State v. Briggs

Decision Date09 June 1980
Citation426 A.2d 298,179 Conn. 328
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Linwood H. BRIGGS.

Suzanne Z. Gottlieb, Asst. Public Defender, New Haven, for appellant (defendant).

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

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

COTTER, Chief Justice.

The defendant was convicted after a trial to a jury of kidnapping in the second degree in violation of General Statutes § 53a-94(a), sexual assault in the first degree in violation of General Statutes § 53a-70(a), and two counts of public indecency in violation of General Statutes § 53a-186(a)(2). From the judgment rendered on the verdict he has appealed.

From the evidence the jury could have found the following facts: On the morning of June 8, 1977, the defendant was standing next to a borrowed green car that was parked with its hood up, apparently disabled, on the grassy area adjoining the entrance ramp to the Merritt Parkway in Trumbull. At approximately 9 a. m. that day, on two separate occasions, the defendant stepped out from in front of the green car and exposed himself to the women drivers of two cars as they were passing the defendant while proceeding down the entrance ramp. Shortly after those two cars had passed, a third woman driver entered the same entrance ramp, also at approximately 9 a. m., noticed the green car with its hood up and observed the defendant, who was no longer exposing himself, waving to her apparently in an effort to get assistance. She stopped her car and offered to give him a ride to a gas station. After getting in the car, he grabbed her arm and acted in an obscene manner. The driver said that she was going to stop the car to put him out and he said no. When they got to the exit, the defendant forcibly pulled the woman operator over to the passenger's seat and took her position behind the wheel, covered her mouth with her hand and told her not to scream. Then he drove several miles, finally parking the automobile near a secluded wooded area. Briggs forcibly pulled the victim out of the car, took her into the wooded area several feet from the automobile and forced her to have sexual intercourse with him. Thereafter he grabbed her purse looking for identification and found her address on her driver's license. Briggs drove her back to his car where he got out and told her to leave. He also told her that her address was easy to remember and that she should not tell anyone about what had occurred or something would happen to her.

The defendant's first claim of error relates to the testimony adduced by the state on the cross-examination of Christine Briggs, the defendant's common-law wife, who was the defendant's principal alibi witness. On direct examination, Christine Briggs testified that on June 8, 1977, she, the defendant, and his nephew arrived at the Gary Crooks Center in Bridgeport at approximately 9:05 a. m. in order to obtain food stamps, and afterwards they drove to Stamford, arriving there at 10:15 in the morning. On cross-examination, the state questioned her regarding the purpose in going to Stamford. The witness testified that they had gone to a courthouse in Stamford because the defendant had an appointment there. When asked the reason for the appointment, the witness was allowed to testify, over the defendant's objection, that the appointment was in connection with a disorderly conduct charge that had been lodged against the defendant.

The defendant now argues on appeal that his common-law wife's testimony on cross-examination regarding his prior misconduct was inadmissible because it could not have been used to impeach his testimony since he had not yet testified and the evidence could not come within any of the other recognized exceptions to the general rule that evidence of the defendant's character is inadmissible. See State v. Barlow, 177 Conn. 391, 393, 418 A.2d 46; State v. Zdanis, 173 Conn. 189, 377 A.2d 275; State v. Carr, 172 Conn. 458, 374 A.2d 1107. The transcript discloses, however, that the defendant failed to make this claim as the basis for his objection at trial. Rather, he stated at trial that the evidence was irrelevant. Any appeal will be limited to the ground asserted once counsel states the authority and ground of his objection. State v. Adams, 176 Conn. 138, 406 A.2d 1; State v. Rado, 172 Conn. 74, 372 A.2d 159; State v. Johnson, 166 Conn. 439, 352 A.2d 294; Borucki v. MacKenzie Bros. Co., 125 Conn. 92, 3 A.2d 224. This court can and will consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court only in the most exceptional circumstances. State v. Rogers, 177 Conn. 379, 418 A.2d 50; State v. Adams, supra; New Haven Savings Bank v. Valley Investors, 174 Conn. 77, 384 A.2d 321; State v. Evans, 165 Conn. 61, 69, 327 A.2d 576. Despite the defendant's claims to the contrary, the record does not indicate that the defendant was "clearly deprived of a fundamental constitutional right or a fair trial" as required by Evans. The only issue concerning the wife's testimony is whether the trial court was correct in ruling that the evidence was relevant.

No precise or universal test of relevancy is furnished by the law and if evidence adduced on cross-examination conduces in any reasonable degree to establish the probability or improbability of the fact in controversy, it should be admitted. Delmore v. Polinsky, 132 Conn. 28, 31, 42 A.2d 349; Plumb v. Curtis, 66 Conn. 154, 166, 33 A. 998. Evidence is relevant if it has any tendency in reason to prove or disprove any disputed fact that is of consequence to a determination of the matter in issue. People v. Hill, 19 Cal.App.3d 306, 319, 96 Cal.Rptr. 813. The trial court has broad discretion in deciding the relevancy of evidence as it pertains to cross-examination and on appeal the appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him. State v. Jones, 167 Conn. 228, 232, 233, 355 A.2d 95. The scope of cross-examination in a criminal trial is a matter properly left to the sound discretion of the trial court; United States v. Evanchik, 413 F.2d 950 (2d Cir.); and as a rule although the extent of cross-examination is within the trial court's discretion it should be liberally allowed. State v. Reed, 174 Conn. 287, 299, 386 A.2d 243. Every reasonable presumption should be given in favor of the correctness of the court's ruling in determining whether there has been an abuse of discretion. Reversal is required only where an injustice appears to have occurred. State v. Martin, 170 Conn. 161, 365 A.2d 104; State v. Brown, 169 Conn. 692, 702, 364 A.2d 186. The questions asked by the state on the cross-examination of Christine Briggs were clearly aimed at testing her memory, recollection and credibility. Hirsch v. Vegiard, 137 Conn. 302, 304, 77 A.2d 85. Where a defendant proposes an alibi as his defense, one permissible method of determining whether the alibi was fabricated is to inquire into the specific details and the surrounding circumstances of the alibi on cross-examination in an attempt to show inconsistencies in the testimony of the various alibi witnesses, since the claim of alibi is subject to searching scrutiny. State v. Brady, 244 Minn. 455, 461, 70 N.W.2d 449. To the extent that the evidence tended to prejudice the defendant, it was for the trial court, in the exercise of judicial discretion, to decide whether the probative value of the testimony outweighed the prejudice likely to result from its admission. State v. Turcio, 178 Conn. 116, 129, 422 A.2d 749. In light of the necessity of vigorous cross-examination of an alibi witness, we cannot say that the trial court abused its discretion.

The defendant's principal contention in this appeal is that the trial court erred in permitting the prosecutor to inquire into the circumstances of the defendant's silence subsequent to his arrest. See Doyle v Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91; State v. Cook, 174 Conn. 73, 381 A.2d 563. Questioning as to the defendant's silence was permitted during the state's cross-examination of the defendant 1 and in the course of the direct examination of the state's rebuttal witness, Officer Michael Savino. 2

As a preliminary matter, it should be noted that the defendant's assertion of a violation of a constitutional right was not properly preserved for appeal. The record, however, adequately supports a claim that the defendant was deprived of a fundamental constitutional right so that his claims of error, albeit raised for the first time on appeal, will be reviewed. State v. Zeko, 177 Conn. 545, 418 A.2d 917; State v. Cook, supra; State v. Evans, supra.

It has long been recognized that when an accused is in custody, "our law accords him the right to reply to question or statement, or to remain silent. His silence under such circumstances cannot be laid in evidence against him." State v. Ferrone, 97 Conn. 258, 266, 116 A. 336, 339; State v. Cook, supra; 3 Wharton, Criminal Evidence (13th Ed.) § 703. This mandate was raised to a constitutional requirement in Doyle v. Ohio, supra, where the United States Supreme Court held that the defendant's post-Miranda warning silence may not constitutionally be used by the prosecution either for substantive or impeachment purposes. Thus, the trial court erred in allowing the prosecution to develop testimony regarding the defendant's silence after he had been given the Miranda warning. State v. Cook, supra; State v. Ralls, 167 Conn. 408, 356 A.2d 147. This does not conclude the issue, for the United States Supreme Court recognized in Doyle v. Ohio, supra, that in certain circumstances, such a violation may be...

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