240 Conn. 395 | Conn. | 1997
Lead Opinion
Opinion
The dispositive issue in this appeal is whether the trial court properly excluded extrinsic evidence of a prior inconsistent statement that had been offered to impeach the testimony of an eyewitness that the defendant had fatally shot two victims and wounded a third victim. The defendant, Daryl Valentine, appeals
On appeal, the defendant challenges several of the trial court’s evidentiary rulings and the court’s denial of his motion to dismiss. Specifically, the defendant claims that the trial court improperly: (1) excluded extrinsic evidence that had been offered to impeach the testimony of the state’s witness, Christopher Roach, that he saw the defendant shoot the victims; (2) violated the defendant’s constitutional rights by limiting cross-examination into Roach’s alleged motive to lie; (3) excluded the videotaped statement of a witness, Kristina Higgins, that had been offered to impeach her prior statement to the police that the defendant was the shooter; (4) excluded other extrinsic evidence that had been offered to impeach Higgins’ prior statement to the police; (5) denied the defendant’s motion to dismiss, which was based on the police department’s failure to preserve the photograph of someone identified by a witness, Byron McFadden, as having features similar to those of the shooter; (6) excluded McFadden’s statement to the police; (7) violated the defendant’s constitutional rights , by interrupting cross-examination of a ■witness, Regina Coleman; and (8) excluded hearsay evidence regarding Coleman’s alleged bias toward the police. Because we agree with the defendant that the trial court committed harmful error in excluding extrinsic evidence that had been offered to impeach Roach regarding his identification of the defendant as the shooter, we reverse the judgment of the trial court and order a new trial.
The jury reasonably could have found the following facts. On September 21, 1991, at approximately 2:40
I
The defendant first claims that the trial court improperly excluded extrinsic evidence that had been offered to impeach Roach’s testimony identifying the defendant as the shooter. Specifically, the defendant claims that a defense witness, Crystal Greene, should have been allowed to testify that Roach had told her that he did not know the identity of the shooter, but was accusing the defendant because somebody had to “pay the price” for the shootings. The defendant claims that the exclusion of this evidence violated his federal and state constitutional rights to confrontation and to present a defense, and also violated state evidentiary rules. The defendant further argues that because Roach was the state’s key identification witness whose credibility was a critical issue in the case, the exclusion of this evidence was harmful error requiring reversal. We conclude that the trial court’s ruling was an abuse of discretion constituting harmful error. We need not consider, therefore, whether the ruling violated the defendant’s constitutional rights.
In February, 1993, however, Roach gave another statement to the police in which he admitted that his previous statements had been lies. He stated that although he had been drinking on the night of the murders, he had not blacked out and had in fact been aware of what had occurred. He said that he had seen the defendant shoot Paisley and Poole, then run and jump into the passenger seat of a parked car. According to his statement, as Roach approached the driver’s side of the car, the defendant shot him in the forearm from inside the car. Roach explained that he had lied to the police because he was afraid of the defendant. In March, 1993, Roach was shown a photographic array by the police and identified the defendant’s photograph as that of the shooter.
At trial, Roach was the only witness to identify the defendant as the shooter.
During cross-examination, the defendant asked Roach if he remembered speaking to Greene at the New Haven train station approximately one month before trial. Roach replied that he did. When the defendant asked Roach what Greene had said to him during that conversation, the state objected on hearsay grounds. Outside the presence of the jury, the defendant made an offer of proof that Roach had told Greene that he did not know who had killed Poole and Paisley because he had not seen the shooter. The defendant also sought to show that Roach had told Greene on another occasion, at a New Haven club, that he had not seen the shooter but that somebody had to pay the price for the shootings. The trial court ruled that the defendant could ask Roach only whether he had had a conversation with Greene “about the defendant’s involvement in the case.” When cross-examination resumed, the defendant asked Roach this question, and Roach answered in the negative. The defendant had no further questions for Roach.
On redirect examination, however, the state asked Roach about the content of his conversation with Greene at the train station. This time, the defendant
On recross examination, the defendant asked Roach about the content of his conversations with Greene. Roach denied having told Greene at the train station that he had not seen the shooter. Roach also denied having told Greene at the club that he had not seen the shooter but that someone had to pay the price for the shootings.
During the defense case, Greene was called as a witness. When the defendant asked Greene about the contents of her conversation with Roach at the train station, the state objected on hearsay grounds. During the defendant’s offer of proof outside the presence of the jury, Greene testified that Roach had told her at the train station that he did not know who shot the victims because he had not seen the shooter. Greene also testified that Roach had told her at the club that he had not seen what had happened, but that “[s]omebody has to pay the price. Somebody has to go.” The trial court sustained the state’s objection to Greene’s testimony on the basis that it was extrinsic evidence on a collateral matter.
On appeal, the defendant argues that Greene’s testimony was admissible as extrinsic evidence of a prior inconsistent statement offered to impeach Roach’s testimony identifying the defendant as the shooter.
As a general rule, extrinsic evidence of a prior inconsistent statement may not be admitted to impeach the testimony of a witness on a collateral matter. State v. Colton, 227 Conn. 231, 247, 630 A.2d 577 (1993). Thus, on cross-examination, a witness’ answer regarding a collateral matter is conclusive and cannot be contradicted later by extrinsic evidence. Id., 248; C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 7.24.4, p. 211; 1 C. McCormick, Evidence (4th Ed. 1992) § 49, pp. 182-83. Extrinsic evidence of a prior inconsistent statement may be admitted, however, to impeach a witness’ testimony on a noncollateral matter. State v. Colton, supra, 247; State v. Burns, 173 Conn. 317, 327, 377 A.2d 1082 (1977); 1 C. McCormick, supra, § 36, p. 118 and § 49, p. 183. A matter is not collateral if it is relevant to a material issue in the case apart from its tendency to contradict the witness. State v. McCarthy, 197 Conn. 166, 176, 496 A.2d 190 (1985) (police testimony that witness was given methadone prior to confession was material where witness claimed he was suffering from withdrawal symptoms at time of confession); State v. Burns, supra, 327 (police testimony that defendant admitted being involved in confrontation with member of victim’s boating party on night of victim’s attempted rape was material in placing defendant at marina near time of crime); see also 1 C. McCormick, supra, § 36, p. 118 (“to impeach by extrinsic proof of prior inconsistent statements, the statements must have as their subject facts relevant to the issue in the cause”); id., § 49, pp. 183, 186; C. Tait & J. LaPlante, supra, § 7.24.4, pp. 210-11. The determination of whether a matter is relevant to a material issue or is collateral generally rests within the sound discretion of the trial court. State v. Colton, supra, 247; State v. Burns, supra, 327-28.
To require the reversal of a conviction because of evidentiary error, the defendant must show that the error was harmful, i.e., that it is more probable than not that the erroneous ruling of the trial court affected the result. State v. Moody, 214 Conn. 616, 629, 573 A.2d 716 (1990). We conclude that the exclusion of Greene’s testimony was harmful for the following reasons. First, Greene’s testimony, if believed by the jury, seriously would have undermined Roach’s in-court testimony identifying the defendant as the shooter. Second, Roach, who was shot after he had approached the car and was leaning toward the driver’s side window, was the eyewitness who was best situated to identify the shooter. Finally, Roach was the only witness to give live testimony that the defendant was the shooter. The only other identification evidence came from the statements given by Coleman and Higgins to the police, which were recanted at trial. Roach’s credibility on the central issue of the shooter’s identity was, therefore, critical to the outcome of the case.
The state argues that the exclusion of Greene’s testimony was harmless in light of substantial other evidence admitted at trial attacking Roach’s credibility. The state first points to the fact that Roach admitted
II
The defendant; next claims that the trial court violated his federal and state
The defendant challenges two of the trial court’s rulings prohibiting him from asking Roach about the details of the October 5, 1991 incident. The first occurred when the defendant asked Roach if “the first time you ever [identified the defendant as the shooter] was when you were in jail, facing twenty-seven years of charges for having shot up [Tyrone Adams’] house?” The second occurred when the defendant asked Roach: “Wasn’t a good friend of yours, Charlie Soltez, arrested at the scene [on] October 5, 1991, at Tyrone Adams’ house?” The state objected to both of these questions, and the trial court sustained the objections.
On appeal, the defendant argues that he was entitled to cross-examine Roach regarding his motive for coop
“The sixth amendment to the [United States] constitution guarantees the right of an accused in a criminal prosecution to confront the witnesses against him.” (Internal quotation marks omitted.) State v. Colton, supra, 227 Conn. 248-49. “The primary interest secured by confrontation is the right to cross-examination; Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965); and an important function of cross-examination is the exposure of a witness’ motivation in testifying. Greene v. McElroy, 360 U.S. 474, 496, 79 S. Ct. 1400, 3 L. Ed. 2d 1377 (1959). Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. State v. Lubesky, 195 Conn. 475, 481-82, 488 A.2d 1239 (1985). In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the jury facts from which the jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974) . . . .” (Citations omitted; internal quotation marks omitted.) State v. Santiago, 224 Conn. 325, 331, 618 A.2d 32 (1992). In determining whether cross-examination was unduly restricted, the entire cross-examination must be examined. State v. Asherman, 193 Conn. 695, 721, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985). Once the defendant has been permitted cross-examination
In the present case, the defendant acknowledges that the jury was made aware of the charges against Roach. Furthermore, Roach admitted that he had identified the defendant as the shooter only after he had been extradited from Georgia and charged with several criminal offenses that exposed him to more than twenty-seven years imprisonment. He also admitted that these charges had been subsequently nolled. We conclude that the defendant’s cross-examination of Roach was sufficient to comport with the constitutional standards embodied in the confrontation clause.
We turn, therefore, to the question of whether the trial court abused its discretion in excluding the details of the incident underlying the criminal charges against Roach. The defendant argues that he should have been allowed to demonstrate the strength of the evidence against Roach by exposing the details of the incident and Roach’s knowledge of the evidence against him. We agree with the trial court that the admission of this type of evidence would have resulted in a mini-trial on the collateral case against Roach, with the defendant attempting to show the strength of the case and the state attempting to show its weakness. See State v. Joly, 219 Conn. 234, 258-62, 593 A.2d 96 (1991). We conclude that the trial court did not abuse its discretion in limiting the defendant’s cross-examination of Roach regarding such facts.
Ill
The defendant next claims that the trial court improperly excluded Higgins’ videotaped statement in which she admitted lying to the police. The defendant argues that the exclusion of this evidence violated his federal
The following additional facts are relevant to this claim. On September 26, 1991, Lliggins gave a statement
At trial, Higgins recanted her statement during direct examination by the state. She testified that she had not seen the shootings because she had arrived at the diner after the shootings had occurred. She admitted having given the statement to the police, but she said that it had been a lie. She testified that she had lied because the police had given her $50, had threatened to lock her up on an outstanding arrest warrant if she did not cooperate, and had promised to “take care of’ her warrant in exchange for her statement. The state later introduced her prior written statement to the police for both substantive and impeachment puiposes under State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied,
On cross-examination, Higgins testified again that she had lied to the police in identifying the defendant as the shooter. She testified that she had lied because of police inducements and threats. The defendant then asked Higgins if she had given a statement to the defendant’s investigator on March 8,1994, shortly before trial. The state objected on hearsay grounds. During an offer of proof, the defendant produced a videotaped statement of Higgins, taken on March 8, 1994, at his defense counsel’s law office, in which Higgins had claimed that her statement to the police had been a lie. The defendant argued that the videotaped statement was being offered as a prior consistent statement to rehabilitate Higgins’ trial testimony and, in the alternative, as a prior inconsistent statement to impeach Higgins’ Whelan statement. The trial court sustained the state’s objection to the videotape.
On appeal, the defendant first argues that the exclusion of Higgins’ videotaped statement violated his confrontation rights by precluding him from showing that Higgins was motivated to he to the police due to police pressure. The defendant admits, however, that Higgins testified that the police had threatened her with jail, and had promised to give her money and to take care of her outstanding warrant in exchange for her statement. Under these circumstances, we conclude that the defendant was permitted sufficient cross-examination into Higgins’ alleged motive to cooperate with the police when she gave them her statement on September 26, 1991.
The defendant next argues that exclusion of the videotaped statement violated state evidentiary rules. The parties disagree about which evidentiary rules govern the admissibility of Higgins’ videotaped statement. The
“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 purpose of impeachment is to undermine the credibility of a witness so that the trier will disbelieve him and disregard his testimony.” (Internal quotation marks omitted.) State v. Torres, 210 Conn.
When the defendant sought to introduce the videotaped statement in which Higgins admitted lying to the police, however, he was attempting to introduce a statement, the principal effect of which would have been to buttress Higgins’ trial testimony that she had lied to the police. Because the principal effect of the videotaped statement would have been simply to bolster Higgins’ credibility by the use of a prior statement consistent with her trial testimony, the rules governing the use of a prior consistent statement applied.
As a general rule, a witness’ prior consistent statements are inadmissible at trial. State v. Pollitt, 205 Conn. 61, 76, 530 A.2d 155 (1987); State v. Anonymous (83-FG), 190 Conn. 715, 728, 463 A.2d 533 (1983); State v. Brown, 187 Conn. 602, 607, 447 A.2d 734 (1982); State v. McCarthy, 179 Conn. 1, 18, 425 A.2d 924 (1979); Thomas v. Ganezer, 137 Conn. 415, 417, 78 A.2d 539 (1951); see annot., 59 A.L.R.4th 1017 (1988). “Such statements clearly are barred by the hearsay rule if sought to be used to prove the truth of the matters asserted therein . . . also, they generally are prohibited even when offered for the limited purpose of rehabilitating
This rule, however, is not absolute. The trial court, within its discretion, may admit a prior consistent statement if offered to rehabilitate a witness who has been impeached by a prior inconsistent statement; see, e.g., State v. McCarthy, supra, 179 Conn. 18-21; by the suggestion of bias, motive, or interest arising after the time the prior consistent statement was made; see, e.g., State v. Dolphin, supra, 178 Conn. 571-72; by a claim of recent fabrication; see, e.g., State v. Pollitt, supra, 205 Conn. 77; or by a claim of faulty memory. See, e.g., State v. Anonymous (83-FG), supra, 190 Conn. 729; see generally State v. Brown, supra, 187 Conn. 608 (summary of rule and exceptions). When a prior consistent statement is admitted under any of these exceptions, it is admitted to affect credibility only and not to establish the truth of the statement. State v. McCarthy, supra, 18.
In the present case, the first exception applied because the defendant attempted to rehabilitate Higgins’ trial testimony after it was impeached by her Whelan statement. The trial court was well within its discretion, however, in excluding the videotaped statement in light of the fact that the videotape was made shortly before trial and more than two years after the shootings. Furthermore, it was made after the impeaching statement, namely, Higgins’ statement to the police, had been made. Under these circumstances, the trial court was within its discretion in considering the videotaped statement to be a classic example of a statement that “suffered from a serious element of self-interest” in which the witness attempted to bury her inconsistent statement with a later consistent one. See
The defendant next argues that the trial court violated his constitutional right to due process by allowing the state to introduce Higgins’ out-of-court statement to the police, while precluding the defendant from introducing her out-of-court videotaped statement. In support of this argument, the defendant cites State v. Torres, supra, 210 Conn. 631. In Torres, the state’s key identification witness was unavailable at trial, and the transcript of his testimony from the probable cause hearing was read to the jury. Because the witness was unavailable to testify, impeachment could be accomplished only through the introduction of the witness’ prior out-of-court statements. The trial court restricted the defendant’s use of prior inconsistent statements to those made after the probable cause hearing, but allowed the state to use prior consistent statements made both before and after the probable cause hearing. Under those circumstances, this court held that the exclusion of the defendant’s proffered inconsistent statements was not evenhanded and thus violated his due process right to a fair trial. Id., 643. Torres is inapposite, however, because in the present case Higgins testified at the trial and underwent extensive cross-examination. Furthermore, there was no question that Higgins’ statement to the police was properly introduced under State v. Whelan, supra, 200 Conn. 743. The only question was whether the trial court abused its discretion in precluding the defendant’s use of the videotaped statement, which was consistent with Higgins’ in-court testimony,
IV
The defendant next claims that the trial court improperly denied his motion to dismiss, which was based on the police department’s failure to preserve a photograph of someone identified by McFadden as having features similar to those of the shooter. The defendant argues that his federal and state constitutional rights to due process were violated by the failure of the police to preserve this photograph. We disagree.
The following additional facts are relevant to our disposition of this claim. McFadden was at the diner at the time of the shootings and testified at trial as follows. Lie saw a scuffle take place in the lobby of the diner. One of the men involved left the diner and returned later with another man. When the two men returned, the fight resumed on the front steps of the diner. At one point, McFadden attempted to break up the fight but was pushed away. He then heard one of the men yell to his friend to shoot. The gunman then shot the two victims. McFadden was approximately ten feet away from the gunman when this occurred. The gunman then ran to a waiting car and jumped into its passenger seat. When Roach approached the car, the gunman stuck a gun out of the driver’s side window and shot Roach in the forearm. McFadden described the gunman as dark skinned, having a full beard and a high-low haircut, which was faded to the side, and wearing a burgundy sweatshirt and jeans.
On October 2, 1991, eleven days after the shootings, McFadden gave a statement
At trial, the defendant moved to dismiss the charges against him, claiming that his federal and state constitutional due process rights were violated by the failure of the police to preserve the photograph of the individual identified by McFadden as having features similar to those of the shooter. The trial court denied the defendant’s motion.
On appeal, the defendant claims that the failure of the police to preserve this photograph violated both his federal and state constitutional rights to due process. Because the record contains no evidence of bad faith on the part of the police in failing to preserve the photograph, as required under the federal standard set forth in Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333,
We have recently enunciated the standard for determining whether the failure of the police to preserve evidence constitutes a due process violation under our state constitution. In State v. Morales, 232 Conn. 707, 727, 657 A.2d 585 (1995), we rejected the federal standard of Arizona v. Youngblood, supra, 488 U.S. 51, and held that, under our state constitution, the good or bad faith of the police in failing to preserve potentially useful evidence cannot be dispositive of whether a criminal defendant has been deprived of due process of law. “Rather, in determining whether a defendant has been afforded due process of law under the state constitution, the trial court must employ the Asherman
First, the photograph was not material. The measure of materiality is whether “there is a reasonable probability that, had the evidence been disclosed to the defense,
Second, there was little likelihood of mistaken interpretation of the photograph. The defendant concedes this point in his brief. The defendant was able to question McFadden and the detective who conducted the photographic array about the array procedure and McFadden’s inability to make a positive identification.
Third, the reason the photograph was not preserved was that McFadden was unable to make a positive identification from it and could only identify some similar features. There was no evidence of bad faith or even negligence on the part of the police in failing to preserve the photograph. Because a properly conducted array should contain photographs of individuals who resemble the accused, many photographs in a properly constituted array would have to be preserved under the defendant’s analysis, so long as the witness notes the similarity of features. The constitution does not require such extensive preservation.
Finally, any prejudice to the defendant was minimal. The jury knew that McFadden had selected the photo
V
The defendant’s final three claims are that the trial court improperly: (1) excluded McFadden’s statement to the police; (2) excluded hearsay testimony regarding Coleman’s alleged bias toward the police; and (3) questioned Coleman during cross-examination in violation of the defendant’s rights to a fair and impartial trial and to due process. After having examined the record, we are convinced that it is not likely that these issues will arise at retrial. We therefore need not review these claims.
The judgment is reversed and the case is remanded for a new trial.
In this opinion CALLAHAN, C. J., and BERDON and PETERS, Js., concurred.
The defendant appealed to this court pursuant to General Statutes § 51-199 (b) (3).
General Statutes § 53a-54a provides in relevant part: “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. . . .”
General Statutes § 53a-49 provides in relevant part: “Criminal attempt: Sufficiency of conduct; renunciation as defense, (a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. . .
General Statutes § 53a-59 provides in relevant part: “Assault in the first degree: Class B felony: Nonsuspendable sentences, (a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”
General Statutes § 29-35 provides in relevant part: “Carrying of pistol or revolver without permit prohibited. Exceptions, (a) No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. . .
Roach could not identify the driver of the car, and no evidence was introduced at trial as to the driver’s identity.
This statement was transcribed, but never signed by Roach. The audiocassette tape of the statement was introduced at trial under the doctrine of 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), and its progeny. Under Whelan, a prior written inconsistent statement may be used at trial for substantive as well as impeachment puiposes where the statement is signed by a declarant who has personal knowledge of the facts stated therein, testifies at trial, and is subject to cross-examination. Id., 753; see also State v. Woodson, 227 Conn. 1, 18-24, 629 A.2d 386 (1993) (tape-recorded statement satisfies writing requirement under Whelan); State v. Alvarez, 216 Conn. 301, 312-16, 579 A.2d 515 (1990) (same).
McFadden, who had been standing approximately ten feet from the defendant at the time of the shootings, testified that he did not get a good
The defendant also argues that Greene’s testimony was admissible to show that Roach’s identification of the defendant was motivated by revenge. Because we conclude that the testimony was admissible as extrinsic evidence offered to impeach Roach on a noncollateral matter, we need not address this additional argument.
See discussion in part II of this opinion.
Although this conclusion requires a new trial, wo consider the defendants remaining claims to the extent that they are likely to arise at retrial.
Because the defendant does not present an independent state constitutional analysis of this claim, we confine our analysis to federal constitutional law. See State v. Perez, 218 Conn. 714, 723, 591 A.2d 119 (1991).
Adams was charged separately in the shooting deaths of Poole and Paisley. He was convicted of aiding and abetting manslaughter in the first degree in violation of General Statutes §§ 53a-8 and 53a-55 (a) (1). The judgment of conviction was affirmed on appeal. See State v. Adams, 235 Conn. 473, 667 A.2d 796 (1995).
Because the defendant does not present an independent state constitut ional analysis of this claim, we confine our analysis to federal constit utional law. See State v. Perez, 218 Conn. 714, 723, 591 A.2d 119 (1991).
This statement was transcribed and subsequently signed by Higgins on October 1, 1991.
The defendant also claims that the trial court improperly excluded the testimony of a defense witness, Paul Brock, who stated that Higgins had told him some time after the murders that she had lied to the police. We reject that claim for the same reasons.
This statement, was transcribed and subsequently signed by McFadden.
When the detective conducting the photographic array later asked McFadden if he was able to identify anyone in the photographs as the gunman, McFadden replied: “Somewhat, I thought I did. I picked out someone.” The detective then asked if he positively identified the person he picked out as the shooter, and McFadden replied: “No.”
State v. Asherman, supra, 193 Conn. 724.
Dissenting Opinion
dissenting in part. The majority finds harmful error in the trial court’s refusal to admit the testimony of Crystal Greene, a friend of the defendant, Daryl Valentine, concerning the contents of conversations she claims to have had with Christopher Roach. Roach was the witness who identified the defendant as
The jury heard evidence, some of which was tape-recorded, that after the shootings Roach repeatedly had told the police that he could not identify the killer. Only later when he was in police custody for a subsequent altercation with one of the defendant’s associates, Tyrone Adams, and facing serious charges, did he identify the defendant. He directly admitted to the jury that he had lied to police and that he had done so “through [his] teeth.”
The majority orders a new trial on the ground that the trial court improperly excluded the testimony of Greene. Greene was a friend of the defendant and an in-law of Roach. She would have testified that, on two specific occasions in March, 1994, Roach told her that he had not seen what happened and, on the second occasion, also stated: “Somebody has to pay the price. Somebody has to go.” On cross-examination, Roach denied making these statements on those occasions. He denied having any conversations with Greene on those occasions about the defendant’s involvement in the murders.
Greene did testify before the jury that she had a conversation with Roach on those two occasions regarding the defendant’s involvement, but she was not permitted to repeat Roach’s words. I agree with the majority that her testimony should have been admitted. I part company, however, with the majority as to the effect at trial of the ruling excluding this testimony in this long trial. The majority here declines to find harmless error and orders a new trial.
Other factors should also be considered as to whether the trial court’s ruling was harmful. Roach did admit on the stand that he lied to the police investigators repeatedly about seeing the man who killed his two friends and wounded him. The evidence showed that Paisley and Poole were on either side of Roach when each was shot in the chest. The defendant then shot Roach twice in the forearm, at close range, while they were face to face across the front seat of the automobile in which the defendant fled. Roach was reaching into the driver’s side when the defendant pushed the driver aside and shot Roach from the front passenger seat. There was evidence that Paisley, Poole and Roach were all shot by the same gun, that Roach put up his forearm to protect himself when he was shot and that the killer was a few feet from all the victims when he shot them. In view of the likelihood that Roach did see who shot him and his friends, his repeated and direct admissions of lying to the police and the practical effect of Greene’s testimony, I see no reason to order a new trial.
The practical effect of this ruling in the trial before the jury was not substantial and I would not order a new trial.
Although I concur with the remaining parts, I respectfully dissent from part I of the majority opinion.
