State v. Tutson, 24066.

• Decision Date: 24 August 2004
• Docket Number: No. 24066.,24066.
• Citation: 854 A.2d 794,84 Conn.App. 610
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Trendel TUTSON.

854 A.2d 794

84 Conn.App. 610

STATE of Connecticut v. Trendel TUTSON.

No. 24066.

Appellate Court of Connecticut.

Argued February 24, 2004.

Decided August 24, 2004.

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

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

FLYNN, BISHOP and McLACHLAN, Js.

BISHOP, J.

In this criminal appeal, the defendant, Trendel Tutson, challenges the validity of his conviction of attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a and assault in the first degree in violation of General Statutes § 53a-59(a)(5). His principal claim is that two of the court's evidentiary rulings deprived him of his right to present a defense as secured by the sixth and fourteenth amendments to the United States constitution.¹ We reverse the judgment of the trial court and remand the case for a new trial.²

We begin by recounting the relevant facts. In that exercise, we paint with a broad brush, reserving more extensive detail for our ensuing discussion of the defendant's specific claims.

The chronological narrative begins on March 26, 2001, between 1 p.m. and 1:30 p.m., at which time 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 back seat. 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 Brownwell Street and the white car did the same. As the cars were traveling at fifty-five miles per hour, Molina looked in his rear view 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 p.m. and 1:30 p.m., when he heard what sounded like a gunshot resonating from Brownwell Street. The police also were notified that this security officer searched Brownwell Street 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 Brownwell Street 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. In addition, the video 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, who lived in Meriden, was the lessee of the Neon. Once contacted, Rooty Thomas gave the police permission to search the vehicle.

The police performed gunshot residue tests on the hands of the defendant and Williams 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 photo array shown to him by the Hartford police and on March 8, 2002, Pagan did the same. No weapon was ever recovered.

Trial of this matter began on March 8, 2002. The state alleged that the defendant was guilty of criminal attempt to commit murder and assault in the first degree as either a principal or an accessory.³ The defendant's theory of the case was that the eyewitnesses misidentified him as the perpetrator of the crime because, at the relevant time, he was at a location other than the scene of the crime and, therefore, he could not have committed it.

In support of its case, the state offered the testimony of two eyewitnesses. The first was Molina who testified, inter alia, that he was positive that the defendant was the driver of the Neon during the shooting. He also identified Rooty Thomas' leased Neon as the vehicle involved in the incident, and he identified the defendant as its driver.

The second eyewitness offered by the state was Pagan. Pagan testified that the car involved in the shooting was a white Dodge Neon and that he recognized it and the defendant as its driver from his previous observations of the defendant and the Neon in his neighborhood. He also said he recognized the passenger in the Neon, although he did not know his name. Pagan further stated that he initiated a conversation with the defendant on March 4, 2002, in which the defendant told him that he "had no beef with" him, that he wanted Pagan to help him, and that he wanted Pagan to apologize to Molina for him. Finally, he testified that he had never had any problems with the defendant prior to the incident. Pagan also provided an in-court identification of the defendant as the driver of the Neon.

During cross-examination, defense counsel brought out an inconsistency in Pagan's testimony. Although Pagan's statement to the police indicated that he saw the passenger side window of the Neon down during the chase, at trial he testified that he saw the driver's side window down. In an effort to explain himself, Pagan stated that he never said that to the police. Upon reading his statement, he testified that he was mistaken and that the driver's side window was down. Pagan then testified that "[a]t the time ... I wasn't really thinking about — I didn't even want to do the statement" and, later, that his statement was right the whole time but that sometimes he can get confused.

Defense counsel also elicited testimony from Pagan that he had discussed the identification of the driver of the Neon with Molina after March 26, 2001. Defense counsel elicited that testimony in an attempt to show that Pagan influenced Molina's memory of the events. Finally, Pagan testified that he had a criminal case pending in Hartford.

Detective Andrew Weaver, the officer in charge of the investigation, also testified for the state. According to Weaver, the bullet hole in the Jetta was consistent with a "shotgun round" also classified as "a hunting slug or a one ounce deer-type slug." Weaver also testified that the suspect vehicle was described as a "Dodge Neon white in color" and that a lead fragment was recovered from the Jetta which was consistent with twelve gauge "shotgun slug ammunition."

On cross-examination, Weaver testified that Molina's statement to the police only described the occupants of the Neon as "two black males" and that he could not remember if Molina identified the vehicle as a white Dodge Neon.

The state also offered as evidence the expert testimony of Fung Kwok, a criminalist at the state forensic laboratory. Kwok's testimony concerned the results of the gunshot residue tests performed on the Neon, the defendant and Washington. Kwok stated that given the absence of barium and antimony...