State v. Bagley

• Decision Date: 14 September 1994
• Docket Number: No. 11596,11596
• Citation: 644 A.2d 386,35 Conn.App. 138
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Stefan BAGLEY.

Page 386

644 A.2d 386

35 Conn.App. 138

STATE of Connecticut v. Stefan BAGLEY.

No. 11596.

Appellate Court of Connecticut.

Argued Feb. 15, 1994.

Decided July 12, 1994.

Certification Denied Sept. 14, 1994.

Richard A. Fuchs, Bridgeport, with whom, on the brief, was Joshua Koskoff, Law Student Intern, for appellant (defendant).

Donald A. Browne, State's Atty., for appellee (state).

Before FOTI, LAVERY and LANDAU, JJ.

FOTI, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55(a)(3), attempted assault in the first degree in violation of General Statutes §§ 53a-59(a)(1) and 53a-49, and assault in the second degree in violation of General Statutes § 53a-60(a)(2). ¹

The defendant claims that the trial court improperly (1) denied his motion for a bill of particulars, (2) restricted cross-examination of a state's witness, and (3) failed to instruct the jury on the guilt of a principal and on the lesser included offense. The defendant also claims prosecutorial misconduct and failure to disclose exculpatory material. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On August 14, 1991, at approximately 2 a.m., the victim, Demond Braswell, age sixteen, left his apartment at Father Panik Village in Bridgeport. He, along with four others, planned to go to a local store to buy beer and food. As the five left building sixteen they split into two groups. The victim and two companions, Tremayne O'Brien and Maunick Braswell, proceeded between building sixteen and building twenty, while the others proceeded in the opposite direction along Crescent Avenue.

As the three walked, they observed Jacob Crump standing in a doorway to their left at the south corner of building sixteen, and the defendant, Stefan Bagley, standing to their right at the end of building twenty. The defendant, who was carrying a long gun, stepped forward and said, "Freeze, don't move." Maunick Braswell immediately ran ahead, and the victim and O'Brien retreated back toward building sixteen. The defendant and Crump pursued the two retreating men and fired at them. O'Brien was struck twice, once in the left leg and once in the right thigh. The victim and O'Brien managed to reenter the building and more shots were fired therein. They returned to their apartment to seek assistance. The victim had been shot once in the upper abdomen, and later died as a result. O'Brien was treated and released.

The victim's fatal wound was caused by a 10 millimeter copper jacketed bullet. Three 10 millimeter bullet casings were recovered from the area to the south of building sixteen, between the two buildings. Three .45 caliber bullet casings were found adjacent to the south end of building twenty, and two additional casings were found in the stairway leading to the Braswell apartment.

I

The defendant was charged by long form information with manslaughter in the first degree ² as to Demond Braswell and attempted murder and assault in the second degree as to O'Brien. ³ The defendant filed a motion for a bill of particulars ⁴ pursuant to Practice Book § 830 et seq., requesting that the court order the state to indicate, as to each count of the information, whether the defendant was "being charged as a principal or as an accessory pursuant to § 53a-8 of the Connecticut General Statutes." The state objected and argued that it could not make that designation. The court denied the defendant's motion.

Following the completion of the state's evidence, the defendant renewed his request for a bill of particulars and moved for a judgment of acquittal on the charge alleging that he had committed manslaughter as a principal. His motions were denied. In its final argument, the state conceded that the evidence was not sufficient to demonstrate that the defendant had fired the fatal shot, and, therefore, that it was proceeding only on the theory of accessorial liability with regard to the manslaughter charge. The court, accordingly, instructed the jury only on accessorial liability on that charge.

The denial of a motion for a bill of particulars is within the sound discretion of the trial court. ⁵ State v. Laracuente, 205 Conn. 515, 519, 534 A.2d 882 (1987), cert. denied, 485 U.S. 1036, 108 S.Ct. 1598, 99 L.Ed.2d 913 (1988). It will be overturned only upon a clear showing of prejudice to the defendant. State v. Spigarolo, 210 Conn. 359, 385, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S.Ct. 322, 107 L.Ed.2d 312 (1989). In order to prevail, a defendant must show that he was prejudiced in his defense on the merits and that substantial injustice was done to him because of the language of the information. State v. Kyles, 221 Conn. 643, 653, 607 A.2d 355 (1992).

We agree that a defendant has a constitutional right to be informed of the nature and cause of the charges against him with sufficient precision to enable him to meet them at trial. State v. Spigarolo, supra, 210 Conn. at 381, 556 A.2d 112. We cannot agree with the defendant, however, that the information here was too vague and indefinite to allow him to prepare his defense adequately and to avoid surprise at trial, thereby entitling him to a bill of particulars. ⁶

It is well established in this state that there is no crime of being an accessory. State v. Foster, 202 Conn. 520, 528, 522 A.2d 277 (1987). Rather, the accessory statute ⁷ merely provides an alternative theory under which liability for the underlying substantive crime may be proved. State v. Harris, 198 Conn. 158, 163, 502 A.2d 880 (1985). There is no practical significance in the labels "accessory" and "principal" in determining criminal liability. State v. Smith, 212 Conn. 593, 606, 563 A.2d 671 (1989). A defendant may be convicted as an accessory, even if charged only as a principal, as long as the evidence presented at trial was sufficient to establish accessorial conduct. State v. Williams, 220 Conn. 385, 388, 599 A.2d 1053 (1991); State v. Gamble, 27 Conn.App. 1, 10, 604 A.2d 366, cert. denied, 222 Conn. 901, 606 A.2d 1329 (1992).

If a bill of particulars is filed alleging that the defendant committed the crime as a principal, the jury may not be charged on accessorial liability. State v. Steve, 208 Conn. 38, 45-46, 544 A.2d 1179 (1988). The jury may be so instructed, however, if the defendant is alerted by the charging instrument that the state will rely on alternative theories of liability or if the court specifically puts the defendant on notice that the issue of accessorial liability remains in the case. State v. Williams, 220 Conn. 385, 390, 599 A.2d 1053 (1991).

In this case, it was alleged that two people were shooting at two other individuals. These facts raise the possibility of principal or accessorial liability for each shooter's participation in each of the two assaults. Under these circumstances, the court cannot be said to have abused its discretion in refusing to require the prosecution to specify the defendant's exact participation in each of the assaults.

Further, the defendant has not demonstrated that he was prejudiced in his defense on the merits. ⁸ The defendant did not claim surprise at trial, or request a continuance to respond to any unanticipated evidence. He was aware of the state's proposed evidence and witnesses. We apply the principle that every reasonable presumption should be given in favor of the correctness of the court's ruling. State v. Davis, 29 Conn.App. 801, 806, 618 A.2d 557 (1993), rev'd on other grounds, 229 Conn. 285, 641 A.2d 370 (1994). Accordingly, we must conclude that the trial court did not abuse its discretion in denying the defendant's motion for a bill of particulars.

II

The defendant next claims that the trial court improperly restricted cross-examination of one of the state's witnesses. During a probable cause hearing on October 11, 1991, defense counsel cross-examined O'Brien, a witness for the state, regarding the extent of his knowledge of the court system, and his prior arrests, pending charges, any pending violations of probation, any past convictions and future court dates.

On February 11, 1992, the state filed a motion in limine seeking to preclude the defendant from impeaching O'Brien by evidence or questions of his prior arrest or arrests, his participation in a pretrial accelerated rehabilitation program or his knowledge of the court system or whether he had previously been in court. The state also filed a motion in limine on February 18, 1992, to preclude the defendant from introducing evidence from two other witnesses that a toxicological analysis of blood secured from the decedent Braswell was positive for cocaine. The court granted these motions.

Following the state's direct examination, the defendant conducted a lengthy and thorough cross-examination of O'Brien spanning seventy-three pages of transcript. During an offer of proof in the absence of the jury, the witness testified that he had no felony convictions, no criminal charges pending, and that he had previously been granted accelerated rehabilitation for a charge of larceny in the second degree. The defendant was permitted to question O'Brien's participation in the larceny as a prior act of misconduct. ⁹

The defendant argues that "the cumulative effect of the trial court's decisions regarding the in limine motions effectively precluded the defendant from cross-examination of the state's key witness." The defendant has not complied with the requirements of Practice Book § 4065(d)(3). ¹⁰ His brief contains no specific questions, objections, grounds for objections, the claimed ground of admissibility, or evidentiary rulings by the court, that allow for a review of this claim. "When raising evidentiary issues on appeal, all briefs should identify clearly what evidence was excluded or admitted, where the trial counsel objected and preserved his rights and why...