State v. Mozell, 13828

• Decision Date: 19 June 1995
• Docket Number: No. 13828,13828
• Citation: 37 Conn.App. 574,657 A.2d 686
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Troy MOZELL.

Page 686

657 A.2d 686

37 Conn.App. 574

STATE of Connecticut v. Troy MOZELL.

No. 13828.

Appellate Court of Connecticut.

Argued Feb. 7, 1995.

Decided April 25, 1995.

Certification Denied June 19, 1995.

Gerald Bodell, Sp. Public Defender, for appellant (defendant).

Ronald G. Weller, Deputy Asst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty., and John M. Waddock, Asst. State's Atty., for appellee (State).

Before DUPONT, C.J., and SPEAR and FRANCIS X. HENNESSY, JJ.

SPEAR, Judge.

The defendant appeals from a judgment of conviction of conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) ¹ and 53a-54a(a), ² and murder as an accessory in violation of General Statutes §§ 53a-8 ³ and 53a-54a(a). ⁴ On appeal, he claims that the trial court improperly (1) admitted prior inconsistent statements ⁵ as substantive evidence and (2) denied his motion for judgment of acquittal, which alleged that (a) the convictions were improperly based solely on the prior inconsistent statements, (b) prosecutorial misconduct during closing arguments deprived him of a fair trial, (c) the evidence was insufficient to convict him of conspiracy to commit murder and (d) he was denied his right to a speedy trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On December 27, 1989, Thomas Sanders was selling drugs in front of a house located at 2 Arthur Street in New Haven. Shelton Tucker, who lived in the house, told Sanders to leave. When Sanders refused, Tucker's cousin, Rodney Lewis, came outside and pushed Sanders. Sanders then left the area.

On the next evening, Sanders returned with his brother, Robert Henderson, and some friends. Henderson confronted Tucker and asked him whether he had beaten up Sanders. When Tucker replied that he had not, Henderson and the others left the area. On December 29, 1989, Tucker and Lewis were in front of 2 Arthur Street when a Jeep Cherokee carrying four passengers, including the defendant, drove past them. The defendant fired approximately six to eight shots at Tucker and Lewis from the Jeep, but they were not injured. Later that same day, Tucker and Lewis saw the same jeep being driven on Arthur Street. Four members of the Island Brothers gang, one of whom was the defendant, exited the Jeep and commenced shooting at Tucker and Lewis. Although Tucker and Lewis escaped harm, Robert Coleman, an innocent bystander, was shot in the chest and died from that wound.

I

The defendant's first two claims, which involve the admission and use of prior inconsistent statements, will be discussed together because they both turn on the application of 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). The defendant argues that the trial court improperly admitted into evidence for substantive purposes the prior inconsistent statements of Lewis, Tucker and Larry Johnson. ⁶ He argues that the statements were not given under circumstances reasonably assuring their reliability as required by State v. Whelan, supra, at 743, 513 A.2d 86. We disagree.

The following additional facts are necessary for the disposition of this issue. Shortly after the shooting, three witnesses, Tucker, Lewis and Johnson, gave statements to the police implicating the defendant. At trial, the three witnesses were called to the stand to testify, but none implicated the defendant in the shooting. Lewis testified that he had not seen the defendant at the time of the shooting. Tucker testified that, although he could remember the defendant's being involved in the shooting earlier that day, he could not remember if the defendant had been involved in the later shooting. Johnson testified that the defendant was not involved in the shooting.

The state then sought to introduce Lewis' and Tucker's prior inconsistent statements for substantive purposes. The trial court admitted into evidence a tape-recorded statement that Lewis gave to the police shortly after the fatal shooting in which he stated a number of times that the defendant was involved in the shooting. The trial court also admitted into evidence Tucker's prior written statement, ⁷ which was made shortly after the shooting. In the written statement, Tucker stated that the defendant was involved in the shooting.

It is well established in Connecticut that an exception to the hearsay rule allows the substantive use of prior inconsistent statements if certain conditions that tend to ensure their reliability have been satisfied. In State v. Whelan, supra, 200 Conn. at 753, 513 A.2d 86, our Supreme Court adopted a rule "allowing the substantive use of prior written inconsistent statements, signed by the declarant, who has personal knowledge of the facts stated, when the declarant testifies at trial and is subject to cross-examination." Whelan and its progeny make clear that this exception applies to tape-recorded statements as well because "prior tape recorded statements possess similar indicia of reliability and trustworthiness to allow their substantive admissibility as well." Id., at 754 n. 9, 513 A.2d 86; see also State v. Borrelli, 227 Conn. 153, 158 n. 5, 629 A.2d 1105 (1993); State v. Woodson, 227 Conn. 1, 21, 629 A.2d 386 (1993).

The prior inconsistent statements admitted into evidence in this case fall squarely within the Whelan rule. Both declarants witnessed and had personal knowledge of the incident. They both testified and were available for cross-examination. Tucker's prior statement was written and signed by him, and Lewis' statement was tape-recorded.

Despite the fact that the Whelan criteria were met, the defendant claims that the statements were made under circumstances that would not guarantee their reliability. Specifically, he argues that the statement is inherently unreliable because Lewis was fifteen years old and his parents were not notified that he would be asked to give a statement. He also argues that Tucker's prior statement is unreliable because it was "spoon-fed" by the police, and he wanted to change the statement both when it was given and later at court. We are unpersuaded by the defendant's arguments.

Both statements were given under circumstances that reasonably assured their reliability. First, each statement was given on the day of the shooting when the event was fresh in the declarants' memories. See State v. Whelan, supra, 200 Conn. at 754, 513 A.2d 86. Second, each statement was given to a police officer. This adds to their reliability because, if the statements were false, the declarants could have faced criminal charges. ⁸ Id., at 754-55, 513 A.2d 86. Finally, the declarants testified at trial and were available for cross-examination by the defendant. This gave the jury "an adequate opportunity to observe and examine the demeanor of the witness[es], to hear the testimony and to assess [their] credibility." Id., at 755, 513 A.2d 86. As these factors assure the reliability of the declarants' prior inconsistent statements, the trial court properly admitted them into evidence for their substantive use.

The defendant alternatively argues, without citing authority, that even if the prior inconsistent statements were properly admitted into evidence, they cannot be the sole basis of conviction. We conclude that the statements were supported by corroborating evidence: the nine millimeter bullets found at the defendant's home matched the bullets from the earlier incident in which the defendant fired shots at Tucker and Lewis, and the same vehicle was used in both shooting incidents.

II

The defendant's claims of prosecutorial misconduct, insufficiency of the evidence as to the conspiracy conviction and denial of his right to a speedy trial were inadequately briefed. The defendant's failure to present an adequate brief precludes review of these claims. "We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed." Latham & Associates, Inc. v. William Raveis Real Estate, Inc., 218 Conn. 297, 300, 589 A.2d 337 (1991).

A

The defendant briefed the...