dissenting. I disagree with the result reached in part II of the majority opinion. The trial court allowed the witness, Myrna Cedeno, to testify to the following, which she observed during the time frame in which the victim’s death could have occurred: that a tall black man pulled the victim into the bushes in the approximate vicinity of where she was found dead and that he emerged alone fifteen to thirty minutes later with bloody scratches on his face and chest. The trial court refused, however, to allow Cedeno to testify as to what the tall black man said as he emerged from the bushes.
The majority concedes that the man’s statement was admissible under the spontaneous utterance exception *553to the hearsay rule and possibly under other hearsay exceptions. It nevertheless concludes that the exclusion of what the tall black man said was not harmful because “the bulk of the defendant’s third party culpability theory of defense was before the jury” as a result of Cedeno’s testimony about what she saw.
This is just not the case. Cedeno would have testified that the tall black man exclaimed: “I never have this—I never have Puerto Ricans. She was so delicious but this fucking bitch that scratch me all over.” With just Cedeno’s testimony about her observation of what the tall black man did, the jury had to infer that he had had violent sex with the victim, which could have led to her death. The excluded evidence of what the man said and the tenor of the language he used, if believed, would have directly proven that the man had had violent sex with the victim, thereby rendering it more likely that he—and not the defendant—had caused her death. Moreover, the man’s statement could have carried great weight with the jury because of its spontaneity.1
“Under our state and federal constitutions, [t]he right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State’s accusations. The rights to confront and cross-examine witnesses and to call witnesses in one’s own behalf have long been recognized as essential to due process. State v. Mastropetre, 175 Conn. 512, 520, 400 A.2d 276 (1978), quoting Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973); State v. Fernandez, 198 Conn. 1, 15, 501 A.2d 1195 (1985). The denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial *554of it we . . . must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial. Lisenba v. People of State of California, 314 U.S. 219, 236, 62 S. Ct. 280, 86 L. Ed. 166 [1941], rehearing denied, 315 U.S. 826, 62 S. Ct. 620, 86 L. Ed. 1222 [1942]. State v. Griffin, 175 Conn. 155, 160, 397 A.2d 89 (1978). State v. Binet, 192 Conn. 618, 634, 473 A.2d 1200 (1984).” (Internal quotation marks omitted.) State v. Torres, 210 Conn. 631, 644-45, 556 A.2d 1013 (1989).
By denying the defendant the opportunity to present this evidence to the jury, the trial court tore the heart out of the defendant’s third party culpability defense. I agree with the defendant that “[exclusion of the third party’s statement prevented the jury from hearing the evidence which would turn an ambiguous event into a meaningful defense . . . .” Accordingly, I believe that the exclusion of this relevant exculpatory evidence, which was essential to the defendant’s third party culpability defense, compromised the fundamental fairness of his trial, and was error of constitutional magnitude. See State v. Flanders, 214 Conn 493, 501, 572 A.2d 983, cert. denied, 498 U.S. 901, 111 S. Ct. 260, 112 L. Ed. 2d 217 (1990).
Therefore, the defendant must be granted a new trial unless the state proved that the error was harmless beyond a reasonable doubt. Rose v. Clark, 478 U.S. 570, 576, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986); State v. Cerilli, 222 Conn. 556, 584, 610 A.2d 1130 (1992). The state has not met its burden.2 Admission of the tall black man’s statement could have nailed down, in a very *555graphic and persuasive manner, that he had violently sexually assaulted the victim at the approximate location where her body was found within the time frame of when her death occurred. It is quite possible that the defendant would have been acquitted on the basis of this statement, taken together with Cedeno’s other testimony about the actions of the tall black man and evidence that the victim’s body was found nude, except for a coat over her head, with blood and inch-long arm hair under her fingernails and with semen in her vagina in the approximate location where the incident occurred with the black man.
The majority claims that the testimony of two eyewitnesses “would have made it extremely difficult for the jury to have accepted the theory of the tall man’s culpability.” On the contrary, this evidence was far from convincing. The first eyewitness, Sherrie Washington, was a drug addict with a $300 a day crack addiction, who did not discuss the incident with the police until nine months after the victim’s death. The second eyewitness, Elan Howard, was on probation for a drug offense. Howard first talked to the police, approximately one month after the victim’s body was found, when he was arrested for possession of narcotics, escape from custody and also hindering prosecution in connection with this case. He had refused to tell the police anything until the court set a $50,000 bond on the hindering charge. The morning after the bond was set, Howard changed his mind and gave a statement inculpating the defendant. Thereafter, the state nolled the charges against him.3
At trial, after Howard had identified the defendant as the victim’s assailant, the following colloquy occurred:
*556“[Assistant State’s Attorney Robert Brunetti]: Is there any doubt in your mind that this is the black male that struck the girl inside 127 Harris Circle?
“[Howard]: Somewhat. Because I mean I couldn’t say it was exactly him but—
“[Brunetti]: You just identified him.
“[Howard]: I know I identified him because he looks familiar, but there was nothing in his face—yes, it was him.”
Such testimony hardly supports the majority’s view that the evidence against the defendant was airtight or unassailable. The admission of the erroneously excluded statement might well have caused the jury to disregard the testimony of these two state’s witnesses and to return a verdict of not guilty.
Although the defendant may not have been the most credible witness, nor was he a pillar of society, he still had a fundamental right to a fair trial. This includes the right to present relevant and competent evidence to support his defense. When, as in this case, evidence could directly establish the culpability of another, its exclusion violates the accused’s constitutional right to due process of law.
Accordingly, I would reverse and order a new trial.
The spontaneous utterance is a firmly rooted exception to the hearsay rule which is at least two centuries old. White v. Illinois, 502 U.S , 112 S. Ct. 736, 742 n.8, 116 L. Ed. 2d 848 (1992).
Even if the court’s error was characterized as not of constitutional dimension, the defendant has proved that the erroneous exclusion of the tall black man’s statement probably affected the outcome of the trial. See State v. Tatum, 219 Conn. 721, 738, 595 A.2d 322 (1991) (for errors that do not reach a constitutional level, “the burden rests upon the defendant to demonstrate the harmfulness of the court’s ruling”).
It is unclear from the record whether all the charges were nolled or just the hindering prosecution charge.