State v. Tutson, No. 17287.

• Citation: 278 Conn. 715,899 A.2d 598
• Decision Date: 27 June 2006
• Docket Number: No. 17287.
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Trendel TUTSON.

899 A.2d 598

278 Conn. 715

STATE of Connecticut v. Trendel TUTSON.

No. 17287.

Supreme Court of Connecticut.

Argued November 29, 2005.

Decided June 27, 2006.

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Michele C. Lukban, assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Warren Maxwell and Roseanne Wagner, senior assistant state's attorneys, for the appellant (state).

Mark Rademacher, assistant public defender, for the appellee (defendant).

SULLIVAN, C.J., and BORDEN, NORCOTT, PALMER and ZARELLA, Js.^*

ZARELLA, J.

The state appeals, following our grant of certification, from the judgment of the Appellate Court reversing the conviction of the defendant, Trendel Tutson, of attempt to commit murder in violation of General Statutes §§ 53a-54a and 53a-49, and assault in the first degree in violation of General Statutes § 53a-59 (a)(5). The state claims that the Appellate Court improperly reversed the defendant's conviction on the ground that the trial court's exclusion of certain alibi testimony deprived him of his right to present a defense under the United States constitution.¹ The state specifically challenges the Appellate Court's conclusion that the trial court (1) improperly determined that the testimony of a key defense witness constituted an alibi, and (2) abused its discretion in excluding the proffered testimony as a reasonable sanction for the defendant's failure to satisfy the alibi notice provisions of the rules of practice. The state also claims that the trial court improperly merged the defendant's sentences and requests that the case be remanded to the Appellate Court to resolve that claim if the Appellate Court's decision is reversed. We agree with the state and, accordingly, reverse the judgment of the Appellate Court and remand the case to that court with direction to consider the sentencing claim.

The opinion of the Appellate Court sets forth the following relevant facts that the jury reasonably could have found. "[O]n March 26, 2001, between 1 and 1:30 p.m.. . . Ernesto Molina was driving a 1992 red Volkswagen Jetta on Bond Street in Hartford, looking to buy marijuana. Molina was joined by two passengers, Jorge Pagan, Molina's best friend, who sat in the front passenger seat, and Michael Alvarado, who sat in a backseat. As the vehicle traveled on Bond Street, Molina and Pagan noticed a small white car traveling toward them in the opposing lane. They also noticed that there was a passenger in the front seat. As the cars passed, Molina and Pagan saw the face of the driver of the white car.

"After the vehicles passed, the white car turned around and, with increasing speed, began following the red Jetta on Bond Street. Molina and Pagan noticed this and became concerned. In an attempt to elude the car, Molina increased his speed to eighty-five to ninety-five miles per hour and drove through stop signs and traffic lights. Molina ultimately turned onto Brownell Avenue and the white car did the same. As the cars were traveling at fifty-five miles per hour, Molina looked in his rearview mirror and saw a long black pole, which he thought was a rifle, come out of the driver's side window of the white car and turn in the direction of the Jetta. Molina then heard a noise and felt something strike the back of his head. A large caliber bullet had pierced the back of the Jetta and traveled through the vehicle's trunk and passenger compartment. A fragment of that bullet lodged in the back of Molina's head. Although injured, Molina kept driving, turning right onto Broad Street and continuing to Hartford Hospital. The white car did not follow the Jetta, turning left onto Broad Street instead.

"At the hospital, the police immediately were notified of the incident. They arrived at the hospital shortly thereafter and briefly spoke with Molina, Pagan and Alvarado regarding the shooting. The police also conducted a formal interview of Pagan at the police station during which Pagan described the driver and passenger of the white car.

"Approximately one hour after arriving at the hospital, the police were contacted by the security department from the Learning Corridor (Corridor). The police were told that a member of the Corridor's security personnel was walking to lunch between 1 and 1:30 p.m., when he heard what sounded like a gunshot resonating from Brownell Avenue. The police also were notified that this security officer searched Brownell Avenue after he learned about the shooting and recovered a twelve gauge shotgun shell from the north side of the street. The police ultimately took the shell into their possession. At that time, it was neither dirty nor rusty and did not appear to have been on the street for a long time. The shell, however, was never tested for fingerprints. The police also took a videotape from the Corridor's exterior surveillance camera. That tape revealed that two vehicles, one red, one white, were on Brownell Avenue and that the red vehicle turned right onto Broad Street while the white vehicle turned left. Neither gunfire nor the make of the vehicles could be discerned from the video[tape]. In addition, the video[tape] was time stamped in a manner that made it unclear that the events depicted actually occurred on March 26, 2001.

"Approximately twelve hours after the shooting, at roughly 2 a.m. on March 27, 2001, Pagan, while driving to a gas station to buy a beverage, observed that he was being followed by the defendant in a white Dodge Neon (Neon). Pagan immediately notified police officers that the vehicle that had been involved in the earlier shooting was following him. The police located the Neon and pursued it, but it fled, turning its headlights off in the process. Shortly thereafter, the police located the vehicle in the rear yard of 51 Whitmore Street. The vehicle appeared abandoned; the engine was not running, although it was still warm, and the doors were wide open. A short distance away, the police found the defendant and Philip Washington hiding beneath some cars. Thereafter, the police brought Pagan to the scene where he positively identified the defendant as the driver of the Neon in the earlier shooting and Washington as its passenger.

"The police subsequently discovered that Rooty Thomas [Rooty], who lived in Meriden, was the lessee of the Neon. Once contacted, Rooty . . . gave the police permission to search the vehicle.

"The police performed gunshot residue tests on the hands of the defendant and Washington as well as on the exterior and interior surfaces of the driver's and passenger's doors of the Neon. These tests disclosed lead particles on the palm of the defendant's left hand as well as on the back of his right hand. They further revealed the presence of lead, barium and antimony on the palm of Washington's left hand and lead particles on the exterior of the vehicle's passenger door.

"On April 5, 2001, Molina identified the defendant from a photographic array shown to him by the Hartford police and, on March 8, 2002, Pagan did the same. No weapon was ever recovered." State v. Tutson, 84 Conn.App. 610, 612-15, 854 A.2d 794 (2004).

On April 13, 2001, nearly one year prior to the start of the defendant's trial, the state sent the defendant a demand for written notice of his intention to offer an alibi defense pursuant to Practice Book § 40-21. The state specifically requested notice of "the place claimed to have been and the names and addresses of the witnesses upon whom [the defendant] intends to rely to establish such alibi. The crime[s] charged against the defendant are alleged to have occurred on the following date, time, and place: [March 26, 2001]; 1:35 [p.m.]; BROAD STREET AND BROWNELL AVENUE, HARTFORD...."

On August 6, 2001, the defense sent a letter to the state via facsimile identifying Julia Thomas (Julia) as the only alibi witness. The letter contained no information, however, regarding the defendant's whereabouts at the time the crime was committed. The defense also provided the state with a three page investigative report² dated April 19, 2001. The report was based on a personal interview with Julia³ and a telephone interview with her son, Terrell Thomas (Terrell).⁴ Although the report referred to the defendant's "girlfriend" and listed the name of Rooty as a subject to be interviewed, it did not name Rooty as a prospective witness and did not identify her as the defendant's girlfriend.

The trial commenced on March 11, 2002. The state alleged that the defendant was guilty as a principal or an accessory of criminal attempt to commit murder and assault in the first degree. In the bill of particulars dated March 11, 2002, the state specifically alleged that, "[o]n [March 26, 2001], at approximately 1:30 p.m., the defendant was the operator of a 1997 white Dodge Neon proceeding east on Bond Street" and that "Washington was his front seat passenger in the . . . Neon." The state further alleged that the defendant had engaged in a car chase with Molina, who was driving a red Volkswagen Jetta carrying two other passengers, and had fired a shot at the Jetta, or had assisted Washington in shooting at the Jetta, thereby causing physical injury to Molina. The defendant, relying on theories of misidentification⁵ and alibi, attempted to convince the jury that the two eyewitnesses to the shooting incorrectly had identified him as the perpetrator because, at the relevant time, he was in another location and thus could not have committed the alleged offenses.

As the state was nearing the end of its case-in-chief, defense counsel represented to the court, outside the presence of the jury, that she had given the state the names of Julia and her sons, Terrell and Tyrone Thomas (Tyrone), as alibi witnesses. An extended discussion followed as to whether the defendant had provided the state with adequate notice to admit the proposed alibi testimony, in particular that of Tyrone. The state argued against...