State v. Collymore

• Decision Date: 11 October 2016
• Docket Number: AC 37703
• Citation: 148 A.3d 1059,168 Conn.App. 847
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Anthony COLLYMORE

168 Conn.App. 847

148 A.3d 1059

STATE of Connecticut

v.Anthony COLLYMORE

AC 37703

Appellate Court of Connecticut.

Argued January 14, 2016

Officially released October 11, 2016

Susan M. Hankins, assigned counsel, for the appellant (defendant).

Robert J. Scheinblum, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Cynthia S. Serafini, senior assistant state's attorney, for the appellee (state).

Gruendel, Lavine and Mullins, Js.^*

GRUENDEL, J.

It is well established that the state may immunize from prosecution a witness called in its case-in-chief. See generally General Statutes § 54–47a. The primary question in this appeal is whether the state, after immunizing such a witness for testimony given during the state's case-in-chief, may decline to extend that immunity to the same witness in connection with his testimony during the defense case-in-chief. Here, we conclude that the state was not required to grant three prosecution witnesses additional immunity for their testimony during the defense case-in-chief, and that the court's refusal during the defense case-in-chief to compel those witnesses to testify when they invoked their fifth amendment right to remain silent was proper as to some testimony and harmless as to the rest. Accordingly, because we conclude that the remainder of the defendant's claims—three evidentiary claims and a claim that the court improperly penalized the defendant at sentencing for electing to go to trial—also lack merit, we affirm the judgment of conviction.

The defendant, Anthony Collymore, appeals from that judgment, rendered after a jury trial, of (1) felony murder in violation of General Statutes § 53a–54c ; (2) attempt to commit robbery in the first degree in violation of General Statutes §§ 53a–49 (a) (2) and 53a–134 (a) (2) ; (3) conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a–48 (a) and 53a–134 (a) ; and (4) criminal possession of a firearm in violation of General Statutes § 53a–217 (a) (1).¹

At trial, the jury reasonably could have found the following facts. On January 18, 2010, the defendant and two of his friends, Rayshaun Bugg and Vance Wilson (Vance), were driving around Waterbury in a white, four door, rental Hyundai that the defendant's aunt and uncle had lent to him, looking to rob someone. Eventually the three men drove into the Diamond Court apartment complex, which comprises eight apartment buildings. Halfway down the main road of the complex, the men saw an expensive-looking, black Acura sport utility vehicle (SUV) and decided to rob its driver.

They drove down a small road behind the apartments, where the defendant and Vance pulled out their guns and exited the Hyundai, saying that they were going to rob the driver of the SUV. The defendant had a .38 revolver and Vance had a .357 revolver. Bugg drove to the end of the small road and waited. The defendant and Vance reached the SUV, saw two young children running toward its driver, and decided to call off the robbery. The SUV drove away.

The defendant and Vance then saw seventeen year old John Frazier (victim) and decided to rob him. As they were trying to rob him, he slapped away one of their guns and ran toward his apartment, at the entrance to the complex. The defendant and Vance both fired shots at the victim.

Bugg drove up, the defendant and Vance ran over to the Hyundai and got in, and they sped off to the apartment of Jabari Oliphant, a close friend who lived in Waterbury. There, the defendant and Vance explained to Bugg and Oliphant what had just transpired at Diamond Court, namely, that they had intended to rob the man in the SUV but decided not to when they saw his young children; instead, they tried to rob the victim and shot him when he resisted. They then asked Oliphant if he had something to clean their guns.

Police arrived at Diamond Court within minutes of the shooting and found the fatally wounded

victim in front of his family's apartment. An autopsy revealed that a single .38 class bullet through the victim's heart had killed him.² The defendant was arrested and tried.

At trial, the state's case included more than thirty witnesses, who testified over the course of fifteen days. A jury found the defendant guilty, and the court imposed a sentence of eighty-three years in prison. The defendant now appeals from that conviction.

I

The defendant's first claim is that the court improperly failed to compel three defense witnesses to testify. Specifically, the defendant argues that the court improperly allowed the state to revoke the immunity of three prosecution witnesses when they were called as defense witnesses, then improperly allowed those witnesses to invoke their fifth amendment right and refuse to testify, and that these two errors combined to unconstitutionally deny the defendant these witnesses' exculpatory testimony.

A

The following additional facts and procedural history are relevant to this claim. At the defendant's trial, the state granted immunity to three witnesses—Bugg, Vance, and Oliphant—in exchange for their testimony during the state's case-in-chief. Although they were called as prosecution witnesses, once they began to testify, these witnesses repudiated prior statements inculpating the defendant and testified so as to exonerate him, reiterating their exculpatory testimony when the defense cross-examined them. The defendant sought to examine those witnesses again during his case-in-chief but, this time, each witness invoked his fifth amendment right and refused to answer many or all questions asked.

The inculpatory evidence from these three witnesses came from recorded statements they gave before trial to various authorities, which the court admitted for substantive purposes.³ The statements differed markedly from the trial testimony, and each of the three witnesses repudiated his statements at length during the state's direct examination and the defendant's cross-examination. We discuss each witness in turn.⁴

Bugg was the first of the three witnesses granted immunity. When the state called him to testify in its case-in-chief, he communicated through his attorney that he would be invoking his fifth amendment right against self-incrimination, fearing that the state might bring drug charges against him for his activities on the night of the shooting and perjury charges if he contradicted the testimony he had given at the defendant's probable cause hearing. The state told the court: "Your Honor, based on our review of the statute, the state intends to give [Bugg] use immunity for any drug activity he was engaged in on January 18, 2010.... [In addition] the state does not intend to prosecute [Bugg] for any perjury that he may have committed at the probable cause hearing." The court informed Bugg that as a result, "your [immunity under the statute] doesn't exist, because the state has removed [the possibility of prosecution that] would otherwise allow you to [claim the immunity]."

Bugg indicated that he understood. The court instructed the jury that "under [§] 54-47a, [Bugg] has been compelled to testify ...."

aBugg's Testimony during State's Case-in-Chief

When the state examined Bugg during its case-in-chief, he testified that on January 18, 2010, he, the defendant and Vance drove to Diamond Court to buy drugs from "the weed man," and then drove to Oliphant's apartment. Bugg acknowledged under questioning that this story differed from the police statement he gave on February 10, 2011, and from his testimony at the defendant's probable cause hearing on August 30, 2011. In repudiating his earlier statements, he claimed, however, that the police had forced him to sign the statement after writing it themselves and that he had testified falsely at the probable cause hearing in exchange for a plea deal.

On cross-examination, Bugg reiterated that, on January 18, 2010, there was never any plan to rob someone, they were "going to get some weed, that was the whole thing," and he did not see the defendant or Vance with a gun that night. Bugg testified that he signed the police statement in exchange for a plea deal and because the police beat him, and that his testimony at the probable cause hearing was part of the same plea deal.

bBugg's Prior Inconsistent Statements

The state submitted the two statements made by Bugg prior to his testimony at trial, both of which were admitted into evidence for substantive purposes under State v. Whelan , 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986).

First, the state introduced Bugg's police statement, made on February 10, 2011, through Lieutenant Michael Slavin, one of the detectives who had taken it. Slavin testified that Bugg had agreed with the statement he had given to the police and that the police did not beat or threaten Bugg. The court admitted the statement as a full exhibit.

Bugg stated to the police that on January 18, 2010, he, the defendant and Vance were driving around when the defendant and Vance saw a black Acura SUV at Diamond Court, pulled out their guns, told Bugg that they were going to rob its driver, and got out of the car. Bugg saw the defendant with a .38 revolver and Vance with a .357. Soon, Bugg heard five or six gunshots and saw the defendant and Vance running up. They got into the Hyundai and told Bugg to drive, and he sped away. When they arrived at Oliphant's apartment, Vance and the defendant explained to Bugg that "the guy in the Acura had a baby in it, so they felt bad; instead [they] took the young nigga." The defendant told Bugg that Vance "ha[d] his gun to the [victim's] chest" while they were trying to rob him, "and the [victim] tried to grab it and they started to tussle over the gun, [and] that is why he shot him." While the defendant was talking, Vance asked for some ammonia so that he could clean off his gun.

Second, Bugg's probable cause hearing statement, made on August 30, 2011, was admitted into...