State v. PaolellaState v. Paolella
- Reporters:
- , ,
- Before:
- Callahan
The defendant, Joseph Paolella, was convicted after a trial to the court1 of kidnapping in the second degree with a firearm in violation of
The facts found by the trial court are as follows. The defendant and the complainant were married in May, 1978. Three children were born to them during their marriage. In April, 1986, the couple agreed to be *675divorced because of marital difficulties. During that same month, the complainant moved herself, her children, and a niece who had been living with the family, out of the couple’s marital home in North Haven. Shortly thereafter, the defendant filed a divorce action, notice of which was served on the complainant while she was staying with a friend in Meriden.
After a few weeks, the complainant moved back into the marital home based on her belief that the defendant would move out. At this time the defendant expressed his desire to drop the divorce action. The complainant, still desiring to terminate the marriage, filed a cross complaint for divorce. After the defendant refused to leave the marital home, the complainant left again, this time taking the children to a battered women’s shelter in New London. In May, 1986, the complainant obtained several restraining orders against the defendant prohibiting him, inter alia, from entering the marital home. Thereafter, when the defendant moved out, she moved back in with the children.
On May 24, 1986, the complainant allowed the defendant to stay at the house with the children while she went out for the night with her boyfriend. When she returned home the following day, the defendant left the house amicably. Shortly thereafter, however, he returned carrying a rifle and forced his way inside. When the complainant ordered him to leave, the defendant forced their son, J, out of the house and into the garage. The complainant tried to call her boyfriend, but was unable to do so because the defendant had disconnected the phone. She then went and retrieved J from the garage, whereupon the defendant followed her into the house and the two engaged in a loud argument. During the course of the argument, the complainant tried to escape from the house through both the doors and windows; however, the defendant forcibly prevented her from doing so. When she attempted *676to use the phone again, the defendant hit her with it. Still holding his rifle, the defendant then grabbed the complainant, hit her, and pushed her against a wall with such force that her head and heel went through the wall. J, who had been observing the fight between his parents, attempted to take the rifle away from his father and stop the fight; the defendant, however, retained control of the weapon and ordered the child to go upstairs.
Carrying the rifle, the defendant dragged the complainant by her hair down the stairs to the basement, where he pointed the rifle at her head and threatened to kill her. He then tied her wrists and legs to his weightlifting bench with a telephone cord while he berated her and called her names. When the defendant began to fondle her breasts, the complainant yelled, at which point the defendant gagged her with a sock. After a struggle, the complainant was able to loosen the bonds around her wrists, only to have the defendant tighten them again. The defendant then untied the complainant’s legs, removed her pants, retied her legs above her head to the bar over the weight bench, and had sexual intercourse with her. During this incident, J had crept downstairs into the basement. Although he did not see his father sexually assaulting his mother, he did see her tied to the bench, half-naked, crying, with a gag in her mouth.
After further berating the complainant, the defendant untied her, removed her gag, and dressed her. The defendant then told the complainant that he would go to a local mental health center to avoid going to jail for his actions. Carrying his rifle, the defendant took the complainant by the arm, back up the stairs and ordered her to sit at the kitchen table, where she eventually fell asleep. The complainant awoke the next morning at the kitchen table to find the defendant sitting across from her still holding the rifle. Immediately *677after she awoke the defendant began arguing with the complainant and when she attempted to escape from the house he pushed her to the floor. The complainant, while on the floor, yelled to her five year old daughter to run to a neighbor’s house and tell the neighbor that “her Daddy [was] hitting [her Mom].” The daughter apparently went to the neighbor’s house, but, finding no one there, she returned home. Later in the morning, the defendant sent J to the store for cigarettes while he held the rest of the family at gunpoint in the corner of the living room. The defendant told the boy that “if he said anything [while he was at the store about what was going on at the house, the defendant] would shoot [his mother].”
Eventually the defendant repaired the telephone and called his mother to ask her to come and get the children. While the children were getting into their grandmother’s car, the defendant forced the complainant at gunpoint into her own car, which he then drove to the parking lot of the Connecticut Mental Health Center where he freed her. Upon her release, the complainant went to the emergency room of a nearby hospital where she told medical personnel that she had been raped by the defendant. An examination of the complainant revealed multiple injuries, including bilateral circumferential abrasions on her wrists and ankles, and fresh bruises on her head, legs and right hip. The defendant surrendered himself at the mental health center and was later taken into custody by the police.
On appeal, the defendant argues that the trial court’s judgment of guilty of kidnapping in the second degree with a firearm, in violation of
“Abduct” and “restrain” are defined in
Even if we were to adopt the defendant’s somewhat strained interpretation of the definition of “abduct,” we conclude that the evidence on the record reveals that the defendant intended both to restrain the complainant and to prevent her liberation by outside forces and, therefore, his conviction of kidnapping in the second degree with a firearm in violation of
*680We next address the defendant’s claim that he was denied a fair trial by the action of the trial court in violating its own sequestration order. At the commencement of the trial, the defendant motioned the court for the sequestration of witnesses. The state did not object and the court granted the motion. After the complainant had testified as a state’s witness, the state called her daughter, S, to the stand to testify as to what she had witnessed in May, 1986. Before the state began its direct examination of S, however, the defendant objected to the presence of the complainant in the courtroom, arguing that although the complainant had already testified, the sequestration order prohibited her from being in the courtroom during her daughter’s testimony. A similar objection was made to the complainant’s presence diming J’s testimony. The state, pointing out that S was only six years old and that J was only eight, requested that the complainant be exempted from the order during their testimony as the event was likely to be an upsetting experience for the children. The trial court ruled that the complainant could remain in the courtroom during the children’s testimony because she had already testified and, therefore, her exclusion was not warranted to fulfill the purposes of its sequestration ruling. The court also stated that her presence was necessary to provide the children with “somebody [whom] they have been living with regularly ... in the courtroom for whatever comfort that [it would] give [them].”
Although § 876 is not discretionary and the complainant, as a witness, technically should have been sequestered, we conclude that the trial court did not commit reversible error in exempting her from its order and thereby allowing her to remain in the courtroom while the children were testifying. Our holding is based on the fact that, at the time the children took the stand, the complainant had already testified and, therefore, she was unable to tailor her testimony to correspond to that of her children. Since the purpose of the sequestration order was not undermined by the complainant’s presence in the courtroom during the children’s testimony,6 the trial court’s decision to exempt her from its order was not in any way prejudicial to the defendant in that regard.
*682We must next determine whether the complainant’s presence in the courtroom as a spectator* *****7 violated the defendant’s right to a fair trial. The defendant maintains that the trial court erred when it allowed the complainant to be in the courtroom during her children’s testimony as her presence allegedly inhibited them from testifying with total candor.8
*683The trial court has the authority “ ‘to exclude spectators [from the courtroom] whose presence intimidates the witness [testifying].’ Commonwealth v. Bohmer, [374 Mass. 368, 380, 372 N.E.2d 1381 (1978)]. See United States ex rel. Orlando v. Fay, 350 F.2d 967, 971 (2d Cir. 1965), cert. denied sub nom. Orlando v. Follette, [384 U.S. 1008,86 S. Ct. 1961,16 L. Ed. 2d 1021 (1966)] . . . United States ex rel. Laws v. Yeager, 448 F.2d 74, 81 (3d Cir. 1971), cert. denied. [405 U.S. 976, 92 S. Ct. 1201, 31 L. Ed. 2d 251 (1972)] . . . . ” Commonwealth v. Stetson, 384 Mass. 545, 550, 472 N.E.2d 926 (1981); cf. State v. Sheppard, 182 Conn. 412, 416, 438 A.2d 125 (1980) (trial court may exclude spectators to “foster full and truthful testimony”). Excluding spectators, however, is a matter that is within the discretion of the trial court; United States ex rel. Bruno v. Herold, 408 F.2d 125, 127 (2d Cir. 1969); see
After ruling that the complainant could remain in the courtroom during S’s testimony, the trial court noted that it would watch to see if she were influencing S’s testimony, stating: “I assure you [the complainant] will *684be in full view of this Court and I am sure that [the state’s attorney] will advise her that she is to do nothing by any motions, signs, whatever or however sometimes people in the audience frequently do to attempt to influence anything these children are saying.” The defendant points to no evidence that the complainant attempted to influence S’s testimony, and, in fact, the trial court stated after she had finished testifying that “the child never even looked in her mother’s direction as far as I could see and the mother did nothing, absolutely showed no reaction of any type to any respect of that child’s testimony.” Because the complainant had not influenced S’s testimony, the court ruled that she could remain in the courtroom while J was testifying. As with S’s testimony, there is nothing in the record to indicate that the complainant influenced J’s testimony. Although the complainant was present when J testified, his version of the incident in question was not totally favorable to her as he indicated that he was upset that the complainant was going to call the police on the defendant. Further, while there is evidence that J looked at his mother during cross-examination when he was being questioned about his attempt to write a note to the police, the defendant later took the stand and verified that the boy had written such a note. The fact that J looked at his mother while he was testifying about this incident, therefore, is no indication that she influenced him to falsify his testimony. Moreover, immediately after J looked at the complainant, the trial court reprimanded him. After that incident the defendant made no other objections claiming that J was looking at the complainant or that the complainant was attempting to influence him in any way.
Despite the lack of evidence that the complainant influenced S’s or J’s testimony at trial, the defendant argues that, as the custodial parent, her presence had an indirect inhibiting effect on the children. Accord*685ing to the defendant, the children colored their testimony to favor the complainant because they were fearful that if she heard them support the defendant they would be punished when they got home. The defendant, however, failed to articulate any such claim in the trial court. Further, the record fails to support such a claim as the defendant did not question the children during their competency examinations or during cross-examination, about their relationship with the complainant or ask whether she had persuaded them to lie about the incident or had influenced them in any way. Moreover, while the defendant suggested to the court that he would rather have a guardian appointed to sit in during the children’s testimony or have both himself and the complainant removed from the courtroom as alternatives to the complainant remaining in the courtroom, he never requested an evidentiary hearing or a voir dire of the children concerning any possible influence the presence of their mother might have on them. Accordingly, the record provided to us by the defendant is inadequate to support this claim. See State v. Woolcock, supra.
The defendant’s final contention is that J’s testimony should not have been used against him because it was not given under oath, as provided by
*686Prior to J’s testimony, the following colloquy took place:
“The court: [J], [the clerk] wants you to stand up and put your hand up in the air like that. You listen to what he says. He is going to ask you, are you going to tell the truth, and [if] you are going to tell the truth, you should say, yes. All right, do you understand?
“The Witness: Yes.
“The Court: All right, go ahead.
“The Clerk: You solemnly swear that the evidence you shall give concerning the case now in question shall be the truth, the whole truth and nothing but the truth so help you God?
“The Witness: Do I say it?
“The Court: If you are going to tell the truth when you answer these questions.
“The Witness: I am.
“The Court: You are going to tell the truth?
“The Witness: Yes.
“The Court: Thank you, [J], you can sit down.”
The above cited colloquy makes clear that J was under oath when he testified. The administration of an oath need not be formal in nature. See
Even if we were to find that no oath had been administered, we note that the defendant failed to object to J’s testimony on these grounds at trial. In Bassett v. Mechanics Bank of New Haven, 116 Conn. 730,166 A. 385 (1933), we concluded that where the defendants had failed to object at trial to the testimony of a witness who had not been sworn they could not raise the issue on appeal. In so holding, we stated, “counsel must have known [that unsworn testimony was being received by the court] and if they wished to raise any objection based upon it they should have called it to the attention of the trial court at the time, when any defect of this nature could have been remedied; not having done so they waived any such defect. Cady v. Norton, 31 Mass. (14 Pick.) 236 [1833] [in absence of waiver rule counsel might deliberately avoid objecting to a witness being unsworn in order to have a ground of appeal]; People ex rel. Niebuhr v. McAdoo, 184 N.Y. 304, 317, 77 N.E. 260 [1906]; Slauter v. Whitelock, 12 Ind. 338, 340 [1859]; State v. Hope, 100 Mo. 347, 355, 13 S.W. 490 [1890]; Moore v. State, 96 Tenn. 209, 33 S.W. 1046 [1896]; 3 Wigmore, Evidence (2d Ed.) § 1819 (b).” Id., 730-31; cf. State v. Spigarolo, supra; State v. Miller, 202 Conn. 463, 469, 522 A.2d 249 (1987) (the irregular administration of an oath must be objected to at trial in order to present the issue on appeal). The rule enunciated in Bassett v. Mechanics Bank, supra, is considered the general rule. See, e.g., United States v. Odom, 736 F.2d 104,114-16 (4th Cir. 1984); United States v. Perez, 65J F.2d 268, 273 (5th Cir. 1981) (“It has long been the general rule that even a failure to swear a witness may be waived. This may occur either by knowing silence and an attempt to raise objection after verdict or by the mere failure of counsel to notice the *688omission before completion of the trial”); Wilcoxon v. United States, 231 F.2d 384, 386-87 (10th Cir.), cert. denied, 351 U.S. 943, 76 S. Ct. 834, 100 L. Ed. 1469 (1956); Saxton v. State, 389 So. 2d 541, 543 (Ala. Crim. App. 1980); State v. Navarro, 132 Ariz. 340, 342, 645 P.2d 1254 (1982); Sewall v. Spinney Creek Oyster Co:, 421 A.2d 36, 39 (Me. 1980); State v. Embrey, 62 N.M. 107, 109, 305 P.2d 723 (1957); Brown v. Ristich, 36 N.Y.2d 183, 189, 325 N.E.2d 533, 366 N.Y.S.2d 116 (1975); State ex rel. Tucker v. Alvis, 55 Ohio L. Abs. 285, 286, 89 N.E.2d 328 (1949); Thomas v. Dad’s Root Beer, Etc., 225 Or. 166, 357 P.2d 418 (1960); Bowling Club v. Toronto, 17 Utah 2d 5, 8, 403 P.2d 651 (1965); In re Simmons Children, 154 W. Va. 491, 496, 177 S.E.2d 19 (1970); 58 Am. Jur. 2d, New Trial § 35; 81 Am. Jur. 2d, Witnesses § 414. Accordingly, by failing to object to J’s allegedly unsworn testimony at trial, the defendant has waived his right to raise the issue on appeal.10
In addressing the defendant’s claim that the trial court erred in finding J competent to testify, we note that “[t]he testimonial capacity of a child witness is a matter for the court to determine upon inquiry. State v. Segerberg, 131 Conn. 546, 547, 41 A.2d 101 (1945). In Connecticut, the examination to determine the competency of a witness is usually conducted by counsel under direction of the court, except insofar as the court may find it advisable to intervene. See State v. Orlando, 115 Conn. 672, 676, 163 A. 256 (1932). Because the *689competency of a witness is a matter peculiarly within the discretion of the trial court, its ruling will be disturbed only in a clear case of abuse or some error in law. State v. Siberon, 166 Conn. 455,457, 352 A.2d 285 (1974); State v. Orlando, supra, 675; Kuczon v. Tomkievicz, 100 Conn. 560, 572-73,124 A. 226 (1924).” State v. Rodriguez, 180 Conn. 382, 388-89, 429 A.2d 919 (1980); State v. Valeriano, 191 Conn. 659, 665, 468 A.2d 936 (1983) cert. denied, 466 U.S. 974,104 S. Ct. 2351, 80 L. Ed. 2d 824 (1984); State v. Manning, 162 Conn. 112, 115, 291 A.2d 750 (1971); C. Tait & J. LaPlante, supra, §§ 7.1, 7.2. The considerations that should govern the determination of competency, whether the witness is an adult or a child, are “ ‘the proposed witness’ maturity to receive correct impressions by his senses, ability to recollect and narrate intelligently, and ability to appreciate the moral duty to tell the truth. State v. Segerberg, [supra, 547]; Kuczon v. Tomkievicz, [supra, 570].’ State v. Manning, [supra]; see McCormick, Evidence (2d. Ed.) § 62; cf. note, 81 A.L.R.2d 386.” State v. Siberon, supra, 458. “ ‘ “[Judicial determination^] of the question of whether a witness should be heard at all [however,] should be abrogated in favor of hearing the testimony for what it is worth.” ’ ” State v. James, 211 Conn. 555, 564, 560 A.2d 426 (1989). Reviewing the record as a whole, we conclude that the trial court did not abuse its discretion in finding that J was competent to testify.
There is no error.
In this opinion the other justices concurred.
Notes
The defendant waived his right to a trial by jury.
“[General Statutes] Sec. 53a-94a. kidnapping in the second degree with a firearm: class b felony: one year not suspendable. (a) A person is guilty of kidnapping in the second degree with a firearm when he kidnaps in the second degree, as provided in section 53a-94, and in the commission of such offense he uses or is armed with and threatens the use of or uses or displays or represents by his words or conduct that he possesses a pistol, revolver, machine gun, shotgun, rifle or other firearm. No person shall be convicted of kidnapping in the second degree and kidnapping in the second degree with a firearm upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information.
“(b) Kidnapping in the second degree with a firearm is a class B felony for which one year of the sentence imposed may not be suspended or reduced by the court.”
“[General Statutes] Sec. 53a-94. kidnapping in the second degree: class B felony, (a) A person is guilty of kidnapping in the second degree when he abducts another person.”
“(b) Kidnapping in the second degree is a class B felony.”
The defendant was originally charged with kidnapping in the first degree, in violation of
In addition to assault in the third degree and the kidnapping charges, the substitute information also charged the defendant with sexual assault in the first degree, in violation of
“[General Statutes] See. 53a-96. unlawful restraint in the second degree: class a misdemeanor: (a) A person is guilty of unlawful restraint in the second degree when he restrains another person.
“(b) Unlawful restraint in the second degree is a class A misdemeanor.”
The state maintains that this issue was not raised in the trial court and, therefore, is not reviewable on appeal. We will address it, however, because the record is complete and the question is essentially one of law. Cochran v. McLaughlin, 128 Conn. 638, 644, 24 A.2d 836 (1942).
The trial court, in excluding the complainant from the sequestration order and allowing her to remain in the courtroom while her children were on the stand, stated: “[A]s I read [§ 54-85a] and [§ 876 of] the Practice Book . . . with respect to sequestration of witnesses . . . the purpose is to prevent a witness from sitting in, listening to prior witnesses testify and then tailoring his or her testimony to fit in with the version the earlier witness has given. Now this lady has testified she is finished. So obviously she can’t tailor her testimony to fit with anything these two children would *682say.” Although the complainant was not called back onto the stand for rebuttal testimony, the trial court noted that “if she should attempt to tailor her testimony to fit with different testimony given by either of the two children [on rebuttal], I think this Court is in a position to notice that and evaluate her testimony across the board accordingly. This isn’t a jury case. It is a court case. . . .”
The defendant relies on the fact that the complainant was a witness subject to a sequestration order. He argues that the purpose of a sequestration order is broader then merely preventing one witness from tailoring his testimony to that of another witness in that it is generally meant to provide for the removal of all witnesses from a courtroom where they will influence the witness testifying. Based on this contention, the defendant maintains that the complainant should not have been permitted to remain in the courtroom during the children’s testimony. We decline to adopt the defendant’s broad view of the purpose of a sequestration order and conclude that, on the present facts, where a sequestration order existed and a witness who has testified sought to remain in a courtroom, the witness’ status changed to that of a spectator and his presence was governed by principles of due process discussed, infra.
The defendant also attempts to characterize this issue as a violation of his state and federal constitutional rights to confrontation. He maintains that the complainant’s presence in the courtroom somehow “diluted” his ability to confront S and J. We reject this claim as the confrontation clause involves the defendant’s face-to-face contact with witnesses who are testifying and does not involve the presence of third parties. The defendant in this case was in the courtroom and had a full view of the children while they were testifying. He also had an opportunity to cross-examine the children without limitation. Accordingly, the defendant’s confrontation rights were fully protected. State v. Jarzbek, 204 Conn. 683, 529 A.2d 1245 (1987), cert. denied, U.S. , 108 S. Ct. 1017, 98 L. Ed. 2d 932 (1988).
It is curious that the defendant makes a confrontation clause claim on appeal when he suggested to the trial court that both he and the complainant leave the courtroom while the children testified. The right of face-to-face confrontation is waived if the defendant is voluntarily absent from the courtroom. Taylor v. United States, 414 U.S. 17, 19-20, 94 S. Ct. 194, 38 L. Ed. 2d 174 (1973).
* ** *
“for witnesses.
“You solemnly swear that the evidence you shall give, concerning the case now in question, shall be the truth, the whole truth and nothing but the truth; so help you God.”
The defendant claims that review is warranted under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), as the admission of unsworn testimony “deprived [him] of a fundamental constitutional right and a fair trial.” It is well settled, however, that no constitutional provision is violated when unsworn testimony is received. Broadhead v. Arizona Board of Pardons, 151 Ariz. 37, 41, 725 P.2d 744 (1986); State v. Doud, 190 Or. 218, 236, 225 P.2d 400 (1950); 81 Am. Jur. 2d, Witnesses § 44; cf. State v. Lizzi, 199 Conn. 453, 462, 508 A.2d 11 (1986) (no constitutional violation in the admission of inadmissible hearsay without exception).