State v. Portee

55 Conn. App. 544

740 A.2d 868

STATE OF CONNECTICUT v. TERRY PORTEE

(AC 18432)

Appellate Court of Connecticut.

Argued June 7, 1999.

Officially Released November 2, 1999.

Landau, Schaller and Sullivan, Js. Lauren Weisfeld, assistant public defender, for the appellant (defendant).

Marjorie Allen Dauster, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and James G. Clark, senior assistant state's attorney, for the appellee (state).

Opinion

LANDAU, J.

The defendant, Terry Portee, appeals¹ from the judgment of conviction, rendered after a jury trial, of murder as an accessory in violation of General Statutes §§ 53a-54a and 53a-8, attempt to commit murder in violation of General Statutes §§ 53a-8, 53a-54a and 53a-49 (a) (2), conspiracy to commit murder in violation of General Statutes §§ 53a-54a and 53a-48, commission of a class A, B or C felony with a firearm in violation of General Statutes § 53-202k and illegal possession of a weapon in a motor vehicle in violation of General Statutes § 29-38.

On appeal, the defendant claims that the trial court improperly (1) admitted the victim's prior tape-recorded 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) failed to conduct an adequate inquiry into allegations of juror misconduct, (3) charged the jury regarding consciousness of guilt and (4) instructed the jury on the concept of reasonable doubt. We affirm the judgment of the trial court in part and reverse it in part.

The jury reasonably could have found the following facts. On August 18, 1995, at approximately 1 a.m., the defendant, his brother, Dion Henry, and Michael Beverly,² drove to 74 Orchard Street in New Haven. The defendant stated that if he saw Harry Carter, "it was on," which Beverly testified could have meant anything, including that if the men saw Carter they were going to shoot him. At this time, the defendant was in possession of a gun. Shortly thereafter, the defendant and Henry shot Carter as a result of a drug related dispute. During the shooting, Nicole Moore, who was accompanying Carter, was wounded. Carter survived, but Moore died from her injuries.

Later that day, the police arrested the defendant, who provided them with the following information in a signed statement. As a result of a drug dispute involving the defendant, Carter had shot at Henry on a prior occasion. In addition, two days before the shooting at issue, Carter and the defendant, who possessed an old, rusted .32 caliber gun, were involved in an altercation in which the defendant shot at Carter as Carter drove by and shot at Henry.

On August 18, 1995, shortly after 1 a.m., Henry picked up the defendant and told him that he had acquired a nine millimeter handgun to protect himself from Carter. The defendant and Henry then procured nine millimeter bullets for Henry's gun. At some point thereafter, while in pursuit of Carter, the defendant and Henry picked up Beverly and drove around until they parked on Orchard Street. While Beverly remained somewhere in front of 74 Orchard Street, the defendant and Henry proceeded to the backyard because the defendant knew that one of Carter's associates lived there. In going to this location, the defendant and Henry intended to make a statement on Henry's behalf so that he would be left alone. Henry did not care who he shot so long as it was one of Carter's associates.

From the street, the defendant could see the car that Carter had been in when Carter shot at the defendant and Henry two days earlier. The defendant assumed that either Carter or the driver of the vehicle would be in the second floor apartment. The defendant and Henry waited in the backyard for someone to exit the apartment. At this point, Carter, Moore and a third individual walked up the driveway. The defendant, waiting in a corner in the backyard, saw Carter start to lift his shirt to reach for a gun. The defendant assumed that because Carter appeared to be reaching for a gun, Carter had noticed him. Last, the defendant indicated in his statement that because he felt trapped in the corner, he reacted by firing backward, reaching to the side and to the rear, as he ran out of the driveway.

Officer Robert Levy of the New Haven police department saw three people run out of the driveway. Levy secured Richard Masenberg, presumably the third person who accompanied Carter.³ Masenberg informed Levy that the police should check an alley down the street from the scene of the crime. When the police did so, they found Henry. Further investigation led to the discovery of Henry's nine millimeter semiautomatic weapon and the defendant's coat, hat, gun and holster. Testing revealed that the two bullets recovered from Moore's body were fired from the defendant's weapon.

Following a verdict of guilty, the trial court sentenced the defendant to a total effective sentence of eighty years imprisonment. This appeal followed. Additional facts will be discussed where relevant to issues in this appeal.

I

Initially, the defendant claims that the trial court improperly admitted Carter's prior tape-recorded statement under State v. Whelan, supra, 200 Conn. 743. Specifically, the defendant claims that the court improperly admitted the statement that Carter gave to the police on November 7, 1995, because (1) it was consistent with his in-court testimony and (2) he was not afforded his constitutional right to cross-examination.⁴ We disagree.⁵

The following additional facts are necessary for our resolution of this claim. Detective Thomas O'Donnell of the New Haven police department interviewed Carter at Yale-New Haven Hospital on the day of the shooting. Carter informed O'Donnell that there were two people in the backyard close to the back door. A third person, wearing a mask, was near a parked car near the garage. The masked individual approached Carter, pointed a gun at him, but then moved the gun and instead shot at Moore.

On November 7, 1995, Carter gave a tape-recorded statement to O'Donnell in the presence of the prosecutor. Carter stated that on the morning of the shooting, at approximately 1:30 a.m., Carter, Moore and Richard Giles⁶ were en route to Carter's car, which was parked in a backyard on Orchard Street. As they proceeded up the driveway toward the backyard, three men appeared and began to shoot at them. Against the light of the back porch, Carter recognized the defendant and Henry firing weapons. Carter did not recognize the third person because it was dark and the person was wearing a mask.

Carter denied that he reached into his shirt for his handgun at any time before the men began shooting. As Carter was telling Moore to run and attempting to push her, they were both hit by gunfire. Thereafter, Carter attempted to carry her to safety. The third person did not appear until Carter attempted to grab Moore. When the unidentified person started shooting, Moore was hit first and then Carter. As a result, Carter could no longer carry Moore and she slid to the ground.

After the three men ran through the backyard, Carter ran through the front to obtain aid. As Carter ran, he turned around and saw Henry about to jump over a fence and then turn back and run with the others. At this point, Carter took his Smith and Wesson nine millimeter handgun from his waist area and shot once in Henry's direction. Carter then walked across the street, threw his gun away and ran to get help. Shortly thereafter, he encountered Officer Joseph Foti of the New Haven police department. Foti attempted to help him, but Carter, who was more concerned about Moore, ran back to Orchard Street, where Moore's body was discovered, with Foti in pursuit.

At trial, the state called Carter as a witness. In response to the first question asked on direct examination, Carter stated: "I can't go through with this, man." Despite several similar protests, Carter confirmed that he was walking on Orchard Street on August 18, 1995, at 1:30 a.m. with Moore and his fifteen year old friend, Richard, to get to his car, which was parked in the backyard of 74 Orchard Street. In response to questions regarding the walk up the driveway, Carter replied: "I refuse to answer any more questions, man." Out of the presence of the jury, the court informed Carter that if he refused to answer, he would be held in contempt. Because Carter continued to refuse to answer, the court found him in contempt and imposed a six month sentence to run consecutive to the sentence he then was serving. The state then inquired about the November 7, 1995 statement that Carter gave the police. Carter first indicated that he did not remember the statement and then refused to answer. The court found him in contempt and imposed a second six month sentence.

When the jury returned, Carter continued to refuse to answer questions about the August 18, 1995 shooting. Thereafter, in the jury's presence, the state marked Carter's tape-recorded statement for identification.

After playing the introductory portion of the tape-recorded statement, Carter confirmed that it was his voice on the tape, that he gave the statement to O'Donnell and the prosecutor detailing what happened at 74 Orchard Street on August 18, 1995, and that the statement was true to the best of his knowledge.

Thereafter, the state proffered the tape recording under Whelan as a prior inconsistent statement. The defendant objected, stating that Carter had not listened to and adopted the entire statement, and that the defendant would not have any meaningful opportunity for cross-examination if Carter continued to refuse to answer questions. The court overruled the objection and ruled the statement admissible under Whelan. The state completed its direct examination by playing the tape-recorded statement for the jury. The defendant again confirmed that the statement was true, but refused to answer any additional...