8 Conn. App. 317 | Conn. App. Ct. | 1986
The defendant appeals from the judgment of his conviction, after a jury trial, of three counts of aiding the sale of narcotics in violation of General Statutes §§ 21a-277 (a) and 53a-8. The dispositive issue is whether it was error for the trial judge, during cross-examination of the state’s key witness, to comment on facts within his personal knowledge and outside the record as to whether a witness had been offered a “deal” in exchange for his testimony, and on whether the prosecutor had the ability to offer the witness promises in exchange for his testimony. We find error.
Because the defendant did not properly raise this claim in the trial court, he seeks review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). The determinative issue in granting an Evans review is whether “the record adequately supports a claim that [the defendant] has clearly been deprived of a fundamental constitutional right and a fair trial.” State v. Liebowitz, 7 Conn. App. 403, 404, 509 A.2d 43 (1986), citing State v. Evans, supra, 70. The defendant’s claim of a violation of a constellation of constitutional rights does raise an issue of fundamental constitutional dimension. For purposes of an Evans review, “it is also necessary that the record ‘adequately supports [the] claim.’ ”
The state’s case against the defendant was that he supplied cocaine to William Deitch, who sold it to undercover officer Gary Hunt of the New Haven police department. Deitch testified that on May 5, May 12 and May 26,1983, he sold cocaine to Hunt, and that on each of these occasions the defendant supplied the cocaine to him. Hunt testified that the three transactions took place. He did not, however, have any personal knowledge that the defendant supplied the cocaine to Deitch.
During the period of the transactions, both the defendant and Deitch were under surveillance by members of the New Haven police department. Detective Sergeant Carl Giannotti, a member of the surveillance team, testified that he observed the defendant and Deitch meeting prior to each drug transaction. None of the surveillance officers, however, observed an exchange of drugs or money between the defendant and Deitch.
The defendant testified on his own behalf and denied supplying cocaine or any other drug to Deitch. He testified that he had purchased an automobile from Deitch and that Deitch had been dunning him to pay the money still owed on the car. While the defendant did not recall meeting with Deitch on May 5 or May 12,1983, he did remember meeting with him on May 26, 1983, to discuss the money still owed on the car. Thus, the only evidence presented at trial which directly linked the defendant with the three drug transactions was Deitch’s testimony that the defendant was his supplier on each of the three occasions. Consequently, the credibility of Deitch was crucial.
Deitch testified on direct examination that he had pleaded guilty to certain unspecified charges arising
“Q. And I believe the prosecution — I’m not sure whether the prosecution stated it or whether you told the prosecution. You told the prosecution that you were aware that if you testified satisfactorily to the prosecution in this trial, that it would affect your sentence.
A. No promises were made to me.
Q. No promises, but did they say it’s a possibility?
A. No promises were made to me.
Q. No promises?
A. Nothing at all.
Q. Then why are you here?”
At this point, the state objected to the defense counsel’s characterization of Deitch’s testimony, stating: “I object to this line of questioning. That is completely his representation of what the agreement is for this man’s testimony. I have no control over his sentence. It doesn’t have to satisfy me at all.”
The defendant claims that the trial court, by its statements, violated a cluster of interconnected fundamental rights, principally his state
I
The defendant claims that his right of confrontation was violated because the trial court’s comments effectively foreclosed three areas of potential cross-examination of the state’s key witness.
“ ‘Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. . . . The sixth amendment to the constitution guarantees the right of an accused in a criminal prosecution “to be confronted with the witnesses against him.” ... To comport with the constitutional standards embodied in the confrontation clause the defendant in exercising his right of cross-examination must be allowed to “expose to the jury the facts from which the jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witnesses.” Davis
Cross-examination as to bias or motive is constitutionally protected. State v. Cosby, 6 Conn. App. 164, 167, 504 A.2d 1071 (1986). In a case where the only direct evidence linking the defendant with criminal activity is the testimony of an accomplice who has already pleaded guilty to charges and is awaiting sentencing, it is especially important that a defendant be permitted to search for an agreement between the state and the witness. Under these circumstances “it might be assumed that the [witness’] course would be such as would best serve his interest in the trouble in which he found himself.” State v. Santello, 120 Conn. 486, 492, 181 A. 335 (1935). Even in the absence of an actual deal, such a witness may be motivated to testify by a desire to please the prosecution in an attempt to procure lenient treatment. United States v. Mayer, 556 F.2d 245, 248-49 (5th Cir. 1977). Thus, whether or not an actual agreement has been worked out, a witness may be cross-examined to show a belief or expectation of favorable treatment by the state.
The trial court’s comments, when examined in the context of the extensive cross-examination of Deitch, did not foreclose inquiry into these two areas. Our review of the entire cross-examination discloses that the defendant was afforded an adequate opportunity to inquire into the fact of whether a deal had been arranged with respect to Deitch’s sentence, and into Deitch’s motive for testifying. The defendant questioned Deitch on several occasions, both before and after the trial court’s comments, on whether he had received any promises or been offered any deals. He also questioned Deitch on his motive for testifying. On
The defendant was, however, effectively foreclosed from inquiring into the witness’ motive for testifying based on a prosecutorial, as opposed to a judicial, promise or assurance. This foreclosure arose from the court’s statement that the prosecution could not promise anything to the witness. As a statement of law, albeit incorrect; see text infra; the defendant could only perceive this as a ruling forbidding inquiry into this area. The court’s statement was correct in the sense that the state cannot promise a witness a specific sentence in exchange for his testimony. The state can, however, make promises or assurances with respect to the position it will take at sentencing. Practice Book §§ 921, 922; see Szarwak v. Warden, 167 Conn. 10, 18, 355 A.2d 49 (1974). For example, the prosecution can promise to recommend a lenient sentence in exchange for a witness’ testimony against a defendant. It can promise that it will, moreover, try to persuade the court to accept its recommendation of leniency, so that future similar promises to other persons will carry some credibility with them. The defendant was entitled to ask Deitch whether his hope for leniency from the court had been bolstered by assurances from the state that it would attempt to persuade the court to realize his
II
The defendant also claims that the trial court’s comments violated his due process right to a fair trial. There are two interrelated aspects to this claim. First, he claims that the trial court’s comment before the jury on a material fact, adverse to the defendant and based on the judge’s personal knowledge, crossed the line of judicially permissible conduct, and had the unintended effect of improperly bolstering Deitch’s credibility by corroborating his testimony. Closely related to this is the defendant’s claim that the statement had the effect of improperly restricting the jury’s consideration of Deitch’s credibility, thus undermining the defendant’s constitutional right to have all facts and issues of credibility determined by the jury. We agree.
Due process requires that “there should be no questioning that appears to reject a defendant’s credibility and implies judicial support of a prosecution witness’ testimony. ... 1 “The influence of the trial judge on the jury is necessarily and properly of great weight,” Starry. United States, 153 U.S. 614, 626 [14 S. Ct. 919, 38 L. Ed. 841 (1894)], and jurors are ever watchful of the words that fall from him.’ See Bollenbach v. United States, 326 U.S. 607, 612, 66 S. Ct. 402, 90 L. Ed. 350 (1946). These admonitions and cautions ‘are prompted by the truism that a jury has a natural tendency to look to the trial judge for guidance, and may find it even where it is not intended.’ ” State v. Fernandez, 198 Conn. 1, 12, 501 A.2d 1195 (1985).
In State v. Fernandez, supra, the court held that the defendant was deprived of his right to a fair trial by
The court in Fernandez found error in the defendant’s convictions. The court noted that the credibility of the witness was directly implicated by the trial court’s conduct, and that the defense theory of the case, dependent as it was on the jury’s acceptance of the witness’ testimony, “could not escape the tremor emanating from that examination by the trial judge.” Id., 15.
It is the combination of the jury’s tendency to view the trial judge as its guiding light and the trial judge’s conduct which may have been interpreted by the jury as an evaluation of Deitch’s credibility, that created the error in this situation. By stating to the jury that he was the judge who took the witness’ guilty plea and, further, based on his own personal knowledge, that there was in fact no deal made between the witness and prosecution with respect to the witness’ testimony,
The defendant also claims that the trial court’s statements transcended the bounds of legitimate comment so as effectively to preclude the independent determination of questions of fact and credibility which the defendant is entitled to have the jury make. More specifically, the defendant argues that the trial court, by its comments, took the determination of the witness’ credibility from the jury on the issues of whether in fact there was a deal for the witness’ testimony and whether the state had made any promises to the witness. We agree.
The jurors are the “sole triers of fact and credibility.” Davis v. Alaska, supra, 318. “[Ljitigants have a constitutional right to have issues of fact decided by the jury and not by the court.” State v. Hines, 187 Conn. 199, 210, 445 A.2d 314 (1982), quoting Ardoline v. Keegan, 140 Conn. 552, 555, 102 A.2d 352 (1954). “They are free to reject even uncontradicted testimony, if they do not find it credible . . . particularly in a criminal case.” State v. Dudla, 190 Conn. 1, 7, 458 A.2d 682 (1983).
In State v. Santello, supra, a case involving facts very close to those in this case, our Supreme Court was faced with a similar claim. The defendant was charged with and convicted of murder. The evidence at trial revealed
The court held that this statement by counsel, not under oath, of a material fact pertinent to the issues, unsupported by the evidence, and prejudicial to the defendant without a cautionary instruction, constituted reversible error. Id., 490. The court noted that, despite Scarpello’s testimony that no deals had been made, “it yet remained open to the defendant to claim that in these denials Scarpello was not worthy of credit and that in testifying as he did he was actuated by some such inducement.” Id., 492-93. The court noted further that the effect on the jury of a statement by the state’s attorney, because of the prestige and confidence pertaining to his office, gave the statement “a finality
When a statement corroborating a witness’ testimony comes from the trial judge, as it did in this case, the influence on the jury is even greater. “ ‘The respectability and standing of [the trial judge] only serve to enhance the peril.’ ” (Citations omitted.) Id.; see State v. Fernandez, supra. A juror will be inclined to take the judicially corroborated fact as conclusively true. Since the defendant was entitled to have the jury determine Deitch’s credibility and to disbelieve his statement that there was no deal; State v. Santello, supra; the trial court’s flat assertion corroborating the testimony violated the defendant’s right to a fair trial.
Ill
The state argues that if error is found, it is nonetheless harmless. Our cases hold that when error is of constitutional dimension it is reversible unless the state proves the error harmless beyond a reasonable doubt. State v. Mebane, 8 Conn. App. 63, 69, 511 A.2d 359 (1986). In this case, the state has not sustained its burden. This is not a situation where “the evidence against the accused is so overwhelming that we can conclude as a matter of law that the jury’s verdict was not influenced [by the trial court’s comment].” State v. Cohane, 193 Conn. 474, 485, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984). On the contrary, the only direct evidence linking the defendant to the criminal activities with which he was charged was the testimony of the state’s key witness, and it is precisely this testimony which was supported by the trial court’s statements.
Our resolution of this claim of the defendant is dis-positive. Although he raises other claims of error of an evidentiary nature, it is not clear that they 'will recur in the new trial. We therefore decline to review them.
There is error, the judgment is set aside and the case is remanded for a new trial.
In this opinion the other judges concurred.
Although the defendant relies on both the sixth and fourteenth amendments to the United States constitution and article first, §§ 8 and 19, of the Connecticut constitution, he offers no separate analysis of the Connecticut constitution, as a basis for disparate treatment between the two. We see no reason to undertake such an analysis. See State v. Cosby, 6 Conn. App. 164, 166 n.1, 504 A.2d 1071 (1986).
The defendant claims that an aspect of the right to trial by jury is the right to have issues of fact and credibility determined by the jury. This right, however, has been viewed as a component of the right to a fair trial; State v. Hines, 187 Conn. 199, 209, 445 A.2d 314 (1982); and thus does not in this case require separate analysis under the rubric of the right to trial by jury.
The defendant in his brief concedes, and we agree, that if the trial judge had confined his statements to the initial legal point that it is the judge
The court charged as follows: “If you feel that he may, in his own mind, be looking for or hoping for some favors in the handling of his own situation and, therefore, his testimony may be colored because of such thoughts, then, of course, you will give such weight to his testimony or no weight to it at all as may appear appropriate to you under all the circumstances.”