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State v. Hutton

Court of Appeals of Connecticut

March 19, 2019

STATE OF CONNECTICUT
v.
NIRONE HUTTON

          Argued October 25, 2018

          Alvord, Prescott and Norcott, Js.

         Procedural History

         Substitute information charging the defendant with the crime of murder, brought to the Superior Court in the judicial district of Fairfield and tried to the jury before Kahn, J.; verdict and judgment of guilty, from which the defendant appealed. Reversed; new trial.

          Jennifer B. Smith, assigned counsel, for the appellant (defendant).

          James A. Killen, senior assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Joseph J. Harry, senior assistant state's attorney, for the appellee (state).

          OPINION

          PRESCOTT, J.

         The defendant, Nirone Hutton, appeals from the judgment of conviction, rendered against him after a jury trial, of murder in violation of General Statutes § 53a-54a. The defendant claims on appeal that the trial court violated his rights under the confrontation clause of the sixth amendment to the United States constitution[1] as articulated in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Specifically, the defendant argues that the court violated his confrontation rights by improperly admitting into evidence a witness' prior videotaped statement to the police in accordance with State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986), because the witness was functionally unavailable for cross-examination due to his refusal to provide verbal responses to any questions asked by the prosecutor or defense counsel when called to testify before the jury. The defendant further argues that the improper admission of the witness' prior statement did not constitute harmless error because its content significantly undermined his justification defense. We agree with the defendant and, accordingly, reverse the judgment of conviction and remand the matter for a new trial.[2]

         The jury reasonably could have found the following facts. Late in the evening on February 27, 2007, the defendant and Lenworth Williams entered Building 5 of the Greene Homes housing complex in Bridgeport, at which time they encountered the victim, Juan Marcano, and several of his friends. The victim and his friends became embroiled in a confrontation with the defendant and Williams. The defendant, who was part of a group that controlled the sale of drugs in Building 5, was angry with the victim because he had been selling fake crack cocaine in Building 5, damaging the defendant's reputation and drug business. As the confrontation escalated, the victim went to his car and retrieved a handgun. At some point, Williams was able to get away by ascending a nearby staircase, returning soon thereafter with Garrett Bostick, also known as ‘‘Slim, '' who lived on the fifth floor of Building 5, and John Trevil, also known as ‘‘Pealz'' or ‘‘Pills.'' When the defendant and his group tried to exit the lobby back into the stairwell and up the stairs, the victim grabbed Slim and pulled him back down the stairs, at which time the victim was kicking and pistol-whipping Slim. The victim, who was six feet, eight inches tall and weighed approximately 400 pounds, was considerably larger than Slim. Neither the defendant nor his friends called for help or otherwise attempted to break up the fight by nondeadly means. Rather, the defendant pulled out a pistol and fired two gunshots into the victim's back, which immediately incapacitated him.

         The victim's friends chased the defendant and his group up the stairs. Slim and Pills went into Slim's apartment. The defendant tossed his gun into the apartment before he and Williams continued down the hallway, exiting the building via a different stairway. Williams eventually drove the defendant back to his mother's house at 135 Higgins Avenue.

         The victim was able to call 911 for medical assistance and, after the police responded, he was transported to Bridgeport Hospital. The next morning, the police arrested Slim, Pills, and a third man, Ricardo Richmond, at Building 5 on wholly unrelated drug charges. At that time, the police searched Slim's apartment and recovered a gun that later was determined to be the gun used in the shooting of the victim.

         The police showed photographs of Slim, Pills and Richmond to the victim, who remained hospitalized. The victim was able to identify Slim as the person with whom he was fighting at the time he was shot. The victim could not, however, identify the shooter from the photographs and maintained that the only other persons in the area at the time of the incident were himself, Slim, and Slim's friends. The victim eventually died of complications from his gunshot wounds.

         Despite some leads, the police were unable to develop sufficient evidence to obtain an arrest warrant, and the matter eventually was classified as a cold case. On July 4, 2013, however, Williams, who the police had arrested and were booking on unrelated charges, informed the police that he had information about the 2007 shooting. He thereafter gave a videotaped statement to the police in which he identified the defendant as the person who shot the victim. In his statement, Williams also explained that Building 5 was part of the drug dealing territory controlled by the defendant and Slim. According to Williams, the defendant confronted and shot the victim because the victim had been selling fake drugs in Building 5, which adversely affected the defendant's drug business.[3]

         Williams' statement identifying the defendant as the shooter also corroborated other evidence that the police had collected implicating the defendant in the victim's murder. Specifically, the police had obtained a letter that the defendant had sent to a friend in prison. In the letter, the defendant admitted to having committed a ‘‘redrum, '' which was street slang for murder, and he also indicated that Slim had been caught with the gun he used a few hours later. Additionally, a jailhouse informant, Anestos Moffat, who was incarcerated for a time with the defendant and Pills, told the police that the defendant had confessed to him about shooting a ‘‘Spanish kid'' who was ‘‘getting the best of Slim . . . .''

         On October 4, 2013, the defendant was arrested and charged with the victim's murder.[4] He pleaded not guilty and elected a jury trial. The defendant testified at trial on his own behalf and admitted to shooting the victim. The theory of the defense was that the defendant had shot the victim, not over a dispute about gang turf and drugs, but in defense of his friend, Slim, who was being repeatedly pistol-whipped by the victim.[5] The state's theory was that the confrontation with the victim centered on a dispute over the victim selling ‘‘burn bags, '' i.e., fake drugs, in the defendant's territory and that the evidence established beyond a reasonable doubt that the defendant's actions were not justified as a defense of others.[6]

         The jury found the defendant guilty of murder. On May 2, 2016, the court sentenced him to fifty-five years of incarceration. This appeal followed. Additional facts and procedural history will be set forth as necessary.

         The defendant claims on appeal that the trial court improperly violated his constitutional right to confrontation by admitting into evidence Williams' videotaped statement to the police. In particular, the defendant argues that because Williams refused to answer even a single question when he was called to testify before the jury, he was functionally unavailable for purposes of cross-examination and, therefore, his statement was inadmissible under State v. Whelan, supra, 200 Conn. 753, and its admission violated his confrontation rights under Crawford v. Washington, supra, 541 U.S. 36. The defendant further argues that the state could not demonstrate that the improper admission of the statement was harmless beyond a reasonable doubt.

         The state responds that the court properly admitted Williams' statement as a prior inconsistent statement in accordance with Whelan, and that Williams' refusal to give verbal responses to the questions asked at trial did not implicate the defendant's confrontation clause rights because the jury was able to observe and evaluate Williams' nonverbal reactions to the questions posed to him by the prosecutor and by defense counsel. We agree with the defendant that, despite Williams' physical presence on the witness stand, the defendant was not afforded a meaningful opportunity to cross-examine Williams about his prior statement due to Williams' outright refusal to answer questions, and, therefore, the admission of Williams' statement violated the defendant's right to confrontation. We also agree that the state has failed to demonstrate that the error was harmless beyond a reasonable doubt.

         The following additional facts are relevant to our resolution of this claim. On the afternoon of February 3, 2016, during the state's case-in-chief and outside the presence of the jury, the state informed the court, Kahn, J., that it intended to call Williams as its next witness. The prosecutor informed the court that Williams likely would be a ‘‘difficult witness'' and that the court may want to permit the state first to question him outside the presence of the jury ‘‘just to see where he stands . . . .'' The court asked the prosecutor if Williams had a ‘‘fifth amendment issue . . . .'' The prosecutor indicated that because the case was nine years old, everything but the murder fell outside the statute of limitations and, thus, he did not believe that Williams intended to invoke the fifth amendment. Nevertheless, the prosecutor informed the court that the witness was represented by Attorney Don Cretella, who was present and could address that issue further. Cretella told the court that he had spoken with Williams in the courthouse lockup and that he did not anticipate him invoking his fifth amendment right not to incriminate himself. Cretella, however, informed the court that Williams had indicated that he was going to refuse to answer any questions, despite Cretella's advisement of the possible consequences of pursuing that course of action. After taking a brief recess to speak with all counsel in chambers, the court came back on the record and indicated that it intended to permit the state to question Williams outside the presence of the jury.

         After Williams was sworn in, the court addressed him. The court first indicated its understanding that Williams did not intend to invoke his fifth amendment right not to testify. Williams answered that this was correct. The court then explained to Williams that, as a subpoenaed witness, he would be questioned under oath by the state following which defense counsel would have an opportunity to cross-examine him. Williams indicated that he understood the process. When the court asked if he intended to go forward with that process, Williams said: ‘‘I'm not complying with nothing you're asking me, ma'am.'' The court responded: ‘‘Well, I don't know what you mean by not complying, but the state is going to ask you some questions . . . .''

         The prosecutor began by asking Williams his name, which did not elicit a verbal response. The following colloquy ensued:

         ‘‘The Court: Mr. Williams, are you going to answer the questions?

         ‘‘[Williams]: No. There's no question. I don't know nothing.

         ‘‘The Court: Well, that's different. If you don't know anything, that's different. The question is whether you're going to answer any of the questions-

         ‘‘[Williams]: No.

         ‘‘The Court: -posed to you-

         ‘‘[Williams]: No.

         ‘‘The Court: -by the state.

         ‘‘[Williams]: No.

         ‘‘The Court: What about questions posed by [defense counsel]?

         ‘‘[Williams]: No-um, no, um, no.

         ‘‘The Court: You understand that if you refuse to answer questions the court can hold you in contempt?

         ‘‘[Williams]: Yeah, do that then.

         ‘‘The Court: And I can sentence you to six months in jail.

         ‘‘[Williams]: Okay.

         ‘‘The Court: That you will not get any credit for any good time, and it will not count toward any of your sentence. So that you're basically doing dead time for six months with no credit whatsoever.

         ‘‘[Williams]: Everything is understood.

         ‘‘The Court: I'm sorry?

         ‘‘[Williams]: I said I understand. I understand everything clearly.

         ‘‘The Court: Okay.

         ‘‘[Cretella]: I have advised ...


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