State v. Brown

Page 734

447 A.2d 734

187 Conn. 602

STATE of Connecticut v. Larry BROWN.

Supreme Court of Connecticut.

Argued March 4, 1982.

Decided July 20, 1982.

Gerard P. Eisenman, with whom was Raymond W. Ganim, Sp. Public Defender, Stratford, for appellant (defendant).

Richard F. Jacobson, Asst. State's Atty., with whom, on the brief, were Donald A Browne, State's Atty., and Frank S. Maco, Asst. State's Atty., for appellee (State).

Before SPEZIALE, C. J., and PETERS, ARTHUR H. HEALEY, PARSKEY and SHEA, JJ.

SPEZIALE, Chief Justice.

The defendant, Larry Brown, was convicted by a jury of two counts of robbery in the second degree in violation of General Statutes § 53a-135(a)(2). From the judgment rendered on the verdict, the defendant has appealed, claiming that the trial court erred: (1) in admitting into evidence a written statement of an accomplice which was hearsay and prejudicial; (2) in failing to charge the jury to view with caution the testimony of an accomplice; and (3) in allowing identification testimony which was tainted by an unnecessarily suggestive show-up. We find no reversible error.

The jury could have reasonably found the following facts: During the evening of July 21, 1979, the defendant met Audrey DeVone near Middle Street in Bridgeport. Thereafter, at approximately 10:30 p. m., DeVone approached and propositioned Wayne Harris, who was sitting in a parked car on Middle Street. In the meantime, the defendant came up behind Harris and put a gun, which was actually a starter's pistol, to Harris' head. Harris gave his wallet, which contained $6 to DeVone. DeVone then entered the passenger side of Harris' vehicle and the defendant got in the back seat. Harris was forced to drive to a nearby parking lot where he was ordered out of the car. DeVone then checked him for more money. DeVone and the defendant thereafter drove off in Harris' car. Harris was unable to identify the defendant because he never had the opportunity to get a good look at the man involved, but testified that the defendant was of the same general build as the man who had robbed him. Harris reported the robbery a few minutes after it occurred by flagging down a police car.

Some forty-five minutes later, at approximately 11:15 p. m., the defendant and DeVone entered a sandwich shop on North Avenue. Scott Zimmerman was working there at the time. As Zimmerman began to make sandwiches which had been ordered by the defendant and DeVone, the defendant pulled out his gun and announced: "This is a stick-up. Don't move." At the time, the defendant was standing only about four feet from Zimmerman, who later positively identified the defendant. After the defendant showed his gun, DeVone went around the counter, removed the money in the cash register, and wrapped it up in a sandwich wrapper. DeVone also checked Zimmerman's pockets. The defendant and DeVone thereafter left and Zimmerman observed the vehicle in which they fled. He then reported the robbery and the vehicle to the police.

Only a few minutes later, at approximately 11:20 p. m., Harris' vehicle, which was being driven by the defendant and in which DeVone was riding, collided with a police car at the corner of Congress and Main Streets. The police had been looking for the car since Harris' report of the first robbery. When the defendant and DeVone were taken into custody, the starter's pistol was found in the defendant's possession and the wallet and money that had been taken were recovered from the car.

I ADMISSION OF WRITTEN STATEMENT

The defendant contends that the trial court erred in admitting into evidence a written statement which was given to the police by Audrey DeVone the day after the robberies. ¹ The defendant maintains that this statement was inadmissible as hearsay and that its admission was harmful error.

During the trial, DeVone's written statement was first mentioned by the state during the direct examination of DeVone. She was asked to identify the statement and verify her signature. The state later attempted to use the statement to refresh DeVone's recollection on a point, but withdrew the question when her memory apparently was not refreshed. A copy of the statement was provided to the defendant at the close of DeVone's direct testimony. DeVone testified during direct examination that she was serving concurrent sentences of two to five years after pleading guilty to robbery charges stemming from the incidents for which the defendant was on trial.

During cross-examination, counsel for the defendant also had DeVone identify the statement and had it marked for identification. DeVone was then questioned at some length about the statement, during which questioning defense counsel elicited that DeVone was told by a detective that "it will make it lighter" on her if she gave a statement as to what happened, and that she was still somewhat "high" when she gave the statement. DeVone was questioned in some detail concerning her ability to recall specific events which occurred during the day of the robberies.

On redirect examination, DeVone denied any interest in trying to convict the defendant and maintained that she gave the statement to the police only because she wanted to take responsibility for what she had done. At the end of the redirect examination, the state offered the statement, to which counsel for the defendant objected on the grounds that the statement was both "hearsay and prejudicial." The state claimed the offer on the basis of its relevance to DeVone's credibility. The defendant's objection was overruled and his exception was noted. The statement was admitted into evidence without any limitation by the trial court. We agree with the defendant's claim that the statement was erroneously admitted.

"The general rule is that a witness' prior consistent statements are inadmissible at trial. Thomas v. Ganezer, [137 Conn. 415, 417, 78 A.2d 539 (1951) ]; annot., 75 A.L.R.2d 909, 918. Such statements clearly are barred by the hearsay rule if sought to be used to prove the truth of the matters asserted therein; see, e.g., 2 Wharton, Criminal Evidence (13th Ed.) § 500, p. 485 ('its sole purpose is to rehabilitate an impeached witness'); 4 Wigmore, Evidence (Chadbourn Rev.) § 1132, p. 294; also, they generally are prohibited even when offered for the limited purpose of rehabilitating the witness' damaged credibility. See United States v. Quinto, 582 F.2d 224, 232 (2d Cir. 1978) and authority cited therein. The rationale upon which this rule is based is that the witness' story 'is not made more probable or more trustworthy by any number of repetitions of it. Such evidence would ordinarily be both irrelevant and cumbersome to the trial; and is rejected in all Courts.' 4 Wigmore, Evidence (3d Ed.) § 1124, pp. 194-95; Mei v. Alterman Transport Lines, Inc., 159 Conn. 307, 315-16, 268 A.2d 639 (1970); see also 2 Wharton, Criminal Evidence (13th Ed.) § 500, p. 484 ...." State v. Dolphin, 178 Conn. 564, 568-69, 424 A.2d 266 (1979). See State v. McCarthy, 179 Conn. 1, 18, 425 A.2d 924 (1979); Mei v. Alterman Transport Lines, Inc., supra; Thomas v. Ganezer, supra; Fitzgerald v. Savin, 119 Conn. 63, 69, 174 A. 177 (1934); Palmer v. Hartford Dredging Co., 73 Conn. 182, 188, 47 A. 125 (1900); 4 Wigmore, Evidence (Chadbourn Rev.) § 1124; 29 Am.Jur.2d, Evidence § 500; 81 Am.Jur.2d, Witnesses §§ 641, 642.

There are certain exceptions to this general rule. Major exceptions to the general rule include using the prior consistent statement to rehabilitate a witness who has been impeached: by a prior inconsistent statement; State v. McCarthy, supra, 179 Conn. at 18-21, 425 A.2d 924; Thomas v. Ganezer, supra, 137 Conn. at 418, 78 A.2d 539; 4 Wigmore, supra, § 1126; by a suggestion of a bias or interest which was not present at the time of the prior consistent statement; State v. Dolphin, supra, 178 Conn. at 571, 572, 424 A.2d 266; 4 Wigmore, supra, § 1128; or by a suggestion of recent contrivance. State v. Dolphin, supra, 178 Conn. at 568 n.5, 424 A.2d 266; 4 Wigmore, supra, §§ 1129, 1130. See generally 4 Wigmore, supra, §§ 1125-1131; McCormick, Evidence (2d Ed.) § 49; annot., 140 A.L.R. 21; annot., 75 A.L.R.2d 909; 81 Am.Jur.2d, Witnesses §§ 644-655.

These exceptions, however, are not applicable to this case because they only apply when the prior consistent statement is admitted solely for the purpose of rehabilitating an impeached witness. ² See State v. Dolphin, supra, 178 Conn. at 570, 424 A.2d 266; State v. Mitchell, 169 Conn. 161, 168-69, 362 A.2d 808 (1975); Thomas v. Ganezer, supra. Here, even though the state argued that the statement was admissible because it was relevant to DeVone's credibility, the trial court did not, either at the time it admitted the statement or in its charge to the jury, caution the jury that the statement could not be considered by them to prove the truth of the matters asserted therein but could be considered only to evaluate the credibility of the witness. Cf. State v. Dolphin, supra, 178 Conn. at 567 n.2, 424 A.2d 266. ³ As the general rule concerning prior consistent statements was applicable, it was error for the trial court to admit the statement over the defendant's objection.

Our inquiry does not end, however, with the conclusion that the admission of DeVone's statement was erroneous. We now consider whether this error was so prejudicial that it constituted harmful error. See State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 (1980). The erroneous admission of the statement was harmful only if the improper admission was likely to have affected the jury's verdict. State v. Cooper, 182 Conn. 207, 212, 438 A.2d 418 (1980); State v. Ruth, supra; State v. McClain, 171 Conn. 293, 300, 370 A.2d 928 (1976); State v. Tropiano, 158 Conn. 412, 427, 262 A.2d 147, cert. denied, 398 U.S. 949, 90 S.Ct. 1866, 26 L.Ed.2d 288 (1969). Because the erroneous admission of the statement does not involve the violation of a constitutional right,...