State v. Camerone, 3500

• Decision Date: 29 July 1986
• Docket Number: No. 3500,3500
• Citation: 8 Conn.App. 317,513 A.2d 718
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Rosario CAMERONE.

Page 718

513 A.2d 718

8 Conn.App. 317

STATE of Connecticut v. Rosario CAMERONE.

No. 3500.

Appellate Court of Connecticut.

Argued May 7, 1986.

Decided July 29, 1986.

Kent Drager, Asst. Public Defender, with whom, on brief, was Joette Katz, Public Defender, for appellant (defendant).

Susan C. Marks, Deputy Asst. State's Atty., with whom, on brief, were Arnold Markle, State's Atty., Thomas O'Keefe, Asst. State's Atty., and Barbara Farrell, Law Student Intern, for appellee (State).

Before BORDEN, SPALLONE and BIELUCH, JJ.

BORDEN, Judge.

The defendant appeals from the judgment of his conviction, after a jury trial, of three counts of aiding the sale of narcotics in violation of General Statutes §§ 21a-277(a) and 53a-8. The dispositive issue is whether it was error for the trial judge, during cross-examination of the state's key witness, to comment on facts within his personal knowledge and outside the record as to whether a witness had been offered a "deal" in exchange for his testimony, and on whether the prosecutor had the ability to offer the witness promises in exchange for his testimony. We find error.

Because the defendant did not properly raise this claim in the trial court, he seeks review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). The determinative issue in granting an Evans review is whether "the record adequately supports a claim that [the defendant] has clearly been deprived of a fundamental constitutional right and a fair trial." State v. Liebowitz, 7 Conn.App. 403, 404, 509 A.2d 43 (1986), citing State v. Evans, supra, 165 Conn. 70, 327 A.2d 576. The defendant's claim of a violation of a constellation of constitutional rights does raise an issue of fundamental constitutional dimension. For purposes of an Evans review, "it is also necessary that the record 'adequately supports [the] claim.' " (Emphasis in original.) State v. Liebowitz, supra, 7 Conn.App. 405, 509 A.2d 43. The record in this case adequately supports the defendant's constitutional claim.

The state's case against the defendant was that he supplied cocaine to William Deitch, who sold it to undercover officer Gary Hunt of the New Haven police department. Deitch testified that on May 5, May 12 and May 26, 1983, he sold cocaine to Hunt, and that on each of these occasions the defendant supplied the cocaine to him. Hunt testified that the three transactions took place. He did not, however, have any personal knowledge that the defendant supplied the cocaine to Deitch.

During the period of the transactions, both the defendant and Deitch were under surveillance by members of the New Haven police department. Detective Sergeant Carl Giannotti, a member of the surveillance team, testified that he observed the defendant and Deitch meeting prior to each drug transaction. None of the surveillance officers, however, observed an exchange of drugs or money between the defendant and Deitch.

The defendant testified on his own behalf and denied supplying cocaine or any other drug to Deitch. He testified that he had purchased an automobile from Deitch and that Deitch had been dunning him to pay the money still owed on the car. While the defendant did not recall meeting with Deitch on May 5 or May 12, 1983, he did remember meeting with him on May 26, 1983, to discuss the money still owed on the car. Thus, the only evidence presented at trial which directly linked the defendant with the three drug transactions was Deitch's testimony that the defendant was his supplier on each of the three occasions. Consequently, the credibility of Deitch was crucial.

Deitch testified on direct examination that he had pleaded guilty to certain unspecified charges arising out of the narcotics transactions, that he was awaiting sentencing on these charges, that no promises had been made to him other than that his testimony would be taken into consideration by the sentencing judge, and that he was testifying in the hope that it would help him. On cross-examination, the defendant sought to impeach Deitch's credibility based on his motive and interest in testifying against the defendant, namely, that his testimony was motivated by a desire for leniency in connection with the charges pending against him. Deitch revealed that he had pleaded guilty to several charges of selling cocaine and possession of marihuana with intent to sell, and that he was facing a potential maximum sentence of sixty-seven years. Thereafter, the following colloquy occurred between the defense counsel and Deitch:

"Q. And I believe the prosecution--I'm not sure whether the prosecution stated it or whether you told the prosecution. You told the prosecution that you were aware that if you testified satisfactorily to the prosecution in this trial, that it would affect your sentence.

A. No promises were made to me.

Q. No promises, but did they say it's a possibility?

A. No promises were made to me.

Q. No promises?

A. Nothing at all.

Q. Then why are you here?"

At this point, the state objected to the defense counsel's characterization of Deitch's testimony, stating: "I object to this line of questioning. That is completely his representation of what the agreement is for this man's testimony. I have no control over his sentence. It doesn't have to satisfy me at all."

After agreeing that the question of the defense counsel was "somewhat of a misrepresentation," the trial court stated the following: "I think we ought to clarify it for the purpose of the jury. The state has no control over the sentence of this individual. Indeed, I took the plea and I am the sentencing judge. The state has no control over any of the sentences, nor is there any deal for the sentence. The sentence is completely discretionary and up to myself." (Emphasis added.) Shortly thereafter, the court stated, "[t]he point I was making for the record and for the clarification of the jury is that the State can't promise [the witness] anything. The state cannot make it any better for him." (Emphasis added.)

The defendant claims that the trial court, by its statements, violated a cluster of interconnected fundamental rights, principally his state ¹ and federal right to confront the witnesses against him, and his due process right to a fair trial. ² We agree.

I

The defendant claims that his right of confrontation was violated because the trial court's comments effectively foreclosed three areas of potential cross-examination of the state's key witness. ³ First, the defendant claims that the statement that there was no deal between the state and the witness as to his pending sentence, based on the trial judge's personal knowledge outside the record, had the effect of unduly restricting the defendant's cross-examination of the witness in two areas of motive testimony: whether in fact a deal had been made; and whether the witness believed that, by testifying, he would be benefitted. Second, the defendant claims that the court's statement that the prosecution could not promise the witness anything with respect to his upcoming sentencing was legally incorrect and foreclosed defense inquiry into whether the prosecution had made any assurances in this regard. We conclude that the defendant's right of confrontation was not violated with regard to the first two areas of motive testimony. We agree with the defendant, however, that his right of confrontation was violated by the trial court's comments regarding whether the prosecution could promise him anything about his sentence.

" 'Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted.... The sixth amendment to the constitution guarantees the right of an accused in a criminal prosecution "to be confronted with the witnesses against him." ... To comport with the constitutional standards embodied in the confrontation clause the defendant in exercising his right of cross-examination must be allowed to "expose to the jury the facts from which the jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witnesses." Davis iv. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105 [1111], 39 L.Ed.2d 347 (1974).' " (Citations omitted.) State v. Privitera, 1 Conn.App. 709, 711-12, 476 A.2d 605 (1984), quoting State v. Wilson, 188 Conn. 715, 720, 453 A.2d 765 (1982).

Cross-examination as to bias or motive is constitutionally protected. State v. Cosby, 6 Conn.App. 164, 167, 504 A.2d 1071 (1986). In a case where the only direct evidence linking the defendant with criminal activity is the testimony of an accomplice who has already pleaded guilty to charges and is awaiting sentencing, it is especially important that a defendant be permitted to search for an agreement between the state and the witness. Under these circumstances "it might be assumed that the [witness'] course would be such as would best serve his interest in the trouble in which he found himself." State v. Santello, 120 Conn. 486, 492, 181 A. 335 (1935). Even in the absence of an actual deal, such a witness may be motivated to testify by a desire to please the prosecution in an attempt to procure lenient treatment. United States v. Mayer, 556 F.2d 245, 248-49 (5th Cir.1977). Thus, whether or not an actual agreement has been worked out, a witness may be cross-examined to show a belief or expectation of favorable treatment by the state.

The trial court's comments, when examined in the context of the extensive cross-examination of Deitch, did not foreclose inquiry into these two areas. Our review of the entire cross-examination discloses that the defendant was afforded an adequate opportunity to inquire into the fact of whether a deal had been arranged with respect to Deitch's sentence, and into Deitch's motive for testifying. The defendant questioned Deitch on several occasions, both before and after the trial court's comments, on whether he had received any promises or been...