State v. Grant, 14204

• Decision Date: 04 February 1992
• Docket Number: No. 14204,14204
• Citation: 221 Conn. 93,602 A.2d 581
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. LeVern GRANT.

Page 581

602 A.2d 581

221 Conn. 93

STATE of Connecticut v. LeVern GRANT.

No. 14204.

Supreme Court of Connecticut.

Argued Nov. 7, 1991.

Decided Feb. 4, 1992.

Timothy Patrick Brady, with whom were Steven D. Brown and, on the brief, Gregory T. D'Auria, Hartford, for appellant (defendant).

Timothy J. Sugrue, Asst. State's Atty., with whom were James G. Clark, Asst. State's Atty., and, on the brief, Michael Dearington, State's Atty., for appellee (state).

Before PETERS, C.J., and SHEA, CALLAHAN, GLASS and BORDEN, JJ.

GLASS, Associate Justice.

After a jury trial, the defendant, LeVern Grant, ¹ was convicted of murder in violation of General Statutes § 53a-54a. ² The trial court sentenced the defendant to a term of fifty years imprisonment. From this judgment of conviction the defendant appeals, claiming that the trial court improperly: (1) admitted as substantive evidence, at both the probable cause hearing and the trial, tape-recorded statements that two witnesses made to the police; (2) made a finding of probable cause when the probable cause hearing was fatally flawed by the admission of the tape-recorded statements as substantive evidence; (3) instructed the jury that it could draw an adverse inference from the defendant's failure to produce certain witnesses; and (4) failed to reinstruct the jury, pursuant to the defendant's request, that certain testimony could be used solely for impeachment purposes. We affirm the judgment of conviction.

On September 28, 1989, at approximately 10:15 p.m., Paul Albright was fatally wounded by a gunshot on or near the premises located at 83 Hallock Street in New Haven. Subsequent investigation of the shooting led the New Haven police to Kevin Billie and Rodney Rice. Billie and Rice gave statements to the police on October 1, 1989, and October 3, 1989, respectively. The statements, which were tape-recorded and transcribed, implicated the defendant in the Albright shooting. Relying on the statements of Billie and Rice and other information developed in the course of their investigation, the police arrested the defendant on October 21, 1989, and charged him with the murder of Albright.

A probable cause hearing was conducted on December 7, 1989, at which both Billie and Rice testified. Billie and Rice admitted having given statements to the police and acknowledged that the recordings accurately reflected their statements. Nonetheless, both men testified that their earlier statements implicating the defendant in the Albright shooting were false. The state then sought to introduce the tape recordings of the statements as substantive evidence under 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 defendant objected, relying on State v. Green, 16 Conn.App. 390, 547 A.2d 916, cert. denied, 210 Conn. 802, 553 A.2d 616 (1988), to argue that a witness' prior inconsistent statement is inadmissible as substantive evidence unless it is based on personal knowledge of the criminal conduct with which the defendant is charged. The trial court determined that there was "substantial reliability" for the statements and admitted the tape recordings as substantive evidence. Relying on the statements of Billie and Rice and other evidence adduced at the hearing, the court concluded that there was probable cause to hold the defendant for trial for the Albright murder.

The defendant's trial commenced on October 9, 1990. When Rice was called to testify, ³ the state sought to introduce the typewritten transcript of his statement as a past recollection recorded. The court admitted the transcript on this basis over the defendant's objection. Thereafter, Rice again denied the truthfulness of his prior statement and the state successfully sought to have the tape-recorded statement admitted as substantive evidence under State v. Whelan, supra. As he had done at the probable cause hearing, the defendant objected to the admission of Rice's tape-recorded statement on the basis of State v. Green, supra.

I

The defendant first claims that the trial court improperly admitted the out-of-court tape-recorded statements of Billie and Rice as substantive evidence at both the probable cause hearing and the trial. ⁴ The defendant contends that because neither Billie nor Rice had personal knowledge of the criminal conduct with which the defendant was charged, the admission of their statements as substantive evidence was improper. The state argues that this court's decision in State v. Whelan, supra, does not require that a witness have direct personal knowledge of the crime. We agree with the state's reading of Whelan, and, accordingly, conclude that the trial court properly admitted as substantive evidence the prior inconsistent statements of Billie and Rice.

The substance of the statements was as follows. Billie told the police that the defendant told him the day before the shooting that he planned to shoot rival drug dealers who worked for "green-eyed Dave," and that he intended to "take [them] out" from the backyard across the street. Billie stated that he knew that Albright worked for "green-eyed Dave." Rice told the police that he was at the defendant's girlfriend's house near the scene of the crime shortly after the shooting. He observed the defendant in possession of an empty .38 automatic handgun. Rice stated that the defendant told him that he had shot Albright from across the street and then "jumped over fences and stuff" and ran to his girlfriend's house.

The defendant relies on State v. Green, supra, at 397-98, 547 A.2d 916, in which the Appellate Court construed this court's holding in State v. Whelan, supra, at 753, 513 A.2d 86. In Green, the Appellate Court concluded that, because "[the witness] was not at the scene of the crime and did not personally know whether the defendant participated in the [crime]"; id.; the trial court had improperly admitted as substantive evidence certain portions of a written, signed and sworn statement given to the police by a witness who had repudiated the truth of the statement at trial. The Appellate Court found the error harmless, however, and affirmed the defendant's conviction of robbery in the first degree and assault in the first degree.

In State v. Whelan, supra, we reviewed our continued adherence to the traditional rule prohibiting the use as substantive evidence of a prior inconsistent out-of-court statement of a nonparty witness. We rejected the traditional view and joined the growing number of jurisdictions that allow prior inconsistent statements as substantive evidence when the declarant takes the stand and is available for cross-examination. Id., at 751-52, 513 A.2d 86. In deciding to abandon the common law rule, we relied on the assessment of various legal scholars and commentators that the reasons behind the rule do not apply when the witness testifies and is available for cross-examination: "[W]hen the declarant is available for cross-examination the jury has the opportunity to observe him as he repudiates or varies his former statement. The cross-examination to which a recanting witness will be subjected is likely to be meaningful because the witness will be forced either to explain the discrepancies between the earlier statements and his present testimony, or to deny that the earlier statement was made at all. 'If, from all that the jury see of the witness, they conclude that what he says now is not the truth, but what he said before, they are none the less deciding from what they see and hear of that person and in court.' ... The jury can, therefore, determine whether to believe the present testimony, the prior statement, or neither.... Quite simply, when the declarant is in court, under oath, and subject to cross-examination before the factfinder concerning both his out-of-court and in-court statements, 'the usual dangers of hearsay are largely nonexistent....' " Id., at 750-51, 513 A.2d 86. These considerations convinced us that "the prevailing reasons for refusing to allow any prior inconsistent statement to be used as substantive evidence are no longer valid." Id., at 752, 513 A.2d 86. We concluded that "an exception to the hearsay rule is necessary to allow the trial court to admit for substantive purposes prior inconsistent statements given under prescribed circumstances reasonably assuring reliability." (Emphasis added.) Id. We therefore adopted a rule allowing the substantive use of prior written inconsistent statements where the declarant: (1) has signed the statement; (2) has personal knowledge of the facts stated; and (3) testifies at trial and is subject to cross-examination. Id., at 753, 513 A.2d 86. This court has interpreted that rule to apply to prior tape-recorded statements. Id., at 754 n. 9, 513 A.2d 86; see State v. Alvarez, 216 Conn. 301, 313, 579 A.2d 515 (1990).

The defendant, relying on State v. Green, supra, asserts that the statements of Billie and Rice do not satisfy the requirement set forth in Whelan that the declarant have "personal knowledge of the facts stated." We disagree. We conclude that the "personal knowledge" prong of the Whelan rule does not require that the declarant have witnessed the commission of the crime that is the subject of the prior inconsistent written or recorded statement. ⁵ 5]

In State v. Whelan, supra, 200 Conn. at 752, 513 A.2d 86, we emphasized that a prior inconsistent statement had to be given under circumstances ensuring its reliability and trustworthiness in order to be admissible. We therefore declined to allow prior oral statements of a witness to be used as substantive evidence, "limit[ing] substantive admissibility of prior inconsistent statements to situations where the likelihood of fabrication is slight and the risk of coercion, influence or deception is greatly reduced." Id., at 753, 513 A.2d 86. While we noted that the requirement that prior statements be written and signed "is not an absolute...