State v. Conn

• Decision Date: 04 July 1995
• Docket Number: No. 15109,15109
• Citation: 662 A.2d 68,234 Conn. 97
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Frederick CONN.

Page 68

662 A.2d 68

234 Conn. 97

STATE of Connecticut v. Frederick CONN.

No. 15109.

Supreme Court of Connecticut.

Argued March 22, 1995.

Decided July 4, 1995.

Vicki H. Hutchinson, Sp. Public Defender, with whom was Rita Van Item, New Milford, for appellant (defendant).

Leon F. Dalbec, Jr., Asst. State's Atty., with whom, on the brief, were Walter D. Flanagan, State's Atty., and David Holzbach, Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and CALLAHAN, BERDON, NORCOTT and PALMER, JJ.

CALLAHAN, Justice.

The defendant, Frederick Conn, was convicted after a jury trial of felony murder in violation of General Statutes § 53a-54c. ¹ In the information filed against the defendant, the state alleged that the defendant, acting either alone or with Bassell Conn and/or Enrique Smith, "attempted to commit the crime of Robbery and in the course of and in furtherance of such crime or flight therefrom he or another of the participants ... caused the death of one Michael Samaha." The defendant claims on appeal that: (1) the state destroyed potentially exculpatory evidence, in violation of his right to due process of law under the fourteenth amendment to the United States constitution, by failing to test, in a timely manner, certain physical evidence; (2) the trial court improperly denied his motion to unseal his arrest warrant and its supporting affidavit prior to his probable cause hearing; and (3) the trial court improperly failed to instruct the jury that it could draw an adverse inference against the state for failure to test the physical evidence. ² We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On September 10, 1992, shortly after 10 p.m., Robert Arconti, a patrol officer with the Danbury police department, found the victim lying in the alley between 112 and 114 Elm Street in Danbury with a single gunshot wound to his lower back. The victim was on his left side, unconscious, with his left arm under his body and his pants pulled down exposing most of his buttocks. As the emergency medical technicians who had been called to the scene were moving the victim to the ambulance, a twenty dollar bill fell from the victim's left hand. Arconti gave the bill to officer Roger Brooks, the evidence technician responsible for photographing and collecting evidence at the scene. The victim died on the operating table at Danbury Hospital early the next morning. The cause of death was determined to be the "penetrating injury caused by the bullet that entered through his back into and traversed his abdominal cavity injuring the aorta as well as the intestinal tract."

Brooks recovered several items in addition to the twenty dollar bill that had fallen from the victim's hand. A .32 caliber, semiautomatic Beretta pistol, that was loaded and cocked, with a round in the chamber, was found in the rear of the alley. Moreover, in addition to the bullet removed from the victim's body, a second bullet was retrieved from the wall behind the victim and two shell casings were discovered within twelve feet of where the victim had fallen. A light colored T-shirt and a dark colored baseball cap also were located in the alley near a fence.

In addition, the jury heard the following testimony that it could have credited. Mark Trohalis, the Danbury police officer who had found the T-shirt and baseball cap in the alley, testified at trial that these items were "very dry and that night it had rained off and on, sometimes very heavily.... It's very common when you have a crime occurring that people will try to change their appearance to avoid being caught and this was a very real possibility." Edward McPhillips, a firearms examiner for the state police forensic laboratory, testified at trial that, from the results of the ballistic tests that he had conducted on the pistol recovered from the scene, the bullet that had been removed from the victim's body had been discharged from the pistol found at the rear of the alley and that the two shell casings found had been fired in the same gun. ³

Friends of the defendant, Ezra Staton, Terrel Staton and Timothy Mourning, testified that, approximately one week before the shooting, they had seen the defendant and his brother, Bassell Conn, in possession of a black .32 caliber pistol that the brothers kept in a black waist pouch. Furthermore, Vandy Heard, Michael Ross, Terrel Staton and Mourning testified that shortly before they heard gunshots from the alley, they had been standing in a group at a corner near the alley and had seen the defendant, his brother and Smith with the pistol.

Ross testified that, while the group was gathered at the corner, he had seen the defendant's brother take the gun out of the pouch and wave it in the air. Ross further testified that about ten or fifteen minutes later, when he was at the basketball courts not far from the alley, he had heard two gunshots from the direction of the alley. Heard testified that the group, including the Conn brothers and Smith, had gathered at the corner near the alley and were discussing the possibility of robbing someone when the defendant's brother took the gun out of a black waist pouch. Because it had started to rain, the group then disbanded, except for the defendant, his brother and Smith. Both Heard and Terrel Staton testified that when they saw the defendant and his brother just prior to the shooting, Bassell was wearing a black baseball cap.

There were two eyewitnesses to the shooting. Elisha Council testified that she had been in the alley with the victim shortly before he was shot. The victim asked Council if she could find someone either to sell him some drugs or to have sex with him. Thereafter, Council left the victim and went to the back porch of a building overlooking the alley. While on the back porch, she heard a commotion. She testified that she saw three men, in addition to the victim, in the alley and that two of them had attacked the victim and asked him for money while the third appeared to act as a lookout. Council then heard two gunshots, but was not certain who shot the victim. The three men then fled. Council identified the three perpetrators as the defendant, his brother Bassell and Smith.

At the time of the shooting, another eyewitness, Theresa Perkins, was in her second floor apartment, which is adjacent to the alley. She testified that when she heard a commotion, she looked out of her window and saw the victim being attacked by two men. She then heard a gunshot and saw the victim fall to the ground, but, could see only that the shooter had on "a T-shirt with a logo on it and a dark-color hat," and could not discern the shooter's identity. She did identify the defendant as one of the individuals involved in the attack however.

Mourning gave a statement to the police on September 13, 1992, which was read to the jury and admitted into evidence for substantive purposes, stating that shortly after the shooting, "Boz Conn came up to me and said, 'I just shot somebody.' " Cedric Jones testified that two days after the shooting, the defendant had told him that he, his brother and Smith had shot someone in the alley. Jones further testified that the defendant had asked him to act as an alibi witness by stating that they were together at the mall at the time of the shooting. Additional facts will be provided as necessary.

I

We first address the defendant's claim that the state destroyed potentially exculpatory evidence, in violation of his right to due process of law under the fourteenth amendment to the United States constitution, ⁴ by failing to test, in a timely manner, certain physical evidence.

The following facts are relevant to this claim. Brooks, who had collected the evidence at the crime scene, testified that about one week after he had obtained the T-shirt and black baseball cap from the alley, he sent them to the state forensic laboratory and requested that they be processed for hairs, fibers and gunshot residue. Kiti Settachatgul, a lead criminalist in the trace evidence section of the state forensic bureau, first testified on October 13, 1993. He stated that he had found several hairs on the T-shirt and baseball cap. He classified the hairs as "negro." He stated, however, that he did not perform any additional tests with regard to the hairs because no hair samples had been submitted with which he could compare the hairs found on the T-shirt and baseball cap.

Settachatgul also testified that he did not submit his report to the Danbury police department until September 14, 1993, more than one year from the date of the murder, and that the delay was a result of the heavy caseload at the laboratory. Thus, the tests on the evidence were not performed until just before the trial was scheduled to begin and only then because a case that is scheduled for trial takes precedence over others. Settachatgul further testified that on September 10, 1993, he had requested a sample of hair from the defendant, his brother Bassell and Smith from the Danbury police department for comparison with the hair recovered from the T-shirt and baseball cap. No samples were sent to him at that time.

After Settachatgul's testimony on October 13, 1993, the defendant, out of the presence of the jury, in a motion for nontestimonial evidence, requested that hair samples be taken from the defendant to be compared with the hairs found on the T-shirt and baseball cap. The defendant's stated reason for his request was that "I don't want to leave the jury thinking that we refused to comply. We never received any requests for such evidence before, and I don't want to leave that gaping hole or that question mark in the jurors' mind[s]." The state did not object to the motion and stated that its "reason for not requesting this in the first place was because [it had] received the information so late, [and] didn't feel there was sufficient time for the State's motion [for...