State v. McIntyre

• Decision Date: 05 August 1997
• Docket Number: No. 15352,15352
• Citation: 699 A.2d 911,242 Conn. 318
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Darryl McINTYRE.

Page 911

699 A.2d 911

242 Conn. 318

STATE of Connecticut v. Darryl McINTYRE.

No. 15352.

Supreme Court of Connecticut.

Argued June 4, 1997.

Decided Aug. 5, 1997.

Elizabeth M. Inkster, Assistant Public Defender, Madison, for appellant (defendant).

Mary H. Lesser, Assistant State's Attorney, with whom, on the brief, were Michael Dearington, State's Attorney, and Michael A. Pepper, Assistant State's Attorney, for appellee (State).

Before CALLAHAN, C.J., and BORDEN, KATZ, PALMER and McDONALD, JJ.

CALLAHAN, Chief Justice.

The defendant, Darryl McIntyre, was convicted of murder, conspiracy to commit murder and carrying a pistol without a permit. On appeal, the defendant claims that: (1) he was deprived of due process of law by the state's failure to disclose certain exculpatory evidence prior to his probable cause hearing, even though the evidence was subsequently made available to him during trial; (2) the trial court improperly admitted certain out-of-court statements into evidence at trial; (3) the trial court abused its discretion when it precluded the testimony of certain alibi witnesses; and (4) there was insufficient evidence to sustain the defendant's conviction for carrying a pistol without a permit in violation of General Statutes § 29-35. ¹ The state concedes the insufficiency of the evidence as to the last issue, and, accordingly, we reverse the judgment of conviction on that count. We reject the defendant's other claims, however, and affirm the judgments of conviction of murder and conspiracy to commit murder.

The following facts, which reasonably could have been found by the jury, are relevant to this appeal. On April 27, 1993, at approximately 9 p.m., the victim, Ticey Brown, was shot by three assailants in the vicinity of 75 County Street in New Haven. He sustained two fatal gunshot wounds from two different guns. ² Fifteen minutes prior to the shooting, a witness, Antonio West, saw three men, whom he identified as Willie Harris, Bobby Jones and the defendant, heading in the direction of 75 County Street. West last saw the three when they entered a parking lot adjacent to the rear of the building at 75 County Street. West was acquainted with all three men and exchanged a greeting with Harris. At the time West observed the three men, the defendant and Jones were putting on masks. Harris was wearing a hat. A second witness, Priscilla Harris, saw three men running in different directions approximately a block away from the scene just after the shooting. She identified one of them as Harris. Other witnesses corroborated the presence in the area of three men whose height and clothing generally matched the descriptions of height and clothing given by West.

In addition to West, a key state's witness against the defendant was Jeffrey Covington. On July 15, 1993, Covington, a repeat felony offender, was awaiting trial on drug charges at the New Haven correctional center. On that day, Covington watched a television broadcast of Connecticut's "Most Wanted" with the defendant, who was also being held at the New Haven correctional facility. The subjects of the program were Harris and Jones, who were still at large. After the broadcast, the defendant said to Covington, "They are looking for (Harris and Jones) for that, what happened on County Street.... They didn't do it, I did." At the conclusion of the trial the jury returned a verdict of guilty, and the court sentenced the defendant to a total effective sentence of sixty-five years. This appeal followed. ³

I

The defendant first claims that the state's failure to reveal exculpatory evidence prior to his probable cause hearing vitiates the finding of probable cause, and consequently, that a new probable cause hearing is required to protect his right to due process of law. Specifically, the defendant argues that the state was obligated to disclose an alleged agreement between the state and Covington, regarding the pending dismissal of criminal charges against Covington, prior to Covington's testifying at the probable cause hearing.

The following additional facts are relevant to this claim. On August 2, 1993, after consulting with his attorney, Covington spoke to the police and the state's attorney concerning the defendant's confession to him. The next day, the state proceeded with the probable cause hearing against the defendant, presenting the testimony of West and Covington. At the hearing, the defendant and the court were aware of Covington's extensive criminal record and that he currently was incarcerated on pending drug charges. They were also aware that Covington knew that he was not eligible for release on bond because of a parole violation. In an effort to impeach Covington, the defendant strenuously argued that Covington had fabricated the defendant's alleged confession and that Covington's sole motive for coming forward was to receive a "deal" from the state in his own case. Covington denied the existence of any deal with the state prior to his testimony at the probable cause hearing, although he did admit that he hoped to receive consideration for his testimony. The court acknowledged that Covington's credibility was weak, but found it sufficient, when coupled with West's testimony, to support a finding of probable cause.

One week after Covington's testimony, despite the fact that the state had a strong case against him, the charges pending against him were dismissed. The state did not notify the defendant prior to the date of the probable cause hearing that the charges pending against Covington were to be dropped. The fact that the charges were dropped, however, was disclosed to the defendant during trial, and the defendant used this disclosure in his efforts to impeach Covington.

An agreement between the state and a key witness ⁴ to dismiss pending charges against the witness falls within the definition of exculpatory evidence contained in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). "It is well established that [i]mpeachment evidence as well as exculpatory evidence falls within Brady's definition of evidence favorable to an accused." (Internal quotation marks omitted.) State v. McPhail, 213 Conn. 161, 167, 567 A.2d 812 (1989); see also State v. White, 229 Conn. 125, 135, 640 A.2d 572 (1994). It is similarly well established that because "the adversarial probable cause hearing ... is an essential part of a defendant's criminal prosecution, the constitutional obligation to disclose exculpatory material attaches at that time." (Internal quotation marks omitted.) State v. McPhail, supra, at 166, 567 A.2d 812.

To prevail on a Brady claim, the defendant bears a "heavy" burden to establish: "(1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that it was material." State v. Milner, 206 Conn. 512, 539, 539 A.2d 80 (1988). The test of materiality of nondisclosed exculpatory evidence requires that there be a "reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." (Internal quotation marks omitted.) State v. Shannon, 212 Conn. 387, 407, 563 A.2d 646, cert. denied, 493 U.S. 980, 110 S.Ct. 510, 107 L.Ed.2d 512 (1989), quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). We recently held that where there is no reasonable probability that disclosure of the exculpatory evidence would have affected the outcome, there is no constitutional violation under Brady. State v. Gant, 231 Conn. 43, 53, 646 A.2d 835 (1994), cert. denied, 514 U.S. 1038, 115 S.Ct. 1404, 131 L.Ed.2d 291 (1995). The defendant cannot meet his burden of showing the materiality of the state's nondisclosure.

Even if we were to assume that there had been an arrangement between the state and Covington prior to the probable cause hearing, there is no reasonable probability that the result of the probable cause hearing would have been different had the arrangement been disclosed. At the probable cause hearing, the defendant forcefully argued to the court that Covington had fabricated his testimony in the hope of improving his own standing with the state's attorney's office. Covington himself admitted that he hoped to receive consideration in exchange for his testimony. Moreover, the court that conducted the probable cause hearing expressly noted that Covington's testimony was "questionable." It is not reasonably probable that any disclosure of an actual, preexisting arrangement between the state and Covington would have increased the court's perception of Covington's lack of credibility. Because the evidence would not have altered the result, confidence in the outcome of the probable cause hearing is not undermined. Therefore, a new probable cause hearing is not required.

Even if we were to conclude that there was a Brady violation, the error would be rendered harmless by the defendant's subsequent conviction after a full and fair trial. See State v. McPhail, supra, 213 Conn. 161, 567 A.2d 812. We concluded in McPhail that the state's failure to disclose material, exculpatory evidence does not vitiate the finding of probable cause if the defendant subsequently receives a fair trial. Id., at 170, 567 A.2d 812. "[W]here, as here, there has been a failure to disclose exculpatory evidence at a criminal defendant's probable cause hearing, the proper inquiry is ... whether the nondisclosure did in fact taint the defendant's subsequent prosecution." Id. The present case is indistinguishable in any material way from McPhail. The defendant concedes that we cannot reverse his conviction on this ground without overruling McPhail. We decline to do so.

II

The defendant next claims that the trial court improperly allowed the state to introduce into evidence: (1) the interlocking alibi statements of ...