State v. Jaynes, 13074
| Decision Date | 23 August 1994 |
| Docket Number | No. 13074,13074 |
| Citation | 645 A.2d 1060,35 Conn.App. 541 |
| Parties | STATE of Connecticut v. Troy JAYNES. |
| Court | Connecticut Court of Appeals |
Elizabeth M. Inkster, Asst. Public Defender, for appellant (defendant).
Judith Rossi, Asst. State's Atty., with whom, on the brief, was Michael Dearington, State's Atty., for appellee (State).
Before EDWARD Y. O'CONNELL, LANDAU and FREDERICK A. FREEDMAN, JJ.
The defendant appeals 1 from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a 2 and possession of a firearm without a permit in violation of General Statutes § 29-35. 3 On appeal, the defendant claims that (1) the trial court improperly found that testimony regarding alleged attempts by police officers to bribe defense witnesses was inadmissible hearsay, (2) the trial court improperly refused to give an addict-informant instruction, (3) the trial court improperly instructed the jury regarding reasonable doubt and the presumption of innocence in violation of the constitutional guarantees of due process and the right to a fair trial, (4) the trial court should have declared a mistrial, sua sponte, and improperly denied the defendant's motion for a new trial because of threats to a juror, and (5) the defendant's constitutional and statutory rights to be tried by a jury composed of twelve sworn jurors were violated. We affirm the judgment of the trial court.
The jury reasonably could have found the following facts. On March 29, 1990, the police were dispatched to investigate a report of gunshots in the area of Southwest and Dixwell Avenues in New Haven. Upon arrival, Officer Kelly Dillon observed a male in his late twenties lying on the side of the street. He was not moving and appeared to be unconscious. Dillon observed blood on and around the victim. There were no people on the street and Dillon's attempt to locate any witnesses that night was fruitless. The paramedics arrived and moved the victim, revealing a .38 caliber revolver underneath him. No fingerprints were found on the gun or on the shells inside it. The victim was taken to the Hospital of St. Raphael where he was pronounced dead.
The police conducted an investigation of the neighborhood in search of witnesses to the events of the night of March 29. They located two eyewitnesses, Bernard Draughn and James Taft. Both were drug runners who had worked for the defendant. They had observed the defendant shoot the victim at close range. The victim had been shot five times at close range. The ballistics report revealed that the gun found at the scene was not the gun used to shoot the victim.
Additional facts will be set forth as necessary for the resolution of this appeal.
The defendant first claims that the trial court improperly found that testimony regarding alleged attempts by police officers to bribe defense witnesses was inadmissible hearsay.
The following additional facts are necessary for the proper resolution of this issue. At trial, the defendant offered the testimony of two witnesses, Marcus Thomas and Dwayne Branch. Both men testified that they had been questioned by police with respect to the shooting on March 29. Out of the presence of the jury, they further testified that during their respective questionings, Officers Dirkey McCoy and Tony DiLullo had offered them "girls or money" in exchange for their giving false statements incriminating the defendant. Thomas also testified that DiLullo had directed a racial slur at him.
The defendant called Thomas as his first witness. Out of the presence of the jury, he testified that during one of his many questionings by McCoy and DiLullo, he got upset and asked the officers to leave. In response to Thomas' request that the officers leave, he testified that DiLullo said, "Who you think they going to believe, you niggers or me?" and "That's all right, you ain't got to help because I'll put in the report what I want to put in the report." The state objected on hearsay and relevancy grounds. The court sustained the objection.
' ' State v. Woodson, 227 Conn. 1, 16, 629 A.2d 386 (1993).
The transcript reveals that the defendant may have offered this testimony in anticipation of the state's offering a statement given by Thomas to the police that was contradictory to the testimony Thomas gave at trial. At the time of this offer of testimony, the state had not introduced the statement to the police, nor would it do so at any subsequent time. Because the statement by DiLullo was relevant only for the purpose of explaining why Thomas' testimony at trial differed from his statement to the police, and the statement to the police had not been introduced at the time of the offer of testimony, the trial court properly sustained the objection on the ground that it was not relevant.
Because we conclude that the trial court properly excluded this statement on relevancy grounds, we need not determine whether the trial court also properly sustained the objection on the ground that the statement was hearsay.
Out of the presence of the jury, Thomas later testified that when he would not say what the police wanted to hear, DiLullo had asked him, "What do you want, girls, money, what do you want?" The state objected on the grounds of relevancy and hearsay. The court ruled that the statement may be relevant because it may support the defendant's defense that he had been railroaded by the police, but that the statement was, nonetheless, inadmissible because it was hearsay. The court informed the defendant that he was free to pursue this defense, as long as the questions were phrased so as not to elicit a hearsay response. The defendant took an exception. After the court's ruling, the defendant did not ask Thomas any further questions regarding the alleged bribery attempt.
Branch later testified, also out of the presence of the jury, that he too had been offered "girls and money," and that he perceived the offer as an attempt by McCoy and DiLullo to induce him to perjure his testimony. The state again objected on the ground that the statement was hearsay. The trial court heard argument from both sides and sustained the objection.
The defendant claims that the statements with regard to the offers of girls and money were not hearsay, and, therefore, the trial court improperly precluded their admission. We agree. We conclude, however, that the error was harmless.
The defendant claims the statements were not hearsay on two grounds. First, the question, "What do you want, girls, money, what do you want?" was not offered to prove the truth of the matter asserted but to prove that the police officers had offered him a bribe, and, second, the statement was offered to show the effect on the witness. We are not persuaded by the defendant's second argument because the effect of the words on the witness is not relevant in this case. It is true that "[a] statement that is offered to show its effect upon the hearer ... is not hearsay...." (Citations omitted; internal quotation marks omitted.) State v. Alvarez, 216 Conn. 301, 310, 579 A.2d 515 (1990). Because the state, however, had not offered the statement given to the police by Thomas that purportedly conflicted with his testimony at trial, there was no issue as to the effect of the statement on the witness. We conclude, therefore, that to the extent that the question, "What do you want, girls, money, what do you want?" was offered to show the effect on the witness, it was properly excluded because the effect on the witness was not relevant.
With regard to the defendant's claim that the questions were not hearsay because they were not offered to prove the truth of the matter asserted, we agree with the defendant. Hearsay is an out-of-court statement that is offered to establish the truth of the facts contained in the statement. C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.1988) § 11.1.1, citing State v. Miller, 154 Conn. 622, 629, 228 A.2d 136 (1967), and Murray v. Supreme Lodge, N.E.O.P., 74 Conn. 715, 718, 52 A. 722 (1902). A statement may or may not be hearsay, depending upon the purpose for which it is offered. "When declarations are offered ... for the purpose of showing that such statements were made and not that what was declared was true, they do not come within the rule." 2 B. Holden & J. Daly, Connecticut Evidence (2d Ed.1988) § 93a, citing McDermott v. McDermott, 97 Conn. 31, 37-38, 115 A. 638 (1921); Engel v. Conti, 78 Conn. 351, 354, 62 A. 210 (1905).
Here, the defendant offered the question, "What do you want, girls, money, what do you want?" to show that the police had in fact attempted to bribe the witnesses to falsify their testimony. It was not offered to show either that Thomas wanted girls or money or that the police would have given him girls or money had he in fact perjured his testimony, but only to show that the police had attempted to bribe him. The trial court, therefore, improperly excluded the offered statement on the ground that it was hearsay.
Nevertheless, the error was harmless. The defendant claims that the trial court's...
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... ... State v. Mancinone, 15 Conn.App. 251, 280 [545 A.2d 1131] (1988)." (Internal quotation marks omitted.) State v. Jaynes, 35 Conn.App. 541, 554-55, 645 A.2d 1060, cert. denied, 231 Conn. 928, 648 A.2d 880 (1994) ... We find no Connecticut case law to ... ...
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