State v. Rodriguez
The 1986 Connecticut Supreme Court decision in State v. Whelan, pertaining to the admission of prior inconsistent statements, plainly states that a claim of memory loss alone can serve as the basis for a finding of inconsistency. The jury reasonably could have found the following facts. Carlos Rodriguez, 16 years old, went to Kevin Whittingham's house and demanded that Whittingham's mother, Christina Esposito, repay him $20 she allegedly owed for drugs. Esposito refused. Rodriguez drew a knife. Esposito fled. Slashing at an intervenor, Rodriguez pursued Esposito into a neighbor's home and broke through a bedroom door. Rodriguez ignored arriving police until an officer shoved Rodriguez. Rodriguez approached the officer raising the knife. The officer fell. Another officer shot Rodriguez. Following a jury trial, Rodriguez was convicted of, inter alia, two counts of attempt to commit assault in the second degree. He appealed claiming, first, that the court improperly admitted Whittingham's statement to police. The Appellate Court affirmed the judgment. Before trial, Whittingham was convicted of a felony. He testified to not remembering the incident with Rodriguez or making the statement to police. Whittingham testified that the incident "didn't happen." The trial court heard from the officer who took Whittingham's statement and admitted the statement as substantive evidence under Whelan and Connecticut Code of Evidence §8-5(1). The Appellate Court concluded that the trial court did not abuse its broad discretion in determining that Whittingham's testimony was inconsistent with his prior statement. Further, when a witness testifies to a memory loss the court is not required to make a finding that the memory loss is feigned to decide that a prior statement is inconsistent. Additionally, Whittingham's asserted memory loss did not render him functionally unavailable for cross-examination. The defendant also unsuccessfully argued that the state should have charged him for the attempted assault with "substantial step" attempt under C.G.S. §53a-49(a)(2), rather than "attendant circumstances" attempt under C.G.S.§53a-49(a)(1). Because the jury reasonably could have concluded that the evidence showed beyond a reasonable doubt that the defendant intended to cause serious physical injury to Esposito and the officer, and would have if the attendant circumstances were as he believed them to be, sufficient evidence supported the conviction under C.G.S. §53a-49(a)(1). Judge Lavine concurred, writing separately to question whether C.G.S. §53a-49(a)(1) ought to apply.