State v. Dolphin

Decision Date31 July 1979
Citation178 Conn. 564,424 A.2d 266
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Dennis DOLPHIN.

Max F. Brunswick, New Haven, for appellant (defendant).

Ernest J. Diette, Jr., Asst. State's Atty., with whom, on the brief, was Edward J. Mullarkey, Asst. State's Atty., for appellee (state).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, SPEZIALE and PETERS, JJ.

SPEZIALE, Associate Justice.

The defendant, Dennis Dolphin, was charged in a two-count information with burglary in the first degree in violation of General Statutes § 53a-101(a)(1) and robbery in the first degree in violation of General Statutes § 53a-134(a) (2). After a jury trial he was found guilty of the crimes as charged, and judgment was rendered on the verdict. The defendant has appealed from that judgment.

The charges were predicated on an incident which occurred in New Haven during the evening of April 22, 1975. The facts may be briefly summarized as follows: A man, posing as a magazine salesman, rang the bell of a home on St. Ronan Street while two other males, each wearing a stocking cap over his head, hid in the bushes. The door was opened by an adolescent boy who when asked if his mother was home replied that she was not. At this point the "salesman" entered the home with the other two accomplices rushing in behind. One of the robbers carried an inoperable rifle; another carried a weapon described by witnesses as a machete and as a bayonet. The boy who had answered the door was instructed to show the robbers where the valuables were while his two brothers and the maid were made to lie on the floor in the hall on the second floor. One of the boys testified that a robber had put a knife to the maid's throat and that as the trio was leaving the St. Ronan Street premises, one of them pointed the rifle at the residents and threatened, "If you move, you're dead."

An unnamed informant subsequently led police to David Andrews, who gave written statements in accord with the above version of the incident in which he implicated Edgar Gagnier as the "salesman," and Dennis Dolphin and himself as the accomplices. Gagnier, after his arrest, also gave a written statement containing substantially the same facts. At his trial in March 1977, Dolphin took the stand and denied participation in the crime after both Andrews and Gagnier had testified in substantial conformity with their previous accounts of the incident. 1 The prior written statements, given to the police in May 1975, were admitted into evidence over objection.

On appeal the defendant raises many issues, claiming, inter alia, that the trial court erred in admitting into evidence the prior written consistent statements of Andrews and Gagnier. Because our ruling on this issue is dispositive of the case, it is unnecessary to address the other claims of error.

On cross-examination of Andrews and Gagnier, Dolphin's counsel attempted to impeach them by suggesting that their testimony against Dolphin was motivated by self-interest that it resulted from a desire to secure more lenient treatment in the disposition of the criminal charges that were or had been pending against them. In an effort to rehabilitate these witnesses, the state's attorney sought to introduce into evidence the prior written consistent statements they had given to police. The objection of the defendant's counsel was overruled, and an exception was duly taken. The statements were admitted, not to prove the truth of the matters contained therein, but for the sole purpose of showing a prior statement consistent with the testimony at trial. The jury were so instructed at the time the statements were admitted. Further, during the charge to the jury the court emphasized that the prior statements were admitted solely for evaluating the credibility of the witnesses. 2

The basis of the defendant's objection at trial and his appeal on this issue is his claim that under the Connecticut rule, a prior consistent statement of a witness is admissible only where there has been testimony constituting or showing an inconsistent statement by that witness. Thomas v. Ganezer, 137 Conn. 415, 78 A.2d 539 (1951). In its brief the state supports its claim of admissibility by citing as authority both Rule 801(d)(1)(B) 3 of the Federal Rules of Evidence and the fact that "surrounding" states 4 permit the use of prior consistent statements where a witness is impeached on the grounds of recent fabrication or bias. 5

The general rule is that a witness' prior consistent statements are inadmissible at trial. Thomas v. Ganezer, supra, 417, 78 A.2d 539; annot., 75 A.L.R.2d 909, 918. Such statements clearly are barred by the hearsay rule if sought to be used to prove the truth of the matters asserted therein; see, e. g., 2 Wharton, Criminal Evidence (13th Ed.) § 500, p. 485 ("its sole purpose is to rehabilitate an impeached witness"); 4 Wigmore, Evidence (Chadbourn Rev.) § 1132, p. 294; also, they generally are prohibited even when offered for the limited purpose of rehabilitating the witness' damaged credibility. See United States v. Quinto, 582 F.2d 224, 232 (2d Cir. 1978) and authority cited therein. The rationale upon which this rule is based is that the witness' story "is not made more probable or more trustworthy by any number of repetitions of it. Such evidence would ordinarily be both irrelevant and cumbersome to the trial; and is rejected in all Courts." 4 Wigmore, Evidence (3d Ed.) § 1124, pp. 194-95; Mei v. Alterman Transport Lines, Inc., 159 Conn. 307, 315-16, 268 A.2d 639 (1970); see also 2 Wharton, Criminal Evidence (13th Ed.) § 500, p. 484 (unless the rule allowing the admissibility of prior consistent statements is used with caution, "a witness' credibility will 'depend more upon the number of times he has repeated the same story than upon the truth of the story itself' ").

Nonetheless, the above rule is not absolute. Connecticut, as many other jurisdictions, long has recognized that where there is testimony showing an inconsistent statement by a witness it is within the discretion of the trial court to permit the introduction of prior consistent statements of that witness, not as proof of the matters asserted therein, but for the limited purpose of rehabilitating the witness. State v. Mitchell, 169 Conn. 161, 168, 362 A.2d 808 (1975); Brown v. Rahr, 149 Conn. 743, 744, 182 A.2d 629 (1962); Carta v. Providence Washington Indemnity Co., 143 Conn. 372, 381, 122 A.2d 734 (1956); Thomas v. Ganezer, supra; State v. Palm, 123 Conn. 666, 677, 197 A. 168 (1938); see also McCormick, Evidence (2d Ed.) § 49, p. 105.

As the defendant notes, the only exception to the general rule barring admissibility of prior consistent statements which previously has been expressly adopted by this court has been the exception predicated on an inconsistent statement. See Mei v. Alterman Transport Lines, Inc., supra; Brown v. Rahr, supra; Carta v. Providence Washington Indemnity Co., supra; Thomas v. Ganezer, supra; State v. Palm, supra.

The exception that prior consistent statements are admissible to rehabilitate a witness after impeachment on the basis of bias, motive, or interest has been adopted by numerous states; see 4 Wigmore, Evidence (Chadbourn Rev.) § 1128, p. 268 n.1; as well as by the federal courts. Fed.R.Evid. 801(d)(1)(B); see Thomas v. Ganezer, supra, 137 Conn. 419-20, 78 A.2d 539.

Traditionally, whenever a prior consistent statement has been admissible, its use has been not as substantive evidence to establish the facts contained therein, but solely to rehabilitate a witness whose veracity has been attacked. Annot., 140 A.L.R. 24, as supplemented by annot., 75 A.L.R.2d 909, 922-23, and 75 A.L.R.2d Sup. 283. This is the position that we shall continue to follow although Rule 801(d)(1)(B) of the Federal Rules of Evidence differs. Notes of the Advisory Committee on the Proposed Rules of Evidence, 56 F.R.D. 183, 296 (1972); 6 Tait, "The New Federal Rules of Evidence: A Summary of the Differences Between the Rules and the Connecticut Law of Evidence," 9 Conn.L.Rev. 1, 25 (1976).

The sine qua non of this exception permitting the admission of prior consistent statements after impeachment on the basis of bias, motive, or interest, which has been adopted uniformly by those jurisdictions that allow this exception, is that for the consistent statement to be admissible it must have been made prior to the time the alleged motive to falsify arose. See United States v. Quinto, 582 F.2d 224, 234 (2d Cir. 1978); United States v. Knuckles, 581 F.2d 305, 313-14 (2d Cir. 1978); McCormick, Evidence (2d Ed.) § 49, p. 105; 2 Wharton, Criminal Evidence (13th Ed.) § 500, p. 491. As Wigmore has noted: "A consistent statement, at a time prior to the existence of a fact said to indicate bias, interest, or corruption, will effectively explain away the force of the impeaching evidence; because it is thus made to appear that the statement in the form now uttered was independent of the discrediting influence." 4 Wigmore, Evidence (Chadbourn Rev.) § 1128, p. 268. Unless the prior consistent statement was made before the alleged motive, bias, or interest arose, it would not tend to make the testimony of the witness at trial more probable. Id. Therefore, it is not relevant evidence. " 'Evidence is admissible when it tends to establish a fact...

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