State v. Hart

• Citation: 503 A.2d 588,198 Conn. 424
• Court: Supreme Court of Connecticut
• Decision Date: 28 January 1986
• Parties: STATE of Connecticut v. Lawrence HART.

Page 588

503 A.2d 588

198 Conn. 424

STATE of Connecticut v. Lawrence HART.

Supreme Court of Connecticut.

Argued Dec. 11, 1985.

Decided Jan. 28, 1986.

Richard N. Palmer, Hartford, with whom, on brief, was Robert N. Chatigny, Hartford, for appellant (defendant).

Steven H. Levy, Sp. Asst. State's Atty., with whom, on brief, were Arnold Markle, State's Atty., and Mary Galvin and John M. Massameno, Asst. State's Attys., for appellee (State).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, DANNEHY and CALLAHAN, JJ.

SHEA, Justice.

The defendant, Lawrence Hart, was charged with the crimes of assault in the second degree, in violation of General Statutes § 53a-60(a)(2), ¹ and assault in the second degree with a firearm, in violation of General Statutes § 53a-60a(a). ² On a trial to the jury, the defendant was found guilty of assault in the second degree with a firearm and was sentenced to a term of not less than two years nor more than four years in the custody of the commissioner of correction. From this judgment the defendant appeals, claiming (1) that the state failed to prove him guilty beyond a reasonable doubt; and (2) that the trial court erred in not charging the jury on the law relating to the failure of a party to produce certain witnesses. We find no error.

From the evidence adduced at trial the jury could have reasonably found the following facts: Shortly before midnight on June 13, 1980, the victim, Louis Hall, arrived at the Bama Lounge in New Haven. He parked his car in front of the lounge and told his wife and daughter to wait for him while he attempted to purchase narcotics inside. Soon after he entered the lounge, a few of his "associates" informed him that a man known as "Sticks" was "gunning" for him. They told him that "Sticks" had accused the victim of having robbed him two weeks earlier. The defendant, known as "Sticks," then entered the lounge. Hall then confronted him concerning the allegations. The defendant requested that they go outside. Just outside the building, the defendant drew a revolver from inside his jacket and shot the victim.

I

The defendant's first claim of error is that the evidence presented at trial was insufficient to support the jury's verdict of guilty of assault in the second degree with a firearm. At the close of the state's case, the defendant properly raised this claim by a motion for judgment of acquittal. The gravamen of the defendant's claim is that the uncorroborated testimony of the victim was not adequate, as a matter of law, to support the jury's verdict of guilty beyond a reasonable doubt. We disagree.

In reviewing a sufficiency of the evidence claim, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Johnson v. Louisiana, 406 U.S. [356, 362, 92 S.Ct. 1620, 1624, 32 L.Ed.2d 152 (1972) ]." (Emphasis in original.) State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983), quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, reh. denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); see State v. Amarillo, 198 Conn. 285, 289, 503 A.2d 146 (1986); State v. Morrill, 197 Conn. 507, 512, 498 A.2d 76 (1985); State v. Rutan, 194 Conn. 438, 444, 479 A.2d 1209 (1984); State v. Martin, 189 Conn. 1, 9, 454 A.2d 256 (1983).

The defendant points to a number of factors that so detracted from the victim's credibility, that, in the absence of additional corroborative evidence, his testimony could not have supported the jury's verdict: The victim testified that he had been convicted of five separate felonies and had been a frequent heroin user. He further testified that he had been arrested on an unrelated larceny charge the day before the shooting and had been released on bond only hours before the incident. Despite claiming to have known the defendant all his life, the victim was unable to provide the investigating officers with his surname. Finally, the victim admitted that he would have refused to testify had the defendant given him $300 to cover his medical expenses. The defendant argues that in light of these factors the trial court should have granted his motion for acquittal because the testimony was not supported by other evidence. In this regard the defendant adverts to medical testimony that the superficial wound on the victim could have been caused by something other than a bullet. He also relies upon the state's failure to introduce any bullet fired by the defendant or the testimony of any of the "30-40" eyewitnesses to the incident who were present at the lounge.

The defendant misperceives the scope of our factual inquiry on appeal. "This court does not retry the case or evaluate the credibility of the witnesses." State v. Amarillo, supra, 198 Conn. 289, 503 A.2d 146. "The credibility of witnesses is a matter to be resolved solely by the jury." State v. Myers, 193 Conn. 457, 473, 479 A.2d 199 (1984); State v. White, 155 Conn. 122, 123-24, 230 A.2d 18 (1967). "This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury's verdict." State v. Stankowski, 184 Conn. 121, 127, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S.Ct. 596, 70 L.Ed.2d 588 (1981).

The victim's testimony, if believed by the jury, was sufficient to establish that the defendant assaulted him with a firearm. Because the jury presumably found the victim's testimony to be credible, there was no need for corroborative evidence. The fact that other witnesses or corroborative physical evidence possibly could have been produced by the state to support the victim's testimony does not in any way diminish the validity of the jury's verdict. State v. Brown, 198 Conn. 348, 353, 503 A.2d 566 (1986). The evidence, viewed in a light most favorable to sustaining the verdict, allowed the jury reasonably to conclude, beyond a reasonable doubt, that the defendant assaulted the victim.

II

The defendant also claims that he was entitled to a jury instruction that an unfavorable inference could be drawn against the state for its failure to call the victim's wife as a witness. We disagree.

"The failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party's cause." Ezzo v. Geremiah, 107 Conn. 670, 677, 142 A. 461 (1928). "There are two requirements for the operation of the rule: The witness must be available, and he must be a witness whom the party would naturally produce." Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960); see D'Amico v. Manson, 193 Conn. 144, 153, 476 A.2d 543 (1984); Doran v. Wolk, 170 Conn. 226, 230, 365 A.2d 1190 (1976). "To have the jury charged on the rule, the party claiming the benefit of it must show that he is entitled to it. State v. Carrione, 188 Conn. 681, 688, 453 A.2d 1137 (1982), cert. denied, 460 U.S. 1084, 103 S.Ct. 1775, 76 L.Ed.2d 347 (1983)." State v. Amarillo, supra, 198 Conn. 307, 503 A.2d 146.

The defendant has not met his burden of demonstrating that Hall's wife was available. There was...