State v. Tinsley

• Decision Date: 25 July 2000
• Docket Number: (AC 18368)
• Citation: 755 A.2d 368,59 Conn. App. 4
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. DARRELL TINSLEY

59 Conn. App. 4

755 A.2d 368

STATE OF CONNECTICUT v. DARRELL TINSLEY

(AC 18368)

Appellate Court of Connecticut.

Argued March 27, 2000.

Officially released July 25, 2000.

Lavery, C. J., and Schaller and Zarella, Js. Suzanne Zitser, assistant public defender, for the appellant (defendant).

John A. East III, assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Rosita M. Creamer, senior assistant state's attorney, for the appellee (state).

Opinion

LAVERY, C. J.

The defendant, Darrell Tinsley, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1) and risk of injury to a child in violation of General Statutes (Rev. to 1995) § 53-21, as amended by Public Acts 1995, No. 95-142, § 1. On appeal, the defendant claims that the trial court improperly (1) excluded evidence concerning the motive of the victim's mother to implicate him in the victim's death, (2) failed to instruct the jury not to discuss the case at the end of the first day of trial, which violated his constitutional right to a fair and impartial jury, and (3) improperly instructed the jury as to reasonable doubt. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Georgia Graham, the victim's mother, and the defendant met at an office building in downtown Hartford, where they worked as security personnel. Although the defendant and Graham had an unstable relationship, they cohabited in a one bedroom apartment along with the victim, Daquan Roberts, Graham's fifteen month old son. During the course of the adults' relationship, individuals who knew the victim noticed a marked change in his behavior when he was in the presence of the defendant. At such times, the victim was timid, withdrawn and afraid of the defendant. The defendant's attitude toward the victim ranged from indifference to dislike. When Graham was no longer able to avail herself of professional child care, the defendant sometimes took care of the victim while Graham worked.

Prior to his death, the victim was in good health. On December 8, 1996, between 8 a.m. and 8:30 a.m., the defendant drove Graham to her place of employment. According to Graham, there was nothing wrong with the victim when she went to work. During the morning, Graham and the defendant spoke by telephone several times concerning the victim. At approximately 11:15 a.m., the defendant telephoned Graham, stating that there was something wrong with the victim and that he did not know what was the matter. The defendant then drove the victim to Graham's place of employment, and from there all three proceeded to the Connecticut Children's Medical Center (medical center) in Hartford. They were involved in a motor vehicle accident en route.

When he arrived at the medical center, the victim was in critical condition because he was not breathing and had little heart activity. The victim died when resuscitation efforts failed. An autopsy revealed bruises on the victim's right cheek, left leg and chest, which an associate medical examiner from the office of the chief medical examiner determined occurred shortly before the victim's death. The injuries were inconsistent with an automobile accident, a twelve inch fall into a bathtub, cardiopulmonary resuscitation or bumping into a fire door, which were explanations offered by the defendant. The victim also suffered significant internal injuries, namely, multiple fresh cranial hemorrhages, a broken rib and a lacerated liver that caused three quarters of his blood to enter his abdominal cavity. According to the associate medical examiner, the victim's liver was lacerated by blunt trauma that occurred within an hour of death and was the cause of death.

After the victim died, the defendant was taken to the police station, where he gave a statement and repeatedly denied injuring the victim. The police inspected the apartment where the defendant and victim were alone prior to the victim's death. They found vomit and feces on the victim's clothes, a bedspread and the floor. The victim's blood was found on the bathroom door. When he was informed of the autopsy results, the defendant insisted that the doctors were wrong, a position he maintained throughout trial. The defendant was arrested on December 12, 1996, and the court, after a hearing in February, 1997, found probable cause. Subsequent to trial, the defendant appealed.

I

The defendant's first claim is that the court improperly excluded evidence concerning Graham's motive to implicate him in the victim's death. The defendant claims that the evidence was admissible under three exceptions to the hearsay rule, i.e., (a) present state of mind, (b) state of mind to prove future conduct and (3) the residual exception.¹ We do not agree. The following additional facts are necessary for our resolution of this claim. Graham was called as a witness by the state and testified that the defendant had told her that he wondered what it would be like if the victim were not around anymore. During the defendant's case, counsel attempted to present evidence to demonstrate that Graham's testimony concerning the defendant's statement was a recent fabrication. Defense counsel theorized that Graham did not tell authorities of the defendant's statement about the victim at the time of his death because the statement was never made. Defense counsel intended to call Rosemarie Hill, a woman who worked with both Graham and the defendant, to offer testimony to support the defense theory.

Hill was called to testify in an offer of proof that she and Graham had a conversation in January, 1997, concerning the defendant's infidelity to Graham.² Graham was upset and reported to Hill "that she [Graham] told him [the defendant] if he ever messed around on her that he would pay for it for the rest of his life." The victim was never mentioned during the conversation between Hill and Graham. Defense counsel sought to have Hill's testimony admitted under one of the three exceptions to the hearsay rule for the purpose of impeaching Graham's credibility by showing that her testimony on direct examination was a recent fabrication because she did not testify about the defendant's statement during the probable cause hearing in February, 1997.³ According to defense counsel, Hill's testimony was to offered to show Graham's state of mind at the time of the victim's death, which caused her to fabricate the defendant's statement when she testified at trial. Following the offer of proof, the court sustained the state's objection to Hill's proffered testimony.

We review the court's preclusion of the proffered evidence by an abuse of discretion standard. Ormsby v. Frankel, 54 Conn. App. 98, 101, 734 A.2d 575, cert. granted on other grounds, 250 Conn. 926, 738 A.2d 658 (1999). "It is a fundamental rule of appellate procedure in the review of evidential rulings, whether resulting in the admission or exclusion of evidence, that an appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him. Casalo v. Claro, 147 Conn. 625, 630, 165 A.2d 153 (1960); State v. Kwaak, 21 Conn. App. 138, 150-51, 572 A.2d 1015, cert. denied, 215 Conn. 811, 576 A.2d 540 (1990)." (Internal quotation marks omitted.) State v. Suckley, 26 Conn. App. 65, 73, 597 A.2d 1285, cert. denied, 221 Conn. 901, 600 A.2d 1028 (1991). The court's rulings "will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice." (Internal quotation marks omitted.) State v. Rivera, 40 Conn. App. 318, 324, 671 A.2d 371 (1996).

"Because the admission of such evidence involves judicial discretion, [o]ur review is limited to whether [the] ruling exceeded the latitude accorded to the exercise of [such] discretion. State v. Smith, 198 Conn. 147, 158, 502 A.2d 874 (1985); State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982)." (Internal quotation marks omitted.) State v. Thomas, 205 Conn. 279, 288, 533 A.2d 553 (1987). "We will reverse the trial court's ruling only if it could not reasonably conclude as it did." (Internal quotation marks omitted.) State v. Rivera, supra, 40 Conn. App. 324.

"Hearsay is an out-of-court statement offered into evidence to establish the truth of the matters contained therein.... State v. Duntz, 223 Conn. 207, 232, 613 A.2d 224 (1992). As a general rule, hearsay evidence is not admissible unless it falls under one of several well established exceptions. State v. Oquendo, 223 Conn. 635, 664, 613 A.2d 1300 (1992). If such evidence is offered to establish the truth of statements contained therein, the burden is on the proponent of the evidence, upon timely objection, to establish that the evidence is admissible." (Internal quotation marks omitted.) New England Savings Bank v. Bedford Realty Corp., 238 Conn. 745, 753, 680 A.2d 301 (1996).

The defendant argues that he proffered Hill's testimony to demonstrate Graham's state of mind in January, 1997, with respect to her feelings about his infidelity to her and that the evidence therefore was not hearsay because it was not offered for the truth of the matter contained therein. We disagree. Hill's proffered testimony was not simple hearsay; it was double hearsay. Hill testified: "She said that she told him if he ever messed around on her that he would pay for it for the rest of his life." (Emphasis added.) The defendant believes that Hill's testimony is reliable because she was a friend of both Graham and the defendant. Hill had known Graham for only four months at the time of their conversation. Such testimony does not carry the hallmark of reliability our rules of evidence require.

"The reason for the general rule which excludes hearsay evidence unless it comes within one of the recognized exceptions is basically that the sanction of...