State v. Carr

• Decision Date: 01 March 1977
• Citation: 172 Conn. 458,374 A.2d 1107
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Benjamin CARR, Jr.

Page 1107

374 A.2d 1107

172 Conn. 458

STATE of Connecticut v.Benjamin CARR, Jr.

Supreme Court of Connecticut.

Argued Nov. 9, 1976.

Decided March 1, 1977.

John R. Williams, New Haven, for appellant(defendant).

William F. Gallagher, Special Asst. State's Atty., New Haven, with whom, on the brief, were Arnold Markle, State's Atty., and John J. Kelly, Asst. State's Atty., for appellee(state).

Before HOUSE, C. J., and LOISELLE, BOGDANSKI, LONGO and BARBER, JJ.

BARBER, Associate Justice.

The state charged that the defendant did offer, confer and agree to confer benefits upon a public servant, in the form of the payment of sums of money, as consideration for a police officer's exercise of discretion as a public servant, in violation of § 53a-147 of the General Statutes.¹A jury found the defendant guilty and he has appealed from the judgment rendered on the verdict.The defendant in his preliminary statement includes fourteen issues intended to be presented on appeal.He has, however, pursued in his brief only eight claims of error, and one of those was abandoned in oral argument.

The remaining seven claims are that the court erred (1) in admitting portions of a taped recording claimed to have no relevance to the crime charged; (2) in refusing to instruct the jury that § 29-9 is a lesser included offense of § 53a-147 as charged in the information; (3) in denying the defendant's motion for a directed verdict and motion to set aside the verdict upon the defendant's claim that the state could not prosecute the defendant under § 53a-147;(4) in quashing a defense subpoena directed to the president of the New Haven board of police commissioners; (5) in overruling the defendant's objections to portions of the closing argument made to the jury by the assistant state's attorney; (6) in denying the defendant the assistance of counsel during the early stages of the case; (7) and in refusing to allow the defendant the right of allocution when sentence was imposed.

The defendant's brief does not contain the statement of facts required by the provisions of § 631A(b) of the Practice Book.Essential facts do, however, appear in narrative form in the state's brief, which facts are supported by appropriate references to the page or pages of the transcript upon which the state relies.The following constitutes a sufficient background summary: On June 19, 1972, Detective Eugene Lovette, Jr., a member of the New Haven police department's gambling and narcotics division, was approached by the defendant outside a supermarket in downtown New Haven, and the defendant requested Detective Lovette to refrain from vigorously pursuing his narcotics investigations, in return for which the defendant promised to remunerate Detective Lovette.The following day, Detective Lovette informed his immediate superior of the conversation with the defendant.Subsequently, on June 27, 1972, the defendant arranged to meet with Detective Lovette.At this meeting, which took place the following day on Crescent Street in New Haven, the defendant gave Detective Lovette $36 in return for the officer's agreement to curtail his narcotics investigation, and also informed Lovette that he could make $200 per week in return for his cooperation with the defendant.A further meeting was arranged at the municipal golf course.At this meeting, which took place on June 29, 1972, Lovette had a microphone on his person to record the conversation with the defendant.The defendant handed Lovette $200 at this meeting, and informed him that he could make $10,000 a year should he cooperate.On July 10, 12, 20 and 26, 1972, the defendant met with Lovette and a further sum of money was paid in return for that officer's agreement to curtail his narcotics investigations and to advise the defendant of any impending action.At each meeting, Lovette had a microphone on his person and recordings were made of his conversations with the defendant.Finally, on July 31, 1972, the defendant was arrested, pursuant to a Superior Court bench warrant, while he was meeting again with Lovette.

I

The defendant's first claim of error pertains to the playing to the jury of the entire tape recordings of the conversations which took place during the meetings between the defendant and Detective Lovette.The defendant has identified two aspects of the taped conversations admitted into evidence which are claimed as irrelevant and prejudicial.One aspect concerns the references in the conversations relating to possible moral offenses on the part of the defendant, and the other aspect concerns evidence in the tape recordings linking the defendant to the narcotics traffic in New Haven.The defendant relied on the case of State v. Mortoro, 160 Conn. 378, 279 A.2d 546, in claiming that those portions of the recordings should have been excised before playing them to the jury.In Mortoro, the defendant was charged with being an accessory to an attempted sale of a narcotic drug and we held that the probable value of certain portions of the recordings played to the jury was outweighed by their prejudicial effect.The opinion states (p. 389, 279 A.2d p. 551): "It is unnecessary to discuss the obscenities with which the defendant's part of the conversation was garnished.It is sufficient to say that three-quarters of the conversation which was laid before the jury concerned the fact that the defendant was engaged in proposing and planning an armed holdup, describing the procedure and furnishing the weapon with which the crime was to be committed.That crime itself had nothing whatever to do with the charge . . . for which the defendant was on trial."

It is true that in this case the recorded conversations tended to be in street vernacular and were interlarded with obscenities including some allusions to the sexual proclivities of the defendant.The facts of the case, however, are distinguishable from those in Mortoro, and the court did not err in admitting the entire recorded conversations.The obscenities and sexual references did not reasonably suggest any distinguishable crime other than the one charged and were interwoven in the conversations to the extent that the court was justified in finding that it would have been damaging to the continuity of the tapes to excise those relatively minor portions.SeePeople v. Mitchell, 40 A.D.2d 117, 338 N.Y.S.2d 313.The court was also justified in not deleting the evidence in the recordings concerning the defendant's connection with illegal narcotics traffic.It is well established that, as a general rule, evidence of the commission of other crimes unconnected with the crime for which a defendant is on trial is inadmissible.State v. Holliday, 159 Conn. 169, 172, 268 A.2d 368;State v. Harris, 147 Conn. 589, 599, 164 A.2d 399.In State v. Mortoro, supra, this rule led to the exclusion of the evidence of a planned armed holdup by the defendant which was completely unrelated to the narcotics offense with which he was charged.We went on to state, however, that "(i)t is equally well settled that the mere fact that 'evidence tends to prove the commission of other crimes by the accused does not render it inadmissible if it is otherwise relevant and material'."State v. Mortoro, supra, 160 Conn. 390, 279 A.2d 552;State v. Ralls, 167 Conn. 408, 417, 356 A.2d 147;State v. Marshall, 166 Conn. 593, 353 A.2d 756.In the present case, the conversations associating the defendant to the narcotics traffic in New Haven were not immaterial or logically unrelated to the bribery offense charged.State v. Jenkins, 158 Conn. 149, 152, 256 A.2d 223.This evidence was relevant and admissible for the purpose of showing the corrupt intent and motive behind the defendant's attempts to bribe Detective Lovette not to interfere with the defendant's illicit narcotics operation.State v. Jenkins, supra, 152-53, 256 A.2d 223.It formed an integral part of the conversations in which the defendant referred to or offered the bribes or discussed matters incidental to the bribery.SeePeople v. Mitchell, supra.Furthermore, when entrapment is interposed as a defense, as it was in this case, the predisposition and criminal design of the defendant become relevant, and evidence may be adduced by either side tending to show the defendant's state of mind.Sherman v. United States, 356 U.S. 369, 373, 78 S.Ct. 819, 2 L.Ed.2d 848;State v. Whitney, 157 Conn. 133, 137, 249 A.2d 238; annot., 33 A.L.R.2d 883, 908, § 6.Under such circumstances, all of the conversation between the detective and the defendant increased in relevance.The admissibility of this evidence was, therefore, within the judicial discretion of the trial court.

The court has a wide discretion in its rulings on the relevancy of evidence;State v. Saia, 167 Conn. 286, 291, 355 A.2d 88;State v. Carnegie, 158 Conn. 264, 273, 259 A.2d 628, cert. denied, 396 U.S. 992, 90 S.Ct. 488, 24 L.Ed.2d 455; and in determining whether the probative value of the evidence outweighs its prejudicial tendency.State v. Ralls, supra;State v. Moynahan, 164 Conn. 560, 597, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S.Ct. 291, 38 L.Ed.2d 219."In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court's ruling.DiPalma v. Wiesen, 163 Conn. 293, 298, 303 A.2d 709.Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.Thomas v. Thomas, 159 Conn. 477, 480, 271 A.2d 62;1 Wharton, Criminal Evidence (13th Ed.) § 241.In balancing the grounds advanced by the state for the admission of the evidence against the grounds advanced by the defendant for excluding it, we cannot say that as a matter of law the court abused its discretion in allowing (the evidence to be introduced)."State v. Brown, 169 Conn. 692, 702, 364 A.2d 186, 192.

II

The defendant's second claim of error is that the court erred in...