259 Conn. 831 | Conn. | 2002
Opinion
The respondent, the state of Connecticut (state), appeals
The petitioner in this case originally was charged with two counts of aiding and abetting murder in violation of General Statutes §§ 53a-8
The petitioner filed a direct appeal to the Appellate Court, which affirmed the judgment of conviction. State
Thereafter, the petitioner brought this petition for a new trial pursuant to General Statutes § 52-270,
The following facts, as stated by the Appellate Court in the petitioner’s direct appeal, are pertinent to our resolution of this appeal. “At approximately 3 a.m. on September 21, 1991, police responded to a report of shots, fired at the Athenian Diner on Whalley Avenue
“An altercation had originated in the diner and continued outside. A crowd gathered, including the defendant; his friend Daryl Valentine, who was the shooter; and Byron McFadden, who would later testify at trial.
“As Roach, Poole and Paisley joined the crowd, [McFadden] heard the [petitioner] shout, ‘Shoot him, shoot him, f— it, shoot him.’ Valentine shot Poole and Paisley, ran to a car parked in the driveway of the diner and got in on the passenger side. Roach ran after him. As Roach approached the car, Valentine fired at him, hitting him in the arm. The car with Valentine in it sped away, followed shortly thereafter by the [petitioner], who drove off in his own car.” State v. Adams, supra, 36 Conn. App. 474-75.
At the hearing on this petition for a new trial, the petitioner called one witness, public defender Thomas Ullmann, who had represented Valentine in his trial. Ullmann testified that the exculpatory information provided by Greene first became available during Valentine’s trial, which took place after the petitioner had been convicted. Ullmann also testified that he had been contacted by Valentine’s sister, who told him that Greene “had information regarding a key witness in the case.” Ullmann testified further that he had interviewed Greene, who revealed that she had engaged in two separate conversations regarding the incident with her cousin, Roach, the only victim to have survived, and who identified Valentine as the shooter at trial. According to Greene, Roach had admitted to her that he had not seen the shooting, but stated that “somebody
Valentine ultimately was convicted of murder. He then appealed from that judgment to this court. We held improper the ruling excluding Greene’s testimony, on the grounds that “the identity of the shooter and whether Roach knew that identity, [were] material to the central issue in the case and, therefore, was not collateral.” State v. Valentine, supra, 240 Conn. 404. Because this court determined that the improper exclusion of Greene’s testimony constituted harmful error, we reversed Valentine’s conviction and ordered a new trial. Id., 404-405.
At Valentine’s new trial, Greene initially testified that, in her first conversation with Roach, he refused to answer when she asked whether Valentine had anything to do with the shooting, stating that he could not discuss it. It was only after Ullmann refreshed her recollection with the prior offer of proof that Greene testified that Roach had told her that he “didn’t see who did it.” With respect to their second conversation, Greene again testified that Roach consistently had told her that he could not discuss matters related to the trial, and that it was only after being “pushed” on the issue that Roach said, “somebody has to pay the price, somebody has to go.” After hearing this, and other relevant testimony, the jury on the retrial again convicted Valentine on two counts of murder, one count of attempted assault in the first degree, and one count of carrying a pistol without a permit.
The dispositive issue raised by the state on appeal is whether the trial court improperly concluded that its decision was dictated, in large part, by this court’s decision in State v. Valentine, supra, 240 Conn. 395. Specifically, the state claims that, in adhering to our appellate ruling in Valentine, the trial court improperly failed to evaluate Greene’s credibility in order to determine whether her testimony was likely to produce a different result in the event of a new trial. The petitioner concedes that it was necessary for the court to engage in such a credibility analysis, but counters with the argument that the trial court fulfilled its obligation in this respect. We agree with the state.
As a preliminary matter, we set forth the standard of review that governs our analysis on appeal. Typically, we review a trial court’s actions with respect to a petition for a new trial for an abuse of discretion. See Kubeck v. Foremost Foods Co., 190 Conn. 667, 670, 461 A.2d 1380 (1983). This particular case, however, requires that we determine whether the trial court applied the appropriate standard in evaluating the petition at issue. Because this is a question of law, our review is plenary. See Olson v. Accessory Controls & Equipment Corp., 254 Conn. 145, 156, 757 A.2d 14 (2000).
Our analysis is founded, in large part, on our holding in Shabazz v. State, 259 Conn. 811, 792 A.2d 797 (2002), also decided today. In Shabazz, the petitioner appealed
Our review of the trial court’s memorandum of decision discloses that the trial court failed to assess properly the credibility of the proffered newly discovered evidence. The court first correctly noted that “for the petitioner to be entitled to a new trial on the basis of newly discovered evidence he must establish the following: ‘(1) the proffered evidence [namely, Greene’s testimony] is newly discovered, such that it could not have been discovered earlier by the exercise of due diligence; (2) it would be material on a new trial; (3) it is not merely cumulative; and (4) it is likely to produce a different result in a new trial.’ Asherman v. State, [supra, 202 Conn. 434].” The court then applied the first three of these elements to the evidence before it, and determined that: (1) Greene’s testimony did, in fact, constitute newly discovered evidence because her con
The remainder of the trial court’s memorandum of decision was devoted to an analysis under the fourth prong of the Asherman test, namely, whether Greene’s testimony was likely to produce a different result on retrial. In this context, the court expressly articulated its “opinion . . . [that] the outcome of [the] petition is to a large extent governed by the Supreme Court’s holding in State v. Valentine [supra, 240 Conn. 404] . . . that the exclusion of Greene’s testimony was harmful error.” In State v. Valentine, supra, 404, we had stated that “Greene’s testimony, if believed by the jury, seriously would have undermined Roach’s in-court testimony identifying the defendant as the shooter” and, therefore, would have been more likely than not to affect the outcome of the trial. (Emphasis added.) The trial court noted that, in this respect, the harmful error standard “is not unlike the fourth element [of Asherman] which must be established [before the petitioner is] entitled to a new trial, i.e., that the evidence in question is likely to produce a different result in a new trial.” Without further discussion of, or analysis under, Asherman’s fourth prong, the trial court concluded that it was bound to provide the petitioner with a new trial because we had accorded the same relief to his codefendant in Valentine based on the harmful exclusion of Greene’s testimony.
The trial court’s reliance on our conclusion of harmful error in Valentine as a substitute for an independent credibility assessment under the fourth prong of the Asherman test was misplaced. First, in relying on the transcript of Greene’s testimony from Valentine’s sec
Second, harmful error is an appellate construct, used to determine, in cases such as Valentine, whether an improper evidentiary ruling by the trial court likely affected the outcome of the trial. See State v. Valentine, supra, 240 Conn. 404 (“[t]o require the reversal of a conviction because of evidentiary error, the defendant must show that the error was harmful, i.e., that it is more probable than not that the erroneous ruling of the trial court affected the result”). When judging the likely effect of such a trial court ruling, the reviewing court is constrained to make its determination on the
In deciding a petition for a new trial, however, the trial court sits as fact finder in place of the jury and examines the newly discovered evidence independently, in order to determine whether it is likely to result in a different verdict in the event of a retrial. See Shabazz v. State, supra, 259 Conn. 824; People v. Shilitano, 218 N.Y. 161, 180, 112 N.E. 733 (1916). To this end, the trial court necessarily undertakes some sort of credibility assessment; for, if the newly discovered evidence is not worthy of belief, a jury sitting on the new trial would not be persuaded by it to reach a different result. See Shabazz v. State, supra, 825; Smith v. State, 141 Conn. 202, 208, 104 A.2d 761 (1954). The trial court, moreover, is obliged to make such a credibility determination, not on the basis of a printed record, as a reviewing court must do in undertaking a harmful error analysis, but rather on the basis of live testimony.
In substituting our finding of harmful error in Valentine for its analysis under the fourth prong of the Asherman test, the trial court thus assumed, without deciding, the believability of Greene’s testimony. Because such a credibility evaluation is necessary to a determination of whether Greene’s testimony was likely to result in an acquittal in the event of a new trial, the
The petitioner maintains, contrary to this conclusion, that the trial court’s analogy of Asherman’s fourth prong with the appellate test for harmful error did not amount to a “lock-step blind adherence to Valentine . . . . Quite the contrary, it [was] the well-reasoned and logical conclusion to the trial court’s thorough assessment of all the evidence, including the Valentine I offer of proof.” This argument, however, disregards several references in the trial court’s memorandum of decision to the binding nature and effect of our decision in Valentine. As previously stated, the trial court explicitly pronounced its belief that the outcome of the petition was largely dictated by our holding in Valentine, even going so far as to conclude that “[i]n the last analysis the Supreme Court has held that . . . Valentine was entitled to a new trial in which the jury would hear from . . . Greene. This court believes it is therefore bound to follow that holding and provide the same opportunity to [the petitioner].” (Emphasis added.) Moreover, the trial court twice emphasized our holding that Greene’s testimony, if believed by the jury, would likely affect the result of the trial. This reiteration of the appellate standard for harmful error suggests that, in the absence of any explicit finding by the trial court that Greene was a credible witness, the court relied on our holding in Valentine in lieu of making an independent determination as to whether her testimony was sufficiently believable as to warrant a new trial.
The petitioner further contends that, irrespective of any reference to Valentine, the trial court nonetheless fulfilled its obligation to evaluate the credibility of Greene’s testimony. In support of this assertion, the petitioner first points to that portion of the memorandum of decision in which the trial court responded to the state’s characterization of Greene’s testimony at
Far from definitively establishing that the trial court found Greene to be a believable witness, as the petitioner contends, these portions of its memorandum of decision simply illustrate the court’s conclusion, based solely on the transcript of Greene’s testimony, that she was not incredible. As we stated in Shabazz, such a finding constitutes only the first, or threshold, step in a trial court’s analysis of a petition for a new trial under the fourth prong of the Asherman test. See Shabazz v. State, supra, 259 Conn. 824. The trial court is also required to determine whether the newly discovered evidence is sufficiently credible such that, if admitted in a new trial and reviewed by a second jury together with all of the evidence presented at the original trial, it is likely to produce a different result. Notably absent from the trial court’s memorandum of decision is any finding that might satisfy this additional obligation. Moreover, as we previously have stated, whether the proffered newly discovered evidence surmounts an initial determination of credibility and, thereafter, whether it is sufficiently credible to justify a new trial, must be decided on the basis of the trial court’s own assessment of credibility, not on the type of cold transcript utilized by the trial court in the present case.
The petitioner also points to the trial court’s request that the parties brief the issue of whether it was necessary to hear Greene’s live testimony as evidence that “the court was well aware that it had to make a threshold determination as to the impact of . . . Greene’s evidence.” To the contrary, this request, taken both by
The trial court first touched upon the issue of the witness’ credibility in the context of ruling on an objection to Ullmann’s recitation of what was told to him by Greene in their initial interview. The court stated: “I think this is being offered merely to establish what was said because obviously what was said by this person at any stage of these proceedings is relevant to the issue here, and again, as we discussed in chambers, issues of credibility, truth of what was said, those things may or may not come into play.” (Emphasis added.) Subsequently, at the conclusion of the hearing, the court informed counsel that it would review their briefs together with Greene’s transcript from Valentine’s second trial and notify them as to a date for the presentation of Greene’s testimony, if, in the court’s opinion, such testimony was necessary. In this context, the court stated: “[I]t could well be that the testimony of . . . Greene with cross-examination might satisfy that requirement. It will give me a better sense as to at least what was said. Certainly I can’t assess her demeanor, but as we discussed in chambers, I am not so sure as to the extent I should be getting into that in any event.” (Emphasis added.)
Taken together, these two statements by the trial court reveal its ambivalence regarding whether, and to what extent, it should evaluate Greene’s credibility. Had the court been aware of its obligation in this respect, as the petitioner contends, it would not have expressly referred to the issue in such equivocal terms, noting both that credibility “may or may not come into play,” and that it was “not . . . sure as to the extent” to which it should assess Greene’s demeanor. Moreover, the
Finally, there is no indication in the trial court’s memorandum of decision that it gave any consideration to the heightened standard for granting a new trial based on newly discovered impeachment evidence set forth
The judgment is reversed and the case is remanded for a new trial on the petition.
In this opinion the other justices concurred.
The state appealed from the judgment of the trial court to the Appellate Court, and we transferred the case to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.
General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”
General Statutes § 53a-54a (a) provides: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”
General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”
General Statutes § 53a-55 (a) provides in relevant part: “A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person . . . .”
General Statutes § 52-270 (a) provides: “The Superior Court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a nonsuit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases. The judges of the Superior Court may in addition provide by rule for the granting of new trials upon prompt request in cases where the parties or their counsel have not adequately protected their rights during the original trial of an action.”
General Statutes § 54-96 makes the requirements set forth in General Statutes § 54-95 (a) applicable to the state, and provides: “Appeals from the rulings and decisions of the Superior Court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the Supreme Court or to the Appellate Court, in the same manner and to the same effect as if made by the accused.”
Thereafter, we affirmed Valentine’s convictions. State v. Valentine, 255 Conn. 61, 78, 762 A.2d 1278 (2000).
In Asherman v. State, supra, 202 Conn. 434, we stated that a court may grant a petition for a new trial “when it is satisfied that the evidence offered in support thereof: (1) is newly discovered such that it could not have been discovered previously despite the exercise of due diligence; (2) would be material to the issues on a new trial; (3) is not cumulative; and (4) is likely to produce a different result in the event of a new trial.” Shabazz v. State, supra, 259 Conn. 820-21.
We recognize that neither the petitioner nor the state alerted the trial court to this procedural lacuna, perhaps because of the uncertainty in our prior case law, which Shabazz has now resolved. Furthermore, of course, the trial court did not have the benefit of our decision in Shabazz when it ruled on the petition.
The petitioner points to the trial court’s next statement, namely, that “[t]he jury must make the ultimate decision as to the weight to give [Greene’s] testimony,” as indicating, not that the court failed to make an independent determination regarding credibility, but rather that the court recognized the inherent difference between weight and credibility. We disagree. Coupled with the court’s acknowledgment that it did not have the benefit of Greene’s live testimony so as to evaluate her credibility, this statement further reveals the court’s misconception that it was solely the function of the jury on retrial, rather than the court in ruling on the petition, to evaluate whether the testimony was worthy of belief. In placing the burden of evaluating Greene’s testimony on the shoulders of the jury on retrial, the trial court improperly abdicated its responsibility to make the initial, requisite credibility determination outlined in Shabazz.