State v. Perry

• Decision Date: 28 April 1998
• Docket Number: No. 16716,16716
• Citation: 48 Conn.App. 193,709 A.2d 564
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Jeffrey PERRY.

Page 564

709 A.2d 564

48 Conn.App. 193

STATE of Connecticut v. Jeffrey PERRY.

No. 16716.

Appellate Court of Connecticut.

Argued Dec. 17, 1997.

Decided March 17, 1998.

Certification Denied April 28, 1998.

Suzanne Zitser, Assistant Public Defender, for appellant (defendant).

Lisa Herskowitz, Assistant State's Attorney, with whom, on the brief, were Michael Dearington, State's Attorney, and James Clark, Supervisory Assistant State's Attorney, for appellee (State).

Before FOTI, SCHALLER and SPEAR, JJ.

SPEAR, Judge.

The defendant, Jeffrey Perry, appeals from the judgment of conviction, rendered after a jury trial, of (1) murder in violation of General Statutes § 53a-54a, and (2) carrying a pistol without a permit in violation of General Statutes § 29-35. ¹ The defendant claims that the state failed to prove beyond a reasonable doubt the essential element that the pistol that the defendant was allegedly carrying had a barrel that was less than twelve inches in length, and that the trial court improperly (1) admitted a witness' unreliable, tape-recorded statement to the police as substantive evidence, (2) admitted testimony of the defendant's alleged flight following the shooting as consciousness of guilt evidence, and (3) precluded the defendant from eliciting relevant testimony regarding his defense of mistaken identification. We reverse the judgment of the trial court with respect to the conviction of carrying a pistol without a permit. We affirm the judgment in all other respects.

The jury reasonably could have found the following facts. On the evening of March 5, 1992, police arrived at the Oasis nightclub on Winchester Avenue in New Haven in response to a shooting. The street entrance to the club opened into a long, narrow hallway, approximately twenty-eight feet in length, leading to an interior door to the bar. The victim, Kenneth Hazard, was lying in the hallway with a gunshot wound to his chest.

Earlier that evening, Michael Faison, Earl Holloway and the victim, all friends, had started to leave the bar when the victim turned and walked back toward the interior door to the bar. The defendant then walked from the bar into the hallway, spoke to the victim, pulled a gun out of his jacket, and shot the victim.

The defendant was found guilty of the charges of murder and carrying a pistol without a permit, but was acquitted of attempted first degree assault in violation of General Statutes §§ 53a-49 and 53a-59 (a)(1). This appeal followed.

I

The defendant first claims that the evidence presented at trial was insufficient to support his conviction under § 29-35 of carrying a pistol without a permit. ² Specifically, he asserts that the state did not prove beyond a reasonable doubt that the barrel of the gun was less than twelve inches in length, an essential element of that crime. ³ We agree.

The standard for reviewing sufficiency of the evidence claims is well settled in this state. "When reviewing a sufficiency of the evidence claim, our courts apply a two-prong test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Foster, 45 Conn.App. 369, 375, 696 A.2d 1003 (1997); see also State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994); State v. Torres, 47 Conn.App. 205, 219, 703 A.2d 1164 (1997); State v. Roy, 38 Conn.App. 481, 488, 662 A.2d 799 (1995), cert. denied, 237 Conn. 902, 674 A.2d 1333 (1996).

We recognize that, where a violation of § 29-35 is charged "the length of the barrel is ... an element of [the] crime and must be proven beyond a reasonable doubt." State v. Hamilton, 30 Conn.App. 68, 73, 618 A.2d 1372 (1993), aff'd, 228 Conn. 234, 636 A.2d 760 (1994). To that end, the state argues that the jury should have been able to invoke its common sense in assessing the circumstantial evidence that was presented regarding the length of the gun barrel.

The state relies principally on State v. Williams, 231 Conn. 235, 251-52, 645 A.2d 999 (1994), for the proposition that the state need not present direct numerical evidence regarding the length of a gun barrel, but may rely solely on circumstantial evidence of length to support a conviction. ⁴ In Williams, despite the fact that the gun that had been the murder weapon was never introduced into evidence, there was eyewitness testimony that the defendant "pulled a 'small handgun' out of his 'waist length jacket.' Further, the jury heard from ... other eyewitnesses to the shooting, who described the article of clothing from which the defendant pulled the gun as a 'beige, sweater-like coat' and a 'dark sweater.' " Id., at 252, 645 A.2d 999. The Williams court concluded that "[f]rom this evidence the jury could have reasonably inferred that the handgun that the defendant pulled from the pocket of a small sized outer garment that he wore was less than twelve inches long and that ... the state had proved this element ... beyond a reasonable doubt." Id. Moreover, the court noted that "it is extremely unlikely that anyone would describe as 'small' a handgun that had a barrel of one foot or longer." Id.

The state cites several more cases in support of its contention that courts in this state have upheld convictions based solely on circumstantial evidence of gun barrel length. See State v. Crosby, 36 Conn.App. 805, 821, 654 A.2d 371, cert. denied, 232 Conn. 921, 656 A.2d 669 (1995) (testimony that gun not as long as twelve inch piece of paper shown to witness); State v. Gonzalez, 25 Conn.App. 433, 444, 596 A.2d 443 (1991), aff'd, 222 Conn. 718, 609 A.2d 1003 (1992) (small caliber gun pulled from defendant's back pocket). Our review of these cases, however, reveals that they, unlike the present case, evinced at least a modicum of descriptive evidence regarding either the barrel length or the gun itself.

Here, the gun was not introduced into evidence and the only descriptive evidence of the gun came from the testimony of prosecution witness Faison. According to Faison, who allegedly was standing in close proximity to both the defendant and the victim immediately prior to the shooting, the gun was "black" and the defendant pulled the gun "out of his jacket or coat." While circumstantial evidence concerning the length of the gun barrel may sustain a conviction under the statute, we are persuaded that some measure of descriptive evidence from which the jury may properly infer the barrel length is necessary in order for the state to satisfy its burden of proof. Because of the dearth of evidence in this case with respect to the gun and the length of its barrel or circumstances permitting an inference as to length, we conclude that the evidence was insufficient to sustain the defendant's conviction on the charge of carrying a pistol without a permit. ⁵

II

The defendant next claims that the trial court improperly admitted as substantive evidence the prior inconsistent tape-recorded statement of prosecution witness Bobby Kelly. The defendant asserts that, in addition to the circumstances under which Kelly gave his statement to the police, the fact that Kelly neither signed nor acknowledged giving the statement rendered it unreliable and therefore inadmissible according to the principles enunciated in State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986). We are unpersuaded.

In Whelan, our Supreme Court abandoned the traditional view that prior inconsistent statements are admissible for impeachment purposes but are not admissible as substantive evidence. Id., at 743, 513 A.2d 86. By rejecting the traditional view, the court effectively adopted an exception to the hearsay rule. "[T]he substantive use of prior written inconsistent statements, signed by the declarant, who has personal knowledge of the facts stated, when the declarant testifies at trial and is subject to cross-examination"; id., at 753, 513 A.2d 86; was allowed, the court reasoned, because "when the declarant is in court, under oath, and subject to cross-examination before the factfinder concerning both his out-of-court and in-court statements, the usual dangers of hearsay are largely nonexistent...." (Internal quotation marks omitted.) Id., at 750-51, 513 A.2d 86. ⁶

At trial, Kelly reluctantly took the stand and testified that he had been sleep deprived, intoxicated, and high on crack cocaine when he gave his statement to the police, and that he would have said anything to obtain leniency regarding the prior pending felony charges against him. While the defendant asserts on appeal that these circumstances bear on the inherent unreliability of Kelly's statement, that claim was never made by the defendant at trial. Instead, the defendant's objection at trial regarding the admissibility of Kelly's statement was that because Kelly did not sign or acknowledge the statement that he gave to the police, it did not satisfy the reliability prerequisite under Whelan.

Our review of the transcript reveals that Kelly, while on the stand testifying, identified the voice on the tape-recorded statement as his own. Our Supreme Court has previously held that "the general rationale of Whelan concerning written statements also applies to tape-recorded statements ... [and] the requirement that such statements be signed is unnecessary because the recording of the witness' voice imparts the same measure of reliability as a signature." (Citation omitted.) State v. Woodson, 227 Conn. 1, 21, 629 A.2d 386 (1993). We therefore find no merit in this claim.

III

The defendant next claims that the trial court both improperly admitted the testimony of Gregory Atkinson regarding the defendant's alleged flight following the shooting and instructed the jury...