DocketNumber: No. CR152961
Citation Numbers: 1997 Conn. Super. Ct. 2545
Judges: TIERNEY, J.
Filed Date: 5/14/1997
Status: Non-Precedential
Modified Date: 7/5/2016
Facts
Alex Kelly is currently on trial charged with Kidnapping in the First Degree in violation of C.G.S. §
The State of Connecticut intends to offer evidence of the defendant's failure to appear in court on February 18, 1987. In support of that claim the State intends to offer the transcript of the February 18, 1987 court proceedings as well as the testimony of the court clerk. The State also intends to offer evidence of where the defendant was during his nine year absence. That testimony will consist of a witness who will verify the authenticity of the defendant's passport. The State claims that CT Page 2546 the defendant's passport will show that the defendant traveled in various European and Middle Eastern countries from 1987 until his 1996 surrender in Switzerland.
The defendant intends to offer the testimony of Attorney Michael Sherman who was representing the defendant, Alex Kelly, in the criminal case in 1987. One week before the February 18, 1987 trial, Mr. Sherman told Alex Kelly "he would not get a fair shake from the criminal justice system here in Connecticut." That statement is being offered by the defendant, not for the truth of the statement, but for the effect the statement had on the defendant's state of mind.
Both parties have furnished memorandum in support of their positions. The court heard oral argument.
Discussion of Law
I. Flight as evidence of Consciousness of Guilt
The defendant's actions, conduct or statements after an alleged offense have been held in Connecticut to be circumstantial evidence that is relevant and probative. The standard criminal jury charge on consciousness of guilt is as follows:
"In any criminal trial it is permissible for the state to show that conduct or statements made by a defendant after the time of the alleged offense may fairly have been influenced by the criminal act; that is, the conduct or statements show a consciousness of guilt.
The defendant's possession of or attempt to conceal anything acquired through the crime or his false statements as to his whereabouts at the time of the offense might be offered because such conduct or statements tend to show a consciousness of guilt. It does not, however, raise a presumption of guilt.
It is up to you as judges of the facts to decide whether statements or conduct of the defendant reflect consciousness of guilt and to consider such in your deliberations in conformity with these instructions." Connecticut Jury Instructions, Criminal, 3rd Edition, Section 2.20. CT Page 2547
Section 2.20 of the standard jury instructions on consciousness of guilt regarding flight is as follows:
"The conduct of a person in leaving the scene of a crime, if proven that he was in fact at the scene of the crime, may be considered in determining his guilt since if unexplained, it tends to prove a consciousness of guilt. However, flight, if shown, is not conclusive. Nor does it raise a legal presumption of guilt, but is to be given the weight to which the jury thinks it is entitled under the circumstances shown." Connecticut Jury Instructions, Criminal, 3rd Edition, Section 2.20 COMMENT: State v. Rosa,
170 Conn. 417 ,432-433 . n. 8 (1976); State v. Groomes,232 Conn. App. 455 ,472-474 (1995); State v. Cimino,194 Conn. 210 ,213 , n. 5 (1984); State v. Beaulieu,164 Conn. 620 ,632 (1973).
Examples of conduct, actions or statements made by the defendant after the time of the alleged offense which support a proper consciousness of guilt charge include: State v. Graham,
Cases in which it has been held that the defendant's conduct is not evidence of consciousness of guilt include: State v.Jones,
Connecticut trial courts still regularly give jury charges on consciousness of guilt including flight. "Flight is a form of circumstantial evidence". State v. Piskorski,
The standard charge on consciousness of guilt and flight was criticized in a 1994 decision of Connecticut Supreme Court; a kidnapping and sexual assault case. State v. Freeney,
The majority opinion written by Justice Callahan stated that "flight, when unexplained, tends to prove a consciousness of guilt. . . . Flight is a form of circumstantial evidence. Generally speaking, all that is required is that the evidence has relevance, and the fact that ambiguities or explanations may exist which tend to rebut an inference of guilt does not render evidence of flight inadmissible but simply constitutes a factor for the jury's consideration." State v. Freeney, supra 593-594. The majority then noted that "the fact that the evidence might support an innocent explanation as well as an inference of a consciousness of guilt does not make an instruction on flight erroneous. State v. Wright,
The majority in Freeney did acknowledge that a charge instructing the jury to consider explanations of flight would also be proper. "Moreover, the court was not required to enumerate all the possible innocent explanations offered by the defendant. While the court's charge on flight might have included a reference to the fact that the defendant was on parole and the inferences that could be drawn therefrom, we cannot say that the trial court's refusal to charge the jury to that effect was improper". State v. Freeney, supra 594.
The dissent agrees that a consciousness of guilt charge due to flight should have been given. The dissent claims that "the trial court was obligated to instruct the jury that his flight could have had an innocent explanation because he was on parole and could have been avoiding the police for that reason". Statev. Freeney, supra 602. The dissent distinguished between CT Page 2549 immediate flight from the crime scene and flight that is inferred from the fact that the police were seeking the defendant after he left the area sometime after the immediate time of the crime. "Indeed, a number of jurisdictions have begun to question the use of flight instructions, and some have disapproved of it. I leave this broader issue for another day because it was not raised at trial nor before this court." State v. Freeney, supra 603.
Judge Berdon's dissent synthesized the issue as follows: "Flight from the scene of the crime — for example, where the victim is shot and the defendant is seen running from the crime scene immediately after the shooting — has a relative high degree of probative value. On the other hand, flight or concealment from the police long after the crime is committed would generally appear to have little or no probative value. When there is no immediacy between the flight and the crime, the court must be certain that there is evidence that a defendant knows he is being sought for the specific crime charged and not some other crime or event. United States v. Howze,
The earliest of the various reported cases on the weakness of flight evidence was decided in 1896.
"It is a matter of common knowledge that men who are entirely innocent do sometimes fly from the scene of the crime through fear of being apprehended as the guilty parties, or from an unwillingness to appear as witnesses. Nor is it true that as an accepted axiom of criminal law that `the wicked flee when no man pursueth, but the righteous are as hold as a lion'. Innocent men sometimes hesitate to confront a jury — not necessarily because they fear that the jury will not protect them, but because they do not wish their names to appear in connection with criminal acts, are humiliated at being obliged to incur the popular odium of an arrest and trial, or because they do not wish to put to the annoyance or expense of defending themselves." Alberty v. United States,
162 U.S. 499 ,511 ,16 S.Ct. 864 ,868 ,40 L.Ed. 1051 (1896).
Acts supposedly showing consciousness of guilt can be "explained by terrorized innocence as well as by a sense of guilt. After all, innocent people caught in a web of circumstances frequently become terror-stricken." Cooper v.United States, 94 U.S. App. D.C. 343, 345,
"When evidence of flight has been introduced into a case, in my opinion the trial court should, if requested, explain to the jury, in appropriate language, that flight does not necessarily reflect feelings of guilt, and that feelings of guilt, which are present in many innocent people, do not necessarily reflect actual guilt. This explanation may help the jury to understand and follow the instruction which should then be given, that they are not to presume guilt from flight; that they may, but need not, consider flight as one circumstance tending to show feelings of guilt; and that they may, but need not, consider feelings of guilt as evidence tending to show actual guilt." Miller v. United States, 116 U.S. App. D.C. 45,
320 F.2d 767 773 (1963).
"Flight instructions should be used sparsely, and when used should be accompanied by a fuller explanation by the judge of the variety of motives which might prompt flight, and thus of the caution which a jury should use before making the inference of guilt from the fact of flight." Austin v. United States,
A number of cases have held that evidence of, light as consciousness of guilt is erroneous. None are Connecticut cases. Evidence of an escape, six weeks after pretrial incarceration, was held not to be sufficiently probative of the defendant's consciousness of the crime charged to outweigh its prejudicial effect. State v. Harris,
Evidence admitted that the defendant stole a vehicle in order to attempt to flee the state after his attorney told him he would face a long prison term for a prior charge of theft, was held to be erroneous. State v. Philbrook,
Another view of flight, is that it is admissible, once the trial judge balances its prejudicial effect against its probative value, but the court should not charge on consciousness of guilt. The United States Court of Appeals, District of Columbia Circuit noted that flight is "an extraordinarily complex action, potentially prompted by a variety of motives other than guilt of the actual crime." United States v. Telfaire,
II. Admissibility of Flight, other than from the scene of thecrime
Most jury charges as to flight involve flight from the scene.State v. Beaulieu,
The defendant correctly argues that there is no Connecticut case permitting evidence of flight from a scheduled trial as consciousness of guilt. This court has not been able to find any such Connecticut case. There are a number of reported cases in which flight was admitted as evidence of consciousness of guilt when the flight was not immediately from the scene of the crime.State v. Reddick,
There are three cases in which the defendant's failure to appear at or about trial was discussed. The earliest was in 1979.United States v. Hernandez-Miranda,
The second case which discussed flight from trial appears to be dicta. State v. Jones,
In the third case while awaiting trial on three counts of robbery and one count of sexual assault, the defendant escaped. In a habeas petition the convicted defendant claimed ineffective assistance of counsel: trial counsel failed to object to the escape as evidence of consciousness of guilt. Holding that "the state is entitled to prove not only that the petitioner fled, but why," Harris v. Commissioner of Corrections,
The court also notes the unique facts of this case. Had the defendant surrendered in Connecticut, no doubt a third felony charge would be added to the information by the State; Failure to Appear in the First Degree in violation of C.G.S. §
III. Admissibility of Circumstances and Location of Flight
The State wishes to offer proof of the circumstances of the defendant's flight: where did the defendant go for those nine years. A number of Connecticut cases have permitted evidence of circumstances surrounding the flight and events that occurred during the flight.
State v. Nemeth,
State v. Piskorski,
State v. Wright,
State v. Avis,
State v. Davis,
State v. Adams,
State v. Reddick,
Harris v. Commissioner of Corrections,
State v. Williams,
State v. Briggs,
State v. Banks,
State v. Burak,
United States v. Mesa,
United States v. Hernandez-Miranda,
IV. Statement made to Defendant to show the Defendant's State ofCT Page 2555Mind re: Flight
The defendant's offer of proof is that Attorney Michael Sherman will testify that he told the defendant approximately one week before the February 18, 1987 trial that "he could not get a fair shake from the criminal justice system here in Connecticut". That statement is being offered, not for the truth of the statement, but to show that this statement had an effect on the defendant's state of mind. The state of mind exception to the hearsay rule has many examples in Connecticut case law. The most common is the state of mind of police officer's supporting their actions: Information heard over a police radio as an explanation for the police officer's subsequent conduct. The testimony of what the other officers said over the radio is not offered for the truth of these statements but rather to show the effect of the broadcast on their hearer: the apprehending officer. Such testimony is not barred by the hearsay rule. State v. Gonzales,
One of the oldest cases on the subject of state of mind isWarner v. Warner,
This rule has been upheld in a substantial number of cases since 1938. The state of the mind of the witness as a result of what her brother told her was held to be relevant. "It is an elementary premise of evidentiary law, however, that testimony is considered to be hearsay only when it is an out-of-court statement offered to establish the truth of the matter as contained therein. . . . If such a statement is offered, instead, to show the defendant's state of mind, upon hearing it, it is not offered for its truth" State v. Floyd,
The State argues that Michael Sherman's testimony is not relevant nor probative of the defendant's state of mind. It argues that a jury can clearly understand the motivation of actions taken under threats. State v. Esposito, supra 822; Statev. McIntosh,
"It is a reasonable exercise of judicial discretion to exclude questions which would introduce issues foreign to the case." State v. Dortch,
The State's Motion in Limine addressed to Attorney Michael Sherman is denied. The defendant was told by his trial attorney, a week before his failing to appear for trial on February 18, 1987, that "he could not get a fair shake from Criminal Justice here in Connecticut". That statement may be admitted, since it is not offered for the truth of the statement, but for the effect it has on the defendant's state of mind. State v. Floyd, supra 370;State v. Jones, supra 731; State v. Esposito, supra 821; Warnerv. Warner, supra 637-638. CT Page 2557
Conclusion of Law
It appears that the issues raised by these two motions can be broken down in a series of questions: 1) Is evidence of consciousness of guilt still admissible in Connecticut? 2) Can the State offer evidence of flight, not from the scene, but from trial? 3) Can the defendant offer evidence of innocent reasons for the flight? 4) Can the State offer evidence of the circumstances and length of the flight? 5) Can the State offer such evidence in its case in chief or only on rebuttal? 6) Should the court, at the time of the testimony, give limiting instructions to the jury as to flight? 7) Should the court charge the jury on consciousness of guilt or just leave the evidence for the jury to consider without a formal jury charge? and 8) If a jury charge is given, should the court instruct the jury that it can consider any explanation for flight offered on behalf of the defendant?
This court is of the opinion that consciousness of guilt is a vanishing but a viable concept in the State of Connecticut. Statev. Marshall, supra 79. As such consciousness of guilt including flight continues to be admissible. The trial court must determine, in its discretion, if the evidence of flight is relevant and probative as to the issues in the case, and if so, whether the evidence is so prejudicial that one would be forced to wonder whether the evidence is not directed to punishing "the wicked generally rather than resolving the issue of guilt of the offense charged." State v. Freeney, supra 603.
For the reasons stated in Section II of this Memorandum of Decision, this court concludes that the State may offer evidence of flight, not only from the scene, but from the February 18, 1987 failure to appear for trial.
The defendant is permitted to offer evidence of the reasons for flight. This is consistent with both the majority and the dissenting opinions in State v. Freeney, supra 605.
The State may offer evidence of the circumstances and the length of the flight. This ruling is supported by the cases cited in Section III of the Memorandum of Decision. This is a sexual assault and kidnapping case. Delay in the prosecution of a sexual assault is always an issue for the jury. Sexual trauma experts are permitted to testify to explain delays or inaccuracies in the reporting or prosecuting of sexual assaults by complainants. CT Page 2558State v. Freeney, supra 590 n. 7. The delay of the trial in this case is due to the defendant's absence from Connecticut for over nine years. The State is entitled to offer evidence as to the delay to rebut any suggestion that the reason for the trial delay is the complainants' reluctance to prosecute. Under the circumstances of this case, this court finds that any prejudice to the defendant does not outweigh its probative value. State v.Delgado,
Since the defendant can offer evidence as to the reasons for the flight, he should be given the opportunity to offer those reasons before the State is permitted to get into the length of the flight as well as the circumstances and locations of the flight. The court, in the exercise of its discretion, will permit the State in its case in chief to offer testimony of the court clerk and the February 18, 1987 transcript to show that the defendant failed to appear for trial. Once the defendant offers evidence as to the reasons for the flight, the State will be permitted, on rebuttal, to offer evidence as to the length of the flight and the circumstances during the nine year period of time. No extended evidence will be permitted. This will not be a trial within a trial nor a "grand tour".
Because of the one year lapse of time between the arrest and the flight, the court, in order to temper any prejudice to the defendant, will give a limiting instruction to the jury at the time the evidence is presented. This instruction will be consistent with the court's final jury instructions.
Despite the cases cited which indicate a general reluctance to continue with the use of flight instructions, consciousness of guilt is still the law of the State of Connecticut. "The use of evidence of flight has been criticized on the grounds that the . . . inferences are not supported by common experience and it is widely acknowledged that evidence of flight or related conduct is only marginally probative as to the ultimate issue of guilt or innocence". United States v. Meyers,
The formal jury charge is as follows:
"There is a concept in our law that is called consciousness of guilt. Whenever a person is on trial for a criminal offense, it's proper to show that person's conduct after the alleged criminal offense, which may fairly be inferred to have been influenced by the criminal act. The state of mind which is characterized as consciousness of guilt may be circumstantial evidence of guilt.
Flight, when unexplained, may indicate consciousness of guilt, if the facts and circumstances support it. On the other hand, you may consider any explanation offered on behalf of the defendant to explain his flight. There could be other reasons for flight. Flight does not necessarily reflect feelings of guilt. However, flight, if shown, is not conclusive. Nor does it raise a legal presumption of guilt, but is to be given the weight to which the jury thinks it is entitled under the circumstances shown.
You may consider and weigh this evidence about the accused in connection with all other evidence of the case and give it such weight as in your sound judgment it is fairly entitled to receive. You may make a permissible inference of consciousness of guilt from the defendant's conduct and you are equally free to determine that the defendant's conduct does not warrant an inference of consciousness of guilt. That is for you to decide."
The State's Motion in Limine as to Attorney Michael Sherman is denied. The Defendant's Motion in Limine as to Flight and Consciousness of Guilt is denied. The court will permit the introduction of evidence and furnish instructions in the manner set forth in this decision.
Tierney, J.
United States v. Erwin Edward Ballard, United States of ... , 423 F.2d 127 ( 1970 )
united-states-v-juan-mesa-antonio-oliva-raymond-morales-alfredo , 660 F.2d 1070 ( 1981 )
United States v. Vincent Howze , 668 F.2d 322 ( 1982 )
Cooper v. United States , 218 F.2d 39 ( 1954 )
United States v. German Hernandez-Miranda , 601 F.2d 1104 ( 1979 )
United States v. Larry Allen Myers , 550 F.2d 1036 ( 1977 )
United States v. Melvin Telfaire , 469 F.2d 552 ( 1972 )
Lawrence C. Miller, Jr. v. United States , 320 F.2d 767 ( 1963 )
Luther L. Austin v. United States , 414 F.2d 1155 ( 1969 )
State v. Beaulieu , 164 Conn. 620 ( 1973 )
Gaul v. Noiva , 155 Conn. 218 ( 1967 )
State v. Mayell , 163 Conn. 419 ( 1972 )
State v. Vennard , 159 Conn. 385 ( 1970 )
State v. Ferrara , 176 Conn. 508 ( 1979 )
State v. Ford , 109 Conn. 490 ( 1929 )
Warner v. Warner , 124 Conn. 625 ( 1938 )
State v. Dortch , 139 Conn. 317 ( 1952 )
State v. Rosa , 170 Conn. 417 ( 1976 )
State v. Bassett , 151 Conn. 547 ( 1964 )