State v. Clark

Decision Date02 March 1976
Citation365 A.2d 1167,170 Conn. 273
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. James CLARK.

Gerald E. Farrell, Sp. Public Defender, for appellant (defendant).

Ernest J. Diette, Jr., Asst. State's Atty., with whom, on the brief, was Arnold Markle, State's Atty., for appellate (state).


COTTER, Associate Justice.

James Clark was indicted by a grand jury for murder in the first degree. He was convicted, after a trial to a jury, of murder in the second degree in the fatal shooting of William Streater, who died on February 8, 1970, under what was then § 53-9 of the General Statutes. He was sentenced by the court to life imprisonment and has appealed from the judgment rendered.

The defendant, in his appeal, has claimed error in the charge, in the restriction of the defendant's cross-examination of a state's witness, in the denial of his motion for permission to file a motion to set aside the verdict and lastly, in view of all the claimed errors, in that there was inadequate representation of counsel within the meaning of the sixth and fourteenth amendments to the United States constitution and article first, section 8, of the Connecticut constitution.


To assess these claims we have reviewed the entire trial transcript. The state called three of the victim's companions on the night he was shot. The testimony disclosed the following:

A. The Passengers' Testimony

At approximately 1 a.m. on February 8, 1970, William Streater was among a group of people who were returning from a party on Franklin Street in New Haven. They were proceeding along West Street in two cars, and as they neared the intersection of Columbus Avenue, two men were seen standing in the street. Lefty Streater, who was a passenger in the first car and William Streater's cousin, shouted at them, apparently telling them to move, and one of the two shouted back at him. When the first car stopped at the intersection, Lefty and William Streater, the deceased, jumped out and started arguing with the two men.

At this point, accounts varied as to exactly what happened next. Denise Williams, who was a passenger in the first car, testified that William Streater's two brothers, David and Kenneth Streater, along with another passenger jumped out in an attempt to stop the argument. They grabbed William Streater and started to pull him away, as one of the two men seized him and said something to him. As he was being pulled back to the car, Miss Williams said that she saw the 'short man standing next to this tall man, and the little short man passed this tall man a gun.' The victim's friends succeeded in getting him back in the first car, but he was able to slide out on the other side, and he headed back towards the two men. At this point, Miss Williams said, it seemed that things had calmed down. William Streater told the two men 'I don't want to fight you,' and his brothers urged him to 'come on.' As the deceased began walking back towards the car, 'All of a sudden the man shot him. He grabbed his chest, ran across the street and fell down.' Miss Williams' testimony was corroborated by David and Kenneth Streater, albeit with some minor discrepancies. 1

The witnesses' in-court identification of the defendant was qualified. Denise Williams said she had 'definitely never seen him before,' 2 while David Streater said he was 'not positive' that the defendant was the person who had killed his brother, though he added that he had seen him once in a police lineup.

By contrast, Kenneth Streater testified positively that the defendant was the person who had shot his brother. He admitted on cross-examination that he had been uncertain of the assailant's identity for several months after the shooting, but added that he was 'absolutely positive' of it after seeing the defendant in police photographs and a lineup.

B. Ecclesiastes Barnes' Testimony

The only other eyewitness account was provided by Ecclesiastes Barnes, the defendant's uncle, whose testimony generally corroborated that of the three passengers, and who admitted having passed the defendant the gun with which the victim was shot. Barnes explained that he and the defendant had been drinking at a club in New Haven earlier that evening and had been walking towards another bar at the intersection of West Street and Columbus Avenue when the victim was approached by a man who 'told James that he wanted to straighten out some little incident that happened a couple of nights before.' Barnes said that this man started punching the defendant, and that four or five others joined in, one of whom said, 'I'm going to kill him. That's my brother,' at which point Barnes passed the defendant the gun because he did not think he could win the fight. It was then that the defendant shot the deceased.

The cross-examination of Barnes is a focal point of the defendant's claims on appeal, particularly regarding the effectiveness of his counsel. Barnes denied that he had been pressured into giving the police a statement which incriminated the defendant, although he admitted that he had first told them that he and the defendant arrived on the scene after the shooting. He also denied that he was testifying for the state in return for leniency. The court sustained objections to questions as to whether Barnes was familiar with Connecticut's accomplice statute and to a line of inquiry which sought to establish why Barnes had been incarcerated prior to trial pertaining to a breach of the peace charge. 3

C. The Defendant's Case-in-chief

The defense sought to establish that the defendant and Barnes had arrived at the intersection after the shooting and that Barnes had changed his story to implicate the defendant only after he was beaten by the police and kept at the station against his will.

The defendant took the stand and testified that he and his uncle stopped at the intersection when they saw a crowd had gathered and after they were told by one of the passengers that someone had been shot. He added that they waited until after the police arrived and that Barnes then drove him home. He denied all of the charges made against him by the state's witnesses. To corroborate this story, the defendant's wife and mother testified that the defendant had spontaneously told them about seeing the deceased lying in the street.

Aramieta Williams, who was the defendant's mother and Barnes' sister, also stated that Barnes had been visited by the police at his home the month after the shooting and that he told them he and the defendant had arrived after they saw the crowd had gathered. He was asked to come to the police station to give a formal statement, and there he changed his story and gave the incriminating evidence which he repeated at trial. When Mrs. Williams asked him why he 'didn't stick to' the exculpatory story, she said that he told her how he had been beaten, kept against his will and told that the only way he could help his nephew was by saying his nephew had shot the deceased. Hezekiah Barnes, who was Ecclesiastes Barnes' brother, and Rev. Curtis Mouning both testified that Barnes had told them the same thing.

The state, on rebuttal, presented evidence from a police officer who had visited Barnes at his home the month after the shooting, and the officer stated that while at his house Barnes denied being involved in the shooting, but that once they got outside to go towards the station he admitted that the defendant had shot the deceased, explaining that he had been reluctant to admit that in front of his family.

On cross-examination of Mrs. Williams, she stated that Barnes had been released from a mental hospital not long before the shooting. Even though this was the only reference the jury heard about Barnes' hospitalization, they sought to ask questions about this fact during their deliberations, a request refused by the court. Trial counsel attempted, out of the presence of the jury, to introduce by stipulation a statement given him by Ecclesiastes Barnes' wife, who was recuperating from an operation and thus unable to testify, to the effect that Barnes had 'only recently returned from Newtown State Hospital, where he was treated for a nervous condition, and was still on medication.'. An objection by the state to the admission of this stipulation was sustained.

The jury returned a verdict on February 1, 1971, of guilty of murder in the second degree, which the court accepted. A motion to set aside the verdict however, was not filed until December 5, 1972, although it must be filed within 24 hours after the court accepts a verdict. Practice Book § 254. A subsequent motion for permission to file such a motion was denied by the trial court. The court's ruling as well as the late filing are both claimed as error.


Identification of the deceased's assailant was a fundamental issue in this case. Two of the three passengers called by the state were unable to make an in-court identification of the defendant. 4 Consequently, the state's case rested largely on testimony of Kenneth Streater, who made a positive in-court identification of the defendant, but admitted to having doubts as to identity the first few months after the killing, and Ecclesiastes Barnes, who admitted passing the defendant the murder weapon but who had apparently been treated for a nervous condition not long before the shooting.

The defendant claims that he was denied adequate assistance of counsel largely because trial counsel (1) failed to conduct a proper pretrial factual investigation, especially on the identification points, 5 and (2) failed to pursue the subject of Barnes' mental treatment. The defendant also cites counsel's failure to request cautionary instruction as to an accomplice after Barnes' testimony and the late filing of the motion to set aside the verdict.

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