State v. Rose

132 Conn.App. 563

33 A.3d 765

STATE of Connecticut

v.Steven ROSE.

No. 33014.

Appellate Court of Connecticut.

Argued Sept. 13, 2011.Decided Dec. 20, 2011.

James B. Streeto, assistant public defender, with whom was John Cizik, Jr., senior assistant public defender, for the appellant (defendant).

Leon F. Dalbec, Jr., senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, Leonard Boyle, acting state's attorney, and Amy Sedensky, senior assistant state's attorney, for the appellee (state).

ROBINSON, ALVORD and WEST, Js.

WEST, J.

The defendant, Steven Rose, appeals from the judgment of conviction, rendered after a jury trial, of felony murder in violation of General Statutes § 53a–54c, attempt to commit robbery in the first degree in violation of General Statutes § 53a–49 (a)(2) and § 53a–134 (a)(1), and robbery in the first degree in violation of General Statutes § 53a–134 (a)(1). On appeal, the defendant claims that (1) the trial court impermissibly admitted into evidence the written statements made to the police by two eyewitnesses after those witnesses testified at trial, (2) the conviction of the defendant of both felony murder and robbery in the first degree violates double jeopardy and (3) the trial court erred in not permitting the defense to impeach a witness about the specific facts regarding pending criminal charges against that witness. We affirm the judgment of the trial court.

Given the evidence presented at trial, the jury reasonably could have found the following facts. On June 2, 2007, the defendant first encountered the victim, Eugene Campagna, at the apartment of Sheila Schmidt, where the defendant entered the apartment demanding money and a hat from the victim. Schmidt left her apartment and called the police, but prior to their arrival, the defendant departed. Later in the evening, at approximately 9 o'clock at night, the defendant encountered the victim for a second time. Three different witnesses, John Bell, Robert Davis, and Angela Smith, gave their accounts of what occurred subsequently.

Bell observed the encounter from his second story apartment on Bronson Street in Waterbury, where he saw the defendant approach and call out to the victim as the victim walked toward a store on the corner. Bell observed the defendant first punch the victim in the face, then later observed the victim lying on the ground and the defendant stomping on his face. Bell then opened his window and yelled out to the defendant on the street below to stop beating the victim; however, the defendant continued to hit the victim. Bell heard the defendant tell the victim that he hoped he died, observed the defendant spit on the victim, remove a $5 bill from the victim's pocket, and attempt to pick up the victim, who did not move. Bell then called the police.

Davis, at about 9:15 p.m. that evening, was outside his Bishop Street residence with his niece near the corner store on Bronson Street where he observed the victim digging through the garbage for cans. Davis did not witness the attack, but, two to three minutes later, he heard Bell yelling at the defendant to leave the victim alone and heard the defendant yell back at Bell that the victim owed him money. Davis saw the victim lying on the ground and observed the defendant attempting to pick up the victim by his midsection.

Smith observed the encounter between the defendant and the victim from outside the corner store on Bronson Street where she was drinking vodka. Smith observed the defendant slap, punch and throw the victim against a fence, and she shouted at the defendant to stop beating the victim. Smith saw the defendant reach into the victim's pocket and say something to the victim. Smith then saw the defendant walk away while the victim remained on the ground motionless. Thereafter, the police and an ambulance arrived on the scene where emergency treatment was given; however, the victim suffered a substantial brain hemorrhage and was pronounced dead at St. Mary's Hospital.

The defendant subsequently was arrested and charged under a substitute information with murder in violation of General Statutes § 53a–54a (a), felony murder in violation of § 53a–54c, attempt to commit robbery in the first degree in violation of §§ 53a–49 (a)(2) and 53a–134 (a)(1), and robbery in the first degree in violation of § 53a–134 (a)(1). Following a jury trial, the defendant was convicted of the crimes of felony murder, attempt to commit robbery in the first degree and robbery in the first degree. The jury deadlocked as to the murder charge, and a mistrial was declared on that count.¹ Thereafter, the court imposed a total effective sentence of forty years incarceration.² This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly admitted the statements of Bell and Davis both for rehabilitative purposes and for substantive purposes. We disagree.

The following additional facts are relevant to the resolution of the defendant's claim. Bell and Davis were both questioned during direct examination about their accounts of the events of June 2, 2007, and their statements to the police. On direct examination by the state, each witness was shown a copy of his signed, sworn statement to the police, and each was marked as a state's exhibit for identification. Following the testimony of Bell and Davis but prior to the close of the state's case-in-chief, the state filed two motions in limine to admit their statements as substantive evidence.

During Bell's testimony, including during his cross-examination by the defendant, he testified to having suffered the effects of a stroke since June 2, 2007, which had, to some degree, affected his memory. The state sought to admit Bell's written statement to the police for rehabilitative purposes under Connecticut Code of Evidence § 6–11(b) as a prior consistent statement.³ Additionally, the state argued that any inconsistencies in the statement could be considered as substantive evidence under State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986), and § 8–5(1) of the Connecticut Code of Evidence.⁴ The court granted the state's motion, finding that it would be up to the jury to determine Bell's credibility regarding his claim to have suffered a stroke and his inability to recall details.

During Davis' direct examination, he testified that he was currently incarcerated but was not incarcerated at the time of his statement to the police. During cross-examination, he was asked whether the state had promised him anything in exchange for his testimony. The state filed a motion in limine to admit Davis' statement to the police as a prior consistent statement under § 6–11(b) of the Connecticut Code of Evidence, to rehabilitate Davis and to rebut the inference that he had developed an interest, bias, or motive after he signed his written statement. Additionally, the state argued that parts of the written statement should come in under Whelan because some of Davis' statements within the police statement were inconsistent with his trial testimony. Specifically, the state argued that there were two details in the police statement that Davis could not recall on direct examination, including that Davis (1) observed the defendant going through the victim's pockets and (2) heard the defendant say to the victim that he hoped he died. The court granted the state's motion.

“As a threshold matter, we set forth the standard by which we review the trial court's determinations concerning the [admissibility] of evidence. The trial court's ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion.... We will make every reasonable presumption in favor of upholding the trial court's ruling, and only upset it for a manifest abuse of discretion.... [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Internal quotation marks omitted.) Hayes v. Decker, 263 Conn. 677, 683, 822 A.2d 228 (2003).

APrior Consistent Statements

The defendant first argues that the state impeached Bell and Davis in order to admit under § 6–11(b) of the Connecticut Code of Evidence the otherwise inadmissible statements that they provided to the police. Specifically, the defendant argues that, on direct examination of Davis, the state, not the defendant, elicited that Davis was presently incarcerated. Additionally, the defendant argues that the defendant never asked Bell any questions about his stroke, which he volunteered during cross-examination and about which the court then questioned him.

In State v. Hines, 243 Conn. 796, 804–805, 709 A.2d 522 (1998), our Supreme Court stated that “[t]he only relevant inquiry is whether the jury reasonably may have been left with the impression that [the witness'] testimony was a recent fabrication.... [I]t is not necessary that the impeachment be explicit, i.e., that an actual allegation of recent fabrication be made, but only that a jury be able to reasonably infer that such is occurring.” (Internal quotation marks omitted.) The court held that “[w]hen a trial court reasonably can conclude that there was sufficient evidence to permit a jury to draw an inference of recent fabrication, it may admit a prior consistent statement for rehabilitative purposes.” Id., at 806, 709 A.2d 522; State v. Arcia, 111 Conn.App. 374, 385, 958 A.2d 1253 (2008), cert. denied, 290 Conn. 907, 964 A.2d 543 (2009).

Although the defendant is correct that the state first elicited testimony from Davis that he was incarcerated at the time of trial, the defendant, during cross-examination, elicited testimony related to Davis' motivation in testifying. Specifically, the defendant asked Davis whether he would receive or had been promised...