State v. Barnes, 14928

• Decision Date: 02 May 1995
• Docket Number: No. 14928,14928
• Citation: 232 Conn. 740,657 A.2d 611
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Lamont BARNES.

Page 611

657 A.2d 611

232 Conn. 740

STATE of Connecticut v. Lamont BARNES.

No. 14928.

Supreme Court of Connecticut.

Argued Feb. 6, 1995.

Decided May 2, 1995.

Susan M. Hankins, Asst. Public Defender, for appellant (defendant).

Mitchell S. Brody, Asst. State's Atty., with whom, on the brief, were James E. Thomas, State's Atty., and Edward Wilson, Asst. State's Atty., for appellee (State).

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

NORCOTT, Associate Justice.

The sole issue in this certified appeal ¹ is whether the trial court improperly precluded the defendant, Lamont Barnes, from eliciting on cross-examination testimony that allegedly would have demonstrated that the victim of the defendant's alleged larceny had a motive to fabricate his testimony, thereby violating the defendant's rights to confrontation and to present a defense under the sixth and fourteenth amendments to the United States constitution. The defendant was convicted, after a jury trial, of larceny in the third degree in violation of General Statutes § 53a-124(a)(2). ² The Appellate Court affirmed his conviction; State v. Barnes, 33 Conn.App. 603, 637 A.2d 398 (1994); and we granted the defendant's petition for certification. Although we disagree with the Appellate Court's reasoning, we affirm the judgment on other grounds.

The underlying facts of this case are adequately set forth in State v. Barnes, supra, 33 Conn.App. at 604-605, 637 A.2d 398, and may be briefly summarized as follows: On December 21, 1991, the defendant visited Julius Levine, with whom he had been acquainted for fifteen years. Levine invited the defendant into his living room where several gifts, recently purchased by Janice Levine, Julius' wife, were displayed beneath a Christmas tree. The defendant left the Levine home after approximately six hours, and the Levines decided to leave and attend a party. Upon returning from that party later that evening, the Levines discovered that their home had been burglarized and that some dishes and other items valued at $2100 had been taken. The same evening, the defendant had visited a friend, Shelly Brown, and showed her some things that he claimed to have purchased, and sold one of the items, a set of dishes, to her for $10. The next day, Brown gave the dishes to Edward Hill, who returned the dishes to the Levines and gave a signed statement to the police as to the circumstances of the defendant's visit and the sale of the dishes to Brown.

At trial, in an attempt to have the jury infer that Levine might have had a motive to fabricate the robbery in order to defraud his insurance company, the defendant attempted to elicit testimony from Julius Levine that Levine had a drug habit, that his family was experiencing financial difficulties and that he previously had falsely reported robberies. ³ The state objected to the questions, and the trial court sustained the state's objections on the ground that the information sought was irrelevant.

The defendant appealed to the Appellate Court, claiming that the trial court had improperly excluded this line of inquiry, thereby depriving him of his rights to confrontation and to present a defense. State v. Barnes, supra, 33 Conn.App. at 611, 637 A.2d 398. ⁴ The Appellate Court concluded that because the defendant had made no offer of proof, the record was not sufficient to review his claim. State v. Barnes, supra at 611-12, 637 A.2d 398. Thereafter, this court granted the defendant's petition for certification on the question of whether the Appellate Court had properly concluded that it could not review the trial court's exclusion of the defendant's questions on cross-examination without an offer of proof. We conclude that the Appellate Court improperly determined that an offer of proof was required to preserve the record for appeal. In light of the record before us, however, we conclude that the trial court properly sustained the state's objection to the defendant's questions.

We first consider whether an offer of proof is required to preserve a record for appeal. This issue requires little discussion. In State v. Santiago, 224 Conn. 325, 330-31 n. 6, 618 A.2d 32 (1992), we stated that "[w]hile the defendant made no offer of proof to support the evidence to which the state objected, the defendant did take proper exceptions to the court's rulings and clearly stated that he was attempting to elicit evidence of bias. We are unaware of any of our cases, and the state has not presented us with any, requiring an offer of proof in order to preserve a claim of infringement [of] the right of cross-examination." ⁵ In Santiago, we decided that there was no requirement of an offer of proof to preserve the defendant's claim. We find no reason to depart from our conclusion in that case. We conclude, therefore, that the Appellate Court improperly concluded that an offer of proof was necessary in order to preserve the defendant's claim.

This conclusion, however, does not end our inquiry. We must also determine whether, under the facts of this case, the trial court properly denied the defendant the opportunity to cross-examine the victim with respect to purported drug use, financial problems and previous robberies. Our analysis of the defendant's claim is framed by the maxims of cross-examination. It is axiomatic "that the defendant is entitled fairly and fully to confront and to cross-examine the witnesses against him. U.S. Const., amends. VI, XIV; Conn. Const., art. I, § 8; Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974); Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973); Pointer v. Texas, 380 U.S. 400, 403-404, 85 S.Ct. 1065, 1067-1068, 13 L.Ed.2d 923 (1965); State v. Jones, 167 Conn. 228, 232, 355 A.2d 95 (1974); State v. Luzzi, 147 Conn. 40, 46, 156 A.2d 505 (1959)." State v. Hackett, 182 Conn. 511, 517, 438 A.2d 726 (1980). "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. Greene v. McElroy, 360 U.S. 474, 496, 79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377 (1959). Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. State v. Lubesky, 195 Conn. 475, 481-82, 488 A.2d 1239 (1985). In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the jury facts from which the jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. Davis v. Alaska, [supra at 318, 94 S.Ct. at 1111]; State v. Lubesky, supra [at], 482 . State v. Arline, 223 Conn. 52, 60, 612 A.2d 755 (1992)." (Internal quotation marks omitted.) State v. Santiago, supra, 224 Conn. at 331, 618 A.2d 32.

"The confrontation clause does not, however, suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination. State v. Johnson, 21 Conn.App. 291, 293, 573 A.2d 1218 (1990). Only relevant evidence may be elicited through cross-examination. State v. Gaynor, 182 Conn. 501, 509, 438 A.2d 749 (1980). The court determines whether the evidence sought on cross-examination is relevant by determining whether that evidence renders the existence of [other facts] either certain or more probable.... State v. Kelly, 208 Conn. 365, 376, 545 A.2d 1048 (1988)." (Internal quotation marks omitted.) State v. Kelley, 229 Conn. 557, 562, 643 A.2d 854 (1994).

The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. Every reasonable presumption should be made in favor of the correctness of the court's ruling in determining whether there has been an abuse of discretion. Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 569, 657 A.2d 212 (1995); State v. Kelley, supra, 229 Conn. at 563, 643 A.2d 854; State v. Hernandez, 224 Conn. 196, 208, 618 A.2d 494 (1992); State v. Willis, 221 Conn. 518, 522, 605 A.2d 1359 (1992); State v. Holliman, 214 Conn. 38, 50, 570 A.2d 680 (1990); State v. Parker, 197 Conn. 595, 601, 500 A.2d 551 (1985).

The proffering party bears the burden of establishing the relevance of the offered testimony. "Unless such a proper foundation is established, the evidence ... is irrelevant. [Hall v. Burns, 213 Conn. 446, 452, 569 A.2d 10 (1990) ]." Williams Ford, Inc. v. Hartford Courant Co., supra, 232 Conn. at 571, 657 A.2d 212. This may be accomplished in one of three ways.

First, the defendant can make an offer of proof. See State v. Kulmac, 230 Conn. 43, 63, 644 A.2d 887 (1994); State v. Conrod, 198 Conn. 592, 597, 504 A.2d 494 (1986); State v. Johnson, 28 Conn.App. 708, 713, 613 A.2d 1344 (1992), aff'd, 227 Conn. 534, 630 A.2d 1059 (1993); State v. James L., 26 Conn.App. 81, 85, 598 A.2d 663 (1991). Second, the record independently can be adequate to establish the relevance of the proffered testimony. See State v. Santiago, supra, 224 Conn. at 332, 618 A.2d 32; see also State v. Pittman, 209 Conn. 596, 602-605, 553 A.2d 155 (1989); State v. Hackett, supra, 182 Conn. at 517-20, 438 A.2d 726. Finally, the defendant can establish a proper foundation for the testimony by stating a "good faith belief" that there is an adequate factual basis for his inquiry. "A good faith basis on the part of examining counsel as to the truth of the matter contained in questions propounded to a witness on cross-examination is required." 1 C. McCormick, Evidence (4th Ed.) § 49, p. 187. A cross-examiner may inquire into the motivation of a witness if he or she has a good faith belief that a factual predicate for the question exists. See United States v. Peterson, 808 F.2d 969, 978 (2d Cir.1987); Springer v. United...