49 Conn. App. 13 | Conn. App. Ct. | 1998
Opinion
The defendant, Tyshon Moore, appeals from the judgment of conviction, rendered after a jury trial, of possession of a narcotic substance with intent to sell in violation of General Statutes § 21a-277 (a).
The jury reasonably could have found the following facts. On May 4, 1994, at approximately 8 p.m., two officers, Peter Carusone and Andrew Muro, assigned to the drug interdiction unit of the New Haven police department, drove their marked police cruiser to the comer of Shelton Avenue and Ivy Street in New Haven. That intersection is known as a high narcotics sales area. As their vehicle came to a stop at the intersection, they both observed what they believed to be a hand-to-hand narcotics transaction between an unknown male and an unknown female on the sidewalk approximately ten to fifteen feet away. The male, later identified as the defendant, was holding a plastic sandwich bag in his light hand and reaching into the bag with his left hand, while the female was standing next to him with money in her hand. The plastic bag contained a number of smaller packages of white powder. Before an actual exchange took place, the defendant turned, saw the police and ran away.
As the defendant crossed the street and ran, both Carusone and Muro observed the defendant stuff the plastic bag up the sleeve of his jacket. Carusone pursued the defendant on foot while Muro followed in the police cruiser. Approximately two blocks away, the defendant was cornered inside a fenced parking lot and Carusone arrested him.
Carusone searched the defendant and found, in the left sleeve of his jacket, a plastic bag containing twenty-four small glassine bags of white powder that subsequently tested positive for the presence of cocaine.
At the trial, the defense adduced evidence not only concerning the circumstances of the defendant’s arrest but also of whether he was drug-dependent at that time. The defendant called his mother, Donna Bennett, as a witness and also testified in his own behalf. This appeal followed the verdict of guilty.
I
We first address the issue directed to the state’s cross-examination of Bennett. To put this claim in the proper context, additional facts must be set out. On direct examination, defense counsel asked Bennett the following:
“Q. Did [the defendant] ever speak to you about being involved with drugs?
“A. Yes.
“Q. Did you draw any conclusions from your discussions with him?
“A. Yes, I did.
“Q. What did you arrive at?
“A. That he—he had a serious drug problem and that he needed help.
“Q. For this period that you lived at Brewster Street, did the—did the drug problem occur in intervals?
“A. Yes.
“Q. Could you describe how that happened?
“A. Well, [the defendant] had been arrested several times, for what I believe to be as the result of him*17 using drugs, and—and, then, just getting wild and just doing things that he had no business or being places he had no business. And—but, when he would go, like to jail, and, then, he would come back home, all the time he was in jail, he was like, well, I haven’t done any drugs, and I’m not going to do any, I want to go to school, I want to do this and that. And when he came home, for a while, it would, you know, be good, and we’d look into different things that he could possibly do. He could work with my husband, who’s self-employed, some days, and, then, you know, then we could see the pattern starting all over again. Like, you know, he would supposed to be working with my husband, and not show up, or he’d come and not have any energy, he’d be tired, things of that nature.” (Emphasis added.)
During the cross-examination of Bennett, the state inquired as follows:
“Q. And was he—when did his problem start, his— his problems with the law and things of that nature?
“A. Maybe about fifteen or sixteen.
“Q. Fifteen or sixteen. And you said he had been arrested on other things before?
“A. That’s correct.
“Q. And how many times was that?
“A. I don’t know.
“Q. And you don’t remember what?
“A. Various things.
“Q. Such as?”
At that point, the defendant objected and the jury was excused. In asking the court to bar this line of questioning, the defendant argued that permitting it would be unduly prejudicial. In response, the state
In claiming that the trial court abused its discretion, the defendant argues that the prejudicial impact of Bennett’s testimony outweighed its probative value and caused “irreparable damage” to his credibility, particularly because he did testify and, in doing so, contradicted the testimony of the arresting officers. He further argues that, not only did the trial court inappropriately allow evidence of other acts of misconduct but, in doing
“Generally, a party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject.” State v. Graham, 200 Conn. 9, 13, 509 A.2d 493 (1986); see also State v. Roy, 173 Conn. 35, 50, 376 A.2d 391 (1977). “The party who initiates discussion on the issue is said to have ‘opened the door’ to rebuttal by the opposing party.” State v. Graham, supra, 13. “The doctrine of opening the door cannot, of course, be subverted into a rule for injection of prejudice. United States v. Lum, [466 F. Sup. 328, 335 (D. Del. 1979)], quoting United States v. Winston, [447 F.2d 1236, 1240 (D.C. Cir. 1971)]. State v. Glenn, [194 Conn. 483, 499, 481 A.2d 741 (1984)]. The trial court must carefully consider whether the circumstances of the case warrant further inquiry into the subject matter, and should permit it only to the extent necessary to remove any unfair prejudice which might otherwise have ensued from the original evidence. California Ins. Co. v. Allen, 235 F.2d 178, 180 (5th Cir. 1956). United States v. Winston, supra [1240]. Thus, in making its determination, the trial court should balance the harm to the state in restricting the
The doctrine of “opening the door” may be “expressively understood” according to the Circuit Court of Appeals for the District of Columbia: “ ‘This business about “opening the door” is a much overused issue and it carries with it an oversimplification. Opening the door is one thing. But what comes through the door is another. Everything cannot come through the door.’ ” United States v. Winston, supra, 447 F.2d 1240. “Evidence of a defendant’s prior misconduct is not ordinarily admissible to prove his bad character or criminal tendencies.” State v. Williams, 203 Conn. 159, 185, 523 A.2d 1284 (1987); see State v. Ortiz, 40 Conn. App. 374, 378, 671 A.2d 389, cert. denied, 236 Conn. 916, 673 A.2d 1444 (1996). “Evidence of other misconduct, however, may be allowed for the purpose of proving many different things, such as intent, identity, malice, motive or a system of criminal activity ... or an element of the crime.” (Citations omitted; internal quotation marks omitted.) State v. O’Neill, 200 Conn. 268, 273, 511 A.2d 321 (1986); State v. Sierra, 213 Conn. 422, 428-29, 568 A.2d 448 (1990); State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982); State v. Falby, 187 Conn. 6, 23, 444 A.2d 213 (1982); State v. Busque, 31 Conn. App. 120, 128, 623 A.2d 532 (1993), appeal dismissed, 229 Conn. 839, 643 A.2d 1281 (1994). Such evidence, however, to be admissible must also be relevant and material. State v. Asherman, 193 Conn. 695, 728, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985); State v. Smith, 198 Conn. 147, 157, 502 A.2d 874 (1985); State v. Ibraimov, supra, 352;
The trial court has broad discretion not only to rule on the relevancy of evidence; State v. Jones, 205 Conn. 638, 666-67, 534 A.2d 1199 (1987); but also to determine the scope of cross-examination. State v. Cooper, 227 Conn. 417, 431, 630 A.2d 1043 (1993); State v. Hernandez, supra, 224 Conn. 208; State v. Sharpe, 195 Conn. 651, 657, 491 A.2d 345 (1985). “Uncharged misconduct evidence must satisfy a two part test in order to be admitted as an exception. The evidence must be relevant and material to at least one of the claimed exceptions, and its probative value must outweigh its prejudicial effect. State v. Cooper, [supra, 427].” State v. Wiedl, supra, 35 Conn. App. 265. “ ‘Because of the difficulties inherent in this balancing process, the trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done.’ ” State v. Braman, 191 Conn. 670, 676, 469 A.2d 760 (1983); see State v. Cooper, supra, 427; State v. Payne, 219 Conn. 93, 98, 591 A.2d 1246 (1991); State v. Crosby, 196 Conn. 185, 191, 491 A.2d 1092 (1985).
In applying the foregoing principles to the facts of this case, we conclude that the trial court did not abuse its discretion. In this case, the trial court carefully balanced the probative value of the proffered evidence against its prejudicial impact on the defendant before admitting it.
It has often been held that proper limiting instructions serve to mitigate the prejudicial impact of prior misconduct evidence. State v. Cooper, supra, 227 Conn. 428;
Even though the defendant also claims that the trial court’s rulings irreparably damaged his credibility, that is clearly not so on the record before us. We also recognize that he claims that, because of the court’s ruling, the evidence that came in from his mother’s testimony as a result, constituted “the only evidence as to [his] criminal history and the nature of the crimes for which he had been arrested.”
Our Supreme Court has, on a number of occasions, quoted with approval State v. Staples, 120 N.H. 278, 283, 415 A.2d 320 (1980), when that court stated, “When a witness voluntarily testifies, as did the defendant here, he asks the jury to believe him. The jury should be informed about the sort of person asking them to take his word.” See State v. Hernandez, supra, 224 Conn. 207; State v. Sierra, supra, 213 Conn. 434; State v. Williamson, 206 Conn. 685, 699, 539 A.2d 561 (1988); State v. Glenn, supra, 194 Conn. 498-99. Given the defendant’s own testimony, it ill befits him to say that the trial court’s ruling allowing the state to examine his mother’s direct testimony on cross-examination irreparably damaged his credibility. In addition, his argument that the evidence that was admitted due to this ruling constituted “the only evidence as to his criminal history and the nature of the crimes for which he had been arrested” is totally without merit. We note that Scott Grove, a psychiatrist who was the defendant’s expert witness, testified that it was “absolutely” true that drug-dependent persons will rob, steal and sell drags to support their drug habits. The trial court said that the door had been opened, but it was very cautious in what it allowed to come through the door, and what did come
II
The defendant next claims that the prosecutor’s remarks in closing arguments were improper and that it was reasonably probable that they prejudiced his right to a fair trial. Although the defendant concedes that he failed to preserve this claim at trial, he nonetheless argues that the claim is reviewable under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989),
The defendant claims that the prosecutor asked the jury to view this case as a “swearing contest” between the defendant and the state’s “two key witnesses,” who were police officers, that the prosecutor repeatedly vouched for the truthfulness of the three police officers who testified, that he “continually voiced his own opinion of the evidence,” that he called the defendant a “thief’ and a “robber” and that he appealed to the emotions of the jury. In examining the defendant’s claim under Golding, we are aware that he has a constitutional due process right to a fair trial. We will review the claim
Our Supreme Court has acknowledged that prosecutorial misconduct can occur in the course of closing argument. See State v. Atkinson, 235 Conn. 748, 670 A.2d 276 (1996); State v. Williams, 204 Conn. 523, 539, 529 A.2d 653 (1987). “In order to deprive a defendant of his constitutional right to a fair trial, however, the prosecutor’s conduct must have so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct.” (Internal quotation marks omitted.) State v. Atkinson, supra, 769; State v. Williams, supra, 204 Conn. 539-40; State v. Santiago, 45 Conn. App. 297, 302-303, 696 A.2d 344, cert. denied, 241 Conn. 927, 697 A.2d 362 (1997); State v. Garrett, 42 Conn. App. 507, 516, 681 A.2d 362, cert. denied, 239 Conn. 928, 929, 683 A.2d 397, 398 (1996). At trial, the defendant did not object to the prosecutor’s remarks or request a curative instruction, and therefore, “he presumably did not regard [the] remarks as seriously prejudicial at the time they were made.” State v. Robinson, 227 Conn. 711, 746, 631 A.2d 288 (1993); see State v. Cassidy, 236 Conn. 112, 131, 672 A.2d 899, cert. denied, 519 U.S. 910, 117 S. Ct. 273, 136 L. Ed. 2d 196 (1996); State v. Negron, 221 Conn. 315, 330, 603 A.2d 1138 (1992); State v. Falcone, 191 Conn. 12, 23 n.13, 463 A.2d 558 (1983). Under Golding, “[t]he defendant bears the burden of ‘demonstrating that his claim is indeed a violation of a fundamental constitutional right’ . . . .” (Citation omitted.) State v. Watlington, 216 Conn. 188, 193, 579 A.2d 490 (1990).
The defendant asserts that the state framed the issue in this case as a “swearing contest” between himself and the police. The term “swearing contest” was never used. During his argument, defense counsel himself alluded to the state’s attempt to discredit all of his witnesses, including the defendant, and to consider their testimony with that of the police officers. He thereupon asked the jury to consider whether “it [looked] like these [witnesses] made these things up.” During his argument, the defense counsel indicated that he agreed with the police as to the time span it took for the events to occur and then he argued, “I’m not saying these officers lied, at least not as to that aspect of it. Maybe as to the search.” In the closing argument, the state parsed the defendant’s theory, mindful that the defendant was the only person at the scene of the crime, as a “credibility contest.” The state also replied that the arresting officers were “honest” and “are not lying.” The evidence at the trial discloses that, on more than one occasion, the defendant testified that the police were not telling the truth. Moreover, we do not agree
A careful review of the record discloses that the defendant’s claims do not approach the level of a due process violation. The challenged remarks, to the extent that they were inappropriate, were isolated and brief and did not reflect a pattern of misconduct in the context of the entire trial. They clearly did not deprive the defendant of a fair trial. The defendant, therefore, cannot prevail on his claim of prosecutorial misconduct in the closing argument.
The judgments are affirmed.
In this opinion the other judges concurred.
General Statutes § 21a-277 (a) provides in relevant part: “Any person who . . . possesses with the intent to sell or dispense . . . any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance . . . for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned . . . .”
The defendant was tried on a three count substitute information. The first count charged him with the crime of possession of narcotics in violation of General Statutes § 21a-279 (a); the second count charged him with the crime of possession of narcotics with intent to sell in violation of General Statutes § 21a-278 (b); and the third count charged him with the crime of possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a). The jury had been instructed that it could not find him guilty of both the second and third counts. At the time of sentencing, after merging the two crimes of which he was convicted at the trial, the trial court sentenced the defendant to a term of twelve years for the conviction of possession of a narcotic substance with intent to sell. The sentence was to run concurrent with terms of two and one-half years and three years for his probation violations for a total effective term of twelve years imprisonment.
Edward Kendall, a New Haven police officer for seventeen years with expertise in the area of narcotic trafficking, testified that possession of a
“I’m going to allow [the assistant state’s attorney] to question Mrs. Bennett with respect to the subject of her direct examination. I think it is clearly relevant to the issue of whether or not the defendant was drug-dependent at the time of the offense in this instance, and whether or not he was a user or seller. I will, however, caution the jury, both, before [the assistant state’s attorney] starts this line of inquiry and in—after the inquiry is concluded, and in my closing instructions, that any testimony that’s about to be elicited is being elicited for purposes of cross-examining this witness only, that is, for impeachment purposes. It is not evidence of the defendant’s bad character, nor, may the jury use this evidence in assessing guilt or nonguilt of the charges involved.”
The defendant was twenty-one years old at the time of his trial.
At that time the following instructions were given: “Again, ladies and gentlemen, I want to caution you that the testimony you just heard, with respect to periods of time where the defendant may have been incarcerated and with respect to prior arrests, is not to be considered, by you, in any way, with respect to whether or not the defendant is guilty or not guilty of the crimes with which he is charged. It is not evidence of bad character, it’s not—it should not be held against the defendant, in any way. And should only be considered by you for the very limited purpose of the cross-examination of this witness, when you are asked to assess the credibility of this witness.”
At that time the following instructions were given: “You will recall that during cross-examination of Donna Bennett, the state questioned her about the defendant’s prior arrests and periods of incarceration. This evidence was offered and admitted for one purpose only, to be weighed by you in testing Donna Bennett’s credibility. You may not use this evidence, in any way, as evidence that the defendant is guilty of the crimes charged in this case. You may not infer that the defendant is likely to have committed the offenses charged in this case, because he was arrested or jailed in the past. You may consider this evidence only as it bears on Donna Bennett’s credibility. The weight that you give this evidence, in this regard, is for you to decide.”
The defendant points out that when the state cross-examined him, it did not elicit any evidence of any prior felony convictions.
The defendant seems to suggest in his brief that the trial court, in making its ruling, did not specifically refer to the matter of prejudice. Even where this is so, the lack of a specific reference is hardly ground to assume that the trial court disregarded it. See State v. Cascone, 10 Conn. App. 163, 164, 521 A.2d 1067, cert. denied, 203 Conn. 808, 525 A.2d 522 (1987). As we point out, the conduct of the trial court clearly demonstrates that it did consider prejudice.
When the trial court was called on to rule on this matter, the jury had already heard from Bennett concerning, inter alia, how she had come to believe from observing the defendant, who sporadically lived at home with her, that “he had a serious drug problem and that he needed help,” that the defendant “had been arrested several times, for what [she believed] to be as the result of him using drugs, and—and, then, just getting wild and just doing things that he had no business doing or being places he had no business” and that “when he would go, like to jail. . . when he came home, for a while, [he] would ... be good . . . then we could see the pattern starting all over again.”
This court has discussed the difference between General Statutes §§ 21a-278 and 21a-278 (b) (latter statute was subject of second count of information at this defendant’s trial). “The statutes are virtually identical except that § 21a-278 applies exclusively to persons who are not drug-dependent The design and effect of § 21a-278 (b) is to punish persons who are not drag-dependent and sell narcotics more severely than drug-dependent persons who sell narcotics. The legislature accomplishes that goal by providing for a five year mandatory minimum sentence for those convicted under § 21a-278 (b). A drug-dependent person can escape liability under § 21a-278 (b), and thus the five year mandatory minimum sentence, by proving that he was drug-dependent at the time of the offense. State v. Januszewski, 182 Conn. 142, 167, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981) (clear meaning of clause relating to absence of drag dependency to exempt particular class of persons from operation of statute). A drug-dependent person, could, however, be convicted under § 21a-277 (a), which does not consider drug dependency, but which also does not carry a mandatory minimum sentence. State v. Paredes, 35 Conn. App. 360, 372, 646 A.2d 234, cert. denied, 231 Conn. 925, 648 A.2d 166 (1994).” State v. Jenkins, 41 Conn. App. 604, 607, 679 A.2d 3 (1996).
In making this argument, the defendant points out that the state did not elicit evidence of any prior conviction of him upon its cross-examinations.
“In State v. Golding, [supra, 213 Conn. 239-40], we reformulated the standard announced in State v. Evans, [165 Conn. 61, 327 A.2d 576 (1973)] for appellate consideration of constitutional claims that were not preserved at trial. We stated that a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error, (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. . . . State v. Golding, supra [239-40], We noted that we would remain free to dispose of the claim by focusing on whichever condition is most relevant in the particular circumstances. Id., 240. State v. Watlington, 216 Conn. 188, 192, 579 A.2d 490 (1990).” (Emphasis in original; internal quotation marks omitted.) State v. Atkinson, 235 Conn. 748, 768 n.26, 670 A.2d 276 (1996).