State v. Clark

• Decision Date: 16 July 2002
• Docket Number: (SC 16512).
• Citation: 801 A.2d 718,260 Conn. 813
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT v. DUANE CLARK

260 Conn. 813

801 A.2d 718

STATE OF CONNECTICUT v. DUANE CLARK

(SC 16512).

Supreme Court of Connecticut.

Argued May 22, 2002.

Officially released July 16, 2002.

Borden, Katz, Palmer, Vertefeuille and Zarella, Js.

Michael O. Sheehan, special public defender, with whom, on the brief, was Richard A. Reeve, special public defender, for the appellant (defendant).

Rita M. Shair, senior assistant state's attorney, with whom were Michael Dearington, state's attorney, and, on the brief, Elpedio Vitale, senior assistant state's attorney, for the appellee (state).

Opinion

KATZ, J.

The defendant, Duane Clark, appealed to the Appellate Court from the trial court's judgment of conviction, following a jury trial, of criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c,¹ raising three claims of trial court impropriety. Following the decision of that court affirming the judgment of conviction; State v. Clark, 62 Conn. App. 182, 184, 774 A.2d 183 (2001); we granted the defendant's petition for certification to appeal, limited to the following issues: "1. Did the Appellate Court properly conclude that the trial court's instruction, limiting the jury's use of the evidence regarding the effect of Leroy Townsend's use of marijuana on his credibility, was proper?"; and "2. If the answer to the first question is `no,' was the error harmless?" State v. Clark, 256 Conn. 905, 772 A.2d 597 (2001). We conclude that the Appellate Court improperly concluded that the instruction was proper, however, we further conclude that the erroneous instruction was harmless. Accordingly, we affirm the judgment of the Appellate Court.

The Appellate Court set forth the following facts that the jury reasonably could have found. "Tyrese Jenkins, Hopeton Wiggan, David D., Kenny Cloud and Brucie B.² were members of a gang named after a housing project in New Haven. On October 7, 1996, at approximately 11:15 p.m., the gang members went to [another] housing project, also located in New Haven and referred to as `the ghetto,' to settle a dispute with the defendant and [some of his friends].

"Cloud stayed in the car, while Jenkins, Wiggan, David D. and Brucie B., with guns at their sides, went looking for the defendant. The four men entered the housing project through a hole in a fence. As they approached, they noticed the defendant with three others, namely, Charles Green, Bobby `B.O.' Cook and Ryan Baldwin, who were standing and talking near a green electrical box. When the defendant and the others noticed the gang members approaching, the defendant exclaimed, `Shoot the motherfucker,' and a gunfight ensued.

"When the first shots were fired, Wiggan and Brucie B. ran for cover behind a dumpster, and Jenkins ran diagonally across a parking lot located in the complex. Both sides exchanged a barrage of gunfire. As Wiggan, Brucie B. and Jenkins retreated from the complex, Jenkins was shot in the leg. He continued to hobble quickly away from the complex until another bullet struck him and he collapsed. Wiggan and Brucie B. went back into the complex and found Jenkins sitting up against a wall. The two picked up Jenkins and carried him to the car. Cloud, David D., Brucie B. and Wiggan took Jenkins to Yale-New Haven Hospital, where he died from his injuries." State v. Clark, supra, 62 Conn. App. 184-85. "Arkady Katsnelson, a forensic pathologist, performed an autopsy on the victim. Katsnelson testified that Jenkins suffered two bullet wounds, one of which was fatal. One bullet, a nine millimeter round, entered the lower front portion of Jenkins' right leg and exited from the back of it. The other bullet, a .44 caliber round, which caused the fatal wound, entered through the upper right side of Jenkins' chest just below his collarbone and then penetrated his chest wall, right lung, heart, diaphragm, part of his liver and organs of his abdomen, and eventually lodged in his abdominal cavity." Id., 185.

The following additional facts and procedural history are necessary for our resolution of the issue on appeal. At trial, the state presented the testimony of its key witness, Townsend, a local man who was standing near the site of the shooting, smoking marijuana, when he witnessed the beginning of the disturbance. Townsend testified that he had seen the defendant at the scene, that the defendant had a pistol and that, immediately prior to the volley of shots resulting in the victim's death, the defendant had said to Green, "Shoot the motherfucker."³

Townsend's credibility was attacked by the defense in a variety of ways. He admitted that he had not come forward with his story until several weeks after the shooting when officers from the New Haven police department arrested him for a traffic violation. He also admitted to having three felony convictions on his record. Townsend testified that on the night of the shooting, he went to the housing project to purchase marijuana, although, at other times, he stated that he went there with the marijuana already in his pocket. He testified that at some point he purchased six bags of "weed," although he was unable to remember where he had purchased it. Townsend acknowledged that, shortly before the shooting, he had smoked five marijuana cigarettes, with perhaps a ten or fifteen minute interlude between each cigarette. During his interview with the police, however, Townsend placed himself at the scene for only approximately fifteen minutes prior to the shooting. These inconsistencies aside, the defendant did not inquire into the effect that the marijuana had on Townsend's ability to perceive or to recall the events on the night of the shooting.

Additionally, the defendant cross-examined Townsend regarding the following inconsistencies in his story. Townsend admitted that, although he previously had testified that he had observed Jenkins get shot, he actually did not witness the shooting because he had run from the scene as soon as the shots were fired. He told the police that he had seen the defendant arguing with the victim just before the shooting, but then testified that he had not seen any such argument and only heard about it later. Townsend also had told the police that the shooting took place in a certain tunnel in the housing project, but later testified that it took place on the street. Moreover, Townsend's testimony was inconsistent on the issue of whether the victim and his friends were armed, sometimes indicating that they had guns and, at other times, testifying that they did not. Finally, Sherry Heyward, Townsend's second cousin, testified that she had known Townsend for twenty-five years, had lived with him on occasion, and that he was a "pathological liar."

At the close of evidence, the trial court provided standard instructions regarding the credibility of witnesses⁴ and eyewitness identification testimony.⁵ Specifically, with regard to Townsend's testimony, the court provided the following instructions to the jury: "In weighing the credibility of . . . Townsend, you may consider the fact that he was convicted of one felony in 1986 and two felonies in 1994, and give such weight to those facts which you decide is fair and reasonable in weighing the credibility of his testimony in court and the statement he gave to the police which is taped and marked as exhibit 50A. Also, in weighing the credibility of . . . Townsend, you may consider the testimony of. . . Heyward concerning her opinion that . . . Townsend is a pathological liar and give such weight to that opinion which you decide is fair and reasonable in weighing his credibility." Nevertheless, earlier in its charge the trial court had stated: "[Y]ou have heard testimony that . . . Townsend smoked marijuana the night of the shooting. There is no evidence as to what effect it had on him. Because there is no such evidence, you must not speculate that he was or was not affected by it or how he was affected by it." The defendant took exception to the court's instruction that the jury essentially must ignore the evidence of Townsend's marijuana use. The court declined, however, to reinstruct the jury.

On appeal to the Appellate Court, the defendant claimed, inter alia, that the trial court's instruction not to consider the effect of Townsend's marijuana use had deprived him of a fair trial and had violated his constitutional right to confrontation. State v. Clark, supra, 62 Conn. App. 201. Concluding that "the defendant's cross-examination of the witness was not limited, except by the defendant's own failure to ask the witness about his ability to perceive and to relate events after he had smoked five marijuana cigarettes," the Appellate Court rejected the defendant's constitutional claim. Id., 207 n.11. Accordingly, the Appellate Court treated the claim as an issue of evidentiary propriety, and thereafter concluded that, because the defendant "did not attempt to show that the witness' condition after smoking marijuana affected the witness' ability to observe, to recall or to narrate events at issue in the present case," the trial court's instruction was proper. Id., 211.

In his dissent, Chief Judge Lavery disagreed with the majority's position that, as a predicate to allowing the jury to consider the impact of Townsend's marijuana use on the night in question, there must be evidence of the effects of such drugs on the witness' ability to perceive and to recall. Accordingly, he concluded that the trial court's instruction not to consider this evidence when evaluating Townsend's testimony was improper. Id., 216. In his view, the instructional error was harmful, thereby requiring a new trial. We agree with Chief Judge Lavery's dissent that the instruction was improper, but conclude that the defendant has not demonstrated that the impropriety was harmful.

We begin with a brief recitation of what is not at issue in this case. First, it is undisputed that impeachment of a witness by evidence of narcotics use near...