State v. Henry
| Citation | 805 A.2d 823,72 Conn.App. 640 |
| Decision Date | 01 October 2002 |
| Docket Number | No. 22524.,22524. |
| Court | Appellate Court of Connecticut |
| Parties | STATE of Connecticut v. Darcus HENRY. |
Moira L. Buckley, deputy assistant public defender, for the appellant (defendant).
Robert J. Scheinblum, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and James G. Clark, senior assistant state's attorney, for the appellee (state).
The defendant, Darcus Henry, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes §§ 53a5-4a (a) and 53a-8 (a),1 conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a)2 and 53a-54a (a), and two counts of assault in the first degree in violation of General Statutes §§ 53a-59 (a)(5)3 and 53a-8 (a). The defendant claims that the court improperly (1) denied his motions to sever his trial from that of his three codefendants, (2) admitted the testimony of an expert witness, (3) excluded the statement of an unavailable witness, (4) restricted his cross-examination of a witness, (5) improperly instructed the jury and (6) denied him access to a police officer's personnel file. The defendant also claims that the state's attorney engaged in prosecutorial misconduct. We affirm the judgment of the trial court.
The jury reasonably could have found the following facts. At approximately 2 a.m. on December 14, 1996, the defendant and three fellow members of a street gang, Sean Adams, Carlos Ashe and Johnny Johnson, went to a housing project in New Haven and fired with automatic or semiautomatic weapons at three unarmed members of a rival street gang. During the attack, the defendant and his companions killed Jason Smith and seriously injured Marvin Ogman and Andre Clark. The motive for the attack was to avenge the murder of a former member of the defendant's gang, Tyrese Jenkins, by members of the rival gang, one of whom was Clark's cousin.
The defendant, Adams, Ashe and Johnson were arrested and charged in a four count substitute information with murder, conspiracy to commit murder and two counts of assault in the first degree. All four cases were consolidated and tried jointly before a twelve person jury. The jury found the defendant guilty as charged on all four counts, and the court imposed a total effective sentence of 100 years imprisonment.4 This appeal followed.
The defendant first claims that the court improperly denied his motions to sever his trial from that of his three codefendants. He argues that the defendants presented antagonistic defense theories and that the failure to sever his trial permitted each of the defendants to cross-examine witnesses and to present closing arguments in a manner prejudicial to the other defendants. He thus argues that he was deprived of his right to a fair trial, his right to present a defense, and his right to cross-examine witnesses under the fifth, sixth and fourteenth amendments to the United States constitution and article first, § 8, of the constitution of Connecticut. We do not agree.
Prior to the trial, the court granted the state's motion to consolidate the cases of the four defendants. Thereafter, the defendant filed a motion to sever on three separate occasions. The defendant initially filed a pretrial motion to sever his trial on the ground that his codefendants had presented antagonistic theories involving alibi defenses. Counsel for the defendant argued that because the four defendants had taken independent positions as to what they were doing when the attack occurred, it would be in the interest of each defendant to emphasize the evidence against the others while minimizing the evidence against himself. The court, citing State v. Booth, 250 Conn. 611, 737 A.2d 404 (1999), cert. denied sub nom. Brown v. Connecticut, 529 U.S. 1060, 120 S.Ct. 1568, 146 L.Ed.2d 471 (2000), denied the motion on the ground that the defendant had failed to make a sufficient showing to grant his request for a separate trial.
At trial, Ogman identified the four defendants as being present during the attack. During cross-examination of Ogman, Johnson's counsel offered into evidence, as a prior inconsistent statement, part of a written statement Ogman had given to police Detective Thomas Trocchio. In the statement, Ogman had identified the defendant and "Johnny Salters" as his shooters. The defendant's counsel objected and, outside the presence of the jury, requested severance, arguing that the proffered impeachment was an appropriate defense by Johnson, but was devastating to the defendant. He further argued that admission of the partial statement would enable the state to introduce the entire statement, in which the defendant's name appeared most frequently, on redirect examination. The defendant contended that admission of the statement violated his right to preclude the jurors from being exposed to that information.
The court overruled the defendant's objection and denied his motion to sever because Ogman already had identified the defendant as a shooter in his direct testimony; the proffered impeachment was consistent with the defendant's assertion that Ogman had falsely identified him; the evidence was not offered for substantive purposes but only as to credibility, which benefited all of the defendants; the court intended to give a limiting instruction to that effect; and the proffered testimony was not evidence of an antagonistic defense because it was directed only to the credibility issue. When the jury returned to the courtroom, the court instructed that Ogman's prior statement had not been offered for the "truth of its content," that the statement was relevant only with respect to Ogman's credibility and that no facts could be found against the defendant on the basis of the statement.
The defendant again requested severance after the summation by Johnson's counsel. At trial, the defendant had presented an alibi defense placing him at the home of another gang member when the shooting occurred. Johnson also had presented an alibi defense placing him in a different location, but apart from that of the defendant, at the time of the shooting. In his summation, Johnson's counsel referred to testimony by Detective Richard Pelletier, an expert on gangs, that the defendant and Gaylord Salters were in the "upper echelon" of the gang. Because Salters was Johnson's brother, and Ogman's testimony was unclear as to whether Salters or Johnson was present when the shooting occurred, counsel argued: "If you are going to plan something, an operation like this, who is more likely to have been there, somebody high in the echelon, Mr. Salters, or his brother, who has no particular role...." Counsel also argued that Johnson's alibi was credible when counsel stated that "[w]e know what a cooked alibi looks like, and it wasn't mine because Mr. Johnson's witnesses were telling a factual account of what happened...."
The defendant requested severance, claiming that Johnson's counsel subtly but effectively had made the point that his client was innocent by suggesting that the defendant's alibi was "cooked," and that a gang leader such as the defendant was more likely to have been present at the shooting than Johnson, who had no particular role. The court denied the motion on the ground that final argument by counsel is not evidence, the argument did not rise to the level of an inconsistent defense, and there was nothing in the argument to preclude a finding that both defendants were innocent or that one was innocent and one was guilty.
Thereafter, the court instructed the jury regarding how to view the evidence in light of the fact that the cases of the four defendants had been tried together. The court instructed that although the evidence offered by the state might overlap to some extent in all four cases, each defendant was entitled to a separate and independent determination of guilt or innocence, not only apart from the other defendants, but also with respect to each count of the information. The court continued:
The standard of review of a court's decision to deny a motion to sever is well settled. (Citations omitted; internal quotation marks omitted.) Id., at 620-21, 737 A.2d 404.
...
To continue reading
Request your trial
-
State v. Tomlinson
...; State v. Crocker , 83 Conn. App. 615, 634–35, 852 A.2d 762, cert. denied, 271 Conn. 910, 859 A.2d 571 (2004) ; State v. Henry , 72 Conn. App. 640, 656–58, 805 A.2d 823, cert. denied, 262 Conn. 917, 811 A.2d 1293 (2002). For example, if the expert explicitly refers to or vouches for the ac......
-
Jacob Doe v. Hartford Roman Catholic Diocesan Corp.
...As such, [he] did not face the prospect of prosecution should his statements prove to be false." [Citation omitted.]); State v. Henry, 72 Conn. App. 640, 663, 805 A.2d 823 (written statement lacked sufficient reliability and trustworthiness when given to private investigator, rather than po......
-
Doe v. Hartford Roman Catholic Diocesan Corp.
...such, [he] did not face the prospect of prosecution should his statements prove to be false.” [Citation omitted.] ); State v. Henry, 72 Conn.App. 640, 663, 805 A.2d 823 (written statement lacked sufficient reliability and trustworthiness when given to private investigator, rather than polic......
-
State v. Leandry
...receive] ... compensation for this incident," he offered no proof nor stated a good faith belief for this assertion. See State v. Henry, 72 Conn.App. 640, 666–67, 805 A.2d 823 (concluding that court did not abuse discretion in disallowing proposed cross-examination because defense counsel's......