State v. Mercado
The defendant, who failed to object to evidence, could not obtain review of the challenged testimony by labeling it prosecutorial misconduct. Following a jury trial, Marcos Mercado, Jr., was convicted of murder, felony murder and robbery in the first degree. He appealed claiming that the trial court abused its discretion by permitting the prosecutor to cross-examine him about prior misconduct and the prosecutor's deliberate violation of the court's evidentiary order warranted reversal of his conviction. The Appellate Court affirmed the judgment. Before the defendant's former girlfriend, Laurel Brooks, testified during the state's case-in-chief, the court granted the defendant's motion in limine to preclude her from testifying concerning the defendant's alleged statements to her regarding committing past crimes, finding the probative value of such testimony outweighed by its prejudicial impact. The state offered Brooks' testimony in conformity with the order. After the state rested, the defendant took the witness stand to present evidence of an alibi defense. He denied having an online conversation with the victim, Thomas Szadkowski, going to his apartment, shooting him or knowing who caused Szadkowski's death. During the state's cross-examination, the defendant maintained that he spent the night-in-question with his then-girlfriend, Sally Palomino, and purchased, from another individual, the victim's Xbox 360 game console that he gave to Brooks' younger brother. Over the defendant's objections, the court then granted the prosecutor permission to question the defendant regarding his statements to Books about past crimes. The prosecutor asked the defendant about his statements to Brooks, which he denied. The prosecutor recalled Brooks during the state's rebuttal case. Brooks testified to the defendant making statements about committing robberies. The defendant did not object to the prosecutor's examination of Brooks during rebuttal, did not seek to have her rebuttal testimony stricken, or request a limiting or curative instruction. On appeal, the defendant could not obtain review of Brooks' rebuttal testimony by labeling it prosecutorial misconduct. The defendant failed to object to the evidence concerning his statements to Brooks on the ground that it constituted prior misconduct. Therefore, his claims were not reviewable.