State v. Tyson

• Citation: 23 Conn.App. 28,579 A.2d 1083
• Decision Date: 28 August 1990
• Docket Number: No. 8170,8170
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Roy TYSON.

Page 1083

579 A.2d 1083

23 Conn.App. 28

STATE of Connecticut v. Roy TYSON.

No. 8170.

Appellate Court of Connecticut.

Argued May 15, 1990.

Decided Aug. 28, 1990.

Lauren Weisfeld, Asst. Public Defender, with whom, on the brief, was G. Douglas Nash, Public Defender, for appellant (defendant).

Susan C. Marks, Asst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty., and James Clark, Asst. State's Atty., for appellee (state).

Before SPALLONE, FOTI and LAVERY, JJ.

SPALLONE, Judge.

The defendant appeals from his conviction, after a jury trial, of the crime of assault in the first degree in violation of General Statutes § 53a-59(a)(1). He claims the trial court improperly (1) failed to instruct the jury on the law of self-defense, (2) refused to strike the victim's testimony as a sanction for the state's deliberate destruction of his taped statement, and (3) refused to instruct the jury on the defendant's decision not to testify using the language he requested. We affirm the judgment of the trial court.

The victim testified at trial to the following. The defendant, Roy Tyson, and the victim, Calvin Jones, were neighbors in an apartment complex in New Haven and had known each other for about six months at the time of the assault. At about 5 p.m. on November 30, 1986, Jones was at home asleep on the living room couch when the defendant knocked at his door. Jones invited the defendant inside and then returned to his couch. As he turned to fluff his pillow, Jones saw the defendant coming at him with a carving knife. The defendant said, "Your boy is looking for me, huh?" Jones believed that statement referred to a friend's attempt to collect a debt owed by the defendant.

Jones was stabbed in his midsection and cut his hand when he attempted to grab the knife blade. The two men struggled across the living room to the front door. At one point, Jones had the defendant's back against the door and was holding the defendant's knife hand. The defendant appeared to relax slightly but when Jones relaxed his grip, the defendant again lunged at him and they fell wrestling to the floor.

The defendant grabbed a pair of pliers from a table and began to strike Jones on the top of his head. Jones backed into the kitchen. The defendant pursued him, grabbed a butter knife from the table, stabbed Jones in the head, and attempted to stab him in the throat and eyes. When Jones fell to the floor, the defendant picked up a butcher knife and again attempted to stab him. Jones averted the attack and the men engaged in a renewed struggle. The defendant suddenly disengaged and left the apartment.

After a few minutes, Jones called his girl friend's mother, telling her that he had been beaten and stabbed and needed help. The mother relayed the information and, when the girlfriend and a neighbor arrived at the apartment, Jones was lying on the floor covered with blood. The neighbor immediately summoned help by dialing 911.

The defendant and the victim were both treated at a hospital that night. A doctor testified that Jones arrived bleeding profusely and in the last stages of cardiovascular shock. He had sustained between fifteen and twenty lacerations to the head, face and neck, including a laceration of the jugular vein and a blowout fracture of his eyesocket. In addition, Jones sustained between twenty and thirty lacerations to his arms, chest, abdomen and back.

The defendant's medical records were admitted into evidence and indicated that he had sustained a small abrasion on his neck, a laceration of his left palm and a small opening of a scar from recent surgery. The records contained a notation that the defendant told the medical personnel that he was "assaulted by another." The defendant was not admitted to the hospital.

The defendant did not testify at trial but introduced medical testimony that he had undergone chest surgery seven weeks prior to the incident and had been advised to avoid exertions. An officer of the New Haven police department testified that he had taken a statement from the defendant at the hospital, but the content of the statement was excluded as inadmissible hearsay. The defendant was convicted of first degree assault, and this appeal followed.

I

In his initial claim, the defendant contends that the trial court should have instructed the jury on the defense of justification. The defendant raises two interrelated claims regarding self-defense: first, that the trial court improperly excluded a statement that would have helped establish his claim of self-defense, and second, that even without the statement there was sufficient evidence of self-defense to permit the jury to consider this issue. We disagree.

Self-defense is an expressly recognized justification defense defined in General Statutes § 53a-19. ¹ A defendant is entitled as a matter of law to an instruction on a theory of defense only if there is evidence indicating that the defense is applicable. State v. Belle, 215 Conn. 257, 273, 576 A.2d 139 (1990); State v. Webley 17 Conn.App. 200, 204, 551 A.2d 428 (1988). Once the defense is properly raised, the jury must be instructed that the state bears the burden of disproving it beyond a reasonable doubt. State v. Cassino, 188 Conn. 237, 241, 449 A.2d 154 (1982).

The narrow issue before us, therefore, is whether the defendant presented sufficient evidence to "raise" the issue at trial. The threshold is not high. The instruction must be given if there is any foundation in the evidence for the defense theory; State v. Belle, supra, 215 Conn. at 275, 576 A.2d 139; and we must view the evidence in the light most favorable to the defendant. State v. Havican, 213 Conn. 593, 595, 569 A.2d 1089 (1990); State v. Cassino, supra, 188 Conn. at 239, 449 A.2d 154. The jury, however, must have before it enough evidence to raise a question of fact without resorting to guess and speculation. State v. Belle, supra.

A

The defendant claims that the wrongful exclusion from evidence of his hospital statement to the police prevented him from introducing the foundation for his self-defense claim. The statement contained the defendant's account of the events of the evening of November 30, 1986, in which he asserted that Jones had threatened him and then attacked him with a knife. This taped statement was transcribed the next day and the defendant swore to the truth of it and signed the transcript.

Because the defendant chose to exercise his constitutional right not to testify, the only way to put his account of the assault before the jury was to introduce this statement into evidence. The defendant conceded that the statement was hearsay but offered five theories in support of its admissibility: (1) as a party admission; (2) to show state of mind; (3) as a statement of bodily condition; (4) under the residual hearsay exception; and (5) to show the police officer's bias. We agree with the trial court that none of those exceptions is applicable here.

Trial court rulings on the admissibility of evidence are accorded great deference and will be disturbed on appeal only on a showing of a clear abuse of discretion. State v. Erhardt, 17 Conn.App. 359, 367, 553 A.2d 188 (1989). The defendant here has failed to demonstrate that his hospital statement was admissible on any of his stated grounds.

First, we agree with the trial court that the defendant's statement is not an admission. Out-of-court statements are not hearsay if those statements are admissions, i.e., statements made by a party opponent and offered against him. State v. Stepney, 191 Conn. 233, 249, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S.Ct. 1455, 79 L.Ed.2d 772; In re Jason S., 9 Conn.App. 98, 103, 516 A.2d 1352 (1987); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.1988) § 11.5. The defendant could not offer his own statements for his own benefit under the admission exception to the hearsay rule. State v. Brown, 22 Conn.App. 521, 523, 577 A.2d 1120 (1990); In re Jason S., supra, 9 Conn.App. at, 103-104, 516 A.2d 1352.

The defendant's police statement contains none of the essential guarantees of reliability necessary to justify its admission into evidence under the three other suggested exceptions to the hearsay rule. See State v. Erhardt, supra, 17 Conn.App. at, 368, 553 A.2d 188. This self-serving statement was not offered as an expression of the defendant's pain or suffering, or as a reflection of his subjective state of mind, or as an innocent, unselfconscious and necessary identification of his attacker. See, e.g., State v. McDowell, 179 Conn. 121, 125, 425 A.2d 935 (1979); State v. Cato, 21 Conn.App. 403, 408-409, 574 A.2d 240 (1990); State v. Dollinger, 20 Conn.App. 530, 542, 568 A.2d 1058 (1990). The defendant failed to demonstrate that the circumstances "indicate a strong likelihood that the statement is truthful." State v. Erhardt, supra.

The defendant also claims that his statement should have been admitted to show the bias of the police officer who took the statement, on the basis of the fact that the defendant, rather than the victim was subsequently arrested. This claim is merely the defendant's last attempt to find a basis for admitting his self-serving statement into evidence. His argument makes clear that he wanted the statement admitted not for impeachment purposes but rather for its truth, that is, that Jones struck the first blow and that the defendant acted only to protect himself. "[A] purely hearsay statement [cannot] be admitted as substantive proof of a fact under the guise of impeaching a witness." State v. Saia, 172 Conn. 37, 50, 372 A.2d 144 (1976).

The court has broad discretion to determine that hearsay evidence is nonetheless admissible because it is clearly necessary and relevant to the resolution of issues. State v. Erhardt, supra. The fact that the defendant was unavailable to testify does not automatically mean there is such a necessity for admitting the hearsay. Id. Nor...