State v. Baker

CourtAppellate Court of Connecticut
Citation50 Conn.App. 268,718 A.2d 450
Decision Date08 September 1998
Docket NumberNo. 17227,17227
Parties, 59 Conn.App. 268 STATE of Connecticut v. James BAKER.

Alexander H. Schwartz, Special Public Defender, for appellant (defendant).

Ronald G. Weller, Assistant State's Attorney, with whom, on the brief, were Michael Dearington, State's Attorney, and Michael Pepper, former Assistant State's Attorney, for appellee (State).

Before LAVERY, SPEAR and SULLIVAN, JJ.

SULLIVAN, Judge.

The defendant, James Baker, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes §§ 53a-54a (a) 1 and 53a-8 2 and conspiracy to commit murder in violation of General Statutes §§ 53a-54a (a) and 53a-48 (a). 3 On appeal, the defendant claims that the trial court improperly denied his motion to disclose the state's informant and refused to allow the defendant to produce evidence that a third party committed the crime with which the defendant was charged. We affirm the judgement of the trial court.

The jury reasonably could have found the following facts. On March 21, 1994, the victim, Amenophis Morris, was shot and killed while standing on the porch of his home on Exchange Street in New Haven. Earlier that day, the defendant had had a confrontation with Jeffrey Dolphin, with whom the defendant sold drugs. The defendant believed Dolphin was responsible for a third party's loss of certain drugs. After the confrontation, Jermaine Harris, Trent Butler and Terrence Stevenson arrived, and the defendant told them that Dolphin was responsible for losing the drugs. Stevenson and Dolphin went to look for the drugs but were unsuccessful. Thereafter, Dolphin and Stevenson reunited with Harris, Butler and the defendant. Harris pulled a gun on Dolphin and stated "Why don't we make this asshole do it?" Stevenson asked Dolphin if he had ever killed anyone, to which Dolphin replied that he had not. Stevenson told Dolphin that there was someone he wanted Dolphin to kill. Then, Stevenson forced Dolphin into the defendant's car, and all five men drove off. Dolphin heard the name "Amenophis" and heard a reference to money that was owed.

The defendant drove to Exchange Street and parked the car. Harris and Stevenson got out of the car and walked up to the victim, who was standing on his porch. Harris was carrying a gun and was wearing a black army fatigue jacket and a mask. The defendant and Butler got out of the car and stood in front of it. Dolphin heard five to eight shots and observed the victim fall. Thereafter, the men jumped into the car, and Harris said, "I got that bastard." Eventually, the men let Dolphin out of the car. Before doing so, however, Butler told Dolphin, "I know where your mother and sister live" and "they've been finding bodies in Bridgeport."

The victim's neighbor, Luis Deleon, observed the shooting from his porch across the street. He saw a person wearing a black mask and an army jacket walk toward the victim's residence, pull out a gun and fire six shots. He saw the victim fall to the ground, and he saw the assailant flee.

I

The defendant claims that the trial court violated his constitutional right to present a defense under the sixth amendment to the United States constitution and violated his right to a fair trial under the fifth amendment to the United States constitution by precluding him from inquiring into the identity of a police informant. The defendant argues that the state is required to disclose the identity of an informant when that information is critical to the defendant's right to a fair trial. The defendant argues that disclosure of the informant's identity was necessary to determine the source of exculpatory information. He contends that the trial court's refusal to permit this inquiry adversely impacted his sixth amendment right to present a defense, namely, that a third party was responsible for the murder. The defendant also argues that the state did not adequately assert its claim of privilege and that, consequently, the trial court did not properly weigh the applicable competing interests in its ruling.

The facts relevant to this claim are as follows. During its case-in-chief, the state called as a witness Detective Hilden Wright of the New Haven police department. During cross-examination, the defendant asked Wright if he had received information that someone by the name of "Ra-Ra" Diaz was responsible for killing the victim. The state objected to that question, and a hearing was held outside of the presence of the jury. The defendant stated that Wright's police report indicated that Wright had received information from an anonymous informant that two individuals known as Ra-Ra Diaz and Jose "Little" Melendez had killed the victim because the victim failed to carry out a murder ordered by the Latin Kings gang. The court sustained the state's objection on the ground that the question was outside the scope of direct examination. The court informed the defendant that he could call Wright in his case-in-chief if he wanted to pursue this line of inquiry. Rather than subpoena Wright at a later time, however, the defendant requested the court's permission to present an offer of proof. The defendant asked Wright for the name of the person who had told him that Ra-Ra was responsible for the victim's death. The state objected on the ground that the defendant was requesting information regarding the informant's identity. The court sustained the objection. Upon further questioning by the defendant, Wright testified that the informant stated that someone had told him that Ra-Ra killed the victim, but the informant did not tell Wright who had told him. Furthermore, Wright stated that the person who told the informant that Ra-Ra was responsible for the murder had heard it from someone else, whom the informant did not identify. On the basis of that voir dire, the trial court refused to allow the defendant to present evidence that a third party killed the victim.

" 'What is usually referred to as the informer's privilege is in reality the Government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law.... The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.' " State v. Richardson, 204 Conn. 654, 658, 529 A.2d 1236 (1987), quoting Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).

"Roviaro established a test for assessing challenges to the applicability of the informant's privilege. This test involves the balancing of two competing interests: (1) the preservation of the 'underlying purpose' of the privilege; and (2) the 'fundamental requirements of fairness.' " State v. Jackson, 239 Conn. 629, 632, 687 A.2d 485 (1997), quoting Roviaro v. United States, supra, 353 U.S. at 60, 77 S.Ct. 623. "The fundamental requirements of fairness comprise the defendant's right to a fair trial, including the right to obtain information relevant and helpful to a defense." State v. Jackson, supra, at 633, 687 A.2d 485.

"While an informant's or government's privilege exists, it must yield where it would interfere with a defendant's right to a fair trial. 'Where the disclosure of an informer's identity ... is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.' " State v. Richardson, supra, 204 Conn. at 658, 529 A.2d 1236, quoting Roviaro v. United States, supra, 353 U.S. at 60-61, 77 S.Ct. 623.

"The trial court's determination to apply the privilege is reviewed for abuse of discretion.... [W]e will disturb the trial court's findings only when those findings are clearly erroneous as where there is no evidence in the record to support such findings." (Citations omitted.) State v. Jackson, supra, 239 Conn. at 634-35, 687 A.2d 485.

"Before a court will compel disclosure, the informant typically must be a participant in the alleged crime or an eyewitness witness thereto." State v. Lee, 30 Conn.App. 470, 479, 620 A.2d 1303 (1993), aff'd, 229 Conn. 60, 640 A.2d 553 (1994); see also State v. Jackson, supra, 239 Conn. at 636-37, 687 A.2d 485 (disclosure of informant's identity essential to defense "where 'the informant is a key witness or a participant in the crime charged, someone whose testimony would be significant in determining guilt or innocence' "); State v. West, 178 Conn. 444, 445, 423 A.2d 117 (1979) (no requirement that identity of informer, who was not actual participant in or witness to drug sale, be disclosed); State v. McDaniel, 176 Conn. 131, 134, 405 A.2d 68 (1978) (in absence of information that informant actual participant in or witness to offense charged, trial court did not improperly deny request for identity).

In State v. McDaniel, supra, 176 Conn. 131, 405 A.2d 68, our Supreme Court did not compel disclosure of an informant's identity where the information supplied by the informant to the police was based on hearsay. In that case, "the informer's knowledge was limited to what he had heard was about to occur and that it was that hearsay information which he passed on to the authorities." Id., at 133, 405 A.2d 68. The McDaniel court rejected the defendant's claim that he had an absolute right to disclosure of the identity of an informant because the informant's testimony may have been relevant to the defense. Id., at 134, 405 A.2d 68; see also State v. Richardson, supra, 204 Conn. at 663, 529 A.2d 1236 ("[m]ere speculation that the informant's information will be helpful to the defense is not sufficient to mandate disclosure"); State v....

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