56 Conn. App. 26 | Conn. App. Ct. | 1999
Opinion
The defendant, James Brown, appeals from the judgment of conviction, rendered after a jury trial, of burglary in the second degree in violation of General Statutes § 53a-102 (a)
I
The defendant’s first claim is that the trial court deprived him of a fair trial when it “shed its cloak of neutrality and assumed the role of advocate for the state” in its questioning of Leonzi. We disagree.
“Due process of law guarantees a criminal defendant a fair trial before an impartial judge and jury in a neutral
Leonzi was questioned by counsel concerning his investigation of the incident and his relationship with the victim and the defendant. At the conclusion of the examination by defense counsel, the court began its own inquiries.
Furthermore, the court in this matter issued a curative instruction to the jury.
The court’s questioning of Leonzi concerning his investigation and his relationship with the victim did not rise to such a level of prejudice as to affect the defendant’s overall case. The court should be careful not to prejudice the rights of any party by its questioning of witnesses, and caution should be used by the court to confine itself to clarification of testimony already given. “In whatever he does, the trial judge should be cautious and circumspect in his language and conduct.” (Internal quotation marks omitted.) Fair v. Warden, 211 Conn. 398, 413-14, 559 A.2d 1094, cert. denied, 493 U.S. 981, 110 S. Ct. 512, 107 L. Ed. 2d 514 (1989). “Where that does not occur, however, a defendant is not entitled to a new trial unless he can show that prejudice resulted from the trial court’s actions. Id. [414]; see State v. Echols, supra, 170 Conn. 16.” State v. Pharr, supra, 44 Conn. App. 577. Our review of the record indicates that the court was neutral throughout its questioning of Leonzi, and it actions had no prejudicial effect against the defendant.
II
The defendant next claims that the trial court’s improper treatment of his trial counsel deprived him of a fair trial before an impartial judge and jury. Because the defendant did not preserve this claim at trial, we must determine whether he can prevail under the four-prong test articulated in State v. Golding, 213 Conn.
We conclude that the defendant has not satisfied the second prong of Golding and therefore decline to review his claim. It is the defendant who “bears the responsibility of demonstrating that his claim is indeed a violation of a fundamental constitutional right. Patently nonconstitutional claims that are unpreserved at trial do not warrant special consideration simply because they bear a constitutional label.” State v. Golding, supra, 213 Conn. 240.
In this case, the defendant claims that on several occasions the court unduly disciplined his counsel, which gave the jury a negative impression and was prejudicial to the defendant.
Ill
The defendant’s final claim is that the requirement of sequestration was violated by the interaction outside the courtroom between the victim’s brother and the victim, a sequestered witness. We disagree.
Sequestration orders assure that witnesses will testify solely on the basis of their personal knowledge. Geders v. United States, 425 U.S. 80, 87, 96 S. Ct. 1330, 47 L. Ed. 2d 592 (1976); State v. Robinson, 230 Conn. 591, 600, 646 A.2d 118 (1994). “The obvious purpose of sequestering a witness while another is giving his testimony is to prevent the one sequestered from shaping his testimony to corroborate falsely the testimony of the other.” (Internal quotation marks omitted.) State v. Williams, 169 Conn. 322, 331, 363 A.2d 72 (1975). In the present case, it was impossible for any such corroboration to occur since one of the parties involved in the alleged violation of the sequestration order, the victim’s brother, was never called as a witness but was merely a spectator to the proceedings. A sequestration order, without additional restrictions, simply prohibits a sequestered witness from being in the courtroom when he or she is not testifying. Id.
The defendant relies principally on State v. Falby, 187 Conn. 6, 25-27, 444 A.2d 213 (1982), which held that it was improper for the state to supply its expert witnesses with a transcript of the testimony by the defendant’s expert, in violation of a sequestration order. Unlike the situation in Falby, however, there is no allegation in the present case that someone supplied a
General Statutes § 54-85a provides: “In any criminal prosecution, the court, upon motion of the state or the defendant, shall cause any witness to be sequestered during the hearing on any issue or motion or any part of the trial of such prosecution in which he is not testifying.” (Emphasis added.) The sequestration order in this case applied only to witnesses and not to court spectators.
The judgment is affirmed.
In this opinion the other judges concurred.
General Statutes § 53a-102 (a) provides: “A person is guilty of burglary in the second degree when he enters or remains unlawfully in a dwelling at night with intent to commit a crime therein.”
General Statutes § 53a-62 (a) provides in relevant part: “A person is guilty of threatening when: (1) By physical threat, he intentionally places or attempts to place another person in fear of imminent serious physical injury . . . .”
Leonzi testified that he had attempted to meet with the victim a couple of times but that she was unwilling to cooperate. He further testified that the victim and her boyfriend had expressed animosity and used vulgar language toward the police on more than one occasion.
The court aslced Leonzi if he had wanted to be reassigned from tire investigation because of the animosity expressed by the victim and her boyfriend toward the police. The court also inquired as t.o why he had never returned to the crime scene after his initial investigation. Finally, the court, asked Leonzi if he knew that the victim had a five month old child.
The court gave the following curative instruction: “My actions during the trial in ruling on motions or objections by counsel or in comments to counsel or in questions to witnesses or in setting forth the law in these instructions are not to be taken by you as any indication of my opinion as to how you should determine the issues of fact.”
“[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.
On numerous occasions, the defense counsel objected to the court’s questioning of a witness. Those objections were overruled, and the court repeatedly told the defense counsel to sit down.
The defendant’s sister testified that she saw the victim’s brother come out of the courtroom and engage in a conversation with the victim, the sequestered witness. The defendant’s sister was, however, unable to hear anything the victim’s brother said except that she heard him say that “the defendant had a smile on his face.” She also testified that she heard the sequestered witness saying that she did not like policemen.
When defense counsel repeatedly inquired as to whether the victim’s brother had violated the sequestration order, the court stated that “[t]his young man, again for the nth time, is not covered by the sequestration order.”