State v. Daniels

848 A.2d 1235, 83 Conn. App. 210, 2004 Conn. App. LEXIS 233
CourtConnecticut Appellate Court
DecidedJune 1, 2004
DocketAC 23053
StatusPublished
Cited by15 cases

This text of 848 A.2d 1235 (State v. Daniels) 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
State v. Daniels, 848 A.2d 1235, 83 Conn. App. 210, 2004 Conn. App. LEXIS 233 (Colo. Ct. App. 2004).

Opinion

Opinion

FLYNN, J.

The defendant, Mark Daniels, appeals from the judgment of conviction, rendered after a jury trial, of the crimes of burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), assault in the second degree in violation of General Statutes § 53a-60 (a) (2) and robbery in the first degree in violation of General Statutes § 53a-134 (a) (3). The defendant claims on appeal that the court (1) abused its discretion in refusing to admit into evidence the victim’s statements to the defendant’s father because no foundation had been laid confronting the victim with the statement with which the defendant sought to impeach the victim, (2) abused its discretion in allowing the state to present rebuttal evidence as to the mistake of the defendant’s father about the defendant’s date of the arrest, a collateral matter, (3) permitted prosecutorial misconduct in the course of the trial and closing argument, (4) improperly denied his motion for a judgment of acquittal on the basis of insufficiency of the evidence because there was no evidence establishing that the defendant took the victim’s wallet and (5) improperly instructed the jury on the state’s burden of proof beyond a reasonable doubt. We affirm the judgment of the trial court.

The record discloses that the jury reasonably could have found the following facts. The victim, Ronald Pusey, lived in an apartment located on Albany Avenue in Hartford. On December 9, 2000, he spent time shopping and drinking with a former companion, Tiandra Johnson. The victim gave Johnson keys to his apartment so that she could use the bathroom while he went to the grocery store. When he returned to his building, he [213]*213encountered Johnson talking with his stepdaughter and the building superintendent. Johnson and the victim then went into the apartment after which Johnson again borrowed the apartment key and some money from the victim and left to go to the grocery store. When Johnson returned to the apartment, she went into the room of a female boarder named Daphne, who was not at home, but who normally kept her door locked. Johnson then went into the bathroom. While the victim was in his kitchen, Johnson entered the kitchen accompanied by a tall man with a black cloth that concealed his face. He held a gun over Johnson’s shoulder and demanded money from the victim. Johnson did not come to the victim’s aid, but left the apartment after the victim requested that she get his superintendent for help. The victim lunged at the masked man, and the two men struggled and fell to the floor where the victim tore the screen off the intruder’s face. The victim recognized the unmasked man as the defendant. The defendant struck the victim multiple times with the butt of the gun, including a strike across his face. During the struggle, the gun discharged. The victim lost consciousness momentarily. When he awoke, he noticed that he was alone in the apartment and that his wallet, which contained approximately $600, was gone. Because he thought when he regained consciousness that both telephone lines were dead, he ran to a nearby grocery store and asked a person there to call the police. He returned to his apartment where he found Johnson talking on the telephone.

When the police came to the victim’s apartment, he accused Johnson of assisting in the robbery by “setting him up” and named the defendant as his assailant. He was taken to a hospital by ambulance where he suffered a seizure and again lost consciousness, but not before he told an emergency medical technician that he had been assaulted by either his niece’s boyfriend or his [214]*214stepdaughter’s boyfriend. After being hospitalized, the victim was shown an array of photographs by the police, and he identified the photograph of the defendant as the person who had assaulted him. The victim also told the police that they should arrest Johnson, whereupon he was told that the police did not have sufficient evidence to do so.

I

We first address the defendant’s claim that the court abused its discretion in refusing to admit into evidence a telephonic statement made out of court by the victim to the defendant’s father in which the victim indicated that he was “at best indefinite” that the defendant was the person who had assaulted and robbed him. The defendant properly preserved this issue for appeal by making an offer of proof after the state objected to defense counsel's attempt to elicit this information from the defendant’s father during his direct examination. The defendant claimed the evidence was admissible as a prior inconsistent statement of the victim. The state objected on the ground that no foundation had been laid because there was no direct testimony about it, and the victim had not been asked about this statement when defense counsel cross-examined him. The court sustained the objection because of a lack of foundation. The court acknowledged that § 6-10 (c) of the Connecticut Code of Evidence granted it discretion to admit the testimony, but stated that it would follow standard practice and decline to admit the evidence.

“We review evidentiary claims pursuant to an abuse of discretion standard. Generally, [t]rial courts have wide discretion with regard to evidentiary issues and their rulings will be reversed only if there has been an abuse of discretion or a manifest injustice appears to have occurred. . . . Every reasonable presumption will be made in favor of upholding the trial court’s [215]*215ruling, and it will be overturned only for a manifest abuse of discretion.” (Internal quotation marks omitted.) Stanley v. Lincoln, 75 Conn. App. 781, 785, 818 A.2d 783 (2003).

There is nothing in the record before us to indicate that the victim ever admitted making the statement. We therefore believe that the second sentence of § 6-10 (c) of the Connecticut Code of Evidence applies. It provides: “If a prior inconsistent statement made by a witness is not shown to or if the contents of the statement are not disclosed to the witness at the time the witness testifies, extrinsic evidence of the statement is inadmissible, except in the discretion of the court.” Extrinsic evidence comes from someone other than the person whose statement is being challenged by the evidence. “Proof that a witness has made a prior inconsistent statement, by extrinsic evidence ... is not generally permissible unless the witness has first been asked about the statement . . . .” C. Tait, Connecticut Evidence (3d Ed. 2001) § 6.35.5, p. 486. In State v. Saia, 172 Conn. 37, 46, 372 A.2d 144 (1976), our Supreme Court held that we have no inflexible rule regarding the necessity of calling the attention of a witness to his prior inconsistent statement before offering extrinsic evidence about it. Rather, “[t]he trial court is vested with a liberal discretion as to how the inquiry should be conducted in any given case.” Id.

The defendant has not provided us with a record indicating why the victim was not asked whether he had a conversation with the defendant’s father and whether he had indicated to the father that he “was at best indefinite” about who had assaulted and robbed him. The defendant argues that the fact of whether a robbery had occurred was not really at issue in the trial, but only whether the defendant and not some other person was the perpetrator. Although that appears to be true, it does not explain why the defendant did not [216]*216cross-examine the victim about the identity of the defendant.

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Cite This Page — Counsel Stack

Bluebook (online)
848 A.2d 1235, 83 Conn. App. 210, 2004 Conn. App. LEXIS 233, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-daniels-connappct-2004.