STATE OF CONNECTICUT v. JORDAN HINTON, SC 20881

Judicial District of Fairfield

Criminal; Whether Evidence Was Sufficient to Support Defendant's Conviction of Felony Murder; Whether Trial Court Improperly Admitted Witness' Statement under State v. Whelan Where Witness Repeatedly Claimed a Lack of Memory About the Events in Question and Refused to Substantively Answer Questions on the Stand; Whether Trial Court's Instructions on Felony Murder Were Proper. The defendant, with a gun in his hand, followed an individual named Omar Rivera (Rivera) into a barbershop in Bridgeport, and a scuffle ensued between the defendant and one of the barbers, Deon Rodney (victim). The defendant and victim tumbled out of the barbershop onto the sidewalk. As they were tussling on the ground, Mark Christian (Christian), an acquaintance of the defendant, shot and killed the victim. Subsequently, Rivera provided two videotaped statements to the police identifying and implicating the defendant in attempting to rob him. The defendant was subsequently charged, inter alia, with felony murder and attempted first-degree robbery. At trial, the state called Rivera to testify. When questioned by the state, however, Rivera claimed a total lack of memory of the events surrounding the shooting, including the location where it occurred. He also stated that he could not remember giving a statement to the police. During cross-examination, Rivera testified, inter alia, that he did not remember anything about the night of the shooting. Thereafter, upon the state's motion, the trial court admitted into evidence Rivera's videotaped statements under State v. Whelan, 200 Conn. 743 (1986), which established a hearsay exception that allows the substantive use of a prior inconsistent statement when the declarant testifies at trial and is subject to cross-examination. After the trial, the jury found the defendant guilty of felony murder and attempted first-degree robbery. The defendant now appeals directly to the Supreme Court pursuant to General Statutes § 51-199 (b) (3). According to the defendant, under the felony murder statute, General Statutes § 53a-54c, a defendant can only be held vicariously liable for a murder committed by another if he commits a predicate crime such as attempted robbery and one of the other participants to that crime murders a nonparticipant in the course of and in furtherance of such crime. The defendant claims that there was insufficient evidence to support his conviction of felony murder because there was no evidence (1) that Christian was a participant in the underlying crime of attempted robbery and (2) that Christian shot the victim in the course of and in furtherance of a robbery attempt. In connection therewith, the defendant also claims that Rivera's uncorroborated hearsay statements were insufficient by themselves to prove the predicate crime of attempted robbery. In addition, the defendant claims, for the first time on appeal, that the trial court erred in admitting Rivera's videotaped statements under Whelan. He argues that the trial court's admission of Rivera's statements violated his state and federal constitutional rights to confrontation because Rivera's alleged lack of memory and refusal to answer any questions about the crime or his prior out-of-court statements rendered him functionally unavailable for cross-examination. Finally, the defendant claims that the trial court's instruction on felony murder failed to instruct the jury regarding the state's burden to prove that Christian was a participant in the underlying charged felony of attempted robbery and, thus, violated his due process right to a fair trial.