46 Conn. App. 610 | Conn. App. Ct. | 1997
Opinion
The defendant, Loew’s Theatres, Inc., appeals from the judgment of the trial court, rendered after a jury trial, in favor of the plaintiff, Travis Falls, in this negligence action. The defendant claims that
The relevant facts are as follows. On May 17, 1991, the plaintiff and two friends, Steven Fasciano and Sean Sant, attended a movie at the defendant’s theatre in the town of Torrington. After the movie concluded, the plaintiff and his friends were leaving the theater through the lobby when they noticed some other teenage boys pointing at them and appearing to talk about them. At that point, the plaintiff, Fasciano and Sant wanted to use the telephone to call for a ride home. Before they were able to use the telephone, however, the ushers instructed the crowd in the lobby, including the plaintiff and his two friends, that they had to leave the theater. Once outside the theater, one of the teenage boys who had been pointing at the plaintiff, Fasciano and Sant approached Fasciano, began arguing with him, and punched him in the face. The plaintiff, who was standing next to Fasciano, was punched by the other boys and, when he went down on his knees to protect himself, was hit several more times in the back of his head and neck. After the fight broke up, the theater personnel escorted the plaintiff and Fasciano into the bathroom to allow them to clean their abrasions.
Subsequently, the plaintiff brought an action alleging that, as a result of the negligence and carelessness of
The defendant claims that the trial court improperly excluded evidence of a witness’ prior inconsistent statement. “It is fundamental that for the purpose of impeaching the credibility of his testimony, a witness may be cross-examined as to statements made out of court or in other proceedings which contradict those made upon direct examination. . . . This is based on the notion that talking one way on the stand, and another way previously, raises a doubt as to the truthfulness of both statements.” (Citations omitted.) State v. Saia, 172 Conn. 37, 45, 372 A.2d 144 (1976). “The impeaching statement may be oral ... or written.” (Citations omitted.) State v. Butler, 207 Conn. 619, 626, 543 A.2d 270 (1988). For the statement to be admissible, “[it] must be substantial and relate to a material matter.” State v. Richardson, 214 Conn. 752, 763, 574 A.2d 182 (1990); see also Drew v. K-Mart Corp., 37 Conn. App. 239, 249, 655 A.2d 806 (1995). “The trial court is vested with wide discretion as to what may be admitted as a prior inconsistent statement for impeachment purposes.” State v. Richardson, supra, 764.
With these principles in mind, we turn to the facts and circumstances relevant to the defendant’s claim. At trial, the plaintiff produced the testimony of his friend, Christian Hudak. Hudak testified on direct examination that on the night of the incident, the plaintiff had asked him if he wanted to go to the movies. Hudak declined but agreed to meet the plaintiff after the movie. Hudak stated that he walked from his house to the theater and stood outside waiting for the movie to conclude. He
On cross-examination, the defendant’s counsel presented Hudak with a two page statement. Hudak confirmed that the statement represented a summary of his account of the incident, which he had given to the plaintiff.
“[Hudak]: No, it doesn’t say that.
“ [Defense Counsel]: Is there anything in that two page document about attempts that you made to get the attention of ushers or security guards?
“[Hudak]: No, it doesn’t. He asked me to be brief and, you know, on the day that I did this, I didn’t want to take up much time.
“[Defense Counsel]: So that didn’t make it into those two pages?
“[Hudak]: Correct.”
Thereafter, the defendant’s counsel offered Hudak’s statement into evidence for impeachment purposes. The plaintiffs counsel objected. The following colloquy occurred: “The Court: There is nothing to impeach him in there.
“[Defense Counsel]: Oh, absolutely there is, Your Honor. There are a number of omissions that I just highlighted.
“The Court: He just explained that.
“ [Defense Counsel]: But I can still offer the document. He can explain it all he wants, but the fact that he left it out of this information that he dictated to [the plaintiff] who transcribed it is indeed an omission.
“The Court: Objection sustained.”
On the basis of our review of Hudak’s in-court testimony and his prior statement, we conclude that the trial court improperly refused to admit Hudak’s statement for impeachment purposes. “Inconsistencies may be shown not only by contradictory statements but also by omissions, in other words, failures to state certain facts. Thus, if the prior statement fails to mention a material fact presently testified to that it should have been natural to mention in the prior statement, the prior statement is sufficiently inconsistent. State v. Reed, [174 Conn. 287, 302-308, 386 A.2d 243 (1978)]. . . . Conversely, inconsistency is also shown by a prior statement’s containing a material fact that is omitted in testimony.” (Citations omitted.) C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 7.24.3, p. 208; see also State v. Whelan, 200 Conn. 743, 748 n.4, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). Here, Hudak’s testimony is inconsistent in both respects. First, his prior statement fails to mention that when the fight broke out he ran into the theater and reported the fight to the theater personnel and that they refused to come to the aid of his friends. Second, Hudak’s in-court testimony failed to include that he turned and began walking away from the plaintiff before the fight started as he indicated in his prior statement. Those inconsistencies are substantial and relate to a material issue in that they go to the core of the plaintiffs claim that the theater personnel refused the plaintiff and his friends entry to the theater and that the theater personnel knew there was a fight occurring on the premises but failed to take action to stop it. The fact that Hudak was able to explain why or how the statements differed does not mean that the prior statement should have been excluded. See State v. Walker, 214 Conn.
The judgment of the trial court is reversed and the case is remanded for a new trial.
In this opinion the other judges concurred.
In light of our reversal of the judgment on the basis of the defendant’s first claim, we need not address the defendant’s remaining claims as we cannot determine that they are likely to occur upon retrial.
The statement stated as follows: “Four years ago this May I witnessed an assault on [the plaintiff]. I went to Loew’s Cinema after a movie to meet [the plaintiff] and Steve Fasciano. When I arrived I saw an usher show people out. In the crowd was [the plaintiff] and Steve. When [the plaintiff] and Steve came out they were nervous. They told me some kids were hassling them. I said that they could come to my house until their rides came to be safe. They said the usher would not let them use the phone and said, ‘Movie’s over. Outside. No hanging out.’—they said their rides were picking them up there. We chatted for a couple of minutes and I started walking away.