State v. Prutting

Page 1228

669 A.2d 1228

40 Conn.App. 151

STATE of Connecticut, v. Kenneth PRUTTING.

No. 13588.

Appellate Court of Connecticut.

Argued Oct. 23, 1995.

Decided Jan. 23, 1996.

Certification Denied March 11, 1996.

Temmy Ann Pieszak, Assistant Public Defender, for appellant (defendant).

Susann E. Gill, Assistant State's Attorney, with whom, on the brief, were Donald A. Browne, State's Attorney, and Stephen Sedensky, Assistant State's Attorney, for appellee (state).

Before FOTI, SCHALLER and HULL, JJ.

SCHALLER, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of first degree manslaughter in violation of General Statutes § 53a-55(a)(3), ¹ carrying a pistol without a permit in violation of General Statutes §§ 29-35 ² and 29-37(b), ³ and criminal possession of a pistol in violation of General Statutes § 53a-217. ⁴ The defendant claims that the trial court improperly (1) admitted portions of a witness' signed statement into evidence as a prior inconsistent statement, (2) precluded the introduction of a prior conviction of a state's witness as impeachment evidence and permitted the introduction of the defendant's prior convictions as impeachment evidence, thereby denying the defendant his due process right to a fair trial by applying different standards for the admission of impeachment evidence offered by the state, (3) instructed the jury on manslaughter in the first degree as a lesser included offense, (4) compelled the defendant to begin trial in prison clothes and required the defendant to be shackled during trial, (5) refused to grant the defendant's requests for continuances and (6) denied the defendant's motion for a new trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On September 22, 1989, the defendant, Kenneth Prutting, was in an argument on the premises of the R Place Cafe in Bridgeport. His brother, Jimmy Prutting, was present during the argument. The owner of the R Place Cafe, Frank Messenger, told the defendant and his brother to leave. When they refused, Messenger shoved the defendant and his brother out the front door.

The defendant reentered the premises moments later with a gun and fired two shots. Moving to the doorway, the defendant fired two more shots, one of which killed the victim, John Fitzmorris.

I

The defendant first claims that the trial court improperly admitted portions of a witness' signed statement as a prior inconsistent statement under State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986). The defendant argues only that the statement was not inconsistent with the witness' testimony at trial. We disagree.

"A prior inconsistent statement can be used for substantive purposes ... if (1) the statement is written and is signed by the declarant, (2) the declarant has personal knowledge of the facts stated, and (3) the declarant testifies at trial and is subject to cross-examination." State v. Hermann, 38 Conn.App. 56, 67, 658 A.2d 148, cert. denied, 235 Conn. 903, 665 A.2d 904 (1995), citing State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986).

The following additional facts are relevant to this claim. The state called Roger Hatfield as a witness. Hatfield testified that he was with the victim, whom he had known for about five years, at the R Place Cafe on September 22, 1989, when Fitzmorris was shot to death. When asked to describe what led up to the shooting, Hatfield stated: "First off, I got to make a statement because that statement I made was wrong." The state then produced the statement to which Hatfield was referring, and Hatfield identified it as the statement that he gave to police on September 27, 1989.

Hatfield proceeded to testify that, on September 22, 1989, he and the victim had argued at the R Place Cafe, and another individual became involved. A fight then began, but Hatfield sat down and no longer involved himself. Messenger came from the back of the bar and was hit with a glass or bottle. Hatfield testified that he then heard shots from the front and the back of the bar. Hatfield witnessed an individual with a moustache and goatee fire shots from near the doorway of the cafe, and he saw the victim hit the floor. Hatfield further testified that he could identify the person who fired the shots from the doorway if he saw the person again, but when the state asked Hatfield if he saw that person in the courtroom, Hatfield replied that he did not.

The state then asked Hatfield about the statement he gave to police on September 27, 1989. Hatfield recalled being shown an array of numbered photographs and telling the police that either photograph five or six was a photograph of the person who shot Fitzmorris from the doorway. Hatfield also acknowledged telling police that he had not seen anyone with a gun other than the person at the front door and not telling police that shots were fired from the back of the bar. The police had asked Hatfield to mark on a diagram of the R Place Cafe where the person firing the gun was, and Hatfield had made only one mark, by the doorway. The state then offered Hatfield's September 27, 1989 statement to police as a prior inconsistent statement.

The defendant objected to the introduction of Hatfield's statement, arguing that because Hatfield did not testify that he saw anyone with a gun other than the person in the doorway that his testimony was not inconsistent with his statement to police that he had not seen anyone else with a gun. The defendant also asserted that Hatfield's testimony, that the person who fired shots from the doorway was not in the courtroom, was not inconsistent with his statement that photograph five or six of the array was of the person who had fired the shots from the doorway. The trial court thereafter admitted as substantive evidence, over the defendant's objection, Hatfield's redacted September 27, 1989 statement. ⁵

"Our standard of review for evidentiary matters allows the trial court great leeway in deciding the admissibility of evidence. The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done...." (Citations omitted; internal quotation marks omitted.) State v. Zollo, 36 Conn.App. 718, 723, 654 A.2d 359, cert. denied, 234 Conn. 906, 660 A.2d 859 (1995). This standard does not vary for the court's determination of whether two statements are inconsistent. State v. Laccone, 37 Conn.App. 21, 28, 654 A.2d 805 (1995). " 'Whether there are inconsistencies between the two statements is properly a matter for the trial court.... In determining whether an inconsistency exists, the testimony of a witness as a whole, or the whole impression or effect of what has been said, must be examined.' " (Citations omitted.) Id., quoting State v. Whelan, supra, 200 Conn. at 748 n. 4, 513 A.2d 86.

In this case, Hatfield made two statements describing what occurred at the R Place Cafe on September 22, 1989. We must determine whether the trial court abused its discretion in determining that the statements were inconsistent. At trial, Hatfield testified that shots were fired from the front and the back of the bar. In his statement to police, however, Hatfield did not mention shots coming from the back of the bar. In fact, Hatfield told police that he had not seen anyone with a gun other than the person in the front doorway. Moreover, police asked Hatfield to indicate on a diagram of the cafe where the shooter was when the shooter fired the gun, and Hatfield made a mark by the front doorway only.

Hatfield also testified that he did not see the person in the courtroom who had fired shots from the doorway in the courtroom, although the defendant was in the courtroom. In his statement to police, Hatfield had stated that photograph five or six in the array was of the shooter, although he added that he was not sure. Photograph five was of the defendant. We note that the trial court could also have considered Hatfield's testimony at trial that "I got to make a statement because that statement I made was wrong."

"Inconsistencies may be shown not only by contradictory statements but also by omissions.... A statement's inconsistency may be determined from the circumstances and is not limited to cases in which diametrically opposed assertions have been made." State v. Whelan, supra, 200 Conn. at 748 n. 4, 513 A.2d 86. Although Hatfield's statements were not diametrically opposed, we conclude that it was within the trial court's discretion to determine that the two statements were inconsistent. Considering Hatfield's testimony as a whole and its entire effect, we conclude that the trial court did not abuse its discretion in admitting Hatfield's statement to police as a prior inconsistent statement.

II

The defendant next claims that the trial court improperly (1) precluded the introduction of a conviction of a state's witness as impeachment evidence and (2) permitted the introduction of four of the defendant's prior convictions as impeachment evidence and refused to limit references to the defendant's convictions as unnamed felonies. The defendant further claims that the trial court denied the defendant's due process right to a fair trial by applying different standards for the admission of impeachment evidence offered by the state and by the defendant. We find no merit in the defendant's claims.

"The credibility of a witness may be attacked by introducing the witness' conviction of a crime if the maximum penalty for that conviction is imprisonment exceeding one year. See General Statutes § 52-145(b); State v. Braswell, 194 Conn. 297, 307, 481 A.2d 413 (1984), cert. denied, 469 U.S. 1112, 105 S.Ct. 793, 83 L.Ed.2d 786 (1985).... Three factors have usually been identified as of...