State v. Stevenson

733 A.2d 253, 53 Conn. App. 551, 1999 Conn. App. LEXIS 218
Connecticut Appellate Court·Decided June 1, 1999·No. AC 18159·Published·Cited by 30 cases

Opinion

Opinion

LANDAU, J.

The defendant, Terrance Stevenson, appeals from the judgment of conviction, rendered after a jury trial, of murder as an accessory in violation of General Statutes §§ 53a-54a (a)1 and 53a-8,2 and conspiracy to commit murder in violation of General Statutes §§ 53a-54a and 53a-48 (a).3 On appeal, the defendant claims that the trial court improperly (1) refused to admit into evidence a witness’ prior inconsistent statement under 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), (2) denied the defendant’s motion for a mistrial which he based on prosecutorial comments that allegedly shifted the burden of proof to the defendant, (3) admitted evidence of prior uncharged misconduct that was more prejudicial than probative concerning a prior occasion in which the defendant was armed, and (4) failed to instruct the jury regarding the credibility of the witnesses and that it could make its own determination as to the authenticity of a letter. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On March 21, 1994, Jeffrey Dolphin became [554] involved in a dispute with James Baker and the defendant over a lost quantity of cocaine. At some point during this dispute, Baker, Dolphin and the defendant were joined by Jermaine Harris, also known as “Chico,” and Trent Butler. While Dolphin maintained that a third party lost the cocaine, the defendant blamed Dolphin for the missing cocaine and pulled a gun on him.

Thereafter, Baker asked, “Why don’t we make this motherfucker do it?” The defendant pointed the gun at Dolphin again and forced him into the back of an old white station wagon driven by Baker. Butler, Harris and the defendant were also in the car. Butler then told Dolphin that they wanted him to shoot somebody to make up for the money that he had lost, which Dolphin refused to do.

Upon Dolphin’s refusal, Harris stated that he would shoot the victim, Amenophis Morris. At that point, Baker parked the vehicle on Exchange Street in New Haven, about one-half block from the victim’s home. Harris got out of the car, put on a mask and walked to the victim’s home accompanied by the defendant, while the others remained behind. Both of the men were armed. Dolphin then heard nine or ten gunshots from the direction of the victim’s home, although he could not see who was shooting. When Harris and the defendant returned to the vehicle, Harris shouted, “I got him!” The victim had been shot to death as he sat on his front porch eating dinner.

When the men let Dolphin out on another street, they threatened him and told him not to say anything about what had happened. Approximately one month after the homicide, the New Haven police department arrested Dolphin on unrelated narcotics charges. While in custody, Dolphin provided the police with information implicating Baker, Butler and Harris in the homicide. Dolphin did not give the police the defendant’s name [555] or his street name, “Joe the Flea.” The following day, Dolphin made a photographic identification of Harris.

In February, 1995, in a tape-recorded statement, Dolphin informed Butler’s attorney, Leo Ahern, that the information he had told the police was false. Thereafter, in early March, 1995, in another conversation with the New Haven police, Dolphin made photographic identifications of Butler and Baker. At that time, Dolphin stated to the police that he did not recognize anyone else in the array of photographs, including the defendant. In September, 1995, Dolphin informed the state’s attorney’s office that the statement that he made to Ahern was false. It was not until October 31,1995, that Dolphin informed the police that the fourth individual involved in the homicide was “Joe the Flea,” and that his real name was Terrance Stevenson, the defendant.

The defendant was subsequently arrested and, following a jury trial, he was convicted on both counts. This appeal followed. Other facts will be discussed where relevant to issues in this case.

I

The defendant first claims that the trial court improperly refused to admit into evidence a witness’ prior inconsistent statement that would have undermined the witness’ credibility. Specifically, the defendant argues that the trial court improperly (1) refused to admit into evidence a tape-recorded statement of the state’s key witness, Dolphin, (a) for substantive and impeachment purposes and (b) with Ahern’s testimony to show Dolphin’s demeanor during the statement, and (2) exercised its discretion in refusing to grant the defendant a continuance to subpoena Dolphin as his own witness. We are not persuaded.

The following additional facts and procedural history are necessary for the resolution of these claims. In his [556] tape-recorded conversation (statement) with Ahem in February, 1995, Dolphin recanted the account of the murder that he previously had given to the New Haven police. On direct examination, however, Dolphin testified that he lied to Ahem because he was being threatened while he was incarcerated with Baker, Butler and Harris. In addition, Dolphin testified that in return for the statement that he gave to Ahem, Butler promised that he would attempt to get Dolphin assistance with his bond or attempt to get Ahem to represent him on the unrelated narcotics charges.

During cross-examination, the defendant questioned Dolphin regarding additional details about the tape-recorded statement.4 Dolphin testified that he did not think that he would get in trouble for giving Ahem a statement that was at complete odds with the statement that he had given the police because he did not perjure himself, as the statement was not a sworn statement.

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State v. Stevenson, 733 A.2d 253, 53 Conn. App. 551, 1999 Conn. App. LEXIS 218 (Colo. Ct. App. 1999).

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