In re Keijam T.

628 A.2d 562, 226 Conn. 497, 1993 Conn. LEXIS 221
CourtSupreme Court of Connecticut
DecidedJuly 20, 1993
Docket14699
StatusPublished
Cited by17 cases

This text of 628 A.2d 562 (In re Keijam T.) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Keijam T., 628 A.2d 562, 226 Conn. 497, 1993 Conn. LEXIS 221 (Colo. 1993).

Opinion

Peters, C. J.

The principal issue in this appeal is whether a witness may invoke his fifth amendment [499]*499right against compelled self-incrimination if principles of double jeopardy may bar his future prosecution for crimes relating to the testimony sought. The state charged the juvenile respondent, Keijam T., in a delinquency petition with the serious juvenile offense of murder in violation of General Statutes § 53a-54a1 for intentionally causing the death of another person on August 13, 1990.2 The trial court, Riddle, J., found probable cause to believe that the respondent had committed murder as charged,3 and transferred him to the regular criminal docket pursuant to General Statutes § 46b-127.4 The respondent appealed this transfer order to the Appellate Court, pursuant to General Statutes §§ 46b-127, 46b-142 and 52-263,5 claiming that the trial [500]*500court had improperly sustained a rebuttal witness’ fifth amendment privilege not to testify and, thus, had violated the respondent’s constitutional right to compel witnesses in his defense. We transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We now affirm.

The trial court made the following written findings pursuant to § 46b-127.6 Between midnight and 12:30 a.m. on August 13, 1990, Tythron Blue and Moses James were walking along a sidewalk on Arthur Street, in New Haven, moving toward Rosette Street on the odd numbered side of the road. Blue was walking slightly behind James. Upon hearing “a thump” in the backyard of 23 Arthur Street, James turned and saw the respondent running out of the backyard and shooting a gun that looked like an Uzi.7 James turned and ran toward Rosette Street; Blue hesitated, but then followed James on Arthur Street, staying nearer to the houses than James. James saw Rodney Lewis8 in front of him on the opposite, even numbered side of the street, firing at them with a nine millimeter handgun with an eight or nine inch barrel and moving backward toward Rosette Street.

[501]*501James ran past three or four houses, and then turned right into an alley. As Blue followed, he turned his right side toward the respondent, who was behind them on Arthur Street. After Blue had moved a few feet into the alley, he leaned against the back of a car saying to James, “Mo, I’m shot. Mo, I’m shot.” James ran through the alley to a backyard at DeWitt Street, and laid in the grass for about five minutes. When he returned to Arthur Street, James saw Blue lying in the middle of the road, bleeding. When the respondent fired two or three more shots, James ran back toward DeWitt Street. When he returned finally to Arthur Street, James found a number of girls screaming and holding Blue. Lewis then stopped firing the gun and ran back to the respondent’s home.

The court found that Blue had been fatally shot on August 13, 1990, at approximately 12:30 a.m. Blue’s death resulted from a medium caliber bullet that entered his right side, the trajectory of the bullet being from right to left and horizontal.

The respondent was arrested for the murder of Blue. Lewis was also arrested and charged with attempt to commit assault in the first degree and criminal use of a firearm for his conduct in the shooting incident. Lewis was not charged with murder because, comparing the relative positions from which the respondent and Lewis had been firing, the police concluded that the bullet that had struck Blue had come from the respondent’s gun.

At the transfer hearing, the respondent offered Lewis as a rebuttal witness to prove that Lewis, rather than the respondent, had shot Blue and that the respondent had not been on the scene at the time of the shooting.9 At the time that his testimony was offered, Lewis [502]*502had been convicted of and was serving the sentence imposed for the crime of criminal attempt to commit assault in the first degree that arose from his participation in the shooting incident on August 13, 1990. Lewis took the stand but, before being questioned, claimed his fifth amendment privilege not to testify, on the ground that his attempted assault conviction might not bar his subsequent prosecution for other offenses arising out of the death of Blue.10 The court ruled that “the use of the privilege by Mr. Lewis is proper because answers to the questions could provide a link in the chain of evidence and ultimately put this [503]*503witness at risk of possible additional prosecution.” The respondent took exception, claiming that any further prosecution of Lewis would be barred by Lewis’ constitutional right against double jeopardy.

The respondent’s sole claim on appeal is that the trial court improperly sustained Lewis’ assertion of his fifth amendment privilege not to testify at the respondent’s hearing. According to the respondent, applicable principles of double jeopardy would bar Lewis’ future prosecution for the murder of Blue. We disagree.11

A court may not deny a witness’ invocation of the fifth amendment privilege against compelled self-incrimination unless it is “ ‘ “perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have [a] tendency” to incriminate.’ ” (Emphasis in original.) State v. Williams, 200 Conn. 310, 319, 511 A.2d 1000 (1986), quoting Hoffman v. United States, 341 U.S. 479, 488, 71 S. Ct. 814, 95 L. Ed. 1118 (1951); State v. Simms, 170 Conn. 206, 209, 365 A.2d 821, cert. denied, 425 U.S. 954, 96 S. [504]*504Ct. 1732, 48 L. Ed. 2d 199 (1976). “To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.” Hoffman v. United States, supra, 486-87; State v. Simms, supra. In appraising a fifth amendment claim by a witness, a judge “must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence.” (Internal quotation marks omitted.) State v. Williams, supra.

The parties do not dispute that, in the absence of a double jeopardy bar, the testimony to be given by Lewis would be incriminating. The respondent’s offer of proof regarding Lewis’ testimony was that Lewis, not the respondent, had fired the shot that had killed Blue. Although Lewis would normally be able to invoke his fifth amendment privilege to avoid giving such testimony, the respondent maintains that Lewis could testify with impunity because his conviction of attempted assault triggered a double jeopardy bar against any future prosecution stemming from the shooting incident that resulted in Blue’s death.

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Cite This Page — Counsel Stack

Bluebook (online)
628 A.2d 562, 226 Conn. 497, 1993 Conn. LEXIS 221, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-keijam-t-conn-1993.