State v. Hines

• Citation: 709 A.2d 522,243 Conn. 796
• Decision Date: 03 March 1998
• Docket Number: No. 15309,15309
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Hartley HINES.

Page 522

709 A.2d 522

243 Conn. 796

STATE of Connecticut v. Hartley HINES.

No. 15309.

Supreme Court of Connecticut.

Argued Dec. 10, 1997.

Decided March 3, 1998.

Elizabeth M. Inkster, Assistant Public Defender, for appellant (defendant).

[243 Conn. 798] Mary H. Lesser, Assistant State's Attorney, with whom, on the brief, were Michael Dearington, State's Attorney, and James G. Clark, Assistant State's Attorney, for appellee (State).

Before CALLAHAN, C.J., and BERDON, NORCOTT, KATZ and McDONALD, JJ.

CALLAHAN, Chief Justice.

The defendant, Hartley Hines, also known as Robert "Ricky" Harris, was charged in an information with murder in violation of General Statutes § 53a-54a, and criminal possession of a firearm in violation of General Statutes § 53a-217. ¹ Following [243 Conn. 799] judgments of conviction on both counts, he was sentenced to a term of fifty years incarceration on the

murder charge and five years on the criminal possession charge, to be served consecutively. He appealed from both convictions to this court pursuant to General Statutes (Rev. to 1997) § 51-199(b), ² raising the following four issues: (1) whether the trial court properly admitted into evidence as a prior consistent statement, Mark Reid's statement to the police regarding a threat that the defendant had made to the victim; (2) whether the court correctly refused to admit Kenyan Smith's statement pursuant to the residual exception to the hearsay rule; (3) whether the court properly instructed the jury concerning consciousness of guilt; and (4) whether the court properly instructed the jury concerning reasonable doubt. None of the issues raised warrants reversal of the defendant's convictions

A jury reasonably could have found the following facts. On June 23, 1993, at approximately 9:20 p.m., the victim, Worrell Johnson, also known as Gucci, was shot and killed in the area of Scranton Street and Sherman Street in New Haven. Earlier that day, Mark Reid and Marlon Brown were at the home of the victim when the victim received a telephone call, which he placed on the speaker phone. ³ Reid heard the conversation, recognized the defendant's voice and identified the defendant as the caller. During the call, the defendant [243 Conn. 800] and the victim argued over $500 owed by the defendant to the victim as a result of their drug transactions. The defendant threatened the victim, saying he would pay the $500, but that the victim should use the money to buy a suit for his own funeral.

Later that evening, Reid, Brown and the victim were on the corner of Whalley Avenue and Norton Street in New Haven when, at approximately 9 p.m., the defendant rode by the corner on a bicycle and threatened the victim. At some point between 9 and 9:20 p.m., the victim rode away on his own bicycle. He was not seen alive again by Reid or Brown. After his initial appearance at the corner, the defendant later returned twice as a passenger in a burgundy Subaru Legacy driven by Tyrone Ashby, also known as Dice. The first time, the defendant told Reid to tell the victim that he was "not playing" and not leaving his "steel," a slang term for a gun, on the street. The second time, he told Reid that he had just shot the victim and that he intended to leave to get more ammunition and would return to shoot a friend of the victim. Immediately thereafter, Reid and Brown were told by a bystander that the victim had been shot. When Reid went with Brown to the scene of the murder, he observed the defendant and Ashby drive by in Ashby's car.

While the defendant was in the car with Ashby, he had in his possession a .38 caliber handgun, which was the same caliber as the murder weapon. He also appeared to be intoxicated. When the defendant and Ashby drove past the scene of the shooting, the defendant admitted to Ashby that he had shot at the victim because he was "tired of being messed with" and in retaliation for the victim allegedly having shot at him the previous day. Additional relevant facts will be provided as necessary.

[243 Conn. 801] I

The defendant first claims that the trial court improperly admitted a portion of a

statement Reid made to the police, which was consistent with Reid's later trial testimony, regarding a telephone threat made to the victim on the morning of the murder. The defendant argues that because he neither offered a theory of recent fabrication ⁴ with respect to the threat nor attempted to impeach Reid's credibility regarding the telephone call, the court improperly admitted Reid's prior consistent statement concerning the threat. We disagree

The trial court's ruling on the admissibility of evidence is entitled to great deference. State v. Castonguay, 218 Conn. 486, 497, 590 A.2d 901 (1991); State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985). "[T]he trial court has broad discretion in ruling on the admissibility ... of evidence.... The trial court's ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion.... We will make every reasonable presumption in favor of upholding the trial court's ruling, and only upset it for a manifest abuse of discretion." (Citations omitted; internal quotation marks omitted.) State v. Coleman, 241 Conn. 784, 789, 699 A.2d 91 (1997). Moreover, evidentiary rulings "will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. State v. Alvarez, 216 Conn. 301, 306, 579 A.2d 515 (1990)"; (internal quotation marks omitted) State v. Beliveau, 237 Conn. 576, 592, 678 A.2d 924 (1996); State v. Colton, 227 Conn. 231, 260, 630 A.2d 577 (1993), on appeal after remand, 234 Conn. 683, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S.Ct. 972, 133 L.Ed.2d 892 (1996). This deferential standard is applicable to [243 Conn. 802] evidentiary questions involving hearsay, generally; see State v. Beliveau, supra, at 592, 678 A.2d 924; and to questions relating to prior consistent statements, specifically. See State v. Valentine, 240 Conn. 395, 413-14, 692 A.2d 727 (1997).

The defendant's evidentiary challenge stems from the combined trial testimony of two of the state's witnesses. Reid testified on direct examination that he was present when the victim received threats over the telephone on the morning of the murder. He also testified regarding the incidents involving the defendant at the corner of Whalley Avenue and Norton Street on the evening of the murder. On cross-examination, the defendant questioned Reid regarding portions of a statement he had made to the police shortly after the murder that were inconsistent with his trial testimony. Specifically, Reid was questioned regarding apparent inconsistencies between his testimony and his prior statement pertaining to events that occurred on the evening of the murder. In that connection, the defendant introduced only those portions of Reid's prior statement relating to the evening of the murder. He did not question Reid regarding his presence at the time of the threatening telephone call nor did he offer to introduce at that time the portion of Reid's statement pertaining to that incident. The trial court did permit the state, on redirect examination, to introduce additional portions of Reid's statement relating to events that had occurred on the evening of the murder that were consistent with Reid's trial testimony. Those portions of the statement were offered to rehabilitate Reid's credibility.

Brown, another state's witness, also testified concerning the events that had occurred on the evening of June 23, 1993, at the corner of Whalley Avenue and Norton Street. His testimony substantially corroborated Reid's testimony in that regard. On cross-examination, Brown testified that he had been present with the victim at the time the victim received the morning telephone [243 Conn. 803] call from the defendant. He was unable, however, to testify to the full extent of the conversation. He did state that the conversation had been about money but that he could not recall any threats. Brown further testified that Reid was not present at the time of the telephone call. On redirect examination, Brown was more equivocal, vacillating between saying that Reid had not been there and that he could not remember whether Reid had been

present. On recross-examination, Brown again said that Reid had not been present at the time of the telephone call. At that point, the state argued that Reid's prior statement regarding the telephone call was properly admissible to rehabilitate his credibility, which had been impeached by the combined effect of the cross-examinations of Reid and Brown and the admission of only a part of Reid's prior statement, which implied a recent fabrication of the testimony regarding the telephone call. The trial court agreed with the state's argument and admitted that portion of Reid's prior statement into evidence. ⁵ We conclude that the court did not abuse its discretion in doing so

An out-of-court statement offered to prove the truth of the matter asserted is hearsay and is generally inadmissible unless an exception to the general rule applies. State v. Oquendo, 223 Conn. 635, 664, 613 A.2d 1300 (1992). Prior consistent statements of a witness are generally regarded as hearsay and are not admissible at trial, either for their truth or for the purpose of rehabilitating a witness' damaged credibility. State v. Valentine, supra, 240 Conn. at 412, 692 A.2d 727; Thomas v. Ganezer, 137 Conn. 415, 417, 78 A.2d 539 (1951). "The rationale upon [243 Conn. 804] which this rule is based is that the witness' story is not made more probable or more trustworthy by any number of repetitions of it." (Internal quotation marks omitted.) State v. Dolphin, 178 Conn. 564, 569, 424 A.2d 266 (1979). "This rule, however, is not absolute. The trial court, within its discretion, may admit a prior consistent statement if offered to rehabilitate a...