State v. Williams, 12244

• Citation: 204 Conn. 523,529 A.2d 653
• Decision Date: 28 July 1987
• Docket Number: No. 12244,12244
• Court: Supreme Court of Connecticut
• Parties: STATE of Connecticut v. Jerome WILLIAMS.

Page 653

529 A.2d 653

204 Conn. 523

STATE of Connecticut v. Jerome WILLIAMS.

No. 12244.

Supreme Court of Connecticut.

Argued April 2, 1987.

Decided July 28, 1987.

Alexander H. Schwartz, Certified Legal Intern, with whom were Michael R. Sheldon and, on the brief, Todd D. Fernow and Shawn G. Tiernan and Richard Aries, Legal Interns, for the appellant (defendant).

Julia DiCocco Dewey, Asst. State's Atty., with whom, on the brief, was Thomas V. O'Keefe, Jr., Asst. State's Atty., for the appellee (state).

Before PETERS, C.J., and ARTHUR H. HEALEY, CALLAHAN, BORDEN and FRACASSE, JJ.

BORDEN, Associate Justice.

The defendant appeals from the judgment of conviction, after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59(a)(3), and risk of injury to a minor in violation of General Statutes § 53-21. He claims that (1) the trial court erred in permitting the state to impeach its own witness where the primary purpose of the impeachment was to place otherwise inadmissible statements before the jury for use as substantive evidence, and (2) the conduct of the assistant state's attorney during cross-examination of the defendant and his principal witness, and during closing argument, deprived him of his right to an impartial jury and a fair trial. We find error.

The state's evidence established the following facts. Carrie Payne was the mother of Damon Payne, age eight, Derek Payne, age six, and the victim, Walter Payne, age five. In July, 1982, Carrie Payne visited Detroit, Michigan, for approximately four days, leaving the children in the care of the defendant at her apartment in New Haven. Although Carrie Payne, initially and until nearly the close of the trial, referred to the defendant as her "boyfriend," it was ultimately established that they were married to each other. When Carrie Payne arrived home from Detroit shortly after midnight on July 31, 1982, the three children were unattended. Walter was unclothed and unconscious in his bed. She took him to the hospital by ambulance. He was comatose, and had suffered trauma to his face, stomach, kidneys and back. He had serious internal injuries, a cerebral contusion and possible permanent brain damage. His injuries, which were life-threatening, were consistent with a beating by a long thin instrument such as an extension cord or clothes hanger, and inconsistent with an accident.

After Carrie Payne left for the hospital, the police were dispatched to the house. At this time, Officer Melvin Daniels of the New Haven police department spoke to Damon Payne. He also spoke to a neighbor and obtained a description of the defendant. Daniels went outside where he saw the defendant. Upon seeing Daniels, the defendant began to run. Daniels apprehended the defendant, after finding him lying on his stomach hiding in the grass.

The defendant testified that Carrie Payne had left her three children in his care when she went to Detroit, and that while Walter was in his care, Walter's stomach became distended from drinking too much water. The defendant fed him baking soda, and pressed on his stomach causing him to vomit water. The defendant denied beating Walter. He testified further that at approximately 7:30 p.m. on July 30, 1982, he left the children in the Carrie Payne was also called as a defense witness. Her testimony was often contradictory and included a version consistent with that of the defendant, namely, that when she returned to her apartment from Detroit, James Davis was there and that he, not the defendant, had beaten Walter. She testified that Davis was her lover, but not her boyfriend. She further testified that Davis was in New Haven, and that she was afraid of him. On cross-examination, she testified that she knew Davis' telephone number, but she refused to divulge it. She also denied making certain prior statements to police officers and medical personnel that were inconsistent with her direct testimony.

apartment in the care of an acquaintance, James Davis, while he and another friend, Kevin Edwards, went out drinking, smoking marijuana, and snorting cocaine.

As part of its case in rebuttal, the state attempted to impeach Carrie Payne by calling several witnesses to testify as to her prior inconsistent statements. The state first presented Detective Melvin Wearing of the New Haven police department. He testified that Carrie Payne had told him that "James Davis" was a fictitious name, that the defendant had beaten Walter, and that she had used the name "James Davis" because at first she wanted to "get even" with the defendant herself.

The state also called Elizabeth Ann Weisner, who was the attending physician upon Walter's admission to the hospital. She testified to statements made by Carrie Payne during the course of giving a history pursuant to Walter's admission. Those statements contained the following information: Carrie Payne had left her children with her "boyfriend," James Davis, while she went to Detroit. She had called from Detroit earlier that day and was told that Walter was sick. She had told "the boyfriend" to take Walter to the emergency room. She returned home from Detroit, and when she found Walter undressed and unresponsive, she brought him to the hospital by ambulance. The police detective who had talked to Damon told her that "the boyfriend" had beaten Walter twice with a cord from an iron while Walter was under a chair in the apartment.

The state also called in rebuttal Robert Ferm, who was a resident physician in the pediatric intensive care unit on July 31, 1982. He testified to the following statements given by Carrie Payne: Carrie Payne had left Walter and his two brothers in the care of a thirty-four year old ¹ "boyfriend" of hers. On the morning of July 30, 1982, "the boyfriend" told Carrie Payne in a telephone conversation that Walter had a swollen belly from drinking too much water, and that the boyfriend was angry. Further telephone calls made Carrie Payne suspicious that "the boyfriend" was drinking and was beating Walter. Carrie Payne took an airplane home, and on arrival at about 12:15 a.m. found Walter to be lethargic and unarousable, and took him by ambulance to the hospital. She mentioned no one except her thirty-four year old boyfriend as responsible for Walter's condition.

I

The defendant first claims that the trial court erred by permitting the state to impeach its own witness, Damon Payne, by use of his prior inconsistent statements. The defendant argues that the state introduced the statements under the guise of impeachment for the primary purpose of inducing the jury to use the statements substantively. ² See State v. Graham, 200 Damon Payne testified as follows. Damon and his brothers were under the care and supervision of the defendant on the day that Walter went to the hospital. Earlier that day, Derek had fed Walter a lot of water, causing Walter to wet his bed. Damon testified that the defendant had not become angry because Walter had wet the bed, and that the defendant had caused Walter to vomit water by feeding him baking soda and by putting him on the floor and pumping him. He also testified that he had not seen any other adult in the house that day or evening, and that he did not think the defendant had left the apartment that night. Damon testified that he remembered the ambulance coming for Walter, that Walter had been sick all night, and that he had put Walter to bed while the defendant was sitting in the living room. He testified further that Walter had not been able to talk to him after lunch, and that Walter had cried most of the day.

                Conn. 9, 18, 509 A.2d 493 (1986).   The defendant further argues that the state failed to lay the proper foundation, by drawing Damon's attention to each alleged inconsistent statement, before introducing the statements into evidence.   We disagree
                

Damon further testified that he did not remember the police coming to his house or telling them what happened to Walter. When the assistant state's attorney asked whether he remembered telling Officer Daniels that Walter had been beaten, the defendant objected and the jury was excused. In the absence of the jury, Damon repeated that he did not remember telling Daniels that the defendant had beaten Walter with an extension cord and clothes hanger, that he did not remember the police returning to the apartment with the defendant, and that he did not remember identifying the defendant as the person who had beaten Walter. The state thereafter sought to have Damon declared a hostile witness and to be permitted to impeach him with his prior inconsistent statements. The court ruled that Damon's prior inconsistent statements could be introduced, and the defendant took an exception. The state indicated that, because it expected Damon to continue to assert his lack of memory about speaking to the police, it would offer the prior inconsistent statements through Daniels without first asking Damon about them in the presence of the jury. The state thereafter called three officers to the witness stand to testify to Damon's prior inconsistent statements.

Daniels testified as follows. When he arrived at the Paynes' apartment, the first person he met was Damon, who "said his little brother just got beat by the father." Damon identified "the father" by the name of "Jerome." Damon also told him that Jerome had done this "[w]ith a [clothes] hanger and an extension cord." Daniels also testified that, after apprehending the defendant, he had returned to the scene with the defendant and Damon identified the defendant. Detective Wearing testified that Damon had identified the defendant while he was in the custody of Daniels. He also testified that Damon had pointed out the clothes hanger and the extension cord. Detective Alan Smith of the New Haven police department testified as follows. He spoke to Damon on the morning of July 31, 1982, and Damon "told [him] that Walter Payne was lying on the...