State v. Periere

• Decision Date: 06 April 1982
• Citation: 442 A.2d 1345,186 Conn. 599
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Paul PERIERE.

Page 1345

442 A.2d 1345

186 Conn. 599

STATE of Connecticut v. Paul PERIERE.

Supreme Court of Connecticut.

Argued Jan. 13, 1982.

Decided April 6, 1982.

Frank S. Maco, Asst. State's Atty., with whom, on the brief, was Donald A. Browne, State's Atty., for appellee (state).

Bruce A. Sturman, Asst. Public Defender, with whom, on the brief, was Jerrold H. Barnett, Public Defender, for appellant (defendant).

Before SPEZIALE, C. J., and ARTHUR H. HEALEY, PARSKEY, ARMENTANO and SHEA, JJ.

ARTHUR H. HEALEY, Associate Justice.

The defendant was charged with burglary in the first degree in violation of General Statutes § 53a-101(a)(2) and unlawful restraint in the first degree in violation of General Statutes § 53a-95(a). The jury returned guilty verdicts on both counts and the defendant was sentenced to serve concurrent sentences of not less than ten nor more than twenty years and not less than two and one-half nor more than five years.

The jury could reasonably have found the following facts: On the morning of February 22, 1977, John and Martha Gulbenkian were asleep in the bedroom of their home in Fairfield. At approximately 6:30 a. m., the doorbell to the back door rang. Mr. Gulbenkian went downstairs to answer the doorbell while Mrs. Gulbenkian remained upstairs. Upon opening the door, Mr. Gulbenkian saw Tommy Watson, a messenger who worked for Mr. Gulbenkian's jewelry business at the Trumbull Shopping Park. When Mr. Gulbenkian opened the screen door to let in Watson, a man, whom Mr. Gulbenkian testified he had never seen before, came up from behind Watson and put a revolver to Mr. Gulbenkian's head, forcing him back into the house. Mr. Gulbenkian described the man as being five feet eight inches tall with a dark complexion and straight hair. He also noticed that the gunman spoke with a foreign accent or a lisp.

While holding the revolver in his left hand, the gunman ordered Mr. Gulbenkian into the living room. The gunman then tied up Mr. Gulbenkian and Tom Watson. He covered Mr. Gulbenkian's head with a throw rug, put something in his mouth and secured the rug with electrical tape. The gunman threw Mr. Gulbenkian onto the floor and every couple of minutes someone would kick him in the shoulder. Mr. Gulbenkian could not see anything but heard someone else enter the house.

In the meantime, Mrs. Gulbenkian was still in bed on the second floor when she saw two men burst through the bedroom door. One man was tall with a bandanna tied around his face while the other man, armed with a revolver, wore a gold colored vinyl or leather jacket and sunglasses. The gunman threw a bedsheet over her head and tied her up. Mrs. Gulbenkian noticed that the gunman spoke with either a foreign accent or a lisp. Mrs. Gulbenkian could not see anything but heard the men rummaging through the house as they ransacked it.

Before the two men left, they told Mrs. Gulbenkian to tell the police that three black men had burglarized the house or else they would return and kill her. They gave Mr. Gulbenkian a similar warning. After the men had left, Mr. Gulbenkian managed to remove the rug from his head, and his wife, who had freed herself, helped to untie him. Mr. Gulbenkian went into the other room and untied Watson while his wife went next door to call the police.

When the police arrived, the Gulbenkians told them that Watson had been an overnight guest at their home. About a week later, Mr. and Mrs. Gulbenkian changed their story to reflect the truth and told the police that Watson had not been an overnight guest, but had entered the house with the gunman. Both later testified that they had initially lied to the police because they had been ordered to say this and were afraid that the two men would return and kill them and because they originally believed that Watson was not involved in the robbery.

On appeal, the defendant basically presses two claims of error. First, he claims that the trial court erred in admitting into evidence certain testimony of the Gulbenkians. Specifically, he alleges that their statements, which explained why they changed that part of their story relating to Watson's status as an overnight guest, were irrelevant and highly prejudicial. Second, he claims that the court erred by failing to instruct the jury that testimony, admissible under the "state of mind" exception to the hearsay rule, could only be used for the limited purpose for which it was admitted. ¹ We do not agree.

At trial, the prosecutor asked Mr. and Mrs. Gulbenkian why they had ultimately told the police that Tommy Watson had not been staying as a house guest on the night before February 22. Both Mr. and Mrs. Gulbenkian responded, over objection, by stating that, after the incident, the Fairfield police asked them to go to Stamford to identify a picture of Watson who, the police said, had been involved in another house robbery in Stamford. Upon learning this, the Gulbenkians felt that Watson was involved in the robbery of their own house and that they had been wrong in initially lying to the police. ²

The defendant claims that this testimony was irrelevant and prejudicial because the fact that Watson was involved in similar crimes created an inference that a de facto conspiracy existed between the defendant, who was not charged with conspiracy, and Watson.

It appears that the court admitted this testimony into evidence under the "state of mind" exception to the hearsay rule. ³ "(W)e have recognized that a mental condition is a fact, that to establish it declarations of the party concerned tending to show what it was are admissible and that he may directly testify as to it." State v. Savage, 161 Conn. 445, 447, 290 A.2d 221 (1971); see State v. Brokaw, --- Conn. ---, ---, 438 A.2d 815 (42 Conn.L.J., No. 31, pp. 9, 10) (1981); Levy v. Carter Rice & Co., 136 Conn. 216, 220, 70 A.2d 147 (1949); Horowitz v. F. E. Spencer Co., 132 Conn. 373, 378-79, 44 A.2d 702 (1945) and cases cited therein; Kovacs v. Szentes, 130 Conn. 229, 231, 33 A.2d 124 (1943); McCormick, Evidence (2d Ed.) § 294; 6 Wigmore, Evidence (Chadbourn Rev.) § 1729. Under the state of mind exception, proof of declarations that tend to show fear may be received. See 2 Wigmore, Evidence (Chadbourn Rev.) § 394; 29 Am.Jur.2d, Evidence § 650. The fear of the consequences of plain speaking is a circumstance that may be utilized to explain away the effect of a witness' prior inconsistency by relating whatever circumstances would naturally remove the prior inconsistency. United States v. Franzese, 392 F.2d 954, 960 (2d Cir. 1968), vacated on other grounds, 394 U.S. 310, 89 S.Ct. 1163, 1164, 22 L.Ed.2d 297 (1969), citing 3 Wigmore, Evidence (3d Ed.) § 1044, p. 737; see also United States v. Pritchard, 458 F.2d 1036, 1039-40 (7th Cir.), cert. denied, 407 U.S. 911, 92 S.Ct. 2434, 32 L.Ed.2d 685 (1972); United States v. Scandifia, 390 F.2d 244, 250-51 (2d Cir. 1968), vacated on other grounds, 394 U.S. 310, 89 S.Ct. 1163, 1164, 22 L.Ed.2d 297 (1969); Commonwealth v. Carr, 436 Pa. 124, 127, 259 A.2d 165 (1969). The statements concerning why the Gulbenkians had changed their version of the events relating to Watson's status as an overnight guest were properly admissible under this exception.

We now turn to the question of whether these statements, though otherwise admissible, were irrelevant or prejudicial to the defendant's case. " 'No precise and universal test of relevancy is furnished by the law, and the question must be determined in each case according to the teachings of reason and judicial experience. Eason v. Williams, 169 Conn. 589, 591, 363 A.2d 1090 (1975); State v. Towles, 155 Conn. 516, 523, 235 A.2d 639 (1967).' State v. Runkles, 174 Conn. 405, 413, 389 A.2d 730, cert. denied, 439 U.S. 859, 99 S.Ct. 177, 58 L.Ed.2d 168 (1978). We have noted 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. 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 issues.... State v. Towles, 155 Conn. 516, 523, 235 A.2d 639 (1967); Pope Foundation, Inc. v. New York, N. H. & H. R. Co., 106 Conn. 423, 435, 138 A. 444 (1927). " ' State v. Villafane, 171 Conn. 644, 674-75, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S.Ct. 1137, 51 L.Ed.2d 558 (1977)." State v. Gold, 180 Conn. 619, 645-46, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S.Ct. 320, 66 L.Ed.2d 148 (1980); see State v. Rose, 168 Conn. 623, 636, 362 A.2d 813 (1975). "The ruling of the court was a discretionary one and '(t)he court has a wide discretion in its rulings on the relevancy of evidence.' " (Citations omitted.) State v. Runkles, supra, 174 Conn. at 413, 389 A.2d 730.

The Gulbenkians' testimony about their identification of Watson's photograph in Stamford was clearly relevant to their decision to tell the Fairfield police the truth about Watson's status in their house on the night before February 22, 1977. It tended to show that the Gulbenkians' second version of the incident was more truthful than the first because of the removal of their belief that they should protect Watson upon their discovery of his probable involvement in a similar robbery. In this respect, the testimony aided the trier in determining the credibility of the Gulbenkians and was admitted into evidence in the sound exercise of judicial discretion.

Once the relevancy of this evidence is established, our inquiry then focuses on whether the trial court abused its discretion in ruling that the probative value of the evidence outweighed its prejudicial tendency. See State v. Ryan, --- Conn. ---, ---, 438 A.2d 107 (42 Conn.L.J., No. 20, pp. 10, 11) (1980). The...