State v. Streater

• Decision Date: 26 January 1995
• Docket Number: No. 13079,13079
• Citation: 650 A.2d 632,36 Conn.App. 345
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Maceo Troy STREATER.

Page 632

650 A.2d 632

36 Conn.App. 345

STATE of Connecticut v. Maceo Troy STREATER.

No. 13079.

Appellate Court of Connecticut.

Argued Sept. 19, 1994.

Decided Dec. 13, 1994.

Certification Denied Jan. 26, 1995.

John R. Williams, New Haven, for appellant (defendant).

Susan C. Marks, Asst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty., and Michael A. Pepper, Asst. State's Atty., for appellee (State).

Before EDWARD Y. O'CONNELL, HEIMAN and SCHALLER, JJ.

SCHALLER, Judge.

The defendant appeals ¹ from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a ² and carrying a pistol without a permit in violation of General Statutes § 29-35. ³ The defendant claims that the trial court improperly (1) denied the defendant his constitutional right to confront his accusers, (2) charged the jury that it could draw an adverse inference from the defendant's failure to call a particular witness, (3) charged the jury regarding "consciousness of guilt," and (4) denied the defendant's motion to suppress out-of-court identification testimony tainted by unnecessarily suggestive procedures. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim, Terrance Gamble, was riding a bicycle in the area of Munson and Dixwell Avenues in New Haven at approximately 9 p.m. on May 8, 1990. The victim was with Donnie Andrews and Teverace Bellamy when they encountered an acquaintance, Joseph Preston. Preston and the victim separated from the others and rode their bicycles up Shelton Avenue.

Four young African-American males, including the defendant, approached Gamble on foot. An argument ensued between Gamble and the defendant, while Preston stood fifteen to twenty feet away. Preston recognized the defendant and noted that he was wearing a white shirt and black pants. The argument between the victim and the defendant continued and, at a time that Preston was looking the other way, Preston heard gunshots. When Preston turned, he saw the defendant standing in the middle of the street shooting at Gamble. Gamble died as a result of his injuries.

The New Haven police were notified. Detective Joseph Howard observed the body of the victim lying in the street. Howard overheard some onlookers comment that the people responsible for the shooting had fled down Argyle Street toward Dixwell Avenue. While Howard was canvassing the neighborhood for possible witnesses, Carol Cheek motioned him to the rear of a building, and provided him with information that led him to check outside the defendant's home for a faded red compact car.

Detectives Anthony DiLullo and John Greene were also dispatched to the shooting scene and arrived at about 9:25 p.m. Howard called DiLullo and Greene over to his car to meet Cheek. Cheek told the officers that earlier in the evening she had heard gunshots and had seen four young black men running from the area where she had heard the shots. The men entered a faded red or maroon automobile parked on Dixwell Avenue. Cheek identified the defendant as one of the men she had seen running. He lived across the street from her, and she had known him for about twenty years. Cheek also told the officers she had seen the defendant with the maroon automobile on other occasions, and that it was normally parked outside his house on Dixwell Avenue.

Later that evening, Howard observed a faded Buick Skyhawk in front of the defendant's house. The next evening, at about 11 p.m., Howard stopped the Skyhawk after the defendant and another man entered the vehicle and began to drive away. Howard arrested the defendant, not for the shooting, but on unrelated pending warrants.

Preston was contacted by the police several days later regarding the shooting. He reviewed a tray of photographs of black males and selected the defendant's photograph as that of the person who had shot the victim.

On May 10, 1990, DiLullo and Greene tape-recorded a statement from Cheek at her apartment. On May 16, Cheek met with the detectives to read and review her statement. She read and corrected her statement, initialed each correction and signed the last page.

At trial, Cheek testified that she did not remember being outside her house on May 8. She also stated that she did not approach Howard that night, that she did not recall whether she gave the police a taped statement on May 10, and that looking at the transcript of the statement did not help because she could not read. She acknowledged that the signature on the statement was hers, although she did not remember signing it. Cheek listened to the tape recording of the statement, but denied that the voice was hers.

On cross-examination, Cheek said that two officers were putting pressure on her to provide information about the shooting. On redirect examination, although Cheek said she had no recollection of the events of May 8, she did recall trying to get herself and her children out of the way of gunshots. ⁴

At trial, Donnie Andrews testified that minutes before the shooting he had seen the defendant with three African-American men in a maroon car. After the victim left, Andrews began walking home when he heard gunshots. He and Bellamy went back to Shelton Avenue, arriving shortly before the police. At about 3 a.m. on May 9, Andrews gave a taped statement to the police. He selected the defendant's photograph from a tray of about 150 photographs of black men as that of the person he had seen arguing with the victim.

The defendant testified on his own behalf and raised an alibi defense. He testified that he did not recall all of his activities of May 8, but that, at some time after dark, he drove to First Calvary Baptist Church to look for his brother Chuck. He admitted that he was driving a cranberry Skyhawk. He did not recall the time he arrived at the church. While inside the church, the defendant saw Chuck, Randy Hodges, and the Reverend Boisy Kimber. The defendant knew Hodges, but he was not a friend. On cross-examination, the defendant said that Hodges was in jail at the time of trial.

I

The defendant claims that, on three separate occasions, the trial court improperly denied the defendant his constitutional right to confront witnesses against him as guaranteed under the sixth amendment to the United States constitution ⁵ and article first, § 8, of the Connecticut constitution. ⁶ The court first refused to permit him to review Andrews' juvenile records. In the other two instances, the court prohibited cross-examination of Green and DiLullo regarding alleged instances of misconduct in other unrelated prosecutions.

The following additional facts are necessary to resolve this claim. Prior to Andrews' testimony, the defendant sought permission to review Andrews' juvenile records. The trial court reviewed the records in camera and declined to disclose them to the defendant. The court stated that the records contained no adjudications, but did reflect both dismissed and pending juvenile cases. With regard to the dismissed cases, the court reviewed not only the files but also the underlying police reports. The court found that there was nothing in the records "that would be probative in the issue of truth or veracity."

The defendant claims that the denial of access to Andrews' juvenile records was erroneous because it prevented him from impeaching Andrews on the basis of bias and also from introducing prior acts of misconduct directly relevant to Andrews' credibility.

A

Andrews was twelve years old at the time of the shooting, and fifteen at the time of trial. His juvenile records were presumptively confidential pursuant to General Statutes § 46b-124. See In re Sheldon G., 216 Conn. 563, 583 A.2d 112 (1990). Section 46b-124(a) protects the confidentiality of "[a]ll records of cases of juvenile matters as defined in section 46b-121, or any part thereof, including studies and reports by probation officers, social agencies and clinics...." ⁷

"The sixth amendment to the [United States] constitution guarantees the right of an accused in a criminal prosecution 'to confront the witnesses against him....' " State v. Lubesky, 195 Conn. 475, 481, 488 A.2d 1239 (1985), quoting Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The primary interest secured by the confrontation clause of the sixth amendment is the right to cross-examination; Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965); because cross-examination is the principal means by which the credibility of witnesses and the truth of their testimony is tested. State v. Randolph, 190 Conn. 576, 591, 462 A.2d 1011 (1983); State v. Wilson, 188 Conn. 715, 720, 453 A.2d 765 (1982). Cross-examination concerning "motive, interest, bias or prejudice ... is a matter of right and may not be unduly restricted." (Internal quotation marks omitted.) State v. Lewis, 220 Conn. 602, 621, 600 A.2d 1330 (1991). "Our cases have consistently recognized the right of an accused, during cross-examination, to place before the jury the fact that criminal charges are pending against the state's witnesses." State v. Ortiz, 198 Conn. 220, 223, 502 A.2d 400 (1985); State v. Lubesky, supra, 195 Conn. at 482, 488 A.2d 1239; see also State v. George, 194 Conn. 361, 365, 481 A.2d 1068 (1984), cert. denied, 469 U.S. 1191, 105 S.Ct. 963, 83 L.Ed.2d 968 (1985); State v. Wilson, supra, 188 Conn. at 720, 453 A.2d 765; State v. Corley, 177 Conn. 243, 246, 413 A.2d 826 (1979); State v. Annunziato, 174 Conn. 376, 380, 387 A.2d 566 (1978). The denial or undue restriction of the right to confrontation constitutes constitutional error. Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974); State v. Ouellette, 190 Conn. 84, 101, 459 A.2d 1005 (1983).

In Davis v. Alaska, supra, 415 U.S. 308, 94 S.Ct. 1105, the Supreme Court of the United States found that, in some...