State v. McPhail, 13427

Decision Date05 December 1989
Docket NumberNo. 13427,13427
Citation567 A.2d 812,213 Conn. 161
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Melvin McPHAIL.

Jo-Ann L. Bowen, with whom was Maurice T. Fitz Maurice, Hartford, for appellant (defendant).

Frederick W. Fawcett, Asst. State's Atty., with whom, on the brief, were Robert Lacobelle and Richard F. Jacobson, Asst. State's Attys., and Kevin M. Kennedy, Law Student Intern, for appellee (state).


SHEA, Associate Justice.

After a jury trial, the defendant was convicted of arson in the first degree in violation of General Statutes § 53a-111(a)(1) 1 and two counts of arson murder in violation of General Statutes § 53a-54d. 2 In this appeal he claims that: (1) the state failed to disclose exculpatory information prior to a preliminary hearing conducted to determine probable cause; (2) the trial court erred by engaging in an ex parte communication with a juror; (3) the state failed to disclose the location of a witness he sought to present at trial; and (4) the trial court erred in giving a missing witness instruction against him. We find no reversible error.

From the evidence presented the jury could reasonably have found the following facts. On the morning of April 28, 1986, a three-story, wood frame rooming house at 561-563 Newfield Avenue, in the city of Bridgeport, was set ablaze by means of combustible accelerants, resulting in the deaths of two of its residents. The defendant lived in the rooming house with his girlfriend, Hazel Carter, with whom, at the time of the fire, he had a stormy relationship. Before the fire started, other residents of the rooming house heard the defendant engage in a loud and prolonged argument with Carter. A Bridgeport police officer was dispatched to investigate this altercation and, as a result, the defendant was asked to leave the premises. Shortly after doing so, however, the defendant returned and continued the argument with Carter, albeit from outside their room, as Carter would not allow the defendant to reenter. The defendant was heard threatening to get Carter out "one way or another," and further, specifically threatening to burn down the rooming house. Shortly thereafter, the fire started and those residents who were able to do so evacuated the building. The defendant was seen, at that time, outside the building leaning against a fence. Later, at the Bridgeport Hospital, a witness noticed that the defendant looked very worried and smelled of gasoline.


The defendant first claims that the state's failure to divulge exculpatory evidence to him at the probable cause hearing required by General Statutes § 54-46a(a) 3 resulted in a constitutionally tainted finding of probable cause by the trial court. The defendant claims that the state was in possession of statements that, if divulged, would have enabled him to attack the credibility of one of the state's witnesses at the probable cause hearing and also to present evidence that the arson had been committed by someone other than himself.

During the probable cause hearing the state presented the testimony of Shirley Evans, a resident of the rooming house at the time of the fire. Evans testified that she lived in the room next to that of the defendant and Hazel Carter, and that the defendant and Carter had been engaged in "arguing, cursing and fighting" for most of the night prior to the fire. Evans also testified that the police had come to the rooming house, at "around three something," to quiet this argument and that the defendant had then left, but had returned sometime later in the morning. Evans also stated that when the defendant returned, Carter would not let him back into their room. At this point she heard the defendant tell Carter, "You going to get out of here one way or the other" because he was going to burn the house down. About ten or fifteen minutes after hearing this, Evans heard Carter bang on the wall and tell her that the building was on fire.

After Evans had completed her testimony, the defendant moved for disclosure of any written statements made by Evans in the possession of the state. This request was denied by the trial court on the ground that under General Statutes § 54-46a, 4 the defendant at the probable cause hearing had no right to discovery of written statements made by the state's witnesses.

In response to a discovery request made prior to trial, the defendant was, however, provided with copies of statements made by Evans to members of the Bridgeport arson squad on May 1 and May 7, 1986. The May 1, 1986 statement indicates that it was Carter, and not the defendant, who had threatened to burn down the house, and also appears to be somewhat inconsistent with Evans' testimony at the probable cause hearing concerning the timing of events during the night prior to the fire. 5

The defendant was also furnished, as a result of his discovery request following the probable cause hearing, with statements made by Frank Singleton and McKinley Tuck, both residents of the rooming house at the time of the fire. Tuck's statement reveals that, at a prior time, he had had trouble with a person he had allowed to stay overnight in the rooming house, that the police had been called to get rid of this person, that the person had threatened to kill Tuck and burn the rooming house down, and that this person drove a grey Cadillac with a brown hood and fender. According to Singleton's statement, he saw this person and the grey Cadillac "down the street a little," after Singleton had escaped from the burning building. According to Singleton, this person was laughing at that time.

In State v. Mitchell, 200 Conn. 323, 338, 512 A.2d 140 (1986), we held, on the basis of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny, that "[s]ince the adversarial probable cause hearing [mandated by article first, § 8 of the Connecticut constitution as amended] ... is an essential part of a defendant's criminal prosecution, the constitutional obligation to disclose exculpatory material attaches at that time." 6 Subsequently, in State v. Shannon, 212 Conn. 387, 406, 563 A.2d 646 (1989), we held that in order for this court to consider claims of nondisclosure of exculpatory material at a probable cause hearing required by our state constitution, the defendant must demonstrate: "(1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that it was material." State v. Milner, 206 Conn. 512, 539, 539 A.2d 80 (1988). We further held, in Shannon, that the materiality of such exculpatory evidence is to be determined by utilizing the test set forth in United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). State v. Shannon, supra, 212 Conn. at 406-407, 563 A.2d 646. Under the Bagley test, nondisclosed exculpatory evidence will be considered material only if "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, supra, 473 U.S. 682, 105 S.Ct. at 3383.

Applying these principles of law to this case, we find error in the state's failure to disclose to the defendant, at the probable cause hearing, the statements of Evans, Singleton and Tuck. It is well established that "[i]mpeachment evidence as well as exculpatory evidence falls within Brady's definition of evidence favorable to an accused." State v. Pollitt, 205 Conn. 132, 142, 531 A.2d 125 (1987); United States v. Bagley, supra, 473 U.S. at 676, 105 S.Ct. at 3380. The state concedes that the statements in question were both suppressed and favorable to the defendant. The state argues, however, that none of the statements were material to the determination of probable cause, as defined by the test announced in Bagley. We do not agree.

The state presented only two witnesses at the defendant's probable cause hearing: Evans and the investigating officer from the Bridgeport fire department's arson squad. The defendant does not claim that the evidence presented at the probable cause hearing was insufficient to warrant a person of reasonable caution to believe that the accused had committed the crimes of arson and arson murder. State v. Shannon supra, 212 Conn. at 404, 563 A.2d 646; State v. Mitchell, supra, 200 Conn. at 336, 512 A.2d 140. The defendant does claim, however, that, since the testimony of the arson inspector established only the commission of the alleged offenses, the materiality of the nondisclosed statements must be determined solely on the basis of the testimony given by Evans. This is the proper inquiry to be made, as it was only the testimony of Evans that linked the defendant to the commission of the crimes established by the arson investigator. Given this focus, the trial court had before it only Evans' testimony that the defendant had been engaged in a fight with Carter, had been asked to leave the building by a police officer, had returned shortly thereafter, had threatened to burn down the rooming house and that the fire had started shortly after this threat had been made. Evans did not see the defendant engaged in any activities during the time before the fire, nor did the state introduce, at the probable cause hearing, any other evidence linking the defendant to the commission of the charged offenses. While we agree with the state that the evidence presented supported a finding of probable cause by the trial court, the credibility of Evans' testimony was critical to that determination.

Under these circumstances, we conclude that there exists a reasonable probability that, had the statements of Evans, Singleton and Tuck been provided to the defendant, the result of the probable cause hearing would have been...

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  • State v. Brown, No. 17533.
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    ...error review to a failure by the prosecution to disclose exculpatory evidence at the probable cause hearing. In State v. McPhail, 213 Conn. 161, 170, 567 A.2d 812 (1989), this court concluded that the state's failure to disclose exculpatory evidence would not result in the reversal of the c......
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