State v. Hoeplinger

• Decision Date: 26 May 1992
• Docket Number: No. 9791,9791
• Citation: 609 A.2d 1015,27 Conn.App. 643
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. John C. HOEPLINGER.

Page 1015

609 A.2d 1015

27 Conn.App. 643

STATE of Connecticut v. John C. HOEPLINGER.

No. 9791.

Appellate Court of Connecticut.

Argued March 24, 1992.

Decided May 26, 1992.

Certification Denied ^* July 16, 1992.

Ira B. Grudberg, with whom, on the brief, was Steven D. Ecker, New Haven, for appellant (defendant).

Richard F. Jacobson, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Robert A. Lacobelle, Asst. State's Atty., for appellee (state).

Before DALY, EDWARD Y. O'CONNELL and HEIMAN, JJ.

HEIMAN, Judge.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a)(1). He claims that (1) the jurors' inappropriate conduct, coupled with the brevity of their deliberations, violated his right to a fair trial, (2) the trial court improperly excluded a tape recording of a 911 telephone call he had made, and (3) the prosecutor, in his closing argument, improperly commented on the defendant's failure to testify. We affirm the trial court's judgment.

This case involves the second trial of the defendant, John C. Hoeplinger, for killing his wife in their Easton home in the early morning of May 7, 1982. The defendant was indicted by a grand jury and charged with murder in violation of General Statutes § 53a-54a(a). See General Statutes § 54-45. He was convicted, after a jury trial, of manslaughter in the first degree, a lesser included offense. See General Statutes § 53a-55(a)(1). We affirmed that judgment of conviction. State v. Hoeplinger, 9 Conn.App. 147, 517 A.2d 632 (1986). Our Supreme Court granted certification, reversed our judgment, and remanded the case to us with direction to set the judgment aside and to remand the case to the Superior Court for a new trial. State v. Hoeplinger, 206 Conn. 278, 537 A.2d 1010 (1988). The defendant again elected a jury trial, and again was convicted of manslaughter in the first degree. This appeal followed.

The defendant's second trial lasted more than four weeks. The state presented a case based on a complex web of circumstantial, largely forensic, evidence. More than thirty witnesses testified. More than 250 exhibits were introduced. The transcript of the proceedings filled over 2600 pages. Numerous expert witnesses testified in considerable detail regarding sophisticated forensic analyses, including blood spatter analysis, blood typing, absorption elution, latus crust testing and bulbochaete, seta and diatom analyses. The state also presented evidence regarding the defendant's marital problems and his history of spousal abuse. There was no eyewitness to the crime.

The state theorized that the defendant attacked the victim while she slept on a couch in the family room of their house, dragged her outside to a wooded area off the driveway, dragged her to a second wooded area, returned her to the house, placed her on the same couch on which he had initially assaulted her and smashed in her skull with a brick. The defendant vigorously disputed the state's evidence and the inferences that the state asked the jury to draw from it, argued that the state's evidence contained manifest inconsistencies and presented affirmative evidence to support his theory of third party guilt.

I

The defendant first claims that the jurors' inappropriate conduct, coupled with the brevity of their deliberations, violated his right to a fair trial. The following additional facts are necessary to resolve this issue. Counsel delivered final arguments during the morning of October 18, 1990. The trial court charged the jury that afternoon. The jury returned a verdict of guilty of manslaughter in the first degree at 3:55 p.m. the following day.

On October 23, 1990, the defendant filed a motion for a new trial, claiming that "[t]he jury did not properly or sufficiently consider the evidence in the case." On November 30, 1990, the trial court held an evidentiary hearing on the defendant's motion for a new trial. At the evidentiary hearing, the defendant's current wife testified that she heard periodic outbursts of laughter coming from the jury room from about 12:15 p.m. on October 19, 1990, until just before the jury delivered its verdict. She further testified that the loudest outburst occurred just before the jury delivered its verdict. The defendant also testified at the evidentiary hearing that on October 19, 1990, he heard sounds of laughter coming from the jury room. He estimated that the average time between the episodes of laughter was twenty minutes and that the loudest outburst came just before the jury returned its verdict. The defendant claimed that the jurors' conduct, viewed in light of the brevity of their deliberations and the complexity of the case, deprived him of his right to a fair trial by an impartial jury. See U.S. Const., amend. VI; Conn.Const., art. I, § 19. The trial court denied the defendant's motion without comment.

Although the trial court did not place its reasons for denying the motion on the record, the defendant did not seek articulation of the basis of that decision. See Practice Book § 4051. Thus, we can only speculate as to which of the many legitimate reasons for denying the motion for a new trial that the trial court in fact employed. Where a motion for a new trial is based on juror misconduct, the rule in this state is that, regardless of the impropriety of the jurors' actions, the defendant cannot prevail unless it appears that the misconduct was occasioned by the prevailing party or anyone on his behalf, that the misconduct indicated an improper bias in the jurors' minds and that the misconduct harmed the defendant. See State v. Asherman, 193 Conn. 695, 735-36, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S.Ct. 1749, 84 L.Ed.2d 814 (1985). Perhaps the trial court did not credit the testimony of the two witnesses. If so, its action is virtually unreviewable. See Speed v. DeLibero, 215 Conn. 308, 314, 575 A.2d 1021 (1990) (the trial court in the best position to judge the credibility of witnesses). Perhaps the trial court believed the two witnesses but concluded that the defendant had failed to establish prejudice. See Asherman v. State, 202 Conn. 429, 442, 521 A.2d 578 (1987). Perhaps it found that the juror misconduct was not occasioned by the state. State v. Asherman, supra. On the record before us, it is impossible to discern the basis on which the trial court denied the motion for a new trial.

The appellant bears the burden of providing us with a record adequate to review a claimed error. State v. Laracuente, 205 Conn. 515, 520, 534 A.2d 882 (1987), cert. denied, 485 U.S. 1036, 108 S.Ct. 1598, 99 L.Ed.2d 913 (1988). Our role " 'is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court.' " State v. Tirado, 194 Conn. 89, 92, 478 A.2d 606 (1984); State v. Chairamonte, 189 Conn. 61, 64, 454 A.2d 272 (1983). Without the necessary factual and legal conclusions furnished by the trial court, either on its own or in response to a proper motion for articulation, any decision made by us respecting this claim would be entirely speculative. See State v. Tirado, supra, 194 Conn. at 92-93, 478 A.2d 606.

Because the defendant has not provided us with an adequate record on which to review his claim, his claim must fail.

II

The defendant next asserts that the trial court improperly excluded a tape recording of a 911 telephone call he had made.

The jury reasonably could have found the following additional facts, which are necessary to resolve this issue. On May 7, 1982, at 4:55 a.m., the defendant called 911 and requested that an ambulance be sent to his house at 15 Deerfield Drive, stating "my wife is in serious shape," "she's bloody," and "[the blood is] all over her face and head." Officer Raymond Osborne of the Easton police department arrived at the scene at 5:01 a.m. and found that the front porch light, the lights adjacent to the driveway and the interior house lights were on. Osborne then observed the defendant emerge from the house sobbing, distraught and shaken, declaring "she's got blood all over her." The defendant admitted Osborne into the house and led him to the family room, where Osborne saw the defendant's wife lying face up on a couch, wrapped in a sheet and blankets. Osborne observed that the victim's skull appeared to be caved in and that there was much blood on and around her head.

Officer Richard Schwartz, also of the Easton police department, arrived on the scene by 5:07 a.m. Upon entering the house, Schwartz observed the defendant kneeling next to wife, sobbing and shaking.

Rose Marie Brunetti, an Easton police department dispatcher, had received the defendant's call and dispatched Osborne and Schwartz. The caller identified himself as John Hoeplinger and told her that he needed an ambulance because his wife was seriously hurt.

When the defense attempted to introduce the tape recording into evidence, the state interposed a hearsay objection. The defendant claimed that the tape recording was not hearsay because it was not being offered to prove the truth of its contents but to corroborate testimony regarding the defendant's demeanor at the scene. The defendant claimed alternatively that the tape recording was admissible under the excited utterance and best evidence exceptions to the hearsay rule. The trial court sustained the state's objection, concluding that the evidence was hearsay that fell under no recognized exception to the prohibition on such testimony.

Because the state objected only on hearsay grounds, we must first determine whether the court correctly concluded that the tape recording was excludable hearsay. "Unless excluded by some rule or principle of law, any fact may be proved which logically tends to aid the trier in the determination of the issue. Evidence is admitted, not because it is shown to be competent,...