STATE v. HOLMES, 257 Conn. 248 (2001)

777 A.2d 627

(SC 16410)Supreme Court of Connecticut

Sullivan, C.J., and Borden, Norcott, Katz and Vertefeuille, Js.

Syllabus
Convicted of the crime of murder, the defendant appealed to the Appellate Court, which affirmed the judgment of the trial court, and the defendant, on the granting of certification, appealed to this court claiming that the trial court violated his state and federal constitutional rights to due process and compulsory process by refusing to require the state either to grant immunity from prosecution to a certain defense witness or, in the alternative, to suffer dismissal of the case. The defendant contended that the witness’ testimony would have corroborated his defense that the shooting of the victim that led to his murder charge was accidental. At trial, the witness invoked his fifth amendment privilege, and the only indication of what his testimony would have been was an unsigned statement he had given to a New York police detective after the defendant’s arrest there on an unrelated charge. In that statement, the witness quoted the defendant as stating that he did not know why he shot the victim and the witness opined that the defendant “really went crazy.” Held that the trial court properly declined either to grant immunity to the witness or to dismiss the charges against the defendant: the statute (§ 54-74a) authorizing the prosecution to grant immunity to state witnesses under certain circumstances confers no such authority on the courts with regard to defense witnesses; further, although this case did not present the compelling circumstances necessary for the application of either the “effective defense” theory or the “prosecutorial misconduct” theory of entitling defense witnesses to immunity, as recognized by certain federal Circuit Courts of Appeals, had those theories been recognized here, the defendant would not have prevailed, he having failed to show that the witness’ proffered testimony would be clearly exculpatory or that the prosecution had engaged in impropriety or misconduct of any kind.

Argued April 25, 2001

Officially released July 31, 2001

Procedural History
Information charging the defendant with the crime of murder, brought to the Superior Court in the judicial district of New London and tried to the jury before Parker, J.; verdict and judgment of guilty, from which the defendant appealed to the Appellate Court, O’Connell, C.J., an Zarella and Dupont, Js., which affirmed

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the trial court’s judgment, and the defendant, on the granting of certification, appealed to this court. Affirmed.

Jeremiah Donovan, for the appellant (defendant).

Peter A. McShane, senior assistant state’s attorney, with whom, on the brief, was Kevin T. Kane, state’s attorney, for the appellee (state).

Opinion
VERTEFEUILLE, J.

Pursuant to our grant of certification, the defendant, William Holmes, Jr., appeals from the judgment of the Appellate Court affirming the trial court’s judgment of conviction for murder in violation of General Statutes § 53a-54a.[1] He claims that the trial court violated his state and federal constitutional rights to due process and compulsory process by refusing to require the state either to grant immunity from prosecution to a certain defense witness or, alternatively, to suffer dismissal of the case. We disagree and, accordingly, affirm the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the following relevant facts that the jury reasonably could have found. “On September 2, 1995, Linda Alexander lived at 30 Chapel Street in New London. On that day, Joseph Thompson was found dead on her bathroom floor, having been killed by a single gunshot wound to the head. The police seized two cigar blunts[2] and a nine millimeter spent shell casing in the bathtub.

“That evening, the defendant was involved in the shooting death of Wade Denson in Brooklyn, New York.

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The following day, September 3, 1995, Brooklyn detectives went to a Brooklyn apartment in an attempt to apprehend the defendant for Denson’s murder. As the detectives were attempting to enter the apartment, the defendant and his brother fled out a back window and, after a short chase, were apprehended. While they were being pursued by the detectives, a nine millimeter handgun fell from the defendant’s pants. The detectives seized the weapon.

“Soon after his arrest, the defendant provided the Brooklyn detectives with two statements. The first statement pertained to the shooting death of Denson in Brooklyn. In that statement, the defendant stated that he, Denson and a third person were smoking a blunt. When the blunt was passed to Denson, he dropped it on the floor. The defendant told Denson that he must pick it up and pass it without taking his turn. Denson refused to comply and took his turn anyway. The defendant then pointed the nine millimeter handgun at him. Although the defendant did not recall firing the gun, he fled the apartment immediately after the incident, and Denson was found dead from a gunshot wound a few hours later.

“The second statement concerned the shooting death of Thompson, which had occurred in New London just a few hours before Denson was killed in Brooklyn. In his statement, the defendant mentioned that he remembered pointing his gun at Thompson but did not remember it going off. The jury could have found from the testimony of one of the detectives, that the defendant, Ronald [Gadsden] and Thompson were smoking a blunt in Alexander’s bathroom when Thompson dropped [the blunt]. Although blunt smoking protocol required that he pass it without taking his turn, Thompson disregarded the custom and took his turn anyway. This angered the defendant and caused him to point the handgun at Thompson. The defendant did not remember

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firing the gun, but after the incident he and [Gadsden] immediately left for New York.

“The defendant’s version of the events is that the shooting was completely accidental. He claims that he wanted to show his friends his gun and as he pulled it out of his pants to show it to them, it discharged, killing Thompson. Not knowing what to do, he and [Gadsden] ran out of the house and made their way to New York.” State v. Holmes, 59 Conn. App. 484, 485-87, 757 A.2d 639 (2000).

At trial, Gadsden, the only witness to the events giving rise to the murder charge against the defendant, successfully invoked his fifth amendment privilege against self-incrimination. The defendant claimed that Gadsden’s testimony would exculpate him of the charges and was, thus, necessary to his defense. Accordingly, the defendant moved to have the trial court order the state either to grant immunity to Gadsden, or, in the alternative, dismiss the charges. The defendant also requested that the trial court itself grant immunity to Gadsden. The trial court denied the defendant’s request, finding that it had no power to immunize the witness or to force the prosecution to do so. Thereafter, a jury convicted the defendant. The defendant appealed from the judgment of conviction to the Appellate Court, claiming, in part, that the trial court improperly had denied his request to order the state either to grant immunity to Gadsden or, in the alternative, to dismiss the charges. The Appellate Court affirmed the defendant’s conviction. Id., 490. This appeal followed.[3]

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The defendant contends that Gadsden’s testimony would have corroborated the defendant’s defense at trial, which was that the shooting had been accidental. The defendant further claims that, when Gadsden successfully invoked his fifth amendment privilege at trial, the defendant’s state[4]
and federal constitutional rights to due process and compulsory process required that Gadsden be given immunity or that the charges be dismissed.[5] We disagree.

As a threshold matter, we must first determine the applicable standard of review that governs our examination of the defendant’s claims. The issue of whether a defendant’s rights to due process and compulsory process require that a defense witness be granted immunity is a question of law and, thus, is subject to de novo review. See United States v Angiulo, 897 F.2d 1169, 1190-92 (1st Cir.), cert. denied, 498 U.S. 845, 111 S.Ct. 130, 112 L.Ed.2d 98 (1990) (engaging in de novo review of defendant’s claim that due process and compulsory process required that defense witness be immunized).

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“[A] defendant has a right under the compulsory process and due process clauses `to present [his] version of the facts as well as the prosecution’s to the jury so [that] it may decide where the truth lies.'”State v. Morant, 242 Conn. 666, 685 n. 9, 701 A.2d 1 (1997), quotin Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019
(1967). The compulsory process clause of the sixth amendment generally affords an accused the “right to call witnesses whose testimony is material and favorable to his defense . . . .” (Internal quotation marks omitted.) Rock v. Arkansas, 483 U.S. 44, 52, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). The defendant claims that his rights to due process and compulsory process required that Gadsden be granted immunity because he would offer testimony exculpatory to the defendant.

We begin our analysis with the statutory provision concerning prosecutorial immunity for witnesses. General Statutes § 54-47a[6]
authorizes the prosecution to

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grant immunity to state witnesses under certain circumstances. We explicitly have held that § 54-47a confers no such authority upon the courts with regard to defense witnesses. See State v. Simms, 170 Conn. 206, 210-11, 365 A.2d 821, cert. denied, 425 U.S. 954, 96 S.Ct. 1732, 48 L.Ed.2d 199 (1976). Indeed, this court has held repeatedly that there is no authority, statutory or otherwise, enabling a trial court to grant immunity to defense witnesses. See State v. McIver, 201 Conn. 559, 566-68, 518 A.2d 1368 (1986); State v. McLucas, 172 Conn. 542, 561, 375 A.2d 1014, cert. denied, 434 U.S. 855, 98 S.Ct. 174, 54 L.Ed.2d 126
(1977); State v. Simms, supra, 210-11. We have no occasion to revisit those holdings today.

We recognize that other courts have held that under certain compelling circumstances the rights to due process and compulsory process under the federal constitution require the granting of immunity to a defense witness. The federal Circuit Courts of Appeals have developed two theories pursuant to which the due process and compulsory process clauses entitle defense witnesses to a grant of immunity. They are the “`effective defense'” theory, and the “`prosecutorial

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misconduct'” theory. See United States v. Angiulo, supra, 897 F.2d 1190. Because such circumstances are not presented in this case, however, we need not decide whether either theory is a correct application of the due process or compulsory process clause.

Under the effective defense theory, as developed by the Third Circuit Court of Appeals, the trial court has the authority to grant immunity to a defense witness “when it is found that a potential defense witness can offer testimony which is clearly exculpatory and essential to the defense case and when the government has no strong interest in withholding . . . immunity . . . .” Government of the Virgin Islands v. Smith, 615 F.2d 964, 974 (3d Cir. 1980); see also People v. Lucas, 12 Cal.4th 415, 460, 907 P.2d 373, 48 Cal.Rptr.2d 525 (1995). The Third Circuit has held explicitly that under the effective defense theory “[i]mmunity will be denied if the proffered testimony is found to be ambiguous [or] not clearly excuplatory . . . .” Government of the Virgin Islands v. Smith, supra, 972. Because the defendant in the present case has not shown that Gadsden’s testimony would be exculpatory, the effective defense theory of immunity, even if recognized, would not apply to this case.[7]

At trial, Gadsden successfully invoked his fifth amendment privilege to not testify. Thus, the only indication of the likely substance of his testimony is an unsigned statement that he had given to a detective of the New York police department after the defendant’s arrest on murder charges there. A fair reading of that statement reveals that it was not exculpatory as to the

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defendant. In fact, several aspects of the statement were inculpatory to the defendant.

The statement provided to the police begins: “I am in the New York police department 76[th] precinct detective office. I am afraid of [the defendant]. I don’t know where his head is, he is just zoning since he doesn’t take his medication.” After describing the events leading up to the shooting of Thompson, Gadsden stated: “For no reason [the defendant] shot [Thompson]. I heard the shot, and [Thompson] fell to the floor . . . . [The defendant] said to me, `Come on, we gotta leave.’ I asked [the defendant] why he did it, and he said, `I don’t know, son.’ That’s why I think he really went crazy.” At the end of the statement, the detective who took Gadsden’s statement wrote: “Gadsden stated [that] if he signed [the] statement [the defendant] would know, and retaliate. Gadsden [was] terrified. He did not want to leave [the] precinct house.” A fair reading of Gadsden’s statement indicates that his testimony at trial would no clearly exculpate the defendant. We conclude, therefore, that even if we recognized the effective defense theory, the defendant has failed to satisfy the requisite burden of proof under the theory that would warrant its application in this case. See Government of the Virgin Islands v Smith, supra, 615 F.2d 972, 974.

The defendant would fare no better under the prosecutorial misconduct theory of immunity.[8] This theory is based on the notion that “the due process clause [constrains] the prosecutor to a certain extent in [its] decision to grant or not to grant immunity.” United

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States v. Angiulo, supra, 897 F.2d 1191. Under this theory, however, the constraint imposed by the due process clause is operative only when the prosecution engages in certain types of misconduct. Se United States v. Diaz, 176 F.3d 52, 115 (2d Cir. 1999) (court must find that “the government, through its own overreaching, has forced the witness to invoke the Fifth Amendment or, that the government has engaged in [the] discriminatory use of grants of immunity to gain a tactical advantage; second, the witness’ testimony must be material, exculpatory and not cumulative; and third, the defendant has no other source to obtain the evidence”); Curtis v. Duval, 124 F.3d 1, 9 (1st Cir. 1997) (defendant must show that prosecution has intentionally distorted fact-finding process by harassing or intimidating potential witnesses or deliberately withholding immunity for purpose of hiding exculpatory evidence from jury); see also United States v White head, 200 F.3d 634, 640 (9th Cir. 2000); United States v. Hooks, 848 F.2d 785, 799 (7th Cir. 1988); Government of the Virgin Islands v Smith, supra, 615 F.2d 968-69;[9] Carter v. United States, 684 A.2d 331, 341 (D.C. 1996); State v. Peterson, 532 N.W.2d 813, 822 (Iowa 1995).[10]

The defendant has not claimed that the prosecution engaged in impropriety or misconduct of any kind.

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Thus, the defendant’s claim would fail under the prosecutorial misconduct theory of immunity as well.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.