STATE v. ANTHONY THOMPSON, SC 18553

Judicial District of Hartford

 Criminal; Evidence; Hearsay; Whether Clear and Convincing Evidence Standard of Proof Applies to Claim that Murdered Witness' Statement was Admissible Under Forfeiture by Wrongdoing Rule; Whether Evidence of Witness' Murder was Properly Admitted to Show Consciousness of Guilt. The defendant was charged with murder and assault in connection with a shooting at a Hartford bar that left one man dead.  On the night of the shooting, witness Asher Glace gave a written statement to the police identifying the defendant as the shooter.  Glace was subsequently found shot to death in her driveway while the defendant was incarcerated and awaiting trial.  The state sought to have Glace's statement admitted into evidence at the defendant's trial pursuant to the "waiver by misconduct" or "forfeiture by wrongdoing" rule.  Under that rule, a defendant forfeits the constitutional right to confront a witness if the defendant has made that witness unavailable by some wrongdoing and cannot complain if the witness' out-of-court statement is admitted at trial.  Here, the state presented evidence that the defendant solicited Glace's murder, including testimony from a jailhouse informant that the defendant told him he was going to have Glace killed to prevent her from testifying against him.  The trial court admitted Glace's statement, deeming it reliable and finding that the forfeiture by wrongdoing rule applied because the state had proved by a fair preponderance of the evidence that the defendant was involved in Glace's murder.  The defendant appeals his ensuing convictions.  He claims that the trial court should have applied the "clear and convincing evidence" standard of proof—rather than the less stringent preponderance of the evidence standard—in determining whether he was complicit in Glace's murder and therefore whether her statement should be admitted under the forfeiture by wrongdoing rule.  The defendant also argues that the state's evidence was insufficient to prove, even under the preponderance of the evidence standard, that he had a hand in Glace's death.  Finally, the defendant claims that the trial court abused its discretion in admitting evidence concerning Glace's murder as tending to show his consciousness of guilt.  He contends that the prejudicial effect of that uncharged misconduct evidence far outweighed its probative value.