State v. Bausman

• Decision Date: 01 February 1972
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Cooke BAUSMAN III.

Page 312

294 A.2d 312

162 Conn. 308

STATE of Connecticut v. Cooke BAUSMAN III.

Supreme Court of Connecticut.

Feb. 1, 1972.

Howard T. Owens, Jr., Bridgeport, for appellant (defendant).

Arlen D. Nickowitz, Asst. State's Atty., with whom, on the brief, was Joseph T. Gormley, Jr., State's Atty., for appellee (state).

Before HOUSE, C.J., and THIM, RYAN, SHAPIRO and LOISELLE, JJ. RYAN, Associate Justice.

The defendant, in a trial to the jury, was convicted of having narcotic drugs under his control in violation of §§ 8 and 37(a) of Public Act No. 555 of 1967, now §§ 19-452 and 19-481(a) of the General Statutes (Rev. to 1968). The defendant's motion to set aside the verdict was denied by the trial court and from the judgment rendered thereon the defendant has appealed to this court.

The defendant assigns error in several rulings made by the trial court. In order to pass on these rulings a brief resume of the evidence presented by the state and by the defendant is necessary. On May 15, 1968, Thomas P. Rowan, a detective in the Stamford police department, accompanied by Detectives Edward McNulty and Albert Morris, went to a house located at 41 Long Hill Road in Stamford with a search warrant authorizing them to search the premises for narcotics. After the defendant Cooke Bausman III was advised of the search warrant he admitted Detective Rowan into the house. On the first floor there were a living room, a dining room, a kitchen, two bedrooms, a utility room, a bathroom and a porch. On the second floor there were three bedrooms, a utility room and a bathroom. Detective Morris went to the back door and was admitted to the premises by another detective. On a dresser, behind the mirror in one of the first-floor bedrooms, he found a plastic bag containing, inter alia, a substance identified as marijuana by Abraham Stolman, the chief toxicologist of the state department of health. In the same bedroom the detective found letters addressed to the defendant Bausman, receipts with Bausman's name on them and clothing. The defendant testified that he had lived in the first-floor bedroom and was in the process of changing to an upstairs room and that he had his personal effects in almost every room; that he and Walter J. Lewis paid the rent for the house and were the primary occupants, but that his brother, friends of his from college and other people whom he did not know were found by the defendant sleeping in his bedroom. He claimed that he had no knowledge that any marijuana was in the house.

Four of the seven assignments of error pursued by the defendant concerned the denial by the trial court of the defendant's motions for mistrial predicated on rulings by the trial court which the defendant claimed were prejudicial to him. In the first of these, Stolman, the state toxicologist, was testifying on direct examination concerning the contents of the plastic bag which was found in the bedroom and was brought to him for examination. He said that there were a tablespoon and a bluecoated tablet in the bag. According to his later testimony, this bag also contained marijuana. The defendant asked that the jury be excused and then moved for a mistrial on the ground that he was charged with having control of marijuana and since he was not charged with anything concerning a blue-coated tablet, the testimony was prejudicial to him; that an instruction to the jury to disregard the testimony about the tablet would not eliminate the problem, but would serve only to aggravate it. He requested that the court refrain from so instructing the jury. The trial court denied the motion for a mistrial. Thereafter, still in the absence of the jury, the court instructed the state's attorney to limit his interrogation of the witness to the determination of whether marijuana was present in the plastic bag. The defendant took no exception to the court's ruling.

In the second incident the defendant, on cross- examination by the state's attorney, was asked if he ever smoked marijuana. The defendant objected to the question, the objection was immediately sustained by the court and the jury were instructed to disregard the question and it remained unanswered. This occurred after the defendant had testified on direct examination that he was not aware that there was any marijuana in the house. The defendant moved for a mistrial on the ground that the mere asking of the question was prejudicial to the defendant. The court denied the motion. In another incident a detective, during direct examination by the state, on being asked to describe the interior of the house, replied that it was a 'hippy type style of house in my opinion.' On motion of the defendant the answer was stricken and the jury were instructed to disregard the answer. The defendant assigns error in the failure of the trial court to order a mistrial because of the detective's answer, although no such motion was made at the trial. In the final incident a detective testified on cross-examination that he found on the dresser in the bedroom certain letters and envelopes with the defendant's name on them, but that he did not have them with him in the courtroom. He was asked if there was any reason why he did not take any of the letters from the house and answered that the search warrant listed only stolen goods or narcotics. The defendant then moved that the answer be stricken. The court instructed the jury to disregard the answer but permitted the officer to testify in response to another question that the reason he did not take the letters from the house was because such items were not named in the warrant and to do so would have been exceeding the authority of the warrant. The defendant took no exception to the ruling but after a recess he moved for a mistrial on the ground that the officer's reference to stolen goods in the warrant was prejudicial.

The general principle is that a mistrial should be granted only as a result of some occurrence on the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial. Izzo v. Crowley, 157 Conn. 561, 565, 254 A.2d 904; Ferino v. Palmer, 133 Conn. 463, 466, 52 A.2d 433. The trial judge is the arbiter of the many circumstances which may arise during the trial in which his function is to assure a fair and just outcome. State v. Marquez, 160 Conn. 47, 52, 273 A.2d 689. There is no merit to any of the four motions for mistrial. The trial court exercised every precaution to protect the defendant's rights and its ruling in each instance was well within the wide range of discretion vested in the trial judge. State v. Savage, 161 Conn. --, 290 A.2d 221; Teitelman v. Bloomstein, 155 Conn. 653, 662, 236 A.2d 900; State v. Williamson, 134 Conn. 203, 204, 56 A.2d 460.

The defendant assigns error in the trial court's failure to strike testimony which was previously ruled inadmissible. On direct examination, the state's attorney asked detective Morris whether he had any conversations with the defendant. He replied affirmatively and the state's attorney then requested him to relate the conversation. Counsel for the defendant objected and the jury were excused. In the absence of the jury the defendant claimed that he spoke without benefit of the necessary Miranda warning, and the court excluded any...