43 Conn. App. 704 | Conn. App. Ct. | 1996
The defendant, Kim Lyons, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (l).
The jury could reasonably have found the following facts. On July 26, 1993, at approximately midnight, S
Meanwhile, Bridgeport police officer Michael Taylor had been dispatched to the scene on a report of a woman screaming. Some time after Taylor emerged from his patrol car, he heard a woman screaming for help. As he approached the building, he pointed his flashlight up the stairs to the second floor and observed the defendant holding S in a headlock. Taylor drew his gun, identified himself as a police officer, and ordered the defendant to release the victim. He repeated his order two or three times before the defendant released S. Upon being released, S ran down the stairs and Taylor noticed that her nose was bleeding heavily. He also noticed that the defendant was naked from the waist down. Taylor and his backup, Officer Roger Soltis, proceeded up the stairs and placed the defendant under arrest.
The defendant argues that his right to confront and cross-examine the state’s witnesses was unduly restricted, that his right to present a defense was violated by the trial court’s undue restriction of his direct examination of S when she was called as a defense witness, and that his rights were violated by the prosecutor’s numerous objections during defense counsel’s closing argument. We address these issues in turn.
I
The defendant first argues that the trial court unduly restricted his right to confront and cross-examine the state’s witnesses in violation of his sixth amendment right to confrontation. The trial court precluded the defendant from exploring on cross-examination three general areas of inquiry. These areas were S’s drug use and reckless lifestyle, prostitution, and motive and bias.
The federal constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . .
“The confrontation clause does not, however, suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination. . . . Only relevant evidence may be elicited through cross-examination. . . .” (Citations omitted; internal quotation marks omitted.) State v. Barnes, 232 Conn. 740, 746, 657 A.2d 611 (1995). It is well settled that questions of relevance are committed to the sound discretion of the trial court. State v. Weidenhof, 205 Conn. 262, 277, 533 A.2d 545 (1987). “In determining whether a defendant’s right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial. ...” (Citations omitted; internal quotation marks omitted.) State v. Santiago, 224 Conn. 325, 331, 618 A.2d 32 (1992).
Applying the foregoing principles to the present case, we conclude that the trial court did not unduly restrict the defendant’s cross-examination of the state’s witnesses. We begin by reviewing the defendant’s cross-examination of S.
The first area of inquiry precluded by the trial court was S’s drug use and reckless lifestyle. On cross-examination, the trial court permitted the defendant to explore S’s drug use at great length. The cross-examination focused on S’s drug use on the night of the assault, including how she smoked freebase cocaine and its effect upon her, and that she went with the defendant because she wanted to smoke more drugs. The defend
In the area of “prostitution,” the trial court permitted the defendant to explore on cross-examination what S was wearing the night of the assault, whether she had ever been to that area before, and whether she had ever met the defendant before that night. The trial court sustained the state’s objection to defense counsel’s question whether she dressed as she had all the time or only when she went to the William Street area.
It is clear from the record that the majority of the state’s objections and the trial court’s subsequent rulings were based on relevancy.
“In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) State v. Coleman, supra, 35 Conn. App. 285.
The trial court permitted the defendant to conduct an extensive cross-examination of S. The defendant argues that he was precluded from fully exploring S’s reliability and credibility. The trial court, however, prohibited only areas of inquiry that, at the time the testimony was elicited, were not relevant. The defendant failed to establish the significance of his lines of inquiry and the relevance of the proffered testimony. The trial court limited the scope of the defendant’s cross-examination of S because the defendant had not as yet laid the proper foundation for the three general areas of inquiry.
In reviewing the excluded areas of inquiry and the cross-examination in its entirety, we conclude that the
Our review of the entire record further reveals that the defendant’s claim that his right to cross-examine the balance of the state’s witnesses was unduly restricted is equally without merit. See State v. Kelley, 229 Conn. 557, 563, 643 A.2d 854 (1994); State v. Cooke, 42 Conn. App. 790, 795-96, 682 A.2d 513 (1996).
II
The defendant next argues that his right to present a defense was violated by the trial court’s undue restriction of his direct examination of S when she was called as a defense witness. We disagree.
“In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the jury facts from which the jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. Davis v. Alaska, [415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974)] . . . .” (Citations omitted; internal quotation marks omitted.) State v. Barnes, supra, 232 Conn. 746. It is also undisputed that the accused has an equal right under the compulsory process and due process clauses “ ‘to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so that it may decide where the truth lies.’ ” Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967); State v. Kelly, 208 Conn. 365,
In the present case, at the trial court’s request, the defendant made an offer of proof as to the areas of inquiry he sought to explore on direct examination of S. Although the trial court ruled that the majority of the defendant’s proffered inquiry was irrelevant, it allowed the defendant to call S as a defense witness.
On direct examination, the defendant asked questions similar to those that were disallowed by the trial court on relevancy grounds during the defendant’s cross-examination of S. The trial court did permit the defendant to inquire about S’s alleged drug habit, the effect that drugs had upon her, and what she was wearing that night. The defendant was also permitted, for purposes of impeachment, to ask S how many times she told the examining doctor she was penetrated by the defendant the night of the assault. S responded that she did not remember. The remaining questions were directed toward impeachment of S and were properly precluded by the trial court. There is no evidence, nor has the defendant proffered any evidence, in support of his contention that the contested areas of inquiry were relevant. We conclude, therefore, that the trial
Ill
Finally, the defendant argues that his rights to present a defense, to effective assistance of counsel, and to due process of law were violated by the prosecutor’s numerous objections during defense counsel’s closing argument. We disagree.
During the course of the defendant’s closing argument, the prosecutor objected twenty-two times. Five objections were overruled, six objections were explicitly or implicitly sustained and eleven objections were not ruled on.
Prosecutorial misconduct can occur in the course of closing argument. State v. Couture, 194 Conn. 530, 564, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985). “While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or to suggest an inference from, facts not in evidence, or to present matters which the jury have no right to consider.” State
It is clear from the record that defense counsel, during closing argument, improperly attempted to comment on, or to suggest an inference from, facts not in evidence. State v. Ferrone, supra, 96 Conn. 168-69.
The judgment is affirmed.
In this opinion the other judges concurred.
General Statutes § 53a-70 (a) provides in pertinent part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of the use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . .
In the interest of preserving the privacy of the victim, we refer to her by her first initial.
The following colloquy took place:
“[Defense Counsel]: And who were you residing with at the time of the—on the day in question?
“[Prosecutor]: Objection, Your Honor.
“The Court: Sustained.
* * *
“[Defense Counsel]: And who gave you a ride?
“[S]: A friend of mine.
“[Defense Counsel]: Male or female friend?
“[S]: Male.
“[Prosecutor]: Objection.
“The Court: Sustained.
* * *
“[Defense Counsel]: How many men did you meet while out there in the area of William Street on that night in question?
“[Prosecutor]: Objection.
“The Court: Sustained.”
The following colloquy took place:
“[Defense Counsel]: Now, is this the clothing that you typically wore all the time or was this the clothing that you wore only when you went over to the area of William Street?
“[Prosecutor]: Objection.
“The Court: Sustained.”
The following colloquy took place:
“ [Defense Counsel]: And wasn’t this a perfect opportunity for you to make a complaint that would not only pay back the person who you expected to get drugs from, but explain your whereabouts to your husband?
“[Prosecutor]: Objection.
“The Court: Sustained.”
In his brief, the defendant argues that he was denied the opportunity to make an adequate record with regard to several excluded questions. The basis of the defendant’s argument stems from the fact that the trial court ordered that all legal argument, not otherwise requested by the trial court, be conducted while the jury was in recess. The defendant did not avail himself of this opportunity to make a record outside the jury’s presence.
During the defendant’s cross-examination of Detective Bruce Belco, the trial court, in response to an attempt by the defendant to inquire into S’s alleged drug addiction, stated: “I don’t quarrel whatever that you have every right to produce any evidence on that subject, but it would not be proper examination, cross-examination of this witness because at this juncture in the case that subject is irrelevant to what is alleged to have occurred, so understand that to be my ruling. I’m giving you full opportunity to develop it anytime during the course of your case.”
Although the defendant makes his claim under the fourteenth amendment to the United States constituí ion and article first, § 8, of the Connecticut constitution, he has failed to support his state constitutional claim with an independent analysis. We, therefore, deem that claim to be abandoned. State v. Francis, 228 Conn. 118, 122 n.3, 635 A.2d 762 (1993); State v. Carolina, 40 Conn. App. 762, 768-69 n.7, 673 A.2d 562, cert. denied, 237 Conn. 914, 675 A.2d 886 (1996).
The following is an example:
“[Prosecutor]: I would object, Your Honor. He is mischaracterizing the testimony.
“[Defense Counsel]: Your Honor, it’s a reasonable inference, that she is willing to go to an area at night and take whatever—went into an area that’s known for . . .
“The Court: The jury has heard the case. I’ll leave it in their hands.”
While Ferrone involved a state’s attorney’s remarks made during closing argument, the rules apply equally to both the prosecutor and the defense counsel.
In his brief, the defendant contends that the trial court improperly admitted “constancy of accusation” evidence and sought “whatever relief is accorded to the defendant in [State v.] Troupe, [237 Conn. 284, 677 A.2d 917 (1996)].” At the time the defendant filed his brief, the Supreme Court had not ruled in Troupe. Troupe was officially released on June 11, 1996, and the Supreme Court explicitly stated that the modification of the rule announced therein applied prospectively to cases in which constancy of accusation testimony had not yet been admitted into evidence. Id., 305. As