State v. Hersey, (AC 22779).

Decision Date22 July 2003
Docket Number(AC 22779).
Citation826 A.2d 1183,78 Conn. App. 141
CourtConnecticut Court of Appeals
PartiesSTATE OF CONNECTICUT v. ROBERT HERSEY

Foti, Pellegrino and Dranginis, Js. Donald D. Dakers, special public defender, for the appellant (defendant).

Julia K. Conlin, deputy assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Lisa Herskowitz, assistant state's attorney, for the appellee (state).

Opinion

FOTI, J.

The defendant, Robert Hersey, appeals from the judgment of conviction, rendered following a jury trial, of disorderly conduct in violation of General Statutes § 53a-182, assault in the third degree in violation of General Statutes § 53a-61 (a) (1), criminal violation of a protective order in violation of General Statutes § 53a-223, burglary in the third degree in violation of General Statutes § 53a-103 and breach of the peace in violation of General Statutes (Rev. to 2001) § 53a-181.1 On appeal, the defendant claims that the trial court (1) improperly admitted into evidence certain of the victim's prior inconsistent statements and (2) delivered incorrect jury instructions concerning inferences that the jury properly could draw from the evidence, the charge of burglary in the third degree and the charge of violation of a protective order. We affirm the judgment of the trial court.

From the evidence adduced at trial, the jury reasonably could have found the following facts. The female victim and the defendant shared a home in Manchester where, at or around 6:30 p.m. on April 26, 2001, they engaged in a domestic dispute. The victim was speaking to a relative on the telephone when the defendant started yelling insults at her. The defendant grabbed the telephone from the victim's hands and hung it up. Motivated by fear for her safety as the defendant continued to yell at her, the victim attempted to summon police assistance. While she used the telephone to call the police, the defendant became even more agitated. He again grabbed the telephone from the victim's hands and hung it up. The defendant called the victim a "stupid idiot" and told her that she would not "get away with this again." The defendant then threw a crumpled bag at the victim and raised his hand in a threatening manner, as if he were going to strike the victim. The defendant physically had abused the victim prior to that incident, and the victim backed away from him in response to his threatening behavior. The defendant, however, ran out the front door of the residence, only to be apprehended by police, who arrested him on a charge of disorderly conduct shortly thereafter. The defendant was released on bond and arraigned the following morning, April 27, 2001. Before 1 p.m. on April 27, 2001, the court issued a protective order, thereby ordering the defendant to refrain from, inter alia, having contact "of any kind with the victim" and from "entering the family dwelling or the dwelling occupied by the victim."

At or around 4 p.m., on April 27, 2001, the defendant went to the victim's house. The defendant encountered the victim, who had been in the bathroom. When the victim opened the bathroom door, the defendant grabbed her by the neck and violently pushed her to the floor. The defendant's actions caused the victim to suffer a cut lip and a nose bleed. The defendant yelled at the victim, telling her that she "really screwed [his] life up." Afterward, the defendant ran out of the house.

Police later apprehended and arrested the defendant and, following a jury trial, the court sentenced him to a term of imprisonment of fifteen years and three months, suspended after five years and three months, and five years of probation. Additional facts and procedural history relevant to the defendant's claims will be set forth as necessary.

I

The defendant first claims that the court improperly admitted into evidence certain of the victim's statements and permitted the jury to use them substantively under State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). We disagree.

At trial, the victim testified that she loved the defendant, her boyfriend of four years, and wanted to be with him. In regard to the events underlying the defendant's conviction, the victim testified that on April 26, 2001, she and the defendant had been arguing. She testified that he threw a crumpled bag at her and, when she tried to call the police, he took the telephone from her hands and hung it up. She also testified that the defendant was "raising his arms" while he yelled at her and that she was merely a "little" frightened of him. She testified, however, that she did not believe that he was going to do anything to her. With regard to the next day's events, the victim testified that the defendant never even came to her home on April 27, 2001, and that she cut her lip when she fell down that day.

During direct examination by the state, the prosecutor showed the victim two written statements that she gave to Richard Grimaldi, a Manchester police officer. The victim testified that Grimaldi took the first statement in her home on April 26, 2001.2 The victim also testified that the statement contained her signature, but that she did not have her glasses on when she signed it and had not read it when she signed it. The victim further testified that the next day, she had in fact sought a protective order to prevent the defendant from returning to her home.

When the prosecutor showed the victim her statement of April 27, 2001, she testified that she did not remember giving that statement to the police.3 She then testified that she recalled signing the statement, but that she had been "drinking" during that day. Following that testimony, the prosecutor sought to introduce into evidence both of the victim's statements. The defendant objected on the ground that the statements were hearsay. The state argued that the statements were admissible as prior inconsistent statements under Whelan. Before ruling on the admissibility of the statements, the court permitted the defendant to voir dire the victim concerning the statements. The victim reiterated that she had not read the April 26, 2001 statement and testified that within twenty-four hours of giving that statement, she was admitted to a hospital under an emergency psychiatric commitment. She testified that at the time she made the statement, she was "pretty upset and pretty confused," and that she signed the papers when she "shouldn't have." During further examination by the state, the victim testified that the statement was reliable, that she did not believe that the April 26, 2001 statement was in any way inaccurate and that the facts alleged therein were likely what she told Grimaldi.

With regard to the April 27, 2001 statement, the victim testified on voir dire examination that she had consumed three or four eight ounce alcoholic drinks beginning around midday on April 27, 2001. The victim further testified that on April 27, she was under the influence of a myriad of psychiatric and other medications. The victim recalled that because of an impaired physical condition following hip surgery, she tripped and fell over some carpeting in her home that day. According to the victim, someone from an assistance program to which she belongs came to her home and asked about her cut lip. The victim testified that she told the person that the defendant had caused the cut lip, left the house with the person and did not remember meeting with Grimaldi later that day. After that examination of the victim, the court admitted both statements into evidence under Whelan. The defendant argues now, as he did at trial, that the statements are inadmissible under Whelan because they lack sufficient indicia of reliability.

We first set forth our standard of review. "The admissibility of evidence, including the admissibility of a prior inconsistent statement pursuant to Whelan, is a matter within the . . . discretion of the trial court. . . . [T]he trial court's decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done. . . . On review by this court, therefore, every reasonable presumption should be given in favor of the trial court's ruling." (Citations omitted; internal quotation marks omitted.) State v. Corbin, 260 Conn. 730, 736-37, 799 A.2d 1056 (2002).

The Whelan rule is an exception to the rule against hearsay. It permits a nonparty witness' prior inconsistent statements to be used for substantive purposes, that is, to prove the truth of the matters asserted therein, provided that the following conditions exist: (1) the statement must be in writing, (2) the statement must be signed by the declarant, (3) the declarant must possess personal knowledge of the facts contained therein, and (4) the declarant must testify at trial and be subject to cross-examination. State v. Whelan, supra, 200 Conn. 753; see also Conn. Code Evid. § 8-5 (1). The Whelan rule is meant to assure a reasonable degree of reliability in a proffered statement; to be admissible, "a prior inconsistent statement must have been given under circumstances ensuring its reliability and trustworthiness." State v. Davis, 32 Conn. App. 21, 38, 628 A.2d 11 (1993). The admission of prior statements under the rule affords the trier of fact an opportunity to gauge a witness' present testimony after such witness is confronted with a prior inconsistent statement. "[G]iven the opportunity for meaningful cross-examination of such a witness, 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. . . . After this type of examination, the jury can draw whatever conclusions concerning the witness' testimony that it deems to be appropriate." (Citation omitted; internal...

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