State v. Salters, 24401.

• Decision Date: 24 May 2005
• Docket Number: No. 24401.,24401.
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Gaylord SALTERS.

872 A.2d 933

89 Conn.App. 221

STATE of Connecticut v. Gaylord SALTERS.

No. 24401.

Appellate Court of Connecticut.

Argued February 14, 2005.

Decided May 24, 2005.

Elizabeth M. Inkster, senior assistant public defender, with whom, on the brief, was E. Paul Haringa, former assistant public defender, for the appellant (defendant).

Margaret Gaffney Radionovas, senior 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).

FLYNN, HARPER and WEST, Js.

HARPER, J.

The defendant, Gaylord Salters, appeals from the judgment of conviction, rendered following a jury trial, of two counts of assault in the first degree in violation of General Statutes §§ 53a-59(a)(5) and 53a-8,¹ and one count of conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-59(a)(5) and 53a-48(a).² The defendant claims that the trial court violated his right to present a defense by precluding him from presenting testimony from an alibi witness at trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On November 24, 1996, the defendant participated in a gang related shooting in New Haven. The defendant, a member of the Island Brothers street gang, drove behind an automobile being driven by Daniel Kelley. Either the defendant or an accomplice riding in his automobile fired on Kelley's automobile. Kelley sustained a gunshot wound to his shoulder and lost control of his automobile, causing it to crash into two vehicles parked nearby. Kelley's passenger, Kendall Turner, a member of the Ghetto Boys street gang, sustained a gunshot wound to his elbow. The Island Brothers and the Ghetto Boys, both of which were involved in illegal activity, had a hostile relationship marked by gun violence between rival gang members.

The following procedural history, evident from the record, is not in dispute. The defendant was arrested for the events underlying the conviction on December 5, 1996. The state filed a long form information on January 7, 1997, describing the date and time of the alleged crimes. On January 2, 1997, the state served the defendant with a demand for notice of an alibi defense and filed the same with the court. The state therein made demand on the defendant to "notify the [s]tate, in writing, of his intention to offer a defense of alibi" and, if he did intend to offer such defense, to "state, in writing, the specific place or places at which [he] claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom he intends to rely to establish such alibi." The defendant did not notify the state that he intended to rely on an alibi defense until nearly six years later.

The parties completed jury selection on December 5, 2002. The court informed prospective jurors at the time of voir dire that trial would commence on or about December 10, 2002, and last approximately three or four days. After trial related proceedings concluded on December 5, 2002, the defendant's attorney served via facsimile a notice of alibi to the prosecutor's office.³ The defendant filed the same with the court clerk on December 6, 2002.⁴ On December 6, 2002, the state filed a motion to preclude the alibi testimony. The state argued that it was "severely prejudiced" by the defendant's untimely disclosure of an alibi defense on the eve of trial and, relying on State v. Boucino, 199 Conn. 207, 506 A.2d 125 (1986), asked for an order precluding the alibi evidence.

The court held a hearing on the state's motion on December 6, 2002. The defendant's attorney informed the court that he was not aware that an alibi defense existed until after court proceedings ended the day before. The defendant's attorney stated: "[A]s we were leaving the court-house yesterday, [the defendant] asked why I hadn't said anything about alibi, and I said that I don't recall ever hearing about the alibi. He assured me that in 1996, I think it was, when this case was brand new, that he had told me about an alibi. And I simply don't recall that, but I... can't say that I don't have an affirmative recollection that it didn't happen. I simply don't recall it at all. Obviously, based on that [conversation], I did what I was obliged to do, which was immediately prepare a notice of alibi defense, which I did fax over to [the prosecutor's] office. . . ." The defendant's attorney responded to the state's motion by arguing, initially, that it was "very hard to imagine" that the untimely notice could cause any prejudice to the state. The defendant's attorney stated that the alibi witness was "well known to the state to be the long-time companion of [the defendant]."

The prosecutor represented that the alibi witness was someone "brand new" to him and that there was significant prejudice caused by the late notice. The prosecutor argued that in light of the six year span of time between the incident underlying the charges and the trial, the untimely disclosure effectively precluded the state from conducting a meaningful investigation into the alibi witness' story. The prosecutor argued: "[S]ix years later, there is no possible way that [the state] could find any actual evidence to rebut the factual statements that may be made during the course of this alibi presentation." Further, the prosecutor noted that even as of December 6, 2002, the state still had not interviewed the alibi witness. He stated: "[A]ll we know is that she claims to have been with him. We don't know what she claims to have done the rest of the day, what she was doing then, why they were together or any of that stuff." Further, the prosecutor argued that at such a late date, the alibi witness herself was the only source through whom the state could conduct meaningful discovery concerning the alibi.

The defendant's attorney responded to the prosecutor's arguments by indicating that the alibi witness likely would recall that she and the defendant were at home all day on November 24, 1996, caring for a sick infant. The defendant's attorney posited that the testimony was "pretty straightforward" and that it was "a little hard ... to imagine that ... the cross-examination of this witness would have been any different" had the state had an earlier opportunity to investigate the alibi witness' story. The defendant's attorney also argued that the state still had the opportunity to investigate the alibi witness and to take a statement from her. By means of a detailed oral decision, the court granted the state's motion, thereby precluding the defendant from calling any third party witness to support an alibi defense.

The defendant claims that the court's ruling violated his right to present a defense under the sixth amendment to the United States constitution. "The defendant's right to present his own witnesses to establish a defense ... is a fundamental element of due process of law. . . . This includes the right to present alibi witnesses. . . ." (Citations omitted; internal quotation marks omitted.) State v. Bryant, 202 Conn. 676, 704, 523 A.2d 451 (1987). "The sixth amendment right to compulsory process includes the right to offer the testimony of witnesses, and to compel their attendance, if necessary, [and] is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so that it may decide where the truth lies." (Internal quotation marks omitted.) State v. Cerreta, 260 Conn. 251, 260-61, 796 A.2d 1176 (2002).

The record reflects that the defendant, while arguing against preclusion of the alibi evidence as a sanction for late disclosure under our rules of practice, did not distinctly raise a claim that such preclusion would deprive him of his constitutional right to present a defense.⁵ Consequently, the court did not address such a claim in its ruling. This court is not bound to consider claims that were not raised distinctly at trial unless they arose subsequent to trial or an extraordinary basis for review exists. See Practice Book § 60-5; State v. Williams, 60 Conn.App. 575, 578, 760 A.2d 948, cert. denied, 255 Conn. 922, 763 A.2d 1043 (2000).

The defendant seeks review under the doctrine set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We will review the claim because the record is adequate for review, and the claim is of constitutional magnitude. A court's preclusion of alibi evidence as a sanction for failure to comply with the rules of discovery does not violate a defendant's constitutional rights per se. If the court's preclusion of alibi evidence reflects a sound exercise of discretion, the defendant cannot claim that a constitutional violation exists. We will dispose of the claim under Golding's third prong because the defendant has failed to demonstrate that a constitutional violation clearly exists that clearly deprived him of a fair trial.

"[T]he right of a defendant to present a defense is subject to appropriate supervision by the trial court in accordance with established rules of procedure and evidence. . . ." (Citations omitted.) State v. Carter, 228 Conn. 412, 426-27, 636 A.2d 821 (1994). In State v. Boucino, supra, 199 Conn. at 209-16, 506 A.2d 125, our Supreme Court upheld the constitutionality of the trial court's authority to preclude alibi evidence as a sanction for a criminal defendant's failure to comply with our "notice of alibi" discovery rules. The defendant in Boucino failed to comply with the notice requirements of Practice Book § 40-21 (then § 763) and untimely filed a notice of alibi. State v. Boucino, supra, at 211, 506 A.2d 125. The trial court precluded the alibi evidence. Id. On appeal to our Supreme Court, the defendant claimed, inter alia, that the preclusion violated his sixth amendment right to present a defense. Id., at 213, 506 A.2d 125.

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