223 Conn. 461 | Conn. | 1992
Lead Opinion
The defendant, Jose Daniel Paulino, was convicted of the crime of possession of cocaine with the intent to sell in violation of General Statutes § 21a-278 (b).
“Near exit 25, with Rodia about two car lengths behind and traveling at about eighty miles per hour, the front seat passenger in the Oldsmobile reached to his left, then swung his arm to the right, and threw a bag out the passenger side window. The bag landed near the guardrail alongside the highway. The Oldsmobile then left the highway on exit 25 and came to a stop after hitting a post near the exit ramp. When Rodia attempted to follow the Oldsmobile off exit 25, he lost control of his car, which left the ramp airborne, rolled over and went down an embankment. Rodia left the car and proceeded on foot back onto Interstate 95, where he retrieved the bag. Inside it was a brick-like package wrapped in tape, which a state toxicologist later identified at trial as a white powder that weighed one kilogram and contained 85 percent pure cocaine. The toxicologist testified that the cocaine could have been broken down for sale into ten thousand bags of the drug. Other state troopers, including Trooper Edward Alicea, also went to the accident scene, where the defendant was apprehended along with Pedro Navarro. At the state police barracks, the defendant and Navarro were given their Miranda
“The defendant told Alicea that he was a passenger in the Oldsmobile. He then invoked his right to counsel, and the discussion ceased. Shortly thereafter, the defendant was placed in a holding cell adjacent to Navarro. As Alicea was leaving, he overheard the defendant ask Navarro if Navarro had told the police anything. Alicea also heard the defendant tell Navarro that the defendant hoped Navarro did not tell the police anything. When Alicea interviewed Navarro, Navarro initially claimed that neither he nor the defendant was the driver of the car but that it had been driven by a third male. He then admitted to lying about the third male. He also told Alicea that he was traveling to Providence, Rhode Island, to look for work, that he had never been arrested and had always been employed, and that he had known there were drugs in the Oldsmobile but had nothing to do with them. Navarro also told Alicea that the package containing the cocaine belonged to the defendant.” State v. Paulino, supra, 26 Conn. App. 88-89.
Following his conviction, the defendant appealed to the Appellate Court claiming that: (1) “the trial court erred in admitting hearsay statements purportedly made by [Navarro] which inculpated [the defendant]”; (2) “the trial court [erred] in allowing unfairly prejudicial reference by the state to [the] defendant’s garb at a prior proceeding”; and (3) his “due process rights were violated by reference to his invocation of his right to silence.” The Appellate Court affirmed the judgment of the trial court and the defendant petitioned this court for certification to appeal from the decision of the Appellate Court. We granted his petition for certification; State v. Paulino, 221 Conn. 907, 600 A.2d 1362 (1992); limited to the following questions: “1. (a) Whether the Appellate Court correctly decided that it
I
The first certified question is composed of two parts. It asks: (1) whether the Appellate Court correctly decided that the trial court acted within its discretion in admitting inculpatory hearsay statements made by a nontestifying coarrestee; and (2) whether the Appellate Court correctly determined that such a claim raised no constitutional issues. We conclude that the Appellate Court was correct.
At trial, the state called Alicea to testify. Although Alicea had interviewed Navarro, the state, in its direct examination, did not ask Alicea to testify regarding that interview. During the defendant’s cross-examination of Alicea, however, the defendant elicited the fact that Alicea had interviewed Navarro. The defendant then proceeded to ask Alicea whether Navarro had stated that he had been the passenger in the Oldsmobile. The state objected to the defendant’s question, asserting that it called for a hearsay response. The defendant, citing State v. Gold, 180 Conn. 619, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148
The defendant proceeded to elicit from Alicea the fact that, on the evening of May 3, 1989, Navarro had told Alicea that he had not been the driver of the Oldsmobile. In response to questioning by the state on redirect examination, Alicea testified that, in the course of that May 3, 1989 interview, Navarro had also stated that the drugs in the car belonged to the defendant and not to him. The defendant objected to the state’s question, and his objection was overruled.
A
We first address the question of whether the Appellate Court correctly concluded that the trial court acted within its discretion in admitting Navarro’s statement that the cocaine belonged to the defendant.
“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. Roy, 173 Conn. 35, 50, 376 A.2d 391 (1977); McCormick, Evidence (3d Ed. 1984) §§ 32, 57. The party who initiates discussion on the issue is said to have 'opened the door’ to rebuttal by the opposing party. Even though the rebuttal evidence would ordinarily be inadmissible on other grounds, the court may, in its discretion, allow it where the party initiating inquiry has made unfair use of the evidence. United States v. Winston, 447 F.2d 1236, 1240-41 (D.C. Cir. 1971); State v. Glenn, 194 Conn. 483, 499, 481 A.2d 741 (1984); State v. Roy, supra; McCormick, supra, § 57.” State v. Graham, 200 Conn. 9, 13, 509 A.2d 493 (1986); see State v. Williams, 220 Conn. 385, 393, 599 A.2d 1053 (1991). In Stale v. Graham, supra, we stated that “ ‘[t]his rule operates to prevent a defendant from successfully excluding inadmissible prosecution evidence and then selectively introducing pieces of this evidence for his own advantage, without allowing the prosecution to place the evidence in its proper context.’ United States v. Lum, 466 F. Sup. 328, 334 (D. Del. 1979).” See C. McCormick, supra, § 56.
In determining whether otherwise inadmissible evidence should be admitted to rebut evidence offered by an opposing party, the “trial court must carefully con
The defendant claims that the prejudice caused to him by the introduction of Navarro’s statement that the cocaine belonged to the defendant outweighed any legitimate benefit to the state in rebutting Navarro’s statement that he had been the passenger in the vehicle. We agree with the Appellate Court that the trial court did not abuse its discretion in allowing the state to introduce Navarro’s statement.
The evidence at trial indicated that the passenger in the Oldsmobile had thrown the cocaine from the vehicle. The defendant offered Navarro’s hearsay statement that Navarro was the passenger on the basis that that statement indicated that Navarro, and not the defendant, was the person who had possessed the cocaine. We agree that it would have been reasonable for the jury to have inferred that the cocaine had belonged to the person who had discarded it, and that Navarro’s statement that he was the passenger indicated that the cocaine had belonged to him. In order to show otherwise, the state offered Navarro’s statement, made contemporaneously in the same interview as the statement introduced by the defendant, that the drugs had belonged to the defendant. That statement,
B
We next address the question of whether the Appellate Court correctly concluded that the defendant’s claim that Navarro’s statement was improperly admitted failed to assert a constitutional violation. We conclude that the Appellate Court was correct.
The defendant asserts that the introduction of Navarro’s hearsay statement that the cocaine belonged to the defendant violated his right to confront the witnesses against him as provided by the sixth amendment to the United States constitution.
We conclude, however, that, because this particular evidence was properly admitted, there was no impermissible violation of the defendant’s constitutional right
II
The second certified question is also in two parts. The first part asks whether the Appellate Court correctly determined that the defendant’s claim on appeal, that the trial court had improperly admitted testimony that the defendant had worn a bag over his head at a pretrial hearing, differed from his claim at trial. The second part asks whether the Appellate Court properly considered the defendant’s claim that the introduction of that evidence violated fundamental fairness.
On February 28, 1990, at a pretrial hearing at which police witnesses were expected to appear, the trial court announced that defense counsel preferred that the defendant not be present at the hearing. The court stated that defense counsel had informed it that he
At trial, on March 26, 1990, the state announced that it would be calling Trooper Rodia to testify. To prevent Rodia from observing the defendant, defense counsel requested that the defendant be allowed to leave the courtroom while Rodia testified.
Later that same day, the state moved the trial court to require the defendant to appear in court to be identified by the state’s witnesses. The state commented that if it were unable to require the defendant to appear, it would argue that the defendant’s actions
Following the above colloquy among the trial court and counsel, the state prepared to call Robert Kenney of the Connecticut state police to testify. Prior to Kenney’s appearance, the state informed the trial court that it intended to ask Kenney if he recalled testifying at an earlier hearing where a person had been present wearing a bag over his head. The defendant objected, and asked that the court limit the state to asking whether the defendant “[absented] himself from the [earlier] proceeding.” The trial court stated that it would allow the question as phrased because that was, in fact, what had occurred at the prior hearing. The defendant took exception to the court’s ruling.
Subsequent to its ruling, the trial court asked the state to describe the context in which the state anticipated that it would ask the question about the paper bag. The state explained that it would need to demonstrate that the officer could identify the defendant as having been present at the scene of the crash near Interstate 95. The state suggested that it would ask the officer if he recalled the man at the scene, and whether that man looked similar physically to the man that had been present at the pretrial hearing with a bag over his head. The state commented that it was clear that the man wearing the bag over his head was the defendant because the court had so noted that fact. Accordingly, the state would have demonstrated that the officer was able to state that the defendant looked similar to the man at the scene. Such testimony, the
Thereafter, the trial court excused the jury and the state completed an offer of proof, eliciting the following testimony from Kenney. Kenney was present at a pretrial hearing and observed an individual seated at the defense table. Kenney also observed that the individual was wearing a paper bag over his head. Although Kenney could not see the person’s face, he was able to observe his proportions, and Kenney believed that the person had similar proportions to those of the defendant, except that the individual at the hearing appeared to have been heavier.
Following the state’s offer of proof, the defendant objected to the introduction of the proffered testimony stating, “he doesn’t necessarily [need] to say he had a bag over his head. He [could] be asked for example in a question, have you seen him since; and it would be [a sufficient] question.” The trial court overruled the defendant’s objection, but, at the same time, it stated that it was leaning toward requiring the defendant to appear to be identified. In the presence of the jury, the state called Kenney to testify. Kenney then recounted that at a previous stage in the proceedings there had been an individual with a bag over his head who had been seated next to defense counsel. Kenney also testified that the individual with the bag over his head had similar proportions to those of the man he had observed at the scene near Interstate 95 on May 3, 1989.
On March 27, 1990, the day after Kenney commenced his testimony, the trial court announced that it would require the defendant to be present to be identified by the state’s witnesses. Following the trial court’s ruling, the defendant returned to the courtroom. The state recalled Kenney to testify, and Kenney identified the
On March 28, 1990, the defendant conducted his cross-examination of Alicea, who had interviewed the defendant on May 3, 1989. In the course of that cross-examination, the defendant attempted to challenge Alicea’s ability to identify the defendant as the man that Alicea had interviewed on the day of the offense. The defendant elicited the fact that Alicea had been present at a prior hearing and that Alicea had observed the state’s attorney, codefense counsel, and several others in the courtroom. Defense counsel then elicited that, subsequent to the day of the defendant’s arrest, Alicea had not seen the defendant until March 27, 1990. On redirect examination, the state asked Alicea if he recalled the defense counsel asking him whether he remembered seeing several people at a prior hearing, and Alicea testified that he did recall the questions.
In his appeal to the Appellate Court, the defendant claimed that the trial court unfairly allowed the
A
We first address the question of whether the Appellate Court correctly decided that the defendant failed properly to preserve his evidentiary claims at trial. We will address the defendant’s claims in this regard as they relate to the testimony of both Alicea and Kenney. Initially, our review of the transcript demonstrates that the Appellate Court properly concluded that the defendant’s objection concerning the evidence introduced through Alicea was not sufficient to preserve his evidentiary claim that the testimony regarding the paper bag was more prejudicial than probative or that
“Practice Book § 288 provides in pertinent part that ‘[wjhenever an objection to the admission of evidence is made, counsel shall state the grounds upon which it is claimed or upon which objection is made, succinctly and in such form as he desires it to go upon the record, before any discussion or argument is had.’ Section 4185 provides in relevant part that the Supreme Court is not ‘bound to consider a claim unless it was distinctly raised at the trial. . . .’We have noted that ‘[t]he purpose of the rule requiring that an exception be taken that distinctly states the objection and the grounds therefor is to alert the court to any claims of error while there is still an opportunity for correction.’ State v. Utz, 201 Conn. 190, 207, 513 A.2d 1191 (1986). This rule is essential to avoid trial by ambush [of the presiding judge and the opposing party]. State v. King, 216 Conn. 585, 590, 583 A.2d 896 (1990).” State v. Dennison, 220 Conn. 652, 657, 600 A.2d 1343 (1991).
The state argues that the defendant’s objection was insufficient to preserve his claim as to Kenney’s testimony because it failed to state distinctly the grounds upon which it was based. Our review of the transcript, however, demonstrates that the defendant clearly informed the trial court that he believed that any reference by Kenney to the paper bag was unnecessary and harmful. Although the defendant’s objections regarding Kenney’s testimony failed to incorporate the specific language that he now uses on appeal, the objections
B
Having determined that the defendant adequately preserved his claim that Kenney’s testimony regarding the paper bag was more prejudicial than probative, we will address the merits of that claim. “ ‘[T]he determination of whether the prejudicial impact of evidence outweighs its probative value is left to the sound discretion of the trial court judge and is subject to reversal only where an abuse of discretion is manifest or injustice appears to have been done.’ State v. Braman, 191 Conn. 670, 681-82, 469 A.2d 760 (1983); State v. Tucker, 181 Conn. 406, 416, 435 A.2d 986 (1980).” State v. Rinaldi, 220 Conn. 345, 355, 599 A.2d 1 (1991).
We conclude that Kenney’s testimony that he had observed the defendant wearing a paper bag over his head at a pretrial hearing was more prejudicial than it was probative, and that the trial court abused its discretion in admitting it into evidence. The only probative value that the evidence legitimately had was that it tended to bolster Kenney’s identification of the defendant. In view of the fact that the defendant appeared in court and was positively and unequivocally identified by Kenney, the utility of the evidence for that purpose was minimal.
C
Although we conclude that Kenney’s testimony was more prejudicial than probative and that the trial court abused its discretion, we also conclude that the error was harmless.
Because his claim is evidentiary and not constitutional, the defendant “bears the burden of establishing that the trial court’s erroneous ruling was harmful to him in that it probably affected the outcome of the trial. State v. Burak, 201 Conn. 517, 527, 518 A.2d 639 (1986); State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985).” State v. Dennison, supra, 661. Our review of the transcript demonstrates that the state produced compelling evidence of the defendant’s identity and guilt. Furthermore, although the testimony concerning the paper bag was introduced into evidence, neither the state nor the defendant made any mention of
D
Finally, we address whether the Appellate Court properly concluded that the introduction of the testimony concerning the defendant’s wearing of the paper bag was not violative of the defendant’s due process right to fundamental fairness.
Although we agree with the Appellate Court that the defendant failed to preserve this constitutional claim, the defendant may still prevail if he demonstrates: “(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. In the absence of any one of these conditions, the defendant’s claim will fail . . . .” State v. Golding, supra, 239-40; State v. Niblack, 220 Conn. 270, 278, 596 A.2d 407 (1991).
“The essence of due process is fundamental fairness. United States ex rel. Crist v. Lane, 745 F.2d 476, 482 (7th Cir. 1984), cert. denied, 471 U.S. 1068, 105 S. Ct. 2146, 85 L. Ed. 2d 503 (1985). Due process is an ele
Although we conclude that Kenney’s testimony regarding the defendant’s wearing of a paper bag should not have been admitted, we disagree that either its admission or the admission of Alicea’s testimony can be characterized as shocking to the universal sense of justice. Accordingly, the defendant has not satisfied the third prong of the test set forth in State v. Golding, supra, and he may not prevail on this claim.
The judgment of the Appellate Court is affirmed.
In this opinion Glass, Covello and Borden, Js., concurred.
General Statutes § 21a-278 (b) provides in relevant part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marihuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. . . .”
Miranda v. Arizona, 384 U.S. 436, 467-73, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The trial court stated: “If this goes in, I’m going to allow it; then other portions of that statement may come in. The statements that were kept out yesterday will not come in. But this — it [may be] that this whole statement will come in if this question is allowed which I will allow if you ask it. I want you to be forewarned.”
The sixth amendment to the United States constitution provides in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him . . . .”
It appears that the defendant was under the impression that he could not be required to appear at trial, and that he also believed that in his absence the state would have difficulty in establishing the element of identification.
The state’s attorney asked: “A couple of other questions were asked by [defense counsel] regarding your appearance at a previous time. And he went through touching myself and other members of the courtroom that are on this side of the room; and then asked you if the first time you saw Mr. Paulino, I believe was yesterday when you sat here in court. Do you remember [that] series of questions, Trooper Alicea?”
Defense counsel stated only: “I would object to this line of questioning Your Honor.”
The defendant also claims that, despite his failure to preserve the fundamental fairness claim, he should prevail upon that claim under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We address that issue in part II B, infra.
Although the defendant had not been present for Kenney to identify at the time that Kenney testified regarding the paper bag, that testimony was elicited by the state at the very end of the day and the state had previously moved to require the defendant’s presence and was fully aware that the issue would be determined by the trial court the next morning. Furthermore, the trial court made it clear that it was leaning toward requir
Again, although the Appellate Court addressed only the defendant’s claim regarding Alicea’s testimony, our analysis also encompasses the evidence offered through Kenney.
Dissenting Opinion
dissenting. This was a prosecution of the defendant for possession of cocaine with intent to sell. The trial court, over the timely and forceful objection of the defendant, allowed the police officer, Alicea, to testify as to the out-of-court statement of Navarro, a coarrestee in this incident, that the cocaine belonged to the defendant. The statement was extremely incriminating hearsay that went to the very heart of the case—whether the defendant possessed the cocaine.
The majority effectively ignores the defendant’s claim under the sixth amendment to the United States con
In Ohio v. Roberts, 448 U.S. 56, 63, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), the United States Supreme Court noted that, although a literal reading of the sixth amendment would bar all hearsay, the clause was never so intended. “The historical evidence leaves little doubt, however, that the Clause was intended to exclude some hearsay .... Moreover, underlying policies support the same conclusion. The Court has emphasized that the Confrontation Clause reflects a preference for face-to-face confrontation at trial, and that a primary interest secured by [the provision] is the right of cross-examination. In short, the clause envisions a personal
The United States Supreme Court recently enunciated a standard for analyzing whether the admission of hearsay evidence comports with an accused’s sixth amendment right of confrontation. “Where proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied.” White v. Illinois, 502 U.S. , 112 S. Ct. 736, 738, 116 L. Ed. 2d 848 (1992).
Indeed, Navarro’s self-serving statement is the rankest sort of hearsay, containing no semblance of reliability. As this court has noted, “courts have failed to find sufficient indicia of trustworthiness surrounding inculpatory statements made against a codefendant by a third party in police custody, to warrant their admission.” State v. Boyd, 214 Conn. 132, 139, 570 A.2d 1125 (1990). In such situations, there are “ ‘obvious motives for falsification—the very natural desire to curry favor from the arresting officers, the desire to alleviate culpability by implicating others, the enmity often generated in a conspiracy gone awry, the desire for revenge, all might lead an arrestee-declarant to misrepresent or to exaggerate the role of others in the criminal enterprise.’ ” Id., 140, quoting United States v. Sarmiento-Perez, 633 F.2d 1092, 1102 (5th Cir. 1981).
Even more importantly, Navarro’s inculpatory and unreliable statement, if believed by the jury, assured the defendant’s conviction. The open door doctrine simply cannot justify this invasion of the defendant’s constitutional rights. He cannot be held to have opened the door so wide as to invite the state to trample on his constitutional right to confront his accusers.
I would reverse the judgment and order a new trial because the admission of Navarro’s inculpatory state
I dissent.
Although the defendant also claims a violation of his right of confrontation under the state constitution, I limit my discussion to the federal constitution because he has failed to provide any meaningful analysis of the issue under the state constitution. State v. Joly, 219 Conn. 234, 258 n.16, 593 A.2d 96 (1991).
The only case cited by the majority in support of this proposition is Sanville v. State, 593 P.2d 1340, 1344 (Wyo. 1979). In a few sentences, the Sanville court concluded that evidence admitted under the open door doctrine did not violate the accused’s right of confrontation. The court offered no reasoning whatsoever for its conclusion. Furthermore, it is interesting to note that the court that decided Sanville in 1979 did not have the benefit of the United States Supreme Court’s 1980 decision on this subject in Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 489 (1980). See discussion of Roberts, infra.
In White v. Illinois, 502 U.S. , 112 S. Ct. 736, 742, 116 L. Ed. 2d 848 (1992), the United States Supreme Court dispensed with the additional requirement, announced previously in Ohio v. Roberts, 448 U.S. 56, 63, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), that the hearsay declarant must be unavailable to testify. The government must still prove unavailability of the declarant, however, when it seeks to admit the evidence under a hearsay exception that requires that the declarant be unavailable to testify.