State v. Binet

• Decision Date: 10 April 1984
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Jose M. BINET.

Page 1200

473 A.2d 1200

192 Conn. 618

STATE of Connecticut v. Jose M. BINET.

Supreme Court of Connecticut.

Argued Dec. 8, 1983.

Decided April 10, 1984.

Eugene J. Riccio, Asst. Public Defender, for appellant (defendant).

Richard F. Jacobson, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty. and Christine O'Sullivan, Asst. State's Atty., for appellee (state).

Before PETERS, ARTHUR H. HEALEY, PARSKEY, SHEA and GRILLO, JJ.

ARTHUR H. HEALEY, Associate Justice.

The defendant, Jose M. Binet, was convicted by a jury of robbery in the first degree in violation of General Statutes § 53a-134(a)(4), ¹ which crime occurred on October 23, 1979, in Bridgeport. On appeal, he claims that the trial court erred: (1) in denying his motion in limine which sought to prevent his impeachment by the use of his February 1, 1980, conviction of robbery in the third degree, and (2) in denying his motion for a mistrial.

Certain evidence should be set out to put the issues on appeal in proper focus. On October 23, 1979, at about 11 p.m., Richard Brackett had stopped his car for a traffic signal at an intersection in Bridgeport. While stopped, he was accosted by two young males, one of whom had a handgun. The two males were the defendant and one Frank O'Grine. One pointed the gun to the victim's head and told him to take off his glasses and get out of the car. He was sprayed with something he later found out was some sort of mace and he was ordered to get into the back seat. The two males got into the front seat and asked the victim to give them his money and a short leather jacket he was wearing. After he had done so, he was ordered out of his car. Brackett thereupon went into a nearby bar and telephoned the police. Officer Lawrence Sobkowich, who was in the area, received a radio transmission in his squad car concerning the robbery. That officer spotted Brackett's car, verified its license number with the radio room and radioed for the assistance of another car. Another car in the area manned by Officers Anthony Gomes and Alan J. Stach was dispatched and joined Sobkowich. After some pursuit, two police cars forced the Brackett car to a halt in the area of Father Panik Village, a housing development. The defendant exited the car and started across the street. Sobkowich shouted: "Stop. Police." The defendant turned in Sobkowich's direction. At the trial, Sobkowich testified that "[i]n, I believe, his right hand he had a pistol, a revolver. I fired one shot at him and he fled." When Gomes got out of his car, he heard "a gunshot." Gomes, who had been a special policeman for five years in Father Panik Village before becoming a regular policeman, recognized the defendant as he left the Brackett car. Although Gomes chased the defendant some distance into Father Panik Village, he lost the defendant behind some buildings. Gomes never saw the defendant "shoot anything" that night. O'Grine was chased and apprehended by Officer Stach. Stach testified that as he was chasing O'Grine, "someone fired a shot behind me."

The defendant was not arrested for the October 23, 1979 robbery until May 19, 1980. When he was arrested, he admitted taking part in that robbery. Officer Robert Mencel, who arrested him at that time, testified that the defendant said that the gun used was a "blank gun."

The defendant's first claim of error is the denial of his motion in limine which sought to preclude the state from impeaching him with his prior conviction of robbery in the third degree dated February 1, 1980. ² In this motion, ³ the defendant maintained, inter alia, that "the probative value of this evidence on the issue of credibility is far outweighed by the risk of unfair prejudice." At the hearing on this motion, the defendant stressed the fact that not only did the prior conviction involve a similar crime, but that the prior felony conviction and the instant robbery, both of which occurred in Bridgeport, were quite close in point of time--about nine months before trial. He also pointed out that the instant robbery occurred on October 23, 1979. The state argued that a prior felony conviction could properly be used to attack credibility and that a cautionary instruction by the court to the jury that its use went to credibility could be given.

In denying the defendant's motion, the court said that there had been "at this stage ... no showing on the defendant's part ... that the prejudicial effect on him of this type of inquiry by the State would outweigh the probative value on the issue of credibility." The court made the observation that what defense counsel was suggesting was that in each case where a defendant had a prior conviction of the crime with which he was presently charged, "that would automatically constitute prejudicial impressions on the Jury which the Court should protect against." Although it ruled against the defendant, it said that it did not "know how I would think, at the time that that is attempted to be used, how the case would come in up to that point, whether it would be prejudicial at that point in time." The court told defense counsel that his motion could be renewed at trial. We find no error in the court's ruling.

In considering the motion in limine, we look to certain established guidelines to furnish direction for ruling on this claim. There is, of course, no per se rule prohibiting impeachment of a defendant by proof of a prior conviction of a crime similar to that for which he is being tried when that prior conviction is offered to attack his credibility. The fact that such evidence does not merely show criminal tendencies but may also be significant in proving some of the issues in a case does not alone justify its admission because the court must also weigh its probative value against its prejudicial tendency. State v. Carter, 189 Conn. 631, 640, 458 A.2d 379 (1983); State v. Nardini, 187 Conn. 513, 519-20, 447 A.2d 396 (1982); State v. Falby, 187 Conn. 6, 23, 444 A.2d 213 (1982). The weighing or balancing process invokes the exercise of a sound judicial discretion. See State v. Nardini, supra, 187 Conn. 521-22, 447 A.2d 396; State v. Bitting, 162 Conn. 1, 10, 291 A.2d 240 (1971); State v. Marquez, 160 Conn. 47, 52, 273 A.2d 689 (1970). A trial court's decision denying a motion to exclude a witness' prior record, offered to attack his credibility, will be upset only if the court abused its discretion. See State v. Nardini, supra, 187 Conn. 644, 447 A.2d 396; State v. Bitting, supra, 162 Conn. 10-11, 291 A.2d 240.

"Evidence has probative value if it tends to prove an issue." United States v. Ball, 547 F.Supp. 929, 934 (E.D.Tenn.1981). "The probative value of evidence is merely its tendency to persuade the trier of fact on a given issue." United States v. Martinez, 555 F.2d 1273, 1276 (5th Cir.1977). On the other hand, it is important to point out that "[i]mplicit in this balancing approach is recognition of the fact that the danger of unfair prejudice is far greater when the accused, as opposed to other witnesses, testifies, because the jury may be prejudiced not merely on the question of credibility but also on the ultimate question of guilt or innocence." United States v. Martinez, supra, 1275. We have recognized that "[w]here the prior crime is quite similar to the offense being tried, a high degree of prejudice is created and a strong showing of probative value would be necessary to warrant admissibility." State v. Carter, supra, 189 Conn. 644, 458 A.2d 379, quoting State v. Nardini, supra, 187 Conn. 522, 447 A.2d 396. Realistically and fairly, the credibility import of a prior conviction is not to be weighed against the credibility import of some other evidence, but it is to be weighed against its potential prejudicial effect on the fairness of the defendant's trial. People v. Hughes, 411 Mich. 517, 520, 309 N.W.2d 525 (1981).

These general guidelines are among those to be considered in passing upon the exercise of discretion in denying the in limine motion. The specific circumstances, however, before the court at that time merit some comment. The motion was heard before jury selection, and the record discloses that counsel, particularly defense counsel, did not provide the court with much information. The trial court did not have any real knowledge of the evidence to be offered in the case and it had only scant knowledge of the claims of the parties. ⁴ In this case, the record before the court at that time could hardly provide it with a solid basis upon which to grant the defendant's motion. See generally, United States v. Oakes, 565 F.2d 170, 171 (1st Cir.1977). The defendant had the burden on this motion to demonstrate that character of prejudice that entitled him to a ruling in his favor; see State v. Bennett, 405 A.2d 1181, 1186 (R.I.1979); People v. Delgado, 32 Cal.App.3d 242, 108 Cal.Rptr. 399 (1973); and he did not sustain that burden. Under the circumstances, we conclude that the trial court's ruling on the motion in limine was not an abuse of discretion.

We now turn to the defendant's claim that the trial court erred in denying his motion for a mistrial. We find error. It is necessary that certain circumstances be set out to put the analysis and resolution of this claim in proper focus. After several days of trial, the state had rested its case-in-chief, and the defendant took the witness stand. On direct examination the defendant was not asked if he had any prior felony convictions. Early during his direct examination, however, he admitted, without hesitation, that he and Frank O'Grine were both in Brackett's car, ⁵ that he (the defendant) pulled out a gun, that they asked Brackett for his money and that they thereafter put Brackett out of the car. At that time, he also said that the gun he showed was a "blank gun" which "[j]ust shot blanks ..." not "bullets" and "just made a noise." He stated that he had purchased this gun sometime in July, 1979, at a...