State v. Clark, 15715

• Decision Date: 02 June 1998
• Docket Number: No. 15715,15715
• Citation: 48 Conn.App. 812,713 A.2d 834
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Daniel CLARK.

Page 834

713 A.2d 834

48 Conn.App. 812

STATE of Connecticut v. Daniel CLARK.

No. 15715.

Appellate Court of Connecticut.

Argued Dec. 1, 1997.

Decided June 2, 1998.

Danielle DiBerardini-Albrecht, Certified Legal Intern, with whom were Richard Emanuel, New Haven, and, on the brief, Craig S. Meuser, Certified Legal Intern, for appellant (defendant).

Christopher T. Godialis, Assistant State's Attorney, with whom, on the brief, were Michael Dearington, State's Attorney, and Mary Elizabeth Baran, Assistant State's Attorney, for appellee (State).

Before FOTI, LANDAU and DALY, JJ.

LANDAU, Judge.

The defendant, Daniel Clark, appeals from the judgment of conviction, following a jury trial, of burglary in the first degree in violation of General Statutes § 53a-101 (a)(2) ¹ and sexual assault in the third degree in violation of General Statutes § 53a-72a (a)(1)(A). On appeal, the defendant claims that (1) the trial court (a) abused its discretion with respect to evidentiary rulings and (b) improperly charged the jury, (2) the state failed to present evidence sufficient to convict the defendant of burglary in the first degree and (3) his federal and state constitutional rights to a fair trial were violated due to prosecutorial impropriety. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of Monday, September 26, 1994, the victim, a twenty-six year old woman, was living with her fourteen month old daughter in an apartment in Meriden. The defendant lived with his mother in an apartment in close proximity to that of the victim. The defendant entered the victim's apartment uninvited at approximately 8:30 p.m. rubbed her shoulders and licked and kissed her cheek. Despite the victim's protests, the defendant, who was much bigger than the victim, pushed her onto the couch and squeezed her breasts so hard that it hurt her and caused milk to be expressed. The victim's daughter then began to cry, and the defendant ceased his attack and left the victim's apartment. Two days later, after discussing the incident with a counselor whom she had known for five years, the victim reported the incident to the police.

At the close of evidence, the defendant moved for a judgment of acquittal, which was denied. Following his conviction, the defendant appealed.

I

The defendant first claims that the trial court abused its discretion by permitting the prosecutor to cross-examine him improperly. We disagree.

The following additional facts and procedure are necessary for our review of the defendant's claim. On direct examination, the investigating police officer testified that he had known the defendant for over twenty years and that he went to the defendant's apartment on three occasions to talk to him about the subject incident. On each occasion, the officer did not find the defendant at home and left his business card in the door with a note asking the defendant to call him. The defendant never contacted the officer. On cross-examination, the officer testified that he did not know whether the defendant had received the business cards, but he assumed that the defendant had received them and had chosen not to respond to his requests. The officer also testified that, in his experience, the response rate for someone being investigated is very low.

The defendant testified on his own behalf, but his direct testimony did not relate to the investigating officer or his business cards. The prosecutor did delve into the issue of the officer's business cards, however, on cross-examination. ²

Defense counsel objected to the questions concerning the officer's business cards as being outside the scope of direct examination. The trial court overruled the objection.

The prosecutor also asked the defendant a number of times whether he had been watching the victim and eavesdropping on her telephone conversations. ³ The defendant testified that he saw the victim often because he lived next door. He also testified that a number of people had seen him talking to the victim prior to September 26, 1994, but that for a variety of reasons, none of the persons who saw him talking to the victim could come to trial to testify on his behalf. ⁴

"[O]ur review of a trial court's evidentiary ruling is limited. Evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. State v. Alvarez, 216 Conn. 301, 306, 579 A.2d 515 (1990). In considering whether the trial court abused its discretion, the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness. Jacobsen v. Jacobsen, 177 Conn. 259, 263, 413 A.2d 854 (1979)." (Internal quotations marks omitted.) State v. Nixon, 32 Conn.App. 224, 234, 630 A.2d 74 (1993), aff'd, 231 Conn. 545, 651 A.2d 1264 (1995). "It is well settled that the scope of cross-examination is limited to matters covered in the direct examination, except as they involve credibility. State v. Ireland, 218 Conn. 447, 590 A.2d 106 (1991). 'The court has wide discretion to determine the scope of cross-examination.' State v. Hernandez, 224 Conn. 196, 208, 618 A.2d 494 (1992)." Id.

"When a witness voluntarily testifies, as did the defendant here, he asks the jury to believe him. The jury should be informed about the sort of person asking them to take his word.... Matters which might not be strictly relevant on direct examination may be so on cross-examination where that matter is explored for the purpose of credibility. Given that function of cross-examination in shedding light on the credibility of the witness' direct testimony, [t]he test of relevancy is not whether the answer sought will elucidate any of the main issues, but whether it will to a useful extent aid the court or jury in appraising the credibility of the witness and assessing the probative value of the direct testimony.... A question is within the scope of the direct examination if it is intended to rebut, impeach, modify or explain any of the defendant's direct testimony...." (Citations omitted; internal quotation marks omitted.) State v. Hernandez, supra, 224 Conn. at 207, 618 A.2d 494.

The defendant relies on State v. Zdanis, 173 Conn. 189, 195-96, 377 A.2d 275 (1977), for the proposition that while "credibility may be attacked by contradiction, so long as the matter is in issue ... it may not be attacked by first introducing one version of an event through a witness for the prosecution and then cross-examining the defendant, who has not testified as to that event on direct, thus creating a retroactive contradiction of his testimony. [B.] Jones on Evidence (6th Ed.) § 25.2, pp. 111-12."

Here, the trial court properly exercised its discretion in permitting the prosecutor to cross-examine the defendant with respect to the officer's business cards and whether he had been watching the victim. The defendant testified on direct examination that his sexual encounter with the victim was consensual, which was contradictory to the testimony of the victim. ⁵ The ultimate question before the jury was credibility. Therefore, the state was entitled to ask questions to rebut, impeach, modify or explain matters affecting credibility. See id., at 196, 377 A.2d 275.

The questions concerning the officer's business cards were proper because they tended to rebut or impeach the defendant's claim of innocence by demonstrating that he may have avoided contact with the police after his encounter with the victim. The questions in regard to the defendant's watching the victim were appropriate in as much as the defendant admitted that he saw the victim often, that he knew her roommate had moved out and that only the victim and her child lived in the apartment. Clearly, there was evidence before the jury from which it could infer that the defendant was watching the victim.

II

The defendant's second claim is that the trial court improperly charged the jury with respect to the elements of § 53a-101 (a)(2) and the state's burden of proof. The defendant's claim is without merit.

The defendant did not submit a request to charge nor did he take exception to the charge given by the trial court. ⁶ "We generally do not consider a claimed error regarding the giving of or failure to give an instruction unless the matter is covered by a written request to charge or exception has been taken ... immediately after the charge is delivered.... In addition, the exception taken must state distinctly the matter objected to and the ground of objection." (Citations omitted; internal quotation marks omitted.) State v. Williams, 202 Conn. 349, 362, 521 A.2d 150 (1987). Therefore, the defendant seeks review of his unpreserved claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

In Golding, our Supreme Court held that " 'a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail.' ..." State v. Hines, 243 Conn. 796, 817, 709 A.2d 522 (1998), quoting State v. Dash, 242 Conn. 143, 151, 698 A.2d 297 (1997). " 'An accused has a fundamental right, protected by the due process clauses of the federal and Connecticut constitutions, to be acquitted unless proven guilty of each element of the charged offense beyond a reasonable doubt.' State v. Hill, [201 Conn. 505, 512, 523 A.2d...