State v. Askew

• Decision Date: 14 July 1998
• Docket Number: No. 15674,15674
• Citation: 245 Conn. 351,716 A.2d 36
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Willie ASKEW.

Page 36

716 A.2d 36

245 Conn. 351

STATE of Connecticut v. Willie ASKEW.

No. 15674.

Supreme Court of Connecticut.

Argued Jan. 20, 1998.

Decided July 14, 1998.

Sheila A. Huddleston, Special Public Defender, with whom was James W. Bergenn, Special Public Defender, for appellant (defendant).

Ronald G. Weller, Assistant State's Attorney, with whom, on the brief, were James E. Thomas, State's Attorney, and Rosita M. Creamer, Assistant State's Attorney, for appellee (State).

Before BORDEN, BERDON, KATZ, PALMER and McDONALD, JJ.

PALMER, Associate Justice.

The defendant, Willie Askew, was convicted after a jury trial of robbery in the first degree in violation of General Statutes § 53a-134 (a)(4). ¹ The trial court rendered judgment in accordance with the jury verdict, and the defendant appealed from the judgment of conviction to the Appellate Court, which affirmed the trial court's judgment. State v. Askew, 44 Conn.App. 280, 294, 688 A.2d 1346 (1997). We granted the defendant's petition for certification to appeal on the following issue: "Under the circumstances of this case, did the trial court prejudice the defendant by improperly excluding from evidence the victim's prior felony larceny conviction while allowing into evidence the defendant's prior conviction?" State v. Askew, 240 Conn. 928, 693 A.2d 300 (1997). We conclude that the trial court abused its discretion in excluding the victim's prior conviction and, consequently, we reverse the judgment of the Appellate Court. ²

The opinion of the Appellate Court sets forth many of the facts that the jury reasonably could have found. "[At approximately 9:45 p.m. on] February 28, 1994, Patsy Cobbs, while purchasing food in a pizza shop located on the corner of Bulkeley Avenue and Park Street in Hartford, noticed the defendant looking at her through the window of the shop. While walking home, she was approached by the defendant, who then pulled a handgun from his pocket, pointed it at her head and demanded money. The victim gave the defendant a pouch in which she kept her money, ³ and the defendant grabbed her food and fled.

"Officer John Inho was dispatched to the scene, and the victim described her assailant to Inho as a tall, slim black male in his late twenties or early thirties, wearing a black Starter jacket with lettering across the back that may have been the Raiders or Lakers logo and wearing black jeans and a black wool cap. Inho searched the area with the victim in his patrol car but failed to find the suspect. The officer drove the victim home.

"On that same evening, Nelson Bogan, the victim's boyfriend ... while walking on Capitol Avenue [with Joaquin Marvin], noticed a slim black male wearing a black jacket with a label on the back ... running very fast toward them and into an apartment building at 1052 Capitol Avenue. ⁴ A short time later, Yvonne Brown approached Bogan and Marvin and offered to sell the two men a stereo. Brown, Bogan and Marvin went to Brown's apartment located at 1052 Capitol Avenue. Bogan ... [later testified at trial] that the man [he] had seen earlier running toward [Marvin and him] on Capitol Avenue was present in the apartment. ⁵ While walking home after deciding not to purchase the stereo, Bogan and Marvin met Kimberly Mobley, a neighbor of the victim and a witness to the robbery from her third floor apartment window, ⁶ and Erica Cobbs, the victim's daughter, who informed them of the robbery. Bogan went to ... [the apartment that he shared with the victim] and, after hearing her describe the robber, realized that her description matched [that] of the person [who he had seen] running on Capitol Avenue. Bogan and Marvin began to search for the [person they believed was the] robber and found him with Brown on Park Street. The [suspect, who eventually was identified as the defendant,] ran away when they approached.

"Bogan and Marvin went to Capitol Avenue where they stopped Inho to tell him that they were chasing the [person who had robbed the victim.] They were soon joined by the defendant and Officer Antoni Kozieradzki, who was investigating the defendant's complaint that two men were chasing him. [After Bogan and Marvin identified the defendant as the person they had been chasing] Inho and Kozieradzki drove the defendant to the victim's apartment. When they arrived, Bogan went to the victim's apartment and brought her to the police car. The victim identified the defendant as the person who had robbed her." ⁷ State v. Askew, supra, 44 Conn.App. at 281-83, 688 A.2d 1346.

Following the jury's guilty verdict, the trial court rendered judgment sentencing the defendant to a term of imprisonment of twenty years. The defendant appealed to the Appellate Court, claiming that the trial court improperly: (1) denied his motion to suppress the victim's out-of-court and in-court identifications; (2) excluded the victim's felony larceny conviction; (3) refused to instruct the jury in accordance with United States v. Telfaire, 469 F.2d 552 (D.C.Cir.1972); ⁸ and deprived him of a fair trial by its cumulative actions. The Appellate Court rejected these claims, and this certified appeal followed. Because we conclude that the trial court abused its discretion in excluding the victim's felony conviction and, further, that the improper exclusion of the conviction was harmful, ⁹ we reverse the judgment of the Appellate Court.

The following additional facts are relevant to our resolution of the defendant's claim. After the jury had been selected, and immediately prior to the commencement of evidence, ¹⁰ the state requested a determination from the court regarding the admissibility, for impeachment purposes, of the victim's and Bogan's prior criminal convictions. The victim had a fourteen year old misdemeanor conviction of larceny and a ten year, seven month old conviction of larceny in the second degree, a felony. With respect to the latter conviction, the victim had received a suspended sentence and a period of probation, both of undisclosed duration, on July 6, 1984. Bogan had been convicted of third degree arson, a felony, on or about March 20, 1984. After serving a prison term for that offense, he was paroled on May 1, 1985. ¹¹

Although the defendant indicated that he did not intend to use the victim's prior misdemeanor conviction for impeachment purposes, he claimed that he was entitled to impeach the victim with her felony larceny conviction, noting that "[i]f we're applying a ten year standard ... it's just barely more than ten years, and certainly we feel that it would go towards credibility." The court rejected the defendant's request, stating: "It would seem to come under the application drawn from [the] federal rules by the Connecticut Supreme Court, and therefore the court will restrict ... any inquiry of a felony over ten years. And this would be over ten years." ¹² The state did not object to the defendant's use of Bogan's arson conviction for impeachment purposes. ¹³

Prior to the commencement of trial, the defendant filed a motion in limine seeking to exclude evidence of his prior convictions in the event he elected to testify at trial. ¹⁴ After a hearing on the defendant's motion prior to his trial testimony, the court granted the defendant's motion with respect to his prior misdemeanor conviction, but denied the motion with respect to his three year old felony conviction of third degree robbery. In light of the court's ruling, the defendant, on direct examination, testified that he had been convicted of a felony in 1992. ¹⁵

The assistant state's attorney, in her rebuttal closing argument, referred to the defendant's felony conviction, remarking: "Well, what details did we get from the defendant, and how credible is the defendant? First of all, he's a convicted felon. He was convicted in 1992 of a felony." Shortly thereafter, the assistant state's attorney commented: "[U]nlike the defendant and Yvonne Brown, there is no reason for you to question [the victim's] credibility. Mr. Marvin said, 'She's the one who looked in the robber's face. She's the one who can say whether it was the defendant.' And she has said so, continuously, steadfastly, and courageously, if you credit her testimony."

Finally, in its charge to the jury, the trial court, without objection, instructed the jury regarding the witnesses' prior felony convictions as follows: "[In] this case, you have received testimony concerning Mr. Bogan that he was ... convicted of a felony in 1984, and of the defendant that he was convicted of a felony in 1992. It is the law in this state to allow into evidence past convictions of felonies against any witness who testifies, to test his credibility. Likewise, explanations can be offered to show such convictions should have little or no effect on [the] truth or veracity of such [a] witness. You, as the fact finders, may apply such weight as you determine to the evidence of such convictions and the explanations offered to minimize the effect on a witness' truthfulness. Such evidence is only admitted to test the truthfulness of such witness, and not to show a propensity for the commission of a crime or of bad character."

We next set forth the well established principles that govern our review of the defendant's claim. "The credibility of a witness may be attacked by introducing the witness' conviction of a crime if the maximum penalty for that conviction is imprisonment exceeding one year. See General Statutes § 52-145(b); ¹⁶ State v. Braswell 194 Conn. 297, 307, 481 A.2d 413 (1984), cert. denied, 469 U.S. 1112, 105 S.Ct. 793, 83 L.Ed.2d 786 (1985)." (Internal quotation marks omitted.) State v. Carter, 228 Conn. 412, 430, 636 A.2d 821 (1994). Recognizing that "the inherent authority of the trial court to exclude evidence where its prejudicial tendency outweighs its probative value is particularly applicable to prior convictions otherwise qualifying for admission"; (internal quotation marks omitted) State v....