State v. Watkins

• Decision Date: 08 October 2002
• Docket Number: No. 21674.,21674.
• Citation: 72 Conn.App. 804,806 A.2d 1072
• Parties: STATE of Connecticut v. Terrell WATKINS.
• Court: Connecticut Court of Appeals

Page 1072

806 A.2d 1072

72 Conn.App. 804

STATE of Connecticut v. Terrell WATKINS.

No. 21674.

Appellate Court of Connecticut.

Submitted on briefs June 11, 2002.

Decided October 8, 2002.

COPYRIGHT MATERIAL OMITTED

MIHALAKOS, DRANGINIS and WEST, Js.

William A. Snider, Wethersfield, filed a brief for the appellant (defendant).

James E. Thomas, state's attorney, Thomas R. Garcia and Ronald G. Weller, assistant state's attorneys, and Joseph J. Hurley, deputy assistant state's attorney, filed a brief for the appellee (state).

WEST, J.

The defendant, Terrell Watkins, appeals from the judgments of conviction, rendered after a jury trial, of three counts each of robbery in the first degree in violation of General Statutes § 53a-134 (a)(4), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a)(4) and 53a-48 (a), and robbery in the second degree in violation of General Statutes § 53a-135 (a)(1). The defendant was sentenced on November 7, 2000, to a total effective term of thirty years in the custody of the commissioner of correction, execution suspended after twelve years, with five years probation.

On appeal, the defendant claims (1) that the court improperly admitted the written statements of a state witness pursuant to 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), and (2) that the jury's verdict was against the weight of the evidence. We disagree and affirm the judgments of the trial court.

The jury reasonably could have found the following facts. On October 27, 1999, at approximately 12:30 a.m., one of the defendant's victims, Tywan Williams, was walking on East Street in the direction of Seyms Street in Hartford. A silver colored car with tinted windows stopped and parked at the corner of East and Seyms streets. As Williams passed the car, he noticed a silver colored or chrome colored gun being pointed out of the passenger's side of the car in his direction.¹ Williams observed three individuals in the car, one of whom demanded his money. At that point, Williams dropped a bag that he was carrying and fled along East Street. The victim witnessed one of the occupants of the car take the bag. The car then was driven away in the direction of Main Street.

On October 27, 1999, at approximately 1:40 a.m., Victoria Mercado and Raymond Nieves were walking along Farmington Avenue in the direction of Owen Street. As they arrived at the intersection of Farmington Avenue and Owen Street, two black males got out of a gray Honda CRX that had been parked on the street, approached and ordered Mercado and Nieves to the ground. One of the males was wearing a black hooded sweatshirt and a mask, and the other male was wearing a camouflage army jacket. The two men pushed the victims to the ground, whereupon one of the assailants started kicking Nieves and searching his pockets. The second assailant took Mercado's book bag from her and searched her pockets as well. The book bag contained a compact disc player, a pager, shoes, a passport, a binder and some money. The assailants then entered the Honda that was waiting for them on Farmington Avenue and drove along Farmington Avenue toward downtown Hartford.

In the early morning hours of October 28, 1999, Carlos Colon had stopped at a Sunoco station at the corner of Wethersfield Avenue and Eaton Street in Hartford. As he was walking back to his vehicle, two men approached him. One of the men was wearing a camouflage style army jacket and the second man was wearing a dark hooded sweatshirt. Both men were wearing masks. The men demanded Colon's money. One of the assailants placed a silver colored gun at Colon's ribs. After going through Colon's pockets, the assailants retrieved $19 as well as Colon's wallet. When Colon refused to accede to the assailant's demand for his car, he was struck from behind with a metal object. The assailants then ran.

On October 28, 1999, between 2:30 and 3 a.m., a Bloomfield police officer, Michael Guglietta, observed a gray Honda CRX fitting the description of a vehicle that had been involved in some robberies in Hartford and in Bloomfield. After the officer observed the vehicle turn right into the path of another vehicle, he stopped the Honda. Guglietta testified that the operator appeared hesitant to stop. After the officer drove vehicle behind the Honda and signaled it to stop, the vehicle continued to travel one-half mile, swerving from the left to the right before stopping. The vehicle was operated by Sandy Nealey. The defendant and Givon Iverson² were passengers in the vehicle. At the time that the vehicle was stopped, the defendant was wearing a camouflage, army style jacket. The three individuals in the vehicle were placed under arrest on various charges and taken to the Bloomfield police department. The vehicle was towed to a private garage, which was used regularly by the Bloomfield police department. The owner of the vehicle, Anthony Waite, gave the Hartford police permission to conduct a search of the vehicle. The search revealed a portable compact disc player and discs, a beeper and a wallet later identified by the respective victims as the property that had been stolen from them. Also recovered were a black hood, a nylon stocking cap with two eyeholes cut out of it and a hooded sweatshirt. In addition to those items seized from the vehicle itself, the Hartford police also retrieved, from the Bloomfield police department property room, the camouflage coat that the defendant had been wearing at the time of his arrest.

I

We first address the claim that the court improperly admitted a witness' prior inconsistent statement into evidence for substantive purposes. We disagree with the defendant that the statement was admitted improperly.

The following additional facts are relevant to our disposition of the defendant's claim. On two separate occasions, October 28 and November 1, 1999, Nealey provided written, signed statements to the police in which he provided details of the robberies.³ At trial, Nealey recanted those statements, testifying that he was not present during the robberies and that he could not remember what he had said in his statements. After being shown his signed, written statements in an effort to refresh his memory, Nealey conceded that the statements were his and that he had signed the statements. He claimed, however, that the police had pressured him into making those statements and that the information concerning the incidents had been supplied to him by Detective Stephen Grabowski.⁴ Nealey conceded that he nevertheless understood that if he made a false statement, he would be in violation of the law.

The state then offered the two written statements as substantive evidence, pursuant to the exception to the hearsay rule set forth in State v. Whelan, supra, 200 Conn. at 753, 513 A.2d 86. The defendant objected, claiming that the statement did not satisfy the criteria for admissibility because the declarant disavowed personal knowledge of the information contained in the statement.

"The admissibility of evidence, including the admissibility of a prior inconsistent statement pursuant to Whelan, is a matter within the wide discretion of the trial court.... On appeal, the exercise of that discretion will not be disturbed except on a showing that it has been abused." (Citation omitted.) State v. Newsome, 238 Conn. 588, 596, 682 A.2d 972 (1996).

Under Whelan, a prior inconsistent statement may be admitted into evidence for substantive purposes where (1) the statement is in writing, (2) the statement is signed by the declarant, (3) the declarant has personal knowledge of the facts contained therein and (4) the declarant testifies at trial and is subject to cross-examination. State v. Whelan, supra, 200 Conn. at 753, 513 A.2d 86. The admissibility of a prior inconsistent statement depends on the satisfaction of those four requirements. State v. Mukhtaar, 253 Conn. 280, 305-306, 750 A.2d 1059 (2000).

"As with any statement that is admitted into evidence under a hearsay exception, a statement that satisfies the Whelan criteria may or may not be true in fact. But, as with any other statement that qualifies under a hearsay exception, it nevertheless is admissible to establish the truth of the matter asserted because it falls within a class of hearsay evidence that has been deemed sufficiently trustworthy to merit such treatment. Thus, as with all other admissible nonhearsay evidence, we allow the fact finder to determine whether the hearsay statement is credible upon consideration of all the relevant circumstances. Consequently, once the proponent of a prior inconsistent statement has established that the statement satisfies the requirements of Whelan, that statement, like statements satisfying the requirements of other hearsay exceptions, is presumptively admissible." (Emphasis in original; internal quotation marks omitted.) State v. Sotomayor, 61 Conn.App. 364, 375, 765 A.2d 1 (2001), appeal dismissed, 260 Conn. 179, 794 A.2d 996 (2002).

The defendant concedes that the admitted statements satisfy three of the four Whelan criteria. The statements are in writing, the declarant signed the statements, and he testified and was subject to cross-examination at trial. The defendant argues, however, that the statements fail to satisfy the requirement that the declarant have personal knowledge of the events described therein.

We are not persuaded that the circumstances in this case differ in any significant manner from the generally prevailing situation in which a declarant denies the truthfulness of an earlier statement. The declarant in the present case was on the witness stand before the jury, and the jury had sufficient opportunity to weigh the credibility of his testimony against that of his written statements. "[W]hen the declarant is available for crossexamination the jury has the opportunity to observe him as he...