State v. Ham

• Decision Date: 12 October 1999
• Docket Number: (AC 18127)
• Citation: 55 Conn. App. 281,739 A.2d 1268
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. ERIC HAM

55 Conn. App. 281

739 A.2d 1268

STATE OF CONNECTICUT v. ERIC HAM

(AC 18127)

Appellate Court of Connecticut.

Argued March 2, 1999.

Officially released October 12, 1999.

O'Connell, C. J., and Landau and Shea, JS. William S. Palmieri, with whom, on the brief, was John R. Williams, for the appellant (defendant).

Rita M. Shair, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and John Waddock, senior assistant state's attorney, for the appellee (state).

Opinion

SHEA, J.

The defendant, Eric Ham, appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit larceny in the third degree in violation of General Statutes §§ 53a-48 (a)¹ and 53a-124 (a) (1), larceny in the third degree in violation of § 53a-124 (a) (1), conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a (a),² murder in violation of § 53a-54a (a), assault in the first degree in violation of General Statutes § 53a-59³ and falsely reporting an incident in violation of General Statutes § 53a-180 (a) (3) (A).⁴ The defendant claims that (1) except for the larceny charges, there was insufficient evidence to establish his guilt beyond a reasonable doubt with respect to the other crimes, (2) he was denied his right to confront his accusers and (3) the trial court gave incorrect jury instructions concerning proof beyond a reasonable doubt and consciousness of guilt. We affirm the judgment of the trial court.

From the evidence, the jury reasonably could have found that in March, 1993, the defendant, accompanied by four masked men, approached Alex Santana and asked him where to find his cousin, George Flores. When Santana replied that he had not seen Flores, the defendant punched Santana in the face, causing him to be thrown against a store window. The owner of the store came outside and the defendant and his companions departed.

On May 5, 1993, at approximately 11 p.m., the defendant agreed to pay Ronaldo Rivera $40 if he would steal a large, fast, four door automobile and deliver it to the defendant. Rivera found such a vehicle on Frank Street in New Haven and, with the help of a friend, stole a four door Buick and brought the car to the defendant and another man on Ward Street at approximately 2 a.m.

Santana had been riding that night in the car of his friend, Butch Console, with three other persons, Marilyn Torres, Melissa Dawson and Dimiris Vega. When the car stopped on Button Street, the occupants got out. As they were standing by the car, a man approached and offered to paint Console's initials on the driver's door. Console agreed and then stood next to a red station wagon parked on the opposite side of the street. Meanwhile, his friends stood on the street side of Console's car watching the man paint. Console noticed a car approaching slowly on Button Street. He saw what he first thought were firecrackers coming from the rear seat of the car. When he realized it was gunfire, Console ran around the front of the station wagon to the sidewalk and knelt to avoid the bullets. The approaching car was the stolen Buick and contained the defendant and three companions. Gunfire erupted from the area of the rear seat of the Buick. One bullet hit Santana in the stomach, resulting in his hospitalization. Another bullet struck Torres in the back, causing her death. The evidence indicated that at least five shots were fired from close range.

A few minutes later, the defendant and his companions crashed the Buick on Howard Avenue and abandoned it with the motor running, the rear door open, a bullet casing on the floor behind the driver's seat, and a sheet covering the rear seat wet with blood. The rear window had been blown out. A second shell was found on the roof of the car, and a third was found on Button Street at the shooting scene. The defendant went to the Hospital of St. Raphael (hospital) at 2:49 a.m. to seek treatment for a gunshot wound. He spoke with a New Haven police officer at 3:05 a.m. He gave a statement to Sergeant Diane Langston declaring that he and his friend had been accosted and shot on the street in an attempted robbery by two masked men. The defendant stated that he and his friend then ran directly to the hospital.

A ballistics expert testified that the bullet obtained from Torres' body matched the .45 caliber shell casing found on the floor of the Buick. The other casings found on the roof of the Buick and on Button Street came from a nine millimeter gun. A fingerprint expert identified fingerprints found on the interior of the driver's door as those of the defendant. Experts from the state forensic laboratory testified that the blood on the sheet covering the backseat was consistent with the defendant's blood type.

The jury convicted the defendant as charged on all counts. This appeal followed. Additional facts will be set forth where necessary to a resolution of the issues on appeal.

I

The defendant first claims that the evidence presented was insufficient to support the jury's verdict. Specifically, the defendant claims that the evidence presented proves nothing more than that he was in the Buick with three companions when the shots were fired that injured Santana and killed Torres.⁵ We disagree.

"In reviewing a sufficiency claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... State v. Traficonda, 223 Conn. 273, 278, 612 A.2d 45 (1992)." (Internal quotation marks omitted.) State v. Greenfield, 228 Conn. 62, 76, 634 A.2d 879 (1993). In the present case, we agree that the defendant's mere presence in the car with his companions would not, by itself, prove that he was a party to a conspiracy or that he was involved in the crimes that occurred. The evidence indicates, however, that the defendant's involvement went far beyond a mere presence at the scene of the crimes. More than one month before the crimes, the defendant punched Santana in the face when he failed to disclose the whereabouts of his cousin in response to the defendant's inquiry. That incident provides a basis to infer hostility toward Santana on the part of the defendant.

Additionally, on the night of the crimes, it was the defendant who paid Rivera to steal the car used in the shooting. The defendant's fingerprints were found on the interior of the car door on the driver's side. Moreover, the blood on the sheet covering the backseat of the Buick matched the defendant's blood type, indicating that he was sitting there during the shooting and either wounded himself or was injured by a companion when the shots were fired from the backseat. The defendant visited the hospital within one-half hour of the shooting to seek treatment for a gunshot wound to his arm. While he claimed that he had been injured during an attempted robbery by two masked men, that explanation never was corroborated by other evidence. Indeed, an investigation of the alleged location of the reported attempted robbery uncovered no shell casings, blood drops or other physical evidence to support the defendant's account of the attempted robbery. Finally, when Rivera's testimony about being hired by the defendant to steal the car that was used in the shooting is considered along with the subsequent events that occurred that night, the requirement of an overt act in furtherance of the conspiracy is satisfied. General Statutes § 53a-48.⁶ Thus, after reviewing the evidence presented at trial and construing it in the light most favorable to sustaining the conviction, we conclude that there was sufficient evidence from which the jury reasonably could have convicted the defendant on all the charges beyond a reasonable doubt.

II

The defendant next claims that he was denied the right to confront his accusers. This claim, despite its constitutional implications, is based on the admission into evidence of hospital records relating to the defendant's visit to the hospital for treatment of the gunshot wound that he claimed to have received in the attempted robbery.

The following additional facts are necessary for our resolution of this claim. The hospital records indicated that the defendant was admitted at 2:49 a.m. on the morning of the crimes. Sergeant Langston had previously testified that she had taken a statement from the defendant at the hospital shortly after 2:05 a.m. Because the state claimed that the shooting occurred at 2:20 a.m., Langston's testimony would have provided the defendant with an alibi if it were correct. The state called Langston to testify once again after the introduction of the hospital records. It also introduced into evidence, over the defendant's objection, two previously undisclosed statements by Langston, both of which indicated that she had not been dispatched to the hospital until 2:48 a.m. She testified that her earlier testimony was a result of "human error." The defendant's only objection at trial to the admission of the hospital records was that, because this was a criminal case, the court should exercise its discretion and require the custodian of the records at the hospital to testify and be available for cross-examination. The trial court overruled the objection and admitted the records pursuant to General Statutes § 4-104,⁷ which allows hospital records, "if not otherwise inadmissible," to be admitted into evidence without any preliminary testimony when there is attached thereto a certification in affidavit form of the person in charge of the hospital record room or his assistant. The defendant does not claim that the requirements of § 4-104 for admission of the records were not satisfied.

On appeal the defendant claims that the admission of the hospital...