State v. Thompson
|Supreme Court of Connecticut
|19 June 2012
|STATE OF CONNECTICUT v. ANTHONY THOMPSON
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Rogers, C. J., and Norcott, Palmer, Zarella, McLachlan, Eveleigh and Harper, Js.
Lisa J. Steele, special public defender, for the appellant (defendant).
RoccoA. Chiarenza, deputy assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and David L. Zagaja and Richard J. Rubino, senior assistant state's attorneys, for the appellee (state).
The defendant, Anthony Thompson, appeals from the judgment of conviction, rendered after a jury trial, of one count of murder in violation of General Statutes § 53a-54a and two counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (5). On appeal, the defendant claims that the trial court abused its discretion in (1) applying the preponderance of the evidence standard to admit into evidence, under the forfeiture by wrongdoing doctrine, a statement to the police and a signed photographic array by a deceased eyewitness identifying the defendant as the shooter, (2) concluding that the defendant had forfeited his confrontation clause rights1 primarily on the basis of the testimony of a jailhouse informant that the defendant had caused the death of the witness, and (3) ruling, sua sponte, that the state could introduce prejudicial evidence at trial that the defendant was responsible for the death of the witness to show consciousness of guilt. The state responds that the trial court applied the proper standard in admitting the statement and signed photographic array into evidence, there was sufficient evidence in the record to support the trial court's finding that the defendant had caused the death of the witness, and the trial court properly admitted evidence relating to the circumstances surrounding the death of the witness to show consciousness of guilt. We affirm the judgment of the trial court.
The jury reasonably could have found the following facts. On the evening of February 13, 2005, at approximately 11 p.m., the defendant and Andre Drummond arrived at the Cleveland Cafe (bar) in the city of Hartford, where the defendant planned to meet one of his girlfriends, Sherlon Glassford. The defendant drove to the bar in a 2002 silver Infiniti that belonged to him and to his other girlfriend, Renata Lovelace, but was registered in Lovelace's name. Also at the bar that evening were three other men, O'Neill Robinson, Bar-rington Delisser (Barrington) and Boris Delisser (Marcel), who entered through the main entrance and were searched by security personnel for weapons. The three men went to a separate room located on the left side of the bar, where Marcel began a conversation with Glassford and Asher Glace, both of whom he knew. While Marcel was talking with Glassford, Drummond moved in between them and began his own conversation with Glassford. During the conversation, Drum-mond stepped on Marcel's foot. When Marcel stepped back, Drummond turned around and stepped on his foot again. After the two exchanged words, Drummond walked over and spoke with the defendant.
Approximately thirty minutes later, the defendant approached the group and spoke briefly with Glassford. He then turned around and began arguing with Marcel about his earlier interaction with Drummond. Robinson,who had been standing behind Marcel, stepped in between Marcel and the defendant. The defendant then shoved Robinson, and a fight ensued. At least four people participated in the fight, including the defendant, Robinson, Robinson's nephew, Ryan Saunders, and a man known as ''Hollywood.'' During the fight, the defendant struck Saunders on the head with a beer bottle, causing him to collapse on the floor. Hollywood responded by pulling out a knife and stabbing the defendant, causing him to bleed from his face and arm. The fight lasted for approximately two or three minutes before security personnel intervened.
After the fight, the defendant left the bar, went to his Infiniti and retrieved a gun. He immediately went back and reentered the bar through an exit door, thus avoiding security, and fired at least three bullets. One bullet struck the back of Robinson's head, causing his death. A second bullet struck another patron, Renita Fair, in the back of her right thigh. A third bullet struck Barrington in the right leg.
Following the shooting, the defendant ran out of the bar, removed the license plate on the Infiniti and fled from the scene in another vehicle. Another patron, James Castellani, who was smoking a cigarette outside, saw blood drip from the defendant's arm onto the rear bumper of the Infiniti. The defendant did not go to a hospital in Hartford to seek attention for his injuries but traveled to Midstate Medical Center in the city of Meriden, where he received treatment under the name of his brother, Earl Thompson. The next day, the defendant fled to Jamaica.
On May 11, 2005, the defendant was extradited to the United States and charged with murder and two counts of assault in the first degree. At trial, four witnesses testified that the defendant was in possession of a firearm immediately before or after the shooting, and two witnesses identified him as the shooter.2 A written statement by Glace, the only person to identify the defendant as the shooter before the trial, was also admitted into evidence. A jury found the defendant guilty as charged, and, on September 19, 2008, the trial court sentenced him to a total effective sentence of seventy years incarceration. This appeal followed.
The defendant first claims that the trial court improperly applied the preponderance of the evidence standard in permitting the state to introduce into evidence, under the forfeiture by wrongdoing doctrine, a contemporaneous statement and signed photographic array by a deceased eyewitness identifying the defendant as the shooter.3 The defendant claims that the standard for the admission of the statement and signed photographic array, which constituted hearsay, should have been clear and convincing evidence that he wrongfullycaused the witness to be unavailable because he was unable to exercise his federal and state constitutional rights to confrontation due to the witness' unavailability. The state responds that the trial court properly applied the preponderance standard because it is more effective in discouraging defendants from obtaining an advantage at trial by taking matters into their own hands in order to render witnesses unavailable and because the vast majority of federal and state courts apply the preponderance standard. We agree with the state.
The following additional facts are relevant to our resolution of this claim. Immediately after the shooting, Glace provided a sworn, written statement to the Hartford police describing the altercation and stating that she saw the defendant fire a gun from the doorway of the bar and then run away. Glace also viewed a photographic array at the police station from which she identified the defendant as the shooter. On June 1, 2007, during a pretrial proceeding at which the defendant was present, the state informed the court that it intended to proceed with the defendant's prosecution. Approximately two weeks later, on June 17, 2007, the Hartford police found Glace dead from multiple gunshot wounds inside her car, which was parked in her driveway.
On April 7, 2008, shortly before jury selection was scheduled to begin, the state filed a notice of intent to offer into evidence Glace's sworn, written statement identifying the defendant as the shooter. The state argued that the statement should be admitted under the forfeiture by wrongdoing doctrine because the defendant had caused Glace to be unavailable at trial. At the hearing on the motion, the state argued that the preponderance of the evidence standard should apply to the court's preliminary determination as to whether the statement should be admitted, and the defense argued that the clear and convincing standard should apply.
On May 28, 2008, the court issued its decision. Citing State v. Henry, 76 Conn. App. 515, 820 A.2d 1076, cert. denied, 264 Conn. 908, 826 A.2d 178 (2003), the court concluded that the defendant had forfeited his right of confrontation and any hearsay objection he might otherwise have had regarding the admissibility of the statement because he had procured the unavailability of Glace for the purpose of preventing her from testifying. In reaching this conclusion, the trial court made factual findings regarding (1) comments made by the defendant to a jailhouse...
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