
At the defendant’s request and without objection
from the state, we have listened to an audio recording
of the court’s delivery of the jury instructions and have
determined that the speed at which the jury instructions
were delivered falls within an acceptable standard.
Therefore, we cannot conclude that the court’s factual
finding that the instructions were comprehensible was
clearly erroneous. We further note that the jury asked
for and received a written copy of the instructions.
Accordingly, the court acted within its discretion in
denying the defendant’s motion for a new trial.
II
Next, the defendant claims that the court erred in
granting the state’s motion in limine barring evidence
of D’s conviction for and involvement with prostitution.
Specifically, he argues that D’s involvement with the
victims in the enterprise of prostitution was relevant
to establish that she was biased in favor of one of the
victims. We are not persuaded.
Prior to trial, the state filed a motion in limine asking
the court to require the defense to make an offer of
proof outside the presence of the jury prior to pursuing
any evidence about D’s involvement with the victims
in the enterprise of prostitution. During trial, prior to
D’s testimony and outside the presence of the jury, the
defense argued that such evidence was necessary to
show that the victims played a caretaker role in D’s life
and that money was being shared between them, in
contrast to the straightforward romantic relationship
between Duncan and D that had been portrayed by
Duncan. The state argued that such evidence would be
more prejudicial to the witness’ credibility than proba-
tive of bias. The court ruled that any evidence of D’s
involvement with prostitution was barred because it
was not relevant to D’s credibility.
We review a court’s evidentiary rulings under the
abuse of discretion standard. ‘‘The trial court’s ruling
on the admissibility of evidence is entitled to great
deference. . . . [T]he trial court has broad discretion
in ruling on the admissibility . . . of evidence . . .
[and its] ruling on evidentiary matters will be over-
turned only upon a showing of a clear abuse of the
court’s discretion. . . . We will make every reasonable
presumption in favor of upholding the trial court’s rul-
ing, and only upset it for a manifest abuse of discretion.’’
(Internal quotation marks omitted.) State v. Martinez,
295 Conn. 758, 769–70, 991 A.2d 1086 (2010).
The credibility of a witness may be impeached by
evidence showing the witness’ bias toward another per-
son. Conn. Code Evid. § 6-5. Such impeachment may
be accomplished through examination of the witness
or through the introduction of extrinsic evidence, but
the offering party bears the burden of establishing the
relevancy of the impeachment evidence. State v. Brown,
273 Conn. 330, 341, 869 A.2d 1224 (2005). Otherwise
relevant evidence may be excluded if the court, in its
discretion, determines that the probative value of the
evidence is outweighed by the danger of unfair preju-
dice. Id., 342; see also Conn. Code Evid. § 4-3. ‘‘Unfair
prejudice occurs where the facts offered may unduly
arouse the jury’s emotions, hostility or sympathy
. . . .’’ (Internal quotation marks omitted.) State v.
Douglas, 126 Conn. App. 192, 219, 11 A.3d 699, cert.
denied, 300 Conn. 926, 15 A.3d 628 (2011).
In this case, the court concluded that evidence of D’s
involvement with prostitution was ‘‘not relevant to any
finding of credibility or bias.’’ At that point in the trial,
testimony had been adduced establishing that D lived
with two of the victims and was in a romantic relation-
ship with one of them. It also was established that the
third victim was a frequent guest at the apartment D
and the other victims shared. After a careful review of
the record, we cannot conclude that the court abused
its discretion in precluding the impeachment evidence.5
III
Next, the defendant claims that the court erred in
allowing the state to elicit unduly prejudicial testimony
from the mother of one of the victims. Specifically, the
defendant argues that the prejudice to the defendant
caused by the mother’s testimony that the surviving
victim identified the shooter outweighed its probative
value as a prior inconsistent statement. As we afford
great deference in reviewing such evidentiary rulings,
we are not persuaded.
The following additional facts and procedural history
are relevant to our analysis of the issue. At trial, Duncan,
the surviving victim, testified that he was unable to
identify the shooter because it was too dark. This testi-
mony was consistent with what Duncan had told the
police during their investigation of the crime. In order
to impeach this testimony, the state sought to produce,
as evidence of a prior inconsistent statement, testimony
from Lynne Jones, the mother of Burruss, that Duncan
had spoken to her after the shooting and identified the
defendant as the shooter. The state also sought to elicit
testimony from Jones that Duncan had recounted to
her details of the fight between the defendant and Bur-
russ at the nightclub and had described Burruss as
having choked the defendant, a detail that Duncan had
not included while testifying at trial. The state laid the
foundation for such testimony by providing Duncan
with an opportunity to explain these inconsistencies
on direct examination.
During trial, the defendant moved to preclude such
testimony on the grounds that it was hearsay and that
the potential to prejudice the defendant outweighed its
probative value. The state argued that it was proper
inconsistent statement evidence for the purpose of
impeaching Duncan and should be admitted subject to
a limiting instruction. The court concluded that Jones’
testimony would be admitted, but as to the identifica-
tion, in order to avoid prejudice, she would be
instructed to testify only that Duncan had identified an
individual by name and not specify that the defendant
was that individual. As to the altercation at the club, the
court allowed the state to elicit testimony specifically
referring to the defendant because Duncan already had
identified the defendant as being involved in the
incident.
Jones was then called before the jury, where she
testified that Duncan had visited her prior to her son’s
funeral. She explained that she asked Duncan who had
killed her son and that he told her the name of the
person responsible for the shooting. The prosecution
then immediately asked Jones what Duncan had told
her about the altercation at the club, and Jones said
that Duncan told her that Burruss had ‘‘choked [the
defendant] out.’’ The court instructed the jury to con-
sider the testimony only for purposes of evaluating Dun-
can’s credibility.
On appeal, the defendant claims that any testimony
from Jones that Duncan had identified an individual
responsible for the shooting should have been barred.
The defendant argues that the prejudicial effect of the
testimony was particularly high, given the circum-
stances of a mother being told the identity of her son’s
murderer, and the probative value was particularly low
because evidence of Duncan’s conversation with Jones
was collateral to the central issue of identification. We
are not persuaded.
As set forth in part II of this opinion, we review a
court’s evidentiary rulings under the abuse of discretion
standard. The credibility of a witness may be impeached
by evidence that the witness previously made a state-
ment inconsistent with that made at trial. State v. Doug-
las F., 145 Conn. App. 238, 249, 73 A.3d 915, cert. denied,
310 Conn. 955, 81 A.3d 1181 (2013); see also Conn. Code
Evid. § 6-10. Like other evidence, a prior inconsistent
statement may be excluded at the court’s discretion if
its probative value is outweighed by its prejudicial
effect. See State v. Carter, 189 Conn. 631, 642, 458 A.2d
379 (1983); see also Conn. Code Evid. § 4-3. ‘‘Because
of the difficulties inherent in this balancing process,
the trial court’s decision will be reversed only whe[n]
abuse of discretion is manifest or whe[n] an injustice
appears to have been done. . . . On review by this
court, therefore, every reasonable presumption should
be given in favor of the trial court’s ruling.’’ (Internal
quotation marks omitted.) State v. Morquecho, 138
Conn. App. 841, 853–54, 54 A.3d 609, cert. denied, 307
Conn. 941, 56 A.3d 948 (2012).
In this case, the court recognized the possibility of
undue prejudice caused by Jones’ account and thus
restricted her testimony to preclude any identification
of the defendant as the shooter. This, along with the
limiting instruction by the court, was sufficient to guard
against the jury considering the evidence for an
improper purpose. Furthermore, the prior inconsistent
statement was highly probative in calling into question
Duncan’s testimony that he was unable to identify the
shooter due to darkness, an issue that lay at the heart
of the case. Accordingly, we do not find cause to upset
the court’s discretionary ruling.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In order to protect the privacy interests of the witness, we do not identify
the witness by name.
2
The defendant also seeks plain error review of this claim. See Practice
Book § 60-5. To the extent that the claim is amenable to review under the
plain error doctrine, we are not persuaded that an error exists that is so
obvious that it affects the fairness and integrity of and the public confidence
in the judicial proceedings or that the court’s instructions caused the defen-
dant to suffer manifest injustice. See State v. Santiago, 100 Conn. App. 236,
254, 917 A.2d 1051, cert. denied, 284 Conn. 933, 935 A.2d 153 (2007).
3
Although the defendant is correct that the record does not indicate that
the defense was provided with a finalized version of the instructions, there
is no indication from the record that the final instructions as to identification
were altered in any way from the draft version except for the addition of
language declaring that it is the state’s burden to prove identity beyond a
reasonable doubt. The court notified the defense of this additional language
prior to instruction, and it does not relate to the reliability of an eyewitness,
which is the subject of the defendant’s claim on appeal.
4
The defendant relies on State v. Devalda, 306 Conn. 494, 50 A.3d 882(2012), and State v. Brown, 299 Conn. 640, 11 A.3d 663 (2011), wherein
instructional claims were held to have not been waived under a Kitchens
analysis because the records in those cases were not sufficiently complete
to show that the defense counsel was apprised of the instructions prior to
the jury being charged. These cases are distinguishable from the present
case because here, after the ‘‘close examination of the record and the particu-
lar facts and circumstances of [the] case’’ required by Kitchens, we have
ascertained that defense counsel was made aware of the content of the
instructions before they were delivered to the jury. State v. Kitchens, supra,299 Conn. 483.
5
The defendant also argues, for the first time on appeal, that evidence
of D’s involvement in prostitution should have been allowed because the
state ‘‘opened the door’’ for such evidence by inquiring into the witness’
relationship with the victims. As ‘‘[o]ur review . . . of evidentiary rulings
made by the trial court is limited to the specific legal ground raised [at
trial],’’ we decline to review this claim. State v. Holloway, 117 Conn. App.
798, 813, 982 A.2d 231 (2009) (‘‘[t]o permit a party to raise a different ground
on appeal than was raised during trial would amount to trial by ambuscade,
unfair both to the trial court and to the opposing party’’ [internal quotation
marks omitted]), cert. denied, 297 Conn. 925, 998 A.2d 1194 (2010).