State v. McDougal, s. 15500

• Decision Date: 08 July 1997
• Docket Number: Nos. 15500,15501,s. 15500
• Citation: 699 A.2d 872,241 Conn. 502
• Parties: STATE of Connecticut v. Charles McDOUGAL. STATE of Connecticut v. John RUFFIN.
• Court: Connecticut Supreme Court

Page 872

699 A.2d 872

241 Conn. 502

STATE of Connecticut v. Charles McDOUGAL.

STATE of Connecticut v. John RUFFIN.

Nos. 15500, 15501.

Supreme Court of Connecticut.

Argued Nov. 8, 1996.

Decided July 8, 1997.

Robert G. Golger, Special Public Defender, Trumbull, for appellant (defendant in the first case).

Philip Russell, with whom were Roy S. Ward, Greenwich, and, on the brief, David Shein, New Haven, for appellant (defendant in the second case).

John A. East III, Assistant State's Attorney, with whom, on the brief, were Eugene Callahan, State's Attorney, Bruce Hudock, Senior Assistant State's Attorney, and James Bernardi, Assistant State's Attorney, for appellee in both cases (State).

Before BERDON, NORCOTT, KATZ, PALMER and McDONALD, JJ.

McDONALD, Associate Justice.

After a joint trial before a jury, the defendants, John Ruffin and Charles McDougal, were convicted of conspiracy to commit murder in violation of General Statutes §§ 53a-54a (a) and 53a-48 (a). ¹ Ruffin was also convicted of criminal attempt to commit murder in violation of General Statutes §§ 53a-54a (a) and 53a-49 (a). ² The defendants appealed from the judgment ³ of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c).

On appeal, both defendants claim that: (1) the trial court improperly admitted into evidence for substantive purposes the prior inconsistent statements of two witnesses; and (2) the state's peremptory challenges of several venirepersons because of their youth deprived the defendants of their right to a fair trial. Ruffin additionally claims that the trial court: (1) failed to require the state to describe the manner in which he was alleged to have committed manslaughter in the first degree; and (2) deprived him of his right to a fair trial by evincing a bias in favor of the state. We affirm the judgment of the trial court in each case.

The jury reasonably could have found the following facts. In July, 1993, Ruffin was locked in a territorial dispute over drug selling at the Southfield Village housing project in Stamford with a group known as the "Jamaicans." On July 3, 1993, Ruffin's girlfriend, Toneria Dix, had a fight with Teresa McCullen at Southfield Village. During the fight, two "Jamaican" males held Dix while McCullen sprayed her with mace.

When Dix and her friend, Nancy Thompson, reported this to Ruffin at Ludlow Street that afternoon, he immediately organized and led an armed assault on the "Jamaicans" at Southfield Village. Ruffin was armed with an AR-15 assault rifle and his five companions, including McDougal, were armed with handguns. Dix and Thompson traveled with Ruffin and McDougal to Southfield Village in one automobile, and the others traveled in another automobile. When Ruffin's followers spotted the "Jamaicans" and McCullen in the Southfield Village courtyard, they opened fire.

At the time, there were approximately seventy people in the courtyard, including seven year old Jasmine Merced, who was attending a birthday party with about fifteen other children. In the midst of eating cake and ice cream, Jasmine Merced was shot and killed in the presence of her mother.

I

Each of the defendants claims that the trial court improperly admitted for substantive purposes the written statements that Nancy Thompson and Ebony Phillips provided to the Stamford police. The defendants argue that the court should have allowed them to inquire further into the circumstances surrounding the reliability and voluntariness of the statements prior to admission, and that the statements were not sufficiently reliable to justify admission. The defendants finally argue that the trial court improperly bolstered the credibility of the statements by its comments and instructions to the jury.

At trial, the state called Thompson, who testified on direct examination that she went to Ludlow Street with Dix and Patricia Williams in a grey car. Thompson testified that after Dix talked to Ruffin, she, Dix, Williams, Ruffin, McDougal and Torik Baldwin returned to Southfield Village. Although she further testified that the other assailants, as well as a red sports car, were also at Ludlow Street, she said that she did not see anybody leave in the red car. Initially, Thompson also testified that she did not hear Ruffin say anything at Ludlow Street or while traveling to Southfield Village. At one point, however, she testified: "Only thing I know [Ruffin] said was--if you coming, come. If you not--is you coming." She further testified that she saw a soft, black pouch in the grey car, that it looked like it had a gun in it, but that she did not see what was underneath the pouch.

The state then sought to introduce a prior, contradictory written statement signed by Thompson on May 6, 1994. Thompson testified before the jury that she provided the information contained in the statement. She also testified that when she gave the statement to police, she was attempting to be truthful and accurate. Outside the presence of the jury, she testified that a police officer typed the statement as she spoke. She then read and corrected the statement, initialed a rights waiver section, and signed each of the three pages of the statement. In that signed statement, Thompson attested that her statement was truthful and voluntary, and that she was aware of the penalty for perjury. Then defense counsel questioned Thompson concerning the statement. She responded that the statement had not been given voluntarily or under oath, and that she had not gone to the police station of her own free will. When defense counsel sought to question Thompson further about how she traveled to the police station, where the statement was given, and whether she was told what would happen to her if she did not sign the statement, the trial court sustained the state's objection to the relevancy of the questions.

The defendants argued that if they had been permitted to continue questioning Thompson, she would have stated that the police "came to her home, put her into a police car, brought her to a police station, put her into a room in a detective bureau ... threatened and intimidated her ... [a]nd had already prepared at least some portions of this statement before her arrival there." The trial court then found that a part of the statement was admissible pursuant to State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986). ⁴

"In State v. Whelan, supra, [200 Conn. at] 752 , we emphasized that a prior inconsistent statement had to be given under circumstances ensuring its reliability and trustworthiness in order to be admissible. We therefore declined to allow prior oral statements of a witness to be used as substantive evidence, 'limit[ing] substantive admissibility of prior inconsistent statements to situations where the likelihood of fabrication is slight and the risk of coercion, influence or deception is greatly reduced.' Id., [at] 753 . While we noted that the requirement that prior statements be written and signed 'is not an absolute guaranty of reliability, it does provide significant assurance of an accurate rendition of the statement and that the declarant realized it would be relied upon.' Id., [at] 754, ." State v. Grant, 221 Conn. 93, 100, 602 A.2d 581 (1992).

The history of our admitting prior inconsistent statements for the truth of their contents began in State v. Whelan, supra, 200 Conn. at 747, 513 A.2d 86, in part, because of the "realities of the criminal process." (Internal quotation marks omitted.) These realities include the fact that "the parties are rarely able to select their witnesses: they must take them where they find them." Chambers v. Mississippi, 410 U.S. 284, 296, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297 (1973). Thus, " '[d]enial of the right [to impeach the witness] leaves the party at the mercy of the witness and the adversary.' " State v. Graham, 200 Conn. 9, 17, 509 A.2d 493 (1986).

These realities are illustrated in State v. Grant, supra, 221 Conn. at 101-102, 602 A.2d 581, where witnesses to a killing arising from a drug feud between rival drug dealers recanted their tape-recorded statements, and State v. Hopkins, 222 Conn. 117, 121, 609 A.2d 236 (1992), where an eyewitness to a robbery murder was no longer able to identify, as she had done in a written statement, the killer of her companion. In State v. Hopkins, supra, at 125, 609 A.2d 236, the trial court was confronted with a written statement from a drug-dependent prostitute given only after the police told her that she and her husband were suspects in the crimes, and that there were other charges pending against her, all while she was under the influence of Percocet, a powerful drug. There, this court stated: "Although these factors are relevant and proper matters for cross-examination they go to the weight of the evidence and not its admissibility." Id. This is precisely the manner in which the trial court in this case treated the claim of police pressure and the witness' written statement. In Hopkins, we did not depart from our determination in Whelan that a written and signed statement provides significant indicia of reliability to justify admission. We hold that the trial court's ruling was correct and within its sound discretion. The trial court was not required to allow defense counsel to question Thompson further concerning the circumstances of her statement prior to admitting it.

The dissent, accepting Thompson's testimony, equates the rack and the screw used in extracting a false statement to police persuasion used in obtaining statements from eyewitnesses to violent and fearful crimes. Unfortunately, in an atmosphere of violence, such witnesses may wish to say nothing or, if they do, later say they saw nothing. The Whelan principle's growing acceptance in our law; see 3A J. Wigmore, Evidence (Sup.1996) § 1018; is but a...