October 25, 2018
Alvord, Prescott and Norcott, Js.
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
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).
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 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.
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
‘‘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.
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.
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.
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.
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.
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 . . . .''
October 4, 2013, the defendant was arrested and charged with
the victim's murder. 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. 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
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.
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
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
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.
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 . . . .''
prosecutor began by asking Williams his name, which did not
elicit a verbal response. The following colloquy ensued:
Court: Mr. Williams, are you going to answer the questions?
No. There's no question. I don't know nothing.
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-
Court: -posed to you-
Court: -by the state.
Court: What about questions posed by [defense counsel]?
No-um, no, um, no.
Court: You understand that if you refuse to answer questions
the court can hold you in contempt?
Yeah, do that then.
Court: And I can sentence you to six months in jail.
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
Everything is understood.
Court: I'm sorry?
I said I understand. I understand everything clearly.
I have advised ...