14928 | Conn. | May 2, 1995
The sole issue in this certified appeal
The underlying facts of this case are adequately set forth in State v. Barnes, supra, 33 Conn. App. 604-605, and may be briefly summarized as follows: On December 21, 1991, the defendant visited Julius Levine, with whom he had been acquainted for fifteen years. Levine invited the defendant into his living room where several gifts, recently purchased by Janice Levine, Julius’ wife, were displayed beneath a Christmas tree. The defendant left the Levine home after approximately six hours, and the Levines decided to leave and attend a party. Upon returning from that party later that evening, the Levines discovered that their home had been burglarized and that some dishes and other items valued at $2100 had been taken. The same evening, the defendant had visited a friend, Shelly Brown, and showed her some things that he claimed to have purchased, and sold one of the items, a set of dishes, to her for $10. The next day, Brown gave the dishes to Edward Hill, who returned the dishes to the Levines
At trial, in an attempt to have the jury infer that Levine might have had a motive to fabricate the robbery in order to defraud his insurance company, the defendant attempted to elicit testimony from Julius Levine that Levine had a drug habit, that his family was experiencing financial difficulties and that he previously had falsely reported robberies.
The defendant appealed to the Appellate Court, claiming that the trial court had improperly excluded this line of inquiry, thereby depriving him of his rights to confrontation and to present a defense. State v. Barnes, supra, 33 Conn. App. 611
We first consider whether an offer of proof is required to preserve a record for appeal. This issue requires little discussion. In State v. Santiago, 224
This conclusion, however, does not end our inquiry. We must also determine whether, under the facts of this case, the trial court properly denied the defendant the opportunity to cross-examine the victim with respect to purported drug use, financial problems and previous robberies. Our analysis of the defendant’s claim is framed by the maxims of cross-examination. It is axiomatic “that the defendant is entitled fairly and fully to confront and to cross-examine the witnesses against him. U.S. Const., amends. VI, XIV; Conn. Const., art. I, § 8; Davis v. Alaska, 415 U.S. 308" court="SCOTUS" date_filed="1974-02-27" href="https://app.midpage.ai/document/davis-v-alaska-108974?utm_source=webapp" opinion_id="108974">415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); Chambers v. Mississippi, 410 U.S. 284" court="SCOTUS" date_filed="1973-02-21" href="https://app.midpage.ai/document/chambers-v-mississippi-108718?utm_source=webapp" opinion_id="108718">410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973); Pointer v. Texas, 380 U.S. 400" court="SCOTUS" date_filed="1965-04-05" href="https://app.midpage.ai/document/pointer-v-texas-107014?utm_source=webapp" opinion_id="107014">380 U.S. 400, 403-404, 85 S. Ct. 1065" court="SCOTUS" date_filed="1965-04-05" href="https://app.midpage.ai/document/pointer-v-texas-107014?utm_source=webapp" opinion_id="107014">85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965); State v. Jones, 167 Conn. 228" court="Conn." date_filed="1974-08-27" href="https://app.midpage.ai/document/state-v-jones-1537497?utm_source=webapp" opinion_id="1537497">167 Conn. 228, 232, 355 A.2d 95 (1974); State
“The confrontation clause does not, however, suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination. State v. Johnson, 21 Conn. App. 291" court="Conn. App. Ct." date_filed="1990-04-24" href="https://app.midpage.ai/document/state-v-johnson-7853688?utm_source=webapp" opinion_id="7853688">21 Conn. App. 291, 293, 573 A.2d 1218 (1990). Only relevant evidence may be elicited through cross-examination. State v. Gaynor, 182 Conn. 501" court="Conn." date_filed="1980-12-16" href="https://app.midpage.ai/document/state-v-gaynor-1899430?utm_source=webapp" opinion_id="1899430">182 Conn. 501, 509, 438 A.2d 479 (1980). The court determines whether the evidence sought on cross-examination is relevant by determining whether that evidence renders the existence of [other facts] either certain or more probable. . . . State v. Kelly, 208 Conn. 365" court="Conn." date_filed="1988-07-26" href="https://app.midpage.ai/document/state-v-kelly-7840494?utm_source=webapp" opinion_id="7840494">208 Conn. 365, 376, 545 A.2d 1048 (1988).” (Internal quotation marks omitted.) State v. Kelley, 229 Conn. 557" court="Conn." date_filed="1994-05-18" href="https://app.midpage.ai/document/state-v-kelley-7843312?utm_source=webapp" opinion_id="7843312">229 Conn. 557, 562, 643 A.2d 854 (1994).
The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. Every reasonable presumption should be
The proffering party bears the burden of establishing the relevance of the offered testimony. “Unless such a proper foundation is established, the evidence ... is irrelevant. [Hall v. Burns, 213 Conn. 446" court="Conn." date_filed="1990-01-23" href="https://app.midpage.ai/document/hall-v-burns-7841134?utm_source=webapp" opinion_id="7841134">213 Conn. 446, 452, 569 A.2d 10 (1990)].” Williams Ford, Inc. v. Hartford Courant Co., supra, 232 Conn. 571. This may be accomplished in one of three ways.
First, the defendant can make an offer of proof. See State v. Kulmac, 230 Conn. 43" court="Conn." date_filed="1994-07-05" href="https://app.midpage.ai/document/state-v-kulmac-7843402?utm_source=webapp" opinion_id="7843402">230 Conn. 43, 63, 644 A.2d 887 (1994); State v. Conrod, 198 Conn. 592" court="Conn." date_filed="1986-02-11" href="https://app.midpage.ai/document/state-v-conrod-7839533?utm_source=webapp" opinion_id="7839533">198 Conn. 592, 597, 504 A.2d 494 (1986); State v. Johnson, 28 Conn. App. 708" court="Conn. App. Ct." date_filed="1992-08-25" href="https://app.midpage.ai/document/state-v-johnson-7854771?utm_source=webapp" opinion_id="7854771">28 Conn. App. 708, 713, 613 A.2d 1344 (1992), aff’d, 227 Conn. 534" court="Conn." date_filed="1993-08-31" href="https://app.midpage.ai/document/state-v-johnson-7842990?utm_source=webapp" opinion_id="7842990">227 Conn. 534, 630 A.2d 1059 (1993); State v. James L., 26 Conn. App. 81" court="Conn. App. Ct." date_filed="1991-10-29" href="https://app.midpage.ai/document/state-v-james-l-7854376?utm_source=webapp" opinion_id="7854376">26 Conn. App. 81, 85, 598 A.2d 663 (1991). Second, the record independently can be adequate to establish the relevance of the proffered testimony. See State v. Santiago, supra, 224 Conn. 332; see also State v. Pittman, 209 Conn. 596" court="Conn." date_filed="1989-01-17" href="https://app.midpage.ai/document/state-v-pittman-7840633?utm_source=webapp" opinion_id="7840633">209 Conn. 596, 602-605, 553 A.2d 155" court="Conn." date_filed="1989-01-17" href="https://app.midpage.ai/document/state-v-pittman-7840633?utm_source=webapp" opinion_id="7840633">553 A.2d 155 (1989); State v. Hackett, supra, 182 Conn. 517-20. Finally, the defendant can establish a proper foundation for the testimony by stating a “good faith belief” that there is an adequate factual basis for his inquiry. “A good faith basis on the part of examining counsel as to the truth of the matter contained in questions propounded to a witness on cross-examination is required.” 1 C. McCormick, Evidence (4th Ed.) § 49, p. 187. A cross-examiner may inquire into the motivation of a witness if he or she has a good faith belief that a factual predicate for the question exists. See United
The defendant likens this case to State v. Santiago, supra, 224 Conn. 325" court="Conn." date_filed="1992-12-29" href="https://app.midpage.ai/document/state-v-santiago-7842561?utm_source=webapp" opinion_id="7842561">224 Conn. 325, in which we determined that the trial court improperly denied the defendant the opportunity to cross-examine a key state's witness with respect to bias. In Santiago, the defendant attempted to question the witness about his involvement with the Hartford police department. In light of our review of the record in Santiago, we concluded that the defendant’s line of inquiry was clearly supported by the evidence and relevant to the witness’ bias, despite the fact that the defendant had made no offer of proof. In Santiago, the record indicated that the witness had been employed as a police officer and that the witness may have had a relationship with the Hartford police department. On that record, we concluded that “[i]t is always relevant to the issue of bias that a witness may have a relationship to the prosecuting authorities in a criminal case. To preclude exploration of such a relationship unduly restricts the defendant’s right to cross-examination.” Id., 332. Thus, in Santiago, the record independently was adequate to establish the relevance of evidence sought to be elicited.
We considered a similar claim in State v. Hackett, supra, 182 Conn. 517-18, in which the defendant claimed that the trial court had restricted his right to cross-examine witnesses to determine bias. The defendant had attempted to inquire whether the state’s witness had been known by another name and whether he had encountered a particular person. The state objected on the ground that the questions were irrelevant, and the trial court sustained the objection. The
In the present case, in addition to the absence of an offer of proof, the record does not provide an independent basis upon which the trial court should have concluded that the proffered testimony was relevant. Moreover, the defendant did not assert that he had a good faith belief that his inquiry had an adequate factual predicate. To the contrary, it is clear that the defendant had no basis whatsoever for inquiring into the witness’ alleged drug use, financial problems or reports of previous burglaries. In his only effort to argue for the relevancy of any of these matters, the defendant stated that “[i]f [the victim] has been robbed before or not, I want to know it. Possibly this was reported to get the insurance money. Possibly—I want to show that this person did have financial difficulties and may have had a drug habit, and that there really was no robbery like he says.” As the transcript clearly demonstrates, the defendant had no reason to believe that the victim had drug or money problems or previously had reported robberies. Indeed, the defendant attempted to use cross-examination as a tool to investigate purely speculative sources of witness bias, rather than as a tool to discredit testimony on the basis of a preexisting good faith belief that bias existed. “[I]t is entirely proper for a court to deny a request to present certain testimony that will further nothing more than
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
We granted the defendant’s petition for certification to appeal limited to the following issue: “Did the Appellate Court correctly conclude that, in the absence of an offer of proof, the defendant failed to present an adequate record to permit review of the trial court’s limitation of his cross-examination of the victim to establish a motive to fabricate a claim of theft?” State v. Barnes, 229 Conn. 913, 642 A.2d 1210 (1994).
General Statutes § 53a-124 (a) provides in pertinent part: “A person is guilty of larceny in the third degree when he commits a larceny as defined in section 53a-119 and ... (2) the value of the property or service exceeds one thousand dollars . . . .”
General Statutes § 53a-119 provides in pertinent part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner.”
The following inquiries occurred:
“[Defense Counsel]: Do you have a drug problem?
“[Assistant State’s Attorney]: Objection, Your Honor.
“[Julius Levine]: No.
“The Court: Yes, that’s sustained. It’s to be disregarded by the jury.
* ** *
“[Defense Counsel]: Did you and [Janice Levine] have a discussion then about finances?
“[Julius Levine]: No.
“[Defense Counsel]: After she had [come] from the store?
“[Julius Levine]: About finances?
“[Defense Counsel]: Yeah, money?
“[Julius Levine]: No.
“[Defense Counsel]: You weren’t having any financial problems then at all?
“[Assistant State’s Attorney]: Objection, Your Honor.
“The Court: It’s sustained.
“[Julius Levine]: No.
“The Court: That answer is to go out. The objection was sustained; therefore, the question isn’t answered for the record.
* * *
“[Defense Counsel]: Have you ever been robbed before?
“[Assistant State’s Attorney]: Objection.
“The Court: Do you claim it, counsel?
“[Defense Counsel]: I claim it.
“The Court: I’m going to have to excuse you, ladies and gentlemen, just for a moment, please. . . . The jury is out of the room. Go ahead, Attorney Johnson, what’s your claim?
“[Defense Counsel]: Well, I think it’s relevant because to be proven later on in the case, if it was. If he has been robbed before or not, I want to know it. Possibly this was reported to get the insurance money. Possibly—I want to show that this person did have financial difficulties and may have had a drug haibit, and that there really was no robbery like he says.
*744 “The Court: Well, counsel, with respect to the drug habit, the court has ruled on that.
“[Defense Counsel]: I know, Your Honor.
“The Court: And for the moment you have your exception. With respect to the other claims, for the moment it is a relevancy issue. The court is going to sustain the objection. I’ll note an exception for you.” (Emphasis added.)
The defendant raised this claim before the Appellate Court under the sixth and fourteenth amendments to the United States constitution and article first of the Connecticut constitution. The Appellate Court limited its review to the defendant’s federal claims because the defendant had failed to provide an independent analysis of his claim under the state constitution. State v. Barnes, supra, 33 Conn. App. 611 n.9.
Accordingly, we, too, limit our review to the defendant’s claim under the federal constitution.
In its brief, the state conceded that “[t]he defendant is correct . . . that an offer of proof is not a necessary prerequisite for review of [this] claim . . . .” We emphasize that this holding is limited to questions posed on cross-examination. It does not affect any requirements for an offer of proof, in order to preserve an evidentiary claim for appellate review, in other instances.