State v. White, s. 13941

• Citation: 229 Conn. 125,640 A.2d 572
• Decision Date: 16 March 1994
• Docket Number: 13945,Nos. 13941,s. 13941
• Court: Supreme Court of Connecticut
• Parties: STATE of Connecticut v. Roy WHITE. STATE of Connecticut v. Winston WATKINS.

Page 572

640 A.2d 572

229 Conn. 125

STATE of Connecticut v. Roy WHITE.

STATE of Connecticut v. Winston WATKINS.

Nos. 13941, 13945.

Supreme Court of Connecticut.

Argued Nov. 30, 1993.

Decided March 16, 1994. ^*

Kent Drager, Asst. Public Defender, for appellant in each case (defendant).

Richard F. Jacobson, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Gary Nicholson, Asst. State's Atty., for appellee in each case (State).

Before PETERS, C.J., and BERDON, NORCOTT, KATZ and PALMER, JJ.

KATZ, Associate Justice.

The dispositive issue in each of these appeals is whether the state's suppression of exculpatory evidence so impaired the fairness of the proceedings against the defendants that the trial court was required to grant their motions for a new trial or to dismiss the charges against them. After a joint trial before a jury, the defendants, Roy White and Winston Watkins, were convicted of capital felony pursuant to General Statutes § 53a-54b(8), ¹ attempted murder pursuant to General Statutes §§ 53a-54a and 53a-49, ² assault in the first degree pursuant to General Statutes § 53a-59(a)(1) ³ and carrying a pistol without a permit pursuant to General Statutes §§ 29-35 and 29-37(b). ⁴ Although it initially sought the death penalty for both defendants, the state did not offer any evidence of an aggravating factor at the penalty stage of the trial. The trial court therefore sentenced both defendants to life in prison without possibility of release on the capital felony counts. ⁵ The defendants have appealed directly to this court pursuant to General Statutes § 51-199(b)(3). We reverse the judgments of the trial court.

The jury could reasonably have found the following facts. At 1:58 p.m. on November 10, 1987, Bridgeport police officers were dispatched to investigate a shooting in the area of the Jamaican Club. When they arrived, they discovered the bodies of Lilla McCalla and Llwellyn Blake in Blake's Market. Each had been fatally shot in the back of the head with a nine millimeter gun. While at the market, the police were informed that a third shooting victim was being treated at Bridgeport Hospital. The third victim, Vernon Crummie, had been shot twice with a .45 caliber gun.

Nine days later, on November 19, 1987, the Bridgeport police met with Crummie in his hospital room. Detective Leo Krusinski brought a photo array to the hospital for Crummie to view. The six picture array included a photo of Watkins. Crummie identified Watkins as one of the two men involved in the shootings, but indicated he was not the man who had shot him. Crummie then gave a statement to the police. Thereafter, Crummie again picked out Watkins' photo from the array. At trial, Crummie testified that he had seen Watkins at Blake's Market and the Java Restaurant on several occasions prior to the shootings.

On May 10, 1988, Krusinski asked Crummie to come to the Bridgeport police station to view another photo array. Crummie did so and, from a six picture array, selected a photo of White as the man who had shot him in Blake's Market. On the same day, Crummie was also shown a thirteen picture array that included a different photo of White. Crummie again selected the photo of White as the man who had shot him.

Although Crummie identified White in both arrays, he said he had a slight doubt and would like to see White in person in order to be positive about his identification. On May 16, 1988, Crummie went to the Bridgeport police station to view a lineup. After viewing the lineup, Crummie positively identified White as the man who had shot him in Blake's Market. Crummie also looked at the two photo arrays he had first viewed on May 10 and signed the backs of the two pictures of White that he had previously selected.

Crummie was the prosecution's key witness at trial. He testified that he had known McCalla and Blake for many years and that they had been dating for approximately six years. Blake had been operating Blake's Market, a grocery store, for nine or ten months at the time of the shootings. Crummie often stopped at the store and helped Blake and McCalla in his spare time.

Crummie testified that on the day of the shootings, he had stopped by Blake's Market on his way to work at about 1:40 p.m. He had been there only a short time when the two defendants entered the store with guns drawn. Watkins entered first, ran past Crummie and jumped over a counter to the side on which Blake and McCalla stood. White entered behind Watkins, stopped a yard from Crummie and faced him. Crummie said "What's up?" to White, and White shot him in the neck. As Crummie ran toward the front door to escape he was shot a second time in the back. As Crummie ran out of the store and across the street, he heard explosions coming from inside the store. He did not see the defendants emerge from the store. Crummie flagged down an approaching car and the driver drove him to the hospital. Crummie also testified at trial to his photographic identifications of both defendants and his lineup identification of White.

Zaida Brown was the only other witness at trial who could place a defendant near the crime scene. She testified that she had seen Watkins near her home around the time of the shootings. A city engineer testified that Brown had lived approximately 720 feet from Blake's Market. Brown testified that she had seen Watkins running through a neighbor's backyard. She said Watkins had come from the general direction of Blake's Market.

On appeal, both defendants claim that the trial court improperly: (1) refused to dismiss the charges against them or order a new trial even though the state had improperly suppressed exculpatory evidence, depriving the defendants of a fair trial; (2) refused to dismiss the charges against them even though there was insufficient evidence to support the two witness requirement of General Statutes § 54-83; (3) allowed them to be tried before a death qualified jury; (4) allowed them to be shackled while appearing in court before the jury; (5) refused to grant a mistrial after it was discovered that a police officer who had testified for the state had discussed his testimony with a juror during a recess; (6) admitted evidence showing consciousness of guilt; (7) refused to hold that Crummie's testimony was incredible as a matter of law, thereby making the evidence insufficient to convict them; and (8) refused to declare a mistrial or order a new trial based on various factors that impaired the fairness of the trial. Each defendant also contends, separately, that the trial court improperly refused to suppress the photographic identifications made by Crummie. In addition, White claims that the trial court improperly: (1) refused to suppress Crummie's lineup identification of him; and (2) refused to sever his trial from that of Watkins.

I

Both White and Watkins claim that the state withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and thereby deprived them of a fair trial. Because we find merit in this claim, we reverse the convictions of both defendants and remand their cases for a new probable cause hearing and, if appropriate, a new trial.

The following additional facts are relevant. At the June 16, 1988 probable cause hearing for the two defendants, the state represented that there was no exculpatory evidence to disclose to the defendants. Crummie was the sole witness at the probable cause hearing. On June 27, 1988, and July 25, 1988, White and Watkins, respectively, filed pretrial motions seeking disclosure of any exculpatory evidence. The state did not disclose any materials pursuant to these motions.

On November 7, 1989, after several weeks of jury selection, Sandra Harris, a prospective juror, indicated during voir dire that she was reluctant to sit as a juror on the case. The court spoke to her in chambers and then excused her. The court informed counsel that Harris had disclosed that she had been in Blake's Market with the people she presumed were responsible for the shootings. Counsel were then allowed to interview Harris. At trial, Harris testified that she had been in Blake's Market on November 10, 1987, around 12:15 p.m., when two black males had entered the store with guns. She stated that the two males, who were not the defendants, had allowed her to leave.

Apparently, both the state and the defendants had been unaware of Harris prior to November 7, 1989. Defense counsel argued before the trial court, however, that in light of Harris' disclosures, the state must have some evidence in its file concerning two people who had entered the store with guns within one hour of the time Crummie claimed the shootings had occurred. The court expressed disbelief that such information could exist, in light of the state's obligation to have disclosed all exculpatory evidence previously to the defense. The state offered to allow the court to review some information in camera, but asserted that such information would not be exculpatory in any case. The trial court was skeptical of this view, but denied defense counsels' request to have it review the state's entire file. Instead, the court reviewed three statements submitted by the state and ordered that they be released to the defense because they contained potentially exculpatory material.

One of the statements resulted from a police interview of Desmond Whyte. During the interview, Whyte stated that he had had a telephone conversation with the victim, Llwellyn Blake, at 1:15 p.m. on the day of the shootings. Whyte further stated that Blake had told him that earlier that day, a person called Pepper had entered the store with a gun, looked around, and then left. Later, two more males had entered the store with guns and were going to kill another person in the store until Blake had talked them out of it. According to Whyte, Blake had told him that these two males had...