State v. Harris

• Decision Date: 19 August 1980
• Citation: 182 Conn. 220,438 A.2d 38
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Arthur HARRIS.

Page 38

438 A.2d 38

182 Conn. 220

STATE of Connecticut v. Arthur HARRIS.

Supreme Court of Connecticut.

Argued June 3, 1980.

Decided Aug. 19, 1980.

Alphonse DiBenedetto, Public Defender, for appellant (defendant).

Linda K. Lager, Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty., and Richard P. Sperandeo, Chief Asst. State's Atty., for appellee (state).

Before COTTER, C. J., and BOGDANSKI, HEALEY, PARSKEY and ANTHONY J. ARMENTANO, JJ.

PARSKEY, Associate Justice.

After a jury trial the defendant was convicted of murdering William Earl Gilbert. On appeal the defendant seeks a reversal based on (1) the insufficiency of the evidence, (2) two rulings by the court declaring two state's witnesses to be hostile witnesses, (3) a ruling on evidence, (4) the defendant's failure to receive a fair trial because of the cumulative effect of ineffective assistance of counsel and prejudicial comments by the prosecutor, (5) improper comments on the evidence by the court, and (6) an error in the court's charge to the jury.

To determine whether the evidence is sufficient to support a jury verdict of guilty, we review the evidence presented at trial and construe it in the manner most favorable to sustaining the verdict. State v. Chetcuti, 173 Conn. 165, 172, 377 A.2d 263 (1977). The issue before us is whether the jury could have reasonably concluded, from the facts established and the reasonable inferences drawn therefrom, that the evidence was sufficient to justify a verdict of guilty beyond a reasonable doubt. State v. Jackson, 176 Conn. 257, 262, 407 A.2d 948 (1978).

From the evidence presented at trial the jury could reasonably have found the following: The victim's body had been found in the West Rock Park area of Hamden at approximately 10:30-11:00 p. m. on November 4, 1973. The time of death was between 9 and 10 p. m.; the cause, destruction of the spinal cord caused by a bullet entering the victim's back. A witness who lived in the vicinity heard six shots between 9:05 and 9:10 p. m. Three spent .44 magnum shells and a spent .44 magnum copper jacket hollow point bullet were found at the scene; another bullet was found lodged in a nearby tree. Both bullets were fired from the same gun, a .44 magnum Ruger rifle.

For a number of years prior to the shooting the defendant was aware that his wife, Louise Harris, and William Gilbert were having an affair. This engendered hostility between the defendant and Gilbert which was manifested in 1971 when Gilbert shot and wounded the defendant after the defendant entered Gilbert's apartment with a starter's pistol while Gilbert and the defendant's wife were in the bedroom. After this incident the defendant and his wife separated for about a year.

In February or March of 1973, the defendant told Ernest Tarducci, the son of the defendant's deceased employer, that he had a .44 magnum rifle. The next day the defendant brought some .44 magnum ammunition in to work to show Tarducci, who owned a .44 magnum pistol. These bullets fit both a .44 rifle and a .44 magnum pistol. A month later Tarducci saw the defendant remove a small rifle, possibly a Ruger semiautomatic .44 magnum, from a truck. At another time the defendant showed his stepson a rifle which looked like a .44 magnum and which the stepson assumed was a .44 magnum. The defendant also had about a half case of .44 magnum bullets.

On the morning of November 4, 1973, Louise Harris returned home with scratches on her hand that she received while fighting with Gilbert. She and the defendant argued about her continuing to see Gilbert. Gilbert had an 8 p. m. appointment to meet "Louise" on November 4, 1973. The spot in West Rock Park where Gilbert's body was found was his favorite place to take Louise Harris.

The defendant went to a poolroom sometime between 8:30 and 9 p. m. to attempt to buy liquor. The 8.8 mile trip from that poolroom to the place where Gilbert was found would take about nineteen minutes by car.

Approximately six hours after Gilbert was shot two members of the Hamden police department and one member of the New Haven police department went to Arthur Harris' residence at 29 Level Street in New Haven because a telephone bill made out to Louise Rodgers, also known as Louise Harris, at 29 Level Street was found in Gilbert's wallet. At that time they questioned the defendant, but conducted no search of the premises. A search of the Harris apartment was conducted with the defendant's consent on November 7, 1973. That search yielded a .44 magnum bullet with a lead hollow head that had been chambered in the same gun that had fired the three shells found near Gilbert's body. This bullet resembled the other .44 magnum bullets which the defendant had and was also, as far as could be determined, the same as the bullets found at the scene of the crime.

There was abundant evidence presented in this case regarding the defendant's motive for killing Gilbert. While evidence of motive does not establish an element of the crime charged; see State v. Annunziato, 169 Conn. 517, 530, 363 A.2d 1011 (1975); such evidence is both desirable and important. See State v. Doucette, 147 Conn. 95, 103, 157 A.2d 487 (1959) (overruled on other grounds in State v. Tillman, 152 Conn. 15, 20, 202 A.2d 494 (1964) ). It strengthens the state's case when an adequate motive can be shown. State v. Hoyeson, 154 Conn. 302, 307, 224 A.2d 735 (1966). Evidence tending to show the existence or nonexistence of motive often forms an important factor in the inquiry as to the guilt or innocence of the defendant. State v. Rathbun, 74 Conn. 524, 529, 51 A. 540 (1902). This factor is to be weighed by the jury along with the other evidence in the case. State v. Annunziato, supra. The role motive plays in any particular case necessarily varies with the strength of the other evidence in the case. "The other evidence may be such as to justify a conviction without any motive being shown. It may be so weak that without a disclosed motive the guilt of the accused would be clouded by a reasonable doubt." State v. Rathbun, supra, 74 Conn. at 529-30, 51 A. at 542.

Aside from evidence of motive, there was evidence that the defendant had access to a .44 magnum rifle. See State v. Villafane, 171 Conn. 644, 675, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S.Ct. 1137, 51 L.Ed.2d 558 (1977). A live round of ammunition which was found in the defendant's possession had been chambered in the weapon most likely used to kill Gilbert. That Gilbert was shot in the back lends support to the conclusion that the shooting was intentional. See State v. Bzdyra, 165 Conn. 400, 405, 334 A.2d 917 (1973). Together with the extensive evidence regarding motive, this evidence was sufficient to allow the jury reasonably to conclude that the defendant was guilty beyond a reasonable doubt.

The defendant next claims that the trial court erred in declaring two state's witnesses to be hostile and in allowing the state to impeach their testimony by introducing prior inconsistent statements into evidence. The first such ruling occurred when the defendant's stepson, Jessie Rodgers, was on the stand. He had given three statements to the police shortly after the homicide. When confronted with these statements during his testimony, he claimed that he was misled into making the statements and that he could not remember saying what was in the statements. Further, the state's attorney represented that, on the basis of a prior conference with the witness, he expected the witness' testimony to square with the earlier statements. Relying on both hostility and surprise, he then sought and obtained a ruling declaring the witness hostile. The determination of hostility rests in the sound discretion of the court. State v. Roberson, 173 Conn. 97, 99-100, 376 A.2d 1089 (1977). The court below was acting well within its discretion in making the ruling complained of. See Liebman v. Society of Our Lady of Mount St. Carmel, Inc., 151 Conn. 582, 587-89, 200 A.2d 721 (1964). See 2 Wharton, Criminal Evidence (13th Ed.) § 484.

The defendant also contends that the court erred in admitting into evidence one of the three statements given by Jessie Rodgers, which had been tape recorded. At trial the defendant raised the objection that the statement could not properly be used to impeach because the witness was not sufficiently hostile in the legal sense. In light of our resolution of the hostility issue, the defendant's argument fails. The other grounds argued on appeal for excluding the evidence were not raised before the trial court. As to these grounds, we cannot conclude that the record supports a claim that the defendant has been denied a fundamental constitutional right and a fair trial. Accordingly, we do not discuss these grounds. State v. Adams, 176 Conn. 138, 144-45, 406 A.2d 1 (1978); Practice Book, 1978, § 3063. See State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

The defendant also challenges the court's ruling declaring Charles Rodgers, another witness called by the state, to be a hostile witness. The witness testified that he was the defendant's brother-in-law and that they grew up together. After reading his prior statement given to the police, the witness denied ever having said part of what was in the statement. At this point the witness was declared to be hostile. This ruling did not rest on any claim of surprise. Rather, it is supported on the dual basis of the close relationship between the witness and the accused and the inconsistency between the witness' prior statement and his testimony in court. See State v. Esposito, 166 Conn. 550, 554, 353 A.2d 746 (1974). Under the circumstances the court properly exercised its discretion when it declared Charles Rodgers to be a hostile witness. See Liebman v. Society of Our Lady of Mount St. Carmel, Inc., supra, 151 Conn. at 589, 200 A.2d 721.

The witness' prior inconsistent statement was introduced into evidence...