State v. Brown

• Decision Date: 29 September 1999
• Docket Number: No. 17606,17606
• Citation: 56 Conn. App. 26,741 A.2d 321
• Court: Connecticut Supreme Court
• Parties: (Conn. 1999) STATE OF CONNECTICUT v. JAMES BROWN

741 A.2d 321 (Conn. 1999)

STATE OF CONNECTICUT v. JAMES BROWN

No. 17606

APPELLATE COURT OF CONNECTICUT

September 29, 1999, Argued

November 30, 1999, Decided.

Francis L. O'Reilly, special public defender, for the appellant (defendant).

Richard F. Jacobson, supervisory assistant state's attorney, with whom, on the brief, was Jonathan Benedict, state's attorney, for the appellee (state).

Before: Spear, Mihalakos and Daly, JJ.

MIHALAKOS, J.

The defendant, James Brown, appeals from the judgment of conviction, rendered after a jury trial, of burglary in the second degree in violation of General Statutes 53a-102 - (a)¹ and threatening in violation of General Statutes 53a-62 (a) (1).² The defendant claims that (1) the trial court's questioning of a witness deprived the defendant of a fair trial, (2) the trial court's treatment of defense counsel deprived the defendant of his right to a fair trial before an impartial judge and jury, and (3) the trial court's sequestration order was violated by the interaction outside the courtroom between the victim's brother and a sequestered witness. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On November 23, 1996, at approximately 4 a.m., the victim, Cindy Perez, was awakened by a noise and observed an intruder crouched down and moving about the room. The intruder then jumped on the victim's bed and kneeled over her. The victim's five month old son was also in the house at the time. She pleaded with intruder not to hurt her son. The intruder then placed his hand over the victim's mouth and verbally threatened her. She recognized the intruder's voice as that of the defendant, whom she had known for four or five months. The defendant then removed his hand from the victim's mouth and asked her for money. A brief conversation ensued while the defendant held a nine millimeter gun to the victim's head. The victim eventually gave the defendant jewelry. After having been in the house for about ten to fifteen minutes, the defendant left through a second floor window. The victim eventually contacted the police and told an officer that the intruder was a man she knew named "James." Detective Carl Leonzi, Jr., of the Bridgeport police department was assigned to the case. The victim was not very cooperative throughout Leonzi's investigation.³ At trial, the court entered a sequestration order prohibiting all witnesses from either discussing their testimony with other witnesses or assisting them with their testimony.

I

The defendant's first claim is that the trial court deprived him of a fair trial when it "shed its cloak of neutrality and assumed the role of advocate for the state" in its questioning of Leonzi. We disagree.

"Due process of law guarantees a criminal defendant a fair trial before an impartial judge and jury in a neutral atmosphere. U.S. Const., amend. XIV; Conn. Const., [art. I] 8; State v. Fernandez, 198 1, 10, 198 Conn. 1, 501 A.2d 1195 (1985); State v. Gordon, 197 Conn. 413, 497 A.2d 965, 424D, 504 A.2d 1020 (1985)." State v. Smith, 200 Conn. 544, 549, 512 A.2d 884 (1986). In certain circumstances, the court has a discretionary right to question witnesses. State v. Smith, supra, 549.

Leonzi was questioned by counsel concerning his investigation of the incident and his relationship with the victim and the defendant. At the conclusion of the examination by defense counsel, the court began its own inquiries.⁴ "The trial judge is free to question witnesses or otherwise intervene in a case in an effort to clarify testimony and assist the jury in understanding the evidence so long as he does not appear partisan in doing so." State v. Tatum, 219 Conn. 721, 740, 595 A.2d 322 (1991); State v. Bember, 183 Conn. 394, 401, 439 A.2d 387 (1981). Although the court's questions may have brought out some of the strengths and weaknesses of either party's case, its aim was to shed more light on the case and was in no way prejudicial to either side. See State v. Echols, 170 Conn. 11, 14, 364 A.2d 225 (1975). "When it clearly appears to the judge that for one reason or another the case is not being presented intelligibly to the jury, the judge is not required to remain silent. On the contrary, the judge may, by questions to a witness, elicit relevant and important facts." (Internal quotation marks omitted.) State v. Tatum, supra, 219 Conn. 740; State v. Fernandez, 198 Conn. 1, 11, 501 A.2d 1195 (1985).

Furthermore, the court in this matter issued a curative instruction to the jury.⁵ "Our appellate courts have always given great weight to curative instructions in assessing claimed errors; see State v. Fernandez, supra, 198 Conn. 17, State v. Drouin, 12 Conn. App. 101, 105, 529 A.2d 740 (1987); especially in assessing a defendant's claim of prejudice. State v. Smith, supra, 200 Conn. 552; see State v. Drouin, supra, 101." State v. Pharr, 44 Conn. App. 561, 577, 691 A.2d 1081 (1997).

The court's questioning of Leonzi concerning his investigation and his relationship with the victim did not rise to such a level of prejudice as to affect the defendant's overall case. The court should be careful not to prejudice the rights of any party by its questioning of witnesses, and caution should be used by the court to confine itself to clarification of testimony already given. "In whatever he does, the trial judge should be cautious and circumspect in his language and conduct." (Internal quotation marks omitted.) Fair v. Warden, 211 Conn. 398, 413-14, 559 A.2d 1094, cert. denied, 493 U.S. 981, 110 S. Ct. 512, 107 L. Ed. 2d 514 (1989). "Where that does not occur, however, a defendant is not entitled to a new trial unless he can show that prejudice resulted from the trial court's actions. Id. [414]; see State v. Echols, supra, 170 Conn. 16." State v. Pharr, supra, 44 Conn. App. 577. Our review of the record indicates that the court was neutral throughout its questioning of Leonzi, and it actions had no prejudicial effect against the defendant.

II

The defendant next claims that the trial court's improper treatment of his trial counsel deprived him of a fair trial before an impartial judge and jury. Because the defendant did not preserve this claim at trial, we must determine whether he can prevail under the four-prong test articulated in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).⁶ If the defendant fails to meet any one of the four parts of Golding, his claim will fail. Id., 240. "The appellate tribunal is free, therefore, to respond to the defendant's claim by focusing on whichever condition is most relevant in the particular circumstances." Id. The first two prongs of Golding address the reviewability of the claim, and the last two involve the merits of the claim. State v. Beltran, 246 Conn. 268, 275, 717 A.2d 168 (1998); State v. Askew, 55 Conn. App. 34, 38, 739 A.2d 274 (1999).

We conclude that the defendant has not satisfied the second prong of Golding and therefore decline to review his claim . It is the defendant who "bears the responsibility of demonstrating that his claim is indeed a violation of a fundamental constitutional right. Patently nonconstitutional claims that are unpreserved at trial do not warrant special consideration simply because they bear a constitutional label." State v. Golding, supra, 213 Conn. 240.

In this case, the defendant claims that on several occasions the court unduly disciplined his counsel, which gave the jury a negative impression and was prejudicial to the defendant.⁷ At no time during these incidents, however, did the defense counsel object to the court's actions or move for a mistrial. Furthermore, as stated previously, the trial court issued curative instructions to the jury. See footnote 5. The defendant has not demonstrated that his claim implicates his due process right to a fair trial and, as a result, fails to satisfy the second prong of Golding. We therefore decline to review this claim.

III

The defendant's final claim is that the requirement of sequestration was violated by the interaction outside the courtroom between the victim's brother and the victim, a sequestered witness. We disagree.

Sequestration orders assure that witnesses will testify solely on the basis of their personal knowledge. Geders v. United States, 425 U.S. 80, 87, 96 S. Ct. 1330, 47 L. Ed. 2d 592 (1976); State v. Robinson, 230 Conn. 591, 600, 646 A.2d 118 (1994). "The obvious purpose of sequestering a witness while another is giving his testimony is to prevent the one sequestered from shaping his testimony to corroborate falsely the testimony of the other." (Internal quotation marks omitted.) State v. Williams, 169 Conn. 322, 331, 363 A.2d 72 (1975). In the present case, it was impossible for any such corroboration to occur since one of the parties involved in the alleged violation of the sequestration order, the victim's brother, was never called as a witness but was merely a spectator to the proceedings. A sequestration order, without additional restrictions, simply prohibits a sequestered witness from being in the courtroom when he or she is not testifying. Id.

The defendant relies principally on State v. Falby, 187 Conn. 6, 25-27, 444 A.2d 213 (1982), which held that it was improper for the state to supply its expert witnesses with a transcript of the testimony by the defendant's expert, in violation of a sequestration order. Unlike the situation in Falby, however, there is no allegation in the present case that someone supplied a transcript to prospective...