190 Conn. 715 | Conn. | 1983
The defendant was found guilty of being a youthful offender pursuant to General Statutes § 54-76g
There is no significant dispute about the facts which the trial court might reasonably have found from the evidence.
On March 3, 1978, state police officer John Della Volpe interviewed Douglas Herriott, who had been arrested by the Seymour police department and was being questioned about local burglaries in some of which guns had been taken. Herriott disclosed that he had a friend, the defendant, who had said that he possessed a sawed-off shotgun. The officer requested Herriott to attempt to obtain this gun.
The next day Herriott went to the defendant, whom he had known for about three years, and asked to borrow the sawed-off shotgun which the defendant had mentioned previously. The defendant gave him a white plastic bag that contained the gun, disassembled into three parts and wrapped in a paper sack. As a result
On March 21, 1978, Della Volpe, who had learned from a computer check that the gun was reported to have been stolen in Kentucky,
At the barracks Della Volpe measured the double barrel of the shotgun and found it to be sixteen inches in length.
In assailing the sufficiency of the evidence to support his convictions for theft of a firearm and possession of a sawed-off shotgun the defendant relies upon several grounds.
A
“A person is guilty of stealing a firearm when, with intent to deprive another of his firearm or to appropriate the same to himself or a third party, he wrongfully takes, obtains or withholds a firearm, as defined in subdivision (19) of section 53a-3.”
The state concedes that there is no direct evidence of the defendant’s participation in the theft of the shotgun from the Yarmosh residence. It refers to the permissible inference that one having unexplained possession of recently stolen property is the thief. See State v. Daley, 189 Conn. 717, 723, 458 A.2d 1147 (1983); State v. Kas, 171 Conn. 127, 130, 368 A.2d 196 (1976); State v. Palkimas, 153 Conn. 555, 558, 219 A.2d 220 (1966). As it concedes, however, the lapse of almost a year between the theft and the time when the defendant was known to have the gun in his possession makes this principle of doubtful applicability.
The state also contends that, if the defendant acquired the shotgun under circumstances which in
B
The defendant claims three deficiencies in the evidence relating to the finding of his possession of a
Della Volpe testified that he did not measure the barrel of the shotgun when he first saw it at Herriott’s home and that he did not then suspect that it was an illegal weapon. He also testified that two or three weeks afterward, when Herriott delivered the gun to him at the barracks, it appeared to be in the same condition as when he originally observed it. He said that he measured the barrel after it came into his possession and found that it was sixteen inches in length. On cross-examination he admitted that in his affidavit for an arrest warrant he had stated that the barrel measured seventeen inches. He also conceded that he had not measured the barrel recently and could not say what its present length was. On redirect he said that it appeared to be in substantially the same condition as when he measured it. On recross-examination he did not know whether the barrel had been seventeen or eighteen inches long, nor did he know its length on the day of trial. We are not convinced that the inconsistencies in the testimony of this witness rendered it so incredible as a matter of law that the trier could not find the essential fact that the shotgun barrel measured less than eighteen inches, as is necessary for a violation of § 53a-211 (a). The shotgun itself was made an exhibit
The claims of the defendant that the barrel was not properly identified and that the three shotgun pieces in the bag received from Herriott may not have been parts of the same weapon completely ignores the testimony of the owner, Yarmosh, who separately identified each component, and of Della Volpe, who found the same serial number on each. Yarmosh said that he had made the stock and that his nephew had carved the representation of a pheasant which appeared thereon. He had made the firing pin and firing pin holders. He also recognized the barrel, although he estimated that it had been shortened about ten inches since the time of the burglary. He said it was a Damascus steel barrel and that it would be extremely difficult to find another barrel to fit the gun. The gun “was pretty close to being in the antique class.” Della Volpe’s testimony that the same serial number was found on the barrel, the check-plate and the stock was never challenged. Its truthfulness was, of course, readily verifiable because of the availability of the shotgun itself as an exhibit. He also testified that when he assembled the gun it worked perfectly.
We conclude that there was ample evidence to support the finding of the trial court that the defendant had possessed a sawed-off shotgun in violation of General Statutes § 53a-211 (a).
With respect to the admission of the shotgun into evidence as an exhibit, the defendant raises three claims: (1) that there was insufficient proof of a connection between the defendant and the shotgun as well as of its chain of custody at the time it was admitted; (2) that this deficiency was not cured by evidence produced later in the trial; and (3) that the state’s offer of proof regarding this exhibit restricted its use to the charge of larceny in the third degree which was subsequently dismissed.
The first witness for the state, Frank Yarmosh, testified that his entire gun collection was taken in a burglary which occurred on March 24, 1977. On May 8, 1978, he was shown a gun in the hands of the state police which he recognized as his stolen shotgun. At the trial he testified that an exhibit marked for identification was his shotgun, mentioning his fabrication of the stock and firing pin holders, as well as the shortening of the barrel since the time of the theft. The state at this point offered the shotgun as a full exhibit. The defendant objected that there was no evidence (1) that he had ever been involved with the gun; or (2) that the exhibit was in the same condition as when he had allegedly possessed it. The court conceded there would have to be a tie-up later between the exhibit and the defendant but, nevertheless, admitted it into evidence.
It is not unusual to admit an exhibit into evidence before its relationship to the issues of a case has been established. See State v. Ferraro, 160 Conn. 42, 44, 273 A.2d 694 (1970); Antel v. Poli, 100 Conn. 64, 72, 123 A. 272 (1923); Tait & LaPlante, Handbook of Connecticut Evidence § 3.4 (d). This procedure may expedite the trial, and it is ordinarily not prejudicial because the exhibit may be stricken if the necessary evidentiary
The facts we have narrated in discussing the defendant’s claim that his conviction is unsupported by the evidence satisfy adequately the chain of custody requirement. We are not aware of any deficiency in the proof necessary to establish that the exhibit was the shotgun stolen from the Yarmosh residence. Our conclusion, however, that the defendant’s involvement in any larceny was not demonstrated, renders superfluous any inquiry concerning the custody of the gun prior to the time when Herriott received it from the defendant.
“There is no hard and fast rule that the prosecution must exclude or disprove all possibility that the article or substance has been tampered with; in each case the trial court must satisfy itself in reasonable probability that the substance had not been changed in important respects.” State v. Johnson, 162 Conn. 215, 232, 292 A.2d 903 (1972). We believe that standard was met with respect to the shotgun exhibit. Herriott testified that, when he asked to borrow the sawed-off shotgun, a weapon which the defendant had previously said he possessed, he received from the defendant a bag containing the gun disassembled into three pieces. Herriott never opened the bag until after Della Yolpe came to his house, when the officer removed the three components and assembled the shotgun. Della Volpe testified that on that occasion he recorded the serial number which appeared on each of the three pieces of the shotgun. He disassembled the gun and put the
The defendant stresses the fact that Della Volpe did not notice that the barrel of the shotgun had been shortened when he first saw it, raising the possibility that this might have occurred during the period of about two weeks while Herriott retained the weapon. The issue was one of credibility to be resolved by the trial court. The court could reasonably have believed Herriott’s testimony that the defendant had initially mentioned having a sawed-off shotgun, that he received the bag containing the disassembled gun from the defendant in response to his request for such a weapon, and that he never opened the bag, kept it in a locked room and delivered it to the police in the same condition in which he had received it.
The additional claim of the defendant, that the shotgun was introduced only with reference to the third degree larceny charge, later dismissed, is not supported by the transcript. The state did mention larceny in the third degree as “one of the claims” and did declare that the exhibit was being offered to show that it was a gun stolen in the burglary of the Yarmosh house. The
There is no error in the admission of the shotgun as an exhibit.
Ill
The defendant challenges another evidentiary ruling, that a statement given to the police by Douglas Herriott was admissible to corroborate his testimony. During his direct testimony Herriott said he could not remember the specific dates of his conversations with Della Volpe and other pertinent events. After unsuccessfully attempting to refresh the recollection of the witness by the use of his signed statement to the police, the state offered that document as past recollection recorded in order to prove the dates of his two conversations with Della Volpe and the date when he received the gun from the defendant. The court admitted the statement only for the purpose of proving those three dates. On appeal the defendant does not question this ruling.
During his cross-examination of Herriott, the defendant attacked his credibility upon the grounds that he had suffered mental blackouts during the period of the events he had testified about as a result of a medication he was taking, that he had been convicted of a felony for which he had served time in jail, that other criminal charges were pending against him and that
Although the general rule is that prior consistent statements of a witness are inadmissible, we have recognized exceptions where there is testimony of his prior inconsistent statement or where he has been impeached on the basis of bias, motive or interest. State v. Dolphin, 178 Conn. 564, 568-70, 424 A.2d 266 (1979). Where the prior consistent statement becomes admissible, it may not be used as substantive evidence of the facts contained therein, but only to rehabilitate the credibility of the witness which has been attacked. Id., 570. For this exception to apply it must be shown that the prior consistent statement was made prior to the time when the alleged bias, motive, or interest arose. Id., 571. We have indicated that a prior statement to the police is not admissible for rehabilitation of a witness alleged to have a motive to falsify where the same motive was also present at the time of the statement. State v. Brown, 187 Conn. 602, 690n, 447 A.2d 734 (1982). In this case the state has failed to establish that any of the circumstances indicating bias, which were elicited during cross-examination as detrimental to Herriott’s credibility, did not also exist in the same degree at the time of his statement to the police. Since the testimony suggests no change in the interest or motivation of the witness from the time when he was first contacted by the police until the day of trial, we must reject the state’s claim that the statement was admissible to refute the inference of recent contrivance on the part of the witness.
Since the defendant took no exception to the ruling, as required by Practice Book § 288, he is not entitled to appellate review of this ruling. In the event that a new trial should become necessary as a result of the proceedings we order in part IV of this opinion, however, the same problem may arise again. Even though the trial court did properly limit the use of the statement to the credibility of the witness, prejudicial material, such as unrelated misconduct of an accused, not having substantial probative value upon some issue in the case should be excluded. See State v. Williams, 190 Conn. 104, 108-109, 459 A.2d 510 (1983); State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982); State v. Loughlin, 149 Conn. 21, 26, 175 A.2d 367 (1961). Judges are not wholly immune from the influence which totally irrelevant and seriously prejudicial evidence may have upon a decision. Our rules of practice prohibit the admission of evidence subject to objection, which may later be stricken, unless the parties consent. Practice Book § 289. At any future trial of this case the portion of the statement pertaining to other
IY
The claim that the court erred in denying the defendant access to the notes and the report of Della Volpe after his direct testimony was completed is based upon Practice Book § 752, which provides as follows: “After a witness called by the state has testified on direct examination at trial, the judicial authority shall, on motion of the defendant, order the state to produce any statement of the witness in the possession of the state or its agents, including state and local law enforcement officers, which statement relates to the subject matter about which the witness has testified.”
Before commencing his cross-examination of Della Volpe the defendant asked for any notes or statements he had made regarding the incident. The state responded, somewhat ambiguously, that it had no written statement of the officer, but that there was a police report which was not under oath and which was “his work product.” The court denied the defendant’s request and an exception to the ruling was taken. During his cross-examination Della Volpe testified that he had made some rough notes of the incident which were available though he did not have them on his person. A further request for these notes was denied.
On appeal the state concedes that the grounds upon which it resisted production of the police report and the notes at trial, the absence of an oath and “work product,” were ill-conceived. Before us the state contends (1) that a police officer’s rough notes do not qualify as a “statement” as that term is defined by
We have already decided that the provisions of § 752 requiring the production of a statement of a witness who has testified for the state are mandatory. State v. Gonzales, 186 Conn. 426, 432, 441 A.2d 852 (1982). Our rules of practice on this subject are substantially similar to the federal Jencks Act, 18 U.S.C. § 3500; id., 431 n.3; State v. Shaw, 185 Conn. 372, 386-87, 441 A.2d 561 (1981); and, in respect to the duty of the state to disclose, similar to Federal Rules of Criminal Procedure, rule 26.2. See 2 Wright, Federal Practice and Procedure: Criminal 2d (1982) §§ 417, 436 through 439. The federal courts have held any “work product” privilege restricting the availability of a statement to be waived for matters covered by the testimony of an investigator once he becomes a witness. United States v. Nobles, 422 U.S. 225, 239, 95 S. Ct. 2160, 45 L. Ed. 2d 141 (1975); see Goldberg v. United States, 425 U.S. 94, 101-102, 96 S. Ct. 1338, 47 L. Ed. 2d 603 (1976). Accordingly, we are disinclined to impose any “work product” limitation upon the broad scope of our rules for discovery in criminal cases.
In this case we are dealing with a request for material, not to be used in cross-examining some witness who talked with Della Volpe, but for the purpose of questioning him, the author. To the extent that his direct testimony included the content of his conversations with other persons, his notes of them would be pertinent to his cross-examination. If his testimony did not relate to those conversations, those notes would be subject to excision pursuant to § 752 as not related to his direct testimony.
Our determination that the trial court should have ordered production of the police report pursuant to § 752 and should also have conducted a hearing to determine whether any of the notes made by Della Volpe were subject to production because he had adopted or approved them as his own observations does not automatically entitle the defendant to a new trial. State v. Gonzales, supra, 435; see Goldberg v. United States, supra, 98-99; Campbell v. United States, supra, 98-99; accord Palermo v. United States, supra, 354-55. Production under § 752 is often preliminary to in cambera inspection pursuant to § 753 for the purpose of excising portions of the documents not related to the subject matter of the testimony of the witness. If it is decided that the defendant was entitled to some portions of the requested items, a further determina
We conclude that the case must be remanded to the judge who presided at the trial so that he can now con-duet the further proceedings which this opinion has outlined and which are more particularly detailed in State v. Gonzales, supra, 435-36.
The case is remanded for further proceedings in accordance with this opinion.
In this opinion the other judges concurred.
“[General Statutes] Sec. 54-76g. judgment of youthful offender status. If the defendant enters a plea of guilty to the charge of- being a youthful offender or if, after trial, the court finds that he committed the acts charged against him in the information or complaint, the court shall adjudge the defendant to be a youthful offender and the information or complaint shall be considered a nullity and of no force or effect.”
“[General Statutes] Sec. 53a-212. stealing a firearm, class d felony, (a) A person is guilty of stealing a firearm when, with intent to deprive another of his firearm or to appropriate the same to himself or a third party, he wrongfully takes, obtains or withholds a firearm, as defined in subsection (19) of section 53a-3.”
The substituted information charged the defendant in the first count with having committed “the crime of YO (having committed theft of firearm P.A. 77-217) at Oxford on or about 3/24/77 in violation of General Statute No. 54-76b.” Public Acts 1977, No. 77-217, now designated General Statutes § 53a-212, first became effective on October 1, 1977. The alleged date of the offense, March 24, 1977, was the date on which the owner of the shotgun involved discovered that his entire gun collection hád been stolen. No claim
“[General Statutes] Sec. 53a-211. possession of a sawed-off shotgun or SILENCER: CLASS D felony, (a) A person is guilty of possession of a sawed-off shotgun or a silencer when he owns, controls or possesses any sawed-off shotgun that has a barrel of less than eighteen inches or an overall length of less than twenty-six inches or when he owns, controls or possesses any silencer designed to muffle the noise of a firearm during discharge.
“(b) The provisions of this section shall not apply to persons, firms, corporations or museums licensed or otherwise permitted by federal or state law to possess, control or own sawed-off shotguns or silencers.
“(c) Possession of a sawed-off shotgun or a silencer is a class D felony.”
This charge was dismissed because the state offered no evidence of the value of the shotgun which was the subject of the larceny. The state did not claim that the defendant should be found guilty of the lesser included offense of larceny in the fourth degree in violation of General Statutes (Rev. to 1981) § 53a-125. State v. Scielzo, 190 Conn. 191, 205, 460 A.2d 951 (1983); State v. Coston, 182 Conn. 430, 436, 438 A.2d 701 (1980); State v. Saracino, 178 Conn. 416, 421, 423 A.2d 102 (1979); State v. Grant, 177 Conn. 140, 146-47, 411 A.2d 917 (1979).
No question has been raised about the propriety of imposing more than one sentence where a defendant has been adjudicated a youthful offender for several criminal violations. See General Statutes § 54-76j. Since the sentences in this case were both identical and concurrent, the practical effect was the same as if a single sentence had been imposed.
In this case, judgment of conviction was rendered on October 18,1978, and the trial court filed a finding on May 16, 1979. “Concerning trials to the court where the trial judge filed a finding prior to July 1, 1979, the rules for the supreme court effective July 1, 1978, apply.” Practice Book § 3166. The defendant has complied with those rules by filing an assignment of errors. See Practice Book § 3060W. Our statement of the facts includes some of the corrections in the finding requested by the defendant which the state does not appear to contest.
Officer Della Volpe later found out that although the serial number matched that of a gun stolen in Kentucky, that gun was of a different manufacturer.
General Statutes § 53a-211 (a), the text of which is set forth in footnote 1, supra, refers to “any sawed-off shotgun that has a barrel of less than eighteen inches or an overall length of less than twenty-six inches.”
General Statutes § 53a-3 (19) defines “firearm” to mean “any sawed-off shotgun, machine gun, rifle, shotgun, pistol, revolver or other weapon, whether loaded or unloaded from which a shot may be discharged.”
“[General Statutes] Sec. 53a-119. larceny defined. A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes, but is not limited to: ... (8) Receiving stolen property. A person is guilty of larceny by receiving stolen property if he receives, retains, or disposes of stolen property knowing that it has probably been stolen or believing that it has probably been stolen, unless the property is received, retained or disposed of with purpose to restore it to the owner. . . .”
The defendant testified at the trial that he never had possession of the shotgun. The witness Herriott testified that the defendant had informed him that he had a sawed-off shotgun, but gave no information concerning the defendant’s acquisition of the gun.
“[Practice Book] Sec. 749. —definition of statement
“The term ‘statement’ as used in Sec. 748 means:
“(1) A written statement made by a person and signed or otherwise adopted or approved by him; or
“(2) A stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by a person and recorded contemporaneously with the making of such oral statement.”
In holding that Practice Book § 752 applies only after a witness has testified at a trial and is inapplicable to a pretrial hearing on a motion to suppress, we assumed that the police report made by a witness was discoverable under the rule. State v. Davis, 175 Conn. 250, 251-52, 397 A.2d 1347 (1978); State v. Hoffler, 174 Conn. 452, 460, 389 A.2d 1257 (1978).
“Mr. Durham: Your Honor, the State has no written statement from— that Trooper Della Volpe has filed in this case. I believe there is a police report, but it is not under oath and it is Ms work product. I don’t think defense counsel is entitled to that.”
“[Practice Book] Sec. 753.--delivery and excision of STATEMENTS
“If the entire contents of a statement requested under Sec. 752 relate to the subject matter of the testimony of the witness, the judicial authority shall order the statement to be delivered directly to the defendant or his counsel for his examination and use. If the prosecuting authority claims that any statement ordered to be produced under Sec. 751 contains matter which does not relate to the subject matter of the testimony of the witness, the judicial authority shall order the prosecuting authority to deliver
