State v. Bember

• Decision Date: 07 April 1981
• Citation: 183 Conn. 394,439 A.2d 387
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Ernestine BEMBER.

Page 387

439 A.2d 387

183 Conn. 394

STATE of Connecticut v. Ernestine BEMBER.

Supreme Court of Connecticut.

Argued Jan. 7, 1981.

Decided April 7, 1981.

Eugene J. Riccio, Asst. Public Defender, Bridgeport, with whom, on the brief, was Herbert J. Bundock, Public Defender, for appellant (defendant).

Frederick W. Fawcett, Asst. State's Atty., with whom, on the brief, was Donald A. Browne, State's Atty., for appellee (state).

Before BOGDANSKI, PETERS, HEALY, SHEA and WRIGHT, JJ.

ARTHUR H. HEALEY, Associate Justice.

After a trial to a jury, the defendant was found guilty of manslaughter in the first degree in violation of General Statutes § 53a-55(a)(1). ¹ The defendant has appealed from the judgment rendered upon the verdict, pressing six claims of error. She contends that the trial court erred (1) in denying her motions for acquittal; (2) in excluding evidence of the victim's prior convictions; (3) in its questioning of a witness; (4) in denying her motion for a new trial; (5) in permitting the introduction into evidence of an autopsy photograph; and (6) in denying her motion to dismiss.

From the evidence presented at trial, the jury could reasonably have found the following: On the night of July 17, 1978, Mary Days, wife of the victim Robert Days, and Linda Vereen, who was pregnant with the victim's child, witnessed a fight between Robert Days and the defendant. The defendant hit Days in the face with a bottle and said that she would get Billie Hatton to kill Days.

In the early morning hours of July 18, 1978, Vereen spoke to the defendant. The defendant told Vereen that she was sorry that Vereen's baby would not have a father.

Willie May Brody saw Billie Hatton and Robert Days talking together after 1 p. m. on July 18, 1978, between buildings 30 and 31 of the Father Panik Village housing complex in Bridgeport. At about the same time, Mary Days, from her bedroom window, saw her husband running between these buildings and saw Hatton standing behind building 30 holding a gun. The defendant was standing next to Hatton. Robert Days also had a gun and he and Hatton were firing at one another. At this time Robert Days told his wife to get away from the window, which she did by going to the kitchen window.

Vereen saw Days standing near a utility pole in the vicinity of building 31. She then saw Hatton fall to the ground at the corner of Martin Luther King Drive and Hallet Street. The defendant picked up the gun, held it in both hands, and fired it twice in the direction of Days.

Mary Days, when she got to the kitchen window, saw her husband falling to the ground with a chest injury and observed the defendant, Hatton, and another person walking toward a car parked on Martin Luther King Drive. The defendant was carrying a gun.

Dr. Robert W. Barry and Dr. Nam H. Lee also testified for the state. Barry stated that at approximately 1:45 p. m. on July 18, 1978, at Bridgeport Hospital, he treated Robert Days for a chest wound. He testified that in his opinion a bullet caused the damage to Day's chest and lung. Lee, a pathologist at Bridgeport Hospital, testified that he performed the autopsy on Robert Days. He stated that the bullet entered Days' body from the back, passed through the left lung, and exited through the front of the chest. Lee also testified that Days died due to the blood which filled Days' lungs as a result of the gunshot wound.

I

The defendant's first claim of error is that the trial court erred in denying her motions for acquittal. The defendant claims that the evidence adduced at trial was insufficient, as a matter of law, to sustain a verdict of guilty beyond a reasonable doubt.

" 'When a jury verdict is challenged on the ground that the evidence is insufficient to sustain the verdict, the issue is whether the jury could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt....' Each essential element of the crime charged must be established by such proof ... and although it is within the province of the jury to draw reasonable, logical inferences from the facts proven, they may not resort to speculation and conjecture." State v. Festo, 181 Conn. 254, 258, 438 A.2d 38 (1980); State v. Saracino, 178 Conn. 416 419, 423 A.2d 102 (1979). It is the cumulative impact of a multitude of facts, and not any one fact, which establishes guilt in a case involving substantial circumstantial evidence; State v. Brown, 168 Conn. 610, 616, 362 A.2d 910 (1975); and the evidence must be given the construction most favorable to sustaining the jury's verdict. State v. Nemeth, --- Conn. ---, ---, 438 A.2d 120 (1980); State v. Harris, --- Conn. ---, ---, 438 A.2d 38 (1980); State v. Tucker, 181 Conn. 406, 408, 435 A.2d 986 (1980). Our inquiry is thus limited to whether, on the facts established and inferences reasonably to be drawn, the verdict can be supported. State v. Moye, 177 Conn. 487, 514, 418 A.2d 870 (1979), judgment vacated on other grounds, 444 U.S. 893, 100 S.Ct. 199, 62 L.Ed.2d 129 (1979); State v. Benton, 161 Conn. 404, 410, 288 A.2d 411 (1971).

The essence of the defendant's claim is that the state's case is predicated on physically impossible conclusions. Specifically, the defendant contends that if the testimony of Mary Days, i.e., that it took her only a "second" to go from the bedroom to the kitchen, is to be believed, then the events testified to by Vereen, with respect to the circumstances surrounding the shooting, could not have physically happened.

We have noted that contradiction between the testimony of different witnesses and confusion in the testimony is precisely the type of factual conflict that Anglo-American jurisprudence has traditionally entrusted to the jury. State v. Gaynor, --- Conn. ---, ---, ---, 438 A.2d 749 (1980). "It is for the jury to untangle the knotted and sometimes broken lines of testimony and we will disturb their fact finding only where there is insufficient evidence to justify a finding of guilt beyond a reasonable doubt." State v. Gaynor, supra; State v. Ortiz, 169 Conn. 642, 646, 363 A.2d 1091 (1975). In viewing the evidence in the light most favorable to the sustaining of the jury's verdict, we cannot say that the evidence was insufficient as a matter of law to support a verdict of guilty. State v. Grant, 177 Conn. 140, 142, 411 A.2d 917 (1979). The court did not err in failing to direct a judgment of acquittal.

II

At trial, the defendant sought to introduce evidence of two prior convictions of the victim, Robert Days: breach of peace by assault on November 24, 1971, and threatening as well as assault in the second degree on July 27, 1973. The defendant claims that the court erred in excluding evidence of these prior convictions.

In State v. Miranda, 176 Conn. 107, 109-110, 405 A.2d 622 (1978), we held that evidence of a homicide victim's violent character, regardless of the extent of the accused's knowledge of such character, may be offered as evidence by the accused to show that the victim was the aggressor in their encounter. Although, in certain circumstances, the victim's prior convictions of crimes of violence may be admitted, we emphasized that the accused was not authorized "to introduce any and all convictions of crimes involving violence, no matter how petty, how remote in time, or how dissimilar in their nature to the facts of the alleged aggression. In each case the probative value of the evidence of certain convictions rests in the sound discretion of the trial court." State v. Miranda, supra, 114, 405 A.2d 622.

In Miranda, the fatal shooting took place in 1975, and the convictions offered consisted of two convictions of breach of peace by assault in 1965, a conviction for carrying a dangerous weapon in 1969, and a conviction of assault in the second degree in 1973. While in Miranda we reversed the trial court's exclusion of the convictions on other grounds, ² our opinion did note that the specific convictions offered could be "questioned as being too remote in time or lacking elements of violence, depending on the underlying facts and circumstances." State v. Miranda, supra, 114-15, 405 A.2d 622.

Under the circumstance of this case, we cannot say that the trial court abused its discretion by excluding the prior convictions. The convictions offered by the accused occurred, respectively, six and one-half years and five years prior to the incident now at issue. The defendant has failed to demonstrate that she adduced such similarities between the underlying facts of the convictions offered and the facts of the incident involved in this trial to warrant their admission. See State v. Miranda, supra, 114-15, 405 A.2d 622. Thus the trial court could have reasonably concluded that the prior convictions lacked sufficient probative value.

III

The defendant's third claim relates to five questions posed to Linda Vereen by the trial court. Vereen initially testified as a witness for the state, and was later called as a defense witness. The contested questioning by the court occurred after Vereen had been called by the defense.

In calling Vereen to the witness stand, the defense attempted to discredit her testimony as a prosecution witness by demonstrating inconsistencies between her trial testimony and her prior sworn statement to the police. At trial, Vereen testified that she did not see William Hatton and Robert Days exchange gunfire. Called as a defense witness, defense counsel confronted her with her prior sworn statement that "I saw Boo Boo (Robert Days) against building 30 shooting his gun across the Drive at Billie (Hatton), who was shooting back at Boo Boo." The state's attorney then elicited from the witness that she did not recall seeing Hatton and Days exchange gunfire. After redirect examination by defense counsel, the court posed a series of questions to the...