State v. Cox

• Decision Date: 20 May 1986
• Docket Number: No. 2623,2623
• Citation: 7 Conn.App. 377,509 A.2d 36
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. John COX, Jr.

Page 36

509 A.2d 36

7 Conn.App. 377

STATE of Connecticut v.John COX, Jr.

No. 2623.

Appellate Court of Connecticut.

Argued Feb. 5, 1986.

Decided May 20, 1986.

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

Elpedio N. Vitale, DeputyAsst. State's Atty., with whom were Julia DiCocco Dewey, Asst. State's Atty., and, on the brief, Arnold Markle, State's Atty., and Patrick J. Clifford, Asst. State's Atty., New Haven, for appellee(State).

Before DUPONT, C.J., and BORDEN and DALY, JJ.

DUPONT, Chief Justice.

After a trial to a jury, the defendant was convicted of assault in the second degree, a violation of General Statutes § 53a-60(a)(2).In his appeal, the defendant claims that the trial court erred (1) by allowing the state to refer to prior statements of prosecution witnesses in the presence of the jury; (2) by restricting the scope of the cross-examination of a state's witness regarding her bias in favor of the victim of the defendant's attack; (3) by refusing to permit the defendant's presentation of reputation or opinion evidence in order to impeach the credibility of a state's witness; and (4) by instructing the jury that evidence introduced by the state regarding the prior criminal activity of the victim could only be used to impeach his credibility as a witness.

The jury reasonably could have found certain relevant facts based upon the evidence presented.The defendant occasionally visited Bernice Cox, his estranged wife, at her apartment.On one of his sporadic visits, the defendant became angry when he discovered that another man was there.After the man left, the defendant and his wife argued over her relationship with the man.The defendant's son, Jackie Cox, was present in the apartment in another room and could hear the defendant swearing at his mother in a loud voice.Jackie Cox then entered the room and he and the defendant began to argue.The defendant was in possession of a knife which was approximately six to seven inches long.Bernice Cox repeatedly asked him to put the knife away and leave the apartment.Jackie Cox then left the room and returned carrying what was described as a "stick"¹ because he was concerned for his mother's safety.The defendant, while being restrained by his wife, repeatedly threatened to kill his son.After pushing his wife out of his way, the defendant charged at his son and swung at him with the knife, cutting him in the face.At the same time, Jackie Cox swung at the defendant with the stick and both he and the defendant fell to the floor.While they were struggling on the floor, the defendant wounded his son again, this time cutting him on the chest.After being restrained by witnesses to the incident, the defendant left the apartment.It was later discovered that the defendant's estranged wife, at some point during the struggle, had also received knife wounds.²Both victims received medical treatment and the incident was reported to the police.

The defendant's first claim of error is that the trial court erred by requiring the prior statements of the state's witnesses to be referred to and turned over to defense counsel in the presence of the jury.Prior to trial, the defendant moved that the jury be excused at the conclusion of the direct testimony of each prosecution witness in order to allow the production, pursuant to Practice Book§ 752, ³ of prior statements by that witness.The trial court denied the motion, stating that it would decide whether there "will be a recess or not" depending upon the length of the statements and whether defense counsel had prior access to them.The trial court, therefore, although denying the motion in limine, deferred action on the substance of it until a state's witness had testified.

During the trial, both Bernice Cox and Jackie Cox testified for the state.At the conclusion of their testimony on direct examination, defense counsel, in the presence of the jury, alluded to the existence of prior statements made by them.These references to statements in possession of the state occurred before the state referred to them.The court explained to the jury that the state was required to give the defense any statements which "they may have taken from any particular witness who testified on the stand," and that there would be a recess so that defense counsel could read the statement.The court's explanation was given as to the testimony of Jackie Cox.Obviously, it applied equally to the testimony of Bernice Cox.

Practice Book§§ 753 and 754, ⁴ which govern the production and delivery of prior statements, do not directly address the issue of whether such statements should be produced in the absence of the jury or whether the existence of such statements may be mentioned in the presence of the jury.

"Our rules of practice governing the disclosure of statements in criminal proceedings substantially track the Jencks Act, 18 U.S.C. § 3500 et seq.That act is looked to by our courts in interpreting our rules governing the disclosure of statements.State v. Hinton, 196 Conn. 289, 300, 493 A.2d 837(1985)."State v. Waterman, 7 Conn.App. 326, 347, 509 A.2d 578(1986).

It has been stated that the production of such statements outside the presence of the jury serves the purpose of preventing the jury from observing defense counsel receive the statement, read it, and then not use it, thus creating the impression that the prior statement reinforced or was consistent with the testimony of the prosecution witness.SeeUnited States v. Frazier, 479 F.2d 983, 986(2d Cir.1973);Johnson v. United States, 347 F.2d 803, 806(D.C.Cir.1965).Both federal and state cases have, however, held that the actual procedure to be followed in disclosing prior statements of prosecution witnesses in the possession of the state should be left to the sound discretion of the trial court.United States v. Gardin, 382 F.2d 601, 605(2d Cir.1967);State v. Palmer, 196 Conn. 157, 164, 491 A.2d 1075(1985).

In the Gardin case, the court formulated a procedural suggestion for the guidance of trial courts."After the completion of the witness' direct testimony and before cross-examination has been concluded, the defendant will state that he requests leave to make a motion in the absence of the jury; the trial judge will then excuse the jury, and, in its absence, the defendant will move for disclosure of Jencks Act material.Thereafter all steps through the delivery to the defendant of the statement or report, or the portions thereof, to which the defendant is found to be entitled, and including the allowance of a reasonable time to the defendant to examine the material, will take place while the jury is still absent.If, thereafter, the defendant decides to make use of any of the material for cross-examination of the witness, he will be permitted to do so only upon condition that he state preliminarily to the court and jury that he is about to question the witness on the basis of a written statement or report which the Government has made available to the defendant as required by law.This is to negative any inference that the Government had been covering something up and will precede compliance with the general rule of evidence for the protection of the witness which requires the laying of a proper foundation for the introduction of a past contradictory statement."United States v. Gardin, supra, 605.

Although there is merit to the "prophylactic procedural suggestion" outlined in United States v. Gardin, supra;seeState v. Palmer, supra;the facts of this case do not show that the defendant suffered actual harm as a result of the remarks of the state and the court which were made in the presence of the jury.The defendant has failed to demonstrate that he was deprived of his right to a fair trial.He effectively cross-examined the witnesses and had the opportunity to examine the statements outside the presence of the jury.There is no indication here that the state improperly attempted to capitalize on the procedure employed by calling to the jury's attention any failure of the defendant to use any such statement in cross-examination.The mere possibility that a jury may draw an inference of a prior consistent statement does not, of itself, constitute reversible error.United States v. Gardin, supra;State v. Palmer, supra, 164, 491 A.2d 1075.

The defendant's second claim of error is that the trial court erred by limiting the cross-examination of Bernice Cox, the defendant's estranged wife, regarding her bias in favor of the victim of the defendant's assault.During her cross-examination, Bernice Cox stated that she was sympathetic toward her son because of the permanent scar on his face which resulted from his struggle with the defendant.Defense counsel's attempts to probe the witness' sympathy for her son based on his other problems, namely, his prior drug use, were objected to by the state.The trial court sustained the objection on the ground that such an inquiry was irrelevant to the issues of the credibility of the witness and the culpability of the defendant.

The right of an accused effectively to cross-examine an adverse witness is embodied in the confrontation clause of the sixth amendment.State v. Gaynor, 182 Conn. 501, 508, 438 A.2d 749(1980);see alsoDavis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347(1974);Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934(1965).Cross-examination regarding motive, interest, bias and prejudice is a matter of right and may not be unduly restricted.State v. Milum, 197 Conn. 602, 609, 500 A.2d 555, 559(1985);State v. Privitera, 1 Conn.App. 709, 711-12, 476 A.2d 605(1984).The general rule is that restrictions on the scope of cross-examination are within the sound discretion of the trial court, but this discretion comes into play only after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment.State v. Milum, supra,...