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upholding jury finding that gunshot wound to leg was "serious physical injury"
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(9360)
Convicted of the crimes of burglary in the first degree, assault in the first degree and unlawful restraint in the first degree, the defendant appealed to this court. The charges arose out of an incident in which three armed men forced their way into an apartment and shot one of the occupants, R, after locking the other occupants, including R's sister, C, in a bathroom. At trial, C testified that several months after the incident she had had a conversation with the defendant in which she accused him of being involved in her brother's shooting. Held: 1. The defendant could not prevail on his claim that the trial court should not have instructed the jury on the principles of accessory liability in its charge on assault in the first degree; the defendant was given adequate notice that the state would seek an instruction on accessorial liability and there was substantial evidence presented at trial to support the giving of such an instruction. 2. The trial court did not abuse its discretion in admitting the testimony of C as evidence of an admission by silence and in instructing the jury that the defendant's failure to respond to an accusatory statement could be considered an admission of guilt, it was reasonable for that court to have concluded that the statement by C was accusatory in nature, and that the defendant heard, understood and comprehended C's statement. 3. The defendant could not prevail on his claim that the state failed to prove that R had suffered serious physical injury within the meaning of the statutes ( 53a-59[a][1] and 53a-3) applicable to assault in the first degree. 4. The defendant's challenge to the trial court's admission of a written statement of a witness for substantive purposes was unavailing; there was sufficient information in the record to support a finding that the witness had personal knowledge of the facts contained in that statement. 5. The trial court properly instructed the jury that the defendant could be found guilty as a principal in the assault, sufficient evidence having been presented to support such an instruction.
Argued December 5, 1991
Decision released February 18, 1992
Substitute information charging the defendant with four counts of the crime of unlawful restraint in the first degree and with the crimes of burglary in the first degree and assault in the first degree, brought to the Superior Court in the judicial district of Fairfield and tried to the jury before S. Freedman, J; verdict and judgment of guilty, from which the defendant appealed to this court. Affirmed.
Robert G. Golger, with whom, on the brief, was Howard T. Owens, Jr., for the appellant (defendant).
Richard F. Jacobson, assistant state's attorney, with whom, on the brief, were Donald A. Browne, state's attorney, and Robert A. Lacobelle, assistant state's attorney, for the appellee (state).
The defendant, Manuel Estrada, appeals from his conviction of burglary in the first degree in violation of General Statutes 53a-101(a)(1), assault in the first degree in violation of General Statutes 53a-59(a)(1), and four counts of unlawful restraint in the first degree in violation of General Statutes 53a-95(a). He received a total effective sentence of twenty years incarceration. On appeal, the defendant raises five claims. He contends that the trial court improperly (1) instructed the jury on the principles of accessory liability in its charge on assault in the first degree, (2) admitted the testimony of a state's witness as evidence of an "admission by silence" and instructed the jury that the defendant's failure to respond to an accusatory statement could be considered an admission of guilt, (3) denied his motion for judgment of acquittal as to the count of assault in the first degree because the state failed to prove that the victim sustained serious physical injury, (4) admitted into evidence a written statement of a witness that was not based on personal information for substantive purposes 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), and (5) instructed the jury that the defendant could be found guilty as a principal in the assault although the state presented no evidence to substantiate such an instruction. We affirm the judgment of the trial court.
The jury could reasonably have found the following facts. On the night of January 22, 1988, there was a knock on the door of the second floor apartment at 466 Kossuth Street in Bridgeport. Rose Roman Crawley opened the door and was grabbed and forced back into the apartment by a short black male, one of three men standing outside the door. The three armed men, two black and one Hispanic, entered the apartment in search of individuals they referred to as "Junior," "Felipe" and "Macho." In the apartment at that time were John Roman, his sisters Maria Roman, Rose Roman Crawley and Carmen Maldonado, his mother Marina Roman, and a friend of one of his sisters, Carmen Orellano. Immediately upon entering the apartment, the shorter black male locked all of the women in the bathroom. The three men then searched the apartment. After an unsuccessful search, they returned to the kitchen. The shorter black male turned out the light. At the time the lights were turned out, the short black male was standing approximately ten feet to John Roman's left, the tall black male was standing about five feet to his right and the defendant was standing in the middle of the room, twelve feet in front of him. About four seconds later, John Roman was shot twice, once in each leg. Before falling, he saw flashes from a gun being fired from the center of the room, where the defendant was standing. The three assailants then ran out of the apartment.
The women broke out of the bathroom and found John Roman sitting in a pool of blood on the floor in the kitchen. He was taken to Bridgeport Hospital and was treated for the gunshot wounds. He remained in the hospital overnight, experienced pain, was required to use crutches for over two months and was permanently scarred by the bullet wounds
I
The defendant first argues that the trial court should not have instructed the jury on the principles of accessory liability in its charge on assault in the first degree, thus impermissibly broadening the theory of liability beyond the allegations of the pleadings. Specifically, on the basis of State v. Steve, 208 Conn. 38, 544 A.2d 1179 (1988), the defendant claims that because he was charged in the amended information as a principal to the crime of assault in the first degree, he could not be an accessory to that crime. Thus, he claims that the trial court improperly instructed the jury. We disagree.
The defendant is not arguing that the instruction erroneously defined accessorial liability. His only claim is that the instruction, as it relates to the crime of assault in the first degree, should not have been given at all. He does not challenge the applicability of the trial court's instruction on accessory liability as it applies to any of the remaining charges.
There is no practical significance in being labeled an "accessory" or a "principal" for the purpose of determining criminal responsibility. See General Statutes (1875 Rev.) tit. XX, c. XIII, part X; State v. Gargano, 99 Conn. 103, 109, 121 A. 657 (1923); State v. Hamlin, 47 Conn. 95, 118 (1879). The modern approach wholly abandons the common law terminology and provides that a person is legally accountable for the conduct of another when he is an accomplice of the other person in the commission of the crime. See W. LaFave A. Scott, Criminal Law (1972) 63, p. 501; see also Model Penal Code (1985) 2.06, comment 6. Connecticut has taken the same approach through General Statutes 53a-8. See State v. Baker, 195 Conn. 598, 608, 489 A.2d 1041 (1985); State v. Raffone, 161 Conn. 117, 128, 285 A.2d 323 (1971). It is well established in this state that there is no such crime as "being an accessory." State v. Foster, 202 Conn. 520, 528, 522 A.2d 277 (1987). Rather, the accessory statute, General Statutes 53a-8, merely provides an alternative under which criminal liability for the underlying substantive crime may be proved. State v. Harris, 198 Conn. 158, 163, 502 A.2d 880 (1985). The law in this state clearly holds that the fact that the defendant was not formally charged as an accessory does not preclude his being so convicted. State v. Crump, 201 Conn. 489, 493, 518 A.2d 378 (1986); State v. Johns, 184 Conn. 369, 373-74 n. 7, 439 A.2d 1049 (1981); State v. Greene, 11 Conn. App. 575, 583-84, 528 A.2d 855 (1987). "`"[A] defendant may be convicted as an accessory even though he was charged only as a principal as long as the evidence presented at trial is sufficient to establish accessorial liability." State v. Fleming, 198 Conn. 255, 268 n. 15, 502 A.2d 886, cert. denied, 465 U.S. 1143, 106 S.Ct. 1797, 90 L.Ed.2d 342 (1986).'" State v. Rice, 25 Conn. App. 646, 649, 595 A.2d 947 (1991), quoting State v. Hopkins, 25 Conn. App. 565, 568-69, 595 A.2d 911 (1991).
[General Statutes] Sec. 53a-8. CRIMINAL LIABILITY FOR ACTS OF ANOTHER. A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender "
To establish the guilt of an accused as an accessory for aiding and abetting the criminal act of another, the state must prove criminality of intent and community of unlawful purpose. State v. McCalpine, 190 Conn. 822, 832, 463 A.2d 545 (1983); State v. Teart, 170 Conn. 332, 336, 365 A.2d 1200 (1976). The mental state of an aider and abettor incorporated in General Statutes 53a-8 does not require that the accused know of or endorse every act of his coparticipant in crime. Parham v. Manson, 500 F. Sup. 551, 558 (D. Conn. 1980); see State v. Parham, 174 Conn. 500, 506-508, 391 A.2d 148 (1978)
On appeal, the defendant contends that the trial court improperly instructed the jury on the theory of accessory liability because, like the defendant in State v. Steve, supra, he premised his whole defense on the belief that he was being charged solely as a principal and not as an accessory and that he did not have notice that the state would request an instruction on accessory liability. We disagree and conclude that this case is more analogous to State v. Hopkins, supra, where this court upheld the defendant's conviction as an accessory, than to State v. Steve, supra.
"In State v. Steve, supra, 40, the state had alleged in both its substitute information and its bill of particulars that the defendant was being prosecuted as a principal. In addition, the state orally affirmed, pursuant to the defendant's request, that the defendant was the principal with regard to the charges. Id., 41-42. Only after the state had finished presenting evidence in its case-in-chief did the defendant himself testify that another person had actually committed the crime. On appeal, this court concluded, and the Supreme Court affirmed, that the trial court improperly charged the jury on accessorial liability. In reaching this conclusion, the Supreme Court determined that the court's instruction was improper because it was not in substantial conformity with either the allegations in the bill of particulars or the evidence in the state's case-in-chief . . . .' Id., 46." State v. Hopkins, supra, 568.
In State v. Hopkins, supra, the defendant, who was charged as a principal, withdrew his request for a bill of particulars regarding the original information and did not submit a request for a bill of particulars after the state filed its substitute information. Moreover, the defendant was in possession of information that should have alerted him to the increased possibility that he could be convicted as an accessory. Specifically, the defendant heard the victim testify that the defendant held him while the defendant's companion attacked him. Additionally, the defendant obtained, through pretrial discovery, a copy of the police incident report that indicated that the defendant was not the individual who inflicted the wounds on the victim. Id., 569-70.
This withdrawal was without prejudice.
Here, the state initially charged the defendant as an accessory to the crime of assault in the first degree and alleged that the defendant "intentionally aided one Timothy Dobson, while the latter, with intent to cause serious physical injury to one John Roman, did cause serious physical injury to the said John Roman . . . in violation of Section 53a-59(a)(1) and Section 53a-8 of the Connecticut General Statutes." The state filed an amended information, in response to the defendant's motion for a bill of particulars, in which it charged the defendant as a principal with the crime of assault in the first degree and alleged that the defendant "with intent to cause serious physical injury to one John Roman, did cause serious physical injury to said John Roman . . . in violation of Section 53a-59(a)(1) of the Connecticut General Statutes." In its charge to the jury, the trial court instructed on accessory liability.
"The function of a bill of particulars under Connecticut practice is to enable the defendant to obtain a more precise statement of the offense charged in the information in order to prepare a defense." State v. Stepney, 191 Conn. 233, 240, 464 A.2d 758 (1983), cert. denied. 465 U.S. 1084, 104 S.Ct. 1455, 79 L.Ed.2d 772 (1984).
Although the defendant failed to take exception to the charge at trial, we will review this claim on appeal. State v. Golding. 213 Conn. 233, 567 A.2d 823 (1989); State v. Steve, 208 Conn. 38, 40, 544 A.2d 1179 (1988).
At the hearing on the motion for the bill of particulars the state explained, on three occasions, that it was alleging that the defendant was the principal, but that it was anticipating testimony in support of an accessory theory of liability, and thus would request an instruction on accessorial liability if such evidence did in fact materialize at trial. The prosecutor based this claim of anticipated accessorial liability testimony on the fact that such testimony had been adduced at the trial of Timothy Dobson, one of the other individuals previously tried in connection with John Roman's shooting.
The state first explained that it was "alleging that [the defendant] was the shooter in that the shots were fired from the direction from where the witness observed the defendant standing." The prosecutor continued, "[n]ow there would also be testimony that the lights were off, so the state would also be submitting that on an accessory theory should the jury believe that he was an accomplice and aider and abettor to one of the others." The prosecutor also stated that "under the circumstances, depending on how the evidence comes out, the jury may reasonably believe that he was an aider and abettor if they don't believe he was the shooter. So the state is also going to be requesting that instruction again should the facts indicate that there is some question about whether he is the shooter or not." Finally, the state commented, "I am indicating orally what, just so there is no question about it, that the state's position is he is a principal, and the facts are going, as I believe they are going to come out, would suggest that even an aiding and abetting charge may be appropriate."
We conclude that the evidence adduced through the victim's testimony did in fact support the trial court instruction on accessorial liability. The victim testified that, at the time he was shot, he was alone in the kitchen with the three assailants. He further testified that the shorter black man turned off the lights, that about four seconds later he was shot twice, once in each leg, and that it was the tall "black dude" who shot him with an Uzi. This testimony reasonably supports the conclusion that the defendant was not the principal, but rather an aider or abettor. Thus, not only was the defendant given adequate notice that the state would be seeking an instruction on accessory liability, there was substantial evidence presented at trial in support of the theory that the defendant was an accessory to assault in the first degree. The trial court's instruction on accessory liability as it relates to the charge of assault in the first degree was proper.
II
The defendant next contends that the trial court improperly admitted the testimony of a state's witness as evidence of an admission by silence and instructed the jury that the defendant's failure to respond to an accusatory statement could be considered as an admission of guilt. We disagree.
The following facts are relevant to this claim. During its case-in-chief, the state called Rose Roman Crawley as a witness. Crawley testified that in the summer of 1988 she encountered the defendant in Rite-Aid Pharmacy in downtown Bridgeport, and that she initiated a conversation with him. She further testified that she told him that the incident involving her brother's shooting was "messed up," in response to which he replied that he did not shoot her brother. Crawley then accused the defendant of being there when her brother was shot. He made no response. The state offered this conversation and the defendant's failure to respond to Crawley's accusation as an admission by silence.
The state then asked the witness what the defendant had said to her during this encounter. Defense counsel objected, arguing that there had been no disclosure of any statement that was claimed to have been made by the defendant. The trial court overruled the objection, stating that there was no rule of practice requiring that a defendant's statement to civilians be disclosed, and instructed the witness to answer the question.
The following colloquy occurred: "Q. Didn't you just indicate to the court that you had a conversation with [the defendant] concerning the shooting of your brother? "A. Yeah. But I spoke to him first. "Q. What did you say? "A. I told him that this was messed up, what happened to my brother. "Q. What did he say? "A. He said he didn't shoot him. "Q. And then what did you tell him? What did you say to him after he said to you he didn't shoot your brother? "A. That you were there. "Q. And what did he respond? "A. He didn't say anything. "Q. He didn't say anything to that did he? [Pause] "Q. Did he? "A. No."
The state submitted a request to charge that sought, inter alia, an instruction on silence as an admission of guilt. The defendant objected on the ground that there was insufficient evidence to substantiate such a charge. He argued that there was no evidence presented that the defendant actually heard what was said and that he may have been walking by the witness at the time she addressed him. The trial court concluded that because this was a "back and forth conversation," the exchange indicated that it was within the defendant's earshot and that the defendant "wasn't walking by in a pharmacy." The court overruled the defendant's objection.
On appeal, the defendant argues that there was no information provided that would demonstrate that the defendant either heard or understood Crawley's statement that he was present when the victim was shot. Alternatively, the defendant argues that even if he had heard and comprehended the statement, the statement was not accusatory in nature. Specifically, the defendant claims that it did not accuse him of aiding or abetting or soliciting others to shoot John Roman but rather accused him of no more than being present at the scene of a crime.
"The rule in Connecticut is that when a statement, accusatory in nature, made in the presence and hearing of an accused, is not denied or explained by him, it may be received into evidence as an admission on his part. State v. Leecan, 198 Conn. 517, 522, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S.Ct. 2922, 91 L.Ed.2d 550 (1986); State v. Cook, 174 Conn. 73, 76, 381 A.2d 563 (1977); State v. Yochelman, 107 Conn. 148, 152, 139 A. 632 (1927)." State v. Daniels, 18 Conn. App. 134, 138, 556 A.2d 1040 (1989); see also State v. Torrice, 20 Conn. App. 75, 90, 564 A.2d 330 (1989), cert. denied, 213 Conn. 809, 568 A.2d 794 (1990). "Evidence of silence in the prearrest setting may be used either as an admission or for impeachment purposes. State v. Leecan, supra. The theory underlying the rule is that the natural reaction of an innocent person to an untrue accusation is promptly to deny, contradict or otherwise object to it; 29 Am. Jur.2d, Evidence 633, 638; and that the failure of the person to contradict or reply is probative of his adoption of the assertion. Obermeier v. Neilsen, 158 Conn. 8, 11, 255 A.2d 819 (1969)." State v. Daniels, supra, 138-39.
Although the doctrine of admission by silence has been criticized by commentators; see C. Gamble, "The Tacit Admission Rule: Unreliable and Unconstitutional — A Doctrine Ripe for Abandonment," 14 Ga. L. Rev. 27 (1979); note, "Tacit Criminal Admissions," 112 U. Pa. L. Rev. 210 (1963); our Supreme Court has not abandoned the doctrine but has joined other states in establishing standards regulating the admissibility of evidence of a defendant's prearrest silence in the face of accusation. In Connecticut, "[t]he trial judge must decide, as a preliminary matter, whether proffered evidence of a defendant's silence in the face of accusation is, under the circumstances, sufficiently probative of assent by the defendant to the accusatory statement made in his presence. See Mei v. Alterman Transport Lines, Inc., 159 Conn. 307, 315, 268 A.2d 639 (1970); Obermeier v. Neilsen, supra. The inference of assent may be made only when no other explanation is equally consistent with silence. State v. Vitale, 197 Conn. 396, 405, 497 A.2d 956 (1985); State v. Harris, 182 Conn. 220, 229, 438 A.2d 38 (1980). Relevant considerations in determining the proper explanation for the actor's silence are whether the actor heard, understood, and comprehended the statement to which he did not respond; State v. Vitale, supra, 406; whether the circumstances naturally called for a reply from him; id; and whether there were present physical or emotional factors which render the inference of assent unreliable. State v. Harris, supra." State v. Daniels, supra, 139-40.
Initially, we note that ordinarily the trial court's rulings on the admissibility of evidence are accorded great deference and will be disturbed on appeal only upon a showing of clear abuse of discretion. Ellice v. INA Life Ins. Co. of New York, 208 Conn. 218, 222, 544 A.2d 623 (1988); State v. Erhardt, 17 Conn. App. 359, 553 A.2d 188 (1989). In reviewing the trial court's decision to admit Crawley's testimony, we, therefore, consider whether the trial court could reasonably have concluded, on the basis of the evidence before it, that the fact of the defendant's silence was sufficiently probative of assent to an accusatory statement to permit its admission into evidence as an admission by silence. See State v. Daniels, supra, 140.
The first question that must be addressed is whether Crawley's statement was sufficiently accusatory in import to call naturally for a response from the defendant. As recognized in State v. Daniels, supra, the incriminating content of a statement is to be considered in determining whether an ordinary person would deny it. See United States v. Schulman, 624 F.2d 384 (2d Cir. 1980); United States v. Flecha, 539 F.2d 874 (2d Cir. 1976). In the context of the conversation between Crawley and the defendant, it is reasonable for the trial court to have concluded that the statement "you were there" carried sufficiently accusatory implications to call for a response from the defendant. The statement expressed the declarant's belief that the defendant had been involved in her brother's shooting. Such an expression, in this context, can clearly be characterized as accusatory.
Additionally, the record reveals sufficient evidence from which the trial court could reasonably have concluded that the defendant heard, understood and comprehended Crawley's statement. Crawley testified that the conversation with the defendant occurred indoors at a pharmacy in Bridgeport, that she initiated the conversation by stating that what had happened to her brother was "messed up," and that the defendant had responded to her statement. She further testified that this comment immediately preceded her statement that the defendant was present at the time her brother was shot. The defendant's response that he did not shoot Crawley's brother supports the conclusion that he heard her comment and that he clearly and correctly understood it. We, therefore, conclude that the trial court did not abuse its discretion in admitting this testimony as an admission of guilt.
It must also be noted that the defendant does not challenge the accuracy of the trial court's instructions on admissions by silence.
III
The defendant next claims that the state failed to prove beyond a reasonable doubt that John Roman suffered a "serious physical injury" within the meaning of General Statutes 53a-59(a)(1) and 53a-3(4) when he was shot. He contends that because the state failed to prove an essential element of the crime of assault in the first degree, the trial court improperly refused to grant his motion for judgment of acquittal of that charge. The defendant argues that no evidence was introduced that would demonstrate that, as a result of the assault, the victim faced a substantial risk of death, was seriously disfigured, lost or suffered an impairment of any bodily organ or faced serious impairment to his health. He further argues that the victim's scars alone cannot sustain a conviction of assault in the first degree. We disagree.
When ruling on a defendant's motion for judgment of acquittal the trial court must first view the testimony and evidence presented at trial in the light most favorable to the state, and then determine whether any rational trier of fact could conclude, on the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence establishes guilt beyond a reasonable doubt. State v. Scielzo, 120, 190 Conn. 191, 197, 460 A.2d 951 (1983), relying on Jackson v. Virginia, 443 U.S. 307, 317-18, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
General Statutes 53a-59(a) provides in pertinent part: "A person is guilty of assault in the first degree when: (1) with intent to cause serious physical injury to another person, he causes such injury to such person or a third person by means of a deadly weapon or a dangerous instrument . . . ." Serious physical injury is defined by 53a-3(4) as "physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ." Physical injury, however, is defined as merely "impairment of physical condition or pain." General Statutes 53a-3(3).
Although it may be difficult to distinguish between serious physical injury and physical injury, such a distinction must be drawn here. A person may be found guilty of assault in the first degree under General Statutes 53a-59(a)(1) only if he causes serious physical injury to another person. See State v. Rossier, 175 Conn. 204, 207, 397 A.2d 110 (1978).
"Connecticut courts have consistently employed a two-part analysis in appellate review of the sufficiency of the evidence to sustain a criminal conviction. Whether we review the findings of the trial court or the verdict of a jury, our underlying task is the same. State v. Evans, 203 Conn. 212, 238, 523 A.2d 1306 (1987). We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. State v. Owens, 25 Conn. App. 181, 192, 594 A.2d 991 (1991). We then decide whether, on the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant's guilt beyond a reasonable doubt. State v. Famiglietti, 219 Conn. 605, 609, 595 A.2d 306 (1991); State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991), and cases cited therein." State v. Johnson, 26 Conn. App. 433, 435, A.2d (1992).
Both the federal and state constitutions guarantee that a criminal defendant may be convicted only on proof of each element of the offense beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); State v. Little, 194 Conn. 665, 671, 485 A.2d 913 (1984); State v. Smith, 194 Conn. 213, 217, 479 A.2d 814 (1984). Jurors are not permitted to resort to speculation or conjecture. State v. Morrill, 193 Conn. 602, 608, 478 A.2d 994 (1984).
Here, the state introduced copies of Roman's hospital records in support of its allegations of serious physical injury. It is undisputed that these records and the trial testimony reveal that Roman was shot twice, once in each leg, remained in the hospital for at least one night, suffered pain, was required to remain on crutches for over two months and was left with scars on both legs as a result of the gunshot wounds. The scars were shown to the jury.
The defendant's argument that because the victim has recovered full use of his legs, he has not suffered a serious physical injury is without merit. Because General Statutes 53a-3 (4) does not require that the injury sustained be permanent in nature, the fact that the victim regained full use of his legs does not preclude a finding of serious physical injury. See State v. Anderson, 16 Conn. App. 346, 357, 547 A.2d 1368. cert. denied, 209 Conn. 828, 552 A.2d 453 (1988); State v. Dickson, 10 Conn. App. 462, 466, 523 A.2d 935 (1987).
Despite the difficulty in drawing a precise line where "physical injury" leaves off and "serious physical injury" begins, we cannot say that the jury could not reasonably have found that he suffered serious physical injury. The trial court, therefore, properly denied the defendant's motion for judgment of acquittal as to the charge of assault in the first degree.
IV
The defendant next argues that the trial court improperly admitted a statement of a witness for substantive purposes when the statement contained information that was not based on the declarant's personal knowledge. The trial court admitted into evidence, over the defendant's objection, a redacted version of the signed statement of Maria Roman in which she indicated that she knew the defendant and that he was present in the apartment at the time her brother was shot. The defendant contends that because Maria Roman testified at trial that it was her sister who told her who the defendant was, her identification of the defendant in the statement was not based on personal knowledge, and thus the statement was not admissible for substantive purposes 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) We disagree.
The admission of prior written statements for substantive purposes is governed by State v. Whelan, supra, 753. State v. Grant, 221 Conn. 93, 96-103, A.2d (1992). In Whelan, the Supreme Court ruled that a written statement is admissible for substantive purposes if the following conditions have been satisfied: (1) the statement is signed by the declarant; (2) the declarant has personal knowledge of the facts contained within the statement; and (3) the declarant testifies at trial and is subject to cross-examination. State v. Whelan, supra, 753.
Here, the defendant does not challenge the first or the third requirement. It is undisputed that the statement is written and signed by the declarant. Additionally, the witness testified at trial and was subject to cross-examination about her statement to the police. The defendant asserts only that the second requirement, that the declarant has personal knowledge of the facts contained within the statement, has not been satisfied, and relies on State v. Green, 16 Conn. App. 390, 547 A.2d 916, cert. denied. 210 Conn. 802, 553 A.2d 616 (1988), for this proposition.
The specific components of the personal knowledge prong of Whelan, supra, were recently interpreted by our Supreme Court in State v. Grant. supra. The Grant court concluded that the "personal knowledge" requirement of Whelan "does not require that the declarant have witnessed the commission of the crime that is the subject of the prior inconsistent written or recorded statement." State v. Grant, supra, 99. As the Supreme Court noted in State v. Grant, supra, and this court noted in State v. Green, supra, the declarant must have personal knowledge of the facts contained within the statement sought to be introduced. In order to determine whether the declarant has the requisite personal knowledge we look to the statement itself; see State v. Grant, supra, 101-102; State v. Green, supra, 397-98; and consider whether the statement indicates that the declarant personally knew the truth of the contents of the statement. The declarant need not have personally witnessed the commission of the crime that is the subject of the prior statement in order to have personal knowledge of the facts contained within his statement. State v. Grant, supra, 99. His presence or absence at the scene of the crime is merely one factor that may be considered in determining whether the declarant has such personal knowledge.
Our review of the redacted version of the statement supports a finding that the declarant had personal knowledge of the facts underlying her statement. It is undisputed that the declarant was present at the scene of the crime and had an opportunity to observe the three assailants. In her statement to the police, Maria Roman indicated that she had known the defendant for approximately two and one-half years from the PT Barnum project where they both had lived. These statements clearly demonstrate that she had independent knowledge as to the defendant's identity. There is sufficient indicia of personal knowledge in the statement to support the trial court's conclusion that the statement satisfied the Whelan criteria. Thus, the trial court properly admitted the declarant's statement for substantive purposes.
In the redacted statement, the declarant recounted her knowledge of the defendant as follows: "Q. Who was the third suspect that came Into the apartment? "A. The Puerto Rican one. "Q. Did you ever see any of these suspects before? "A. Yes, the Puerto Rican one, Manuel. "Q. Where do you know him from? "A. We used to live in PTB and I knew him from there. "Q. How long have you known him? "A. For a good two and one-half years. "Q. Do you know where he lives? "A. He used to live in building eleven on the first floor . . . . "Q. Describe Manuel. "A. He's around five feet, five inches tall, he has pimples all over his face, real short hair, heavy set, about eighteen or nineteen years old; he was wearing blue jeans and a black hooded sweat shirt. "Q. Did he have a weapon on him? "A. Yes. It looked like a thirty-eight, black."
V
The defendant's final claim is that the state failed to introduce sufficient evidence to prove beyond a reasonable doubt that he acted as a principal in the crime of assault in the first degree. The crux of the defendant's argument is that the victim, who was the only person in the room with the three assailants at the time he was shot, testified that it was the tall "black dude" who shot him, and no other evidence was presented that the defendant was the principal offender. We disagree with the defendant.
No exception to this instruction was taken at trial. The defendant, therefore, seeks review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Because there is abundant authority that states that claims of insufficiency of the evidence fall within the ameliorative penumbra of State v. Golding, supra; see State v. Aleksiewicz, 20 Conn. App. 643, 645 n. 1, 569 A.2d 567 (1990); we review this claim.
As stated previously, there is no such crime as "being an accessory." State v. Foster, supra. Rather, the accessory statute; General Statutes 53a-8; merely provides an alternative under which criminal liability for one underlying substantive crime may be proved. See State v. Baker, supra. Where a person may have been convicted under more than one statutory alternative, the judgment cannot be supported unless the evidence was sufficient to establish guilt under each statutory provision on which the trier may have relied. Leary v. United States, 395 U.S. 6, 31-32, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969); State v. Thompson, 197 Conn. 67, 74, 495 A.2d 1054 (1985); State v. Asherman, 193 Conn. 695, 730, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 106 S.Ct. 1749, 84 L.Ed.2d 814 (1985); State v. Marino, 190 Conn. 639, 650-51, 462 A.2d 1021 (1983). "`The trial court has a duty to submit to the jury no issue upon which the evidence would not reasonably support a finding." State v. Williams, 202 Conn. 349, 364, 521 A.2d 150 (1987), quoting Batick v. Seymour, 186 Conn. 632, 641, 443 A.2d 471 (1982).
At trial, the state presented evidence that both of the bullets that struck the defendant were fired from the same weapon. The state also presented evidence indicating that the gun in the possession of the tall black male could not have been the weapon that fired the bullets that struck the defendant. Moreover, Roman testified that, at the time the lights were turned out, the short black male was standing approximately ten feet to his left, the tall black male was standing about five feet to his right and the defendant was standing in the middle of the room, twelve feet in front of him. He further testified that when he was struck he fell backwards after seeing flashes coming from the middle of the room, where the defendant was standing. On the basis of these facts, we conclude that sufficient evidence was presented from which the trial court and the jury could have reasonably concluded that the defendant acted as a principal in the assault against Roman. The trial court, therefore, properly instructed the jury that the defendant could be found guilty of assault in the first degree as a principal.