State v. Baker

Decision Date12 August 1980
Citation437 A.2d 843,182 Conn. 52
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Collin BAKER.

Suzanne Z. Gottlieb, Asst. Public Defender, with whom on the brief, was Jerrold H. Barnett, Public Defender, for appellant (defendant).

Robert J. O'Brien, Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty. and Guy W. Wolf III, Asst. State's Atty., for appellee (state).

Before COTTER, C. J., and BOGDANSKI, PETERS, HEALEY and PARSKEY, JJ.

COTTER, Chief Justice.

The defendant was convicted after a jury trial of burglary in the third degree in violation of General Statutes § 53a-103 and of larceny in the first degree in violation of General Statutes § 53a-122(a)(2) in connection with an unlawful entry in a building with intent to commit a crime therein and theft of personal property. He has appealed from the judgment rendered on the verdicts and raises four claims of error.

The jury could reasonably have found the following facts. The defendant entered the apartment of Margaret Russo on April 21, 1977, without her permission by prying open a window. Russo returned home at approximately 8 p. m. at which time she only caught a glimpse of the intruder's arm before he fled with several thousand dollars worth of personal articles which were not recovered. The police discovered the defendant's fingerprints on a black plastic coin bank which he had moved from the dining room to the bedroom during the burglary. The latent fingerprints found at the scene of the crime were identical to fingerprints of the defendant on file at the New Haven police department. Russo did not know the defendant and did not authorize him to remove any articles from her home. On June 7, 1978, the day before the trial began, the defendant submitted to fingerprinting. These prints also establish that the defendant, Baker, touched the plastic bank.

Baker testified and alleged that he accepted the invitation of an acquaintance, Dwight Willoughby, to cut through several backyards to a house which Willoughby identified as his girlfriend's but which in reality belonged to Russo. There, Willoughby asked the defendant to wait by the back door because his girlfriend did not like unanticipated visitors. Willoughby entered the house from another side and later opened the back door from the inside, wearing gloves, and told Baker to come in. When the defendant entered and followed Willoughby into the bedroom he saw that the drawers had already been pulled from the dresser. Willoughby then handed him a black plastic coin bank, at which point the defendant first realized what was happening and immediately left the house, taking nothing with him. Willoughby testified and denied the defendant's entire story.

I

The defendant argues for the first time on appeal that he was denied a fair trial because a state's witness improperly brought to the jury's attention the implication that the defendant had been previously involved in criminal activities. To establish that the defendant committed the crime in question the state introduced and compared three separate sets of fingerprints: those obtained from the plastic bank at the scene of the crime, the defendant's prints obtained the day before trial and a copy of the defendant's fingerprints taken by Officer John Lehr of the New Haven police department on August 11, 1976, and preserved on a card in a police department file. The state offered Lehr's testimony to lay the foundation for the admission of the fingerprint card dated August 11, 1976. After several preliminary questions Lehr testified concerning his responsibilities and duties on August 11, 1976, and stated "(i) n police nomenclature, I was the doorman at the detention facility."

Although the response given could be construed to have created some prejudice in the minds of the jurors, the question posed did not contemplate such a response. The witness could have answered, and indeed a more likely response to the question would have been, that it was his responsibility to take fingerprints. As soon as the statement was uttered the jury was excused. The defendant, however, at no time moved to strike the answer on which he bases this claim of error, nor did he request that the court give the jury any cautionary instructions concerning that answer. Moreover, the defendant's trial counsel at no time moved for a mistrial on grounds of undue jury prejudice or the court's failure either to strike the answer or to give a premonitary instruction to the jury. 1

Only the most exceptional circumstances will save a claim, constitutional or otherwise, from the fatal consequences of a defendant's failure to make a timely objection. State v. Briggs, 179 Conn. 328, 332, 426 A.2d 298, cert. denied, 447 U.S. 912, 100 S.Ct. 3000, 64 L.Ed.2d 862; State v. Rogers, 177 Conn. 379, 418 A.2d 50; State v. Adams, 176 Conn. 138, 406 A.2d 1; State v. Evans, 165 Conn. 61, 70, 327 A.2d 576. The policy behind this rule is both ancient and sound and "does not permit a defendant in a criminal case to fail, whether from a mistake of law, inattention or design, to object to matters occurring during a trial until it is too late for them to be corrected or even considered and then, if the outcome proves unsatisfactory, to raise them for the first time on an appeal." State v. Taylor, 153 Conn. 72, 86, 214 A.2d 362, 370, cert. denied, 384 U.S. 921, 86 S.Ct. 1372, 16 L.Ed.2d 442; State v. Evans, supra, 165 Conn. 66, 327 A.2d 576; State v. Tuller, 34 Conn. 280, 295. The defendant tries to equate this claim of error with the recognized exception "where the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial." State v. Evans, supra, 165 Conn. 70, 327 A.2d at 581. In the circumstances of this case he cannot now complain of the lack of a cautionary instruction. The remark he complains of revealed nothing of substance. The jury only heard Officer Lehr give his job title without any reference to the defendant or any prior crime for which the defendant may have been charged. Compare State v. Adams, supra.

On the present record before us the defendant's counsel may well have made a strategic decision that any further reference to Lehr's remark might have emphasized testimony which left no impact on the jury or which only obscurely hinted to the jury that the defendant may have been involved in prior criminal behavior. See, e.g., United States v. Carter, 448 F.2d 1245 (8th Cir.), cert. denied, 405 U.S. 929, 92 S.Ct. 981, 30 L.Ed.2d 802; State v. DeFreitas, 179 Conn. 431, 459 n. 14, 426 A.2d 799. The record here does not support the defendant's claim that Lehr's answer clearly deprived him of a fair trial.

II

The defendant also alleges denial of a fair trial due to prosecutorial misconduct in soliciting the testimony of Lehr in order to lay a foundation for, and the admission of the August 11, 1976 fingerprint card. He argues that misconduct was committed on the ground that Lehr was an unnecessary witness, that the state had knowledge that his testimony would be prejudicial to the defendant and that the August 11, 1976 fingerprint card was merely cumulative because post-arrest fingerprints were available to identify the defendant.

A prosecutor must make "patent fairness and impartiality" the foundation of official conduct; State v. Jones, 180 Conn. 443, 458, 429 A.2d 936 (Cotter, C. J., dissenting); and place justice for the guilty as well as the innocent before seeking convictions. State v. Jones, supra, 9; State v. Moynahan, 164 Conn. 560, 568, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S.Ct. 291, 38 L.Ed.2d 219. "A state's attorney should scrupulously avoid questions of probable impropriety." State v. Piskorski, 177 Conn. 677, 719, 419 A.2d 866; State v. Brown, 169 Conn. 692, 703, 364 A.2d 186. A demonstrated deliberate effort by a prosecutor to influence the jury against the defendant through the attempted introduction of obviously inadmissible evidence may entitle the defendant to a new trial. United States v. Woods, 486 F.2d 172 (8th Cir.); State v. Hafner, 168 Conn. 230, 249, 362 A.2d 925, cert. denied, 423 U.S. 851, 96 S.Ct. 95, 46 L.Ed.2d 74.

The defendant concedes the relevance of the fingerprint evidence but argues that its prejudicial effect, in light of Lehr's testimony that he, while a doorman at the detention facility, rolled those fingerprints, outweighed its probative value to such an extent that the card was obviously inadmissible when offered by the prosecutor. Evidence is admissible when it tends to establish a fact in issue or corroborate other direct evidence in the case. State v. Crowe, 174 Conn. 129, 384 A.2d 340. In State v. Ralls, 167 Conn. 408, 356 A.2d 147, this court recognized that "(i)n this age and particularly in these times it is a matter of common knowledge that fingerprinting is used in numerous branches of civil service and is not itself a badge of crime." Id., 418, 356 A.2d at 155. For this reason, there cannot be an automatic rule regarding the admissibility of such evidence. When, in the exercise of judicial discretion, a trial court determines that the probative value of the fingerprint card outweighs its prejudicial effect, the evidence may be admitted; State v. DeFreitas, 179 Conn. 431, 426 A.2d 799; State v. Turcio, 178 Conn. 116, 422 A.2d 749; State v. Moynahan, 164 Conn. 560, 597, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S.Ct. 291, 38 L.Ed.2d 219; so that the fact that the trial court in this case admitted the fingerprint card over the objection of the defendant is powerful evidence of its probativity. 2 Evidence which tends to indicate prior misconduct by the defendant may be admitted if it is substantially relevant for some purpose other than to show the probability that the defendant committed the crime for which he is on trial because he is a man of criminal tendencies. United...

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1 books & journal articles
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