State v. Milner

• Citation: 206 Conn. 512,539 A.2d 80
• Decision Date: 15 March 1988
• Docket Number: No. 12980,12980
• Court: Supreme Court of Connecticut
• Parties: STATE of Connecticut v. Clinton MILNER.

Page 80

539 A.2d 80

206 Conn. 512

STATE of Connecticut v. Clinton MILNER.

No. 12980.

Supreme Court of Connecticut.

Argued Nov. 3, 1987.

Decided March 15, 1988.

Carmine Giuliano, with whom was David A. Dee, Hartford, for appellant (defendant)

Geoffrey E. Marion, Deputy Asst. State's Atty., with whom, on the brief, were Lawrence J. Daly and James G. Clark, Asst. State's Attys., for appellee (State).

Before PETERS, C.J., and ARTHUR H. HEALEY, CALLAHAN, GLASS and HULL, JJ.

CALLAHAN, Associate Justice.

The defendant, Clinton Milner, was charged in an information with having murdered twenty-three year old Susan Kennedy on August 4, 1984, in violation of General Statutes § 53a-54a. ¹ On October 19, 1985, a jury found the defendant guilty as charged and he was sentenced by the trial court to a term of life imprisonment. He now appeals from the judgment of conviction.

The jury could reasonably have found the following facts. At approximately 5 a.m., on August 4, 1984, in response to loud screams emanating from a parking lot behind 87/89 Sumner Street in Hartford, approximately ten people rushed to the area and found Susan Kennedy naked, kneeling in a puddle of blood and holding her stomach. Her clothes and belongings were in a pile approximately twenty-five feet from the spot where she was kneeling. Kennedy was rushed to St. Francis Hospital and Medical Center where she was pronounced dead on arrival. An autopsy revealed that Numerous witnesses placed the defendant at the scene of the crime or in its immediate vicinity while others observed him running away from Sumner Street. In addition, there was testimony indicating that he had been carrying a knife in the hour immediately preceding Kennedy's murder.

her death resulted from twelve stab wounds to the chest and abdomen which penetrated multiple organs.

Subsequent to the murder, while the defendant was being held at the Hartford Correctional Center, he told a fellow inmate that he had grabbed the victim, dragged her to the back of an alley and put a knife to her chest. Additionally, he told another inmate that he had a chance of beating the case because of the lack of evidence. He indicated that, while the knife admitted into evidence was his, the state could not prove it, nor could they find the clothes he wore the morning of the murder.

On appeal, the defendant claims that the trial court erred in: (1) excluding from evidence the fact that Robert Torres, a witness and originally a suspect, had been arrested for giving false statements to the police; (2) admitting into evidence as a "business record" under General Statutes § 52-180 ² the hearsay statement of an anonymous phone caller contained within a police report; (3) restricting the scope of the cross-examination of a state's witness, Yvette Gonzalez; (4) denying the defendant's motion to suppress the pretrial photographic identification of the defendant by a state's witness, Paul Cooper; and (5) ruling that the "open file policy" of the state's attorney's office did not result in a deprivation of his sixth amendment right to effective assistance of counsel or his right to due process under the fourteenth amendment. Additional facts relevant to these issues will be set forth where necessary.

I

During a search of the victim's home, the police discovered two sets of directions to Robert Torres' apartment located at 79 Sumner Street. As a result, a search warrant was issued for Torres' apartment which the police executed that same day. Although Torres was not present during the search of his home, he did appear at Hartford police headquarters two days later on August 6, 1984, and gave a five page written statement. On August 8, 1984, Torres returned to the police station to correct a number of misstatements made in his earlier written statement. ³ The police arrested Torres for providing them with a false statement. Subsequently, Torres was placed on accelerated rehabilitation pursuant to General Statutes § 54-56e. ⁴

                At trial, defense counsel twice attempted to introduce into evidence the fact of Torres' arrest.   Each time the court sustained the state's objection to the defendant's questions and specifically directed the jury to disregard the questions.   The defendant argues that evidence of Torres' arrest was admissible as:  (a) "evidence tending to show that another committed the crime [in question]";  and (b) "evidence reflecting consciousness of guilt."   Consequently, the defendant argues that "the jury was not provided with all the necessary facts for it to render an accurate verdict."   We disagree
                

A

Recently, in State v. Echols, 203 Conn. 385, 392-93, 524 A.2d 1143 (1987), we had occasion to review fully the applicable principles of law governing the admissibility of evidence which tends to show that a third party may have committed the crime with which a defendant has been charged. We held that "a defendant may introduce evidence which indicates that a third party, and not the defendant, committed the crime with which the defendant is charged.... The defendant, however, must show some evidence which directly connects a third party to the crime with which the defendant is charged.... It is not enough to show that another had the motive to commit the crime ... nor is it enough to raise a bare suspicion that some other person may have committed the crime of which the defendant is accused...." Id., at 392, 524 A.2d 1143. Other than the fact that Kennedy was apparently on her way to visit Torres when she was killed, there was not the slightest bit of evidence that connected Torres with her murder. Under the circumstances the trial court did not err in excluding from evidence the fact of Torres' arrest for providing a false statement.

"The presentation and admissibility of such evidence is governed by the rules of relevancy.... We have often stated that '[e]vidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case.... "One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable...." ' " (Citations omitted.) Id., at 393, 524 A.2d 1143. A trial court's ruling on the relevancy of such evidence will be reversed only if the court has abused its discretion or an injustice appears to have been done. Id.

While evidence of Torres' arrest on the charge of providing a false statement to the police may have had some bearing on his credibility as a witness, the fact of arrest was not relevant to bolster the defendant's unsupported allegation that Torres committed the murder with which the defendant was charged. Furthermore, this court has held that evidence of an arrest in the absence of a conviction is generally not admissible even to attack credibility. State v. Moynahan, 164 Conn. 560, 600, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S.Ct. 291, 38 L.Ed.2d 219 (1973); see also 20 A.L.R.2d 1421, 1425, § 3.

Moreover, the trial court placed no restrictions on the defendant's cross-examination of Torres as it related to the inaccuracies contained in his August 6, 1984 statement to the police. Defense counsel fully B

                explored each and every misstatement by Torres, and, in fact, Torres admitted numerous times during his testimony that he had lied to the police on August 6, 1984.   The jury therefore was provided with a sufficient foundation on which to judge his credibility or lack thereof.   Under these circumstances, we find that the trial court did not abuse its discretion in excluding from evidence the fact of Torres' arrest
                

The defendant also claims that evidence of Torres' arrest was admissible as "evidence reflecting a consciousness of guilt." We disagree.

This argument is contrary to our holding above for it assumes that Torres' arrest, in and of itself, was relevant to the defendant's claim that Torres had committed the murder in question. It was not. In addition, the defendant's argument misconstrues the rule of evidence relating to the admissibility of false statements that reflect a consciousness of guilt. We have held that misstatements of an accused, which a jury could reasonably conclude were made in an attempt to avoid detection of a crime or responsibility for a crime or were influenced by the commission of the criminal act, are admissible as evidence reflecting a consciousness of guilt. This rule has only been applied, however, where the declarant of the misstatement has been the defendant. See State v. Thomas, 205 Conn. 279, 287, 533 A.2d 553 (1987); State v. Banks, 194 Conn. 617, 621-22, 484 A.2d 444 (1984); State v. Maturo, 188 Conn. 591, 597-98, 452 A.2d 642 (1982); State v. DeMatteo, 186 Conn. 696, 702-703, 443 A.2d 915 (1982); State v. Moynahan, supra, 164 Conn. at 595-96, 325 A.2d 199. It has not been utilized to demonstrate a consciousness of guilt on the part of a third party who has not been shown to have any connection with the crime. Thus, we find no error in the trial court's having excluded the fact of Torres' arrest from evidence.

II

The defendant next claims that the trial court erred in admitting into evidence the hearsay statement of an anonymous phone caller, which was contained in the police report of Detective Terry Blair and admitted as a "business record" under General Statutes § 52-180. Specifically, the defendant argues that the record was not admissible because there had been no evidence presented to indicate that the caller had a business duty to report the information to the Hartford police department.

In response to the admission of a copy of an August 4 police report of Detective Ocell Blocker, ⁵ the state recalled Blair to testify solely for the purpose of admitting his August 7 one page report. Over defense counsel's objections, the trial court admitted the report into evidence as a "business record" under § 52-180...