State v. Crumble

• Decision Date: 14 March 1991
• Docket Number: No. 8298,8298
• Citation: 24 Conn.App. 57,585 A.2d 1245
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Viola CRUMBLE.

Page 1245

585 A.2d 1245

24 Conn.App. 57

STATE of Connecticut v. Viola CRUMBLE.

No. 8298.

Appellate Court of Connecticut.

Argued Sept. 11, 1990.

Decided Feb. 5, 1991.

Certification Denied March 14, 1991.

John R. Williams, with whom, on the brief, was D. Kirt Westfall, New Haven, for appellant (defendant).

Marjorie Allen Dauster, Deputy Asst. State's Atty., with whom, on the brief, were C. Robert Satti, Sr., State's Atty., and Marcia Pillsbury, Deputy Asst. State's Atty., for appellee (State).

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

SPALLONE, Judge.

The defendant was convicted, after a jury trial, of the crimes of assault in the third degree in violation of General Statutes § 53a-61 and cruelty to persons in violation of General Statutes § 53-20. On appeal, the defendant claims that the trial court improperly (1) struck the testimony of one of the defendant's witnesses, Beverly Grundy, (2) denied the defendant's motion to dismiss which claimed that the state failed to disclose exculpatory material, (3) excluded evidence of bias, (4) excluded impeachment evidence, and (5) excluded documentary evidence for failing to satisfy the business records exception to the hearsay rule. We affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the jury could have reasonably found the following facts. During April and May of 1987, Viola Crumble, Elona Romeo and Sally Booth were employed as mental retardation workers in unit 305 at the Seaside Regional Center (Seaside), a residence for mentally handicapped persons. Mental retardation workers are responsible for the care of clients at the center. The victim, Elizabeth DeJesus, was a client in unit 305 during April and May of 1987. She is nonverbal, nonambulatory and aggressive. The charges in this case stem from two incidents involving the defendant and DeJesus that occurred on April 22 and May 23, 1987, at Seaside.

On the morning of April 22, 1987, Romeo was in the day hall at Seaside with DeJesus and another client. Romeo observed the defendant enter the room and begin "wrestling and antagonizing" DeJesus, who was trying to get away. The defendant took the victim's hand, put it in the victim's mouth and directed her to bite it. When DeJesus would not bite, the defendant said "I'll fix you" and proceeded to bite the victim's hand herself.

On the morning of May 23, 1987, Romeo and Booth observed DeJesus assault Jackie Coombs, a helpless fifty-two year old client with Down's syndrome. After escorting Coombs out of the room, Romeo observed the defendant grab DeJesus, drag her into a nearby bedroom and shut the door. Booth then observed the defendant kicking DeJesus, who was on the floor. Booth intervened, and the defendant left the room.

In November of 1987, Romeo reported the defendant's assaults on DeJesus to the police. On December 21, 1987, Crumble was arrested. She entered pleas of not guilty. After trial, the defendant was convicted of cruelty to persons and assault in connection with the April 22 incident, and of assault in connection with the May 23 incident. This appeal followed.

I

The defendant first challenges the trial court's decision to strike the testimony of Beverly Grundy. The following facts are pertinent to the defendant's claim. At the beginning of the trial, defense counsel requested, and the trial court granted, an order "that the witnesses be instructed not to discuss their testimony as amongst themselves, at any point in time." The trial court instructed counsel to inform their witnesses of the order and reminded counsel that it was their responsibility to see to it that their witnesses did not violate the court order and to let the court know immediately of any violations.

The defendant called Grundy, a nurse at Seaside in unit 305 until March of 1987. Grundy testified that DeJesus was violent, had injured herself on previous occasions and had bitten herself while trying to bite Grundy. Grundy also described staff training in techniques for restraining violent patients.

On cross-examination, Grundy stated that the defendant telephoned her at home on Saturday or Sunday of the prior weekend, after the trial had begun and after the entry of the sequestration order. Grundy testified that she asked the defendant how the court case was going, who was in court for each side, who testified, and when she would testify. The state moved to strike Grundy's testimony claiming that the discussion violated the court's sequestration order. Defense counsel objected, stating that he had great difficulty contacting Grundy in order to schedule her testimony, and that he may have instructed the defendant to call Grundy to tell her to call defense counsel. The trial court granted the state's motion, ordered Grundy's testimony stricken from the record, and instructed the jury to disregard it.

The primary purpose of a sequestration order is to ensure that the defendant receives a fair trial by preventing witnesses from shaping their testimony to corroborate falsely the testimony of others. State v. Pikul, 150 Conn. 195, 200, 187 A.2d 442 (1962). Such orders may be effectuated upon a party's motion by court order. That order may impose a broader prohibition than that provided by the sequestration statute. State v. Williams 169 Conn. 322, 331, 363 A.2d 72 (1975); State v. Scott, 16 Conn.App. 172, 182, 547 A.2d 77, cert. denied, 209 Conn. 821, 551 A.2d 758 (1988). "An inquiry into the facts and circumstances of each case is necessary to ascertain whether the purpose of a sequestration order has been thwarted." State v. Scott, supra.

At the request of defense counsel, the sequestration order in the present case prohibited any discussion of testimony among witnesses during the trial. The defendant telephoned a future witness, discussed the ongoing trial, the number of persons who had testified until that point in time, and who had testified. Grundy stated that the defendant had told her that Romeo had already testified and that the defendant had told her that "it was all crazy and she'd never do anything to hurt anybody." Grundy and the defendant both were witnesses at trial. Under these circumstances, we cannot say that the trial court improperly concluded that the sequestration order was violated.

The remedy to be applied for a violation of a sequestration order rests in the trial court's discretion. State v. Falby, 187 Conn. 6, 27, 444 A.2d 213 (1982). In this case, it was well within the discretion of the trial court to determine that the fairness of the trial required the striking of the witness' testimony.

Even were we to decide that the trial court's remedy was excessive under these circumstances, the striking of Grundy's testimony was harmless since its substance was presented by other witnesses. Romeo, Booth and Stephanie Hanson, a nurse at Seaside, all testified concerning the victim's violent nature, and the defendant herself described the staff training in techniques for restraining violent patients. We conclude, accordingly, that the remedy applied by the trial court for a violation of its sequestration order did not deprive the defendant of her constitutional rights.

II

The defendant next claims that the state violated her due process rights by failing to disclose exculpatory material as required under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and under General Statutes § 54-86c, ¹ and Practice Book § 741(1) and (3). ²

The basis of the defendant's claim is as follows: On January 13, 1988, the defendant filed a nine page motion for discovery and inspection, enumerating fifteen categories of information that she requested from the prosecution. This list included a request for "[a]dequately defined books, tangible objects, papers, photographs or documents which are within the possession, custody or control of any State agency, and which are material to the preparation of the defense or are intended for use by the prosecuting authority as evidence-in-chief at the trial." The state responded, "none known at this time." On December 29, 1988, the defendant filed a supplemental motion for discovery and inspection requesting among other things, that the state reveal the medical or any other records of the reported injuries of DeJesus. The state objected to this request. The record does not indicate that the defendant ever claimed the motion to the court.

The defendant's brief indicates that the documents requested from the prosecution were client progress notes, which are records containing daily notations of a particular client's behavior and routines at Seaside. The defendant alleges that these reports would not have had any notation of an injury sustained by the victim on April 22, and that the injury to the victim on May 23 occurred as a result of a fight between the victim and another client at Seaside.

We will quickly dispose of the defendant's Brady and statutory claims. "Our Supreme Court has stated that '[i]n order to establish a violation of Brady and its progeny, the defendant must demonstrate the prosecution had possession of material information favorable to the accused....' (Emphasis added; footnote omitted.) State v. Falcone, 191 Conn. 12, 17, 463 A.2d 558 (1983); see also General Statutes § 54-86c." State v. Bettini, 11 Conn.App. 684, 692, 528 A.2d 1180, cert. denied, 205 Conn. 804, 531 A.2d 937 (1987). General Statutes § 54-86c requires that the prosecutor be in possession of exculpatory information or material. In the present case, there is no basis for concluding that the prosecution ever possessed the requested information. The prosecutor stated at trial that she never possessed, and never saw, the documents alluded to by the defense. The defendant does not dispute the prosecution's assertion, and only states that the documents were in the possession of Seaside.

Furthermore, the defendant's conclusion that these documents are exculpatory or material...