Voicemail Admissibility: Absent Applicable Exception or Exemption, Content of Voicemail Is Hearsay

State v. Acampora, 2017 Conn. App. LEXIS 357 (Conn. Ct. App. Sept. 5, 2017):

The defendant, Joseph C. Acampora, Jr., appeals from the judgment of conviction, rendered after a jury trial, of one count of assault of a disabled person in the third degree in violation of General Statutes § 53a-61a and one count of disorderly conduct in violation of General Statutes § 53a-182 (a) (1). The defendant was found not guilty of interfering with an emergency call in violation of General Statutes § 53a-183b. The defendant represented himself at trial. On appeal, the defendant claims that the trial court (1) violated his right to counsel under the sixth and fourteenth amendments to the United States constitution when it permitted him to represent himself without obtaining a valid waiver of his right to counsel and (2) violated his right to present a defense, as guaranteed by the sixth and fourteenth amendments to the United States constitution, when it denied his motion to open the evidence. 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. The defendant and the victim, Anthony Toth, are brothers. The victim has cerebral palsy. In August, 2011, they shared an apartment in a multifamily house with their mother. At approximately 11:40 a.m. on August 3, 2011, the defendant entered the victim's bedroom and grabbed him. [*6]  The defendant accused the victim's friend of putting a hole in the windshield of his van when they were setting off fireworks the night before. The defendant slapped and punched the victim in the face and head, and dragged him about the apartment. When the victim grabbed his phone, the defendant took it from him and threw it, causing the battery to fall out. Thereafter, the defendant called the Wallingford Police Department to report that his van had been vandalized, and the victim called the police to report the assault after he located and replaced his phone's battery.

At approximately noon that same day, Officer James Onofrio was dispatched to the defendant and the victim's residence in response to the defendant's vehicle vandalism complaint. When Onofrio arrived, he met with the defendant outside and examined the defendant's damaged windshield. The defendant explained that he believed that the victim's friend had damaged the windshield with a firework the night before, but he admitted that he had no proof of who caused the damage. While talking to the defendant, police dispatch informed Onofrio of the victim's assault complaint. The defendant informed Onofrio that he needed to leave [*7]  to go to a doctor, and Onofrio obliged because he did not know, at that time, that the defendant was the subject of the assault complaint.

Onofrio met the victim in his apartment. The victim had a cut on his nose and blood on his nose, neck, and arm, and he explained to Onofrio that the defendant had assaulted him earlier that day because he believed that the victim's friend damaged his van's windshield. Consistent with the victim's complaint, a neighbor informed Onofrio that approximately fifteen minutes before he had arrived in response to the defendant's vehicle vandalism complaint, she had heard the defendant yelling and "loud banging and a lot of commotion" coming from the defendant and victim's apartment.

Thereafter, the defendant was charged with assault of a disabled person in the third degree, disorderly conduct, and interfering with an emergency call. After a jury trial, at which the defendant represented himself, the defendant was found guilty of assault of a disabled person in the third degree and disorderly conduct. The defendant was found not guilty of interfering with an emergency call. The court sentenced the defendant to a total effective sentence of one year of imprisonment. [*8]  This appeal followed.

***

II

The defendant's final claim is that the trial court, Klatt, J., abused its discretion and violated his right to present a defense when it denied his motion to open the evidence so that he could present the testimony of the battalion chief of the local fire department. In particular, the defendant contends that the denial of his motion to open violated his right to present a defense because the battalion chief was "an objective third party witness who would have been able to directly attack the credibility of the [victim] on a key point," i.e., whether an ambulance was dispatched to his and the victim's residence on August 3, 2011. The defendant seeks Golding review6 of this unpreserved federal constitutional claim. The state argues that the court properly exercised its discretion when denying the defendant's motion to open the [*35]  evidence and did not violate the defendant's right to present a defense because this evidence was inadmissible and related to a collateral issue at trial. We conclude that, although the defendant's claim is reviewable under the first and second prongs of Golding, the defendant has failed to prove that a constitutional violation exists and deprived him of a fair trial, as required by the third prong of Golding.

6   "Under Golding, a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . . . exists and . . . deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail." (Internal quotation marks omitted.) State v. Dixon, 318 Conn. 495, 511, 122 A.3d 542 (2015); see In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015) (modifying Golding's third condition). "The first two steps in the Golding analysis address the reviewability of the claim, while the last two steps involve the merits of the claim." (Internal quotation marks omitted.) State v. Britton, 283 Conn. 598, 615, 929 A.2d 312 (2007). "The appellate tribunal is free, therefore, to respond to the defendant's claim by focusing on whichever condition is most relevant in the particular circumstances." (Internal quotation marks omitted.) State v. Dixon, supra, 511.

The following additional facts are relevant to this claim. On Thursday, July 16, 2015, trial commenced. The state presented the testimony of Onofrio and the victim. Onofrio testified, inter alia, that the victim had visible injuries to his face when he met with him and that the victim identified the defendant as his assailant. Through Onofrio, the state admitted into evidence photographs Onofrio took of the victim on August 3, 2011, which showed a bloody cut on the victim's nose and blood on his face, neck, and arm.

The victim testified that on August 3, 2011, the defendant accused the victim's friend of damaging the windshield of the defendant's van with a firework and demanded to know the name of the victim's friend. The victim explained that during the course [*36]  of their altercation, the defendant injured him and threw his phone while he was attempting to call 911. While discussing the sequence of events with the victim on cross-examination, the following exchange occurred:

"[The Defendant]: Did you ask them--when the police arrived, did you ask for medical attention?

"[The Victim]: Yes.

"[The Defendant]: And you received an ambulance at the scene?

"[The Victim]: An ambulance came, yes.

"[The Defendant]: An ambulance came? Okay. I don't know. That wasn't in the [police] report.

"[The Prosecutor]: Objection.

"The Court: Strike that comment.

"[The Defendant]: I'm sorry.

"The Court: Question only, sir." (Emphasis added.)

During his case-in-chief, the defendant first presented the testimony of his and the victim's mother, Karen Toth. Karen Toth testified that she was living with the defendant and the victim in August, 2011. She stated that on the morning of August 3, 2011, and prior to the altercation between the defendant and the victim, she noticed that the victim had a lot of bruising and scrapes on his face. Karen Toth explained that, over the years, the victim frequently fell because of his cerebral palsy and related seizures. After Karen Toth's testimony, [*37]  the defendant testified, inter alia, that although he confronted the victim about whether he damaged the van's windshield, he never hit the victim and never took the victim's phone.

When the defendant completed his testimony, the court asked him whether he intended to call any additional witnesses, and the defendant began explaining a clerical issue he had with his subpoenas. The court interrupted the defendant and asked whether he would be calling any additional witnesses that day, and he stated that he would not. Thereafter, the jury was excused and the court discussed with the defendant the issue he had with his subpoenas. After that discussion, the court asked the defendant whether he in fact intended to call any other defense witnesses. The defendant stated that he did not. The court asked the state whether it intended to call any rebuttal witnesses, and the state indicated that it did not. The court then stated: "So, we'll conclude the evidence," and the defendant agreed.

On Tuesday, July 21, 2015, trial resumed. When the court began to review the proposed jury charge with the defendant and the state, the court-appointed standby counsel for the defendant interjected that he would [*38]  "like to bring something to the court's attention. When I spoke to [the defendant] this morning, he indicated that he wanted to [open the] evidence because he had new evidence to put on." The defendant explained that he wanted to present evidence to contradict the victim's testimony that "he saw an ambulance and that he had medical attention at the scene." The court then engaged in the following colloquy with the defendant:

"The Court: How do you intend to? You have a witness here?

"[The Defendant]: Yes. Yes. Well, on Friday [July 17, 2015], I, you know--I was able to--I talked to [the] Wallingford Fire Department. Was that okay, or no? And they said, okay, that there's no record that they, [that] there was an ambulance service sent there on August 3, 2011.

"The Court: Okay. But did you subpoena anyone to come to testify?

"[The Defendant]: I just had their voice recording on my voice mail.

"The Court: All right. Here's--

"[The Defendant]: Would you like to hear it?

"The Court: No.

"[The Defendant]: It's from a chief battalion.

"The Court: All right. Can't--

"[The Defendant]: I think it would be great for an appeal.

"The Court: All right. All right. . . .

"The Court: But in terms of an additional witness, [*39]  who would you call?

"[The Defendant]: The witness is, I have my voice--I have a voice mail from chief battalion of the Wallingford. I mean, this is serious business.

"The Court: All right.

"[The Defendant]: This is my life. . . .

"The Court: But the situation is, the matter was put--the matter's four years old.

"[The Defendant]: Mm-hmm. Yeah.

"The Court: You had ample time--

"[The Defendant]: Yeah, four years of my life.

"The Court: --to subpoena the witness. This is not information that was unknown to you. You were given the opportunity to investigate and subpoena the witnesses at [the] time of trial.

"[The Defendant]: Yes.

"The Court: So, your motion to [open] the evidence is denied."

The defendant continued to argue that he only had "one day" to research this issue because he did not know that the victim asked for or received medical treatment until he testified that an ambulance came to his residence on August 3, 2011. The court acknowledged the defendant's arguments, but it stated that it was still denying the defendant's motion to open the evidence because it believed that the defendant had an adequate opportunity and sufficient resources to obtain this evidence earlier.

"The sixth amendment right to compulsory [*40]  process includes the right to offer the testimony of witnesses, and to compel their attendance, if necessary, [and] is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so that it may decide where the truth lies." (Internal quotation marks omitted.) State v. Cerreta, 260 Conn. 251, 260-61, 796 A.2d 1176 (2002). Nevertheless, the decision to open the evidence either to present omitted evidence or to add further testimony after either party has rested is within the sound discretion of the trial court. State v. Carter, 228 Conn. 412, 420, 636 A.2d 821 (1994); State v. Rodriguez, 151 Conn. App. 120, 124, 93 A.3d 1186 (2014). In order for a trial court's denial of a motion to open the evidence to constitute a sixth amendment violation, the defendant must show that the evidence was of such importance to the achievement of a just result that the need for admitting it overrides the presumption favoring enforcement of our usual trial procedures. State v. Carter, supra, 421. That is, "[i]f the motion to [open] is denied, we must, in determining whether the trial court has abused its discretion, look to see if an injustice has occurred by the omission of the evidence." (Internal quotation marks omitted.) Id. "Every reasonable presumption should be made in favor of the correctness of the court's ruling in determining whether [*41]  there has been an abuse of discretion." (Internal quotation marks omitted.) State v. Leconte, 320 Conn. 500, 511, 131 A.3d 1132 (2016).

"In order to determine whether the trial court acted reasonably in denying the defendant's request to open his case, we must first determine whether [the disputed evidence] would have been admissible had the defendant sought to introduce that evidence during the presentation of his case." State v. Carter, supra, 228 Conn. 422. "The constitutional right to present a defense does not compel the admission of any and all evidence offered in support thereof. . . . The trial court retains the discretion to rule on the admissibility, under the traditional rules of evidence, regarding the defense offered." (Citations omitted; internal quotation marks omitted.) State v. DeJesus, 260 Conn. 466, 481, 797 A.2d 1101 (2002). We conclude that the court did not violate the defendant's right to present a defense because the evidence that the defendant sought to admit would not have been admissible in his case-in-chief.

As an initial matter, we observe that the defendant argues for the first time on appeal that the evidence he sought to present was the testimony of the battalion chief. (Emphasis added.) At trial, the defendant represented that the evidence he sought to admit was the voice mail message from the battalion [*42]  chief. The voice mail message constitutes inadmissible hearsay; Conn. Code Evid. §§ 8-1 and 8-2; and the defendant has not identified an exception to the rule against hearsay that would have permitted its admission into evidence. Even if we were, for the sake of argument, to interpret the defendant's statements about the voice mail as a request by the defendant to open the evidence so that he could call the battalion chief as a witness, we would still conclude that this evidence was inadmissible.

"A witness may be impeached by the introduction of contradictory evidence of other witnesses as long as the evidence is in fact contradictory . . . and that evidence does not relate to collateral matters . . . ." (Citation omitted.) State v. Jose G., 290 Conn. 331, 344, 963 A.2d 42 (2009). It is well settled, however, that a court may properly exclude evidence that has only slight relevance due to its tendency to inject a collateral issue into the trial. State v. Annulli, 309 Conn. 482, 493, 71 A.3d 530 (2013). A matter is collateral if it is "not directly relevant and material to the merits of the case." (Internal quotation marks omitted.) State v. Jose G., supra, 344. Stated another way, the extrinsic evidence must be "relevant to a material issue in the case apart from its tendency to contradict the witness" to be considered noncollateral and admissible. [*43]  (Emphasis in original; internal quotation marks omitted.) State v. Annulli, supra, 493; State v. West, 274 Conn. 605, 641, 877 A.2d 787, cert. denied, 546 U.S. 1049, 126 S. Ct. 775, 163 L. Ed. 2d 601 (2005); see also State v. Dougherty, 123 Conn. App. 872, 877, 3 A.3d 208 ("[e]vidence is material where it is offered to prove a fact directly in issue or a fact probative of a matter in issue"), cert. denied, 299 Conn. 901, 10 A.3d 521 (2010); State v. Maner, 147 Conn. App. 761, 768, 83 A.3d 1182 ("materiality turns upon what is at issue in the case, which generally will be determined by the pleadings and the applicable substantive law" [emphasis in original; internal quotation marks omitted]), cert. denied, 311 Conn. 935, 88 A.3d 550 (2014). "This is so even when the evidence involves untruthfulness and could be used to impeach a witness' credibility." State v. Annulli, supra, 493. Consequently, if the witness' answer to a question on cross-examination relates to a collateral issue in the trial, that testimony is conclusive and cannot be later contradicted through extrinsic evidence. State v. Jose G., supra, 344.

In the present case, testimony about whether an ambulance was dispatched to the victim's residence on August 3, 2011, related to a collateral matter and therefore was inadmissible. Although the question of whether an ambulance was dispatched to the victim might be relevant to the question of whether the victim was in fact injured, that was not a material issue in the present case because the defendant did not dispute at trial that the victim [*44]  was injured. Instead, the defendant disputed the timing and source of the victim's injury. In particular, he argued that the victim's face was injured prior to their altercation and that he was not therefore the cause of that injury. As a result, the only value in this evidence at trial was its tendency to contradict the victim's testimony that an ambulance was dispatched to his residence on August 3, 2011, and, thereby, presumably to impeach his credibility. Indeed, the defendant has consistently and exclusively argued before this court and the trial court that this evidence should have been admitted so that he could contradict the victim's testimony about the ambulance. Under our rules of evidence, this type of impeachment on a collateral matter through extrinsic evidence is not permitted. Accordingly, the defendant has failed to prove that a constitutional violation exists and deprived him of a fair trial as required by the third prong of Golding.

The judgment is affirmed.

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