State v. Cosby

• Decision Date: 11 February 1986
• Docket Number: No. 2507,2507
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Keith COSBY.

Page 1071

504 A.2d 1071

6 Conn.App. 164

STATE of Connecticut v. Keith COSBY.

No. 2507.

Appellate Court of Connecticut.

Argued Dec. 11, 1985.

Decided Feb. 11, 1986.

Erskine D. McIntosh, Asst. Public Defender, with whom, on brief, was Joette Katz, Public Defender, for appellant (defendant).

Michael E. O'Hare, Deputy Asst. State's Atty., with whom, on brief, were Eugene J. Callahan, State's Atty., and John Smirga and John M. Massameno, Asst. State's Attys., for appellee (State).

Before HULL, BORDEN and DALY, JJ.

BORDEN, Judge.

The defendant appeals from the judgment of his conviction, after a jury trial, of attempted larceny in the first degree by extortion, in violation of General Statutes §§ 53a-49(a) and 53a-122, and of larceny in the fourth degree, in violation of General Statutes § 53a-125(a). The sole issue in this appeal is whether the defendant's constitutional right of confrontation includes the right to impeach a state's witness by use of a prior narcotics conviction, so as to afford him an Evans review of the trial court's preclusion of such impeachment. See State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). We hold that it does not, and find no error.

The victim, Jane Regnemer, lost her purse while shopping. She was then staying at the home of a friend, Susan Virgilio. Over the next several days, Regnemer received many telephone calls from the defendant in which he indicated that he had her purse. He demanded money, sex and drugs in exchange for its return, and he threatened to destroy it unless she complied. After being notified by her bank that someone was trying to cash one of her checks, she called the police. On their advice, when the defendant next called she arranged to meet him in a parking lot under police surveillance. The defendant approached her car, she confirmed that he was the man who had called her, and she gave a prearranged signal to the police who arrested the defendant. The purse was subsequently recovered from the apartment of the defendant's girlfriend.

The trial took place in mid-March, 1982. Virgilio testified that upon returning from shopping Regnemer told her that she had lost her purse. She further testified that she had received, at her home, numerous telephone calls for Regnemer, that she spoke to the caller when Regnemer was not able to come to the phone, and that the caller always insisted that Regnemer come to the phone immediately. She also listened in on some of the conversations between the defendant and Regnemer, and testified regarding those conversations. She further testified that after the defendant was arrested, he called her home and threatened her life and Regnemer's life.

Prior to Virgilio's testimony, the state moved in limine to exclude evidence of her three prior felony narcotics convictions, one on March 28, 1972, and two in August, 1972. The defendant objected to the state's motion, but did not claim in his objection that he was constitutionally entitled to cross-examine Virgilio by use of those convictions. The trial court, performing its classic and traditional weighing process; see State v. Nardini, 187 Conn. 513, 447 A.2d 396 (1982); found that the prejudicial effect of the convictions outweighed their probative value on Virgilio's veracity, and exercised its discretion by granting the state's motion in limine. The defendant excepted.

The defendant's claim on appeal is limited to the argument that the trial court's ruling denied him his constitutional rights of confrontation under the federal and state constitutions. ¹ He does not challenge the discretionary ruling of the trial court in weighing the probative value of the prior convictions against their prejudicial effect. See State v. Heinz, 3 Conn.App. 80, 86-87, 485 A.2d 1321 (1984). Recognizing that he did not raise the constitutional claim before the trial court, the defendant seeks review of his claim in this court under the "by now all too familiar Evans bypass." State v. Grant, 6 Conn.App. 24, 27, 502 A.2d 945 (1986). The state concedes in its brief that the defendant's claim is reviewable under Evans. We conclude, nonetheless, that it is not reviewable under Evans, and we therefore do not consider it.

We have recently pointed out that an Evans review involves a three pronged analysis: (1) whether the record supports the defendant's claim that the trial court's action raises a question of fundamental constitutional dimension; (2) if so, whether the trial court's action was erroneous; and (3) if there was error, whether it requires reversal. State v. Grant, supra. Careful analysis of the defendant's claim discloses that precluding the defendant from cross-examining Virgilio on the basis of her prior narcotics convictions does not raise a question of fundamental constitutional dimension. "Every evidentiary ruling which denies a defendant a line of inquiry to which he thinks he is entitled is not constitutional error. In this instance, the defendant has put a constitutional tag on a nonconstitutional claim." State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985).

In Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1973), the Supreme Court held that cross-examination of a state's witness for bias or motive, based on the status of the witness as an adjudicated juvenile delinquent then on probation, was within the defendant's constitutional right of confrontation as "a proper and important function of the constitutionally protected right of cross-examination." Id., 316-17, 94 S.Ct. at 1110-11. The Court drew the distinction between, on the one hand, cross-examination on the basis of bias or motive which is constitutionally protected and, on the other hand, impeachment by "[t]he introduction of evidence of a prior crime [which] is ... a general attack on the credibility of the witness." Id. Cross-examination of a witness by use of his prior convictions is one way by which "the cross-examiner intends to afford the jury a basis to infer that the witness' character is such that he would be less likely than the average trustworthy citizen to be truthful in his testimony." Id. In a brief concurring opinion, Justice Stewart made clear the limited boundary of the holding of the case:

"I would emphasize that the Court neither holds nor suggests that the Constitution confers a right in every case to impeach the general credibility of a witness through cross-examination about his past delinquency adjudications or criminal convictions." Id., 321, 94 S.Ct. at 1112.

There is some authority for a more expansive reading of Davis v. Alaska, supra, than that of Justice Stewart. See, e.g., State v. Chaisson, 123 N.H. 17, 458 A.2d 95 (1983); State v. Conroy, 131 Ariz. 528, 642 P.2d 873 (1982); State v. Hillard, 398 So.2d 1057 (La.1981). The weight of authority, however, reads Davis v. Alaska as Justice Stewart did, namely, that the constitutional right of confrontation embraces cross-examination for bias, interest or motive, but that the use of prior convictions to impeach general credibility is subject only to the rules of judicial discretion. See, e.g., Mills v. Estelle, 552 F.2d 119, 122-23 (5th Cir.1977), cert. denied, 434 U.S. 871, 98 S.Ct. 214, 54 L.Ed.2d 149 (1977); Smith v. United States, 392 A.2d 990, 991-93 (D.C.Cir.1978); State v. Russell, 625 S.W.2d 138, 141-42 (Mo.1981); Bilbrey v. State, 594 S.W.2d 754, 756-58 (Tex.Cr.App.1980).

Our cases have followed Davis v. Alaska, supra, in holding that cross-examination for bias, interest or motive is a constitutionally protected right. See, e.g., State v. Ortiz, 198 Conn. 220, 502 A.2d 400 (1985); State v. Wilson, 188 Conn. 715, 720, 453 A.2d 765 (1982); State v. Corley, 177 Conn. 243, 246, 413 A.2d 826 (1979). They have also, at least implicitly, treated cross-examination for other purposes or based on less vital forms of attack on credibility as deserving of less protection. See, e.g., State v. Vitale, supra, 197 Conn. at 402-403, 497 A.2d 956 (purpose of cross-examination to elicit facts bolstering defendant's version of events); State v. Gaynor, 182 Conn. 501, 509, 438 A.2d 749 (1980) (questions relating to witness' reliability not based on bias or motive). There is no Connecticut Supreme Court case holding that the use of a prior conviction of a state's witness, to impeach his general credibility, is within the defendant's constitutional right of confrontation.

"Courts are continually called upon to draw lines on a case by case basis." Cologne v. Westfarms Associates, 192 Conn. 48, 81, 469 A.2d 1201 (1984) (Peters, C.J., dissenting). The line drawn by the United States Supreme Court in Davis v. Alaska, supra, between bias, interest or motive, and general credibility, may not be readily apparent at first glance. Nevertheless, there are two bodies of case law which raise that line into bold relief. The first is the case law regarding the impeachment use of pending criminal charges, which are recognized for their relevance to bias, interest or motive. See State v. Ortiz, supra. The second is the case law regarding the impeachment use of prior criminal convictions. See State v. Geyer, 194 Conn. 1, 480 A.2d 489 (1984).

The cases dealing with the admissibility of pending criminal charges for impeachment purposes clearly establish that there is an "irreducible minimum of cross-examination" guaranteed by the confrontation clause of the sixth amendment. State v. Ortiz, supra, 198 Conn. at 224, 502 A.2d 400. " 'Cross-examination to elicit facts which tend to show motive, interest, bias or prejudice is a matter of right, and although the extent of such cross-examination may often rest in the sound discretion of the court, a denial of the right, or its undue restriction, will constitute error.... It is generally held that cross-examination for this purpose is a substantial legal right which may not be abrogated or abridged at the discretion of the court to the prejudice of the cross-examining party.' " (Citations omitted.) (...