State v. Arline

• Court: Supreme Court of Connecticut
• Citation: 612 A.2d 755,223 Conn. 52
• Decision Date: 21 July 1992
• Docket Number: No. 14377,14377
• Parties: STATE of Connecticut v. George ARLINE.

Page 755

612 A.2d 755

223 Conn. 52

STATE of Connecticut v. George ARLINE.

No. 14377.

Supreme Court of Connecticut.

Argued April 29, 1992.

Decided July 21, 1992.

Thomas Ullmann, Asst. Public Defender, with whom, on the brief, was Shawn G. Tiernan, Deputy Asst. Public Defender, for appellant (defendant).

James M. Ralls, Asst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty., and Mary E. Baran, Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and CALLAHAN, GLASS, BORDEN and BERDON, JJ.

GLASS, Associate Justice.

After a trial to a jury, the defendant, George Arline, was convicted of the crime of sexual assault in the first degree in violation of General Statutes § 53a-70 (a). ¹ The trial court sentenced the defendant to a term of imprisonment of twenty years. The defendant appealed to the Appellate Court, which affirmed the judgment of the trial court. State v. Arline, 25 Conn.App. 653, 596 A.2d 7 (1991). This court thereafter granted the defendant's petition for certification to appeal. We reverse the judgment of the Appellate Court and direct that the case be remanded to the trial court for a new trial.

The jury could reasonably have found the following facts. On December 28, 1987, the complainant was sentenced to ninety days incarceration for two motor vehicle offenses. He was placed in the New Haven community correctional center, where he was assigned to a two person cell with the defendant. Shortly after lights out and the first bed check, the complainant was sexually assaulted by the defendant. The next day the complainant was transferred to a different correctional facility. He reported the alleged sexual assault to medical personnel at the new facility on the day following his arrival. Id., 25 Conn.App. at 655, 596 A.2d 7.

The defendant did not testify at the trial. Through cross-examination of the prosecution's witnesses and direct testimony of defense witnesses, however, the defendant presented evidence tending to discredit the complainant's testimony. In particular, the defendant elicited testimony from the complainant relating to the favorable disposition of certain criminal charges brought against him subsequent to the alleged sexual assault. The defendant also elicited testimony from the complainant pertaining to a notice of civil claim concerning the alleged sexual assault filed on the complainant's behalf against the state. The defendant offered this testimony to demonstrate possible motive or bias on the part of the complainant. Prior to final argument, the state filed a motion for a cautionary ruling to bar defense counsel from referring to the subsequent criminal charges or the potential civil claim. ² The trial court granted the state's motion on the ground that the argument the defendant proposed to make in summation on that testimony would be strictly speculative and without any basis in the evidence.

During summation, the defendant objected to several arguments made by the state. The defendant specifically objected to one question posed by the prosecutor, claiming that it was a comment on the defendant's failure to testify. Thereafter, the defendant moved for a mistrial. The trial court denied the defendant's motion.

On appeal to the Appellate Court, the defendant claimed that the trial court had unconstitutionally limited his final argument and had incorrectly denied his motion for a mistrial made on the basis of prosecutorial misconduct. ³ Id., 25 Conn.App. at 654, 596 A.2d 7. The Appellate Court concluded that the trial court had properly limited the scope of the defendant's final argument and that the trial court's instructions to the jury were sufficient to cure any improper remarks of the prosecutor. Id., 25 Conn.App. at 663-64, 596 A.2d 7.

We granted certification to review the judgment of the Appellate Court limited to two issues: (1) "Did the Appellate Court correctly conclude that the defendant's right to the effective assistance of counsel under the sixth amendment to the United States constitution was not abridged by the trial court's ruling regarding the scope of the defendant's final argument?"; and (2) "Did the Appellate Court correctly conclude that the defendant's privilege against self-incrimination under the fifth amendment to the United States constitution was not abridged by the state's statement in final argument: 'What motive does George Arline have to come and deny it?' " State v. Arline, 220 Conn. 924, 924-25, 598 A.2d 364 (1991). We reverse because we disagree with the Appellate Court's resolution of the first issue.

I

The defendant first claims that the trial court improperly restricted defense counsel from commenting on certain facts that had been elicited from the complainant on cross-examination, thereby violating the defendant's right to the effective assistance of counsel under the sixth amendment to the United States constitution. ⁴ On cross-examination, the complainant had testified that: (1) following the alleged sexual assault, his sentence had been modified from ninety to thirty days; (2) during the period between the alleged sexual assault and the trial, he had been arrested and charged with the crimes of larceny in the first degree, attempt to commit burglary in the third degree, attempt to commit larceny in the second degree and violation of probation, and he had received no jail time for these charges; ⁵ (3) he had a larceny charge pending at the time of trial; and (4) a notice of civil claim against the state of Connecticut had been filed with the claims commissioner on his behalf, without his permission. ⁶

Prior to final arguments, the trial court granted the state's motion for a cautionary ruling that precluded defense counsel from referring during summation to any charges against the complainant that had been nolled or disposed of subsequent to the alleged sexual assault or to any civil claim that the complainant might pursue with respect to the alleged sexual assault. ⁷ The defendant argues that the favorable dispositions of the criminal charges against the complainant in conjunction with the complainant's civil claim against the state supported an inference that the complainant's testimony had been motivated by these potential benefits. The defendant claims that, had the court permitted his argument in summation, the complainant's credibility would have been challenged. Although the defendant attempted to impeach the complainant's credibility on a number of grounds, the criminal charges and the civil claim provided the only evidence of motive or bias.

The Appellate Court upheld the ruling of the trial court and concluded that the defendant's constitutional right to the effective assistance of counsel had not been abridged. State v. Arline, supra, 25 Conn.App. at 661, 596 A.2d 7. The court reviewed the complainant's testimony and concluded that "no evidence was produced that would support the defendant's theory that the victim fabricated a story in exchange for favorable treatment or because of a pending lawsuit. His claim, therefore, remained speculation and the trial court properly refused to allow comment about it." Id., 662. We disagree with this conclusion of the Appellate Court.

" 'Counsel may comment upon facts properly in evidence and upon reasonable inferences to be drawn from them. State v. Kinsey, 173 Conn. 344, 348, 377 A.2d 1095 (1977). Counsel may not, however, comment on or suggest an inference from facts not in evidence. State v. Manley, 195 Conn. 567, 580, 489 A.2d 1024 (1985)....' " (Emphasis in original.) State v. Ross, 18 Conn.App. 423, 432, 558 A.2d 1015 (1989); State v. Huff, 10 Conn.App. 330, 340, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987). Even if the trial court admits incompetent evidence, it " 'may be relied on in argument, and alone or in part may support a verdict or finding....' " Cohen v. Cohen, 11 Conn.App. 241, 248, 527 A.2d 245 (1987), quoting C. McCormick, Evidence (3d Ed.) § 54. ⁸ Once testimony regarding subsequent criminal charges against the complainant and the existence of a civil claim had been admitted into evidence, therefore, the defendant had a right to argue in final argument any reasonable inferences from the facts elicited.

"In general, the scope of final argument lies within the sound discretion of the court; Schwarz v. Waterbury Public Market, Inc., 6 Conn.App. 429, 437, 505 A.2d 1272 (1986); subject to appropriate constitutional limitations. Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975) (complete denial of right to argue violates sixth amendment)." State v. Huff, supra, 10 Conn.App. at 341, 523 A.2d 906. It is within the discretion of the trial court to limit the scope of final argument to prevent comment on facts that are not properly in evidence, to prevent the jury from considering matters in the realm of speculation and to prevent the jury from being influenced by improper matter that might prejudice its deliberations. See Herring v. New York, supra, 422 U.S. at 862, 95 S.Ct. at 2555; State v. Herring, 210 Conn. 78, 102, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S.Ct. 3230, 106 L.Ed.2d 579 (1989); State v. Huff, supra, 10 Conn.App. at 340, 523 A.2d 906. "While we are sensitive to the discretion of the trial court in limiting argument to the actual issues of the case, tight control over argument is undesirable when counsel is precluded from raising a significant issue." State v. Ross, supra, 18 Conn.App. at 433, 558 A.2d 1015.

The testimony at issue in the present case was admitted into evidence pursuant to the defendant's right to confrontation under the sixth amendment to the United States constitution. "The primary interest secured by confrontation is the right to cross-examination; Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965); and an important function of cross-examination is the exposure of a witness' motivation in testifying....