State v. Buster, 14545

• Decision Date: 09 February 1993
• Docket Number: No. 14545,14545
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Douglas W. BUSTER.

Page 110

620 A.2d 110

224 Conn. 546

STATE of Connecticut v. Douglas W. BUSTER.

No. 14545.

Supreme Court of Connecticut.

Argued Dec. 1, 1992.

Decided Feb. 9, 1993.

Michael A. Fitzpatrick, Special Public Defender, for appellant (defendant).

Richard F. Jacobson, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and John Smriga, Asst. State's Atty., for appellee (State).

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON and KATZ, JJ.

KATZ, Associate Justice.

The defendant, Douglas W. Buster, appeals from the judgment of the Appellate Court affirming the trial court's ruling allowing the introduction into evidence of certain portions of a witness' out-of-court written statement. After a jury trial, the defendant was convicted of manslaughter in the first degree in violation of General Statutes § 53a-55a(1) and carrying a pistol without a permit in violation of General Statutes §§ 29-35(a) and 29-37(b). On appeal to the Appellate Court, the defendant claimed that, contrary to State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986), the trial court had improperly admitted into evidence certain statements of a nonparty witness contained in the written statement of another witness. The Appellate Court, however, concluded that the statements had been properly admitted by the trial court as a prior inconsistent statement under the three-pronged Whelan test, and affirmed the judgment. State v. Buster, 27 Conn.App. 263, 273, 606 A.2d 9 (1992).

We granted the defendant's petition for certification limited to the following two issues: ¹ (1) "Was the Appellate Court correct in holding that the trial court properly admitted into evidence certain remarks attributed to a nonparty witness contained in the written statement of another witness, pursuant to State v. Whelan, [supra.]?" and (2) "If the ruling was erroneous, was it harmful?" State v. Buster, 222 Conn. 909-10, 608 A.2d 692 (1992). We conclude that the trial court improperly admitted the remarks, but that their admission was harmless. Accordingly, the judgment of the Appellate Court is affirmed.

The relevant facts were stated by the Appellate Court in its opinion. "The victim, Robert J. Cioppa, Jr., and a friend, Gary Lester, drove into the parking lot of a Bridgeport housing project at about 12:30 a.m. on March 4, 1989, seeking to buy crack cocaine. Cioppa and Lester had bought drugs there twice earlier in the evening of March 3, 1989. Upon driving into the lot, Cioppa was approached by a drug dealer named Sean, who had sold him narcotics earlier that night. The defendant then approached Cioppa's car window in an attempt to sell him drugs. When Cioppa indicated that he wanted to buy drugs from Sean instead, the defendant drew a gun.

"Behind Sean and the defendant was Ronell Hanks, with whom Cioppa had attended high school. Cioppa asked Hanks to intervene in order to prevent the defendant from doing anything with the gun. When the defendant threatened to shoot Hanks, Cioppa attempted to drive away. The defendant, however, fired at Cioppa, fatally wounding him. From the car's front passenger seat, Lester backed the vehicle into the street and steered it along the road until he could get behind the steering wheel and drive to Griffin Hospital in Derby, where Cioppa was pronounced dead.

"At trial, the state presented evidence from several witnesses that it was the defendant who fatally shot Cioppa. Lester testified that although he did not see the defendant's face, the assailant was large and heavyset. Lester testified that one shot was fired from a weapon with a large barrel between seven and eight inches long. Ala Carter, a resident of the housing project, testified that she saw a car enter the parking lot and heard its driver ask for drugs. She testified that the driver was not seeking out the defendant, who ran to the car, and that just prior to the shooting, she heard the defendant tell Hanks to 'mind [his] business.' Carter testified that the defendant shot the driver with a small gun after being rebuffed in his attempt to sell him drugs. She testified that she did not see anyone else there with a gun other than the defendant. Later, the defendant elicited testimony showing that Carter was not in the parking lot at the time of the shooting.

"Jared Fleming also testified that he saw Cioppa's car enter the lot and heard the discussion between the defendant and Cioppa. He testified that both the defendant and Hanks had guns, and that he heard a gunshot but did not see who shot Cioppa. At this point, pursuant to State v. Whelan, supra, the court admitted into evidence, as a prior inconsistent statement, a written statement Fleming had given to the police subsequent to the shooting. In the statement, which mirrored Carter's testimony, Fleming said he heard the defendant threaten to kill Cioppa and then watched as the defendant shot him. He did not tell the police, however, that Hanks had a gun.

"Tremayne Newsome testified that he saw a car enter the lot and that a conversation that he could not hear ensued between Hanks, the driver and the defendant, who had a gun. Newsome testified that after going into his house, he heard a gunshot outside. At this point, pursuant to State v. Whelan, supra, the court admitted into evidence, as a prior inconsistent statement, a written statement Newsome had given to the police. The content of Newsome's statement mirrored Carter's testimony and the statement Fleming had given to the police. In his statement, Newsome said he was outside his house when he saw the defendant and Cioppa arguing about drugs. He said that after he went inside his house, he opened the door, looked out and saw the defendant draw a gun and shoot Cioppa. Hanks also testified that it was the defendant who shot Cioppa. Hanks testified that he had walked away from the defendant and Cioppa's car after the defendant pointed a gun at him and said he would shoot him.

"In his case-in-chief, the defendant presented evidence to show that it was Hanks who shot Cioppa. Beverly Bass testified that she witnessed the incident from a window in the nearby apartment of a friend she was visiting that night. Bass testified that she saw a car drive into the lot and heard an argument about drugs and money. She testified that she heard shots and saw Hanks fire a gun. At the time of the shooting, Bass testified, the defendant was standing near a garbage dumpster, three to four feet from Cioppa's car. She testified that after the shooting, the defendant ran from the scene with a woman named Clara Cummings. Bass did not see a gun in the defendant's hand. [She added that following the incident Hanks fired several additional shots from behind a building. Bass testified that she did not share any of this information with the police because of threats Hanks had made to her. Bass also disputed Carter's presence in the parking lot at the time of the shooting.]

"Cummings testified that she and the defendant were near the dumpster at about 11:30 p.m., when she saw Hanks, armed with a gun, approach a car that entered the lot. Cummings testified that she heard a shot while she was hiding behind the dumpster and that afterward she and the defendant fled. She testified that the defendant did not have a gun and that he was within her view when Cioppa was shot.

"Another witness, Jermaine Kenney, testified that he was nearby on Trumbull Street talking with a young lady when he saw the defendant running from the parking lot while Hanks was firing a gun. Finally, the defendant elicited testimony from Kenneth Jones that three days after the defendant's arrest, he and Hanks drove to a wooded area off Alba Avenue, where Hanks retrieved a long barreled gun he then sold to Jones for $50. Jones' mother, Rita Holmes, then testified that she found a gun in her home and disposed of it in the household garbage." State v. Buster, supra, 27 Conn.App. at 265-68, 606 A.2d 9.

The defendant also called Hanks to the stand. Hanks admitted that he had been present in the parking lot when a car had pulled in. He approached and conversed with the driver. He denied having had any argument and disclaimed any responsibility for the homicide. Hanks gave two separate statements to the police implicating the defendant. On cross-examination, he explained that prior to the shooting, Cioppa had asked him to "get my friend," in response to which the defendant had grabbed Hanks, pointed the gun at him and said "Ronell ain't got nothing to do with this, I'll shoot him too." Hanks testified that as he had walked away, he heard a shot, heard the car pull away striking a van, and heard the defendant continue shooting.

To rebut the defendant's claim that Hanks was the assailant, the state called Anthony Michael Brown. Brown testified that during the early morning hours of March 4, 1989, he had been at home when he heard gunshots, but that he had not seen the shooting. Brown could not recall much about a meeting with the police at his home on the Sunday after the shooting, nor could he recall what he had told the police in his written statement. After refreshing his recollection by reviewing his statement, Brown remembered having told the police that he had seen a long grayish colored .38 revolver in a bag at his home on the Sunday after the shooting. He also recalled having told the police that a conversation regarding the gun had taken place in the presence of the defendant, the defendant's cousin, Kenneth "Dimpy" Buster (Dimpy), and his own cousin, Jehu. Brown repudiated the statement, however, claiming he had given it while under the influence of narcotics and in response to police threats. He claimed that he had never seen a gun and that the three named individuals had not been to his home on that Sunday. ²

At this point, the state sought to introduce Brown's written statement pursuant to State v. Whelan, supra. The...