State v. Butler

Citation543 A.2d 270,207 Conn. 619
Decision Date31 May 1988
Docket NumberNo. 13140,13140
CourtSupreme Court of Connecticut
PartiesSTATE of Connecticut v. Melico BUTLER.

Louis S. Avitabile, Sp. Public Defender, with whom, on the brief, was Denise Dishongh, Sp. Public Defender, for appellant (defendant).

Geoffrey E. Marion, Deputy Asst. State's Atty., with whom, on the brief, was Peter Markle, Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and SHEA, CALLAHAN, COVELLO and HULL, JJ.

HULL, Associate Justice.

The defendant, Melico Butler, was charged with the crimes of robbery in the first degree in violation of General Statutes § 53a-134(a)(2), 1 and of being a persistent dangerous felony offender in violation of General Statutes § 53a-40. 2 After a jury trial, the defendant was found guilty of the robbery charge and pleaded guilty to the charge of being a persistent dangerous felony offender. He appeals the judgment of conviction.

On appeal, the defendant claims that the trial court erred (1) in admitting into evidence, for purposes of impeaching the credibility of a defense witness, a typewritten but unsigned out-of-court statement made by the witness, (2) in charging the jury on its use of the statement, (3) in lowering the state's burden of proof on an element of the crime, by virtue of its charge to the jury on the statement, (4) in failing to instruct the jury on the degree of certitude necessary to arrive at a verdict of guilty, and (5) in instructing the jury on the state's burden of proof beyond a reasonable doubt. We find no error.

The jury could reasonably have found the following facts. On February 18, 1986, at approximately 8 p.m., two men committed a robbery at the Brewster Pharmacy in Waterbury. One of the men was wearing a brown, three quarter length coat and a green ski mask, and he was carrying a rifle. The other man was Anthony Nichols. After they had collected the money from the cash registers, the robbers fled the scene. A witness who saw the men running from the pharmacy flagged down a police cruiser and told the police officer the direction in which they had gone. The police officer followed the trail of the suspects to the backyard at 101 Division Street in Waterbury where he was joined by other police officers who had arrived in response to a report of a possible break-in. There they arrested Nichols and the defendant, and seized a coat, ski mask and rifle which they found nearby. 3

I

The defendant's first three claims pertain to the admission into evidence of a statement allegedly made by Nichols to a police detective that directly contradicted Nichols' trial testimony. Against the advice of defense counsel and at the defendant's insistence, Nichols was called as a defense witness. He testified that, on the afternoon of February 18, 1986, he had borrowed the defendant's rifle, telling the defendant that he needed it to protect himself from some persons with whom he had had some problems. He stated that, on the evening in question, he and an accomplice committed the robbery; that the accomplice was not the defendant but another person known to Nichols only by his nickname, J.D.L.; and that, following the robbery, he and J.D.L. ran through a number of yards, eventually arriving at a yard where they found the defendant working on his car. Nichols further testified that J.D.L. threw off his coat and continued to run, but Nichols stayed behind, waiting for the defendant to give him a ride. He said the police then arrived and arrested him and the defendant. Nichols asserted that had not given any statement to the police.

On cross-examination, Nichols admitted that he had spoken to Detective John Maia on the night of the robbery and had told him that he had committed the robbery, but had not named his accomplice. The state then showed him a two page typewritten and unsigned document, titled "Voluntary Statement," and asked him if he had ever seen it before. Nichols replied that he had. The defendant objected to the use of the statement and the jury was excused. The state said it intended to offer the document as a prior inconsistent statement. Nichols was then asked if he had seen the statement before, to which he replied that he had only that day been shown the document by his lawyer. He said he recalled talking to Maia but asserted that Maia had not typed anything while they talked nor had he read the statement back to Nichols. He further testified that he had not refused to sign a statement. The state withdrew its offer of the statement and apprised the court that it intended to call Maia as a witness. The defendant's objection was sustained. The jury returned and was instructed to disregard the reference to the document as a statement. The statement was marked as an exhibit for identification.

When cross-examination of Nichols resumed, the state again showed him the statement which he maintained he had never seen until that day. He adhered to his testimony that J.D.L., not the defendant, had been his accomplice in the Brewster Pharmacy robbery. He also asserted that Maia had wanted him to implicate the defendant in the robbery but that he had not done so. He repeated that although he had recounted the robbery to Maia, Maia had not, in his presence, typed any statement, nor had he asked Nichols to read a typed statement.

Subsequently, the state called Maia. He testified that, sometime after 3 a.m. of the day following the robbery, after he had advised Nichols of his constitutional rights, he had interviewed him in the cell block at the police department. He said that Nichols had admitted to having committed the robbery, at which point, Maia had brought him to the detective bureau where a typewriter was available. Maia said he had again advised Nichols of his constitutional rights and had asked Nichols for the details of the robbery. He stated that he had typed Nichols' account of the robbery as it was given by Nichols. The state showed the statement to Maia who acknowledged that it was the statement given by Nichols and typed by Maia; he confirmed that he had made no changes to the statement since he took it down. Maia further testified that upon completion of the statement, he gave it to Nichols who had apparently read it. He said that Nichols had subsequently refused to sign it.

The state then offered the statement as a full exhibit and defense counsel objected on the ground that it was hearsay. The state responded that it offered the statement as a prior inconsistent statement. The court ruled that a prior inconsistent statement, although hearsay, is admissible for the sole purpose of impeaching the credibility of the witness, and advised counsel that it would instruct the jury that use of the statement was limited to impeachment purposes and it could not be used for the substantive purpose of determining the defendant's guilt or innocence. The defendant excepted to the ruling. Maia, thereupon, was permitted to read the statement aloud. The statement described, allegedly in Nichols' own words, how Nichols and the defendant had planned and executed the robbery, directly contradicting Nichols' trial testimony. Immediately thereafter, the court formally charged the jury as promised. Maia testified that Nichols had named only the defendant as his accomplice and had never mentioned anyone called J.D.L. He stated further that, had Nichols mentioned J.D.L., it would have appeared in the statement.

In its charge to the jury at the close of the evidence, the court again cautioned the jury that the statement could be used only to test Nichols' credibility and added that, because it was not signed, it could be used for this limited purpose only if it found that Nichols had, in fact, adopted the statement. The court cited the harm that could be done by admitting into evidence an unsigned, false statement typed by one person and attributed to another. The court then summarized the testimony of Nichols and Maia. Nichols, the court recollected, completely denied the statement was his own. With respect to Maia's testimony, the court erroneously recalled that Maia had testified that Nichols had acknowledged that the statement was correct and accurate but then refused to sign it. The court concluded this portion of its charge by admonishing the jury that if it did not believe Maia, but believed that Nichols had never adopted the statement, it could not be used for any purpose at all.

A

The defendant concedes that a prior inconsistent statement of a witness, whether oral or written, is admissible to impeach the credibility of the witness. He principally objects to the form in which the statement was admitted, contending that, because it was neither signed nor adopted by Nichols, it was hearsay, admitted to prove the substantive fact that the statement was made. The state counters that the statement, having been offered for the sole purpose of impeachment, was properly admitted, and the scope of its use was adequately conveyed to the jury by the trial court. We agree with the state.

"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." State v. Saia, 172 Conn. 37, 45, 372 A.2d 144 (1976); C. Tait & J. LaPlante, Handbook of Connecticut Evidence (2d Ed.) § 7.24.3(a); see also G & R Tire Distributors, Inc. v. Allstate Ins. Co., 177 Conn. 58, 60-61, 411 A.2d 31 (1979). The impeaching statement may be oral; Branford Trust Co. v. Prudential Ins. Co., 102 Conn. 481, 485, 129 A. 379 (1925); or written. Schurgast v. Schumann, 156 Conn. 471, 482, 242 A.2d 695 (1968); see also State v. Rivera, 200 Conn. 44, 51 n. 5, 509 A.2d 505 (1986). Where a party seeks to impeach a witness by using extrinsic evidence, certain standards must be met. The inconsistent statement must be relevant and of such a kind as...

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