State v. Osbourne ( 2016 )

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STATE OF CONNECTICUT v. ANTOINE OSBOURNE
(AC 36182)
Prescott, Mullins and West, Js.
Argued September 8, 2015—officially released January 12, 2016
(Appeal from Superior Court, judicial district of
Hartford, Vitale, J.)
Jon L. Schoenhorn, with whom, on the brief, was
Alexandra T. Gaudio, legal intern, for the appellant
(defendant).
Rocco A. Chiarenza, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and Anthony Bochicchio, senior assistant state’s
attorney, for the appellee (state).
Opinion
WEST, J. The defendant, Antoine Osbourne, appeals
from the judgment of conviction, rendered after a jury
trial, of assault in the first degree in violation of General
Statutes § 53a-59 (a) (5). On appeal, the defendant
claims that the trial court improperly admitted into
evidence (1) photographs of the crime scene and of the
victim’s clothing, and (2) a hearsay statement of the
victim. We affirm the judgment of the trial court.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts.
On October 5, 2011, at approximately 1 a.m., Huon How-
ard, the owner of the International Cafe´ in Hartford,
Glen Spyke, and employee, and six to eight others,
including Richard Coombs, were standing in the rear
parking lot of the cafe´ as the cafe´ was preparing to
close. Howard, Spyke, and Coombs observed the defen-
dant and two other men enter the rear lot through
the back gate. The victim, Durie ‘‘Duey’’ Hemans, was
standing alone in the rear patio area. Howard and Spyke
witnessed the defendant approach the victim and
engage him in a verbal argument, which they attempted
to deescalate.1
Subsequent to the argument, the defendant shot the
victim in the leg. Initially thereafter, the victim was still,
but upon realizing he had been shot, he attempted to
move inside the cafe´. As the victim tried walking into
the cafe´, the defendant shot him two additional times.
The victim then proceeded to enter the cafe´ and make
his way into the women’s restroom. The victim eventu-
ally was assisted by others into a vehicle and driven to
the hospital. While at the hospital, the victim gave a
statement to the police regarding the shooting. On the
basis of their investigation, the police arrested and
charged the defendant.
The jury found the defendant guilty of assault in the
first degree. Prior to sentencing, the defendant filed
postverdict motions for judgment of acquittal and a
new trial, reiterating certain objections made during
the trial, which the court denied. The court rendered
judgment in accordance with the verdict and sentenced
the defendant to fifteen years of incarceration, followed
by five years of special parole. This appeal followed.
Additional facts will be set forth as necessary.
I
The defendant first claims that the court improperly
admitted photographs of blood found at the crime scene
and of the victim’s blood soaked clothing, arguing that
the photographs were immaterial and prejudicial. Spe-
cifically, the defendant contends that (A) the photo-
graphs were not relevant because he was not contesting
that the victim was shot or where the victim went after
the shooting, and (B) the limited probative value of the
photographs was outweighed by their prejudicial effect
because the photographs improperly inflamed the emo-
tions of the jury.
The following additional facts are relevant to our
disposition of the defendant’s claim. During the state’s
case-in-chief, the prosecutor offered into evidence a
photograph that depicted blood trails leading to the
back door of the cafe´. The defendant objected to the
admission of the photograph, and the court excused
the jury. Outside of the presence of the jury, Valentine
Olabisi, an officer with the Hartford Police Department,
identified four additional photographs depicting,
respectively, a pool of blood near the front door of the
cafe´, a blood trail leading toward the bathroom, another
blood trail inside the cafe´, and a pool of blood in the
bathroom.
The defendant argued that the only purpose for admit-
ting these photographs would be to inflame the jury,
appeal to its emotions, and create a sense of sympathy
for the victim, thus prejudicing the defendant. Further-
more, the defendant contended that such prejudicial
effect outweighed any probative value of the photo-
graphs and that the fact that the victim was shot was
not a contested matter. He argued that if the court was
inclined to admit some of the photographs, admitting
all of them was redundant. The state argued that the
photographs were corroborative of the testimony of its
later witnesses regarding where the victim was shot
and who shot him, and also supported an inference that
the shooter intended to shoot the victim. Moreover, the
state indicated that all of the jurors had been advised,
during jury selection, that this was a case involving a
shooting and that it would be logical for the jurors to
expect that they would see photographs containing
blood.
The court examined the photographs at issue and
found that none of the photographs was inflammatory
or needlessly gruesome, and that the photographs were
relevant to the extent and painfulness of the alleged
victim’s injuries. The court then concluded that the
photographs had a logical tendency to aid the jury in
determining the material facts in issue and that the
photographs were more probative than prejudicial. Fol-
lowing the admission of the photographs into evidence,
the court gave the jury a limiting instruction in which
it stated, in part, ‘‘[y]ou must not allow emotion or
sympathy to play a role in your decision and you must
not allow the photographs to affect you in that way.’’
Later in the trial, during the testimony of Jeremy Ball,
a detective with the Hartford Police Department, the
defendant objected to the state’s attempted admission
of photographs of the victim’s blood soaked clothing
and of clothing that depicted the location of the bullet
holes. The court conducted another hearing outside of
the jury’s presence. During the hearing, Ball identified
the photographs as depicting the victim’s underpants,
an apparent bullet hole in the victim’s underpants, and
the front and rear of the victim’s jeans. The defendant
asserted that the photographs were upsetting and gory,
depicted copious amounts of blood, and were both
inflammatory and immaterial to any disputed issue. The
state argued that it was required to prove the element
of a physical injury and that the photographs were pro-
bative of both the victim’s actual injuries and of the
defendant’s intent to inflict physical injury.
Ultimately, the court did not ‘‘find anything remotely
inflammatory’’ about any of the photographs. Subse-
quent to the admission of the photographs, the jury
was again instructed in accordance with the previous
limiting instruction. During the final charge to the jury,
the court reiterated that sympathy was not to play a
role in its deliberations. The court instructed the jury
to pay close attention to its instructions, which
included, in part, that the jury ‘‘must not be influenced
by any personal likes or dislikes, opinions, prejudices
or sympathy.’’ The court subsequently reiterated twice
that the jury should not allow sympathy or sentiment
to affect its verdict.
A
The defendant argues that the court improperly
admitted the photographs at issue because, at trial, he
was not contesting the fact that the victim was shot or
where he went after the shooting, only the identity
of the shooter, therefore, the photographs were not
relevant to any disputed issue in the case.
We begin our analysis by setting forth the applicable
standard of review and legal principles. ‘‘Our standard
of review for evidentiary matters allows the trial court
great leeway in deciding the admissibility of evidence.
The trial court has wide discretion in its rulings on
evidence and its rulings will be reversed only if the
court has abused its discretion or an injustice appears to
have been done. . . . The exercise of such discretion is
not to be disturbed unless it has been abused or the
error is clear and involves a misconception of the law.’’
(Internal quotation marks omitted.) Bunting v. Bun-
ting, 60 Conn. App. 665, 670, 760 A.2d 989 (2000).
‘‘[S]ound discretion has long meant a discretion that is
not exercised arbitrarily or wilfully, but with regard to
what is right and equitable under the circumstances
and the law, and directed by the reason and conscience
of the judge to a just result.’’ (Internal quotation marks
omitted.) State v. Williams, 195 Conn. 1, 8, 485 A.2d 570(1985). Additionally, ‘‘[e]very reasonable presumption
should be made in favor of the correctness of the court’s
ruling in determining whether there has been an abuse
of discretion.’’ (Internal quotation marks omitted.) State
v. Rolon, 257 Conn. 156, 173, 777 A.2d 604 (2001).
We note that ‘‘[e]vidence is relevant if it has any
tendency to make the existence of any fact that is mate-
rial to the determination of the proceeding more proba-
ble or less probable than it would be without the
evidence. . . . Relevant evidence is evidence that has
a logical tendency to aid the trier in the determination
of an issue. . . . One fact is relevant to another if in
the common course of events the existence of one,
alone or with other facts, renders the existence of the
other either more certain or more probable. . . . Evi-
dence is not rendered inadmissible because it is not
conclusive. All that is required is that the evidence tend
to support a relevant fact even to a slight degree, [as]
long as it is not prejudicial . . . .’’ (Citation omitted;
internal quotation marks omitted.) State v. Bonner, 290
Conn. 468, 496–97, 964 A.2d 73 (2009). Here, the photo-
graphs were relevant because they supported the fact
that the victim suffered a physical injury within the
statutorily defined meaning of that term, and that the
defendant had the requisite intent to inflict physical
injury.
Furthermore, our Supreme Court has rejected similar
arguments that the relevance of a piece of evidence
is diminished because a defendant does not explicitly
dispute a particular element of a crime. See State v.
Johnson, 190 Conn. 541, 550, 461 A.2d 981 (1983). In
Johnson, the court ‘‘reject[ed] the defendant’s assertion
that the elements of intent and motive were not at issue
. . . because the defendant’s claim at trial was that he
was not the individual who committed the crime.’’ Id.,
550. The court in Johnson noted that ‘‘[t]he defendant
did not offer an alibi defense [and therefore] [b]y his
plea of not guilty the defendant put in issue every ele-
ment of the crime charged.’’ Id. The court in Johnson
further stated that ‘‘[t]he burden was on the state to
prove each element beyond a reasonable doubt . . .
[and] the state was entitled to introduce such legally
competent evidence.’’ (Citations omitted.) Id. Accord-
ingly, although the defendant in the present case did
not dispute that the victim had been shot, his plea of
not guilty put in issue every element of the crime
charged, and the state had the burden of proving each
element beyond a reasonable doubt. See id.
General Statutes § 53a-59 (a) provides in relevant
part: ‘‘[a] person is guilty of assault in the first degree
when . . . (5) with intent to cause physical injury to
another person, he causes such injury to such person
or to a third person by means of the discharge of a
firearm.’’ Accordingly, one of the elements that the state
was required to prove under § 53a-59 (a) (5) was that the
defendant caused physical injury to the victim. General
Statutes § 53a-3 (3) defines ‘‘physical injury’’ as ‘‘impair-
ment of physical condition or pain.’’ Here, the court
acted within its discretion in determining that the photo-
graphs depicting the victim’s blood loss at the scene of
the crime and the victim’s blood soaked clothing were
relevant to establish the ‘‘painfulness of the victim’s
injuries,’’ an issue that went to the element of whether
the state had proven a ‘‘physical injury’’ for the purpose
of § 53a-59 (a) (5) as that term has been defined by § 53a-
3 (3). Furthermore, the photographs were relevant as
to whether the defendant possessed the requisite intent
of the crime charged. State v. James, 54 Conn. App. 26,
31, 734 A.2d 1012 (‘‘[a] person’s intent may be inferred
from his conduct, as well as the surrounding circum-
stances’’), cert. denied, 251 Conn. 903, 738 A.2d 1092(1999).
The defendant also argues that because he did not
object to the introduction of hospital records detailing
the gunshot wounds of the victim, the photographs were
cumulative evidence of physical injury, and, therefore,
unnecessary and should not have been admitted. This
argument fails because ‘‘[t]here is no requirement in
this state that a potentially inflammatory photograph
be essential to the state’s case in order for it to be
admissible; rather, the test for determining the admissi-
bility of the challenged evidence is relevancy and not
necessity.’’ (Internal quotation marks omitted.) State
v. Williams, 227 Conn. 101, 111, 629 A.2d 402 (1993).
Although the state was able to offer the victim’s hospital
records, it was not precluded from introducing the pho-
tographs into evidence. See id., 111–12. (‘‘[t]he prosecu-
tion, with its burden of establishing guilt beyond a
reasonable doubt, is not to be denied the right to prove
every essential element of the crime by the most con-
vincing evidence it is able to produce’’ [internal quota-
tion marks omitted]). Therefore, we determine that the
court did not abuse its discretion in finding the photo-
graphs to be relevant.
B
Additionally, the defendant argues in support of his
claim that the photographs were improperly admitted
that they were more prejudicial than probative. Specifi-
cally, the defendant contends that the photographs
improperly inflamed the emotions of the jury.
Section 4-3 of the Connecticut Code of Evidence pro-
vides: ‘‘Relevant evidence may be excluded if its proba-
tive value is outweighed by the danger of unfair
prejudice or surprise, confusion of the issues, or mis-
leading the jury, or by considerations of undue delay,
waste of time or needless presentation of cumulative
evidence.’’ ‘‘A potentially inflammatory photograph may
be admitted if the court, in its discretion, determines
that the probative value of the photograph outweighs
the prejudicial effect it might have on the jury.’’ State
v. Williams, supra, 227 Conn. 111. We note that ‘‘[t]he
principles governing the admission of potentially
inflammatory photographic evidence are clear. . . .
[W]e adhere to the general rule that photographs which
have a reasonable tendency to prove or disprove a mate-
rial fact in issue or shed some light upon some material
inquiry are not rendered inadmissible simply because
they may be characterized as gruesome. . . . When,
however, an initial determination is made by the trial
court that such photographs may have the tendency to
prejudice or inflame the jury, the admissibility of such
evidence is dependent upon the trial court’s determina-
tion as to whether their value as evidence outweighs
their possible prejudicial effect. . . . Since the trial
court exercises its broad discretion in such circum-
stances, its determination will not be disturbed on
appeal unless a clear abuse of that discretion is shown.’’
(Internal quotation marks omitted.) State v. Walker, 206
Conn. 300, 314–15, 537 A.2d 1021 (1988).
Here, the court determined that the photographs
depicting the pools and trails of the victim’s blood were
not more prejudicial than probative because they could
‘‘depict the extent and painfulness of the alleged vic-
tim’s injuries’’ and demonstrated the ‘‘character, loca-
tion and course of injury to prove not only that the
victim was shot but the manner in which it had
occurred.’’ With respect to the photographs showing
the victim’s blood soaked clothing, the court found that
there was nothing inflammatory about the images.
As noted previously, the photographs were probative
not only of the element of physical injury, but also
of intent. ‘‘A person’s intent may be inferred from his
conduct, as well as the surrounding circumstances’’;
State v. James, supra, 54 Conn. App. 31; and, in the
present case, the crime charged required intent to cause
physical injury to another person be proven. See Gen-
eral Statutes § 53a-59 (a) (5). The photographs depicting
the pools of blood and the victim’s blood soaked cloth-
ing were probative of the defendant’s intent to cause
physical injury. Furthermore, the photographs at issue
in this case depicted pools and trails of blood and the
victim’s blood soaked clothing; none of the photographs
at issue depicted the victim himself. In this case, we
conclude that the court did not abuse its discretion in
determining that the probative value of the photographs
outweighed any prejudicial effect.2
Additionally, the court gave limiting instructions to
the jury prior to the introduction of both groups of
photographs by the state, and again during its final
charge, thus, further minimizing any potential of undue
prejudice. The court cautioned the jury not to allow its
decision to be influenced by any emotion or sympathy
evoked from viewing the photographs. Therefore, in this
case, although the photographs admitted into evidence
depicted blood found at the scene and the victim’s
bloody clothing, the trial court’s determination that they
were more probative than prejudicial does not consti-
tute an abuse of discretion. See State v. Epps, 105 Conn.
App. 84, 96, 936 A.2d 701 (2007), cert. denied, 286 Conn.
903, 943 A.2d 1102 (2008)
In sum, on the basis of our review of the record, the
defendant has failed to establish that the trial court
decided to admit the subject photographs so arbitrarily
as to vitiate logic, or decided to admit the photographs
based on improper or irrelevant factors; see State v.
Jacobson, 283 Conn. 618, 627, 930 A.2d 628 (2007); and,
thus, we cannot conclude that the court abused its
discretion in admitting the subject photographs.
II
Next, the defendant claims that the court improperly
admitted part of Spyke’s prior written statement that
he gave to the police. Specifically, he argues that the
court improperly admitted ‘‘the key portion dealing with
whether the defendant and Hemans were involved in
an argument before the shooting’’ because it was not
inconsistent with Spyke’s testimony at trial.3 The defen-
dant further argues that ‘‘whether or not Spyke heard
what he perceived to be an argument is wholly discon-
nected from any observations about a gun,’’ and that
‘‘the hearsay regarding the argument did not even follow
sequentially in the document so as to suggest the need
for context or ‘completeness.’ ’’ This argument, how-
ever, reveals that the defendant misconstrues the
court’s ruling in admitting portions of the written
statement.
The following additional facts are relevant to our
disposition of the defendant’s claim. During the trial,
on direct examination by the state, Spyke testified as
to what he observed and heard outside of the cafe´ on
October 5, 2011. Spyke testified that he saw the victim
outside the cafe´ and heard ‘‘a little shouting’’ or ‘‘[a]
little argument’’ between the victim and the defendant,
but that he did not hear what was said. The state ques-
tioned Spyke regarding what he observed relating to
the shooting, and Spyke testified that after the argument
he heard a ‘‘pop’’ sound. Spyke further testified that he
saw the defendant with his hand up, but that he did
not see him with a gun. When the state questioned him
about whether he recalled telling the police that he saw
a gun in the defendant’s hand, Spyke maintained that
he did not see a gun, but merely assumed that the
defendant had a gun based upon the positioning of his
hand. Spyke also denied that he told the police that the
gun was a dark color. The state claimed that Spyke was
testifying inconsistently with his sworn police state-
ment, and attempted to offer the entire written state-
ment as a prior inconsistent statement under Whelan
for substantive purposes. See State v. Whelan, 200 Conn.
743, 752–54, 513 A.2d 86, cert. denied, 479 U.S. 994, 107
S. Ct. 597, 93 L. Ed. 2d 598 (1986). Spyke testified,
however: ‘‘I’m saying the same thing I’m telling, that’s
what’s in the statement.’’ Defense counsel objected to
the admissibility of the statement in its entirety, claim-
ing that only the portions of the statement that Spyke
was being questioned about were admissible. The court
held a hearing outside the jury’s presence during which
the state argued that it was a short, two page statement,
it did not mention any prior bad acts or prejudicial
material, and the entire statement placed the events
into context. The court then stated that only certain
portions of the statement should be admitted.
The state then provided a redacted copy of Spyke’s
statement for admission under Whelan. The redacted
written statement provided in relevant part: ‘‘[The
defendant] said something like ‘[w]hat’s going on’ to
Dewy.4 Dewy said something like ‘I will check you later.’
Or something like that. [The defendant] and Dewy were
shouting at each other at that point so I am not sure
what else they were saying. . . . [The defendant] had
his right hand down by his right leg and then all of a
sudden he tilted his hand up and I saw that [the defen-
dant] was holding a gun in his right hand. The gun was
dark colored. I then saw [the defendant] pick up his
right hand with the gun and pointed it toward Dewy.
[The defendant] then shot Dewy. I heard about three
shots.’’5
The court noted that the first paragraph offered by
the state contained the statement: ‘‘[The defendant] said
something like ‘[w]hat’s going on’ to Dewy. Dewy said
something like ‘I will check you later,’ ’’ and that this
statement should be admitted. The defendant objected
on the grounds that this portion of the statement was
consistent with Spyke’s testimony. The state argued
that it was inconsistent because Spyke had testified
that he could not hear what the defendant and the
victim had been saying to one another. The court ruled
that this portion was inconsistent with Spyke’s testi-
mony and noted that the defendant could cross-examine
Spyke on the scope of the inconsistency. Accordingly,
the statement was admitted as substantive evidence
pursuant to Whelan.
The court also admitted the next two sentences
immediately following, which read, ‘‘[o]r something like
that. [The defendant] and Dewy were shouting at each
other at that point so I am not sure what else they were
saying.’’ The court admitted these sentences in order
to place the first portion of the statement into context
pursuant to State v. Arthur S., 109 Conn. App. 135, 141,
950 A.2d 615 (holding consistent portions of statements
that trial court admitted were necessary to place incon-
sistent statements into context), cert. denied, 289 Conn.
925, 958 A.2d 153 (2008).
In the state’s closing argument, the prosecutor argued
that the proof of an argument between the defendant
and the victim was probative of the element of intent,
and that, although motive did not need to be proven,
the jury could find that evidence of such an argument
provided a motive. Defense counsel, in her closing argu-
ment, reminded the jury that there was no consistent
testimony regarding any alleged argument between the
defendant and the victim. In the state’s rebuttal, the
prosecutor argued that the redacted copy of Spyke’s
statement to police was proof that an argument
occurred between the defendant and the victim.
‘‘As a threshold matter, we set forth the standard
by which we review the trial court’s determinations
concerning the exclusion of evidence.’’ State v. Billie,
250 Conn. 172, 180, 738 A.2d 586 (1999). ‘‘[T]he admissi-
bility of evidence, including the admissibility of a prior
inconsistent statement pursuant to Whelan, is a matter
within the . . . discretion of the trial court. . . . [T]he
trial court’s decision will be reversed only where abuse
of discretion is manifest or where an injustice appears
to have been done. . . . On review by this court, there-
fore, every reasonable presumption should be given in
favor of the trial court’s ruling.’’ (Internal quotation
marks omitted.) State v. Simpson, 286 Conn. 634, 643,
945 A.2d 449 (2008).
‘‘It is well settled that, [a]n out-of-court statement
offered to prove the truth of the matter asserted is
hearsay and is generally inadmissible unless an excep-
tion to the general rule applies. . . . In State v. Whelan,
supra, 200 Conn. 743, however, [our Supreme Court]
adopted a hearsay exception allowing the substantive
use of 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. This rule has also been codified
in § 8-5 (1) of the Connecticut Code of Evidence, which
incorporates all of the developments and clarifications
of the Whelan rule that have occurred since Whelan was
decided.’’ (Citation omitted; internal quotation marks
omitted.) State v. Simpson, supra, 286 Conn. 641–42.
Our review of the court’s admission of evidence ‘‘is
limited to the questions of whether the trial court cor-
rectly applied the law and reasonably could have
reached the conclusion that it did.’’ State v. Billie, supra,
250 Conn. 180. ‘‘This standard does not vary for the
court’s determination of whether two statements are
inconsistent. . . . Whether there are inconsistencies
between the two statements is properly a matter for
the trial court. . . . In determining whether an incon-
sistency exists, the testimony of a witness as a whole,
or the whole impression or effect of what has been
said, must be examined.’’ (Citation omitted; internal
quotation marks omitted.) State v. Prutting, 40 Conn.
App. 151, 157, 669 A.2d 1228, cert. denied, 236 Conn.
922, 974 A.2d 1328 (1996).
The defendant appears to argue that the first portion
of Spyke’s written statement to the police, which the
court admitted into evidence as a Whelan statement,
was not inconsistent with his testimony at trial. The
court admitted the portion of Spyke’s written statement
providing, ‘‘[the defendant] said something like ‘[w]hat’s
going on’ to Dewy. Dewy said something like ‘I will
check you later,’ ’’ as a Whelan statement. The court
based this decision on the fact that when Spyke was
questioned at trial about whether he heard what the
defendant and Dewy were arguing about, he testified,
‘‘[n]o, I couldn’t get the words.’’ Therefore, it was within
the court’s discretion to determine that the first portion
of Spyke’s written statement was inconsistent with his
testimony at trial. We conclude that the court did not
abuse its discretion in admitting the first portion of the
written statement as a Whelan statement.
The defendant also appears to be contending that the
court admitted both portions of the statement regarding
the argument in order to provide context for the portion
describing the defendant raising a gun. The basis for
the court’s decision to admit the second portion of
the statement regarding the argument, however, was
to provide context for the first portion of the statement,
which the court admitted under Whelan as a prior incon-
sistent statement, as discussed previously. In order to
place that inconsistency in context, the court admitted
the second portion of Spyke’s prior written statement
regarding the argument, namely that, ‘‘[the defendant]
and Dewy were shouting at each other at that point so
I am not sure what else they were saying.’’ Although
the court did admit the portion of the written statement
regarding the gun as a prior inconsistent statement pur-
suant to Whelan, that was unrelated to the admission
of the portions regarding the argument.
‘‘In general, the court should seek to avoid admitting
evidence that is likely to confuse or mislead the jury.
. . . The principle of affording the fact finder the
proper context in which to consider statements is codi-
fied in Connecticut Code of Evidence § 1-5 (a), which
provides that ‘[w]hen a statement is introduced by a
party, the court may, and upon request shall, require
the proponent at that time to introduce any other part
of the statement, whether or not otherwise admissible,
that the court determines, considering the context of
the first part of the statement, ought in fairness to be
considered contemporaneously with it.’ This type of
determination is largely dependent on the unique cir-
cumstances in each case and, as with evidentiary issues
in general, is best left to the sound discretion of the
trial court.’’ (Citation omitted.) State v. Arthur S., supra,
109 Conn. App. 140. Here, after admitting the first por-
tion of the statement regarding the argument as a prior
inconsistent statement, the court determined that the
second portion was necessary to provide context for
the first.
In this case, the court thoughtfully and carefully
reviewed, line by line, the entire statement that the
state sought to introduce as an exhibit. The court heard
argument from both sides as to whether each line in
question should be admitted. The court then admitted
a redacted version of the statement, including both con-
sistent and inconsistent portions of the statement. It
explained its reasoning in admitting the consistent por-
tion in terms of establishing context for one of the
inconsistent portions. See id., 141 (holding that trial
court exercised sound discretion when it took similar
precautions). Given the court’s careful consideration
of the statements at issue, the defendant has failed to
establish that the court decided to admit the consistent
portion of the statement regarding the argument so
arbitrarily as to vitiate logic, or decided to admit the
consistent portion based on improper or irrelevant fac-
tors; see State v. Jacobson, supra, 283 Conn. 627; and,
thus, we cannot conclude that the court abused its
discretion in admitting the statement. In sum, the trial
court did not abuse its discretion in admitting the first
portion of the written statement as a prior inconsistent
statement under Whelan and the second portion as a
consistent statement to provide context to the first.
Accordingly, the defendant’s claims fail.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The victim, however, denied involvement in any argument, maintained
that he was minding his own business, and described the encounter as a
‘‘discussion’’ and an ‘‘exchange of words.’’
2
See, e.g., State v. Haskins, 188 Conn. 432, 452–53, 450 A.2d 828 (1982)
(holding trial court did not abuse discretion in admitting six color photo-
graphs of assault victim’s injuries by finding photographs were probative
of ‘‘character, location and course of the shotgun pellets or bullets’’); State
v. Schaffer, 168 Conn. 309, 312–313, 362 A.2d 893 (1975) (holding trial court
did not abuse discretion in admitting black and white photograph depicting
body of murder victim by finding it was probative of relationship of body
to road and to illustrate conditions described in testimony of witnesses);
State v. Marshall, 166 Conn. 593, 602, 353 A.2d 756 (1974) (holding trial
court did not abuse discretion in admitting several additional photographs
of murder victim’s body and pool of blood next to deceased even when
defendant claimed photographs were superfluous, and where only difference
between additional photographs and other photographs already admitted
was that additional photographs depicted victim’s eyeglasses and boots not
shown in previously admitted photographs); State v. Williams, 137 Conn.
App. 250, 257, 47 A.3d 914 (where charge was evading responsibility for
motor vehicle accident, held that trial court properly admitted color photo-
graph of victim’s body that depicted victim ‘‘lying on the roadway, with his
head split open and blood and brain matter protruding from his cranium’’),
cert. denied, 307 Conn. 921, 54 A.3d 182 (2012); State v. Howard, 88 Conn.
App. 404, 427–28, 870 A.2d 8 (holding that court did not abuse discretion
in admitting sixteen autopsy photographs of murder victims), cert. denied,
275 Conn. 917, 883 A.2d 1250 (2005).
3
The defendant does not specifically identify the language of the written
statement that he classifies as the ‘‘key portion’’ of the statement.
4
Although the victim’s nickname is spelled ‘‘Duey’’ in the trial transcript,
his nickname was spelled ‘‘Dewy’’ in Spyke’s statement to police.
5
The court admitted the last five sentences of the redacted written state-
ment quoted herein on the basis that they were inconsistent with Spyke’s
testimony at trial that he did not observe the defendant holding a gun. The
admission of this portion, however, is not at issue in this appeal.