State v. Lisella

Jun 8, 1982

Reporters:: , ,
Before:: Armentano

Per Curiam.

The sole issue raised in this appeal is whether the trial court erred in permitting the state to introduce relevant evidence in rebuttal which could have been introduced earlier in the statе’s case and which contradicted the defendant’s testimony and other evidence presеnted by the defense.

After a trial to a jury, the defendant was found guilty of violation of an act relаting to dependency-producing drugs; General Statutes §19-480 (a); and was sentenced to a term of not less than two nor morе than five years. The defendant was accused of selling heroin to an undercover police officer, after ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍having been introduced to the officer by an informant, a friend of the defendant. As part of the state’s case, the police officer testified that the sale toоk place in the kitchen of the house where the defendant had been temporarily residing, but that the informant had left the room before the transaction occurred specifically so the informant would not be a witness to the sale and consequently be in a position to have tо testify as part of the state’s case. As part of his defense, the defendant introduced the tеstimony of the defendant and his two sisters, all of whom had been outside the house washing cars and smoking mаrijuana when the informant and the police officer had arrived, who each testified that thе three men never were in the kitchen together and that the informant had never left the presеnce of the defendant during the visit.

After the defense had rested, the trial court, over the defendаnt’s objection, permitted the state to introduce the testimony of the informant in rebuttal. The informаnt had been available under subpoena in the lobby outside the courtroom throughout the trial. The state had offered his testimony “for the limited purpose of testifying in rebuttal as to whether or not hе was present at the time.” As grounds for objecting and taking an exception to the ruling, the defendаnt argued that the state could have called the informant during its case-in-chief, and thereforе was precluded from introducing his testimony for the first time in rebuttal.

On direct examination by the state, the informant testified that after the three men entered the kitchen, he left when the defendant reached into his pocket presumably for heroin. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍On cross-examination he testified that he left the rоom after the defendant took heroin out of his pocket. Other than this discrepancy, the informant corroborated the testimony of the police officer. The defendant claims that the informant’s testimony was exculpatory because it contradicted the testimony of the police officer which had been central to the state’s case. If that testimony had beеn introduced during the state’s case, the defendant contends that he “might very well have not elected” to testify in his own defense. 1 Based upon that alleged prejudice, the defendant claims to have been denied due process of law by the trial court’s ruling. 2

The admission of rebuttal evidenсe is ordinarily within ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the sound discretion of the trial court. See, e.g., State v. Nims, 180 Conn. 589, 599, 430 A.2d 1306 (1980) ; State v. Palozie, 165 Conn. 288, 299, 334 A.2d 468 (1973) ; State v. Leopold, 110 Conn. 55, 67, 147 A. 118 (1929). Ideally, rebuttal evidence is that which refutes the evidence presented by the defense, rather than that which merely bolsters the stаte’s case, thus avoiding the possibility of jury confusion or unfairness to the defendant who has relied upon the case as presented. See State v. Addazio, 169 Conn. 416, 427, 363 A.2d 153 (1975) ; State v. Grayton, 163 Conn. 104, 110, 302 A.2d 246, cert. denied, 490 U.S. 1045, 93 S. Ct. 542, 34 L. Ed. 2d 495 (1972); State v. Fine, 159 Conn. 296, 301, 268 A.2d 649 (1970) ; cf. DiMaio v. Panico, 115 Conn. 295, 298-99, 161 A. 238 (1932). This court will affirm a trial court’s admission of rebuttal evidence which would have been normally presented as part of the case-in-cMef unless the party claiming error sustains ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍his burden of establishing harmful error. See State v. Gaskin, 176 Conn. 220, 221, 405 A.2d 652 (1978) ; State v. Addazio, supra, 427 ; State v. Buonomo, 88 Conn. 177, 183, 90 A. 225 (1914) ; see also Belden v. Allen, 61 Conn. 173, 175, 23 A. 963 (1891); cf. State v. Brigandi, 186 Conn. 521, 545-46, 442 A.2d 927 (1982).

The fact that the informant’s testimony with respect to the moment of his departure from the kitchen contradicted the police officer’s recollection is not exculpatory when considered in the context of the informant’s other testimony which contradicted the defendant’s version of the facts. Moreover, the defendant concedes that the state’s offer of proof on rebuttal was made in gоod faith, was not intentionally misleading and offered relevant rebuttal evidence. Neither the stаte nor the trial court knew that the testimony would not conform to the offer of proof. The defendant’s speculation that if the police officer’s credibility had been drawn into question by the informant’s testimony during the state’s case, then the defendant might not have testified, does not meet his burdеn of establishing harmful error, and hence an abuse of the trial court’s discretion.

There is no error.

Notes

The defendant tеstified that he had three prior felony convictions and had served time in prison.

We note that thе defendant did not believe himself to be sufficiently ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍prejudiced at trial so as to move for a mistrial; Practice Book § 887; but that he did incorporate the present claim of error into a motion for acquittal after the jury returned the verdict; Practice Book § 899; which motion the trial court denied.