Oh the irony – Appellate Court ARO 1/14/08

On the heels of my post last week about hazardous duty pay comes this decision from the Appellate Court today. In State v. Damato, the Appellate Court affirmed convictions for attempted assault and murder of a prosecutor. The State alleged that the defendant sought to hire someone to hurt a prosecutor who he felt was “riding his son” in an unrelated prosecution. The defendant argued that the State did not prove that he took a substantial step towards committing the murder and assault of the prosecutor. Specifically, he argued that the evidence presented could not establish that he had followed the prosecutor and reconnoitered his residence.

In rejecting the claim, it summed up the evidence as follows:

In the case before us, the jury heard testimony that the defendant wanted to injure or kill [the prosecutor]. The jury also heard [witness one’s] testimony that the defendant had told [witness one] that he had somebody follow [the prosecutor] to Steve’s Boston Seafood restaurant and [witness two’s] testimony that the defendant provided detailed information about [the prosecutor’s] place of residence. [Witness two] testified that the defendant ‘‘mentioned an address . . . he says the name of a house on a dead-end street, across the railroad tracks. . . . [The defendant] told [witness two] where [the prosecutor] lives. . . . He said it was on a dead-end street, across some tracks and accessible by boat.’’ The defendant also told [witness two] that there were bushes on the property that one could go through to get to the house. The jury heard [testimony from the prosecutor that confirmed that the above descriptions were true].

The Court also rejected a claim of instructional error because the jury instruction mirrored what the defendant requested and then went on to reject a claim that the trial court failed to give, sua sponte, an instruction on jailhouse informant credibility because it was up to the defendant to request it. Finally, there was a claim of improper admission of prior misconduct and rebuttal testimony. Both were rejected.

Next up, State v. Nelson. The court rejected a claim that there was insufficient evidence to prove that he conspired to use a knife from the victim’s home in the commission of the robbery. Basically, defendant and co-defendant broke into victim’s house to rob him. While there, defendant used a knife from the house to hurt the victim. The Court said that there doesn’t need to be an express agreement to prove conspiracy and they could have formed the intent while in the commission of the crime. The fact that he didn’t bring the knife with him doesn’t mean anything.

The court also rejected a claim that a 911 recording made by the victim while he was tied up in his car, just after the defendants left him somewhere was improper as it was not an excited utterance. The focus of the claim was that the victim did not have the opportunity to observe what he later spontaneously uttered.

The test of whether a declarant sufficiently observed the subject of his spontaneous utterance is ‘‘whether the evidence supports a finding that the declarant had an opportunity to observe the matters described in his or her statement.’’ State v. Westberry, 68 Conn. App. 622, 631 (2002). In this case, the state presented evidence that [the victim] not only observed but also experienced the events in question.

Another of the defendant’s claims failed because he did not preserve it at trial and Golding review doesn’t apply to evidentiary claims (that the trial court improperly instructed the jury it could consider the 911 call for its substance).

Then there was a habeas denial, which was affirmed: Vidro v. Comm’r. Nothing noteworthy, except for the fact that trial counsel was Norm.

Finally, there’s Kaddah v. Comm’r, in which the Appellate Court goes into the merits of the IAC claim (it was against prior habeas counsel), but then ends by affirming, deciding that the denial of petition for certification to appeal wasn’t an abuse of discretion.

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