83 Conn. App. 319 | Conn. App. Ct. | 2004
Opinion
After a conviction by the jury on all seven counts of an information and sentencing, the defendant, Keith Johnson, filed the present appeal. The defendant’s sole claim is that the court abused its discretion by restricting his cross-examination of one of the state’s witnesses. We affirm the judgment of the trial court.
The jury reasonably could have found the following facts. Both the defendant and Christopher Booth had
Prior to the start of the trial, the court granted the state’s motion in limine to prohibit the defendant from
“Q. Where were you living at the time?
“A. I was living in Storrs.
“Q. Was anyone with you and [the defendant]?
“A. When we left, no. At my apartment, I believe one of my roommates was there and a friend of his.
“Q. When you left for the [restaurant], who went?
“A. Me and John — I mean me and Keith Johnson.”
Thereafter, during cross-examination of Booth, the following colloquy occurred:
“Q. But when [the prosecutor] asked you who you went to do the robbery with when you were driving there on the night of August 27, you said me and John?”
“A. Johnson.
“Q. Ja, Ja, then you said, me and Keith Johnson, right?”
The prosecutor interposed an objection, claiming that the question was argumentative, and that it mischaracterized the testimony and violated the motion in limine that had been granted. The corut excused the jury and proceeded to hear extensive argument during which the prosecutor advanced the position that the defendant
After the jury returned, the court made the following ruling: “But in any event, when you were last in the court, [defense counsel] had asked a question. There was an objection. I sustained the objection, and any answer that was given is now ordered stricken and should be disregarded.” Precisely what the jury was instructed to disregard is not entirely clear, as Booth never responded to the last statement made by defense counsel prior to the state’s objection.
Subsequently, the court, during a charging conference, explained that although defense counsel would not be able to argue third party culpability, he would be able to make whatever argument he wanted to make with respect to Booth’s hesitant response during direct examination by the state. Defense counsel in fact reminded the jury during his closing argument that Booth had said, when asked with whom he went on the night of the robbery: “John, ah, ah, John, ah, ah, Johnson. Not Keith.”
Because the alleged trial court impropriety is not constitutional in nature, on appeal, the defendant has the burden to establish harm flowing from that error to obtain a reversal of the judgment. “Under the current and long-standing state of the law in Connecticut, the burden to prove the harmfulness of an improper evidentiary ruling is borne by the defendant. The defendant must show that it is more probable than not that the erroneous action of the court affected the result. . . . Furthermore, [t]he ruling of the trial court in order to constitute reversible error must have been both incorrect and harmful. . . . The question is whether the trial court’s error was so prejudicial as to deprive the defendant of a fair trial, or, stated another way, was the court’s ruling, though erroneous, likely to affect the result?” (Citation omitted; internal quotation marks omitted.) State v. Lewis, 67 Conn. App. 643, 653-54, 789 A.2d 519, cert. denied, 261 Conn. 938, 808 A.2d 1133 (2002).
First, Cyr, the defendant’s girlfriend, testified that the defendant told her that he and Booth had planned and attempted to rob the restaurant, but were unsuccessful.
The judgment is affirmed.
In this opinion the other judges concurred.
LeBron was unable to identify either Booth or the defendant.
During argument outside the presence of the jury, the court listened to the tape of the relevant portion of Booth’s testimony.
“The right of an accused to effectively cross-examine an adverse witness is embodied in the confrontation clause of the sixth amendment. . . . The general rule is that restrictions on the scope of cross-examination are within the sound discretion of the trial judge . . . but this discretion comes into play only after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment. . . . The constitutional standard is met when defense counsel is permitted 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 witness. . . . Indeed, if testimony of a witness is to remain in the case as a basis for conviction, the defendant must be afforded a reasonable opportunity to reveal any infirmities that cast doubt on the reliability of that testimony. . . . The defendant’s right to cross-examine a witness, however, is not absolute. State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985) ([e]very evidentiary ruling which denies a defendant a line of inquiry to which he thinks he is entitled is not constitutional error). Therefore, a claim that the trial court unduly restricted cross-examination generally involves a two-pronged analysis: whether the aforementioned constitutional standard has been met, and, if so, whether the court nonetheless abused its discretion ... in which case, in order to prevail on appeal, the defendant must show that the restrictions imposed upon the cross-examination were clearly prejudicial.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Clark, 260 Conn. 813, 826-27, 801 A.2d 718 (2002).
In the present case, the defendant has not claimed that his sixth amendment right to cross-examination has been denied. Instead, he argues that the court abused its discretion by improperly curtailing his cross-examination and, thus, he raises an evidentiary rather than a constitutional challenge.
In his brief to this court, the defendant mentioned his federal and state constitutional rights to cross-examine the witnesses against him. He then focused his argument, however, solely as an evidentiary rather than a constitutional issue. He indicated that the applicable standard of review is the abuse of discretion standard and claimed that the court abused its discretion by improperly applying “the evidentiary rule limiting the introduction of third party culpability evidence by a defendant.” (Emphasis added.)
During direct examination of Cyr, the following colloquy occurred:
“Q. Did you have a conversation with [the defendant] at that time related to the incident which had occurred in late August or early September at [the restaurant]?
“A. Yes.
“Q. And could you tell me what [the defendant] told you?
“A. [The defendant] told me that they had planned on robbing the [restaurant]. They didn’t intend on hurting anybody.
“Q. When you say ‘they,’ who do you mean?
“A. Him and [Booth].”
During closing argument, defense counsel stated: “Want to talk about reliability and credibility. [The prosecutor] asked Mr. Booth: Who were you with the night of August 27? Christopher Booth said me, Keith and a couple of other guys at the house. Just like he said Keith or Keith Johnson during his entire testimony. [The prosecutor] then said: Who did you go with on the night of August 27 to do the robbery? And you all heard what he said: John, ah, ah, John, ah, ah, Johnson. Not Keith. It’s not what he said. You heard what he said.” (Emphasis added.)