State v. Jasper

• Decision Date: 27 May 1986
• Citation: 508 A.2d 1387,200 Conn. 30
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Harold JASPER.

Page 1387

508 A.2d 1387

200 Conn. 30

STATE of Connecticut v. Harold JASPER.

Supreme Court of Connecticut.

Argued Dec. 6, 1985.

Decided May 27, 1986.

John S. Pinney, Sp. Public Defender, with whom, on brief, were Sara L. Bernstein and Thomas E. Gaffey, Bloomfield, for appellant (defendant).

Mary M. Galvin, Asst. State's Atty., with whom, on brief, were Arnold Markle, State's Atty., and Patricia B. Perkins, Sp. Asst. State's Atty., for appellee (state).

Before HEALEY, SHEA, DANNEHY, SANTANIELLO and CALLAHAN, JJ.

SANTANIELLO, Associate Justice.

The principal issue in this case is the application of the rules adopted today in State v. Graham, 200 Conn. 9, 509 A.2d 493 (1986), governing the state's use of a prior inconsistent statement to impeach its own witness. A jury found the defendant, Harold Jasper, guilty of attempted arson in the first degree in violation of General Statutes §§ 53a-49 and 53a-111(a). The trial court rendered judgment in accordance with the jury verdict and sentenced the defendant to a term of imprisonment of not less than two nor more than four years. The defendant appeals from the judgment of conviction.

The jury could reasonably have found the following facts. In the early morning of July 17, 1979, the defendant went to the house of his uncle, Roosevelt Gillian, and demanded that he give him a dollar. When he refused, the defendant became angry and threatened to burn his uncle's house. The defendant then ran to his car and obtained a can containing gasoline. He poured the gas on the front porch of the house and produced some matches. At the time, there were two small children in the house.

It is disputed as to exactly what happened after the defendant took out the matches. On the day of the incident, Gillian gave the following sworn statement to an investigating officer: "We had an argument and he became real mad and he said he was going to burn the house down. Harold Jasper then went to his car and got a can of gas from the car and started throwing it all over my front porch. After he threw the gas on my front porch, he started to strike a match, but at this time I grabbed him and the match went out before he could light the gasoline that he had thrown on the porch. After the match went out, he ran up to the driveway and came in my back kitchen door and started breaking up things inside the house. Then he ran out of the house and got in his car and he pulled on out from the front of my house." Gillian was called by the state to testify at trial but his testimony differed from that in the statement. He testified that the defendant did not strike a match. Gillian said that he pushed the defendant and warned him to leave before he got into trouble. Gillian thought the warning brought the defendant to his senses and stopped him from striking the match because he said "you are right" and then left.

During direct and again on redirect examination, the state requested that Gillian be declared a hostile witness because of the inconsistency between his testimony and his prior statement. The court initially denied the request but later found the witness' testimony to contain substantial inconsistencies. It declared Gillian to be hostile and permitted the state to impeach its own witness. The state's attorney read Gillian his prior statement and he responded that it was not the true version of the facts. The written statement was marked for identification but was not admitted into evidence as a full exhibit. ¹

After the close of evidence, the court instructed the jury that Gillian's prior statement should not be used to prove the truth of the facts contained therein and was only available to impeach Gillian's credibility at trial. The defendant excepted to the charge on the ground that the instruction did not adequately explain to the jury the limited use of the statement. In the course of its deliberations, the jury asked a question of the court which specifically referred to facts contained in the prior statement. The trial court again admonished the jury that the statement was not introduced "to prove the truth of the facts contained in the statement, but as evidence of conduct which was inconsistent with his testimony on the stand."

The defendant claims on appeal that the trial court erred in declaring Gillian to be a hostile witness, that the introduction of the prior statement under the guise of impeachment was improper and prejudicial, and that the trial court failed to instruct the jury adequately on the limited use of the prior statement. We find no error.

Arguing that the state failed to show "surprise" or "hostility" as required by such cases as State v. Mitchell, 169 Conn. 161, 362 A.2d 808 (1975), and Schmeltz v. Tracy, 119 Conn. 492, 177 A. 520 (1935), the defendant claims that the court should not have declared Gillian to be hostile and should not have allowed the state to impeach its own witness. In State v. Graham, supra, however, we decided to eliminate the requirement that one must establish surprise, hostility or adversity and held that a party can impeach his own witness in the same manner as an opposing party's witness. Id., 200 Conn. 17, --- A.2d ----. Given this modification of our rule, therefore, the defendant's argument that the trial court abused its discretion in allowing the state to impeach its own witness must fail.

The defendant also contends that the state introduced Gillian's prior statement not to impeach his credibility but to place before the jury the facts contained in the statement. He claims that this tactic was improper and prejudiced his defense.

We recognized in Graham that the prosecution may not use a prior inconsistent statement under the guise of impeachment to bring before the jury evidence which is not otherwise admissible. See also United States v. Hogan, 763 F.2d 697, 703 (5th Cir.1985); United States v. Coppola, 479 F.2d 1153, 1158 (10th Cir.1973); McCormick, Evidence (3d Ed.1984) § 38. The introduction of the statement is improper, however, only where the primary purpose of calling the witness is to impeach him and the state's attorney introduces the prior inconsistent statement in hope that the jury will use it substantively. State v. Graham, supra; see United States v. Hogan, supra. In this case, we cannot agree that the primary purpose of calling Gillian was to impeach him or that the state's attorney used the prior inconsistent statement to place before the jury evidence not otherwise admissible. Gillian was the only eyewitness to the crime and had to be called to testify as to the defendant's actions that morning. Gillian's testimony on direct examination that the defendant had come to his house, had poured gasoline on the porch, and had threatened to burn his house was necessary to establish the elements of attempted arson. See General Statutes § 53a-49(a)(2). The state recognized that Gillian's testimony concerning the match may have indicated to the jury that the defendant had abandoned his effort to commit arson and thus had raised the defense of renunciation pursuant to General Statutes § 53a-49(c). The state, as a result, sought to impeach his credibility in that respect by using his prior inconsistent statement. The only way to give the jury the benefit of this inconsistency was to introduce the statement. See State v. Harris, 182 Conn. 220, 227, 438 A.2d 38 (1980). Impeachment by such means, absent the state's purposeful use of the rule as a subterfuge, was therefore proper even though the substance of the statement was inculpatory. United States v. Hogan, supra, 702.

The defendant's final claim is that the trial court improperly charged the jury on the evidentiary value of Gillian's testimony. He argues that the charge was confusing and incorrectly stated the law governing prior inconsistent statements. ²

The court gave the following instructions to the jury on the use of Gillian's prior statement: "Now, in this case Roosevelt Gillian ... testified that the defendant put the matches back into his pocket and said you are right Uncle Roosevelt and he drove his car away. Now, the state attempted to impeach Mr. Gillian's credibility on this point by showing that this version was inconsistent with what he had previously told Officer Haeckel. Such evidence of a prior inconsistent statement is admitted solely to impeach the credibility of the witness who made it. Now, evidence of prior inconsistent statements [made] out of court by a witness, whether written or oral, inconsistent with his testimony on the stand is admitted not to prove the truth of the facts contained in any such...