State v. Crocker

83 Conn. App. 615

852 A.2d 762

STATE OF CONNECTICUT v. SHAWN CROCKER

(AC 23269)

Court of Appeals of Connecticut.

Argued March 17, 2003.

Officially released July 6, 2004.

Flynn, West and McDonald, Js. Adele V. Patterson, assistant public defender, for the appellant (defendant).

Rita M. Shair, senior assistant state's attorney, with whom were Michael Dearington, state's attorney, and, on the brief, David J. Strollo, assistant state's attorney, for the appellee (state).

Opinion

MCDONALD, J.

The defendant, Shawn Crocker, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a and criminal possession of a firearm in violation of General Statutes § 53a-217. On appeal, the defendant claims that (1) the trial court improperly disqualified his counsel of choice in violation of the sixth amendment to the federal constitution, (2) the court improperly permitted a witness to testify as an expert as to street gangs, (3) the court improperly permitted the state to introduce testimony concerning gang activities that was inflammatory and prejudicial, (4) the court improperly admitted into evidence the prior testimony of a witness in violation of the defendant's sixth amendment right of confrontation, (5) the court improperly admitted into evidence the prior inconsistent statement of an unavailable witness and (6) the summation of the assistant state's attorney violated the defendant's due process rights, his right to the assistance of counsel and his right to a fair trial. We uphold the trial court's rulings and affirm the judgment of conviction. The jury reasonably could have found the following facts. Shortly before 7:30 p.m. on October 27, 1997, George David Wright drove a stolen Jeep Cherokee to the Quinnipiac Terrace housing complex in New Haven, also known as "the Island." The victim, Daryl Price, was in the passenger seat of the Jeep, and Calvin Taylor was seated in the back. At the housing complex, Wright and Taylor exited the vehicle, and Tacuma Grear approached the Jeep to talk to the victim. They talked about the killing of Grear's brother, Corey Grear, which had occurred approximately one week earlier, for which the victim had apologized. Corey Grear was a friend of the defendant, and the defendant had held him in his arms after Grear was fatally shot by the victim. The defendant had witnessed the victim shoot Corey Grear. Corey Grear was also a member, as was the defendant, of the Island Brothers, a street gang into which the victim had been introduced and sponsored by the defendant. As his sponsor, the defendant was responsible for disciplining the victim should the victim kill a fellow gang member.

As Tacuma Grear walked away from the Jeep, the defendant had come up to the driver's side of the Jeep carrying a handgun. He then leaned into the Jeep and fired four times into the vehicle. Two .45 caliber bullets hit the victim, killing him, and two other bullets were found in the Jeep.

I

The defendant claims that the court, Hartmere, J., improperly disqualified his attorney, Michael Dolan, in violation of the sixth amendment.¹ We disagree.

The following facts are relevant to our resolution of that issue. The defendant was arrested in connection with the victim's murder in November, 1997, and Dolan represented him at the probable cause hearing, which began on December 23, 1997. At the probable cause hearing, the state called Tacuma Grear. Grear testified that he had talked to the victim shortly before the victim was shot in the front passenger seat of the Jeep. The defendant was near the Jeep as Grear talked to the victim. After talking to the victim, Grear walked away and heard gunshots. Grear testified, contrary to the report of his police interview conducted two days after the shooting, that he did not see the defendant with a gun in his hand prior to the shooting. Grear also testified, contrary to the police report, that he did not see the defendant standing near the open window of the Jeep when gunshots were fired.

Initially, Grear testified on direct examination that he did not look back when he heard the gunshots, but he later testified that he did look and saw a person wearing a hooded sweatshirt standing near the driver's side of the Jeep. He denied seeing the individual's face. He also testified that he saw that person walking toward the front of the Jeep with a gun in his hand. Grear also denied telling the police that he saw the defendant approach the rear portion of the Jeep with a gun in his hand before the shooting and that he saw him walk away from the operator's side of the Jeep with the gun after the shooting. Grear testified that because he did not see the defendant shoot the victim, his testimony had "no weight." He also stated that he did not fear the Island Brothers because he, himself, was associated with them.

When cross-examined by Dolan, Grear testified that the police attempted to have him implicate the defendant and threatened him unless he did so. No testimony was elicited that Dolan was currently representing Grear in a criminal matter in the geographical area court. After probable cause was found, the case proceeded to jury selection. In May, 1998, during jury selection, the court was informed that Dolan represented Tacuma Grear at the same time that Dolan represented the defendant.

The state represented the following facts to the court, which Dolan did not dispute: On December 23, 1997, Tacuma Grear was called as a witness by the state at the defendant's probable cause hearing and was cross-examined by Dolan. At that time, Dolan had an appearance on file on behalf of Tacuma Grear in the geographical area court and had engaged in substantial plea negotiations on Grear's behalf. On August 22, 1997, Dolan had filed an appearance on behalf of Grear in an unrelated criminal case and represented him until January 22, 1998, when Judge Simon, presiding at the geographical area court number seven, brought up the conflict of interest. Although two other witnesses at that probable cause hearing were cross-examined by Dolan about their prior convictions and offers made in pending cases, Dolan did not cross-examine Grear as to the offers that were made to Grear in his pending case.

The state also represented that on December 23, 1997, at Dolan's office, Grear gave a signed statement to Dolan or to Dolan's investigator regarding the defendant's case, which was substantially similar to Grear's testimony at the probable cause hearing that day.

"To clarify some facts," Dolan then told the court that when he filed his appearance on behalf of the defendant, he did not realize that Tacuma Grear was a witness to the homicide and that when he learned that Grear was a witness, he did not believe that he had a duty to disclose that he represented the defendant and Grear at the same time. Dolan stated that he did not question Grear about any potential offers from the state about his pending case because Grear was not a damaging witness against the defendant. Dolan also stated that both the defendant and Grear were aware of the dual representation and had waived any possible conflict of interest.

The court had been informed that Grear's present counsel had stated that Grear would be willing to waive any conflict, and the court assumed that the defendant would also be willing to waive any conflict. The court, however, remarked that it was concerned about the defendant's upcoming trial, stating: "One of the more troubling aspects of the case is trying to foresee what would happen down the road at a trial. And as experienced counsel are both aware, that is frequently impossible and always difficult to do. And the problem in this situation is, for this court, is attempting—assuming waivers by both counsel, attempting to foresee what potential prejudice would inure to [the] defendant's detriment during a trial. And by that, I mean, would [the defendant] be prejudiced in front of the jury by the examination by the state as to a change in Mr. Grear's testimony and the reasons therefor. And that examination by the state could focus on whether Mr. Grear had changed his testimony from that initial statement to the police, whether he had changed that testimony based on his relationship with his attorney." The court added, concerning Grear's waiver, that the interview of Grear was conducted, to the court's understanding, "by an investigator of Mr. Dolan's and Mr. Dolan being in and out of the room at the time...."

Having found that Dolan simultaneously had represented the defendant and Grear throughout the probable cause hearing, the court determined that Dolan suffered from a conflict of interest. The court then determined that the defendant could not validly waive the conflict because of Grear's differing statements to the police and to Dolan and his investigator. The court stated that Grear's probable cause hearing testimony and Grear's anticipated testimony at trial "might lead to the appearance of impropriety, which could affect the jury and prejudice [the defendant] in the outcome of this trial. Of course, there's also the appearance of impropriety in terms of the general public." The court then disqualified Dolan and ordered that the defendant be afforded a new probable cause hearing with different counsel.

We next review pertinent portions of the record from the second probable cause hearing held in July, 1998, when Dolan no longer represented Grear or the defendant. At that hearing, when called by the state, Grear testified that the victim was seated in the front passenger side of the Jeep. When he heard gunshots, Grear saw someone leaning into the vehicle. Grear then testified that the statement he gave at the office of the state's attorney on June 18, 1998, was correct. In that statement, Grear stated that he saw someone who looked to be the defendant leaning into the driver's side of the vehicle where the victim was...