221 Conn. 93 | Conn. | 1992
After a jury trial, the defendant, LeVern Grant,
On September 28,1989, at approximately 10:15 p.m., Paul Albright was fatally wounded by a gunshot on or near the premises located at 83 Hallock Street in New Haven. Subsequent investigation of the shooting led the New Haven police to Kevin Billie and Rodney Rice. Billie and Rice gave statements to the police on October 1, 1989, and October 3, 1989, respectively. The statements, which were tape-recorded and transcribed, implicated the defendant in the Albright shooting. Relying on the statements of Billie and Rice and other information developed in the course of their investigation, the police arrested the defendant on October 21,1989, and charged him with the murder of Albright.
A probable cause hearing was conducted on December 7,1989, at which both Billie and Rice testified. Billie and Rice admitted having given statements to the police
The defendant’s trial commenced on October 9,1990. When Rice was called to testify,
I
The defendant first claims that the trial court improperly admitted the out-of-court tape-recorded statements
The substance of the statements was as follows. Billie told the police that the defendant told him the day before the shooting that he planned to shoot rival drug dealers who worked for “green-eyed Dave,” and that he intended to “take [them] out” from the backyard across the street. Billie stated that he knew that Albright worked for “green-eyed Dave.” Rice told the police that he was at the defendant’s girlfriend’s house near the scene of the crime shortly after the shooting. He observed the defendant in possession of an empty .38 automatic handgun. Rice stated that the defendant told him that he had shot Albright from across the street and then “jumped over fences and stuff” and ran to his girlfriend’s house.
The defendant relies on State v. Green, supra, 397-98, in which the Appellate Court construed this court’s holding in State v. Whelan, supra, 753. In Green, the Appellate Court concluded that, because “[the witness] was not at the scene of the crime and did not personally know whether the defendant participated in the
In State v. Whelan, supra, we reviewed our continued adherence to the traditional rule prohibiting the use as substantive evidence of a prior inconsistent out-of-court statement of a nonparty witness. We rejected the traditional view and joined the growing number of jurisdictions that allow prior inconsistent statements as substantive evidence when the declarant takes the stand and is available for cross-examination. Id., 751-52. In deciding to abandon the common law rule, we relied on the assessment of various legal scholars and commentators that the reasons behind the rule do not apply when the witness testifies and is available for cross-examination: “[W]hen the declarant is available for cross-examination the jury has the opportunity to observe him as he repudiates or varies his former statement. The cross-examination to which a recanting witness wall be subjected is likely to be meaningful because the witness will be forced either to explain the discrepancies between the earlier statements and his present testimony, or to deny that the earlier statement was made at all. ‘If, from all that the jury see of the witness, they conclude that what he says now is not the truth, but what he said before, they are none the less deciding from what they see and hear of that person and. in court.’ . . . The jury can, therefore, determine whether to believe the present testimony, the prior statement, or neither. . . . Quite simply, when the declarant is in court, under oath, and subject to cross-examination before the factfinder concerning
The defendant, relying on State v. Green, supra, asserts that the statements of Billie and Rice do not satisfy the requirement set forth in Whelan that the declarant have “personal knowledge of the facts stated.” We disagree. We conclude that the “personal knowledge” prong of the Whelan rule does not require that the declarant have witnessed the commission of the crime that is the subject of the prior inconsistent written or recorded statement.
The following conditions under which the statements were given support the trial court’s finding of reliability. First, the statements were contemporaneous tape
As to Billie’s personal knowledge of the circumstances surrounding the shooting, the trial court, at the probable cause hearing, found the following facts. Billie knew that “green-eyed Dave” was a drug dealer and that Albright, Gregory Grant and Grant’s cousin worked for “green-eyed Dave.” Billie also knew that Albright, Gregory Grant and his cousin sold drugs from the premises at 83 Hallock Street, the scene of the shooting. Billie had known the defendant for around two years and knew that for approximately two months before the shooting the defendant had sold drugs in front of a restaurant across from 83 Hallock Street. Billie was aware of the feud among drug dealers in the area around 83 Hallock Street. Billie spoke with the defendant the day before the shooting. The defendant indicated that he was unhappy about “green-eyed Dave’s boys” selling drugs in the Hallock Street area and that “he was gonna take somebody out.” Billie observed the defendant carrying a loaded gun the day
The trial court, at the probable cause hearing, found that Rice’s statement was also based on personal knowledge of certain facts relevant to the shooting. Rice was not present when the shooting occurred but arrived at the scene shortly thereafter, noticed police cars in the area and discovered that Albright had been shot. Rice saw the defendant, who was Rice’s cousin, a short time after the shooting at the apartment of the defendant’s girlfriend, which was near the crime scene. Rice knew that prior to the shooting the victim had had some problems with other people and had pulled a gun on someone. Rice observed the defendant at his girlfriend’s apartment holding a silver and black .38 automatic handgun with an empty clip.
Relying on the foregoing, the trial court, at the probable cause hearing, concluded that Billie and Rice had personal knowledge of certain facts pertaining to the shooting and that their statements were reliable.
II
The defendant next claims that the probable cause hearing was fatally flawed by the admission of the tape-recorded statements of Billie and Rice as substantive evidence and, therefore, that the trial court improperly made a finding of probable cause. This court is empowered to review the adequacy of the trial court’s determination of probable cause. State v. Mitchell, 200
Ill
The defendant also claims that the trial court improperly instructed the jury that it could draw an adverse inference from the defendant’s failure to produce certain witnesses. At trial, the defendant’s girlfriend, Rozelle Brown, testified as follows in support of the defendant’s alibi defense. On the day of the shooting the defendant arrived at Brown’s apartment at 2:30 p.m. and remained there until 1 a.m. They ate dinner at about 5 p.m. Brown heard gunshots at around 10:30 p.m. The defendant was sitting on the couch when the gunshots were fired. Brown heard sirens and saw emergency personnel in the street. The defendant yelled from the window and asked what had happened.
On cross-examination, Brown testified that her mother, Christine Bordeaux, her mother’s boyfriend, Willie Tompkins, and her sister, Cassandra Bordeaux, had also been in her apartment on the night of the shooting. She testified that her mother and Tompkins had been asleep at the time of the shooting and her sister had just gone to bed. Brown’s mother was in the courtroom during Brown’s testimony, her sister was at home, and Tompkins was reachable by phone, according to Brown.
The defendant did not call Brown’s mother, sister or Tompkins to the stand. The state requested that the trial court give the jury an adverse inference instruction pursuant to Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960), because the defend
In Secondino v. New Haven Gas Co., supra, 675, this court stated: “ 'The failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party’s cause.’ ” The Secondino rule applies to criminal prosecutions. State v. Watley, 195 Conn. 485, 488, 488 A.2d 1245 (1985). Seconding) v. New Haven Gas Co., supra, sets forth a two-pronged test to determine whether an adverse inference can be drawn from the failure of a party to produce a witness: “The witness must be available, and he must be a witness whom the party would naturally produce.” In Secondino, this court defined a witness who would naturally be produced by a party as a person who “by reason of his relationship to that party or to the issues, or both, could reasonably be expected to have peculiar or superior information material to the case which, if
Brown testified that the defendant was sitting on the couch in her apartment at the time of the Albright shooting. Although Brown testified that her mother, sister and Tompkins were not in the room with her and the defendant, she claimed that they were in her apartment at that time. The testimony of several witnesses in support of an alibi defense can hardly be characterized as unimportant or cumulative. State v. Ruiz, 202 Conn. 316, 324-25, 521 A.2d 1025 (1987). Brown’s testimony placed the defendant at her home at the time of the shooting. Brown’s credibility, however, was cast into doubt by her relationship with the defendant, her testimony that she loved him and her admission that she had transcribed and mailed a letter from the defendant to Rice directing him to recant his earlier statement to the police. The defendant’s failure to call Brown’s mother, sister or Tompkins to corroborate, at least in part, Brown’s testimony, especially in light of Brown’s potential bias and the contradictory testimony of several state’s witnesses,
IV
Finally, the defendant claims that the trial court improperly refused to reinstruct the jury, in accordance with the defendant’s request, that certain testimony could be used only for impeachment purposes. At trial, Mario Lawrence testified to the following conversation with Rodney Rice on the night of the shooting. According to Lawrence, Rice said that the defendant had told him that he shot Albright. Rice told
After the jury had retired for deliberations, it requested to rehear certain testimony, including the testimony of Mario Lawrence.
The defendant took no exception to the adequacy of the trial court’s initial instructions to the jury regarding the use of Lawrence’s testimony. Moreover, the jury did not request additional instruction when it asked to rehear Lawrence’s testimony.
The judgment is affirmed.
In this opinion the other justices concurred.
According to the clerk’s office, the correct spelling of the defendant’s first name is “LeVern,” as opposed to “Láveme,” which appears in the judgment.
“[General Statutes] Sec. 53a-54a. murder, (a) 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.
“(c) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony.”
Billie did not testify at the trial.
We need not consider separately the admission at the trial of the transcript of Rice’s tape-recorded statement as a past recollection recorded, since we conclude that the tape recordings were properly admitted as substantive evidence, and, thus, any error in the admission of the transcript was harmless.
Our decision in State v. Almeda, 211 Conn. 441, 560 A.2d 389 (1989), supports the interpretation we adopt today. In State v. Almeda, supra, 451-52, the defendant challenged the admission for substantive purposes 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), of a witness’ prior inconsistent statement on the basis that the statement was not sworn. The witness had stated to police that she heard the defendant directly threaten the victim and the defendant then told her that he would kill the victim if the victim touched the defendant’s girlfriend. State v. Almeda, supra, 451. Noting that our holding in Whelan did not require an oath for the admission of
This reasoning applies to tape-recorded statements as well. State v. Alvarez, 216 Conn. 301, 313, 579 A.2d 515 (1990); State v. Whelan, 200 Conn. 743, 754 n.9, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).
As we stated in State v. Whelan, 200 Conn. 743, 750, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986): “[P]rior statements are, necessarily, made closer to the event in question, when memories are fresher and when there is less likelihood that the statement is the product of corruption, false suggestion, intimidation or appeals to sympathy.”
At the trial, the state introduced into evidence seven spent shell casings that had been ejected from a .38 automatic handgun that the police had found across the street from the scene of the shooting.
The trial court, Gormley, J., upon admitting the statements as substantive evidence at the probable cause hearing, stated: “[T]he court is not repudiating the decision in the Green case [State v. Green, 16 Conn. App. 390, 547 A.2d 916, cert. denied, 210 Conn. 802, 553 A.2d 616 (1988)], I just feel that the circumstances here are different than the circumstances in the Green case. This court is looking at this thing on the overall question as to the reliability of the circumstances surrounding the giving of these two statements, one of which was given the day before the shooting by this defendant, who indicated he was going to do something like what happened and then the day of the shooting and within a reasonably short time,
Our conclusion applies with equal force to the admission of Rice’s prior inconsistent statement for substantive purposes 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), at the trial when Rice again denied the truthfulness of his earlier statement. For the reasons stated in footnote 5, supra, we need not address the admission of Rice’s transcribed statement at the trial as a past recollection recorded.
The defendant also argued at trial that the evidence failed to show that Brown’s sister and Tompkins were available to testify. Since the defendant contends in his brief on appeal that all three witnesses were equally available to both the defense and the prosecution, he has effectively abandoned the claim made at trial.
Gregory Grant testified that the defendant was on the street between approximately 5 and 6 p.m. on the night of the shooting and that he had threatened Grant and the victim. Sandy Echols, who had gone to school with the defendant, positively identified the defendant as having been on the street in the immediate vicinity of the shooting twenty minutes prior to its occurrence.
We note, moreover, that the defendant advances this argument in a footnote, a practice we have specifically disapproved of in prior cases. See State v. Ruscoe, 212 Conn. 223, 241 n.9, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990).
The jury also requested to rehear the testimony, or portions thereof, of Gregory Grant, police officer Francisco Ortiz, Rodney Rice, Sandy Echols and Rozelle Brown.
Under Practice Book § 864, when the jury requests additional instructions after retiring for deliberations, the trial court “shall recall the jury to the courtroom and give additional instructions necessary to respond prop
Practice Book § 863 provides: “If the jury after retiring for deliberations request a review of certain testimony, they shall be conducted to the courtroom. Whenever the jury’s request is reasonable, the judicial authority, after notice to the prosecuting authority and counsel for the defense, shall have the requested parts of the testimony read to the jury.”