243 Conn. 796 | Conn. | 1998
Lead Opinion
Opinion
The defendant, Hartley Hines, also known as Robert “Ricky” Harris, was charged in an information with murder in violation of General Statutes § 53a-54a, and criminal possession of a firearm in violation of General Statutes § 53a-217.
A jury reasonably could have found the following facts. On June 23, 1993, at approximately 9:20 p.m., the victim, Worrell Johnson, also known as Gucci, was shot and killed in the area of Scranton Street and Sherman Street in New Haven. Earlier that day, Mark Reid and Marlon Brown were at the home of the victim when the victim received a telephone call, which he placed on the speaker phone.
Later that evening, Reid, Brown and the victim were on the comer of Whalley Avenue and Norton Street in New Haven when, at approximately 9 p.m., the defendant rode by the comer on a bicycle and threatened the victim. At some point between 9 and 9:20 p.m., the victim rode away on his own bicycle. He was not seen alive again by Reid or Brown. After his initial appearance at the comer, the defendant later returned twice as a passenger in a burgundy Subaru Legacy driven by Tyrone Ashby, also known as Dice. The first time, the defendant told Reid to tell the victim that he was “not playing” and not leaving his “steel,” a slang term for a gun, on the street. The second time, he told Reid that he had just shot the victim and that he intended to leave to get more ammunition and would return to shoot a friend of the victim. Immediately thereafter, Reid and Brown were told by a bystander that the victim had been shot. When Reid went with Brown to the scene of the murder, he observed the defendant and Ashby drive by in Ashby’s car.
While the defendant was in the car with Ashby, he had in his possession a .38 caliber handgun, which was the same caliber as the murder weapon. He also appeared to be intoxicated. When the defendant and Ashby drove past the scene of the shooting, the defendant admitted to Ashby that he had shot at the victim because he was “tired of being messed with” and in retaliation for the victim allegedly having shot at him the previous day. Additional relevant facts will be provided as necessary.
The defendant first claims that the trial court improperly admitted a portion of a statement Reid made to the police, which was consistent with Reid’s later trial testimony, regarding a telephone threat made to the victim on the morning of the murder. The defendant argues that because he neither offered a theory of recent fabrication
The trial court’s ruling on the admissibility of evidence is entitled to great deference. State v. Castonguay, 218 Conn. 486, 497, 590 A.2d 901 (1991); State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985). “[T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” (Citations omitted; internal quotation marks omitted.) State v. Coleman, 241 Conn. 784, 789, 699 A.2d 91 (1997). Moreover, evidentiary rulings “will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. State v. Alvarez, 216 Conn. 301, 306, 579 A.2d 515 (1990) . . . .” (Citation omitted; internal quotation marks omitted.) State v. Beliveau, 237 Conn. 576, 592, 678 A.2d 924 (1996); State v. Colton, 227 Conn. 231, 260, 630 A.2d 577 (1993), on appeal after remand, 234 Conn. 683, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996). This deferential standard is applicable to evidentiary questions involving hearsay,
The defendant’s evidentiary challenge stems from the combined trial testimony of two of the state’s witnesses. Reid testified on direct examination that he was present when the victim received threats over the telephone on the morning of the murder. He also testified regarding the incidents involving the defendant at the comer of Whalley Avenue and Norton Street on the evening of the murder. On cross-examination, the defendant questioned Reid regarding portions of a statement he had made to the police shortly after the murder that were inconsistent with his trial testimony. Specifically, Reid was questioned regarding apparent inconsistencies between his testimony and his prior statement pertaining to events that occurred on the evening of the murder. In that connection, the defendant introduced only those portions of Reid’s prior statement relating to the evening of the murder. He did not question Reid regarding his presence at the time of the threatening telephone call nor did he offer to introduce at that time the portion of Reid’s statement pertaining to that incident. The trial court did permit the state, on redirect examination, to introduce additional portions of Reid’s statement relating to events that had occurred on the evening of the murder that were consistent with Reid’s trial testimony. Those portions of the statement were offered to rehabilitate Reid’s credibility.
Brown, another state’s witness, also testified concerning the events that had occurred on the evening of June 23, 1993, at the comer of Whalley Avenue and Norton Street. His testimony substantially corroborated Reid’s testimony in that regard. On cross-examination, Brown testified that he had been present with the victim at the time the victim received the morning telephone
An out-of-court statement offered to prove the truth of the matter asserted is hearsay and is generally inadmissible unless an exception to the general rule applies. State v. Oquendo, 223 Conn. 635, 664, 613 A.2d 1300 (1992). Prior consistent statements of a witness are generally regarded as hearsay and are not admissible at trial, either for their truth or for the purpose of rehabilitating a witness’ damaged credibility. State v. Valentine, supra, 240 Conn. 412; Thomas v. Ganezer, 137 Conn. 415, 417, 78 A.2d 539 (1951). “The rationale upon
The state argues that Reid’s entire statement was admissible because it had been offered only after Reid was impeached with a prior inconsistent statement and because a claim of recent fabrication implicitly had been made. We find both of the state’s arguments persuasive. The state first argues that the defendant’s cross-examination of Reid relating to only a part of his prior statement, coupled with the defendant’s cross-examination of Brown regarding Reid’s alleged absence at the time of the threatening telephone call on the morning of the murder, combined to leave the jury with the impression that Reid only recently had fabricated his testimony relating to the telephone call. The state maintains that it is irrelevant that the defendant did not expressly pursue a theory of recent fabrication. The
Although we have not directly addressed this issue, we find the analysis and rationale of Commonwealth v. Gore, 262 Pa. Super. 540, 396 A.2d 1302 (1978), persuasive. There, the court concluded that “[i]t is not necessary that the impeachment be explicit, i. e., that an actual allegation of recent fabrication be made, but only that a jury be able to reasonably infer that such is occurring.” Id., 550. In Gore, the victim of a sexual assault identified the defendant as her attacker. On cross-examination, the defendant’s attorney inquired whether the victim had ever seen the defendant prior to the assault. The victim related that she had seen him some five months before the assault when he had helped her bring groceries into her house. At that time, she recalled having commented that she hoped he was not the type to rape her. In his opening statement and through testimony adduced at trial, the defendant raised an alibi defense. From the cross-examination of the victim regarding her prior knowledge of the defendant, combined with the alibi defense, the court concluded that the implication might have been that the victim identified this defendant only because he was “a convenient and identifiable attacker.” Id., 551. The court noted that “[although this was not made explicit, the jury could infer it from the questioning and the forthcoming alibi defense .... While it is a close question as to whether there was indeed a reasonable inference of a recent fabrication . . . we find that the trial judge did not abuse his discretion . . . .” (Citation omitted.) Id.; see also State v. Dictado, 102 Wash. 2d 277, 290, 687 P.2d 172 (1984) (concluding there was implicit theory of recent fabrication because “inferences raised in cross examination
When atrial court reasonably can conclude that there was sufficient evidence to permit a jury to draw an inference of recent fabrication, it may admit a prior consistent statement for rehabilitative purposes. It is irrelevant that a specific argument claiming recent fabrication has not been made. In this case, the trial court’s conclusion that the combined effect of the cross-examinations of Brown and Reid created a possible inference of recent fabrication was reasonable. The defendant’s cross-examination of Brown was directed specifically at proving that Reid had lied when he claimed to have been present at the time of the threatening call. Additionally, the introduction of the parts of Reid’s statement containing information regarding only the evening of the murder might well have left the impression with the jury that the statement made no mention of the telephone call. The jury, therefore, reasonably might have concluded that Reid’s testimony regarding the telephone call was recently fabricated. Accordingly, we cannot say that the trial court abused its discretion by admitting Reid’s prior consistent statement regarding the telephone call that the victim received on the morning of the murder.
Although we conclude that the trial corurt’s reason for admitting Reid’s prior consistent statement relating to the threat was appropriate, we also address the state’s alternative argument. The state asserts that the prior consistent statement regarding the threatening call is an integral part of Reid’s entire statement, only part of which was used by the defendant to impeach Reid’s credibility. The state claims that Reid’s entire
We have not specifically addressed this issue, but the Appellate Court has adopted this rationale. It has concluded on several occasions that a prior statement, portions of which have been used for impeachment purposes, is properly admissible in its entirety because “[t]he trial court . . . has the discretion to allow into evidence consistent portions of a statement from which inconsistencies have been offered by the defense, for purposes of rehabilitation, to place inconsistencies in context so as not to mislead the jury.” State v. Reddick, 15 Conn. App. 342, 349, 545 A.2d 1109, cert. denied, 209 Conn. 819, 551 A.2d 758 (1988); accord State v. Apostle, 8 Conn. App. 216, 244-45, 512 A.2d 947 (1986); State v. Cardona, 6 Conn. App. 124, 130, 504 A.2d 1061 (1986). We find this rationale to be persuasive. When a party has impeached a witness with portions of a statement that are inconsistent with his or her trial testimony, the
In summary, the defendant has not demonstrated that the trial court abused its discretion. The court reasonably could have concluded that Reid’s prior consistent statement regarding the telephone threat was admissible for rehabilitative purposes
II
The defendant next contends that the trial court improperly refused to admit the hearsay testimony of an unavailable witness pursuant to the residual exception to the hearsay rule. The following additional facts are relevant to this issue. The defendant sought to admit a statement that had been given by Kenyan Smith to the police six days after the murder.
The requirements for admission of a hearsay statement under the residual exception are set forth in State v. Sharpe, 195 Conn. 651, 491 A.2d 345 (1985). In Sharpe, we established a two-pronged test requiring (1) that admission of the statement must be a “reasonable necessity” and (2) that the statement itself must be “supported by the equivalent guarantees of reliability and trustworthiness essential to other evidence admitted under the traditional hearsay exceptions.” Id., 664; State v. Oquendo, supra, 223 Conn. 664. The first prong of the test, necessity, “is met when, unless the hearsay statement is admitted, the facts it contains may be lost, either because the declarant is dead or otherwise unavailable, or because the assertion is of such a nature that evidence of the same value cannot be obtained from the same or other sources.” State v. Sharpe, supra, 665, citing 5 J. Wigmore, Evidence (Chadboume Rev. 1974) § 1421. It is undisputed that Smith was unavailable to testify. His evasion of a warrant and the inability of either party to procure his presence in court, despite diligent efforts to do so, was sufficient to establish unavailability. State v. Lopez, 239 Conn. 56, 77, 681 A.2d 950 (1996) (“[a] proponent’s burden is to demonstrate a diligent and reasonable effort, not to do everything conceivable, to secure the witness’ presence”); State v. Frye, 182 Conn. 476, 481, 438 A.2d 735 (1980). Also,
The second prong, reliability, is met “in a variety of situations,” one of which is when “ ‘the circumstances are such that a sincere and accurate statement would naturally be uttered, and no plan of falsification be formed.’ ” State v. Sharpe, supra, 195 Conn. 665. At minimum, the statement must “independently bear adequate indicia of reliability to afford the trier of fact a satisfactory basis for evaluating [its] truth . . . .’’State v. Williams, 231 Conn. 235, 249, 645 A.2d 999 (1994); accord State v. Lapointe, 237 Conn. 694, 737, 678 A.2d 942, cert. denied, 519 U.S. 994, 117 S. Ct. 484, 136 L. Ed. 2d 378 (1996). The hearsay statement that was admitted in Sharpe was deemed sufficiently reliable to be admitted because the declarant was disinterested and previously had been subjected to cross-examination on the substance of the statement.
By contrast, Smith’s statement possessed none of the common indicia of reliability. The court’s decision to exclude the statement rested on several factors. Smith was a friend of the defendant and thus not a disinterested witness. Further, Smith waited until six days after the shooting to contact the police and give the statement in question, leaving ample time to fabricate. Moreover, Smith was evading a warrant mandating that he appear
Ill
In the defendant’s third claim, he argues that the trial court improperly instructed the jury on the issue of flight as evidence of consciousness of guilt.
The defendant requested that the court charge the jury with respect to flight. His request to charge included an instruction that there are many inferences that can be drawn from flight that are consistent with innocence.
The issue of jury instructions relating to a defendant’s flight as consciousness of guilt was addressed in State v. Wright, 198 Conn. 273, 502 A.2d 911 (1986).
The defendant acknowledges the strong precedent against his position, but urges this court to overrule that precedent. We have repeatedly rejected this invitation, and the defendant has presented no additional persuasive reason why we should not reject his claim. The trial court’s instruction on flight was virtually identical to that upheld in Freeney.
Finally, the defendant requests, notwithstanding the absence of a constitutional violation, that we invoke our supervisory powers to promulgate a rule precluding any jury instruction on flight that does not include possible innocent explanations. He argues that the significance of flight is best left to oral argument and that jury instructions are unnecessary and serve only to highlight unfairly an inference in favor of the prosecution. We disagree. Invocation of our supervisory powers would not benefit this defendant. In exercising our supervisory powers “we have frequently given only prospective effect to changes based strictly on policy considerations that do not carry constitutional implications. See, e.g., Bennett v. Automobile Ins. Co. of Hartford, 230 Conn. 795, 806, 646 A.2d 806 (1994); State v. Patterson, 230 Conn. 385, 397, 645 A.2d 535 (1994); State v. Holloway, 209 Conn. 636, 645-46, 553 A.2d 166, cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989); State v. Vilalastra, 207 Conn. 35, 40, 540 A.2d 42 (1988).” State v. Troupe, 237 Conn. 284, 305, 677 A.2d 917 (1996).
More importantly, however, we do not consider this an appropriate case for the exercise of our supervisory powers. See Practice Book § 4183. “ ‘[0]ur supervisor authority is not a form of free-floating justice, untethered to legal principle.’ ” State v. Pouncey, 241 Conn.
A blanket rule governing flight instructions would not serve the narrow puipose that our supervisory powers are intended to further. The flight instruction given did not foreclose this defendant’s right to a trial by an impartial jury, nor is such an instruction likely to do so in the future. As we have stated previously, flight,
IV
The defendant finally argues that the trial court’s instruction on reasonable doubt was improper. Notwithstanding our precedent to the contrary, he contends that an instruction that “reasonable doubt is a real doubt, an honest doubt,” and is not “doubt which is raised by the ingenuity of counsel or by a juror and unwarranted by the evidence” deprived him of his constitutional rights to effective assistance of counsel and to present a defense, and impermissibly reduced the state’s burden of proof. We are unpersuaded.
The defendant did not request a charge on reasonable doubt, and he also failed to object to the reasonable doubt instruction given by the trial court. He seeks review, however, pursuant to State v. Golding, 213 Conn. 233, 239, 567 A.2d 823 (1989), or the doctrine of plain error. We recently have revisited the limitations on the right to review under Golding of an unpreserved claim with respect to a jury instruction challenge. In State v. Dash, 242 Conn. 143, 151, 698 A.2d 297 (1997),
As recently as State v. Taylor, 239 Conn. 481, 504-505, 687 A.2d 489 (1996), this court rejected the defendant’s challenge to the language complained of by the defendant as a constitutional violation under Golding or as plain error.
“It is well settled that a jury instruction is to be examined in its entirety, and that the test to be applied is whether the charge as a whole presents the case to
The judgment is affirmed.
In this opinion NORCOTT, KATZ and MCDONALD, Js., concurred.
General Statutes § 53a-54a provides: “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 aperson 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.
“(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a) of this section, on the question of whether the defendant acted with intent to cause the death of another person.
“(c) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony or murder under section 53a-54d.”
General Statutes § 53a-217 provides: “Criminal possession of a firearm or electronic defense weapon: Class D felony, (a) Aperson is guilty of criminal possession of a firearm or electronic defense weapon when he possesses a firearm or electronic defense weapon and has been convicted of a capital felony, a class A felony, except a conviction under section 53a-196a, a class B felony, except a conviction under section 53a-86, 53a-122 or 53a-196b, a class C felony, except a conviction under section 53a-87, 53a-152 or 53a-153, or a class D felony under sections 53a-60 to 53a-60c, inclusive, 53a-72a, 53a-72b, 53a-95, 53a-103, 53a-103a, 53a-114, 53a-136 or 53a-216. For the purposes of this section, ‘convicted’ means having a judgment of conviction entered by a court of competent jurisdiction.
“(b) Criminal possession of a firearm or electronic defense weapon is a class D felony, for which two years of the sentence imposed may not be suspended or reduced by the court.”
General Statutes (Rev. to 1997) § 51-199 (b) provides in relevant part: “The following matters shall be taken directly to the Supreme Court . . . (3) an appeal in any criminal action involving a conviction for a capital felony, class A felony, or other felony, including any persistent offender status, for which the maximum sentence which may be imposed exceeds twenty years . . . .” Public Acts 1997, No. 97-178, § 2, eliminated the right of direct appeal from all convictions except conviction of a capital felony, effective October 1, 1997.
Brown testified that he did not recall hearing any threats and that Reid had not been present at the time of the telephone call. Reid testified that he had been present and had heard the threat.
The defendant asserted that his theory was that Reid was lying on the stand and in his prior statement to the police.
We note that the trial court never expressly stated that it was admitting the statement for rehabilitative purposes owing to the implication of a recent fabrication. The trial court’s commentary on the evidence with which it was concerned, as well as its reliance on the reasoning of State v. Harris, 10 Conn. App. 217, 522 A.2d 323 (1987), which is based, in relevant part, on the recent fabrication exception, lead us to conclude, however, that this was its basis for admitting Reid’s prior statement.
The trial court instructed the jury at the time the evidence was offered that it was to use the prior consistent statement solely for the purpose of evaluating Reid’s credibility, i.e., for rehabilitative purposes, and not for its substance. “[JJurors are presumed to follow the instructions given by the judge.” (Internal quotation marks omitted.) State v. Cooper, 227 Conn. 417, 441, 630 A.2d 1043 (1993). The defendant has presented no evidence to overcome this presumption.
The substance of the statement was that Smith had spoken with the defendant just minutes before the shooting and had seen the victim across the street. He claimed that the defendant was calm when he spoke with him, that the defendant moved away after their conversation ended, that the defendant and the victim exchanged words initiated by the victim, that two shots were fired, that both the defendant and the victim walked away from the scene, and that he did not see any weapons. Smith did not, however, see the actual shooting.
The witness in Sharpe, who was also the declarant, was a neighbor who observed suspicious activity, took note of a license plate and contacted the police after hearing about the crime charged. At trial, the witness could not remember the license plate number he had written down. The court allowed the police officer to testify to the number that the witness had given by using the report in which the call and information were recorded. The witness was on the stand to be cross-examined regarding the statement he had given to the police and was disinterested.
The defendant argues that the trial court, nonetheless, should have admitted the statement “in the interests of justice”; State v. Sharpe, supra, 195 Conn. 666; because Smith is the closest there is to an eyewitness and the only one who can testify to the facts in his statement. See footnote 7 of this opinion. Even if, as the defendant argues, Smith’s statement was the only evidence of its type and was necessary to the defendant’s case, that is an insufficient basis for admission. “The interest of justice” is not an overriding test, separate and distinct from the two-pronged necessity/reliability test established in Sharpe. It is merely the final quaere of a trial court in deciding whether the two-pronged test is satisfied. The ability to meet one prong, even overwhelming, does not allow admission if the other prong cannotbe met. “Even after the declarant is satisfactorily shown to be unavailable, his statement is admissible only if it bears adequate indicia of reliability.” (Emphasis added; internal quotation marks omitted.) State v. Outlaw, 216 Conn. 492, 505, 582 A.2d 751 (1990), quoting Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980). It cannot be said that the interests of justice would be served by admission of an unreliable statement of an interested witness who secreted himself to avoid cross-examination.
The trial court instructed the jury: “Flight, when unexplained, can indicate consciousness of guilt if the facts and the circumstances support it. If you find that the defendant did flee or did hide from the police following the commission of the crimes alleged, you may find that such actions tend to show a consciousness of guilt and you may use that flight and that hiding as evidence, along with all the other evidence in the case in determining whether the defendant has been proven guilty.”
The last scheduled meeting that the defendant kept was on June 22, 1993, the day before the murder. The defendant missed his first scheduled meeting with his parole officer after the shooting, and every meeting thereafter, notwithstanding the parole officer’s repeated attempts to reestablish contact.
The requested instruction also included examples of innocent explanations. It read: “Flight may be motivated by a variety of factors which are fully consistent with innocence. These may include fear of being apprehended, unwillingness to confront the police, or reluctance to appear as a witness.”
The defendant attempts to distinguish Wright, arguing that it was a fact-specific decision that is not binding under the facts of this case. We find no such limitation in the decision and conclude that the cases are not materially distinguishable.
In Freeney, the trial court instructed the jury that “ ‘[fjlight, when unexplained, can indicate consciousness of guilt if the facts and the circumstances
In Taylor we noted that (he “ingenuity of counsel” language, taken alone, might be problematic, and we suggested that it ought to be avoided
In Taylor, the trial court’s full instruction regarding reasonable doubt was as follows: “ ‘Now, what does that mean, beyond a reasonable doubt. The phrase reasonable doubt has no technical or unusual meaning. We can arrive at the real meaning of the phrase by emphasizing the word reasonable. A reasonable doubt is a doubt which is something more than a guess or surmise. It is not a conjecture or a fanciful doubt. A reasonable doubt is not a doubt which is raised by someone simply for the sake of raising doubts, nor is it a doubt suggested by the ingenuity of counsel or any of the jurors which is notjustified by the evidence or by the lack of evidence. A reasonable doubt is a doubt based on reason and not on the mere possibility of innocence. It is a doubt for which you can in your own mind conscientiously give a reason. A reasonable doubt, in other words, is a real doubt, an honest doubt, a doubt which has its foundation in the evidence or lack of evidence. It is the kind of doubt which in the serious affairs of everyday life which concerns us all, we would pay heed and attention to. It is the kind of doubt which would make a reasonable person hesitate to act.’ ” (Emphasis added.) State v. Taylor, supra, 239 Conn. 504 n.12.
The defendant directs us to United States v. Doyle, 130 F.3d 523 (2d Cir. 1997), a case recently decided by the Court of Appeals for the Second Circuit addressing jury instructions on reasonable doubt. While that case is insightful and informative, it is of no bearing on this case. The instruction invalidated in Doyle, that the law is designed to protect the innocent, not the guilty, is wholly unrelated to the instruction at issue. The court in Doyle concluded that the instruction, in its entirety, misstated the law. Id., 533. That is not the case here.
Unlike the dissent, we cannot view these terms in isolation. The dissent fails to note that the phrase “ingenuity of counsel” is immediately succeeded by the phrase “or by ajuror and unwarranted by the evidence.” Such language does indicate to the jury that doubt may not be created by an argument of counsel or other jurors that is ingenious, but has no basis in the evidence. It is an accurate statement of the law to say that all findings of fact must be supported by the evidence. See, e.g., Connecticut National Bank v. Giacomi, 242 Conn. 17, 65, 699 A.2d 101 (1997).
Additionally, the dissent cites to cases that have disapproved of instructions that equate a reasonable doubt to “grave uncertainty,” “an actual substantial doubt,” “a moral certainty.” See footnote 4 of the dissenting opinion. We do not disagree that those instructions may be improper. Other than “a,” “an,” and ’‘doubt,” however, not a single one of the terms disapproved of in those cases appears in the jury instruction at issue here. We, unlike the dissent, cannot conclude that the phrase “real doubt” is the equivalent of “substantial doubt.” The dissent’s conclusion that one definition of “real” is “ 'not illusory: indubitable, unquestionable,’ ” and “ ‘not merely verbal or formal: significant’ ” and that this definition is essentially the same as “substantial” is not persuasive. See pages 824-25 of the dissenting opinion; Webster’s Third New International Dictionary. This linguistic extrapolation by the dissent cannot be imputed to the jury. This is especially true in this case in light of the juxtaposition of the phrase “an honest doubt” to “a real doubt,” which indicates that the connotation of “real” comports with its most common definition as “authentic, genuine . . . not merely apparent: actual, true.” Webster’s Third New International Dictionary.
Dissenting Opinion
dissenting. I would reverse the defendant Hartley Hines’ conviction based upon the trial court’s incorrect instructions on the burden of proof, which violated his federal constitutional right that guilt be proven beyond a reasonable doubt and his right to counsel. I focus on two instructions given to the jury in this case in the context of explaining the state’s burden of proof as follows: “A reasonable doubt is not a capricious or a frivolous doubt, nor is it a doubt which is raised by the ingenuity of counsel or by a juror and unwarranted by the evidence, nor is it a doubt prompted by sympathy for the defendant. A reasonable doubt is a real doubt, an honest doubt, a doubt which has its foundation in the evidence offered in the case or the lack of evidence.”
In order to put in proper perspective the requirement of proving a defendant’s guilt in a criminal case beyond a reasonable doubt, I commence with a review of the “vital role [it plays] in the American scheme of criminal procedure.” In re Winship, 397 U.S. 358, 363, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). The United States Supreme Court explained that “[d]ue process commands that no man shall lose his liberty unless the Government has borne the burden of . . . convincing the factfinder [beyond a reasonable doubt] of his guilt.” (Internal quotation marks omitted.) Id., 364; see also Jackson v. Virginia, 443 U.S. 307, 313-16, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) (proof beyond reasonable doubt must be established for every element of crime charged). This requirement “dates at least from our early years as a Nation”; In re Winship supra, 361; and “is'a prime instrument for reducing the risk of convictions resting on factual error.” Id., 363. “Our democracy rests in no small part on our faith in the ability of the criminal justice system to separate those who are guilty from those who are not. This is a faith which springs fundamentally from the requirement that unless guilt is established beyond all reasonable doubt, the accused shall go free.” Victor v. Nebraska, 511 U.S. 1, 28, 114 S. Ct. 1239, 127 L. Ed. 2d 583 (1994) (Blackmun, J., concurring and dissenting).
“Because our system entrusts the jury with the primary responsibility of implementing the substantive protections promised by the reasonable doubt standard, reasonable doubt jury instructions which appropriately convey [In re Winship] concepts are critical to the constitutionality of a conviction. See, e.g., Cage v. Louisiana, 498 U.S. 39, 111 S. Ct. 328, 112 L. Ed. 2d 339
In United States v. Doyle, supra, 130 F.3d 533, the Second Circuit Court of Appeals held that the instruction “you must keep in mind that those rules of law [presumption of innocence and proving guilt beyond a reasonable doubt] are designed to protect the innocent and not the guilty” — violated the defendant’s federal constitutional right. What the Second Circuit stated in Doyle, with respect to the presumption of innocence and guilt beyond a reasonable doubt as they relate to the jury instruction that those rules are designed to protect the innocent and not the guilty, is equally applicable to this case. “A natural inclination of some jurors may be to assume that, because the defendant has been selected for prosecution, he must be guilty. One of the greatest responsibilities of the trial judge is her duty to overcome that inclination by impressing upon the jury the importance of the presumption of innocence and of the Government’s burden to prove guilt beyond a reasonable doubt. See Holbrook v. Flynn, 475 U.S. 560, 567-68, 106 S. Ct. 1340, 1345, 89 L. Ed. 2d 525 (1986) (both defense counsel and the trial judge have the responsibility diligently to impress upon jurors [t]he need to presume the defendant’s innocence); [United States v. Birbal, 62 F.3d 456, 462-63 (2d Cir. 1995)] (Since [In re Winship], few elements of due process
The Second Circuit Court of Appeals went on to explain in Doyle that “[u]nless and until the Government meets its burden of proof beyond a reasonable doubt, the presumption of innocence remains with the accused regardless of the fact that he has been charged with the crime, regardless of what is said about him at trial, regardless of whether the jurors believe that he is likely guilty, regardless of whether he is actually guilty. The presumption attaches to those who are actually innocent and to those who are actually guilty alike throughout all stages of the trial and deliberations unless and until that burden is met. A jury charge which implies otherwise creates a serious risk of undermining that vital protection.” Id., 539.
First, in my view the trial court’s reference in the present case to “a reasonable doubt is a real doubt,” impermissibly dilutes the requirement that the state prove its case beyond a reasonable doubt, and cannot pass constitutional muster. Both a common understanding and a dictionary definition of “real” is “not illusory: indubitable, unquestionable” and “not merely verbal or formal: significant,” which is, in essence, “substantial”; Webster’s Third New International Dictionary (1986); or, at the very least, a “high likelihood.” United States v. Nickens, 955 F.2d 112, 120 n.4 (1st Cir.), cert. denied, 506 U.S. 835, 113 S. Ct. 108, 121 L. Ed. 2d 66 (1992). In other words, the jury could reasonably have concluded
Second, I also believe that the trial court incorrectly instructed the jury that a reasonable doubt is not one
Moreover, the combination of the “real doubt” and the “ingenuity of counsel” instructions, within the framework of the only two paragraphs defining reasonable doubt in the trial court’s charge here; see footnote 1; severely undermines the presumption of innocence and further impermissibly lessens the state’s burden of proof. It is as if the trial judge stated to the jury— “remember, there must be a substantial doubt in favor of the accused’s innocence” — and added for good measure — “don’t let the defense ‘pull the wool over [your] eyes.’ ” See T. Haliburton, The Clock Maker (1839); see also United States v. Friedman, 909 F.2d 705, 708 (2d Cir. 1990) (while reversing defendant’s conviction, Court of Appeals noted that District Court had sustained defendant’s objection to prosecutor’s reference to pulling wool down over eyes of jurors); United States v. Resto, 824 F.2d 210, 212 (2d Cir. 1987) (prosecutor’s reference in closing statements that defense tried to pull wool over jurors’ eyes was improper and trial court properly reprimanded prosecutor for making it).
Furthermore, I also believe that the “ingenuity of counsel” instruction infringes upon an accused’s right
Because of the constitutional deficiencies in the reasonable doubt instruction in this case, the defendant is entitled to a new trial. In Sullivan v. Louisiana, supra, 508 U.S. 279, Justice Scalia, writing for a unanimous court with respect to identical jury instructions that caused reversal in Cage v. Louisiana, supra, 498 U.S. 40,
Justice Scalia continued in Sullivan that “[h] armless-error review looks, we have said, to the basis on which ‘the jury actually rested its verdict.’ Yates v. Evatt, 500 U.S. 391, 404 [111 S. Ct. 1884, 114 L. Ed. 2d 432] (1991) .... The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. That must be so, because to hypothesize a guilty verdict that was never in fact rendered — no matter how inescapable the findings to support that verdict might be — would violate the jury-trial guarantee. See Rose v. Clark, 478 U.S. 570, 578 [106 S. Ct. 3101, 92 L. Ed. 2d 460] (1986); id., [593] (Blackmun, J., dissenting); Pope v. Illinois, 481 U.S. 497, 509-10 [107 S. Ct. 1918, 95 L. Ed. 2d 439] (1987) (Stevens, J., dissenting).
“Once the proper role of an appellate court engaged in the Chapman inquiry is understood, the illogic of harmless-error review in the present case becomes evident. Since, for the reasons described above, there has been no jury verdict within the meaning of the Sixth Amendment, the entire premise of Chapman review is simply absent. There being no jury verdict of guilty-beyond-a-reasonable-doubt,
Accordingly, the Supreme Court in Sullivan refused to employ a harmless error analysis,
Nevertheless, even if we were to employ a form of harmless error analysis as the court seems to have done in United States v. Doyle, supra, 130 F.3d 535-39, I would come to the same conclusion that the defendant is entitled to a new trial. In Doyle, unlike this case, the jury instructions were appropriately worded on the burden of proof in another part of the charge. The Second Circuit Court of Appeals stated that “[w]hile th[e] final section of the [trial] court’s instructions was undoubtedly more appropriately worded than was [the trial court’s] reference to guilty defendants, [it] nevertheless agree [d] with Judge Frank’s remark in his [United States v. Farina, 184 F.2d 18, 21 (2d Cir. 1950)] dissent: ‘What influences juries, courts seldom know.’ . . . We cannot be sure whether [the defendants’] jury actually misunderstood its obligations under the presumption of innocence and the reasonable doubt standard.” United States v. Doyle, supra, 539.
The Second Circuit further explained in Doyle that it “need only determine whether there is a reasonable likelihood, even if less than a probability, that the juiy misunderstood these principles of law. As discussed above, we are persuaded that the charge in its entirety created more than a possibility of jury misinterpretation and risked the factual error and unjust conviction against which [In re Winship] warned. We therefore hold that it created a reasonable likelihood that the jury misunderstood the reasonable doubt standard and the presumption of innocence.” Id.
I would, therefore, reverse and remand this case for a new trial, “with the expectation that [this court is]
Finally, the court today adopts and modifies certain rules of evidence that continue to lead us down a dangerous path that allows convictions to be based upon hearsay evidence — evidence not subject to the time-honored test of cross-examination. The majority does so under the guise that such statements are admissible “to affect credibility only and not to establish the truth of the statement” and the jury is instructed accordingly. To believe that the jury, untrained in the law, is able to limit their consideration of the hearsay evidence to credibility and not accept it for substantive purposes is to live — like Don Quixote — in a dream world. Nevertheless, for obvious reasons I do not reach the evidential ruling.
Accordingly, I dissent.
The trial court’s entire instruction on reasonable doubt in this case was as follows: “The burden of proving his guilt beyond a reasonable doubt requires the state to produce sufficient evidence to create in your minds a strong and abiding conviction of the guilt of the defendant. In other words, it is the law that the evidence must be so sufficient that it would leave no room in your minds for any reasonable hypothesis of the innocence of the accused. Proof of guilt beyond a reasonable doubt must exclude every reasonable supposition of innocence, but it need not exclude every possible
“Absolute certainty in the affairs of life is almost never attainable, and the law does not require absolute certainty to authorize a conviction. What it does require is that the guilt be established as charged beyond a reasonable doubt which is one founded upon the evidence or lack of evidence. A reasonable doubt, is a doubt which would cause you as reasonable and prudent men and women to hesitate to act in the more weighty and important matters relating to your own affairs. Proof beyond a reasonable doubt is proof wholly consistent with the defendant’s guilt and inconsistent with any other rational conclusion.”
See, e.g., State v. Small, 242 Conn. 93, 113-15, 700 A.2d 617 (1997); State v. Taylor, 239 Conn. 481, 504-505, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1977); State v. Findlay, 198 Conn. 328, 345-48, 502 A.2d 921, cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986); State v. Lopez, 37 Conn. App. 509, 513-15, 657 A.2d 647, cert. denied, 234 Conn. 902, 660 A.2d 858 (1995); State v. Payne, 31 Conn. App. 370, 379-80, 625 A.2d 231, cert. denied, 227 Conn. 901, 630 A.2d 73 (1993); State v. Harvey, 27 Conn. App. 171, 192-94, 605 A.2d 563, cert. denied, 222 Conn. 907, 608 A.2d 693 (1992); State v. Lamme, 19 Conn. App. 594, 607, 563 A.2d 1372 (1989), aff’d, 216 Conn. 172, 579 A.2d 484 (1990).
In Cage, the Supreme Court found objectionable the following references in the trial court’s reasonable doubt instruction: “ ‘It must be such doubt as would give rise to a grave uncertainty,’ ” “ ‘[i]t is an actual substantial doubt,’ ” and “ ‘a moral certainty.’ ” Cage v. Louisiana, supra, 498 U.S. 40.
“ ‘ “Reasonable” and “substantial” are not synonymous, as can be seen by referring to any of the standard dictionaries [or by considering the following hypothetical]. . . . [I]f one had to undergo a serious operation and were querying the doctor as to the prospects for a successful outcome, how differently [would the person feel] if the doctor told him there was only a reasonable chance of success as opposed to being told there was a substantial chance of success[?]’ ” United States v. Atkins, 487 F.2d 257, 260 n.2 (8th Cir. 1973), quoting State v. Davis, 482 S.W.2d 486, 490 (Mo. 1972) (Seiler, J., concurring in result).
Most of the federal appellate circuits have criticized jury instructions that define reasonable doubt as a substantial doubt. See, e.g., United States
See footnote 3 of this dissent.
“[W]here the instructional error consists of a misdescription of the burden of proof, [it] vitiates all the jury’s findings.” Sullivan v. Louisiana, supra, 508 U.S. 281.
“Another mode of analysis leads to the same conclusion that harmless-error analysis does not apply: In [Arizona v. Fulminante, 499 U.S. 279, 309, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991)], we distinguished between, on the one hand, structural defects in the constitution of the trial mechanism, which defy analysis by harmless-error standards . . . and, on the other hand, trial errors which occur during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented, id., [307-308]. Denial of the right to a jury verdict of guilt beyond a reasonable doubt is certainly an error of the former sort, the jury guarantee being a basic protectio[n] whose precise effects are unmeasurable, but without which a criminal trial cannot reliably serve its function, Rose [v. Clark, supra, 478 U.S. 577], The right to trial by jury reflects, we have said, a profound judgment about the way in which law should be enforced and justice administered. Duncan v. Louisiana, [391 U.S. 145, 155, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968)]. The deprivation of that right, with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as structural error.” (Citation omitted; internal quotation marks omitted.) Sullivan v. Louisiana, supra, 508 U.S. 281-82.