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State v. Osbourne

Appellate Court of Connecticut

January 12, 2016


         Argued September 8, 2015

Page 278

          Substitute information charging the defendant with the crime of assault in the first degree, brought to the Superior Court in the judicial district of Hartford and tried to the jury before Vitale, J.; thereafter, the court denied the defendant's motion to preclude certain evidence; verdict and judgment of guilty, from which the defendant appealed to this court.



         Convicted, after a jury trial, of the crime of assault in the first degree arising out of an incident in which the victim was shot multiple times, the defendant appealed to this court.

         Held :

         1. The defendant could not prevail on his claim that the trial court abused its discretion by admitting certain photographs of the victim's blood soaked clothing and of several blood trails at the crime scene, which he alleged were irrelevant and unduly prejudicial: the trial court properly concluded that the photographs were relevant as the state was required to prove beyond a reasonable doubt the element of physical injury, which pursuant to statute (§ 53a-3 [3]) required the state to establish the painfulness of the victim's injury, and the photographs were probative of both the victim's actual injuries and of the defendant's intent to inflict physical injury; moreover, the photographs were not inadmissible as cumulative of other evidence of the victim's injuries, as the test for determining the admissibility of challenged evidence is relevancy and not necessity; furthermore, the trial court did not abuse its discretion in determining that certain photographs depicting the victim's clothing were not inflammatory, and that other potentially inflammatory photographs depicting blood trails were admissible because they depicted not only that the victim was shot but also the manner in which the shooting had occurred, especially in light of the court's instructions cautioning the jurors not to be influenced by emotion or sympathy.

         2. The trial court did not abuse its discretion when it admitted, pursuant to State v. Whelan (200 Conn. 743, 513 A.2d 86), certain portions of a witness' prior sworn written statement to the police as substantive evidence after the witness testified inconsistently at trial that he heard the victim and the defendant arguing but not what they said, that he did not see a gun, and that he did not describe the gun to the police; that court properly determined that an inconsistency existed between the witness' trial testimony and his prior statement concerning the gun, and properly concluded that the challenged portion of the statement to the police concerning the argument was necessary to provide context for the properly admitted inconsistent portion of the statement.

         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 attorney, and Anthony Bochicchio, senior assistant state's attorney, for the appellee (state).

         Prescott, Mullins and West, Js.


Page 279

         [162 Conn.App. 366] 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 Howard, the owner of the International Caféin Hartford, Glen Spyke, and employee, and six to eight others, including Richard Coombs, were standing in the rear parking

Page 280

lot of the caféas the caféwas preparing to close. Howard, Spyke, and Coombs observed the defendant 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 café . As the victim tried walking into the café, the defendant shot him two additional times. The victim then proceeded to enter the caféand make his way into the women's restroom. The victim eventually 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 [162 Conn.App. 367] 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.


         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. Specifically, the defendant contends that (A) the photographs 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 emotions 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 café . 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 café, a blood trail leading toward the bathroom, another blood trail inside the café, and a pool of blood in the bathroom.

          [162 Conn.App. 368] The defendant argued that the only purpose for admitting 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. Furthermore, the defendant contended that such prejudicial effect outweighed any probative value of the photographs 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 ...

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