*1 Cooper Nathaniel of Connecticut Heaeey Parskey, J., C. Js. Bogdanski, Peters, Cotter, August 19, 1980 Argued 3— decision released June Frechette, J. Roger appellant (defend ant). K. Lager,
Linda assistant state’s attorney, Markle, were Arnold state’s brief, whom, Galvin, Mary assistant state’s attor- attorney, for the ney, appellee (state).
Arthur H. issue single presented J. Healey, in this is whether the trial court appeal erred *2 refusing with the in accordance to instruct relating charge request to the motive falsely. testify complaining witness had to together Cooper, with Nathaniel The defendant charged Toby Benjamin, in a was Rudell Carr and burglary in the second information with substituted 53a-102(a) degree § violation General Statutes robbery attempt to commit and criminal degree second in violation General Statutes jury, §§ tried to a 53a-135 and 53a-49. The case was guilty on counts. defendant both found the appeal This followed. following reasonably
The facts, which could jury, background by been found set the for our single assignment consideration of of error: evening complain- On the of October 14, 1976, the ing Isaiah witness, Williams, was seated the bed- apartment room of his on Webster Street in New hallway Haven when the door from the to the bed- open room flew he and was confronted three men, shotgun.1 per- one of whom was armed with a shotgun son armed with the said “Hold it.” One of Cooper, these men was the defendant who had previously. grabbed robbed Williams Williams a shotgun, shooting started men at the and wounded liquor defendant Carr. Williams had sold his home past after hours in the and had been doing arrested for so. giving
The evidence rise to the defendant’s request involving concerned an incident complaining witness, in 1963. In that Williams, year, shot allegedly Williams a man who had No shotgun was ever found police. place begun and had entered of business Williams’ the inci- him his wife. As a result of to assault charged aggravated dent, Williams Although trial that he he claimed at his assault. guilty of he was found self-defense, had acted aggravated term of assault and sentenced defendant, incarceration. At the 1978 trial of Cooper’s if his claim was counsel asked Williams arising out it in the trial the same then as had been trying “you shooting were incident, protect yourself, counsel isn’t Defense it.” *3 pressed by insisting him on matter as a that, thereon, result of the 1963 incident his trial and justify only way Williams knew that the he could present gun his use of case to claim was protecting that he was himself.2 apparent In the course of the trial it became that there were serious conflicts between the of Williams and that of the defendant. The defend- present ant testified that he was not even at Wil- apartment night question.3 liams’ on the The Cooper defendant Carr also testified that not was present night. that Carr maintained that he and Benjamin, appear merely who did not at the trial, liquor.” We are not concerned with the defendant’s his to justification the fact that sel] sel asked the questions, defendant, [that] [Counsel]: 3In jail After an criminal : “You you his Williams again, that he had to brief, Cooper argues yes.” for knew, “You didn’t know that?” activity exchange didn’t invented shooting . was not justify having . you?” . [Counsel]: and elicited shooting which the court that, shot present [Williams]: shotgun story fellow that someone that his defense was didn’t Carr “You answers, who you?” twice, [Williams]: participated, “No, I didn’t know that.” you know scene of the in an was would have been sent that that [Williams]: if attempting attempt you chap follow: predicated “No.” alibi defense. defense didn’t have crime, over to to justify [Coun there, coun “The buy and “on buy liquor. apartment was, to It
went Williams’ was evident Williams’ therefore, critical to the state’s case. following request
The filed the defendant credibility: person charge respecting “The motive a story always telling is to be considered has in his story by you weighing not or his when whether may that Mr. Williams You consider fact true. protecting only him- use force could reasonable claiming self therefore his motive shotgun might justify well be to his use seen a 528.”4 Annunziato, State v. force. duly charge Cooper court refused to so argues requested excepted. that the The defendant if discredited critical because was against testimony, Williams’ there was no case story shotgun Cooper. was He claims he asserts, Williams, who, fabricated principles legal acquainted that would with the deadly justify thus moti- force, and was use of testify himself from in order save vated so *4 prosecution. the criminal The state claims accurately, adequately, charge, given, and sub- stantially and, the matter covered testifying implicitly, had for the motive Williams adopt falsely, the the court’s refusal to specific language request not constitute the did error. harmful cor-
The defendant was entitled to
rectly
adequately
pertinent
instructed
principles
Griffin,
of substantive law.
State v.
See
(1978);
211
Ed.)
(12th
§
Mack
see
540;
also
Procedure
Criminal
236
A.2d
310, 312,
Perzanowski, 172 Conn.
v.
Kripps,
(1977);
360,
356,
157 Conn.
Berniere v.
charge
(1969).
he correct
must
A.2d 496
guide
adapted
the issues and sufficient
law,
517,
jury.
Annunziato, 169 Conn.
v.
See State
(1975);
DaVila, 150
212 particular criminal the court transaction, jury in should have instructed the substantial com- pliance request charge to with the defendant’s light determine in the witness any testifying falsely inculpating motive for emphasize, the accused.5 that in order however, We request applicable for the to be to the issues in the case, there must be evidence, here, as there was support complain- the defendant’s assertion that the ing culpable party. per- witness was the The court duty forms its when its instructions such as to are give comprehension a clear issues proper guidance in the determination of those supra; issues. Bennett, Alterio, See State v. (1966). 23, 27, conclude, A.2d We giving the court erred in not therefore, requested instruction. inquiry Our does not end here, for it however, likely remains to be determined whether it is the error involved affected the result and, as a con- sequence, depriving rose to the level of the defend- ant of a fair trial. See State v. Ruth, Conn. A.2d State v. Daniels, State v. McClain, 171 Conn. 293, 300, Because the defendant’s claim does not involve the violation of right, upon a constitutional the burden rests him demonstrate the harmfulness of the court’s error. supra, See Pepe, State v. Ruth, 197; State v. 5We suggest that, do not under our holding, a criminal defendant would be entitled to an instruction singling out witness who testifies for and highlighting possible state his falsifying testimony. only We hold that the defendant is entitled only such an requested it where regard to a complaining could subject witness who himself prosecution be depending upon veracity of his particular version of the criminal transaction involved.
213 Chapman 51 cf. (1978); 405 81, A.2d 75, Conn. 17 824, 87 S. Ct. 26, 386 California, 18, 24, U.S. L. Ed. 2d (1967). 705 error was harmless. have concluded
We three fac upon rests principally This conclusion of Williams cross-examination tors: the extensive falsify for his motive respecting defense counsel unobjec thorough the court’s testimony; his ing credibility on the jury instruction to the tionable As we defense. and the defendant’s witnesses;6 wide the defendant was given already noted, on in the cross-examination of Williams latitude was entitled issue of motive.7 The defendant on of cross-examination right to exercise a broad facts to elicit this matter. “Cross-examination prej bias or motive, interest, which tend to show extent although the udice is a matter of right, in the rest often may such cross-examination denial of the court, right, discretion of the a sound constitute error. . . . or its undue will restriction, for It is held that cross-examination generally not legal right may substantial purpose a be or discretion of abrogated abridged court to the prejudice cross-examining party/’ v. Luzzi, Corley, see State 243, 246, Moynahan on, Mans 419 F. Sup. (D. aff’d Conn.), without opinion, F.2d 1204 (2d Cir.), cert. denied, U.S.
S. Ct. 54 L. Ed. 2d 299 were repeatedly made aware of motive for Williams’ exception No to the court’s was taken. suggest 7We do not that extensive cross-examination of the com plaining witness on proper the issue of motive is substitute a to the on motive. We refer to the extensive cross- examination on only matter an indication were apprised well falsify Williams’ testimony. his apart-
fabricating Ms account of the events at his testimony placing shotgun in the ment *7 evening hands of the intruders.8 thoroughly correctly court the and Moreover, jury credibility.9 It instructed the the matter of pointed quality, quantity, not out that the and the any possible significant; bias, of is that prejudice trial of interest the outcome the or weighing the be considered witness should testimony; that the sound truthfuMess of his and jurors judgment that the exer- common sense and daily veracity determining truth their cise and applied testimony pre- the affairs should be jury instructed the that sented.10 The court also they gives [a witness] test the evidence “should you your knowledge human nature and of own and control human the motives which influence action.”
Finally,
presented
the defendant
an alibi defense
Carr,
trial.
not
like
that he was
claim,
He did
present
of the crime but that the com-
at the scene
person respon-
plaining
the
was
witness Williams
intru-
his assault of the
sible
the altercation
Obviously,
jury
the
disbelieved the defend-
ders.
Having
that the
concluded
defendant’s
ant’s alibi.
were entitled
false,
alibi defense
the
was
fabricated
believe that his claim that Williams
prosecution
giving
rise to
account of the events
us,
that,
argument
It
noted
in oral
before
should also be
testifying
motive for
counsel
that Williams’
stated
argument.
in final
falsely
argued
was
before
complete charge
9Although
party has
with
neither
filed the
claimed,
except
was
court,
presume
charge,
as otherwise
we
Parham,
510-11,
All us to the conclusion lead these factors affected likely the court’s error was not defendant therefore, deprive not, result and did of a fair trial. error.
There no con- J., J., In opinion Cotter, *8 Peters, C. this curred. in in part dissenting J. (concurring
Parskey, opinion’s with the agree majority I cannot part). court, trial the requires law holding that Connecticut the motive the on when to instruct requested, The testimony. of a witness complaining falsify cases, for all rule, court’s general decision states a the which credi- places such an instruction requiring of a with that self- a victim on a bility par accomplice. confessed
The majority opinion’s approach strikingly Ruth, State similar to that an anal- which concluded that (1980), instruction Connecticut agous required was law on the interest of a testifying accomplice. Ruth, In State instruction com- where an supra, requested the was on witnesses’ menting were the witnesses question the defendant, 195. Id., crime. to the self-confessed accomplices the burglary who the victim of Williams, Here was charged was not robbery, attempted the nor he confess crime. any did The complainant was the alibi, defendant’s implicated only by the were free did to and in fact reject.
The majority concedes that instruc- opinion the tion could been if the court have refused requested so instructed in but the fails substance, majority to address the court’s why consider interests all the witnesses in the outcome didn’t satisfy request.
were well aware of fact complainant Williams been previously had convicted of an offense similar to that alleged by the defendant a defense to the him against case. charges As stated by majority the defendant opinion, was a broad of cross- permitted right exercise might examination as to Williams had to falsify testimony, possible including motive to his use justify gun by claiming he himself compelled against to protect defendant and the defendant’s In companions. the trial its instructions addition, court, credibility of witnesses stated that: “You should or any possible prejudice consider bias that witness have, whether for or might against or the *9 The lack accused. interest or of interest of that of whatever in witness, sort, the outcome of the trial. . . . Now, there has also been some evidence here with respect to prior convictions of felonies, as pointed has been out to Mr. you Williams had a prior conviction, and Mr. Cooper had several con- victions.” The court then instructed the of evidence the prior convictions was admitted for the sole purpose assessing the credibility both the defendant Cooper and complainant Wil- liams. Together, the testimony elicited on cross- examination and the court’s instructions on the which noted in general, of witnesses credibility in the outcome interest have an may a witness the were sufficient to alert the case, his tes- to falsify have had might motive Williams in accordance with I therefore hold, would timony. jurisdictions of other the decisions or to to give the decision decided the point, of a credibility instruction assessing an refuse to the accomplice who is not an witness particular court, the trial the discretion of crime rests within will not refusal such an give and that unless appeal error on constitute reversible under trial court it shows that claiming party United its discretion. abused the circumstances Hill, 1972); Cir. States v. 361, (D.C. 470 F.2d 465 P.2d 117-18, People, Land v. 171 Colo. Boetger, 535, 537, 96 Idaho (1970); State v. 511 S.W.2d Green, P.2d 1180 1974). 869 (Mo. for this are approach plain.
The reasons
those
witnesses
common-law rule
as
disqualifying
uni-
has been
outcome of the case
interested
Ed.)
Evidence
abandoned;
(3d
versally
Wigmore,
effort
575-576;
permit
an
§§
and to
trier of fact
to hear all relevant
determine for themselves
of each wit-
ness and the
to be
his or her tes-
weight
accorded
65.
McCormick,
Evidence
timony.
(2d Ed.) §§
since
Connecticut has
abandoned the rule
long
criminal as well as
civil cases. General Statutes
Banks Watrous, §52-145;
597, 599,
Buxton,
State 65 A.
To
the court
require
single
out witnesses
for comment
their
upon request
upon
interest
in the outcome of the
case as a motive
*10
their
would
falsify
not only constitute
permitting
regression
progress
in
achieved
the
identify
weigh
for
to
snch motives
the
many circumstances,
bnt
also,
would
themselves,
judge
the
of the trial
to deliver
frustrate
efforts
evenly
to
instructions to the
consider
balanced
of
testi-
interest
the outcome
all the witnesses,
the
fying
for both
In some circumstances,
sides.
pro-
require
an instruction would invade the
such
repeatedly
has
been held
vince
the
of
body
determine the
court to
the sole
be
Staples,
credibility
State
of witnesses.
v.
399 A.2d
complainant’s
instruction on
To hold
an
a
given
falsify,
requested, must
when
be
problems
particularly
in a
would create
difficult
prosecution
assault where
sexual
traditionally
complaining
been
has
witness
jurors
among
continues to be
doubt
disapprove of
must
courts,
As have
I
outset.
other
cautionary
require
a
decision which would
rape
victim’s motive
court on a
falsify testimony;
complaining
Land
as
witness
People, supra,
v. State 338
Williamson
117-18;
App. 1976);
(Fla.
Smoot,
State v.
873,
So. 2d
P.2d 1001
Common-
863,
99 Idaho 855,
Chapman,
1218-19
N.E.2d
wealth v.
(Mass.
1979);
App.
602 P.2d
Just,
Lopez
(Mont. 1979);
544 P.2d
State,
964-65
yet
reasoning
(Wyo. 1976);
under
864-65
opinion,
majority
the defendant
in cases where
subject could herself1 be
victim
claimed
upon
only
veracity
prosecution depending
of her
recognition that
gender here
not without
of the feminine
1TJse
often
Use
are
victims of sexual assault.
males as well
females
gender merely
typical
reflects
sexual assault situa
the feminine
tion
which the
is confronted.
court
*11
involved,
transaction
of the criminal
account
require such
instruction.
claim would
an
have confronted
recent cases which
Other
con
assault have
the realm of sexual
issue outside
upheld
sistently
of instructions
the denial
analyze
particular
single
witness to
out a
would
in
case and
or her interest
the outcome
testimony.
falsify
held that
These cases have
instruction
consider
court’s conventional
trial
the witnesses is suffi
interest of
and all of
approaches
limits
in some
the outer
and,
cases,
cient
credibility
into the
of the trial
incursion
court’s
Anchorage,
P.2d
of witnesses. Huske v.
(Alaska 1978);
115 Ariz.
Cookus,
v.
504-505
State
v.
563 P.2d
Commonwealth
(Mass. App. 1977);
829-30
Roberts,
(Tenn. 1976); App. 2d 577, Huff, Wash. 592 P.2d State, 581, 458 Channel P.2d (Wyo. 1979); 2d, 75 Am. Jur. see also 1145, § continues of witnesses 861. The Trial jury. province to be the sole instruc- hold that the For these reasons I would every requested required but case, is not tion give court’s discretion instead within trial light it is where warranted closing counsels’ cross-examination, elicited arguments, nature and and other factors such as the intensity I interest the outcome. witness’ no the trial court’s discretion find abuse of would requested refusing give in this case. opinion concurred. J.,
In this Bogdaxski,