RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
FRECHETTE, J.
The plaintiff has brought a three-count complaint against the defendant. Count One is brought pursuant to General Statutes § 46a-60(a)(3) and (4) alleging discrimination or retaliation in violation of the Connecticut Fair Employment Practices Act (the Act). Counts Two and Three allege intentional infliction of emotional distress and negligent infliction of emotional distress respectively. The defendant has filed a motion for summary judgment. The plaintiff asserts that "a multiplicity of genuine issues of material fact remain unresolved in the instant matter warranting a full adjudication by the trier of fact." The Court agrees with the plaintiff.
I. Legal Standard
"`In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. `The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.' . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent." (Citations omitted.) Allstate Ins. Co. v. Barron, 260 Conn. 394, 405 (2004).
II. Background
The plaintiff alleges in his complaint that the defendant Union initiated federal litigation asserting that civil service examinations were not culturally biased, failed to appoint a CT Page 21031 minority to the executive board of the union, failed to represent interests of minority firefighters in disciplinary proceedings and allowed preferential favorable treatment to Caucasians in discipline and in the filling of vacant positions without first requiring testing. The individual plaintiff alleges he voiced his opposition to this discriminatory and disparate treatment and that he was subjected to retaliation, public scorn and ridicule. Further, the plaintiff alleges, on account of his race, that on April 2, 2006, he was "detailed" to a location other than his regular assignment, while an overtime officer, Captain Stacey, "who is Caucasian of race, white of color and Hispanic of ethnicity," was assigned to the plaintiff's normal work location. The plaintiff further alleges that he requested the defendant to "intervene" in the matter, but the defendant failed to do so. The plaintiff testified at his deposition that this "detailing" of him to another firehouse on the date in question was used as a form of "harassment" meant to "aggravate" him. He further testified that this was part of a pattern of harassment by the Fire Department based upon his race and in retaliation for his complaints of racial discrimination. (See, plaintiff's deposition pp. 63-67.) The plaintiff claims and that the defendant Union was obligated to protect him from this form of racially based harassment, and that despite his requests for their assistance, the Union failed to do so. (See, Affidavit of plaintiff dated October 21, 2010, par. 4: "I specifically requested Patrick Eagan [the Union President] file a grievance on my behalf when I was wrongfully detailed to Engine 15 in lieu of my normal work assignment at Engine 6 on or about April 1, 2006; he discriminatorily refused to do so.") As a result of the alleged discriminatory conduct of the defendant Union, the plaintiff also alleges he has suffered "severe emotional distress and trauma, sleeplessness, loss of appetite, overly burdensome financial hardships, damage to their relationships with their family and friends, as well as damage to their self-esteem and sense of self-worth." The plaintiff further alleges that the defendant "intended to inflict emotional distress upon the plaintiff and that the defendant knew or should have know that emotional distress was a likely result of their collective conduct."
With respect to Count One, the parties agree that to establish his prima facie case, the plaintiff must prove that he: (1) is a member of the protected class; (2) was qualified for the benefit conferred; (3) suffered an adverse action; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination. See, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). With respect to a claim of retaliation, CT Page 21032 the plaintiff must show: (1) that he participated in a protected activity; (2) that the defendant knew of the protected activity; (3) that an adverse employment action against him occurred; and (4) a causal connection between the protected activity and the adverse action existed. Ayantola v. Board of Trustees of Technical Colleges, 116 Conn.App. 531, 536 (2009). The defendant concedes in its brief that the plaintiff's membership in the union may be substituted for his qualification for the position/benefit conferred and that the loss of some benefit or protection afforded by union membership may be substituted for the third element of suffering an "adverse action," assuming plaintiff can sustain his burden of proof. It is undisputed that the plaintiff is African-American and is a member of a protected class.
The defendant in its motion for summary judgment essentially argues that the plaintiff cannot establish his prima facie case because he suffered no adverse employment action as a result of the Union's failure or refusal to pursue a grievance on his behalf as a result of the plaintiff being detailed away from his normal work assignment. In support of this, the defendant points to the fact that by the plaintiff's own admission he did not, for example lose any pay, seniority or benefits as a result of his one day "detailing" to another location. The defendant further argues that there was a legitimate, nondiscriminatory reason for the defendant Union not filing a grievance on the plaintiff's behalf, as the plaintiff admitted that there exists a general practice of detailing officers pursuant to established fire department practice. The defendant goes on to point out several bits of testimony which allegedly show the "lack of credibility" of the plaintiff's claims of discrimination and retaliation. (See, Defendant's Memorandum in Support of Motion for Summary Judgment, p. 18.)
The claims of the defendant miss the mark, however. First, issues of credibility are not appropriate for resolution on a motion for summary judgment. Second, the defendant admitted at oral argument that if plaintiff's assertion was true — that he was "detailed" out of his normal assignment ". . . as part of the calculated and vindictive manner in which the [defendant] Union declined to afford [the plaintiff] the same protection it affords other Caucasian and white of color individuals within its membership," — that this deliberate discrimination by the Union would (if proved) constitute an "adverse employment action." Moreover, if a "disproportionately heavy workload" constitutes an "adverse employment action," (See, Feingold v. New York, 366 F.2d 138, 153 (2d Cir. 2004)) certainly deliberate racially discriminatory treatment of the CT Page 21033 plaintiff would also constitute an adverse employment action. Such alleged treatment of the plaintiff would also constitute "other indices [of adverse employment actions] unique to [the] particular situation [of the plaintiff]." Id. at 152. The defendant's remaining claims in support of its motion merely address the strength of the plaintiff's case and do not afford a basis to grant a motion for summary judgment.
III Conclusion
Even where the evidence in a case is alleged to strongly favor one party that court may not arrogate to itself the role of trier of fact and, thus, decide issues of material fact as a matter of law. "A party has the same right to submit a weak case [to the jury] as he has to submit a strong one." Rosick v. Equipment Maintenance Service, Inc., 33 Conn.App. 25, 36 (1993), quoting Faulkner v. Samperi, 190 Conn. 412, 419 (1983).
The plaintiff has clearly established a prima facie case and rebutted the defendant's claim that there was a legitimate, nondiscriminatory reason for its conduct. Issues of credibility are within the exclusive realm of the trier of fact, and therefore, cannot be resolved by summary judgment. Battistoni v. Weather King Products, 41 Conn.App. 555, 564 (1996). This Court must view the evidence in a light most favorable to the non-movant. Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317 (1984); Kinne v. DeBasse, 35 Conn.App. 349, 352 (1994). Based upon the foregoing issues of disputed fact, the defendant's motion for summary judgment is, therefore, denied.
CT Page 21034
em to give any statements or threatening them in any way. The juvenile DW and the other male suspect codefendant JF were at the bus stop having been driven there by Driver CN. Driver CN gave a statement to the police the day after the shooting in which he stated that he noticed that after the shooting there was a gun in his car. At the hearing, however, Driver CN recanted that statement. He testified that he did not see
a gun. Driver CN admitted at the hearing that he told the detective that when he dropped the juvenile DW and the other male suspect codefendant JF after the shooting, Driver Carl CN was told that he, Driver CN "did not see nothing." At the hearing, however, he testified that the juvenile DW did not make this statement to him. Detective Hunt testified that he arrested the juvenile DW and the other male suspect codefendant JF for these offenses. He stated that the male suspect codefendant JF was being tried as an adult.
Introduction of Exhibits
Defense counsel argues that the judge erroneously based her adjudications upon exhibits never formally introduced into evidence. Defense counsel asserts that the prosecutor offered testimony from the two alleged eyewitnesses, BJ and CB, but the prosecutor never formally offered the entire statements into evidence.
CB's and BJ's statements were introduced into evidence. After CB and BJ testified, the court informed the prosecutor that he had not marked the statements for identification. Defense counsel objected to the introduction of the statements because the witnesses were present to testify. The court overruled defense counsel's objection. Therefore, having overruled the defense counsel's objection to the introduction of the statements, the court necessarily admitted the statements into evidence.
The Statements as Substantive Evidence of Guilt
Defense counsel argues that the judge based the adjudications upon BJ's and CB's unsworn out-of-court statements as impeachment evidence that was improperly used as substantive evidence of guilt.
In this case, these eyewitnesses recanted their out-of-court statements wherein they identified the juvenile DW as a shooter. Thus, the out-of-court statements were the sole evidence to establish DW's guilt beyond a reasonable doubt.
Defense counsel did not specifically object to the introduction of the statements on the basis that they were hearsay evidence which could not be used as substantive evidence. In fact, defense counsel attempted to introduce out-of-court statements in order to show a discrepancy between the statement and the affidavit for the search warrant. In this regard, defense counsel argued that the affidavit stated that both witnesses identified the juvenile DW by his full name where the recorded statement showed otherwise. The prosecutor objected on the basis that the transcribed testimony was hearsay. The judge stated that she did not think defense counsel could introduce the statement at that point, explaining that eyewitness CB would be available for cross-examination.
La.C.E. art. 801(D)(1)(c), Louisiana's counterpart of Fed.R.Evid. 801(d)(1)(C), provides that a prior statement by a witness is not hearsay if "the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement" and the statement "is one of identification of a person made after perceiving the person."
The Louisiana Supreme Court in State v. Johnson, 99-3462, p. 2 (La.11/3/00), 774 So.2d 79, 80 affirmed that when a non-party witness's credibility is attacked through a prior inconsistent statement incriminating the accused, the evidence is generally not admissible for its assertive value as substantive evidence of guilt. However, the Court recognized the identification exception provided in La.C.E. art. 801(D)(1)(c).
Contemporaneous identifications generally are given much more credence; indeed, such identifications are considered reliable enough to justify their exclusion from the hearsay rule, even when the witness is unable to repeat the identification in the courtroom. Samuels v. Mann, 13 F.3d 522, 527 (2nd Cir. 1993), cert. denied, 513 U.S. 849, 115 S.Ct. 145, 130 L.Ed.2d 85 (1994) (Citations omitted).
The Johnson Court cited with approval United States v. Brink, 39 F.3d 419, 426 (3rd Cir. 1994), and Jack B. Weinstein and Margaret A. Berger, Weinstein's Evidence, § 801(d)(1)(C) [01], at 801-222 (1993). Johnson, 99-3462 at 2-3, 774 So.2d at 80.
In Brink, the federal court stated: "Generally, evidence is admitted under Rule 801(d)(1)(C) [the federal counterpart to the Louisiana rule] when a witness has identified the defendant in a lineup or photospread, but forgets, or changes, his testimony at trial." (Citations omitted).
The Brink Court explained the federal counterpart to Louisiana's identification nonhearsay rule:
Debate on the 1975 amendment to the Rule demonstrates Congress was aware that third parties would testify to the witness's prior statements. See 121 Cong.Rec. 31,867 (1975) (statement of Rep. Hungate) ("The bill . . . applies to situations where an eyewitness has previously identified a person out of court. It would admit into evidence testimony of that identification. For example, testimony by a police officer that at a lineup John Doe identified the defendant as the man who robbed his store."). See generally, Jack B. Weinstein and Margaret A. Berger, Weinstein's Evidence, H801(d)(1)(C)[01.], at 801-222 (1993) ("If at trial the eyewitness fails to remember or denies that he made the identification, the previous statements of the eyewitness can be proved by the testimony of a person to whom the statement was made, and the statement can be given substantive effect."). Thus, Miller's statement should have been admitted as substantive evidence.
Id.
In State v. Hester, 99-426, pp. 18-19 (La.App. 5 Cir. 9/28/99), 746 So.2d 95, 108, writ denied, 99-3217 (La.4/20/00), 760 So.2d 342, this Court held that La.C.E. art. 801(D)(1)(c) applied to a formal photographic identification procedure, thereby limiting the type of statement subject to the nonhearsay identification rule. However, Hester was decided before the guidance provided by the 2002 Louisiana Supreme Court case of State v. Stokes, 01-2564, pp. 1-2 (La.9/20/02), 829 So.2d 1009, 1010 (Per Curiam), where the Louisiana Supreme Court held:
A prior statement by a witness which is "[o]ne of identification of a person made after perceiving the person," is non-hearsay when the witness appears and is cross-examined on the statement. La.C.E. art. 801(D)(1)(c). Such a statement may be used assertively, as substantive evidence of guilt, and may be established through the testimony of one to whom the statement was made. This is so even if the witness denies making an identification or fails or is unable to make an in-court identification. State v. Johnson, 99-3462, pp. 2-3, 774 So.2d 79, 80-81. The federal rule is similar. See Fed.R.Evid. 801(d)(1)(C); United States v. Brink, 39 F.3d 419 (3rd Cir. 1994); United States v. Jarrad, 754 F.2d 1451 (9th Cir. 1985). See also 5 Weinstein's Federal Evidence, (MB) § 801.23[1], p. 801-39 (2nd ed., Joseph M. McLaughlin, ed., 2002).
By referring to "a prior statement," the Louisiana Supreme Court did not limit the rule to formal photographic lineups or photospreads. In fact, the Stokes Court cited with approval a case involving photospread statements as well as a case involving a non-photospread statement, U.S. v. Jarrad, 754 F.2d 1451 (9th Cir. 1985), cert. denied, Jarrad v. United States, 474 U.S. 830, 106 S.Ct. 96, 88 L.Ed.2d 78 (1985), cert. denied McManamy v. United States, 474 U.S. 830, 106 S.Ct. 96, 88 L.Ed.2d 78 (1985) and United States v. Brink, 39 F.3d 419, 426 (3rd Cir. 1994), respectively.
In Jarrad, the court held that an agent's testimony as to a witness's identification was not hearsay. In that case the testimony took place during an attempted photo-spread identification. Jarrad, 754 F.2d at 1456. In Brink, at trial, the witness testified she was unable to recall the bank robber's eye color. The FBI agent testified that the day after the robbery, she told him the bank robber had dark colored eyes. Brink, whose eyes are light hazel, sought to use the prior statement as substantive evidence of his innocence, but the court refused. The Brink court held that "the fact that FBI agent McEachern, rather than Miller, recited Miller's statement at trial does not preclude introducing her statement as substantive evidence." Brink, 39 F.3d at 424-26, 426.
In my view, the latest pronouncement from the Louisiana Supreme Court in Stokes recognizes that the identification rule applies not only to photographic lineups or photospreads but to statements of identification as well. Accord: State v. Brue, 09-2281 (La.App. 1 Cir. 5/7/10), 2010 WL 1838383, *10 (unpublished) (rule to include an out-of-court unsworn and uncorroborated videotaped statement in response to police questioning, where witness refused to testify or answer questions.); State v. Tumblin, 02-1643, p. 6 (La.App. 4 Cir. 9/17/03), 857 So.2d 1045, 1049 (rule applied to an out-of-court statement made to the police immediately after the shooting where the witness recanted the statement.).
Accordingly, I would hold that the out-of-court statements made to the police near the time of the incident are nonhearsay evidence and could be used as substantive evidence of guilt.
Furthermore, even assuming the non-hearsay identification rule does not apply to this case, I would hold that the following nonhearsay rule applies: La.C.E. art. 801(D)(1)(a), the prior inconsistent statement by a witness.
I recognize the extraordinary difficulty the writer herein faced in attempting to reconcile State v. Allien, 366 So.2d 1308, 1310 (La. 1978) and State v. Cousin, 96-2973 (La.4/14/98), 710 So.2d 1065 and the Allien-Cousin progeny with legislative changes in the hearsay rules.
In State v. Lubrano, 563 So.2d 847, 849 (La. 1990) (Per Curiam) (emphasis in original), the Louisiana Supreme Court held that where the state's case rests entirely on hearsay evidence, counsel's failure to object does not necessarily foreclose inquiry into the reliability of the result. In that case, there was no other independent evidence to indicate that the hearsay evidence, the defendant's timecards, was accurate. 563 So.2d at 850. In State v. Jones, 610 So.2d 782, 784 (La. 1992) (emphasis in original), the court explained that when the state's case rests entirely on evidence regarding out-of-court assertions of fact, that court is not precluded from inquiring into the reliability of the result for due process purposes.
"Under a modern view of the hearsay rule, [inconsistent] statements [of a witness] are exempt from the rule and admissible as substantive evidence of the facts stated." 1 McCormick on Evidence § 34, at 149 (6th ed. 2006).
Traditionally, the prior statement has been admissible as substantive evidence to prove the truth of the matter asserted only when falling within an established exception to the hearsay rule. 2 McCormick on Evidence § 251, at 148 (6th ed. 2006). "This position has come under substantial attack on both logical and practical grounds." Id. The rationale behind the "orthodox/traditional view is that the witness's previous statement is hearsay resting on the credit of the declarant, who, when the statement was made, was not under oath, in the presence of the trier of fact, or under cross-examination." Id. "As Wigmore, who originally adhered to the traditional view, observed: `Here, however, by hypothesis the witness is present and subject to cross-examination. There is ample opportunity to test him as to the basis for his former statement. The whole purpose of the hearsay rule has been already satisfied.'" 2 McCormick on Evidence § 251, at 149. One persuasive factor against the orthodox/traditional rule is the superior trustworthiness of the earlier statements on the basis that those statements are more recent in time. Id. There has been a substantial movement to completely abandon the orthodox/traditional view. 2 McCormick on Evidence § 251, at 150. Evidence of a prior inconsistent statement, when the declarant is on the stand to explain it, has the major safeguards of examined testimony. 2 McCormick on Evidence § 251, at 151.
Nevertheless, even while clearly admissible as substantive evidence, jurisdictions disagree with whether such a statement standing alone is sufficient to sustain a conviction. 2 McCormick on Evidence § 251, at 151, n. 19.
In People v. Chames, 234 Mich.App. 274, 593 N.W.2d 655 (Mich.App. 1999), Leave to Appeal Denied, 461 Mich. 930, 605 N.W.2d 320 (1999), Chavies v. Michigan, 531 U.S. 841, 121 S.Ct. 105, 148 L.Ed.2d 63 (2000), overruled on other grounds by People v. Williams, 475 Mich. 245, 716 N.W.2d 208 (Mich. 2006), the Michigan court noted:
The sufficiency of the evidence is an issue separate and distinct from the question of admissibility. In the context of prior inconsistent statements, the question is whether, viewing the witnesses' [prior] grand jury testimony in the light most favorable to the prosecution, the evidence was so unreliable that no reasonable trier of fact would accept it as sufficient to support defendant's convictions beyond a reasonable doubt. 593 N.W.2d at 660 (Citation omitted).
In Chavies, the court described the conflicting approaches to the question of whether out-of-court statements alone would be sufficient to support a conviction where the witness recanted testimony. Id. 593 N.W.2d at 660-661. The court noted that Louisiana was one of those states that still adhered to the common law rule that prior inconsistent statements are hearsay inadmissible as substantive evidence, and may only be used for impeachment. 593 N.W.2d at 661, citing State v. Allien, 366 So.2d 1308, 1310 (La. 1978).
In Allien, the Court noted that it had consistently held that a prior inconsistent statement of a witness cannot be admitted as substantive evidence of the truth of its content; the effect of its admissibility is limited to impeaching the credibility of the witness and his testimony. 366 So.2d at 1310. In State v. Jackson, 526 So.2d 1261, 1263 (La.App. 3 Cir. 1988), the Third Circuit explained that when the prior inconsistent statements were introduced in order to impeach the credibility of the witness, they were nonhearsay as they were not being offered to prove the matter asserted therein. Thus, the prior inconsistent statements used as impeachment evidence could not be substantive evidence. Id.
In 1998, the Louisiana Supreme Court reaffirmed Allien in State v. Cousin, 96-2973 (La.4/14/98), 710 So.2d 1065. At the time, La.C.E. art. 802(D)(1)(a) classified as nonhearsay a prior statement of a witness at trial that was inconsistent with the witness's trial testimony and was given under oath at the preliminary examination or prior trial of the accused. Thus, under the facts of that case, the inconsistent statements were hearsay. 96-2973 at 7, 710 So.2d at 1069. La.C.E. art. 607(D)(2), however, permitted then as it does now the introduction of a prior inconsistent statement, even though it is inadmissible hearsay, for the limited purpose of attacking the credibility of a witness. The Court held that: "Although such evidence is admissible for impeachment, this court has steadfastly recognized that `when a witness other than the defendant is impeached by the admission of a prior inconsistent statement incriminating the defendant, the statement is admissible only on the issue of credibility and not as substantive evidence of the defendant's guilt.'" 96-2973 at 8, 710 So.2d at 1069.
Thus, when Cousin was decided, only those prior statements of a witness at trial that were inconsistent with the witness's trial testimony and were given under oath at the preliminary examination or prior trial of the accused were nonhearsay and could be used as substantive evidence. 96-2973 at 10, 710 So.2d at 1070 (The Court explained that when the Louisiana State Law Institute proposed the Louisiana Code of Evidence to the Legislature, the substantive impeachment rule was thus restricted.).
The restriction changed in 2004. La. CE. art. 801(D)(1)(a) was amended by 2004 La. Acts., No. 694, § 1, effective August 15, 2004. The current article provides that a statement is not hearsay if:
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:
(a) In a criminal case, inconsistent with his testimony, provided that the proponent has first fairly directed the witness' attention to the statement and the witness has been given the opportunity to admit the fact and where there exists any additional evidence to corroborate the matter asserted by the prior inconsistent statement[.]
In State v. Rankin, 42,412 (La.App. 2 Cir. 9/19/07), 965 So.2d 946, writ denied, 07-2067 (La.3/7/08), 977 So.2d 897, the Second Circuit concluded that the Allien-Cousin line of cases predated the 2004 amendment, which now allows those La.C.E. art. 801(D)(1)(a) nonhearsay statements as admissible for their assertive value. 42,412 at 6-7, 965 So.2d at 950-51.
Likewise, the Allien-Cousin line of cases predated the 1995 amendment to La.C.E. art. 801(D)(1)(c). By 1995 La. Acts, No. § 1 the Legislature amended the article to provide that a statement is not hearsay if the declarant testifies at the trial or hearing, is subject to cross-examination concerning the statement, and the statement is "one of identification of a person made after perceiving the person[.]" La.C.E. art. 801(D)(1)(c). In 2000, the Louisiana Supreme Court, in State v. Johnson, 99-3462, p. 2 (La.11/3/00), 774 So.2d 79, 80, the Court recognized the identification rule provided in La. CE. art. 801(D)(1)(c). Therefore, in Johnson, the Louisiana Supreme Court diverged from the orthodox/traditional rule expressed in Cousin.
In the present case, the declarants, who recanted their out-of-court statements to the police were subject to cross-examination at the hearing. The prosecutor directed each declarant to their statements and allowed them the opportunity to admit the facts. Thus, under Article 801(D)(1)(a) the question presented herein is whether there exists any additional evidence to corroborate the matter asserted by the prior inconsistent statements. In this case where the state's case rests entirely on evidence regarding out-of-court assertions of fact, independent corroboration affords the juvenile due process because such corroboration ensures the reliability of the resulting adjudications. State v. Lubrano, 563 So.2d 847, 849 (La. 1990) (Per Curiam); State v. Jones, 610 So.2d 782, 784 (La. 1992).
In Chavies, supra, the court noted that other states require some degree of corroboration before a prior inconsistent statement will be found to be sufficiently reliable to support a conviction. Id. (Citations omitted). In State v. Mancine, 124 N.J. 232, 248, 251-252, 590 A.2d 1107, 1117 (1991), the New Jersey court held: "A prior inconsistent statement for which substantial evidence exists corroborating any of its specific elements and enhancing its seeming reliability is corroborated in its entirety and may be used for all purposes." The court held that a prior inconsistent statement may solely support a conviction even without corroboration of each element of the crime under these circumstances: (1) The statement is generally corroborated. (2) Its reliability is supported by the circumstances under which it was given. (3) The defendant has the opportunity to cross-examine the declarant. 124 N.J. at 252, 590 A.2d at 1117.
One of the circumstances here showing corroboration is that the two witnesses gave the same statement to the police identifying the juvenile as the shooter. In the analogous case of Henry v. State, 861 P.2d 582, (Alaska App. 1993), the Alaska court explained that the rule governing corroboration is a flexible one that is grounded in common sense. 861 P.2d at 587. It held that corroborating evidence is sufficient when it induces a rational belief in the truthfulness of a witness's testimony. Id. (Citation omitted). The court concluded that the "independent accusations of sexual abuse" of two victims who recanted their prior inconsistent statements was sufficient corroborating evidence. In the initial statement, one victim told the police about the abuse of the other victim. Shortly afterwards, the other victim corroborated that accusation without knowing that that victim had already made a similar accusation. The circumstances gave the jurors a rational basis to distrust the victims' recantations at trial and to credit their earlier statements to the authorities and their testimony at a grand jury. Thus, the requirement of corroboration was met, and the jury's verdicts were supported by sufficient evidence. Id.
Bearing these precepts in mind, I would note that there are sufficient indicia of reliability in this case. I acknowledge that the two witnesses' inconsistent statements were the only evidence directly implicating the juvenile in the attempted murders. There was no independent corroboration of the witnesses' statements that the juvenile was the shooter. However, both witnesses gave statements to the police on the day of the offenses wherein they identified the juvenile that substantially matched the testimony they later gave to the prosecutor. They also corroborated each other's version of the events by each identifying the juvenile as the shooter. Also, the driver, CN gave a statement to the police wherein he said he saw a gun in the car after the shooting. Although he recanted that statement at the hearing, his police statement was consistent with the statements by the two witnesses who in their earlier police statements identified the juvenile as a shooter. Additionally, several of the circumstances surrounding the statements were corroborated independently at the hearing: (1) There was undisputed testimony that the juvenile DW and the male suspect JF were at the scene; (2) Eyewitness CB testified at the hearing that before the shooting, he observed the two victims talking to the defendant and another person. (3) Eyewitness CB testified that he saw "two dudes just shooting." (4) Driver CN testified that after he dropped off the juvenile DW and the other male after the shooting, he was told that he "didn't see nothing." That statement suggests guilty knowledge.
The evidence as a whole, viewed in the light most favorable to the prosecution, was sufficient to support DWs adjudications. Determining the weight of the police statements and resolving credibility disputes was within the exclusive province of the trier of fact.
Accordingly, while I agree with the writer to affirm, I respectfully concur in the result.
JOHNSON, J., Dissents with Reasons.Page 1
I, respectfully, dissent from the majority opinion. After review of the overall evidence (admissible and inadmissible), I find that there was evidence sufficient for the adjudications of attempted first degree murder. However, I find the consideration of inadmissible evidence requires a new trial. See State v. Hearold, 603 So.2d 731, 737 (La. 1992). To be more specific, the reliance of the trial court on the prior inconsistent statements as substantive evidence of D.W.'s guilt requires a new trial.
Assuming a proper foundation is laid, the credibility of any witness may be attacked by extrinsic evidence, including prior inconsistent statements. See LSA-C.E. art. 607(D)(2). Admission of the evidence, which bears solely on the issue of credibility, turns on a judicial determination that the probative value of the extrinsic evidence is not substantially outweighed by undue consumption of time, confusion, or unfair prejudice. Id.; State v. Cousin, 96-2673, pp. 12-13 (La.4/14/98); 710 So.2d 1065, 1071. When a non-party witness's credibility is attacked through prior inconsistent statements incriminating the accused, the evidence is generally not admissible for its assertive value as substantive evidence of guilt. Cousin, 96-2673 at 8-9, 710 So.2d at 1069. An exception to this general rule exists for cases in which the witness's prior inconsistent statement also constitutes a prior statement of identification for purposes of LSA-C.E. art. 801(D)(1)(c), Louisiana's counterpart of Fed.R.Evid. 801(d)(1)(C). State v. Johnson, 99-3462, p. 2 (La.11/3/00); 774 So.2d 79, 80.
LSA-C.E. art. 801 D(1)(c) provides: D. Statements which are not hearsay. A statement is not hearsay if:
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:
(c) One of identification of a person made after perceiving the person[.]
In State v. Hester, 99-426 (La.App. 5 Cir. 9/28/99); 746 So.2d 95, writ denied, 99-3217 (La.4/20/00), 760 So.2d 342, Hester complained that the trial court erred in allowing the detective to testify over defense objection to Ms. Mack's initial description of the perpetrators, when said testimony added more details than were included in the victim's own testimony. Id., 99-426 at 18, 746 So.2d at 108. This Court found that the detective's testimony was hearsay to the extent it was not cumulative of Ms. Mack's own testimony. This Court found that this testimony did not fall under LSA-C.E. art. 801(D)(1)(c) because Ms. Mack gave the descriptions to the detective before she made the photographic identifications, and they had nothing to do with an identification procedure. Id., 99-426 at 18-19, 746 So.2d at 108. This Court further found that, although the trial court erred in allowing the testimony at issue, such error was harmless because Ms. Mack positively identified both defendants in photographic lineups, as well as in court. Id., 99-426 at 19, 746 So.2d at 108.
In United States v. Kaquatosh, 242 F.Supp.2d 562'(E.D.Wis. 2003), the government moved in limine for an order that law enforcement officers be permitted to testify as to identifications made by two witnesses. The government indicated that officers would testify as to statements made by Freeman and Waupoose who both told officers that they observed defendant hit the victim with a piece of wood. Id. at 562-63. Neither Freeman nor Waupoose observed defendant in a lineup, show-up, or photo array and then identified him. Rather, they simply advised officers that they observed defendant hit the victim. Id. at 563. The appellate court found that statements such as these were not identifications, and that pre-trial identifications occurred when a witness viewed a defendant in a lineup, show-up, or photo array, or at a preliminary hearing. Id. at 566. It further found that pre-trial identifications did not include statements unaccompanied by recognition of the defendant or his likeness. Id. The appellate court denied the government's motion because the statements at issue were not "identifications" under Rule 801(d)(1)(c), and because the government expected the witnesses to testify, such that the testimony of the officers would be cumulative and could mislead the jury. Id. at 562, 565, 567.
In the instant case, the State argues that the testimony concerning prior inconsistent statements of C.B. and other witnesses was not hearsay and could be used as substantive evidence of D.W.'s guilt under the amended version of LSA-C.E. art. 801(D)(1)(a). However, defendant contends that under LSA-C.E. art. 607(D), the statements were still hearsay and could not be used as substantive evidence of his guilt. In any event, the State argues that under the current version of LSA-C.E. art. 801(D)(1)(a), the statements were not hearsay, and thus, they were admissible not only to impeach, but also as substantive proof of the offense.
LSA-C.E. art. 607 provides, in pertinent part:
Art. 607. Attacking and supporting credibility generally
A. Who may attack credibility. The credibility of a witness may be attacked by any party, including the party calling him.
* * * * *
D. Attacking credibility extrinsically. Except as otherwise provided by legislation:
(1) Extrinsic evidence to show a witness' bias, interest, corruption, or defect of capacity is admissible to attack the credibility of the witness.
(2) Other extrinsic evidence, including prior inconsistent statements and evidence contradicting the witness' testimony, is admissible when offered solely to attack the credibility of a witness unless the court determines that the probative value of the evidence on the issue of credibility is substantially outweighed by the risks of undue consumption of time, confusion of the issues, or unfair prejudice.
If the witness has had a fair opportunity "to admit the fact and has failed distinctly to do so," extrinsic evidence of a prior inconsistent statement is admissible, not to prove the truth of the matter asserted, that is, not for its hearsay content, but to establish the fact of contradiction as a means of impeaching a witness' general credibility. State v. McGee, 07-130, p. 7 (La.App. 5 Cir. 6/26/07); 963 So.2d 449, 453, citing, State v. Owunta, 99-1569 (La.5/26/00); 761 So.2d 528, 529 (per curiam). However, if the witness admits the statement, he has impeached himself by his own testimony and thus, the prior inconsistent statement is inadmissible. State v. McGee, supra.
In the instant case, the State questioned B.J. and C.B. regarding their prior statements. At trial, B.J. testified that he did not see D.W. shoot the victims. However, B.J. admitted at trial that he made the statement to the detective that D.W. had a gun and that he saw D.W. shoot at somebody. Since the State had already accomplished the impeachment of the witness through his trial testimony, the written document of B.J.'s prior inconsistent statement was unnecessary to impeach the witness' credibility under Article 607(D). See State v. McGee, supra; State v. Harper, 07-0299, p. 13 (La.App. 1 Cir. 9/5/07); 970 So.2d 592, 601, writ denied, 07-1921 (La.2/15/08); 976 So.2d 173. However, C.B. denied at trial that he made the statement to the detective that he saw D.W. shooting the gun. Therefore, the written document of C.B.'s prior inconsistent statement was admissible to impeach the witness' credibility under Article 607(D). State v. McGee, supra; State v. Harper, supra.
Additionally, C.B. and B.J. both said in their prior statements that D.W. shot at the victims. They recognized D.W. because they all attended the same school. The prior inconsistent statements should not have been given substantive effect because they did not constitute prior statements of identification under LSA-C.E. art. 801(D)(1)(c), since the statements were not taken in connection with formal identification procedures. Hester, supra; United States v. Kaquatosh, supra. B.J. and C.B. did not identify D.W. from a photographic lineup; rather, they both told the detectives that D.W. was one of the shooters, and that they knew D.W. from school.
D.W. was not identified in the photographic lineups because Detective Hunt did not have a photograph of D.W. at the time.
Prior to its revision by 2004 La. Acts No. 694, § 1, Article 801(D)(1)(a) provided that a prior statement by a witness is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is inconsistent with his testimony, and was given under oath subject to the penalty of perjury at the accused's preliminary examination or the accused's prior trial and the witness was subject to cross-examination by the accused. State v. Harper, 07-0299 at 13, 970 So.2d at 601.
Following the 2004 revision, LSA-C.E. art. 801(D)(1)(a) now provides that a prior statement by a witness is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is, in a criminal case, inconsistent with his testimony, provided that the proponent has first fairly directed the witness's attention to the statement and the witness has been given the opportunity to admit the fact and where there exists any additional evidence to corroborate the matter asserted by the prior inconsistent statement. [Emphasis added]. State v. Harper, 07-0299 at 13, 970 So.2d at 601.
In State v. Rankin, 42,412 (La.App. 2 Cir. 9/19/07); 965 So.2d 946, writ denied, 07-2067 (La.3/7/08); 977 So.2d 897, defendant, who was convicted of second degree battery, inflicted physical injuries upon the victim, his girlfriend. The victim gave statements in which she told the police that defendant inflicted her injuries; however, at trial, the victim recanted her prior accounts of the incident. State v. Rankin, 42,412 at 2-4, 965 So.2d at 947-49. The Second Circuit stated that, before the prior statements could be accepted as non-hearsay, and therefore probative, additional evidence must also corroborate the facts sought to be proved by these prior inconsistent statements. Id., 42,412 at 8, 965 So.2d at 951.
As mentioned in the majority opinion, the central issue is whether D.W. shot one or both of the victims. The prior inconsistent statements of the witnesses state that D.W. did so. However, before prior inconsistent statements can be accepted as non-hearsay, and therefore probative, additional evidence must also corroborate the "matter asserted" or the "facts sought to be proved" by these prior inconsistent statements. LSA-C.E. art. 801(D)(1)(a); State v. Rankin, supra.
There was no additional evidence introduced at trial to corroborate that D.W. shot at one or both of the victims and, therefore, the statements were inadmissible under Article 801(D)(1)(a). Rankin is distinguishable from the instant case because there was other testimony at trial in Rankin to support the convictions, even though witnesses recanted their prior statements. In other words, there was additional other evidence to corroborate the matter asserted by the prior statements. LSA-C.E. art. 801(D)(1)(a). In Rankin, although the victim recanted her prior statement incriminating the defendant, the victim did testify at one point during trial that defendant hit her in the head, and she had to go to the emergency room as a result of the head injury.
Although a statement may constitute inadmissible hearsay, if the statement is merely cumulative or corroborative of other evidence, the admission of the evidence is harmless error. State v. Galliano, 05-962, p. 37 (La.App. 5 Cir. 8/29/06); 945 So.2d 701, 726, writ denied, 06-2367 (La.4/27/07); 955 So.2d 682. The inquiry is whether the guilty verdict actually rendered in the trial was surely unattributable to the error. State v. Galliano, 05-962 at 37-38, 945 So.2d at 726, citing, State v. Maise, 00-1158 (La.1/15/02); 805 So.2d 1141, 1148.
The admissions of the statements in this case were not harmless because they were the only evidence submitted that D.W. shot, at least, one of the victims, and that evidence was not merely cumulative or corroborative of other evidence. State v. Galliano, supra. A review of the trial judge's reasons for judgment shows that she clearly considered the statements as substantive evidence of D.W.'s guilt. As such, I find that the verdict rendered in this case was surely attributable to the error and a reversal and remand for a new trial is mandated.
See State v. Davis, 05-987 (La.App. 5 Cir. 5/9/06); 930 So.2d 1099. In that case, this Court stated that it could not conclude beyond a reasonable doubt that the erroneously admitted evidence could not have affected the jury's verdict or that the verdict was surely.