State v. Fleming

• Decision Date: 10 January 1995
• Docket Number: No. 11816,11816
• Citation: 651 A.2d 1341,36 Conn.App. 556
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. James FLEMING, Jr.

Page 1341

651 A.2d 1341

36 Conn.App. 556

STATE of Connecticut v. James FLEMING, Jr.

No. 11816.

Appellate Court of Connecticut.

Argued Oct. 24, 1994.

Decided Jan. 10, 1995.

Shannon O. Louden, Sp. Public Defender, with whom, on the brief, were Linda L. Morkan and Barbara J. Jacobs, Sp. Public Defenders, for appellant (defendant).

John A. East III, Deputy Asst. State's Atty., with whom, on the brief, was Michael Dearington, State's Atty., for appellee (State).

Before LANDAU, FRANCIS X. HENNESSY and FREDERICK A. FREEDMAN, JJ.

FREDERICK A. FREEDMAN, Judge.

The defendant appeals from a judgment of conviction, following a jury trial, of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134(a)(2) ¹ and 53a-48. ² The defendant claims that the trial court improperly (1) admitted the prior statement of a witness for substantive purposes, (2) admitted evidence that was more prejudicial than probative, and (3) gave a "missing witness" instruction under the Secondino rule. The defendant additionally argues that there was insufficient evidence to establish the essential elements of conspiracy. Finally, the defendant urges us to repudiate the Secondino rule as applied to criminal cases. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On February 17, 1991, at approximately 1:10 a.m., the victim, Christian Prince, was found lying on the sidewalk in front of St. Mary's Church on Hillhouse Avenue in New Haven. He was transported to Yale-New Haven Hospital at 1:43 a.m., where it was discovered that he was suffering from a gunshot wound to the chest. Despite attempts to resuscitate the victim, he was pronounced dead at approximately 2:06 a.m. An autopsy revealed that a single, small caliber bullet had been fired into the victim's chest, causing his death.

On February 27, 1991, Randy Fleming ³ and Andre Edwards, two of the state's witnesses, were arrested on unrelated drug charges. Subsequently, both Fleming and Edwards gave statements to the police implicating the defendant in the shooting of the victim. The defendant was later charged, by substitute information, with felony murder in violation of General Statutes § 53a-54c, murder in violation of General Statutes § 53a-54a, attempted robbery in the first degree in violation of General Statutes § 53a-134(a)(2), and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134(a)(2). The defendant was found guilty of conspiracy to commit robbery in the first degree and not guilty of murder; a mistrial was entered on the felony murder and attempted robbery charges, as the jury was unable to reach a verdict on those counts.

Additional facts will be discussed where relevant to a specific claim made by the defendant.

I

The defendant first argues that the trial court improperly admitted Fleming's statement into evidence for substantive purposes. The following additional facts are necessary for a proper resolution of this issue.

At trial, the state called Fleming as a witness. Fleming testified that he saw the defendant at around 11:30 p.m. on the night of February 16, 1991, at the Oasis Lounge. Fleming testified that the defendant was at the Oasis Lounge for "at least half an hour, forty-five minutes." He stated that he saw the defendant leave the Oasis Lounge with an individual named Money Russ at around midnight. According to Fleming's testimony, after the defendant left the bar, he remained outside in front of his house for a while, and then went inside his house at around 12:15 a.m., because he had a 12:30 a.m. curfew. ⁴ Fleming testified that he next saw the defendant the following day.

The state then marked for identification a thirty-one page statement given by Fleming on May 10, 1991, to Detectives Vincent Raucci and Mel Cartocetti of the New Haven police department. Fleming conceded that the facts to which he testified at trial were entirely different from the facts given in the statement to the police but he repeatedly stated that he was forced to make the prior statement to the police. The statement and the tape recording from which it was transcribed were then admitted as full exhibits 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).

The statement given to the police contains the following version of the incident in question. Fleming and the defendant, along with Robert Newton and Robert Jones, were riding around on the night of the shooting in a white Nissan Sentra automobile. The defendant was driving. The defendant told Fleming that he wanted to stick up a "cracker," i.e., a white person. The defendant showed Fleming that he had an automatic weapon. When they approached the victim, the defendant put on a ski mask that covered his face, crossed the street to confront the victim, and demanded money. The victim gave the defendant his wallet without a struggle. The defendant pistol-whipped the victim and fired five shots. Fleming saw the victim fall sideways after being shot. The defendant then got back into the car and stated that he had dropped the wallet.

According to Fleming's statement, after the shooting, they drove to 575 Winchester Avenue. Jones went home and the defendant, Fleming and Newton went inside. Fleming and Newton told Andrew Fairweather and Andre Edwards what had occurred. The next day, the defendant and Fairweather agreed that Fairweather would destroy the gun. Fairweather, however, eventually gave the gun back to the defendant, who put it in a bookbag on a shelf in the house. The day after the shooting, after the defendant learned that the victim had died, Fleming saw the defendant stuffing a pipe down the barrel of the gun so that the police would be unable to trace it.

The defendant argues that (1) the prior statement was unreliable because three months had elapsed between the incident and the interrogation, (2) the statement was not given under circumstances that indicate reliability, (3) the witness was responding to leading questions, and (4) there was no other evidence corroborating the statement. The defendant also argues that the admission of the statement was harmful error.

"Prior inconsistent statements of nonparty witnesses are hearsay and, generally, inadmissible to prove the truth of the matters they assert." In re Bassel C., 33 Conn.App. 90, 94, 633 A.2d 733 (1993). In State v. Whelan, supra, 200 Conn. at 753, 513 A.2d 86, our Supreme Court adopted an exception to the hearsay rule allowing the substantive use of a prior inconsistent statement of a nonparty witness under certain prescribed circumstances reasonably assuring reliability. State v. Woodson, 227 Conn. 1, 20, 629 A.2d 386 (1993). Such a statement is admissible substantively "if the declarant: (1) signed the statement ... (2) had personal knowledge of the facts set forth in [his] statement; and (3) testifies at trial and is subject to cross-examination." State v. Borrelli, 227 Conn. 153, 158-59, 629 A.2d 1105 (1993); see also State v. Williams, 231 Conn. 235, 249, 645 A.2d 999 (1994); In re Bassel C., supra, 33 Conn.App. at 94, 633 A.2d 733. This exception applies to tape-recorded as well as written statements. State v. Woodson, supra, 227 Conn. at 21, 629 A.2d 386.

"[A] prior inconsistent statement ha[s] to be given under circumstances ensuring its reliability and trustworthiness in order to be admissible." State v. Grant, 221 Conn. 93, 100, 602 A.2d 581 (1992) The admission for substantive purposes of a prior inconsistent statement is limited " 'to situations where the likelihood of fabrication is slight and the risk of coercion, influence or deception is greatly reduced.' " Id., quoting State v. Whelan, supra, 200 Conn. at 753, 513 A.2d 86. "It is the trial court's responsibility to weigh the reliability of each statement on a case-by-case basis." (Internal quotation marks omitted.) State v. Borrelli, supra, 227 Conn. at 161, 629 A.2d 1105.

The defendant first argues that Fleming's statement was unreliable because three months had elapsed between the incident and the interrogation. "Whether a statement is made within a short time after the crime occurred has ... been considered in determining reliability." State v. Wager, 32 Conn.App. 417, 428, 629 A.2d 1146, cert. denied 228 Conn. 912, 635 A.2d 1231 (1993); State v. Grant, supra, 221 Conn. at 100-101, 602 A.2d 581; State v. Alvarez, 216 Conn. 301, 314, 579 A.2d 515 (1990); State v. Buster, 224 Conn. 546, 557-58, 620 A.2d 110 (1993); State v. Whelan, supra, 200 Conn. at 750, 513 A.2d 86. This is because "prior statements are, necessarily, made closer to the event in question, when memories are fresher and when there is less likelihood that the statement is the product of corruption, false suggestion, intimidation or appeals to sympathy." Id.

In State v. Wager, supra, 32 Conn.App. at 428, 629 A.2d 1146, we noted that there is no requirement that a statement be signed at any particular time. Similarly, there is no specific time when a statement becomes unreliable due to the length of time between the commission of the crime and the making of the statement. Rather, the court considers whether the statement was made "long before the witness' memory might have faded." State v. Whelan, supra, 200 Conn. at 754, 513 A.2d 86; State v. Borrelli, supra, 227 Conn. at 160, 629 A.2d 1105; State v. Alvarez, supra, 216 Conn. at 314, 579 A.2d 515. There is nothing in the record to indicate that Fleming's memory had faded at the time he gave the statement to the police. We therefore conclude that the statement was not unreliable simply because it was made three months after the crime occurred.

The defendant next argues that Fleming's prior statement did not meet the "criteria for ensuring reliability" established by State v. Grant, supra, 221 Conn. 93, 602 A.2d 581, and State v. Borrelli, supra, 227 Conn....