State v. Ketchum
| Decision Date | 27 May 1997 |
| Docket Number | No. AC,AC |
| Citation | 696 A.2d 987,45 Conn.App. 270 |
| Parties | STATE of Connecticut v. Alexander KETCHUM 12472. |
| Court | Connecticut Court of Appeals |
Elizabeth A. Gallagher, New Haven, for appellant (defendant).
Carolyn K. Longstreth, Assistant State's Attorney, with whom were Michael Pepper, Assistant State's Attorney, and, on the brief, Michael Dearington, State's Attorney, for appellee (State).
Before DUPONT, C.J., and LANDAU and FRANCIS X. HENNESSY, JJ.
The defendant, Alexander Ketchum, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a)(1), conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-59 (a)(1), robbery in the first degree as an accessory in violation of General Statutes §§ 53a-8 and 53a-134 (a)(3), and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a)(3). On appeal, the defendant claims that the trial court improperly (1) refused to allow a photograph of a third party look-alike into evidence, (2) denied access to the psychiatric records of the victim, (3) denied the motion to dismiss one of two conspiracy counts, and (4) denied the defendant's motions for acquittal and for a new trial. We affirm the judgment of the trial court.
The jury reasonably could have found the following facts. On October 31, 1989, the victim, Billy McClain, while walking on Kensington Street in New Haven, was approached from behind by approximately seven males who ranged in age from seventeen to twenty years. One of the men asked the victim if he wanted to buy "ghostbusters," which the victim understood to refer to cocaine. The victim declined the offer and continued walking. Shortly thereafter, the same group of men ran up behind the victim and began beating him with a two by four. One of the men in the group said, "Let's take his money." The men continued to beat the victim with the two by four, a plastic garbage can, a piece of iron bed frame and their fists. The man hitting the victim with the garbage can was standing very close to the victim. The victim thought he heard one of the men address the man with the garbage can and say, "It's your turn, Chauncey." During the attack, after someone in the group demanded money, the victim handed over the $2 he had in his pocket. The men then attempted to remove the victim's clothes but were unsuccessful. They also put a powdery substance in the victim's mouth, which was later identified as cocaine.
After the assault, the victim went home. A family member called an ambulance and he was subsequently taken to a hospital. A police officer was dispatched to the hospital but a report was not filed at that time because the victim did not give a statement. During the months following the attack, the victim saw the person who he thought was named Chauncey on three occasions. He did not formally file a complaint until approximately eight months after the incident because he feared retaliation. On June 20, 1990, the victim went to the police station, looked through several trays of photographs and identified the defendant as one of his assailants.
The defendant first claims that the trial court improperly refused to admit into evidence a photograph to show that a third party look-alike might have committed the crime. He argues that the identity of the assailant was essentially the sole issue at trial and that, as part of his defense, it was critical that he be allowed to introduce evidence that indicated that a third party committed the crime with which he was charged.
In his offer of proof, the defendant argued that the victim testified that the person he identified as the defendant had been called "Chauncey" by other people involved in the assault, that Chauncey Evans, known to be a violent person involved in gang related shootings, was in the neighborhood during the days surrounding the time of the assault, and that the defendant and Chauncey Evans were of similar height, hair styles and facial features. Given the unusualness of the name Chauncey and the look-alike photograph, the defendant maintains that the court should have allowed the photograph into evidence.
The state argues that although the victim heard one of the attackers say, "Chauncey, it's your turn" and thought that the person was referring to the defendant, the victim did not know the defendant and was not certain that the defendant was named Chauncey. The state further contends that the defendant and Chauncey Evans do not look alike: Evans appears older than the defendant, has a lighter complexion and a large scar on his forehead, and, while Evans' chin is pointed, the defendant's chin is square.
A defendant may introduce evidence that indicates that a third party, and not the defendant, committed the crime with which the defendant is charged. State v. Burge, 195 Conn. 232, 252, 487 A.2d 532 (1985). The defendant, however, must show some evidence that directly connects a third party to the crime with which the defendant is charged. Siemon v. Stoughton, 184 Conn. 547, 555, 440 A.2d 210 (1981); State v. Giguere, 184 Conn. 400, 405, 439 A.2d 1040 (1981).
(Citations omitted; internal quotation marks omitted.) State v. Echols, 203 Conn. 385, 393, 524 A.2d 1143 (1987).
In the present case, it does not appear that the court abused its discretion or that injustice has been done. The victim was face to face with a man while being beaten with a garbage can. Several other men, not necessarily the defendant, were present who could have been named "Chauncey." The victim saw his attacker several times in the neighborhood during the months following the assault. He also identified the defendant as his attacker from a police department book of photographs. There was no evidence before the court that the third party, Evans, was anywhere near the scene of this crime on the day it took place. Furthermore, there was no evidence before the court that Evans was connected at all with the beating of the victim and the taking of his money. There also was no evidence before the court that the name "Chauncey" yelled out by one of the attackers referred to Chauncey Evans. Without evidence that directly connects the third party with the crime, the defendant could not introduce other evidence, including a photograph of a look-alike that indicates a third party committed the crime. The trial court did not abuse its discretion in excluding the photograph.
The defendant next claims that the trial court improperly denied him access to the victim's psychiatric records. He argues that he was deprived of his right to cross-examination by the trial court's refusal to allow him to question the victim's ability to comprehend, to know and to relate the truth correctly.
The facts surrounding this claim are as follows. After several jurors had been chosen, the state disclosed that a laboratory report pertaining to the victim's medical treatment on the night he suffered his injuries indicated that the victim was taking Prolixin, an antipsychotic drug. The defendant moved for a mistrial on the ground that the untimely disclosure of this information prevented the defendant from questioning prospective jurors on the subjects of mental illness and Prolixin. The motion was granted. During the new trial, the defendant, who had subpoenaed the victim's psychiatric records, moved to have those records disclosed. The victim consented to a review of his medical and psychiatric records, and the trial court conducted an in camera review.
Both the defendant and the state agree that the court reviewed the medical and psychiatric file and that the information was not made available to the defendant. There is no transcript or record, however, of the court's finding or conclusion. The defendant claims that the court's failure to place its findings on the record deprived him of the opportunity effectively to cross-examine the victim. 1 We disagree.
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