State v. Smith, 11764

• Citation: 644 A.2d 923,35 Conn.App. 51
• Decision Date: 07 June 1994
• Docket Number: No. 11764,11764
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Ashton SMITH.

Page 923

644 A.2d 923 35 Conn.App. 51 STATE of Connecticut
v.
Ashton SMITH. No. 11764. Appellate Court of Connecticut. Argued March 30, 1994.
Decided June 7, 1994.

[35 Conn.App. 52]

Page 924

Daniel S. Fabricant, Sp. Public Defender, for appellant (defendant).

Timothy J. Sugrue, Asst. State's Atty., with whom, on the brief, were James E. Thomas, State's Atty., and William Bumpus, former Asst. State's Atty., for appellee (State).

Before [35 Conn.App. 51] DUPONT, C.J., and SCHALLER and SPEAR, JJ.

[35 Conn.App. 52] SPEAR, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59(a)(2). ¹ The defendant claims that the trial [35 Conn.App. 53] court improperly (1) excluded the written statement of an unavailable witness, (2) refused to instruct the jury on a lesser included offense, (3) refused to read back testimony to the jury, (4) permitted the state's expert witness to testify about ultimate issues of fact, and (5) charged the jury on the meaning of reasonable doubt. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 9, 1990, at approximately 6 p.m., Thomas Farrell was driving his car on Farmington Avenue in Hartford. Farrell's car was directly behind that of the defendant and both drivers were preparing to turn into the parking lot of Cheese

Page 925

& Stuff. As the defendant turned into the parking lot, the victim, Alonzo Restrepo, was attempting to exit the lot in his car. The two cars blocked each other's path, and a heated argument ensued. The defendant got out of his car, ran over to the victim's car, reached in through the driver's side window and repeatedly punched the victim as he sat in the driver's seat. The defendant then took a knife from his back pocket and slashed the victim's face.

After being slashed, the victim emerged from his car carrying a lead pipe. The victim and the defendant squared off, holding their weapons. The defendant lost his footing and fell backward. The victim then stood over the defendant, threatening him with the lead pipe. The victim then retreated and the defendant returned to his car, which his passenger, Angela Coye, had [35 Conn.App. 54] driven forward about twenty feet. The victim noted the defendant's license plate number before the defendant left the premises.

Officer Paul David Zodda of the Hartford police department arrived on the scene shortly after the altercation and traced the license plate number obtained by the victim to the defendant's car. The victim later identified the defendant from a photographic array. Farrell, who witnessed the entire sequence of events, testified for the state at trial and corroborated the victim's version of the incident. The defendant was convicted and this appeal ensued.

I

The defendant first claims that the trial court violated his constitutional due process right to present a defense by improperly excluding from evidence the written statement of an unavailable witness Karen J. Higgins. The defendant concedes that this claim was not properly preserved at trial. He nevertheless maintains that his claim is reviewable under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), and alternatively, the plain error rule. Practice Book § 4185.

Under Golding, a defendant may prevail on a claim not preserved at trial only if four conditions are met: "(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823. "We are free ... to dispose of the claim by focusing on the condition that appears most relevant under the circumstances of the case." State v. Andrews, 29 Conn.App. 533, 537, 616 [35 Conn.App. 55] A.2d 1148 (1992), cert. denied, 224 Conn. 924, 618 A.2d 531 (1993); State v. Ulen, 31 Conn.App. 20, 37, 623 A.2d 70, cert. denied, 226 Conn. 905, 625 A.2d 1378 (1993).

"The first two conditions are determinations of whether a defendant's claim will be reviewed, and the third condition involves a review of the claim itself. Wilson v. Cohen, 222 Conn. 591, 603, 610 A.2d 1177 (1992); State v. Graham, 33 Conn.App. 432, 442, 636 A.2d 852 (1994); see also State v. Thurman, 10 Conn.App. 302, 306, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987)." State v. Crosby, 34 Conn.App. 261, 264, 641 A.2d 406 (1994). The defendant has satisfied the first two conditions of Golding because the record is adequate for review and the right to present a defense is a constitutional right. Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982); State v. Miller, 186 Conn. 654, 660, 443 A.2d 906 (1982); State v. Jenkins, 29 Conn.App. 262, 270, 614 A.2d 1249, cert. denied, 224 Conn. 916, 617 A.2d 171 (1992). The defendant's claim, however, fails under the third condition of Golding because the trial court's exclusion of Higgins' testimony was not a constitutional violation and did not deprive the defendant of a fair trial. Further, this claim did not rise to the level of plain error. ²

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At trial, the defendant sought to introduce into evidence a statement given by Higgins, a Cheese & Stuff [35 Conn.App. 56] employee who had witnessed at least some of the events of August 9, 1990. As Higgins was not present to testify, the defendant attempted to introduce her statement under the "residual" exception to the hearsay rule. He argued that Higgins was unavailable to testify, that her statement was reliable and trustworthy, and that it was necessary because she was the only unbiased witness able to establish or corroborate his theory of self-defense. ³ He also claimed that the trial court was predisposed against admitting Higgins' statement into evidence. When the defendant first notified the court that Higgins was unavailable to testify, the court asked whether she was "another yuppie that went to Cheese & Stuff." The defendant argues that this comment deprived him of his right to a fair trial before an impartial judge. Although this remark was unfortunate, we cannot say that it deprived the defendant of a fair trial where the proffered evidence was properly excluded.

[35 Conn.App. 57] "The 'residual,' or 'catch-all,' exception to the hearsay rule allows a trial court to admit hearsay evidence not admissible under any of the established exceptions if: (1) there is 'a reasonable necessity for the admission of the statement,' and (2) the statement is 'supported by the equivalent guarantees of reliability and trustworthiness essential to other evidence admitted under the traditional hearsay exceptions.' " State v. Oquendo, 223 Conn. 635, 664, 613 A.2d 1300 (1992); State v. Boyd, 214 Conn. 132, 140, 570 A.2d 1125 (1990). The trial court refused to admit the statement on the ground that it lacked the requisite indicia of reliability and trustworthiness.

The trial court's determination of a witness' credibility will ordinarily not implicate due process concerns. "[E]very evidentiary ruling which denies a defendant a line of inquiry to which he thinks he is entitled is not constitutional error.... The defendant's rights to confront and cross-examine witnesses and to present a defense do not give him the right to have admitted any evidence he chooses.... In the exercise of his rights, the defendant, as well as the state, must comply with the established rules of evidence and procedure...." (Citations omitted; internal quotation marks omitted.) State v. Boles, 223 Conn. 535, 550, 613 A.2d 770 (1992). Excluding certain evidence does not vitiate the defendant's constitutional right to present a defense.

"We will not overturn a trial court's evidentiary ruling unless there is an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. State v. Alvarez, 216 Conn. 301, 306, 579 A.2d 515 (1990); State v. Robinson, 227 Conn. 711, 732, 631 A.2d 288 (1993); State v. Boles,

Page 927

[supra, 223 Conn. at 549, 613 A.2d 770]; State v. Bailey, 32 Conn.App. 773, 778, 631 A.2d 333 (1993). With respect to the trial court's discretion, great weight is accorded the trial court's decision and every [35 Conn.App. 58] reasonable presumption will be indulged in favor of its correctness. State v. Leonard, 31 Conn.App. 178, 190, 623 A.2d 1052 (1993)." (Internal quotation marks omitted.) State v. Bryan, 34 Conn.App. 317, 327, 641 A.2d 443 (1994).

The circumstances surrounding Higgins' statement to defense counsel reveal that the statement " 'was not imbued with guarantees of reliability and trustworthiness sufficient to support its admission.' " State v. Oquendo, supra, 223 Conn. at 667, 613 A.2d 1300. First, defense counsel obtained Higgins' statement approximately sixteen months after the incident. The longer the interval between the witnessed event and the statement describing it, the less likely it is to be reliable and the more likely it is to be the product of reflective thought. Cf. State v. Outlaw, 216 Conn. 492, 499, 582 A.2d 751 (1990). Second, the statement was handwritten by defense counsel, and it elicited only favorable information.

Finally, even if Higgins' statement had been admitted under the residual hearsay exception, it would not have bolstered the defendant's self-defense claim. Higgins' statement corroborates rather than contradicts the version of the incident as described by the victim and Farrell. Higgins' statement reveals that she must have arrived on the scene after the defendant had slashed the victim. Her statement begins with...