author: Callahan, J. Shea, J.,

text:
    State of Connecticut v. Brian R. Greco
    (13864)
    Peters, C. J., Shea, Callahan, Glass and Hull, Js.

      Argued May 30—
    decision released August 14, 1990

      Donald D. Dakers, public defender, for the appellant (defendant).

      Timothy J. Sugrue, deputy assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellee (state).
   Callahan, J.

The defendant, Brian R. Greco, was charged in a substitute information with the crimes of felony murder in violation of General Statutes § 553L-54C, robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), and burglary in the first degree in violation of General Statutes § 53a-101 (a) (l). In setting forth the predicate offenses, the felony murder count alleged that the defendant “did commit or attempt to commit a robbery of [the victim] and burglary of [the victim’s] residence.”

The defendant pleaded not guilty to all three counts of the substitute information and elected to be tried by a jury. He thereafter filed a motion to dismiss the first degree robbery count and the first degree burglary count pursuant to Practice Book § 815 (4). The basis for the defendant’s motion was his claim that the state, by charging first degree robbery and first degree burglary as separate offenses, violated his constitutional right against double jeopardy because robbery and burglary were also the predicate offenses of the felony murder count. The trial court, Ronan, J., denied the defendant’s motion. The Appellate Court dismissed, sua sponte, the defendant’s appeal of the denial of that motion.

Subsequently, the defendant changed his plea on all three counts to guilty pursuant to the doctrine of North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). Prior to accepting the defendant’s plea, the trial court, Damiani, J., provided the following information to the defendant pursuant to Practice Book § 711: (1) for the crime of felony murder, the minimum mandatory prison sentence was twenty-five years, while the maximum possible sentence was life imprisonment; (2) for the crime of robbery in the first degree, the minimum mandatory prison sentence was five years, while the maximum possible sentence was twenty years imprisonment; (3) for the crime of burglary in the first degree, the minimum mandatory prison sentence was five years while the maximum possible sentence was twenty years imprisonment; (4) the maximum prison sentence possible from consecutive sentences on all three counts was eighty years notwithstanding the opinion of the prosecutor that it was one hundred years. The trial court also informed the defendant that it would impose a total effective sentence of fifty years imprisonment if the defendant pleaded guilty to all three counts.

Before the court accepted his guilty plea the defendant argued that, assuming the validity of his claim that the double jeopardy clause barred punishing him for both felony murder and the predicate offenses, the maximum possible prison term from consecutive sentences was sixty years. The defendant claimed that the uncertain status of his double jeopardy claim and its impact on his possible maximum sentence raised a question as to whether his guilty plea could knowingly be made under such circumstances. The trial court told the defendant that the double jeopardy issue would not be preserved if the defendant were to plead guilty and that he would have to go to trial if he wished to litigate that issue. The defendant rejected this offer and the trial court accepted his guilty plea after finding that it was made voluntarily and with the assistance of counsel.

The defendant subsequently filed a motion to withdraw his guilty plea, claiming that his plea was taken in violation of Practice Book § 711 (4) because he had not been properly informed of the maximum possible sentence he faced from consecutive sentences. In his motion, the defendant noted that, at the time he changed his plea to guilty, his attorney had informed him that the maximum possible sentence was either sixty or one hundred years, while the court had informed him that the maximum possible sentence was eighty years. The trial court denied the defendant’s motion to withdraw his guilty plea.

The court, as it had previously indicated, then sentenced the defendant to fifty years imprisonment on the felony murder count, and concurrent ten year sentences on both the first degree robbery count and the first degree burglary count. The defendant appealed the trial court’s denial of his motion to withdraw his guilty plea to this court pursuant to General Statutes § 51-199 (b) (3).

The defendant claims that he should have been allowed to withdraw his guilty plea under Practice Book W 720 and 721. He maintains that because the double jeopardy clause prevents the state from punishing him for felony murder, first degree robbery and first degree burglary, the maximum sentence possible was sixty years. The defendant argues that, since the trial court informed him that the maximum sentence possible from the imposition of consecutive sentences was eighty years, the plea was accepted without substantial compliance with Practice Book § 711, and consequently the court should have allowed his plea to be withdrawn pursuant to § 721 (1). In addition, the defendant claims that he should have been allowed to withdraw his guilty plea under § 721 (2) because the court’s allegedly erroneous advice as to the maximum sentence made it impossible for him voluntarily to waive his constitutional rights by pleading guilty.

The defendant conceded at oral argument that the success of his claim that his guilty plea was involuntary and was accepted without substantial compliance with § 711 (2) and (4) is dependent upon our agreement with his double jeopardy argument. Because we find that the double jeopardy clause would not bar the court from imposing consecutive sentences upon the defendant for the felony murder conviction and for the first degree robbery and first degree burglary convictions, we conclude that the trial court properly denied the defendant’s motion to withdraw his guilty plea. Although the trial court incorrectly told the defendant that the maximum possible prison sentence he faced from consecutive sentences was eighty years, the defendant conceded at oral argument that this error does not support the claim that his plea was involuntary and was accepted without substantial compliance with § 711. Since the defendant pleaded guilty and accepted a fifty year sentence when informed that he faced a maximum possible prison sentence of eighty years, his plea certainly would have been the same if the trial court had properly informed him that the maximum possible sentence for the crimes charged was one hundred years.

The double jeopardy clause of the fifth amendment to the United States constitution provides: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” The double jeopardy clause is applicable to the states through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969); State v. Lonergan, 213 Conn. 74, 78, 566 A.2d 677 (1989), cert. denied, U.S. , 110 S. Ct. 2586, 110 L. Ed. 2d 267 (1990). This constitutional guarantee prohibits not only multiple trials for the same offense, but also multiple punishments for the same offense in a single trial. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977); State v. Anderson, 212 Conn. 31, 35, 561 A.2d 897 (1989); State v. John, 210 Conn. 652, 693, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989).

The defendant’s claim that the maximum possible prison sentence was sixty years involves that aspect of double jeopardy analysis that protects against multiple punishments for the same offense in a single trial. “With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983); Garrett v. United States, 471 U.S. 773, 793, 105 S. Ct. 2407, 85 L. Ed. 2d 764 (1985); Albernaz v. United States, 450 U.S. 333, 344, 101 S. Ct. 1137, 67 L. Ed. 2d 275 (1981); State v. Couture, 194 Conn. 530, 566, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985). “[T]he role of the constitutional guarantee [against double jeopardy] is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense.” Brown v. Ohio, supra, 165. “The issue, though essentially constitutional, becomes one of statutory construction.” State v. Rawls, 198 Conn. 111, 120, 502 A.2d 374 (1985); State v. Madera, 198 Conn. 92, 109, 503 A.2d 136 (1985).

“ ‘ “Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met.” ’ State v. Boucino, 199 Conn. 207, 222, 506 A.2d 125 (1986).” State v. John, supra, 693. There is no dispute in this case that each of the three crimes with which the defendant was charged arose out of the same transaction. Thus, the question is whether robbery in the first degree, burglary in the first degree, and felony murder based on the predicate offenses of “robbery and burglary” are the same offense for the purposes of double jeopardy analysis.

The traditional approach to analyzing whether two offenses constitute the same offense was set forth in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). “[Wjhere the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Id., 304; State v. John, supra, 695. “ Tn conducting this inquiry, we look only to the relevant statutes, the information, and the bill of particulars, not to the evidence presented at trial.’ State v. Wright, 197 Conn. 588, 593, 500 A.2d 547 (1985).” State v. John, supra, 695.

Applying the Blockburger test to this case, we conclude that first degree robbery and first degree burglary constitute the same offense as felony murder under that test, where the felony murder count alleges “robbery and burglary” as the predicate offenses. This conclusion is dictated by our decision in State v. Morin, 180 Conn. 599, 601-605, 430 A.2d 1297 (1980), where we concluded that first degree robbery and first degree burglary are lesser included offenses of felony murder.

The felony murder indictment in State v. Morin, supra, 602, alleged that the defendant “did commit a burglary and robbery” (Emphasis added.) The defendant appealed the trial court’s refusal to instruct the jury on first degree robbery and first degree burglary as lesser included offenses of the felony murder indictment. Although State v. Morin involved the application of the test used to determine when a defendant is entitled to an instruction on a lesser included offense, as opposed to the Blockburger test, the former test includes an inquiry into whether “it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser . . . .” Id., 601. This prong of the test is satisfied if the lesser offense does not “ ‘require any element which is not needed to commit the greater offense.’ ” State v. Castro, 196 Conn. 421, 428, 493 A.2d 223 (1985); State v. Troynack, 174 Conn. 89, 97, 384 A.2d 326 (1977). We concluded that it was not possible to commit felony murder in the manner indicated in the indictment without having also committed first degree robbery and first degree burglary. State v. Morin, supra, 602. Since, under State v. Morin, there are no elements of first degree robbery and first degree burglary which are not also elements of felony murder when the felony murder count alleges “robbery and burglary” as the predicate offenses, these offenses constitute the “same offense” as the felony murder charge under the Blockburger test.

The application of the Blockburger test, however, does not end our analysis of the double jeopardy issue. “[T]he Blockburger rule is not controlling when the legislative intent is clear from the face of the statute or the legislative history.” Garrett v. United States, supra, 779; Missouri v. Hunter, supra, 368; Albernaz v. United States, supra, 340; Whalen v. United States, 445 U.S. 684, 691-92, 100 S. Ct. 1432, 63 L. Ed. 2d 715 (1980); State v. John, supra, 695-97; State v. Delgado, 19 Conn. App. 245, 251-52, 562 A.2d 539 (1989). Double jeopardy protection against cumulative punishments is only “designed to ensure that the sentencing discretion of the courts is confined to the limits established by the legislature.” Ohio v. Johnson, 467 U.S. 493, 499, 104 S. Ct. 2536, 81 L. Ed. 2d 425, reh. denied, 468 U.S. 1224, 105 S. Ct. 20, 82 L. Ed. 2d 915 (1984). “Where ... a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the ‘same’ conduct under BlocJcburger, a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.” Missouri v. Hunter, supra, 368-69. “The BlocJcburger test is a ‘rule of statutory construction,’ and because it serves as a means of discerning congressional purpose the rule should not be controlling where, for example, there is a clear indication of contrary legislative intent.” Albernaz v. United States, supra, 340; Beam v. Foltz, 832 F.2d 1401, 1411, cert. denied, 485 U.S. 980, 108 S. Ct. 1278, 99 L. Ed. 2d 489 (1988). The language, structure and legislative history of a statute can provide evidence of this intent. Garrett v. United States, supra, 779. Because we conclude that the legislature clearly intended multiple punishments for felony murder and the predicate offenses of robbery and burglary, the maximum possible prison sentence faced by the defendant was one hundred years and thus the defendant has no grounds for his claim that the trial court should have allowed the withdrawal of his guilty plea. Brimmage v. Sumner, 793 F.2d 1014, 1015-16 (9th Cir. 1986) (although robbery lesser included offense of felony murder, cumulative punishments do not violate double jeopardy because legislature intended to impose multiple punishments).

The language of General Statutes § 53a-54c, the felony murder statute, and the related penalty provisions in General Statutes §§53a-54a(c) and 53a-35a (2) provide the first source of evidence that the legislature clearly intended multiple punishments. In Garrett v. United States, supra, 779, the United States Supreme Court found evidence of congressional intent to provide multiple punishments for the violation of a continuing criminal enterprise statute and for the predicate offenses where the language of the statute “affirmatively state[d] an offense for which punishment will be imposed.” The court found additional evidence in the fact that the statute in question contained no reference to other statutory offenses and set forth a separate penalty rather than using a multiplier of the penalty for another offense. Id., 781; see Birr v. State, 744 P.2d 1117, 1121-22 (Wyo. 1987). Section 53a-54c clearly states a separate offense for which punishment will be imposed. Although its penalty provisions are set forth in §§ 53a-54a (e) and 53a-35a (2), the penalty established for felony murder, a prison term of at least twenty-five years and not more than life, stands alone and is not based on a multiplier of the penalty for the predictate offense.

“(c) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony.”
“[General Statutes] Sec. 53a-35a. imprisonment for any felony committed ON OR AFTER JULY 1, 1981: DEFINITE SENTENCES; TERMS AUTHORIZED. For any felony committed on or after July 1, 1981, the sentence of imprisonment shall be a definite sentence and the term shall be fixed by the court as follows: (1) For a capital felony, a term of life imprisonment without the possibility of release unless a sentence of death is imposed in accordance with section 53a-46a; (2) for the class A felony of murder, a term not less than twenty-five years nor more than life; (3) for a class A felony other than murder, a term not less than ten years nor more than twenty-five years; (4) for a class B felony, a term not less than one year nor more than twenty years, except that for a conviction under section 53a-55a, 53a-59 (a) (1), 53a-59a, 53a-70a, 53a-94a, 53a-101 (a) (1) or 53a-134 (a) (2), the term shall be not less than five years nor more than twenty years; (5) for a class C felony, a term not less than one year nor more than ten years, except that for a conviction under section 53a-56a, the term shall be not less than three years nor more than ten years; (6) for a class D felony, a term not less than one year nor more than five years, except that for a conviction under section 53a-60b, the term shall be not less than two years nor more than five years, and for a conviction under section 53a-60c, the term shall be not less than three years nor more than five years; (7) for an unclassified felony, a term in accordance with the sentence specified in the section of the general statutes that defines the crime.”

Further evidence of the legislature’s intent to provide for cumulative punishment is found in the absence of the type of language used in General Statutes § 53a-55a (a): “No person shall be found guilty of manslaughter in the first degree and manslaughter in the first degree with a firearm upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information.” The legislature has employed similar language in at least twelve other criminal statutes. Since the legislature has shown that it knows how to bar multiple punishments expressly when it does not intend such punishment, the absence of similar language in § 53a-54c provides evidence that the legislature intended cumulative punishment. See In re Ralph M., 211 Conn. 289, 306, 559 A.2d 179 (1989); Plourde v. Liburdi, 207 Conn. 412, 416, 540 A.2d 1054 (1988).

Our conclusion as to the legislature’s intent is also based upon the distinct nature of the interests protected by the felony murder, robbery and burglary statutes. The United States Supreme Court found support for its conclusion that Congress intended multiple punishment for violations of two conspiracy statutes in the fact that the statutes were “directed to separate evils presented by drug trafficking,” namely importation and distribution. Albernaz v. United States, supra, 343. In State v. Couture, supra, 565-66, we employed similar reasoning in concluding that the legislature authorized multiple punishments under the felony murder statute where the defendant was convicted of three felony murders arising from the same incident. “Where crimes against persons are involved, a separate interest of society has been invaded for each violation. Therefore when two or more persons are the victims of a single episode there are as many offenses as there are victims.” Id., 566.

An obvious purpose of the felony murder statute, or any murder statute, is to protect human life. See id. In contrast, “[t]he basic rationale [of the robbery statutes] is protection against the terror of the forcible taking”; Commission to Revise the Criminal Statutes, Penal Code Comments, Connecticut General Statutes (1971) p.41; while the primary rationale of the crime of burglary is “protection against invasion of premises likely to terrorize occupants.” Commission to Revise the Criminal Statutes, supra, p. 32. Each of these three statutes penalizes a different type of evil. Since the felony murder statute and the underlying felony statutes are designed to address separate evils, they provide clear evidence that the legislature intended multiple punishments. Talancon v. State, 102 Nev. 294, 300, 721 P.2d 764 (1986) (felony murder and robbery with use of a deadly weapon); State v. Blackburn, 694 S.W.2d 934, 937 (Tenn. 1985) (felony murder and assault with intent to commit rape); Birr v. State, supra, 1121 (felony murder and aggravated robbery).

“The legislative history of the felony murder statute, § 53a-54c, indicates that its purpose was to fill an omission in the statutory definition of murder in § 53a-54a. In restoring the concept of felony murder, which had been omitted from the original enactment of the penal code, the legislature intended to specify another manner in which the crime of murder could be committed, rather than create a new crime. Such a purpose would have been in keeping with this state’s murder statute prior to the enactment of the penal code, when the felony murder principle was simply included in the statutory definition of first degree murder.” State v. John, supra, 696. The legislative history of § 53a-54c indicates that the felony murder statute was enacted to provide prosecutors with a means of proving murder in cases where a homicide occurs during the commission of certain felonies but specific intent to kill cannot be proven. 17 H.R. Proc., Pt. 6, 1974 Sess., pp. 3218-19, 3221-22; Conn. Joint Standing Committee Hearings, Judiciary, 1974 Sess., pp. 236-37. It would be unreasonable to conclude that in correcting this omission from the penal code the legislature, without saying so, also intended that the underlying felony could not be punished. See Commonwealth v. Sparrow, 471 Pa. 490, 504-506, 370 A.2d 712 (1977); Birr v. State, supra, 1121.

On the basis of our examination of the language, structure and legislative history of § 53a-54c, we conclude that the legislature clearly intended multiple punishments for felony murder and the underlying predicate offenses of robbery and burglary. Our double jeopardy analysis leads to the conclusion that the defendant faced a maximum possible term of imprisonment from consecutive sentences of one hundred years, and thus the defendant has no basis for his argument that the trial court should have allowed him to withdraw his guilty plea pursuant to Practice Book §§ 720 and 721.

The trial court’s denial of the defendant’s motion to withdraw his guilty plea is affirmed.

In this opinion Peters, C. J., Glass and Hull, Js., concurred.

Shea, J.,

concurring. Although I agree with the result reached by the majority, I disagree with its declaration that “there are no elements of first degree robbery and first degree burglary which are not also elements of felony murder when the felony murder count alleges ‘robbery and burglary’ as the predicate offenses” and its conclusion that “these offenses constitute the ‘same offense’ as the felony murder charge under the Blockburger test.” See Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). As charged in this information, both first degree robbery and first degree burglary contain an element, being “armed with a deadly weapon,” not included in the felony murder count and, therefore, are separate offenses. Accordingly, I agree with the majority that the maximum possible sentence for the three crimes was one hundred years and that the trial court’s erroneous reference to a maximum of eighty years could not have been a material inducement in the defendant’s decision to plead guilty.

The second count of the information charges the defendant with robbery in the first degree by virtue of having robbed the victim while “he or another participant in the crime was armed with a deadly weapon; to wit, a handgun” in violation of General Statutes § 53a-134 (a) (2). Similarly, the third count alleges that the defendant unlawfully entered the victim’s residence, “with intent to commit a crime therein, and he or another participant in the crime was armed with a deadly weapon; to wit, a handgun,” thus committing burglary in the first degree in violation of General Statutes § 53a-101 (a) (1). The first count, charging felony murder in violation of General Statues § 53a-54c, alleges, without reference to any deadly weapon, that the defendant “did commit or attempt to commit a robbery of [the victim] and burglary of his residence, and, in the course of and in furtherance of said crimes he, or another participant in the crimes, caused the death” of the victim.

Since, as the majority acknowledges, we are limited to the charging documents and specified statutes in applying the Blockburger test in this state; State v. Martin, 187 Conn. 216, 222, 445 A.2d 585 (1982); it clearly was possible for the defendant to have committed felony murder in the manner charged in the first count without either him or his companion being armed, as alleged in the second count of robbery in the first degree and in the third count of burglary in the first degree. In this information neither first degree robbery nor first degree burglary is included in the felony murder charge, because that offense could have been committed without violating § 53a-134 (a) (2) or § 53a-101 (a) (1) in the manner alleged in the second and third counts, both of which require that the offender or another participant be armed. The contrary view of the majority is wholly at variance with our precedent on this subject. State v. Dolphin, 203 Conn. 506, 518, 525 A.2d 509 (1987) (robbery in the first degree while armed with a deadly weapon does not include robbery in the second degree requiring the display, use or representation of a deadly weapon); State v. Franko, 199 Conn. 481, 495, 508 A.2d 22 (1986) (“sexual assault in the second degree is an offense separate and distinct from sexual assault in the first degree”).

As the information plainly sets forth three separate offenses, none of which is included in another, the trial court was authorized to impose the maximum sentence provided by each of the three statutes involved, §§ 53a-54c, 53a-134 (a) (2) and 53a-101 (a) (1), for a cumulative total of one hundred years imprisonment, as the majority has concluded. It is unnecessary, therefore, to consider the ground of affirmance upon which the majority relies, that the legislature has manifested an intention to punish each of these offenses separately even if they were included in the felony murder charge under the Blockburger test. That issue raises problems of multiplicity and notice that are best left to another time when we are presented with an information not plainly alleging separate and distinct offenses. See State v. Cimino, 33 Conn. Sup. 680, 684-85, 366 A.2d 1168 (1976).

Accordingly, I concur in the judgment.

       “[General Statutes] Sec. 53a-54c. felony murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, sexual assault in the first degree with a firearm, sexual assault in the third degree, sexual assaul in the first degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (A) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (B) was not armed with a deadly weapon, or any dangerous instrument; and (C) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (D) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.”

       “[General Statutes] Sec. 53a-134. robbery in the first degree; class b felony, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon . . . .”

       “[General Statutes] Sec. 53a-101. burglary in the first degree: class B felony, (a) A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and: (1) He is armed with explosives or a deadly weapon or dangerous instrument . . . .”

       The felony murder count stated: “ROLAND D. FASANO, Assistant State’s Attorney for the Judicial District of NEW HAVEN accuses BRIAN GRECO of FELONY MURDER and charges that at the Town or City of HAMDEN on or about the 6th day of SEPTEMBER 1988 at approximately midnight, in the area of 388 Howard Drive the said BRIAN GRECO did commit or attempt to commit a robbery of ROBERT BESSINGER and burglary of his residence, and, in the course of and in furtherance of said crimes he, or another participant in the crimes, caused the death of a person other than one of the participants; to wit, ROBERT BESSINGER, all in violation of Section 53a-54c of the General Statutes.”

       Practice Book § 815 (4) provides: “[motion to dismiss]—matters to BE RAISED
      “The following defenses or objections, if capable of determination without a trial of the general issue, shall, if made prior to trial, be raised by a motion to dismiss the indictment or information ....
      “(4) Absence of jurisdiction of the court over the defendant or the subject matter.”

       “[Practice Book] Sec. 711. [plea of guilty oe nolo contendere]— —ADVICE TO DEFENDANT
      “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he fully understands:
      “(1) The nature of the charge to which the plea is offered;
      “(2) The mandatory minimum sentence, if any;
      “(3) The fact that the statute for the particular offense does not permit the sentence to be suspended;
      “(4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
      “(5) The fact that he has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he has the right to be tried by a jury or a judge and that at that trial he has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not be compelled to incriminate himself.”

       See General Statutes §§ 53a-54c, 53a-54a (c), 53a-35a (2). The trial court told the defendant that under Connecticut law a life sentence is sixty years. See General Statutes § 53a-35b.

       The state asserts that imposing consecutive sentences for felony murder and for both of the predicate felonies is not barred by the double jeopardy clause and thus the defendant could have received a sixty year sentence on the felony murder count, twenty years for the first degree robbery count, and twenty years for the first degree burglary count, for a total sentence of one hundred years. The trial court did not explain how it arrived at the eighty year figure for the maximum possible sentence from consecutive terms.

       “[General Statutes] Sec. 51-199. jurisdiction. . . .
      “(b) The following matters shall be taken directly to the supreme court ... (3) an appeal in any criminal action involving a conviction for a capital felony, class A felony, or other felony, including any persistent offender status, for which the maximum sentence which may be imposed exceeds twenty years . . . .”

       “[Practice Book] Sec. 720. [withdrawal of plea]—when allowed
      “A defendant may withdraw his plea of guilty or nolo contendere as a
      matter of right until the plea has been accepted. After acceptance, the judicial authority shall allow the defendant to withdraw his plea upon proof of one of the grounds in Sec. 721. A defendant may not withdraw his plea after the conclusion of the proceeding at which the sentence was imposed.
      “Sec. 721.—grounds
      “The grounds for allowing the defendant to withdraw his plea of guilty after acceptance are as follows:
      “(1) The plea was accepted without substantial compliance with Sec. 711;
      “(2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed;

        “(3) The sentence exceeds that specified in a plea agreement which had been previously accepted, or in a plea agreement on which the court had deferred its decision to accept or reject the agreement at the time the plea of guilty was entered;
      “(4) The plea resulted from the denial of effective assistance of counsel;
      “(5) There was no factual basis for the plea; or
      “(6) The plea either was not entered by a person authorized to act for a corporate defendant or was not subsequently ratified by a corporate defendant.”

       The defendant also asserts that the trial court incorrectly informed him of the mandatory minimum sentence as a basis for his claim that there was not substantial compliance with Practice Book § 711. Since this claim, like the argument concerning the maximum possible sentence, is based on the defendant’s interpretation of the double jeopardy clause, our analysis of the double jeopardy issue will dispose of this claim as well.

       On the basis of our rejection of the defendant’s double jeopardy argument, we need not rule on whether the failure of a trial court correctly to inform a defendant of the maximum possible sentence constitutes grounds for withdrawal of a guilty plea under Practice Book § 721 (1) and (2). See State v. Collins, 207 Conn. 590, 595-96, 542 A.2d 1131 (1988) (concluding that the defendant’s unpreserved claim that the trial court improperly accepted his guilty pleas despite the court’s failure to inform him of the mandatory minimum sentence was not reviewable because the defendant could not claim that the total effective sentence he received was any different from the sentence promised in the plea agreement); State v. Wright, 207 Conn. 276, 289, 542 A.2d 299 (1988) (“the trial court’s omission in failing to advise the defendant of the mandatory minimum sentences did not implicate constitutional rights”).

       General Statutes § 53a-54a (c) provides: “murder defined, affirmative defenses, evidence of mental condition, classification. . . .

       See General Statutes §§ 53a-56a (a), 53a-59a (b), 53a-60a (a), 53a-60b (b), 53a-60c (b), 53a-61a (b), 53a-70a (a), 53a-72b (a), 53a-92a (a), 53a-94a (a), 53a-102a (a), and 53a-103a (a).

       Other courts have concluded that the double jeopardy clause does not prohibit punishment for both felony murder and the underlying offense because the legislature intended multiple punishments. See Gillespie v. Ryan, 837 F.2d 628, 630-32 (3d Cir.), cert. denied, 488 U.S. 833, 109 S. Ct. 90, 102 L. Ed. 2d 66 (1988) (consecutive sentences for felony murder and for underlying felony of robbery do not violate double jeopardy clause because state legislature defines each as a separate crime, applying Pennsylvania law in a case involving felony murder and robbery); Deloach v. Wainwright, 777 F.2d 1524, 1525-26 (11th Cir. 1985) (per curiam) (sentences for both felony murder and underlying felony do not violate double jeopardy clause because Florida legislature intended multiple punishments for offenses); State v. Enmund, 476 So. 2d 165, 167 (Fla. 1985) (felony murder and robbery); Talancon v. State, 102 Nev. 294, 297-302, 721 P.2d 764 (1986) (felony murder and robbery with use of a deadly weapon); State v.
        Blackburn, 694 S.W.2d 934, 935-37 (Term. 1985) (felony murder and assault with intent to commit rape); Spain v. Commissioner, 7 Va. App. 385, 373 S.E.2d 728 (1988) (felony murder and robbery); Birr v. State, 744 P.2d 1117 (Wyo. 1987) (felony murder and aggravated robbery).

       The majority declares that its “conclusion is dictated by our decision in State v. Morin, 180 Conn. 599, 601-605, 430 A.2d 1297 (1980), where we concluded that first degree robbery and first degree burglary are lesser included offenses of felony murder.” In Morin, both the state and the defendant filed requests to charge on first degree robbery and first degree burglary that this court “characterized as a mutual acknowledgment that the allegations of the indictment supported a charge on those crimes as lesser included offenses under State v. Brown, 163 Conn. 52, 61-62, 301 A.2d 547 (1972).” Id., 602 n.4. The court relied upon that mutual understanding and made no independent Blockburger analysis. See Blockburger v. United, States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). Furthermore, in Morin there were no separate counts alleging use of a deadly weapon in the commission of first degree robbery and first degree burglary, as in the present case, but only a single count indictment for felony murder alleging a robbery and burglary without specifying the manner in which those predicate felonies were committed. In the present case, having expressly relied on the provisions of General Statutes §§ 53a-134 (a) (2) and 53a-101 (a) raising simple robbery and burglary to first degree crimes when a defendant is “armed with a deadly weapon,” the state could not have claimed that the commission of robbery and burglary in some other manner might have satisfied alternative enhancement provisions of our first degree robbery and first degree burglary statutes.


source: Caselaw Access Project

author: Callahan, J.

license: Public Domain

text:
    State of Connecticut v. Jorge Alvarez
    (13722)
    Peters, C. J., Callahan, Glass, Covello and Hull, Js.
    Argued June 5—
    decision released August 21, 1990

      Milo J. Altschuler, for the appellant (defendant).

      Leon F. Dalbec, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David P. Gold, assistant state’s attorney, for the appellee (state).
   Callahan, J.

The defendant, Jorge Alvarez, was convicted by a jury of the crime of murder in violation of General Statutes § 53a-54a. The trial court sentenced him to a term of life imprisonment. On appeal, the defendant challenges four evidentiary rulings by the trial court. He first contends that the trial court should have admitted a statement by Kenneth Hazard, a witness to the shooting that caused the victim’s death, to Joseph Greene, a police officer. In addition, he argues that the court should have excluded: (1) the contents of a conversation between the defendant and Melvin Poindexter; (2) the prior written and tape recorded statements of a witness to the shooting incident, Pamela McCrea; and (3) the testimony of Janette Lawrence. We conclude that the trial court did not abuse its discretion in ruling as it did on these eviden-tiary claims, and therefore affirm the court’s judgment.

The jury could reasonably have found the following facts. At approximately 2 a.m. on January 16, 1988, the victim, Eugene Mabery, was returning home from a friend’s house when he passed by the Oasis Club in New Haven. While outside the club, Mabery became involved in an altercation with Johnnie Baker. A crowd of spectators, including Pamela McCrea and Kenneth Hazard, gathered to watch the fight. After the fighting was halted, and while Mabery was attempting to retrieve a plastic bag containing his gym clothes, the defendant drew a gun and shot him in the upper body. Mabery immediately bent over, exclaimed that he had been shot, gathered his belongings and ran from the scene. A few days later, on January 23,1988, his body was found in a frozen condition in the backyard of a nearby home. He had died from a gunshot wound to his chest.

I

The defendant first argues that the trial court should have allowed Officer Joseph Greene, an investigating police officer, to testify as to a statement made to him by Kenneth Hazard, a witness to the shooting incident. As to this claim, the record reveals the following relevant facts. During the cross-examination of Greene, the defendant attempted to elicit testimony from him as to the details of his investigation. In an offer of proof, outside the presence of the jury, Greene testified that Hazard had told him that he thought he saw a person named Rasheem shoot the victim. The trial court excluded the proffered testimony as hearsay, an out-of-court statement offered to prove the truth of the matter asserted therein.

A

The defendant maintains that, under our decision in State v. Echols, 203 Conn. 385, 392, 524 A.2d 1143 (1987), a hearsay statement that establishes that a third party, and not the defendant, is culpable is admissible as long as the defendant shows some evidence that directly connects the third party to the crime. Thus, he argues that once he had established the relevancy of the statement, he could offer the statement for the truth of the matter asserted therein. We disagree.

The first criteria of admissibility is that the statement made by Hazard must be relevant. “We have often stated that ‘[e]vidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case. . . . “One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable. . . . Unless excluded by some rule or principle of law, any fact may be proved which logically tends to aid the trier in the determination of the issue.” Pope Foundation, Inc. v. New York, N.H. & H.R. Co., 106 Conn. 423, 435, 138 A. 444 (1927).’ State v. Towles, 155 Conn. 516, 523, 235 A.2d 639 (1967).” (Emphasis added.) State v. Echols, supra, 393.

A “defendant may introduce evidence which indicates that a third party, and not the defendant, committed the crime with which the defendant is charged.” Id., 392. We have stated that such evidence is admissible as long as “ ‘ “there is some evidence which directly connects that third party with the crime.” (Emphasis added.) State v. Kinsey, [173 Conn. 344, 348, 377 A.2d 1095 (1977)]. . . .’ State v. Giguere, [184 Conn. 400, 405, 439 A.2d 1040 (1981).” State v. Delossantos, 211 Conn. 258, 270, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989). Evidence that showed that Rasheem, and not the defendant, had shot the victim thus is relevant and would be admissible provided the evidence was not excluded by some other rule or principle of law.

The determination that the proffered testimony is relevant, therefore, does not end the inquiry. Contrary to the defendant’s claim, the court must also determine whether the statement falls within any recognized exception to the hearsay rule. State v. Acquin, 187 Conn. 647, 680, 448 A.2d 163 (1982), cert. denied, 463 U.S. 1229, 103 S. Ct. 3570, 77 L. Ed. 2d 1411 (1983). In the present case, the trial court determined that it did not.

We have long recognized that a hearsay statement is admissible only if it falls within an exception to the hearsay rule. State v. Sharpe, 195 Conn. 651, 664, 491 A.2d 345 (1985); State v. Acquin, supra, 680; Izzo v. Crowley, 157 Conn. 561, 563, 254 A.2d 904 (1969). The defendant sought to introduce Hazard’s statement, through Greene, for the truth of the matter asserted therein, i.e., that Rasheem shot the victim. The value of this statement depends upon the credibility of Hazard. “The reason for the general rule which excludes hearsay evidence unless it comes within one of the recognized exceptions is basically that the sanction of an oath and the test of cross-examination are absent; and the exceptions to the rule have been fashioned where the statements are made under conditions judged to render them equal in reliability and trustworthiness to those which are made under the sanctions described.” State v. Barlow, 177 Conn. 391, 396, 418 A.2d 46 (1979); see State v. Hernandez, 204 Conn. 377, 389-94, 528 A.2d 794 (1987); State v. Gold, 180 Conn. 619, 630-31, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980).

“Evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” State v. Hernandez, supra, 390. We conclude that the trial court did not abuse its discretion by not admitting Greene’s proposed testimony as to Hazard’s hearsay statement merely because it was relevant.

B

The defendant now asserts for the first time, on appeal, that Greene’s testimony concerning Hazard’s statement falls within the residual exception to the hearsay rule. We have stated that hearsay may be admitted into evidence, even if it does not fall within a traditional hearsay exception, if (1) “there was a reasonable necessity for the admission of the statement,” and (2) “the statement was supported by the equivalent guarantees of reliability and trustworthiness essential to the other evidence admitted under the traditional hearsay exceptions.” State v. Sharpe, supra, 664.

“On appeal, [however,] we will not review an evidentiary claim not raised below. ‘ “ ‘Once counsel states the authority and ground of his objection, any appeal will be limited to the ground asserted.’ Borucki v. MacKenzie Bros. Co., 125 Conn. 92, 3 A.2d 224 (1938); State v. Rado, 172 Conn. 74, 81, 372 A.2d 159 (1976) [cert. denied, 430 U.S. 918, 97 S. Ct. 1335, 51 L. Ed. 2d 598 (1977)]; State v. Johnson, 166 Conn. 439, 444-45, 352 A.2d 294 (1974); Salvatore v. Hayden, 144 Conn. 437, 443, 133 A.2d 622 (1957).” State v. Adams, 176 Conn. 138, 144-45, 406 A.2d 1 (1978). . . . ’ State v. Brice, 186 Conn. 449, 457, 442 A.2d 906 (1982). . . .” State v. Moye, 214 Conn. 89, 97-98 n.6, 570 A.2d 209 (1990). Because the defendant failed to raise the residual exception at trial and the trial court did not have the opportunity to consider that ground for admission of Greene’s testimony, we will not address this claim of the defendant on appeal.

II

The defendant next argues that the trial court should have excluded a portion of the testimony of Richard King because it was irrelevant and because it was inadmissible hearsay. The following facts are relevant to this claim. King testified that, approximately one week before the victim’s body was found, he had gone to Melvin Poindexter’s apartment “to get some cocaine.” When King arrived, the defendant and Rasheem were there.

During direct examination, the state inquired as to the contents of the conversation between the defendant and Poindexter. Over the defendant’s objection, the following colloquy transpired:

“Q. Tell the jury what Mr. Poindexter said to Mr. Alvarez. . . .
“A. He said that he had fronted Gene a key of cocaine.
“Q. He said he fronted someone named Gene—
“A. A key of cocaine.
“Q. That was a statement made by Mr. Poindexter to the defendant?
“A. Yes.
“Q. And did he give a last name of Gene?
“A. No.
“Q. What happened? Continue with what happened at the table?
“A. So then he said if Gene don’t have his money he wants him to kill him. So then he said all right, I take care of it if it come down to that.
“Q. Who said I will take care of it if it comes down to that?
“A. Jorge Alvarez.
“Q. What did Mr. Poindexter then provide Mr. Alvarez?
“A. A pistol, some cocaine and some money.”

King testified that Poindexter had given the defendant a black pistol, two to three ounces of cocaine and fifteen hundred dollars. The defendant placed the items in his pocket.

King further testified that he had seen the defendant again approximately three days before the defendant was arrested. According to King’s testimony, the defendant had told King that “Johnn[ie] Baker and Gene started fighting” and then the defendant pulled out his gun and shot “Gene.” The defendant then added that Poindexter would have “to pay him from now on.”

The defendant objected to the admission of King’s testimony that Poindexter told the defendant that he had wanted “Gene” killed because “Gene” owed Poin-dexter money for a kilo of cocaine. The defendant contends that the statement was not relevant because Poindexter was referring to a person named “Gene” and the state failed to show that “Gene” was the victim, Eugene Mabery. Specifically, the defendant maintains that there was no evidence that the victim knew Poindexter or was “involved in the use or sale of drugs.”

The trial court has broad discretion in determining the relevancy of evidence. Dunham v. Dunham, 204 Conn. 303, 324, 528 A.2d 1123 (1987); State v. Fritz, 204 Conn. 156, 167, 527 A.2d 1157 (1987). “Rulings on such matters will be disturbed on appeal only upon a showing of a clear abuse of discretion. State v. Boucino, [199 Conn. 207, 225, 506 A.2d 125 (1986)]; State v. Falcon, 196 Conn. 557, 566, 494 A.2d 1190 (1985). We have consistently held that ‘evidence is relevant only when it tends to establish the existence of a material fact or to corroborate other direct evidence in the case. State v. Sharpe, [supra, 659]; State v. Mastropetre, 175 Conn. 512, 517, 400 A.2d 276 (1978).’ State v. Taiton, 197 Conn. 280, 285, 497 A.2d 35 (1985).” State v. Fritz, supra, 167-68.

The record reveals that the state presented sufficient evidence to provide logical support for the state’s contention that the “Gene” mentioned in the conversation between Poindexter and the defendant was, in fact, Eugene Mabery. First, the state presented other testimony by King wherein he stated that the defendant had referred to the victim as “Gene.” Specifically, King testified that the defendant had told him that he had killed “Gene” while “Gene” and Johnnie Baker were fighting. Also, in testimony presented at trial, at least three witnesses testified as to the fight between the victim and Johnnie Baker. Further, Wilbert Lindsey, an old friend of the victim, testified that the victim’s nickname was “Gene.” We conclude that the trial court did not abuse its discretion in determining that the evidence was sufficiently relevant to be admissible.

The defendant also objects to the admission of this testimony on hearsay grounds. To analyze this claim we must examine the component parts of the colloquy. We note initially that the defendant does not object to that portion of the statement in which King testified that he had observed Poindexter provide the defendant with a pistol, cocaine and some money. Further, the defendant’s response to Poindexter was admissible as an admission, a recognized exception to the hearsay rule. State v. Stepney, 191 Conn. 233, 250, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984).

The defendant objects to the court’s admission of those statements in the colloquy, attributed to Poin-dexter, in which Poindexter told the defendant he wanted the victim killed because the victim owed Poin-dexter some money for a kilo of cocaine. In contrast, the state contends that these statements were admissible because they were offered to show their effect upon the defendant.

If the state had offered the statements for the truth of the facts contained therein, the statements would have been inadmissible, unless they fell within an exception to the hearsay rule. “ ‘A statement that is offered to show its effect upon the hearer, however, is not hearsay. State v. Hull, 210 Conn. 481, 499, 556 A.2d 154 (1989); State v. Silveira, [198 Conn. 454, 473, 503 A.2d 599 (1986)]; State v. Zdanis, 173 Conn. 189, 192 n.1, 377 A.2d 275 (1977).’ State v. John, [210 Conn. 652, 680, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989)].” State v. Robinson, 213 Conn. 243, 258-59, 567 A.2d 1173 (1989); C. Tait & J. LaPlante, Handbook of Connecticut Evidence (2d Ed.) § 11.3.3, p. 324. As the trial court ruled, the state offered Poindexter’s statements, not for the truth of the matter asserted therein, but rather to show the effect of the statements upon the defendant. The jury could infer from the statements that the defendant had a motive to kill the victim. United States v. Cline, 570 F.2d 731, 734 (8th Cir. 1978). This is not hearsay. State v. Hull, supra, 498-99; State v. Gonzales, 186 Conn. 426, 429, 441 A.2d 852 (1982); C. McCormick, Evidence (3d Ed.) § 249.

It is not material whether Poindexter in fact wanted the victim killed or whether in fact the victim owed Poindexter money. Because the testimony was offered to show the defendant’s motive for shooting the victim, its admissibility does not depend upon the truth of the statements uttered by Poindexter. United States v. Cline, supra. The inability to assess the credibility of Poindexter’s statements was, therefore, immaterial. “The question of whether the words were spoken or not” was a matter within King’s knowledge. Id., 735. “Since he was under oath and subject to cross-examination no hearsay dangers were posed by his testimony.” Id.; United States v. Hicks, 848 F.2d 1, 3 (1st Cir. 1988).

“Out-of-court statements to a person are admissible to show his state of mind where his mental state is relevant. State v. Brokaw, 183 Conn. 29, 32, 438 A.2d 815 (1981); Zenik v. O’Brien, 137 Conn. 592, 598, 79 A.2d 769 (1951). A person’s ‘state of mind’ can be shown ‘from what he heard as well as from what he saw, even though what he heard would be normally classified as hearsay. . . . ’ (Citations omitted.) Zenik v. O’Brien, supra, 598.” State v. Jones, 205 Conn. 723, 731, 535 A.2d 808 (1988). “The defendant’s state of mind was relevant to specific intent and to motive; and, therefore, the statements did not constitute hearsay.” State v. Hull, supra, 502.

Ill

The defendant also challenges the trial court’s ruling that Pamela McCrea’s prior inconsistent statement, which was both in writing and tape recorded, could be admitted for substantive purposes. The following facts are relevant to this claim. Approximately one week after the victim’s body was found, Greene telephoned McCrea to determine the whereabouts of her sister, Wanda Mullins. Mullins was the girlfriend of Rasheem, who had been present at the Oasis Club on the night of the murder. After Greene identified himself, McCrea told him that she had been at the Oasis Club on the night of the shooting and that she had seen the defendant shoot the victim. Later, McCrea went to the police station and gave a formal statement to the police. The statement was tape recorded and thereafter immediately transcribed into writing. McCrea signed the statement that same day, January 29, 1988. In her statement, McCrea said she had seen the defendant pull out a gun, put a hat over it and shoot the victim.

On direct examination at trial the state questioned McCrea as to what had occurred at the Oasis Club on the night of January 15, 1988. McCrea testified that she had been at the Oasis Club that night and that, around closing time, she had witnessed a fistfight between the victim and Baker. She also stated that, after the fight broke up, the victim was shot while attempting to retrieve his belongings. Contrary to her previous statement, however, McCrea testified that she had not seen who shot the victim. Further, in contrast to her prior statement, she denied that she had seen the defendant with a gun. Having unsuccessfully sought to refresh McCrea’s recollection, the state’s attorney then offered her prior written inconsistent statement into evidence for substantive purposes 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 objected, claiming that, unlike the witness in Whelan, McCrea had not lost her memory of the events. The trial court overruled the defendant’s objection. Later, the state also introduced McCrea’s tape recorded statement into evidence.

We have recognized that a prior written inconsistent statement can be admitted for substantive purposes if the following conditions have been met: (1) the statement is signed by the declarant; (2) the declarant has personal knowledge of the facts stated; and (3) the declarant testifies at trial and is available for cross-examination. State v. Almeda, 211 Conn. 441, 452, 560 A.2d 389 (1989); State v. Ruiz, 202 Conn. 316, 329-30 n.3, 521 A.2d 1025 (1987); State v. Whelan, supra, 753. A prior tape recorded statement, satisfying these conditions, is also admissible for substantive purposes. State v. Whelan, supra, 754 n.9. While “the requirement that prior statements be written and signed by the declarant is not an absolute guaranty of reliability, it does provide significant assurance of an accurate rendition of the statement and that the declarant realized it would be relied upon.” Id., 754.

The defendant does not argue that the criteria established in State v. Whelan, supra, have not been satisfied, but rather contends that McCrea’s statement was inherently unreliable and therefore inadmissible. He argues that the time lapse between the date of the shooting incident, January 16, 1988, and the date McCrea gave her statement to the police, January 29, 1988, undermined its reliability. Further, he claims that because McCrea was friendly with Rasheem, a suspect in the case, her statement “did not have the same indicia of reliability” as the statement in Whelan.

We conclude that the trial court did not abuse its discretion in admitting McCrea’s prior written and tape recorded statements into evidence for substantive purposes. McCrea gave her statement to the police voluntarily based upon her personal knowledge of the events. Her statement was given only two weeks after the incident, “long before the witness’ memory [of such an event] might have faded.” Id. Also, McCrea gave her statement to a police officer and, if the statement was untrue, faced possible prosecution for falsely reporting an incident to the police. General Statutes § 53a-180. Further, the declarant testified at trial and was available to be extensively cross-examined by the defendant. Moreover, there is nothing in the record to indicate that the trial court restricted the defendant’s cross-examination of McCrea for bias, motive, interest or prejudice. See State v. Moye, 214 Conn. 89, 94, 570 A.2d 209 (1990); State v. Vitale, 197 Conn. 396, 402, 497 A.2d 956 (1985). The defendant, therefore, had the opportunity to show during cross-examination or through the introduction of extrinsic evidence that McCrea was biased towards Rasheem. Fairbanks v. State, 143 Conn. 653, 657, 124 A.2d 893 (1956); C. Tait & J. La Plante, supra, § 7.20.1, p. 191. “The jury had an adequate opportunity to observe and examine the demeanor of the witness, to hear the testimony and to assess [her] credibility.” State v. Whelan, supra, 755. Consequently, the jury was free to assess the reliability of McCrea’s prior statement and to believe McCrea’s trial testimony, her prior statement, or neither.

The defendant contends, however, that he was deprived of his constitutional right to cross-examine McCrea because he could not effectively question her as to the details of her prior inconsistent statement because, at trial, she testified that the prior statement was false. Because he did not assert this constitutional claim at trial, the defendant presumably seeks review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). “[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

“The confrontation clause gives the accused the right ‘to be confronted with the witnesses against him.’ U.S. Const., amend. VI. . . . ‘ “[T]he Confrontation Clause guarantees only ‘an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’ ” Kentucky v. Stincer, 482 U.S. 730, 739 [107 S. Ct. 2658, 96 L. Ed. 2d 631] (1987), quoting [Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 88 L. Ed. 2d 15 (1985)] (emphasis added); Delaware v. Van Arsdall, 475 U.S. 673, 679 [106 S. Ct. 1431, 89 L. Ed. 2d 674] (1986); Ohio v. Roberts, 448 U.S. 56, 73 n.12 [100 S. Ct. 2531, 65 L. Ed. 2d 597] (1980).’ United States v. Owens, 484 U.S. 554, 559, 108 S. Ct. 838, 98 L. Ed. 2d 951 (1988).” State v. Moye, supra, 94.

The record reveals that the defendant had an unrestricted opportunity to cross-examine the witness. The constitutional standard was therefore satisfied. During his cross-examination of McCrea, the defendant conducted a wide-ranging inquiry into the circumstances under which her statement to the police had been given and why it was inconsistent with her trial testimony. McCrea testified that, when she had given her statement to the police, Greene had provided her with a script and that she had simply read the script into the tape recorder. Because Greene had provided her with the facts, she claims, she had just assumed that they were true and repeated them. She had agreed to the statements, she said, only because she had “wanted to get out of there.” She testified, moreover, that she had not actually seen who had shot the victim. Defense counsel also elicited from McCrea that her trial testimony was consistent with her testimony at the probable cause hearing the previous year. Under the circumstances, a violation of the defendant’s right to confrontation does not clearly exist and we decline to review further the defendant’s Evans claim. State v. Golding, supra, 239-40.

IV

The defendant next argues that the trial court should not have allowed Janette Lawrence to testify as to remarks made by McCrea during a recess in McCrea’s testimony. The following facts are relevant to this issue. During direct examination, McCrea had admitted that she did not want to be in court testifying. She further remarked that she had been upset when she had discovered that the New Haven Register had published her name and address in an article concerning the shooting incident. She also expressed her concern about the continued media attention the case was receiving.

The next day, the state offered the testimony of Lawrence to impeach the credibility of McCrea’s trial testimony. In an offer of proof, outside the presence of the jury, Lawrence testified that she had approached McCrea during the recess in her testimony because McCrea appeared afraid. Lawrence testified to the following: “And I said, baby, don’t be afraid, just tell the truth. And [McCrea] said, I want to tell the truth, she said, I want to help her but I can’t.” Lawrence then related to the court that McCrea had told her that she had been receiving phone calls threatening her life, and that notes had been left on her car. Lawrence also testified that McCrea had expressed concern that newspaper reporters were present in the courtroom and that they would publish whatever she said.

The trial court concluded that McCrea’s remarks concerning the threatening notes and phone calls were inadmissible. The court ruled that the prejudicial impact of those statements outweighed their probative value because there was no evidence that the defendant was responsible for the threats. The trial court allowed the state to introduce Lawrence’s testimony that McCrea was afraid, however, for the limited purpose of impeaching McCrea’s credibility. The court found that the probative value of testimony concerning McCrea’s fear outweighed any prejudicial impact that testimony might have in light of McCrea’s testimony compared to her prior statement and “the appearance she made on the stand.”

After Lawrence testified, the court gave the following limiting instruction to the jury: “Ladies and gentlemen, the testimony that Mrs. Lawrence just gave was offered by the State for such weight as you feel it’s entitled to bearing on the subject of the credibility, the believability, of Pamela McCrea when she testified yesterday. That was the purpose which the State offered that testimony for what consideration you feel it’s entitled to bearing on her, Pamela McCrea’s, credibility, believability, as a witness as she testified here yesterday. That’s the purpose of that evidence.”

The defendant claims that Lawrence’s testimony was inadmissible hearsay and that its prejudicial impact outweighed its probative value. He asserts that the testimony gave “the impression that Miss McCrea’s testimony under oath was false,” even though McCrea could have meant that she “wanted to tell the truth, said truth being that Rasheem had killed Mr. Mabery.” We disagree.

A witness may be impeached for motive, interest, bias or prejudice by cross-examination or by the introduction of extrinsic evidence. State v. Shipman, 195 Conn. 160, 163, 486 A.2d 1130 (1985); State v. Townsend, 167 Conn. 539, 560, 356 A.2d 125, cert. denied, 423 U.S. 846, 96 S. Ct. 84, 46 L. Ed. 2d 67 (1975); C. McCormick, Evidence (3d Ed.) § 34, p. 73. Such an examination “for the purpose of eliciting facts which tend to show motive, interest, bias or prejudice ‘is a substantial legal right which may not be abrogated or abridged at the discretion of the court. . . . ’ State v. Luzzi, 147 Conn. 40, 46-47, 156 A.2d 505 (1959).” State v. Ship-man, supra. While “proof of the main facts is a matter of right . . . the extent of the proof of details lies in the court’s discretion. See 3A Wigmore, Evidence (Chadbourn Rev.) § 951, p. 797 n.2.” Id.

“ ‘Pursuant to the rule permitting explanations of prior inconsistent statements, it is generally held that evidence of threats to a witness or fear on the part of a witness, in order to explain an inconsistency, is admissible in criminal cases . . . even if the threats or fear have not been linked to the defendant. (Citations omitted.)’ Washington v. State, 293 Md. 465, 470, 445 A.2d 684 (1982).” State v. Walker, 214 Conn. 122, 130-31, 571 A.2d 686 (1990).

In this instance, although the trial court did not allow the evidence of threats directed at McCrea to be admitted into evidence, it did allow her statement to Lawrence that she was afraid in order to explain the discrepancy between her trial testimony and her prior inconsistent statement. The trial court admitted Lawrence’s testimony as to McCrea’s fear to allow the state to demonstrate the reason for McCrea’s trial testimony. “ ‘The scope and extent of the explanation for the conduct or inconsistent statements is a matter within the discretion of the trial court and we may reverse only upon a finding of abuse of that discretion. State v. Charles, 525 S.W.2d 360, 363 (Mo. App. 1975).’ State v. May, 587 S.W.2d 331, 336 (Mo. App. 1979).” State v. Walker, supra, 130.

Lawrence’s testimony was offered for the limited purpose of impeaching McCrea’s credibility. Because it was not offered for the truth of the matter asserted therein, it was not hearsay. The testimony was offered to show that McCrea was afraid and therefore had a motive to testify falsely. While the defendant now complains that Lawrence’s testimony was ambiguous, he never explored those ambiguities with the witness at trial. Having failed to do so, he cannot now claim that the ambiguity of the statement prevents its admission into evidence. The testimony was not hearsay. It was relevant to show McCrea’s motive for testifying as she did, and it was not so prejudicial as to warrant its exclusion. On the basis of this record we cannot conclude that the trial court abused its discretion by admitting Lawrence’s testimony into evidence.

The judgment of the trial court is affirmed.

In this opinion the other justices concurred.

       “[General Statutes] See. 53a-54a. murder defined, affirmative DEFENSES. EVIDENCE OF MENTAL CONDITION. CLASSIFICATION, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.
      “(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a), on the question of whether the defendant acted with intent to cause the death of another person.
      “(c) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony.”

       The trial court did not exclude the evidence on the basis that it was irrelevant. Because we agree with the trial court’s ruling, we need not address further the question of relevancy.

       Even if we were to address the defendant’s claim, we are unpersuaded that this statement falls within the residuary exception to the hearsay rule. “Wigmore explains that the necessity requirement is met when, unless the hearsay statement is admitted, the facts it contains may be lost, either because the declarant is dead or otherwise unavailable, or because the assertion is of such a nature that evidence of the same value cannot be obtained from the same or other sources. [5 J. Wigmore, Evidence (Chadbourn Rev. 1974) § 1421.]” State v. Sharpe, 195 Conn. 651, 665, 491 A.2d 345 (1985). The record is devoid of any showing as to the necessity for the admission of this statement. Neither the state nor the defendant called Hazard as a witness and the defendant has failed to make any showing that Hazard was unavailable at the time of trial.

       If the defendant was concerned that the jury might be inclined to consider the testimony for its inappropriate hearsay purposes, he could have requested the trial court, after the testimony had been given, to instruct the jury as to the limited use for which the testimony was being offered. See State v. Hull, 210 Conn. 481, 499-500, 556 A.2d 154 (1989); C. McCormick, Evidence (3d Ed.) § 249. He did not do so.

       Although during cross-examination the witness testified that she did not see the defendant with a gun, her signed statement states:
      “Q. How many times had you seen the gun in [the defendant’s] hand?
      “A. Twice.
      “Q. Could you please go into detail when you say you saw it twice?
      “A. The first time [the defendant] pulled the gun out and then he put it back under his pants and the second time he pulled it out again this time with a hat over it and that’s when he shot.”

       On the basis of the record, it is unclear whether the reference to “her” is a typographical error. If it is not, it is not dear whom McCrea said she wanted to help. Neither party’s appellate brief explains this remark.

         The state did not appeal the trial court’s decision in light of our decision in State v. Walker, 214 Conn. 122, 129, 571 A.2d 686 (1990). We therefore will not address the trial court’s ruling in this regard further.

       The defendant does not argue that the state failed to lay a proper foundation before it offered testimony of McCrea’s bias and motive by a statement made out of court. See State v. Townsend, 167 Conn. 539, 560, 356 A.2d 125, cert. denied, 423 U.S. 846, 96 S. Ct. 84, 46 L. Ed. 2d 67 (1975).