text:
    State of Connecticut v. Tracy Fisher
    (13436)
    Peters, C. J., Healey, Callahan, Glass and Hull, Js.

      Argued February 1
    decision released April 11, 1989

      William B. Collins, special public defender, for the appellant (defendant).

      Vincent J. Dooley, deputy assistant state’s attorney, with whom, on the brief, were John Bailey, state’s attorney, and James Thomas, assistant state’s attorney, for the appellee (state).
   Callahan, J.

The defendant, Tracy Fisher, was charged in a substitute information with the crimes of murder in violation of General Statutes § 53a-54a (a), conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a (a) and assault in the first degree in violation of General Statutes § 53a-59 (a) (l). The charges arose out of the shooting death of Thomas Dixon and the wounding of Barrington Solomon on May 12, 1987, while the two men sat drinking and talking on the first floor rear porch of a three story multiple family dwelling located at 104 Enfield Street in Hartford. A witness testified that between 8:30 and 9 o’clock that evening he saw the defendant and Michael Walker alternately fire bursts from an automatic or semiautomatic weapon at the men on the porch. Other witnesses said they saw the defendant and Walker fleeing from the scene, with the defendant in possession of the weapon. The shooting apparently came about as a result of bad blood between Walker and Solomon brought about by a previous shooting in which Solomon had allegedly severely wounded Walker’s brother. The deceased, it appears, simply happened to be in the wrong place at the wrong time. A jury convicted the defendant of all three counts of the substitute information and the trial court sentenced him to a term of fifty years in prison.

At trial, a written statement of the defendant given to Hartford police officers on June 9,1987, was admitted into evidence. Although generally exculpatory, it placed the defendant near the scene of the crime in the company of Walker on the evening of May 12, 1987, and also indicated that he was associated with Walker in the distribution of narcotics. The defendant objected to the admission of the statement and moved to have it suppressed. On appeal, as he did at trial, the defendant argues that his written statement should have been excluded because the state failed to meet its burden of proving that he had voluntarily, knowingly and intelligently waived his Miranda rights. He then argues that without the written statement there was insufficient evidence to convict him of the crimes charged.

After a hearing on the defendant’s motion to suppress his written statement, the trial court found that the state had proved by a preponderance of the evidence that the statement had been given by the defendant “knowingly and intelligently, after a voluntary waiver and advisement of his rights under Miranda.” It, therefore, denied the defendant’s motion. We find no error. While we agree with the trial court and have examined its findings of fact, “our usual deference to factfinding by the trial court is qualified, on questions of this nature, by the necessity for a scrupulous examination of the record to ascertain whether such a factual finding is supported by substantial evidence.” State v. Harris, 188 Conn. 574, 580, 452 A.2d 634 (1982), cert. denied, 460 U.S. 1089, 103 S. Ct. 1785, 76 L. Ed. 2d 354 (1983); State v. Pellegrino, 194 Conn. 279, 288-89, 480 A.2d 537 (1984); see also State v. Shifflett, 199 Conn. 718, 729, 508 A.2d 748 (1986); State v. Carey, 13 Conn. App. 69, 73, 534 A.2d 1234 (1987).

From the record it is evident the trial court could reasonably have found the following facts. The defendant was twenty-eight years old, had completed the eleventh grade at Weaver High School and could read and write English; he had been arrested approximately thirty-one times between 1974 and 1987; and he had been advised of his Miranda rights on numerous prior occasions. Further, the trial court could reasonably have found that the defendant’s initial contact with the Hartford police concerning this case occurred on May 15, 1987. At that time the defendant had been arrested on several unrelated warrants and was at Hartford police headquarters. There he was approached by Detective Michael Dakin, who advised the defendant of his rights and asked where he had been on May 12, 1987. The defendant replied that he did not know and terminated the conversation.

Thereafter, on or about May 19, 1987, Dakin went to see the defendant at the Morgan Street detention center. There the defendant indicated that he wished to speak to Dakin and signed a correction department form to that effect. Dakin again advised the defendant of his Miranda rights and questioned him concerning his activities on May 12, 1987. In response the defendant gave Dakin an oral statement that included much of the same information that he provided in the contested written statement of June 9, 1987.

Subsequently, on June 8,1987, Dakin received a telephone call from Margaret Johnson, the defendant’s girlfriend, informing him that the defendant, who by then had been arrested for Dixon’s murder and was housed at the Hartford community correctional center, wished to speak to him and “tell the truth.” Consequently, on June 9, 1987, Dakin and his partner, Detective Clyde Mitchell, went to meet with the defendant at the correctional center. There the warden verified that the defendant wished to speak to the detectives and had the defendant sign a correction department “permission form” to that effect.

Before questioning the defendant at the correctional center, Dakin handed him a Hartford police department form containing an advisement of the rights required by Miranda and a waiver of those rights. Dakin then had the defendant read “a couple of lines [of the form] out loud.” Thereafter, for approximately five minutes, the defendant appeared to read the entire form, “periodically” initialed each right and then placed his signature on the signature line provided for the waiver of rights. The defendant thereafter spoke to the detectives and agreed to give a written statement. In transcribing the statement the defendant talked and Dakin typed, a process that took approximately ninety minutes. When the statement was completed, Dakin asked the defendant to read a portion of it out loud. After he had done so, the defendant was requested to read the entire statement to himself, initial each paragraph, and sign it if he agreed that it was correct. Dakin testified that after the defendant spent approximately ten minutes appearing to read the statement, the defendant initialed and signed it and it was then witnessed by himself and Mitchell, and acknowledged before a correction officer. Each paragraph of the defendant’s two and one-half page statement is, in fact, initialed by the defendant, each page displays his signature at the bottom, is witnessed by Dakin and his partner, and acknowledged before a correction officer. The defendant claims that this written statement should have been suppressed because he was not “sufficiently tested to see if he really understood his rights and was then warned he could waive them at his peril.” We disagree.

The state bears the burden of establishing by a fair preponderance of the evidence that the defendant was informed of and understood his rights and thereafter effected a voluntary, knowing and intelligent waiver of those rights. State v. Hernandez, 204 Conn. 377, 395, 528 A.2d 794 (1987); State v. Gray, 200 Conn. 523, 530, 512 A.2d 217, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986); State v. Smith, 200 Conn. 465, 481, 512 A.2d 189 (1986); State v. Alfonso, 195 Conn. 624, 628, 490 A.2d 75 (1985). There is, however, no talismanic incantation of rights required to satisfy Miranda’s strictures. California v. Prysock, 453 U.S. 355, 359, 101 S. Ct. 2806, 69 L. Ed. 2d 696 (1981); Martin v. Wainwright, 770 F.2d 918, 931 (11th Cir. 1985), cert. denied, 479 U.S. 909, 107 S. Ct. 307, 93 L. Ed. 2d 281 (1986). Further, “it is not essential that Miranda warnings be given in oral rather than written form.” State v. Appleton, 459 A.2d 94, 96 (R.I. 1983); United States v. Sledge, 546 F.2d 1120, 1122 (4th Cir.), cert. denied, 430 U.S. 910, 97 S. Ct. 1185, 51 L. Ed. 2d 588 (1977); United States v. Alexander, 441 F.2d 403, 404 (3d Cir. 1971); Commonwealth v. Day, 387 Mass. 915, 918 n.8, 444 N.E.2d 384 (1983).

In this case there was evidence that the defendant wished to talk to Dakin and arranged a meeting with him at the correctional center in order to do so. There was also evidence that the defendant could and did read the Miranda rights and the waiver contained in the Hartford police department form presented to him by Dakin at the correctional center. Further, there was evidence that the defendant was given the opportunity to read his statement and did so, initialing each paragraph and signing each page. It is true that before waiving his Miranda rights the defendant was not quizzed to determine the depth of his understanding of those rights or to establish his specific reading grade level. There is, however, no exact “test” to determine whether a defendant has voluntarily, knowingly and intelligently waived his rights. The answer to that question must be gleaned from the facts in each case. United States v. Hayes, 385 F.2d 375, 377 (4th Cir. 1967), cert. denied, 390 U.S. 1006, 88 S. Ct. 1250, 20 L. Ed. 2d 106 (1968); State v. Toste, 198 Conn. 573, 580-81, 504 A.2d 1036 (1986).

In arriving at that answer the trial court was not required to take leave of its common sense. When someone with the defendant’s extensive experience with the criminal justice system initiates a meeting with police officers, demonstrates an ability to read, and appears to read his Miranda rights, and thereafter executes a written waiver of those rights, these circumstances constitute “ ‘strong proof’ ” that the waiver and the subsequent statement were voluntarily, knowingly and intelligently given. State v. Chung, 202 Conn. 39, 50-51, 519 A.2d 1175 (1987); see State v. Hernandez, supra, 397; State v. Toste, supra, 581. We certainly cannot find that the trial court was clearly erroneous in so finding. United States v. Smith, 608 F.2d 1011, 1013 (4th Cir. 1979); State v. Pittman, 209 Conn. 596, 606, 553 A.2d 155 (1989). The trial court therefore did not err in admitting into evidence the defendant’s written statement of June 9, 1987.

The defendant conceded at oral argument that if his written statement was properly admitted at trial there was sufficient evidence to convict him. We agree.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 53a-54a (a) provides: “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.”

       General Statutes § 53a-48 (a) provides: “conspiracy, renunciation. (a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       General Statutes § 53a-59 (a) (1) provides: “assault in the first degree: class b pelony. (a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument.”

         Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       At trial, the defendant did not contest the admissibility of this conversation or that of May 15, 1987, nor has he challenged the admissibility of those conversations on appeal. See Practice Book §§ 288, 4065.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Mary Lou Matey v. Estate of Sarah Dember et al.
    (13592)
    Peters, C. J., Shea, Glass, Covello and Hull, Js.

      Argued February 7
    decision released April 11, 1989

      Carl J. Schuman, assistant attorney general, with whom were Michael J. Belzer, assistant attorney general, and, on the brief, Clarine Nardi Riddle, acting attorney general, for the appellant (defendant state treasurer).

      Laurence V. Parnoff, with whom, on the brief, was Mary Ann Barile for the appellee (plaintiff).
   Per Curiam.

The respondent Francisco Borges, who is the state treasurer and custodian of the state second injury and compensation assurance fund, has appealed from a decision of the compensation review division (CRD) affirming the finding of the workers’ compensation commissioner as to the liability of the respondent fund to the claimant, Mary Lou Matey, but remanding the case for further proceedings before the commissioner with respect to the amount of the workers’ compensation award. In his appeal the treasurer maintains that the CRD erred in concluding that the claimant was not barred from recovery by her failure to present her claim in writing to the administrator of the estate of her deceased employer, Sarah Dember, within the period allowed by our nonclaim statute, General Statutes § 45-205. Recognizing that the jurisdiction of this court to consider his appeal is implicated, the treasurer has also raised the question of whether the decision of the CRD remanding the case for further proceedings before the commissioner upon the amount of the award was a final decision of the agency from which an appeal could be taken. The treasurer maintains that his appeal is viable and the claimant does not dispute this contention. We conclude that such a decision is not final, that the appeal is premature, and that this court lacks jurisdiction. Accordingly, we dismiss the appeal.

The facts found by the commissioner and affirmed by the CRD are not disputed. The claimant was a household employee of Sarah Dember and she performed such duties as cleaning, cooking, shopping, and other chores for her employer. On August 9, 1984, while on an errand for her employer, the claimant was injured in an automobile accident. Sarah Dember was aware of the accident and the resulting injury to the claimant, which had occurred in the course of the employment. Although this employment relationship was within the provisions of the Workers’ Compensation Act, Dember had failed to insure her potential liability thereunder.

On October 13, 1984, Sarah Dember died. No claim was submitted by the claimant against the estate of her deceased employer by February 14,1985, the last day allowed by the Probate Court for presenting claims. The claimant on July 8, 1985, filed her claim with the workers’ compensation commissioner and also sent a copy to the attorney representing the estate of Sarah Dember. The respondent treasurer participated in the formal hearing on behalf of the second injury and compensation assurance fund established under General Statutes § 31-354 because of the fund’s potential liability under General Statutes § 31-355. The estate of Sarah Dember was represented at an informal hearing before the commissioner but did not participate at the formal hearing or in any of the subsequent proceedings.

The workers’ compensation commissioner rejected the position advanced by the respondent treasurer that the failure to present a timely claim against the estate of her employer barred the claimant from receiving workers’ compensation benefits. The commissioner found the appropriate compensation rate to be $240 per week, based upon the claimant’s wages and the value of board and room provided by her employer.

In resolving the issues on appeal, the CRD concluded that the filing of the notice of the claim within one year of the accident, as required by General Statutes § 31-294, was all that was necessary for workers’ compensation purposes. It concluded, however, that the appeal should be sustained because the finding of the commissioner concerning the value of room and board, on which the compensation rate was partly based, had been made without any supporting testimony. The case was remanded for further proceedings “only on the specific issue of the equivalent monetary value of the weekly room and board.”

In the recent case of Repasi v. Jenkins Bros., 16 Conn. App. 121, 546 A.2d 965 (1988), the Appellate Court held that a decision of the CRD remanding certain issues relating to the amount of a workers’ compensation award to the commissioner for more information was not a final judgment, even though the CRD had concluded that it lacked jurisdiction to consider other issues relating to the constitutionality of certain provisions of the Workers’ Compensation Act. The respondent treasurer in his reply brief concedes that the case before us is “procedurally similar.” He relies, however, upon the decision of this court in Santos v. Publix Theatres Corporation, 108 Conn. 159, 142 A. 745 (1928), in which it was held that a decision of the trial court correcting the finding of the compensation commissioner, who had dismissed the employee’s claim, and remanding the case to the commissioner for an award in accordance with the finding as corrected, was a final judgment. When, after the commissioner had made an award in compliance with the remand, the employer again appealed, we concluded that, because the appeal did not claim that the commissioner had deviated from the remand order in making the award but claimed error only in the judgment reversing the initial denial of compensation, the second appeal should be dismissed. “There appears to be no more reason, logically, for a right of appeal from a compensation award as directed by a judgment of the Superior Court than from a judgment rendered by the latter court in conformity to the advice or mandate of this court.” Id., 162-63. Santos falls into the category of cases where the further proceedings directed by the remand order are ministerial, not requiring the exercise of independent judgment or discretion and not involving additional evidence. See Connecticut Bank & Trust Co. v. Commission on Human Rights & Opportunities, 202 Conn. 150, 156-57, 520 A.2d 186 (1987). In the present case, however, the order of the CRD plainly contemplated that further evidence relating to the claimant’s compensation rate would be presented and that a new finding on that issue would be made by the commissioner.

A more apt precedent is Connecticut Bank & Trust Co. v. Commission on Human Rights & Opportunities, supra, in which we held that an appeal from a decision of an agency was premature because, although the issue of liability had been decided, further proceedings before a hearing officer to determine the amount of the award had been ordered. In that opinion we relied upon several decisions of the federal courts in workers’ compensation cases holding that such awards are not final until the amounts thereof have been determined. Director, Office of Workers’ Compensation Programs v. Brodka, 643 F.2d 159, 161 (3d Cir. 1981); Newport News Shipbuilding & Dry Dock Co. v. Director, Office of Workers’ Compensation Programs, 590 F.2d 1267, 1268 (4th Cir. 1978); United Fruit Co. v. Director, Office of Workers’ Compensation Programs, 546 F.2d 1224, 1225 (5th Cir. 1977).

In Schieffelin & Co. v. Department of Liquor Control, 202 Conn. 405, 521 A.2d 566 (1987), in which the remand order of the trial court required the agency to conduct further evidentiary proceedings upon an unresolved issue, we also concluded that there was no final judgment. The Appellate Court also has held that a remand by the CRD for further proceedings upon an issue left undecided by a commissioner who had relied upon an alternative ground rejected by the CRD was not a final decision. Timothy v. Upjohn Co., 3 Conn. App. 162, 485 A.2d 1349 (1985).

We conclude that this appeal is premature because the remand order directed further evidentiary proceedings necessary for the determination of the amount of the award in a workers’ compensation case. The appeal, therefore, must be dismissed.

The appeal is dismissed.


author: Arthur H. Healey, J.

text:
    State of Connecticut v. Raphael Torres
    (13382)
    Peters, C. J., Healey, Callahan, Covello and Santaniello, Js.

      Argued December 14, 1988
    decision released April 11, 1989

      Jon C. Blue, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Timothy J. Sugrue, deputy assistant state’s attorney, with whom, on the brief, was Herbert G. Appleton, assistant state’s attorney, for the appellee (state).
   Arthur H. Healey, J.

In this case, the defendant raises four claims of error in his trial in which the jury found him guilty of murder in violation of General Statutes § BSa-Béa. He maintains first that the court erred in admitting the probable cause hearing testimony of a witness, Victor Reyes, who invoked his privilege against self-incrimination and refused to testify after the state advised him that it might charge him with perjury or false statement if Reyes carried out a claimed recantation of his earlier testimony. The defendant also claims that the trial court erred in sustaining a verdict based in the main on such probable cause hearing testimony. The third claim of error is based on the trial court’s restriction of the defendant’s ability to impeach the declarant Reyes by (a) denying the defendant’s request to have the declarant invoke his privilege against self-incrimination in front of the jury, (b) refusing to explain to the jury why the declarant of the probable cause testimony was unavailable, and (c) refusing to permit the defendant to present evidence that the declarant was advised by the state that he might be arrested for perjury or false statement if his testimony at trial repudiated his probable cause hearing testimony. Finally, the defendant claims error in the trial court’s refusal to allow him to impeach the declarant by prior inconsistent statements made before the probable cause hearing, although it permitted the state to corroborate the declarant’s probable cause testimony with consistent statements made before the hearing. We find error in the defendant’s fourth claim and order a new trial; thus, we need not address in detail the first three claims.

The facts that the jury reasonably could have found and that are relevant to the defendant’s fourth claim of error must be set out at this point and will be supplemented later as necessary. At approximately 7 a.m., on Tuesday, November 25, 1986, officers from the Hartford police department responded to a report of a body in a vacant lot at 89 Walnut Street. Upon their arrival, the officers discovered the victim’s body with a hole in the chest and no signs of life. Identification found on the victim identified him as Miguel R. Maldonado of New Haven. An autopsy revealed the cause of death to be a stab wound with penetration of the right lung and aorta. The medical examiner estimated the time of death at about 1 or 2 a.m. on November 25. There was a pool of blood in front of 95-97 Walnut Street and drag marks leading from the street to the embankment on the lot where the body was located.

On Tuesday, November 25, 1986, as part of their investigation, the police approached Victor Reyes, who lived at 103 Walnut Street with his family. Neither Reyes, nor any family members who were interviewed at that time, admitted to any knowledge of the apparent homicide the night before. At that time, Reyes’s mother, Bonnie Sanchez, told investigators that neither she nor anyone in her family had seen the incident. At some point after November 25, however, Reyes informed the police that he had observed the homicide.

On December 2,1986, Reyes provided a description of the assailant to Detective James Malcolm of the Hartford police department. Reyes' described the assailant as a dark complected Hispanic or black male, standing approximately 5 feet 9 inches tall, weighing 160 pounds and wearing a tan jacket with a green scarf. On the same day, Reyes was shown an array of five “mug shots,” one being a picture of the defendant taken on the day of the murder, November 25, but Reyes did not identify any of these pictures as that of the assailant. There was testimony that Reyes was then shown “[ejvery available photo” at the Hartford police department, but he failed to identify the assailant.

Reyes’s next attempt at identifying the assailant occurred on January 9, 1987. Malcolm showed Reyes an array of photographs of seven Hispanic males, one of which was a photograph of the defendant taken on January 9,1987. From this array, Reyes identified the photograph of the defendant as that of the assailant. The defendant was arrested that same day.

On February 20, 1987, a hearing was held to determine whether there was probable cause to believe that the defendant had committed the charged offense. See General Statutes § 54-46a. Reyes testified for the state at the probable cause hearing that on the night of November 25, 1986, as he looked out his window, he saw two men arguing in the street near his house on Walnut Street. One man (the victim) had something in his hand that the second man grabbed and then the second man ran across Walnut Street. The victim yelled for help and ran after the other man. Seeing that no one was coming to help, the man with the item ran back toward the victim, and when he reached the victim, he hit him with his fist, knocking the victim down. The man then picked up the victim, carried him toward the sidewalk and stabbed him once in the chest with a knife. He then threw the victim into the vacant lot. Reyes further testified that, on January 9, 1987, he had identified the defendant as the assailant, and he again identified the defendant as the assailant in court at the probable cause hearing. At that hearing, the court found probable cause and thereafter the defendant pleaded not guilty and elected trial by jury.

On November 17, 1987, just before the defendant’s trial, Reyes told the assistant state’s attorney who was to try the case and a number of other persons involved in the investigation that he had lied at the probable cause hearing about the defendant’s involvement in the crime. At trial, but out of the presence of the jury, the court heard testimony that the assistant state’s attorney had informed Reyes that if he were to testify at the defendant’s trial and repudiate the testimony that he gave at the probable cause hearing, the state might bring perjury or false statement charges against him. Apparently, because of this, outside of the presence of the jury and with his own attorney present, Reyes invoked his fifth amendment right not to incriminate himself in the defendant’s trial. Thereafter, the court found Reyes to be unavailable as a witness at the defendant’s trial. Accordingly, over the defendant’s objection, the court admitted the transcript of Reyes’s probable cause testimony in the defendant’s trial after finding that testimony to be reliable. The transcript of Reyes’s testimony at the probable cause hearing was then read to the jury.

At trial, in order to impeach Reyes’s probable cause hearing testimony, the defendant called Inspector Steven Oborski from the state’s attorney’s office. Oborski testified that he was present on November 17,1987, when Reyes informed the assistant state’s attorney that he had lied at the probable cause hearing about the defendant’s involvement in the crime. To impeach Reyes’s credibility further, the defendant called Reyes’s mother, Bonnie Sanchez, who testified that on February 20, 1987, just after the probable cause hearing, Reyes told her that the defendant was not the person who killed the victim. Sanchez also testified that Reyes told her on a number of occasions after the probable cause hearing that “[Torres] was not the one.”

Following the defendant’s impeachment of Reyes’s probable cause hearing testimony, the state offered testimony to rehabilitate Reyes’s credibility. On cross-examination of Sanchez, the state elicited testimony that Sanchez did not tell the police that Reyes had told her that he had lied at the probable cause hearing immediately after she found this out, but did so when the police came to her house sometime later. On cross-examination of Oborski as a witness for the defense, the state elicited testimony that, on November 4,1987, he and another inspector went to Reyes’s home and took him to their office where they met with the assistant state’s attorney who was going to try the case for the state. In going over Reyes’s testimony to be given at the trial, Reyes said that his testimony at trial “[would be] the same as the probable cause hearing, the same testimony.” Oborski also testified that on November 17, 1987, Reyes again stated that he saw the defendant stab the victim on Walnut Street.

In addition to these proffered consistent statements, the state also offered as evidence a signed statement that Reyes gave to the police on January 9,1987. The statement contained Reyes’s description of the homicide on Walnut Street and his identification of the defendant’s picture at the police station on January 9, 1987. It is the trial court’s admission of this consistent written statement and two other consistent statements of Reyes made to Inspector Lawrence Skinner of the state’s attorney’s office, one on February 19, 1987, and the other just before the probable cause hearing on February 20, 1987, and the exclusion of certain inconsistent statements offered by the defendant and also made before the probable cause hearing that the defendant claims as reversible error. For the reasons set forth below, we agree that the trial court erred and that a new trial is necessary.

The trial court excluded two statements offered by the defendant as inconsistent with Reyes’s probable cause hearing testimony. The first was a statement by Sanchez that on the very day of the homicide, November 25, 1986, Reyes told her that the assailant was a black man wearing a long brown coat. The defendant claims this as a statement inconsistent with Reyes’s identification of the defendant as the assailant because the defendant is Hispanic and because the state offered into evidence a green blood-stained army fatigue jacket that was seized from the defendant’s apartment and owned by the defendant. Second, the trial court excluded a statement by Sanchez that Reyes recanted to her his photographic identification of the defendant as the assailant as soon as he returned home from the police station on January 9, 1987.

The trial court excluded these statements claiming that whether the defendant was a black man or an Hispanic man, and what Reyes told his mother “about his story” regarding the identification were “not material to this case, not at issue” and hearsay. The trial court stated that only statements of Reyes made after the probable cause hearing were relevant to the case.

In admitting through Sanchez the inconsistent statements made after the probable cause hearing, the trial court also asserted that the actual conversations between Reyes and Sanchez were inadmissible hearsay and that it would only admit statements by Sanchez to the effect that Reyes said that he had lied, in essence, limiting the evidence to an impeachment use. The trial court admitted these statements that Reyes said that he had lied after the probable cause hearing on the basis that they were excepted from the hearsay rule as declarations against penal interest.

The trial court, initially at least, also limited the state in introducing rehabilitative evidence, after Reyes’s impeachment, to consistent statements that were made after the probable cause hearing. The state also was limited to using consistent statements for their rehabilitative value only.

Significantly, the state’s brief says: “The state does not dispute that Reyes’s prior testimony [at the probable cause hearing] was indispensable to a finding of guilt.” (Emphasis added.) In oral argument before this court, the state conceded that without Reyes’s probable cause testimony, there would be insufficient evidence to support a conviction. In this case, the jury never saw or heard Reyes, the only witness to the alleged homicide. Yet, this very witness was not impeached or rehabilitated on the witness stand through the use of the prior inconsistent and consistent statements. Because the witness had invoked his fifth amendment privilege not to testify against himself, the court admitted his probable cause hearing testimony in full and thus impeachment could not have been accomplished through cross-examination and questioning of the witness but only by the introduction of statements that he had made prior to trial. We find no basis for limiting such prior statements to those that were made only after the probable cause hearing.

We acknowledge that a trial court has wide discretion in allowing prior inconsistent statements to impeach the testimony of a witness. G & R Tire Distributors, Inc. v. Allstate Ins. Co., 177 Conn. 58, 60-61, 411 A.2d 31 (1979); State v. Villafane, 171 Conn. 644, 671, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977), overruled in part on other grounds, State v. Stepney, 191 Conn. 233, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1456, 79 L. Ed. 2d 722 (1984), State v. Keating, 151 Conn. 592, 597, 200 A.2d 724 (1964), cert. denied sub nom. Joseph v. Connecticut, 379 U.S. 963, 85 S. Ct. 654, 13 L. Ed. 2d 557 (1965). Because out-of-court inconsistent and consistent statements are hearsay, unless such statements fit within an exception to the hearsay rule, they may not be used to prove the truth of the matter asserted but may be used only to impeach or rehabilitate a witness. State v. Villafane, supra, 672, citing 3A J. Wigmore, Evidence (Chadbourn Rev.) § 1018; see State v. Saia, 172 Conn. 37, 46, 372 A.2d 144 (1976); State v. Addazio, 169 Conn. 416, 425-26, 363 A.2d 153 (1975); C. Tait & J. LaPlante, Handbook of Connecticut Evidence (2d Ed. 1988) § 7.24.3; but see 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) (“prior written inconsistent statements, signed by the declarant, who has personal knowledge of the facts stated, when the declarant testifies at trial and is subject to cross-examination” are admissible as substantive evidence). “The purpose of impeachment is to undermine the credibility of a witness so that the trier will disbelieve him and disregard his testimony. See generally 3A Wigmore, Evidence (3d Ed. Chadbourn Rev.) § 874.” State v. Maldonado, 193 Conn. 350, 362, 478 A.2d 581 (1984). Although there is a modern trend to admit prior inconsistent statements as substantive evidence, this trend is limited to those cases in which the witness is present in court and subject to cross-examination. C. McCormick, Evidence (3d Ed. 1984) § 34; G. Lilly, An Introduction to the Law of Evidence (1978) § 52. Therefore, because the trial court concluded that Reyes was unavailable as a witness in this case, to the extent that it admitted inconsistent statements that were not otherwise excluded from the hearsay rule, the trial court properly limited the use of the evidence to its impeachment use.

Once it admitted the inconsistent statements offered by the defendant, the trial court properly admitted consistent statements offered by the state to rehabilitate Reyes’s credibility. See State v. Pollitt, 205 Conn. 61, 77, 530 A.2d 155 (1987); State v. Edwards, 201 Conn. 125, 155, 513 A.2d 669 (1986); State v. McCarthy, 179 Conn. 1, 18-21, 425 A.2d 924 (1979). The jury was instructed properly that these statements could only be used in the jury’s assessment of Reyes’s credibility and not as substantive evidence.

As the state conceded at trial, in its brief, and at oral argument, there was no reason for the trial court to limit the introduction of inconsistent and consistent statements to those that were made after the probable cause hearing. Our review of the record and transcript indicates that Reyes’s identification of the defendant and his testimony were essential to the state’s case. This includes the state’s concession that Reyes’s probable cause hearing testimony was “indispensable” to a finding of guilt. It seems incongruous, therefore, that the trial court could declare that “[w]hat he saw down at the police station, [who] he picked out, what the police told him to do, that is all immaterial,” and “whether [the assailant] was a black man or Spanish man with a knife, that is immaterial.” (Emphasis added.) Reyes’s statement to his mother on the very day of the incident that the assailant was a black man with a long brown coat, and his assertion to his mother on the very day that he identified the defendant in the photo array that he lied are highly probative of Reyes’s credibility in light of his probable cause hearing testimony. The temporal proximity of the events to the date of the crime significantly enhance their probative value. Although the trial court has broad discretion in admitting inconsistent and consistent statements to impeach and rehabilitate a witness, our review of the record and transcript reveals no reason for the exclusion of the defendant’s proffered inconsistent statements in this case.

While the state claims that the trial court’s exclusion of the inconsistent statements may have been an evidentiary error, thus leaving the defendant with the burden of proving harm; see State v. Jones, 205 Conn. 723, 732, 535 A.2d 808 (1988), citing State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 (1980); this error escalated to constitutional proportions when the trial court, while limiting the defendant to inconsistent statements made after the probable cause hearing on February 20, 1987, admitted three consistent statements offered by the state that were all made before the probable cause hearing. The exclusion of the defendant’s proffered inconsistent statements while admitting the state’s consistent statements was not evenhanded and thus violated the defendant’s due process right to a fair trial. Thus “the burden is on the state to prove that this error was harmless beyond a reasonable doubt.” State v. Jones, supra, 731, citing Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied, 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 (1967).

The state also contends that the trial court’s error in failing to admit the inconsistent statements offered by the defendant was harmless. The state maintains that the information in the two excluded inconsistent statements already was before the jury and thus the error is not a reversible one.

It is true that the general information contained in the excluded statements was presented to the jury by other means. Oborski testified that Reyes told him that he had lied at the probable cause hearing. Sanchez also testified that every time she spoke with Reyes about the murder after the probable cause hearing he said the defendant was not the person who killed the victim. Malcolm testified that Sanchez told him on November 17,1987, that Reyes had lied. Malcolm also testified that Reyes initially described the assailant as a black man or a dark complected Hispanic man, that Reyes tentatively identified a black man as the assailant, and that Reyes was unable to identify the defendant when shown his picture in an array with five pictures on December 2,1986. Also, Oborski testified that Sanchez told him on November 17,1987, that the men fighting in the street on November 25,1986, were a black man and a white man.

Notwithstanding this information, the exclusion of the inconsistent statements denied the defendant a fair trial. Through the excluded statements, the defendant wanted to show that on the same day as the murder, Reyes told Sanchez that the assailant was a black man wearing a brown coat. He further wanted to show that on the same day that Reyes identified the defendant as the assailant, Reyes told Sanchez that the identification was wrong. The proximity in time of the murder and Reyes’s description to Sanchez of the assailant, and of Reyes’s identification of the defendant and his recantation of that identification makes this evidence highly probative in this case, where both Reyes’s description and identification play a central role in the defendant’s conviction. See Thomas v. Ganezer, 137 Conn. 415, 420, 78 A.2d 539 (1951). This is particularly so in light of the state’s evidence that was admitted to support Reyes’s identification on the same day that it occurred. Under our state and federal constitutions, “ ‘[t]he right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State’s accusations. The rights to confront and cross-examine witnesses and to call witnesses in one’s own behalf have long been recognized as essential to due process.’ ” State v. Mastropetre, 175 Conn. 512, 520, 400 A.2d 276 (1978), quoting Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973); State v. Fernandez, 198 Conn. 1, 15, 501 A.2d 1195 (1985). “The ‘ “denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it we . . . must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial.” Lisenba v. People of State of California, 314 U.S. 219, 236, 62 S. Ct. 280, 86 L. Ed. 166 [1941], rehearing denied, 315 U.S. 826, 62 S. Ct. 620, 86 L. Ed. 1222 [1942].’ State v. Griffin, 175 Conn. 155, 160, 397 A.2d 89 (1978).” State v. Binet, 192 Conn. 618, 634, 473 A.2d 1200 (1984).

By denying the defendant in this case the opportunity to introduce highly probative, inconsistent statements to challenge the credibility of the key witness, the trial court denied the defendant the opportunity to confront the witnesses against him. More importantly, the defendant was denied his “right to a fair opportunity to defend against the State’s accusations” because the standards set down by the trial court for the admission of impeachment and rehabilitative evidence differed between the state and the defendant. While the state was permitted to introduce consistent statements made prior to the probable cause hearing, and thus much closer in time to the crime, the defendant was not permitted to introduce inconsistent statements. Without question, this action by the trial court denied the defendant his constitutional right to a fair trial. Although the excluded evidence may be, to some extent, cumulative, its otherwise high probative value dictates that it should have been included in the fact-finding process at trial. We are not persuaded that its exclusion was harmless error.

Having found reversible error on this claim, we must set aside the judgment and order a new trial and we need not look to other claims of error. It is likely, however, that, in the event of a new trial, the trial court will be faced with an issue raised in one of the defendant’s other claims in this appeal. The defendant claimed error in the trial court’s admission of Reyes’s probable cause hearing testimony as substantive evidence. We note here that this court and the United States Supreme Court have declared that prior testimony of an unavailable witness is admissible in a subsequent trial as an exception to the hearsay rule. Ohio v. Roberts, 448 U.S. 56, 67, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980); California v. Green, 399 U.S. 149, 165, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970); State v. Parker, 161 Conn. 500, 503-504, 289 A.2d 894 (1971). As long as the trial court finds the requisite “indicia of reliability” in the former testimony, such as the opportunity to cross-examine the declarant fully, the testimony is admissible. See C. McCormick, supra, § 254, p. 759; see generally comment, “Admission of Grand Jury Testimony Under the Residual Hearsay Exception,” 59 Tul. L. Rev. 1033 (1985).

In sum, the trial court’s erroneous restriction on the use of credibility evidence to statements that were made after the defendant’s probable cause hearing on February 20, 1987, compounded by the trial court’s enforcement of that restriction against the defendant but not against the state, denied the defendant his due process right to a fair trial. The defendant’s conviction cannot stand.

There is error, the judgment is set aside and a new trial is ordered.

In this opinion the other justices concurred.

       General Statutes § 53a-54a provides: “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.”

       Through fingerprints, the victim later was identified as Miguel Maldonado Rivera.

       On November 25,1986, the Hartford police executed a search and seizure warrant at an apartment on Albany Avenue in Hartford inhabited by the defendant and two other people. The police seized a green army jacket with a red stain on it. The defendant told the police that the jacket was his. Elaine Pagliaro from the state forensic laboratory testified that the red stain on the jacket was caused by human blood, but that tests were inconclusive as to whether the blood type was that of the defendant or the victim. She also said the same of some blood-stained napkins seized at the same time.

       On December 2, 1986, Reyes did identify a picture of a black man as possibly that of the assailant, but he was not positive of the identification because of a beard on the man in the picture. It was determined later that the person so identified by Reyes was in the Somers correctional facility at the time of the crime.

       In both instances, Reyes told Skinner that he saw the defendant kill the victim.

       The trial court’s reasoning was as follows: “The Court: You can’t put in Mr. Reyes’ testimony through somebody else. He has taken the Fifth Amendment. I have said that I will allow you to get before the jury what you have done. If you want to reaffirm that by the fact that he told his mother on many occasions he lied, fine. You are not going to get into actual conversations between [him] and his mother. That is hearsay and he is not subjected to cross-examination.”
      The court allowed statements by Sanchez limited to the fact that Reyes said he had lied “because even though it was hearsay, it might be considered a declaration against penal interest,” and therefore is excepted from the hearsay rule.
      We note that it was inconsistent for the trial court to rule that Reyes’s statements to his mother were excepted from the hearsay rule as declarations against penal interest; State v. Hernandez, 204 Conn. 377, 389, 528 A.2d 794 (1987); State v. Sanchez, 200 Conn. 721, 724, 513 A.2d 653 (1986); State v. DeFreitas, 179 Conn. 431, 452, 426 A.2d 799 (1980); see generally C. Tait & J. LaPlante, Handbook of Connecticut Evidence (2d Ed. 1988) § 11.6; but then to limit the use of the statements to an impeachment use rather than to prove the truth of the matter asserted. The reason for the exception to the hearsay rule for declarations against penal interest is that a person would not normally make a statement that could be injurious to himself or herself unless that person believed the statement to be true. See State v. Bryant, 202 Conn. 676, 692 n.16, 523 A.2d 451 (1987). If a statement fits within this exception, as the trial court seemed to find Reyes’s statements to his mother because they implicated possible perjury or false statement liability for Reyes, the statements are deemed trustworthy and may be admitted for their truth. Therefore, it is inconsistent that the trial court would find Reyes’s statements to fit within this exception and then limit their use to their impeachment value.

       The state sought to introduce evidence that Reyes was scared to testify against the defendant and that that may have been a reason for invoking his fifth amendment rights. The trial court excluded these statements as hearsay and only admitted statements relating to whether Reyes lied.

       These consistent statements were Reyes’s signed statement, dated January 9, 1987, identifying the defendant as the assailant, and Reyes’s two statements to Skinner on February 19 and 20, 1987, that his testimony at trial would be consistent with his probable cause hearing testimony.


author: Peters, C. J.

text:
    Board of Pardons v. Freedom of Information Commission et al.
    (13502)
    Peters, C. J., Shea, Callahan, Glass and Hull, Js.

      Argued March 2
    decision released April 11, 1989

      Carl J. Schuman, assistant attorney general, with whom, on the brief, were Clarine Nardi Riddle, acting attorney general, and John F. Gill, assistant attorney general, for the appellant (plaintiff).

      Victor R. Perpetua, commission counsel, with whom, on the brief, were Mitchell W. Pearlman, general counsel, and Marianne D. Smith, assistant general counsel, for the appellee (named defendant).
   Peters, C. J.

The sole issue in this appeal is whether the Appellate Court erroneously concluded that the plaintiff Board of Pardons (board) lacked standing to contest an order of the defendant Freedom of Information Commission (FOIC). The underlying controversy between the parties is the validity of an FOIC order requiring the board, in the future, to conduct its deliberations in public except under narrowly delimited circumstances. The FOIC’s order resulted from its decision that the Freedom of Information Act did not, as a general matter, exempt prisoner records from public disclosure, and that the board had violated the act by considering such nonexempt materials in executive session. The trial court upheld the board’s appeal from the FOIC order.

Without getting to the merits of the controversy, the Appellate Court determined that the trial court lacked jurisdiction to entertain the board’s appeal because, in the Appellate Court’s view, the board was not aggrieved by the FOIC’s prospective order. Board of Pardons v. Freedom of Information Commission, 14 Conn. App. 380, 383-84, 540 A.2d 1077 (1988). The Appellate Court held that the FOIC’s order did not affect a “specific and personal interest” of the board. Id., 384. The board itself was not immediately aggrieved by the FOIC’s order because that order was “purely prospective.” Id., 383-84. Further, the board itself was not aggrieved by the separate interests of prisoners in the confidentiality of their records. Id., 384. We granted certification to consider this issue of standing; Board of Pardons v. Freedom of Information Commission, 209 Conn. 803, 548 A.2d 436 (1988); and now reverse.

Only parties “aggrieved by the decision” of the FOIC have standing to take appeals to the Superior Court. General Statutes § l-21i (d). “Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented. See, e.g., Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962); Stern v. Stern, 165 Conn. 190, 192, 332 A.2d 78 (1973). These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of [a] direct injury he has suffered or is likely to suffer, in an individual or representative capacity. Such a ‘personal stake in the outcome of the controversy’; Shaskan v. Waltham Industries Corporation, 168 Conn. 43, 49, 357 A.2d 472 (1975); Baker v. Carr, supra, 204; provides the requisite assurance of ‘concrete adverseness’ and diligent advocacy.

“As long as there is some direct injury for which the plaintiff seeks redress, the injury that is alleged need not be great . . . [and] need not be primarily economic.” Maloney v. Pac, 183 Conn. 313, 320-21, 439 A.2d 349 (1981); see University of Connecticut Chapter, AAUP v. Governor, 200 Conn. 386, 389, 512 A.2d 152 (1986).

In appeals pursuant to § l-21i (d), we have translated these general principles into a twofold test for aggrievement that requires a showing of: (1) a specific personal and legal interest in the subject matter of the FOIC decision; and (2) a special and injurious effect on this specific interest. Zoning Board of Appeals v. Freedom of Information Commission, 198 Conn. 498, 502, 503 A.2d 1161 (1986); Local 1303 & Local 1378 v. Freedom of Information Commission, 191 Conn. 173, 176, 463 A.2d 613 (1983).

The board maintains that the Appellate Court took too narrow a view of aggrievement in this case. Despite the prospective nature of the FOIC order, the board claims it has standing to appeal because it is aggrieved in two respects: the risk of criminal sanctions and the threat to the integrity of its deliberative processes. We agree with both of these claims.

A genuine likelihood of criminal liability or civil incarceration is sufficient to confer standing. Maloney v. Pac, supra, 321-22; Kuser v. Orkis, 169 Conn. 66, 73, 362 A.2d 943 (1975). Because the Freedom of Information Act makes noncompliance with an FOIC order a class B misdemeanor; General Statutes § l-21k (b); the individual members of the board have a “specific and personal” interest in the validity of such an order. In the future, board members face the risk of injury, in the form of criminal prosecution and sanctions, if they fail to comply with the present FOIC order. Such a risk of prosecution establishes the requisite “specific and personal interest” of the members of the board and of the board itself as their representative. Connecticut Assn. of Health Care Facilities, Inc. v. Worrell, 199 Conn. 609, 616, 508 A.2d 743 (1986); Zoning Board of Appeals v. Freedom of Information Commission, supra, 502.

In addition, the board has a legitimate institutional interest in the integrity of its decision-making process. The board has advanced a colorable claim of injury to its own deliberative functions that transcends the interests of individual prisoners in the disclosure of their records. In deciding whether to grant a pardon or to commute a prison sentence, the board “depends not simply on objective factfinding, but also on purely subjective evaluations and on predictions of future behavior . . . . ” Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 464, 101 S. Ct. 2460, 69 L. Ed. 2d 158 (1981). In order to carry out this sensitive mission, the board claims that it needs the opportunity for confidential dialogue about every aspect of a prisoner’s record. The board alleges that, as a practical matter, there is a great deal of overlap between the discussion of the records of individual prisoners, which the FOIC has ordered to be held in public, and the discussion of third party information, which even the FOIC has permitted to be conducted in executive session. The bifurcated procedure that the FOIC order mandates therefore gave rise to a colorable claim of injury to a central aspect of the board’s functions. As in Zoning Board of Appeals v. Freedom of Information Commission, supra, the existence of this order “would undoubtedly have ... a chilling effect on the [board] the next time it contemplated ... an executive session” in order to decide whether to grant a petition for a pardon.

The judgment of the Appellate Court is reversed and the case is remanded to that court for consideration of the merits of the commission’s appeal.

In this opinion the other justices concurred.

       The FOIC, in its brief to this court, has taken no position on the issue of the board’s aggrievement. The FOIC reminds us that the legislature expressly amended General Statutes § l-21i (d) in 1984 to enlarge the statutory scope of aggrievement beyond that which this court had held to be warranted in Local 1303 & Local 1378 v. Freedom of Information Commission, 191 Conn. 173, 176, 463 A.2d 613 (1983).

       General Statutes (Rev. to 1985) § l-21i (d) provides in relevant part: “Any party aggrieved by the decision of said commission may appeal therefrom, in accordance with the provisions of section 4-183. The commission shall have standing to defend, prosecute or otherwise participate in any appeal of any of its decisions and to take an appeal from any judicial decision overturning or modifying a decision of the commission. If aggrievement is a jurisdictional prerequisite to the commission taking any such appeal, the commission shall be deemed to be aggrieved.”

       General Statutes § l-21k (b) provides: “Any member of any public agency who fails to comply with an order of the freedom of information commission shall be guilty of a class B misdemeanor and each occurrence of failure to comply with such order shall constitute a separate offense.”