State v. Whelan

Decision Date05 August 1986
Citation513 A.2d 86,200 Conn. 743
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Joseph WHELAN.

G. Douglas Nash, Asst. Public Defender, with whom, on brief, was Joette Katz, Public Defender, for appellant (defendant).

Jonathan C. Benedict, Asst. State's Atty., with whom, on brief, was Donald A. Browne, State's Atty., for appellee (state).


SHEA, Associate Justice.

The defendant, Joseph Whelan, was convicted, after a jury trial, of murder in violation of General Statutes § 53a-54a(a). 1 He was sentenced to a term of imprisonment of not less than twenty-five years nor more than life. From this judgment the defendant appeals, claiming that the trial court erred: (1) in allowing the state to cross-examine its own witness; (2) in refusing to charge the jury, as requested, that a prior inconsistent statement of a witness was admissible only to discredit his testimony; (3) in refusing to grant his motion for a mistrial because of the prosecutor's comments during final argument; 2 and (4) in instructing the jury on drawing inferences from circumstantial evidence. We find error only in the instruction on circumstantial evidence and, therefore, remand the case for a new trial. We review the other claims of the defendant to the extent that they are likely to arise on retrial.

Shortly after midnight on February 24, 1980, the defendant entered a Bridgeport barroom. In the bar, the defendant and the victim, John Matulionis, became involved in a verbal altercation that developed into a fight. In the course of the fight, the defendant fatally stabbed the victim. At trial the defendant, testifying in his own behalf, acknowledged that he had stabbed Matulionis, but claimed that he had done so in self-defense. See General Statutes § 53a-19.


The first two claims of error are related to the use of a prior written statement given to the police by a witness called to testify for the state. We conclude that there was no error in the state's cross-examination of the witness and that the defendant's request for an instruction limiting the use of a prior inconsistent statement to impeachment was properly denied.

In an effort to establish that the defendant was indeed the aggressor, and thus to negate the claim that the killing was justified, the state called Louis Garassino, a patron who had been at the bar the night of the incident. He testified that he had arrived at the bar with a group of friends at about 7 p.m. and had remained there until after midnight when the stabbing occurred. When he was then asked to describe the stabbing incident, he claimed that he was unable to remember anything but that someone had been stabbed. He further claimed that he was unable to describe either of the individuals involved. The state then requested that the jury be excused from the courtroom. Outside the presence of the jury, Garassino was able to describe the two persons involved in the fight, but claimed to have no recollection of seeing the actual stabbing. In an attempt to refresh his recollection, Garassino was shown a written statement that he had given to the police soon after the incident. Although he acknowledged that he had made the statement and identified his signature thereon, he claimed that he "did not know" whether the statement refreshed his memory, because he had been intoxicated at the time and his memory of the event had deteriorated due to a recent automobile accident which had left him in a coma. He reiterated that the statement did not refresh his recollection except that he remembered the two participants were "Hells Angels" who reminded him of "Mutt and Jeff." He also stated that he was unable to vouch for the accuracy of the statement. 3

Upon completion of the voir dire examination, the trial court concluded, after hearing argument on the matter, that Garassino was a hostile witness and allowed the state to cross-examine him concerning the detailed two page statement he had given to the police the night of the incident. The defendant duly excepted to the trial court's ruling. The jury was then summoned and the state proceeded to confront Garassino with each factual assertion contained in the prior statement concerning the details of the fight. As he had responded during the voir dire examination, the witness claimed he had no recollection of virtually every assertion in his prior statement.

The defendant's initial claim is that the court erred in declaring Garassino a hostile witness and, therefore, in allowing the state to cross-examine him regarding the prior out-of-court statement he had made to the police. This claim is based upon the common law rule which prohibits a party from impeaching his own witness, except where the party can establish the "hostility" of the witness or that he is "surprised" by the adverse testimony. State v. McCarthy, 197 Conn. 166, 177, 496 A.2d 190 (1985); State v. Mitchell, 169 Conn. 161, 164, 362 A.2d 808 (1975). The rationale behind the rule is that the party calling a witness vouches for the trustworthiness of the witness and is therefore bound by his testimony. McCormick, Evidence (3d ed.) § 38. Recognizing that its basis has become generally eroded, we have recently abandoned this rule, and have held that a party may impeach his own witness without a showing of surprise, hostility or adversity. State v. Graham, 200 Conn. 9, 17, 509 A.2d 493 (1986); see State v. Rivera, 200 Conn. 44, 49, 509 A.2d 505 (1986); State v. Jasper, 200 Conn. 30, 34, 508 A.2d 1387 (1986). " 'Whatever validity the "voucher" rule may once have enjoyed ... it bears little present relationship to the realities of the criminal process.' " State v. Graham, supra, 200 Conn. 16, 509 A.2d 493, quoting Chambers v. Mississippi, 410 U.S. 284, 296, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297 (1973). Because we have abrogated the common law restriction on impeachment of a of a witness by the party who calls him to testify, the defendant cannot prevail on his claim that the trial court erred in declaring the witness hostile.

Although it was appropriate for the court to exercise its discretion and allow the state to cross-examine its own witness, the defendant also makes a related claim involving the jury's use of the prior statement of Garassino. The defendant filed a timely request to charge with the court; Practice Book § 852; seeking an instruction that the prior statement be considered solely with respect to the credibility of the witness, and not as probative of the facts it contained. The court failed to grant the request and the defendant also excepted to the charge as given. Although we recognize that "a request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given...."; Mazzucco v. Krall Coal & Oil Co., 172 Conn. 355, 357, 374 A.2d 1047 (1977); see State v. Shindell, 195 Conn. 128, 143, 486 A.2d 637 (1985); we conclude that the trial court properly refused to limit the jury's use of the prior statement solely to impeachment purposes.

Heretofore, this court has adhered to the traditional view that a prior inconsistent statement 4 of a nonparty 5 witness is inadmissible hearsay if offered to prove the truth of the matters asserted therein, and, therefore, is admissible only for impeachment purposes. State v. Villafane, 171 Conn. 644, 672, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S.Ct. 1137, 51 L.Ed.2d 558 (1977); State v. Raffone, 161 Conn. 117, 124, 285 A.2d 323 (1971); Sears v. Curtis, 147 Conn. 311, 315-17, 160 A.2d 742 (1960); Tait & LaPlante, Handbook of Connecticut Evidence, § 7.24. The logic of this orthodox rule is that the prior inconsistent statement of a witness is too unreliable to be admitted as substantive evidence because the declarant was not (1) under oath and subject to punishment for perjury, (2) in the presence of the trier of fact, or (3) subject to cross-examination. See State v. Saporen, 205 Minn. 358, 361-63, 285 N.W. 898 (1939). This rule has been criticized by many legal scholars and commentators who maintain that the oath is not as strong a guaranty of trustworthiness as it once may have been, and that the requirements that the jury observe the declarant and that the defendant have the opportunity to cross-examine are met where the declarant takes the stand and is subject to cross-examination. See, e.g., McCormick, Evidence, § 251 (3d ed. 1984); 3A Wigmore, Evidence, § 1018 (Chadbourn Rev.1970); Graham, "Employing Inconsistent Statements for Impeachment and as Substantive Evidence," 75 Mich.L.Rev. 1565 (1977).

The commentators note that when the declarant is available for cross-examination the jury has the opportunity to observe him as he repudiates or varies his former statement. The cross-examination to which a recanting witness will be subjected is likely to be meaningful because the witness will be forced either to explain the discrepancies between the earlier statements and his present testimony, or to deny that the earlier statement was made at all. "If, from all that the jury see of the witness, they conclude that what he says now is not the truth, but what he said before, they are none the less deciding from what they see and hear of that person and in court." DiCarlo v. United States, 6 F.2d 364, 368 (2d Cir.1925); see United States v. Insana, 423 F.2d 1165 (2d Cir.1970); United States v. De Sisto, 329 F.2d 929 (2d Cir.1964). The jury can, therefore, determine whether to believe the present testimony, the prior statement, or neither. Moreover, prior statements are, necessarily, made closer to the event in question, when memories are fresher and when there is less likelihood that the statement is the product of corruption, false suggestion, intimidation or appeals to sympathy. See Morgan, "Hearsay Dangers and the Application of the Hearsay Concept," 62...

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