State v. Anderson

Decision Date27 September 1988
Docket NumberNo. 6221,6221
PartiesSTATE of Connecticut v. Edward L. ANDERSON.
CourtConnecticut Court of Appeals

Kent Drager, Asst. Public Defender, with whom, on the brief was Joette Katz, Public Defender, for appellant (defendant).

Harry Weller, Deputy Asst. State's Atty., with whom, on the brief, was Jeremy Weingast, Former Asst. State's Atty., for appellee (State).

Before BIELUCH, DALY and STOUGHTON, JJ.

STOUGHTON, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of the crime of assault in the first degree in violation of General Statutes § 53a-59(a)(1). The defendant claims that the trial court erred (1) in allowing the defendant's prior conviction into evidence under its full title, (2) in failing to instruct the jury in accordance with the defendant's request to charge, (3) in stating that the defendant's use of a knife constituted deadly force, thus removing a factual issue from the jury's consideration, and (4) in improperly instructing the jury on the offense of assault in the first degree. We find no error.

The jury could reasonably have found the following facts. The defendant, Edward Anderson, and the victim, Pedro Ortiz, were involved in a traffic accident on Garden Street in Hartford. The fenders of their automobiles became locked and the defendant and Ortiz became embroiled in an argument. Ortiz picked up the defendant and threw him onto the hood of his car. The defendant then got back into his car while Ortiz stood by a nearby fence. A neighborhood crowd gathered around the scene of the accident. About five minutes later, the defendant left his car with a butcher knife concealed in his coat. He went around the crowd and tried to stab Ortiz. Shawn Grant, a friend of Ortiz, tried to stop the defendant and suffered cuts on his fingers. The defendant stabbed Ortiz twice in the side. Ortiz then ran down the street, but was stabbed in the back twice by the defendant. He was stabbed again when he stopped. The crowd then disarmed the defendant and beat him. The defendant subsequently escaped from the area before the police arrived.

I

The defendant elected to take the stand and raised, by way of a motion in limine, the admissibility of certain prior convictions for purposes of impeachment. The defendant's first claim is that the trial court erred in not ruling that the defendant's prior conviction in Massachusetts for "conspiracy to commit armed robbery" could be referred to only as either "a felony involving larcenous intent" or as "conspiracy to commit robbery." The defendant contends that by allowing his prior conviction to be referred to by its complete title, he was unfairly prejudiced. We disagree.

It is well established that the state may impeach the testimony of a criminal defendant by offering into evidence the defendant's previous conviction of a crime carrying a term of imprisonment for more than one year. State v. Crumpton, 202 Conn. 224, 520 A.2d 226 (1987); State v. DelVecchio, 7 Conn.App. 217, 508 A.2d 460 (1986); see General Statutes § 52-145(b). The admission of such evidence, however, is not automatic. The trial court must first weigh the probative value of the evidence against its prejudicial effect on the defendant. State v. Crumpton, supra, 202 Conn. at 228, 520 A.2d 226; State v. DelVecchio, supra, 7 Conn.App. at 219, 508 A.2d 460. This balancing process considers three factors: (1) the extent of the prejudice likely to arise; (2) the extent to which the particular crime relates to truthfulness and honesty; and (3) how much time has passed since the time of the prior conviction. State v. Crumpton, supra; State v. Sergi, 7 Conn.App. 445, 451, 509 A.2d 56 (1986). Evidence of prior convictions should be admitted unless the trial court finds its prejudicial effect "far outweighs its probative value." State v. Crumpton, supra; State v. Geyer, 194 Conn. 1, 6-7, 480 A.2d 489 (1984).

"Prior convictions which are admissible for purposes of impeachment have been divided into two categories: (1) those crimes which by their nature indicate a disposition toward dishonesty or a tendency to make false statements ... which also include more recently, crimes involving larcenous intent; and (2) those crimes which do not reflect directly on the credibility of one who has been convicted of them. State v. Schroff, 3 Conn.App. 684, 687, 492 A.2d 190 (1985)." State v. DelVecchio, supra, 7 Conn.App. at 220, 508 A.2d 460. Crimes that reflect a lack of veracity are highly probative of a witness' credibility, and are therefore more likely to be admissible. State v. Geyer, supra, 194 Conn. at 15-16 n. 9, 480 A.2d 489. Conversely, crimes that do not directly reflect on credibility are less probative and thus entitled to less weight in the balancing process. Id., 13, 480 A.2d 489.

Our Supreme Court has declared, however, that the admission into evidence of prior convictions that do not directly reflect on credibility need not be barred even though specifically naming the crime might result in extraordinary prejudice. In State v. Geyer, supra, 16, 480 A.2d 489 the court suggested that prior convictions that do not directly reflect on credibility might be referred to as "an unspecified crime" or "crimes carrying a penalty of more than one year." In this way, the character of a defendant could be impeached without subjecting the defendant to the extraordinary prejudice that might follow if the prior crime was specifically named. Id.

Our Supreme Court made it abundantly clear in State v. Crumpton, supra, that the Geyer holding was a limited one. In Crumpton, the court dealt with the admission of the defendant's prior conviction for robbery in the second degree. The court refused to accept the defendant's argument that because a robbery charge has both an aspect of larceny, which bears on credibility, and an aspect of violence, which is not as probative of credibility, the prior conviction should have been entered into evidence as an unspecified felony. State v. Crumpton, supra, 202 Conn. at 232, 520 A.2d 226. The court expressly agreed with our previous determination that the crime of robbery is inextricably intertwined with the crime of larceny, and thus directly relevant to credibility. Id., 229 n. 6, 520 A.2d 226. The court therefore upheld the refusal of the trial court to sanitize the prior conviction of robbery in the second degree. Id., 233, 520 A.2d 226.

This court will upset a trial court's order denying such a motion to exclude a defendant's prior record, offered to attack his credibility, only if the trial court has abused its discretion. State v. Binet, 192 Conn. 618, 623, 473 A.2d 1200 (1984). " 'The test used in determining if the court abused its discretion is whether the court could reasonably conclude as it did, and every reasonable presumption will be made in favor of the correctness of its action.' State v. Johnson, 4 Conn.App. 672, 673, 496 A.2d 522 (1985)." State v. Woodard, 11 Conn.App. 499, 506, 528 A.2d 404, cert. denied, 205 Conn. 802, 531 A.2d 940 (1987). We find no abuse of discretion here. In this case, there is little, if any, similarity between the prior conviction, conspiracy to commit armed robbery and the crime for which the defendant stood accused, assault in the first degree. There is little danger, therefore, that the prior conviction would result in the type of extreme prejudice that is generated when the defendant's prior conviction is for the same crime as that for which the defendant stands accused. See State v. Graham, 200 Conn. 9, 12, 509 A.2d 493 (1986); State v. Wright, 198 Conn. 273, 278, 502 A.2d 911 (1986); State v. Geyer, supra, 194 Conn. at 6, 480 A.2d 489; State v. Carter, 189 Conn. 631, 644, 458 A.2d 379 (1983); State v. Woodard, supra, 11 Conn.App. at 506, 528 A.2d 404. Moreover, it does not reasonably follow from his conviction for conspiracy to commit armed robbery that the defendant ever used a weapon. 1

Furthermore, it is well established that a prior conviction of "robbery with violence" is admissible because it is directly relevant to credibility. State v. Crumpton, supra, 202 Conn. at 229 n. 6, 520 A.2d 226; State v. DelVecchio, supra, 7 Conn.App. 217, 220, 508 A.2d 460; State v. Kuritz, 3 Conn.App. 459, 461, 489 A.2d 1053 (1985). We cannot discern how a prior conviction of conspiracy to commit armed robbery is any more prejudicial than one for "robbery with violence." If at all, it would seem less so. This prior conviction, because it involved robbery, was directly probative of the defendant's credibility. See State v. Crumpton, supra; State v. DelVecchio, supra. The trial court specifically and carefully weighed the probative value of this conviction against its prejudicial effect. 2 The defendant has not demonstrated that the prejudicial effect of the prior conviction "far outweighed" its probative value. There is no merit to this claim.

II

The defendant's second claim is that the trial court erred by failing to instruct the jury on self-defense in accordance with his request to charge. In particular, the defendant's claim is that the instructions given prevented the jury from considering that the defendant was justified in using force because he felt threatened by a hostile crowd. It is the defendant's contention that the instructions limited the jury to considering only the actions of the victim and the defendant in determining the justifiability of the defendant's actions. 3 We disagree. " 'When a proper request is filed pursuant to Practice Book § 852 or exception is taken pursuant to § 854 the test is whether the charge properly covered the substance of the written request or properly and adequately covered the specific subject matter of the exception.' State v. Kurvin, 186 Conn. 555, 561, 442 A.2d 1327 (1982). ' "[T]he charge must be considered from the standpoint of its effect on the jury in guiding them to a proper...

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