State v. Borrelli
| Decision Date | 10 August 1993 |
| Docket Number | No. 14571,14571 |
| Citation | 227 Conn. 153,629 A.2d 1105 |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. Anthony J. BORRELLI. |
Carl D. Eisenman, Public Defender, for appellant (defendant).
Judith Rossi, Asst. State's Atty., with whom were Frank S. Maco, State's Atty., and, on the brief, Michael Brandt, Legal Intern, for appellee (state).
Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON and KATZ, JJ.
The defendant, Anthony J. Borrelli, raises two issues on appeal: (1) whether the trial court improperly admitted a prior inconsistent statement of the victim for substantive purposes; and (2) whether the trial court improperly allowed expert testimony on battered woman's syndrome for the purposes of impeaching the victim's trial testimony and providing a possible explanation for her recantation.
The defendant was charged in an information with kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(A), assault in the second degree in violation of General Statutes § 53a-60(a)(2), criminal mischief in the third degree in violation of General Statutes § 53a-117(a)(1)(A), unlawful restraint in the first degree in violation of General Statutes § 53a-95(a), and threatening in violation of General Statutes § 53a-62(a)(1). He was also charged with breach of the peace in violation of General Statutes § 53a-181(a)(1). The defendant pleaded not guilty to all charges and elected a jury trial. Prior to trial, the defendant filed a motion to dismiss all charges, except for the breach of the peace charge, on the ground that there was insufficient evidence. 1 The trial court denied the motion after a full evidentiary hearing and consolidated all charges for trial. After a jury verdict of guilty on all charges, the defendant was sentenced to an effective term of imprisonment of twenty years, suspended after ten years, with five years probation. The defendant appealed to this court pursuant to General Statutes § 51-199(b)(3). We affirm the judgment of the trial court.
The following evidence was presented at trial. On December 30, 1990, the victim, the wife of the defendant, accompanied by three of her children, went to the Torrington police department in the evening hours and spoke to police officer Dale Olofson. She gave Olofson a written statement alleging that the defendant had physically abused and detained her the previous evening. 2 She read and signed the statement. Her statement reveals the following: The defendant smoked some cocaine in the late evening hours of December 29, 1990, and then began accusing her of cheating on him. He cut up her clothing, underwear, driver's license and social security card with a knife. He held a pillow over her face so she could not breathe, and then tied her hands and feet together with rope behind her back. While she was bound, he threw a knife into the bedroom walls a number of times. He repeatedly threatened to kill her and members of her family, cut her lips with a knife, and held a cigarette lighter near her genital area. At approximately 6 a.m., he released her by cutting the ropes with a knife, and ordered her to give him a ride to Waterbury to buy drugs. They returned at 9 or 9:30 in the morning. She was tired but he would not let her sleep. He also would not let her cancel dinner plans they had made, so she began cooking. 3
At the hearing on the motion to dismiss, the victim testified that the events alleged in her statement had not happened. At trial, she again recanted. During cross-examination by the defendant at trial, she testified for the first time that it was actually she who had tied up and physically abused the defendant. She also testified that she had made up her initial story in the hopes that the defendant would be arrested and given drug treatment.
The defendant's first claim is that the trial court improperly admitted into evidence for substantive purposes the victim's written, sworn statement to the police, in which she had described in detail the physical abuse that the defendant had inflicted upon her that morning. At trial, the victim was called as the state's first witness. She testified that on December 30, 1990, she had gone to the Torrington police department and had met with Olofson. She gave a statement to Olofson, which she signed after it was reduced to writing. She testified that the words in the statement were the words that she had spoken to Olofson.
Next, the victim was asked by the state's attorney if the words in her statement were "the truth as to what took place between you and your husband on December 30, 1990." She responded that the statement was not accurate. After questioning the victim as to some of the specific facts contained in her statement, 4 the state offered the statement into evidence. The trial court admitted the statement for both impeachment and substantive purposes pursuant to 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).
In Whelan, we adopted an exception to the hearsay rule allowing the substantive use of a prior inconsistent written statement of a nonparty witness if the declarant: (1) signed the statement; 5 (2) had personal knowledge of the facts set forth in her statement; and (3) testifies at trial and is subject to cross-examination. Id., at 753, 513 A.2d 86; State v. Buster, 224 Conn. 546, 556, 620 A.2d 110 (1993). We reasoned that prior inconsistent statements made under circumstances providing a reasonable assurance of reliability should be admitted to advance the truth finding function of the jury. State v. Whelan, supra, 200 Conn. at 748-53, 513 A.2d 86.
The defendant argues, however, that the statement should have been excluded because the particular circumstances of this case undermine the reliability of the victim's prior inconsistent statement. Specifically, the defendant argues that in Whelan, the homicide eyewitness' claimed inability to remember the incident in question established the foundation for the admission of his prior statement. The defendant argues that Whelan is limited to this context, and does not stand for the proposition that the written statement of a victim who later asserts that the statement is not true is admissible for substantive purposes. We disagree.
It is true that the witness in Whelan testified in court that he was unable to remember the event because he had been intoxicated at the time and because he had been in an automobile accident that had left him in a coma. Id., at 746, 513 A.2d 86. Our analysis in Whelan, however, did not focus on the circumstances surrounding the witness' statements in the courtroom. Rather, we carefully examined the circumstances surrounding the out-of-court statement, in order to determine if the statement was made under conditions providing a reasonable assurance of reliability. Id., at 754, 513 A.2d 86; accord State v. Alvarez, 216 Conn. 301, 314, 579 A.2d 515 (1990); State v. Hopkins, 222 Conn. 117, 124-26, 609 A.2d 236 (1992). Thus, in State v. Alvarez, supra, 216 Conn. at 312-13, 579 A.2d 515, we upheld the admission of a prior inconsistent statement for substantive purposes despite the fact that the witness claimed no memory loss, but instead testified, contrary to her previous written statement, that she had neither seen who had shot the victim, nor had she seen the defendant with a gun. Similarly, in State v. Hopkins, supra, 222 Conn. at 126, 609 A.2d 236, we upheld the admission of a statement identifying the defendant where, at trial, the witness claimed that she had seen two men whom she could not identify.
In the present case, the trial court reasonably found sufficient indicia of reliability in the circumstances surrounding the victim's statement to uphold its admission for substantive purposes. First, the victim gave her statement to a police officer on the day of the incident described in the statement. The statement was made "long before the witness' memory [of such an event] might have faded." (Internal quotation marks omitted.) State v. Alvarez, supra, 216 Conn. at 314, 579 A.2d 515. She also signed the statement after reading it, and swore to its accuracy under oath. 6 She confirmed at trial that the words in the statement were the words that she had spoken to Olofson. Most importantly, the victim's statement was not "given in response to leading questions, which are laden with facts to which the witness has merely answered with a yes or no." (Internal quotation marks omitted.) State v. Hopkins, supra, 222 Conn. at 125, 609 A.2d 236.
Furthermore, there was ample corroborative evidence in the present case. Id., at 123, 609 A.2d 236. Olofson testified that after she had taken the statement from the victim, she asked to see the marks that the victim had claimed were on her body. Olofson testified that the victim had had visible marks on her ankles, and had also showed Olofson marks on her wrists and cuts on her top and bottom lips. 7 Olofson accompanied the victim to her house where she viewed pieces of cut up lingerie, a rope, and two knives. Finally, Olofson testified that there were "narrow vertical marks" in the walls of the bedroom. Olofson's observations corroborated the victim's statement, and thereby enhanced its reliability, preventing the specter of a prosecution based solely on an out-of-court inconsistent statement. "It is the trial court's responsibility to weigh the reliability of each statement on a case-by-case basis." Id., at 126, 609 A.2d 236. In the present case, the trial court properly found that the out-of-court statement given by the victim had sufficient indicia of reliability to be admitted for both impeachment and substantive purposes.
The defendant also argues that the state did not establish a sufficient foundation to admit the prior inconsistent statement. Specifically, the defendant argues that the victim's recantation...
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