Improper Admission of Statement - Lack of Personal Knowledge of the Facts
The defendant appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the second degree in violation of General Statutes 53a-71.
The defendant's first evidentiary claim is that the court improperly allowed the written statement of the victim's friend into evidence for substantive use under State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), because the declarant lacked personal knowledge of the facts contained in the statement. We disagree.
The following additional facts are necessary to our resolution of this claim. the victim's friend gave a written statement to the police in which she stated that shortly after leaving the motel on the night of the incident, the victim said that she had been raped.
During the trial, the friend was called as a witness by the state and testified that the victim told her that she had been raped "but she did not mind."
The state then introduced into evidence the written statement as a prior inconsistent statement because it did not contain any mention of the victim saying that she did not mind having been raped.
The defendant claims that this statement was admitted as a Whelan statement and that its admission was improper because the declarant lacked personal knowledge of the facts relayed in the statement.
The state responds that this claim should be rejected because the statement was admitted only for impeachment purposes.
Prior inconsistent statements may be introduced either to impeach a witness; State v. Otto, 50 Conn. App. 1, 8, 717 A.2d 775, cert. denied, 247 Conn. 927, 719 A.2d 1171 (1998); or for substantive use where the statement is in writing, the witness is subject to cross-examination and has personal knowledge of the facts stated. State v. Whelan, supra, 200 Conn. 743.
"Absent a limiting instruction, evidence presented at trial is taken for its truth." State v. Correia, 33 Conn. App. 457, 462, 636 A.2d 860, cert. denied, 229 Conn. 911, 642 A.2d 1208, cert. denied, 513 U.S. 898, 115 S. Ct. 253, 130 L. Ed. 2d 174 (1994).
A review of the record reveals that there is no indication that the written statement was admitted for substantive purposes.
The prosecutor offered the statement only as an inconsistent statement to impeach the testimony of the witness, and the court stated that all prior out-of-court statements made by the victim were to be considered only in determining the credibility of the victim. In addition, the court instructed the jury that the out-of-court statement was not to be considered to prove the truth of the matter asserted in the statement. 1
1 the court instructed the jury: "The state also offered evidence of out-of-court statements made by the complainant to other persons that the defendant sexually assaulted her. Those persons to whom she made such statements to are her mother and then girlfriend . . . . Each of these people testified as to the statements the complainant made to each of them regarding the defendant sexually assaulting her. This evidence by each of these witnesses is admitted solely to corroborate or not corroborate her . . . testimony in court, to be considered by you only in determining the weight and credibility you will accord her testimony given here in this court. This evidence of out-of-court statements by her of the sexual assault against her by the defendant is not to be considered by you to prove the matter, the truth of the matter asserted in those out-of-court statements."
The defendant argues that the court never instructed the jury that the statement of the victim's friend had been admitted for impeachment purposes only.
The defendant cites State v. Correia, supra, 33 Conn. App. 462, for the proposition that without such an instruction, the jury was free to accept the statement as substantive evidence.
In Correia, the victim's prior inconsistent statement was heard by the jury, and the court gave absolutely no limiting instruction on its use. Id. We concluded, therefore, that "absent a limiting instruction, evidence presented at trial must be taken for its truth." Id.
In the present case, however, the court did give a limiting instruction to the jury on the statement, namely, that the statement was to be considered only to gauge the credibility of the victim and not for the truth of the matter asserted.
Although the court did not give a specific instruction that the statement was to be used only to impeach the testimony of the victim's friend, the court did give a limiting instruction on the use of all the victim's prior statements, and the defendant can point to no evidence that the friend's written statement was admitted for the truth of the matter it asserted. Accordingly, we conclude that the court did not abuse its discretion in admitting into evidence the prior inconsistent statement of the victim's friend.
Moreover, the difference between the testimony that the victim "did not mind" the rape and the prior statement, which contained no comment to that effect, went to the issue of force. Because the defendant was acquitted of the charge of sexual assault in the first degree, the issue of force was resolved in his favor, and he cannot claim that he was harmed by the admission of the prior inconsistent statement.