State v. Stevenson

• Decision Date: 01 June 1999
• Parties: (Conn.App. 1999) STATE OF CONNECTICUT v. TERRANCE STEVENSON 18159
• Court: Connecticut Court of Appeals

733 A.2d 253 (Conn.App. 1999)

STATE OF CONNECTICUT v. TERRANCE STEVENSON

18159

Connecticut Court of Appeals

Argued December 14, 1998

June 01, 1999

Pamela S. Nagy, assistant public defender, for the appellant (defendant). Carolyn K. Longstreth, senior assistant state's attorney, with whom were Michael A. Pepper, assistant state's attorney, and, on the brief, Michael Dearington, state's attorney, for the appellee (state).

O'Connell, C. J., and Landau and Daly, Js.

Landau, J.

OPINION

The defendant, Terrance Stevenson, appeals from the judgment of conviction, rendered after a jury trial, of murder as an accessory in violation of General Statutes §§§§ 53a-54a (a)¹ and 53a8,² and conspiracy to commit murder in violation of General Statutes §§§§ 53a-54a and 53a-48 (a).³ On appeal, the defendant claims that the trial court improperly (1) refused to admit into evidence a witness' prior inconsistent statement under 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), (2) denied the defendant's motion for a mistrial which he based on prosecutorial comments that allegedly shifted the burden of proof to the defendant, (3) admitted evidence of prior uncharged misconduct that was more prejudicial than probative concerning a prior occasion in which the defendant was armed, and (4) failed to instruct the jury regarding the credibility of the witnesses and that it could make its own determination as to the authenticity of a letter. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On March 21, 1994, Jeffrey Dolphin became involved in a dispute with James Baker and the defendant over a lost quantity of cocaine. At some point during this dispute, Baker, Dolphin and the defendant were joined by Jermaine Harris, also known as "Chico," and Trent Butler. While Dolphin maintained that a third party lost the cocaine, the defendant blamed Dolphin for the missing cocaine and pulled a gun on him.

Thereafter, Baker asked, "Why don't we make this motherfucker do it?" The defendant pointed the gun at Dolphin again and forced him into the back of an old white station wagon driven by Baker. Butler, Harris and the defendant were also in the car. Butler then told Dolphin that they wanted him to shoot somebody to make up for the money that he had lost, which Dolphin refused to do.

Upon Dolphin's refusal, Harris stated that he would shoot the victim, Amenophis Morris. At that point, Baker parked the vehicle on Exchange Street in New Haven, about one-half a block from the victim's home. Harris got out of the car, put on a mask and walked to the victim's home accompanied by the defendant, while the others remained behind. Both of the men were armed. Dolphin then heard nine or ten gunshots from the direction of the victim's home, although he could not see who was shooting. When Harris and the defendant returned to the vehicle, Harris shouted, "I got him!" The victim has been shot to death as he sat on his front porch eating dinner.

When the men let Dolphin out on another street, they threatened him and told him not to say anything about what had happened. Approximately one month after the homicide, the New Haven police department arrested Dolphin on unrelated narcotics charges. While in custody, Dolphin provided the police with information implicating Baker, Butler and Harris in the homicide. Dolphin did not give the police the defendant's name or his street name, "Joe the Flea." The following day, Dolphin made a photographic identification of Harris.

In February, 1995, in a tape-recorded statement, Dolphin informed Butler's attorney, Leo Ahern, that the information he had told the police was false. Thereafter, in early March, 1995, in another conversation with the New Haven police, Dolphin made photographic identifications of Butler and Baker. At that time, Dolphin stated to the police that he did not recognize anyone else in the array of photographs, including the defendant. In September, 1995, Dolphin informed the state's attorney's office that the statement that he made to Ahern was false. It was not until October 31, 1995, that Dolphin informed the police that the fourth individual involved in the homicide was "Joe the Flea," and that his real name was Terrance Stevenson, the defendant.

The defendant was subsequently arrested and, following a jury trial, he was convicted on both counts. This appeal followed. Other facts will be discussed where relevant to issues in this case.

I.

The defendant first claims that the trial court improperly refused to admit into evidence a witness' prior inconsistent statement that would have undermined the witness' credibility. Specifically, the defendant argues that the trial court improperly (1) refused to admit into evidence a tape-recorded statement of the state's key witness, Dolphin, (a) for substantive and impeachment purposes and (b) with Ahern's testimony to show Dolphin's demeanor during the statement and (2) exercised its discretion in refusing to grant the defendant a continuance to subpoena Dolphin as his own witness. We are not persuaded.

The following additional facts and procedural history are necessary for the resolution of these claims. In his tape-recorded conversation (statement) with Ahern in February, 1995, Dolphin recanted the account of the murder that he previously had given to the New Haven police. On direct examination, however, Dolphin testified that he lied to Ahern because he was being threatened while he was incarcerated with Baker, Butler and Harris. In addition, Dolphin testified that in return for the statement that he gave to Ahern, Butler promised that he would attempt to get Dolphin assistance with his bond or attempt to get Ahern to represent him on the unrelated narcotics charges.

During cross-examination, the defendant questioned Dolphin regarding additional details about the tape-recorded statement.⁴ Dolphin testified that he did not think that he would get in trouble for giving Ahern a statement that was at complete odds with the statement that he had given the police because he did not perjure himself, as the statement was not a sworn statement.

Three days later, just before the state rested, defense counsel made an offer of proof with regard to calling Ahern as a witness. Specifically, defense counsel stated that it was his intention to have Ahern testify as to Dolphin's demeanor during the February, 1995 statement. Defense counsel also stated that he intended to introduce the tape-recorded statement through Ahern for both substantive purposes and to show demeanor. The trial court sustained the state's objection to the admission of the tape, noting that Dolphin had admitted that the statement given to Ahern was false and that the specific portions of the statement about which he was questioned on cross-examination were false.⁵ The trial court concluded that admitting the entire tape-recorded statement would be cumulative of those areas that were addressed on cross-examination. Furthermore, the trial court refused to admit the statement under State v. Whelan, supra, 200 Conn. 752, ruling that it was unreliable. The court concluded that the statement was unreliable because it was motivated by threats, was made at a correctional center to an attorney representing a person who had threatened Dolphin and was not made under oath, and because Dolphin testified that he understood that he was not perjuring himself by making the statement to Ahern. Accordingly, the trial court refused to admit the tape-recorded statement into evidence for the purpose of showing demeanor or as substantive evidence of the facts stated therein. Finally, the trial court concluded that Dolphin had admitted that his prior statements were inconsistent and, therefore, the statement would be cumulative for the purpose of showing inconsistency.

Thereafter, the trial court denied the defendant's request that he be allowed to call Ahern as a witness to testify as to Dolphin's demeanor during the February, 1995 interview. The defendant then moved for a continuance to subpoena Dolphin to testify as his own witness.⁶ The defendant indicated that the purpose of recalling Dolphin was to attain a more thorough examination of his testimony with regard to the various matters discussed in the February, 1995 statement. The trial court also denied that request.

Our review of evidentiary rulings is limited. Evidentiary "rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or inJustice. . . . In reviewing claims that the trial court abused its discretion, great weight is given to the trial court's decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court's ruling only if it could not reasonably conclude as it did." (Internal quotation marks omitted.) State v. Hoth, 50 Conn. App. 77, 87-88, 718 A.2d 28, cert. denied, 247 Conn. 922, 722 A.2d 811 (1998).

A.

The defendant claims that the trial court improperly refused to admit into evidence Dolphin's tape-recorded statement to Ahern (1) for substantive and impeachment purposes and (2) with Ahern's testimony to show Dolphin's demeanor during the statement. We do not agree.

1.

In his initial claim, the defendant argues that the trial court improperly excluded Dolphin's tape-recorded statement, which indicated that the statement that he gave to the police was false. Specifically, the defendant argues that Dolphin's tape-recorded statement constitutes a prior inconsistent statement and should have been admitted for both impeachment and substantive purposes under State v. Whelan, supra, 200 Conn. 743. The defendant argues that all of the conditions for admitting prior inconsistent statements under Whelan were satisfied; Dolphin's statement to Ahern was reliable, whereas his original statement to the...