Opinion
(6390) (6391)
The defendants, who had been convicted of the crimes of attempted robbery in the first degree and aiding an assault in the first degree, appealed to this court following the trial court's in camera inspection, made pursuant to a previous order of this court, of transcripts from the separate trial of an alleged coparticipant who had been acquitted. This court had ordered the inspection upon determining, on an earlier appeal by the defendants, that the trial court had erred in refusing to conduct such an inspection to determine whether certain witnesses at that trial had made material statements that were inconsistent with testimony given by those witnesses at the defendants' trial sufficient to have affected its outcome. Held that the trial court did not err in determining that the transcript contained no such statements.
Argued June 15, 1988
Decision released September 13, 1988
Substitute information charging each defendant with the crimes of attempted robbery in the first degree and aiding an assault in the first degree, brought to the Superior Court in the judicial district of Fairfield, where the cases were consolidated and tried to the jury before Ford, J.; verdicts and judgments of guilty, from which the defendants appealed to this court, which set aside the judgments and remanded the case for a new trial; thereafter, this court, on its own motion, ordered reargument; on reargument, this court reinstated the judgments of guilty and remanded the matter for further proceedings; pursuant to that remand, the trial court, Ford, J., made an in camera inspection of certain testimony from another trial and found no material inconsistencies sufficient to have affected the outcome of the trial of either of the defendants, and the defendants appealed to this court. No error.
Leopold P. DeFusco, special public defender, for the appellant (defendant in the first case).
James M. Connolly, special public defender, for the appellant (defendant in the second case).
Richard F. Jacobson, assistant state's attorney, with whom, on the brief, were Donald A. Browne, state's attorney, and Henry J. Lyons III and Gary W. Nicholson, assistant state's attorneys, for the appellee (state).
The defendants in this combined appeal were tried together and convicted of the crimes of attempted robbery in the first degree in violation of General Statutes 53a-134 (a)(2), and aiding in an assault in the first degree in violation of General Statutes 53a-59 (a)(3). Prior to the defendants' trial, a codefendant, Herbert Johnson, was tried separately and acquitted of the same charges. In a prior appeal to this court, the defendants claimed error in the trial court's failure to order the state to produce the transcripts of testimony of the state's witnesses given in Johnson's trial after those same witnesses testified in the trial of the defendants herein. We held that the trial court had erred in refusing to conduct an in camera examination to determine if the transcript in the trial of Herbert Johnson contained material inconsistent statements of witnesses who were also witnesses in the trial of Bush and Douglas sufficient to have affected the outcome of their trial. We remanded the case with instructions for the trial court to conduct an in camera inspection to determine whether the Johnson transcript contained such material prior inconsistent statements. See State v. Douglas, 10 Conn. App. 103, 522 A.2d 302 (1987), and State v. Douglas, 13 Conn. App. 685, 539 A.2d 155 (1988).
Upon remand, the trial court found that the transcript in the Johnson trial contained no material inconsistent statements of witnesses who were also witnesses in the trial of the defendants Bush and Douglas sufficient to have affected the outcome of the trials of either or both of the defendants. The sole issue presented in this appeal is whether the trial court erred in so concluding. We find no error.
We have conducted a thorough review and comparison of the testimony in each trial which the defendants claim is materially inconsistent. The comparison of a witness' testimony in two trials is a precarious procedure because each trial is not an exact duplicate of the other featuring precisely the same questions and, therefore, there is bound to be a certain degree of inconsistency in the answers. Although our review of the transcripts reveals that certain testimony is indeed inconsistent, we conclude that the inconsistencies are not material to the proof of the crimes with which the defendants were charged and convicted. Furthermore, many of the variances are of a trivial nature and lack any relevance to the elements of the crimes with which the defendants were charged.
We conclude that the trial court did not err in finding that the Johnson transcripts did not contain material prior inconsistent statements of witnesses sufficient to have affected the outcome of the trial of the defendants Bush and Douglas.