State v. Hopkins

• Decision Date: 19 May 1992
• Docket Number: No. 13832,13832
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Anthony HOPKINS.

Page 236

609 A.2d 236

222 Conn. 117

STATE of Connecticut v. Anthony HOPKINS.

No. 13832.

Supreme Court of Connecticut.

Argued Jan. 15, 1992.

Decided May 19, 1992.

Sue L. Wise, with whom, on the brief, was Diane Polan, New Haven, for appellant (defendant).

Frederick W. Fawcett, 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 PETERS, C.J., and SHEA, CALLAHAN, COVELLO and BERDON, JJ.

BERDON, Associate Justice.

The defendant, Anthony Hopkins, was convicted by a jury and sentenced to a term of imprisonment for fifty years for felony murder in violation of General Statutes § 53a-54c, attempted robbery in violation of General Statutes §§ 53a-49 and 53a-134(a)(1), and assault in violation of General Statutes § 53a-59(a)(1). ¹ In his appeal to this court, the defendant claims that the trial court improperly: (1) admitted as substantive evidence a prior inconsistent statement of a nonparty witness; and (2) deprived him of a fair trial in its supplemental instructions to the deadlocked jury and also in its jury instructions as a whole. We affirm the judgment of the trial court.

From the evidence presented, the jury could reasonably have found the following facts. In the early morning hours of August 27, 1988, Dorothy Hopkins, a prostitute and drug addict, was soliciting on the corner of Barnum Avenue and Kossoth Street in Bridgeport. Her husband and pimp, Earl Hopkins, was nearby. Keith Kochiss approached Dorothy Hopkins in his car, which she entered. They proceeded to drive around the area. When they agreed upon a price for her services, Kochiss parked his car on Maple Street, closed the window, locked the car and unzipped his pants. As she was about to perform a sexual act, Dorothy Hopkins saw the defendant, who was her brother-in-law, approach the car with another individual. Both of the men who approached the car were black. The defendant demanded that Kochiss turn over his money. When Kochiss attempted to reach for the ignition key, the defendant fatally shot him in the head through the closed window. The bullet went through Kochiss' head and entered Dorothy Hopkins' body.

The defendant then put his hand through the shattered window and turned the ignition key. The car lunged forward and crashed into a tree. As Dorothy Hopkins crawled out of the car, Wanda Carter came running by. Dorothy Hopkins asked Carter to summon her husband from the park. When the police arrived at the scene, they found Dorothy Hopkins staggering about the street. The window on the driver's side of Kochiss' automobile was shattered and the interior was covered with blood. Kochiss was slumped over in the driver's seat. After arriving at the hospital, Dorothy Hopkins was briefly interviewed by the police and said only that she had been robbed by two black males. Subsequently, Dorothy Hopkins gave the police a written statement implicating the defendant as the person who had shot Kochiss. She also testified to that effect at the defendant's probable cause hearing.

I

The defendant's first claim is that the trial court improperly admitted for substantive purposes the written statement that Dorothy Hopkins had given to the police in which she identified the defendant as the person who had approached the car and had fired the shot that killed Kochiss and wounded her. At trial, Dorothy Hopkins testified that she had been with Kochiss in his car on Maple Street and that after they had agreed upon a price for her services, Kochiss had unzipped his pants. As this was happening, she had seen two men, whom she could not identify, approach the car. One of the men had fired a shot through the window and Kochiss had fallen onto her lap. The unknown assailant had reached into the car, had started the engine and had put the car in gear, causing it to roll into a fence. She also testified that she had pleaded with the man not to harm her, not realizing that she had been shot.

Contrary to this testimony, on September 8, 1988, twelve days after the incident, Dorothy Hopkins gave a statement at the police station that implicated the defendant. In the written statement, which was signed and witnessed, Dorothy Hopkins stated, in part, that the defendant "came up to the window on the driver's side of the car. [The defendant] had a gun in his hand, and he tapped on the window and he said, 'Mother Fucker, give me your damn money.' My date sort of ducked his head and I saw his hand going toward the ignition, I believe that he was going to try to start the car and Anthony may have thought that my date was going to reach for something and that was when he shot my date. Anthony shot straight through the window. After the shot, my [date's] head fell on my lap."

The trial court, after an extensive voir dire and over the objection of the defendant, admitted into evidence this out-of-court statement for both impeachment and substantive purposes. ² Thereafter, the defense attempted to introduce into evidence an affidavit that Dorothy Hopkins had executed shortly after she had given the statement to the police, in which she had recanted her statement that the defendant had shot Kochiss. The trial court sustained the state's objection to the introduction of the affidavit. The defendant did not have the affidavit marked for identification purposes and does not now claim in this appeal that the court's ruling was improper.

In State v. Whelan, 200 Conn. 743, 748-49, 513 A.2d 86, cert. denied, 479 U.S 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986), we abandoned the traditional view "that a prior inconsistent statement of a nonparty witness is inadmissible hearsay if offered to prove the truth of the matters asserted therein and, therefore, is admissible only for impeachment purposes." In Whelan, we adopted the rule allowing the substantive use of a prior inconsistent statement if: (1) the statement is in writing; ³ (2) it is signed by the declarant; (3) the declarant has personal knowledge of the facts set forth in the statement; and (4) the declarant testifies at trial and is subject to cross-examination. Id., at 753, 513 A.2d at 90. In State v. Almeda, 211 Conn. 441, 452, 560 A.2d 389 (1989), we made it clear that the Whelan exception applied equally to unsworn statements.

The defendant correctly states that the rationale underlying the Whelan exception to the hearsay rule is that its requirements assure reasonable reliability. He argues, however, that the particular circumstances surrounding Dorothy Hopkins' statement undercut its reliability and, therefore, it should have been excluded. We disagree with the defendant.

First, the defendant argues that because Dorothy Hopkins testified at trial that she was unable to identify the defendant as the perpetrator and because there was no other evidence presented to connect the defendant to the crime, her statement should have been excluded. Commentators have pointed out that "the court should require some corroborative evidence and not permit a conviction to be based solely on an out-of-court inconsistent statement [of a nonparty witness]. See State v. DeFreitas, 179 Conn. 431, 426 A.2d 799 (1980) (declaration against penal interest); see also Commonwealth v. Daye, [393 Mass. 55, 469 N.E.2d 483 (1984) ]." C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.1991 Sup.) § 11.24.1, p. 122. Lack of contemporaneous cross-examination and confrontation are the major reliability concerns of such hearsay statements. The drafters of the federal rule had similar concerns because, when they took a position between the traditional rule of exclusion and the modern rule of inclusion, they added a further requirement that the statement be "given under oath subject to the penalty of perjury at a trial, hearing or other proceeding, or in a deposition...." Fed.R.Evid. 801(d)(1).

Nevertheless, this is not a case in which the only evidence of guilt was the uncorroborated and unsworn out-of-court statement of Dorothy Hopkins. In addition to Dorothy Hopkins' statement to the police, all her sworn testimony from the probable cause hearing was admitted into evidence at trial without objection on the part of the defendant. The testimony at the probable cause hearing was subject to contemporaneous cross-examination by the defendant. Although Dorothy Hopkins vacillated during cross-examination between identifying the defendant as the perpetrator and stating only that the assailant had been one of two black males whom she could not identify, on direct examination, she clearly implicated the defendant under oath as the person who had shot Kochiss. ⁴ Second, the defendant argues that when Dorothy Hopkins gave her statement, the attendant circumstances "undercut any assumption of reliability that might otherwise inure to her written statement." Specifically, the statement was taken only after Dorothy Hopkins was told that the defendant was a suspect because he had been found in the area, and that she and her husband, Earl Hopkins, who had been one block away at the time of the incident, were also suspects. Additionally, Dorothy Hopkins was reminded of the criminal charges pending against her for another incident. Finally, she gave the statement only twelve days after the incident in which she had been seriously injured and while under the influence of Percocet, a prescription drug that made her feel dazed, disoriented and sluggish, similar to the way she said that illegal drugs made her feel. Although these factors are relevant and proper matters for cross-examination, they go to the weight of the evidence and not its admissibility. Moreover, this is not a situation in which the statement was given in response to leading questions, "which are laden with facts to which the witness has merely answered with a 'yes' or 'no.' " C. Tait & J. LaPlante, supra, § 11.24.1, p. 122; Commonwealth v. Daye, supra. Rather, the statement was given...