In re Bassel C.

633 A.2d 733, 33 Conn. App. 90, 1993 Conn. App. LEXIS 438
CourtConnecticut Appellate Court
DecidedNovember 23, 1993
Docket12186
StatusPublished
Cited by5 cases

This text of 633 A.2d 733 (In re Bassel C.) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Bassel C., 633 A.2d 733, 33 Conn. App. 90, 1993 Conn. App. LEXIS 438 (Colo. Ct. App. 1993).

Opinion

Lavery, J.

The juvenile respondent, Bassel C., appeals from the order of the Superior Court for juvenile matters transferring his case to the regular criminal docket1 on the basis of a finding of probable cause [92]*92that he committed murder in violation of General Statutes § 53a-54a2 and felony murder in violation of General Statutes § 53a-54c.3 The respondent claims that the trial court (1) based its finding of probable cause for the transfer on insufficient evidence, (2) improperly admitted prior inconsistent statements of two witnesses and (3) violated the respondent’s federal and state constitutional rights to confront the witnesses against him. We affirm the trial court’s determination.

The respondent, age fourteen, was arrested on September 15, 1992, on suspicion of murdering Michael Samaha in Danbury five days earlier. The state filed a delinquency petition in Superior Court for juvenile matters against the respondent, alleging the serious juvenile offenses of murder in violation of § 53a-54a and felony murder in violation of § 53a-54c. The state then moved to transfer the respondent’s case to the regular criminal docket pursuant to General Statutes § 46b-127.4

[93]*93As required, an evidentiary hearing was held to determine whether probable cause existed to transfer the respondent’s case. The issues on appeal relate solely to two of the witnesses presented by the state at that hearing, Timothy Mourning and Elisha Council. Mourning testified that he had seen the respondent with a pistol similar to the murder weapon on numerous occasions, including hours before the murder. He also stated that he saw the respondent near the site of the homicide shortly before and after the murder. Mourning remembered greeting the respondent with “What’s up?” in their encounter after the murder. Mourning claimed, however, both that he did not remember the respondent’s answer and that he was unaware whether the respondent had replied at all.

Council testified that she knew the victim and saw him immediately before the murder in the alley where he was killed. She further stated that she was standing on an exterior balcony overlooking the crime scene at the time of the murder. Council testified that three men approached the victim and demanded money. After hearing what she thought was someone being struck with a bottle, she testified that she saw two of the men hovering over the victim, one strangling him. The other man then shot him, twice. She stated, at first, that she could identify the three men but recanted after voir dire by the respondent and claimed that she was unable to identify them.

Both witnesses had given investigating officers written statements that conflicted with their testimony. Two days after the murder, Mourning had told officers that the respondent replied to Mourning’s greeting by saying, “I just killed a guy.” Council gave three statements, in varying degrees of detail, within twenty-four hours of the killing. In the first statement, she admitted that she knew the killers but was too frightened to reveal their identities. In the second, she reported [94]*94her belief that one of the three men came from Bridgeport. In the third statement, written in her own hand, she identified the respondent as one of the three men she saw commit robbery and murder.

All of these witnesses’ prior inconsistent statements were admitted under State v. Whelan, 200 Conn. 743, 748-49, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). On the basis of those statements and all the other evidence, the court found probable cause to believe that the respondent had committed murder and felony murder. The court transferred the respondent to the regular criminal docket.

I

The trial court based its finding of probable cause, at least in part, on the prior inconsistent statements of Mourning and Council. The respondent claims that the trial court improperly admitted these statements.

Prior inconsistent statements of nonparty witnesses are hearsay and, generally, inadmissible to prove the truth of the matters they assert. State v. Hopkins, 222 Conn. 117, 122-23, 609 A.2d 236 (1992). In Whelan, however, our Supreme Court adopted an exception to this rule allowing substantive use of a prior inconsistent “statement of a nonparty witness if the declarant: (1) signed the statement; (2) had personal knowledge of the facts set forth in [the] statement; and (3) testifies at trial and is subject to cross-examination.” State v. Borrelli, 227 Conn. 153, 158-59, 629 A.2d 1105 (1993). Prior inconsistent statements are admissible only “where the likelihood of fabrication is slight and the risk of coercion, influence or deception is greatly reduced.” State v. Grant, 221 Conn. 93, 100, 602 A.2d 581 (1992); see also State v. Borrelli, supra, 160-61; State v. Hopkins, supra, 126; State v. Green, 16 Conn. App. 390, 397, 547 A.2d 916, cert. denied, 210 Conn. 802, 553 A.2d 616 (1988). The trial court must reason[95]*95ably find sufficient indicia of reliability in the circumstances surrounding the statement to admit it substantively. State v. Borrelli, supra, 160. “ ‘It is the trial court’s responsibility to weigh the reliability of each statement on a case-by-case basis.’ ” Id., 161, quoting State v. Hopkins, supra.

We begin by noting that trial courts have broad discretion in admitting evidence under Whelan. State v. Buster, 27 Conn. App. 263, 271, 606 A.2d 9 (1992), aff’d, 224 Conn. 546, 620 A.2d 110 (1993). When a trial court’s evidentiary rulings are challenged, they are accorded great deference and will be disturbed on appeal only on a clear showing of abuse of discretion. State v. Alvarez, 216 Conn. 301, 319, 579 A.2d 515 (1990); State v. Buster, supra.

In the present action, the respondent concedes that the prior inconsistent statements met the three initial requirements of Whelan: both Mourning and Council signed all of their statements; both witnesses had personal knowledge of the facts therein; both witnesses were cross-examined. The respondent, however, challenges the trial court’s ruling that the statements were reliable.

Our review of the record convinces us that the trial court did not abuse its discretion by admitting Mourning’s prior statement. The following conditions, under which Mourning gave his statement, support the trial court’s finding of reliability. First, the statement was given two days after the crime, “long before the witness’ memory might have faded.” State v. Whelan, supra, 754.

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Bluebook (online)
633 A.2d 733, 33 Conn. App. 90, 1993 Conn. App. LEXIS 438, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-bassel-c-connappct-1993.