State v. Cullum
| Decision Date | 26 March 1963 |
| Docket Number | No. MV,MV |
| Citation | 2 Conn.Cir.Ct. 52,194 A.2d 73 |
| Court | Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division |
| Parties | STATE of Connecticut v. Kenneth R. CULLUM. 15-322. |
William F. Mangan, Jr., New Britain, for appellant (defendant) on part one of the information.
John J. Mangan, New Britain, with whom was Edward McMahon, Plainville, for appellant (defendant) on part two of the information.
James R. Burton, Asst. Pros. Atty., for appellee (State).
Since there are two parts to the information, we first consider part one, that is, the errors claimed in the trial to the jury. The defendant claims error in the admission of certain testimony. In those assignments, the defendant has failed to follow our rules, which require each such assignment to be numbered and refer to an exhibit which shall set forth the question, objection, answer and exception. Cir.Ct. Rule 7.29.1(4). The defendant in his assignment of errors has improperly treated the transcript as an exhibit and merely referred by page numbers to certain pages among the 296 appearing in the transcript. By our treatment of the pages referred to as exhibits within the meaning of Circuit Court Rule 7.29.1(4), we are not, nor could we be considered as, establishing any precedent for such procedure. For instance, the defendant claims error in the court's 'allowing an officer to testify over his objection that the defendant admitted he was driving when the state had not proven the corpus delicti.' A reference is then made as follows: 'Tr P-35.' An examination of page 35 of the transcript warrants no such claim, for there is no testimony by the witness that the defendant was operating a motor vehicle. Furthermore, the question objected to was never answered and was later withdrawn.
A written report of a police officer was laid in evidence, and the defendant alleges that the back of the report contained writings by others who were not called as witnesses by the state. The defendant claims that those notations were hearsay and harmful. The state offered a report of a police officer consisting of a number of questions asked the defendant, together with his answers. The defendant did not object to the admission of this exhibit at the time it was offered. Later, it was discovered that certain notations appearing on the back of the report had not been made by the witness. It does not appear that the prosecutor or the attorney for the defendant was aware of these notations at the time the report was admitted. In the meantime, the jury had examined the report. When this situation was brought to the court's attention, the jury were excused and the court discussed the matter with counsel. The court then ordered the clerk to block out the notations. The defendant objected to this procedure, moved for a mistrial and, upon being overruled, took an exception. The court was not at fault in this situation. It was the responsibility of counsel to examine the report for any possible infirmity it might contain. When the situation was brought to the court's attention, the court acted properly in immediately instructing the jury to disregard any notations they may have observed on the back of the report. See Drazen v. New Haven Taxicab Co., 95 Conn. 500, 502, 111 A. 861. Furthermore, there is nothing in the record to indicate the substance or purport of the notations. The ruling of the court in denying the motion was not erroneous.
A doctor was called as a witness by the state. After he commenced to testify concerning an examination made by him of the defendant, it became apparent that he was reading from notes on a card. When the court became aware of this situation, it questioned the doctor and concluded that he had no present recollection other than the fact that he had examined the defendant a year ago and at that time had made his notes. See Henowitz v. Rockville Savings Bank, 118 Conn. 527, 530, 173 A. 221. On a motion by the state, the portion of the oral testimony other than the fact the doctor examined the witness and made notes at that time was stricken. The defendant objected and took an exception. The court then instructed the jury that the testimony concerning the tests was stricken and the jury must disregard it. See State v. Ferrone, 97 Conn. 258, 268 116 A. 336. The notes were then admitted. The defendant then cross-examined the doctor in regard to the notes.
When it appears that the witness has no present recollection of past events but does know that the facts a memorandum states are correct and that the memorandum was made at about the time of the event recorded and represents his recollection at that time, the memorandum may be laid in evidence as a part of the direct examination. Neff v. Neff, 96 Conn. 273, 278, 114 A. 126. The court's ruling was in accord with the procedure stated in Neff v. Neff, supra. The defendant now contends for the first time that the court should have declared a mistrial since the doctor's oral testimony, though stricken from the evidence, had been heard by the jury, and the defendant now complains that he was not permitted to cross-examine the doctor with regard to that oral testimony. We do not feel constrained to rule on this claim, since it is now made for the first time. State v. Van Keegan, 142 Conn. 229, 236, 113 A.2d 141. Furthermore, the doctor's oral testimony was identical with that appearing in his notes, which were admitted in evidence, and in this situation such testimony could hardly be considered harmful.
A doctor called by the defendant testified on cross-examination that a written signature appearing on a piece of paper was that of the defendant. The state then offered the paper containing the signature, and it was admitted over the objections of the defendant. The defendant contends that it was wrongfully admitted since there was no evidence of comparison with other signatures of the defendant. This claim is without merit. The witness had previously testified that the defendant in his presence and at his request had written his signature on the paper. The paper bearing the signature was admissible as a specimen of the defendant's writing at the time it was written, not to establish the genuineness of the signature.
A doctor called by the defendant, on cross-examination by the state, was questioned as to any conversation he had with the defendant at the time he examined him. The defendant objected on the ground that such purported conversation had not been brought out on direct examination. The court overruled the defendant, stating: The admission or exclusion of new matters on cross-examination has been held to be within the sound discretion of the trial court. State v. Reynolds, 95 Conn. 186, 192, 110 A. 844; State v. Pecciulis, 84 Conn. 152, 162, 79 A. 75.
The defendant claims error in admitting certain testimony of a witness produced by the state for purposes of rebuttal. The subject matter of the rebuttal related to whether the witness, a doctor who had previously testified for the defendant, had observed the defendant in pain at the time he examined him. The defendant claims there had been no prior testimony on this subject to rebut. The court allowed the witness to answer the questions over the objection of the defendant, and he took an exception. The matter of rebuttal is largely discretionary with the court. DiMaio v. Panico, 115 Conn. 295, 299, 161 A. 238. The witness was asked a few questions and his answers could not be considered harmful to the defendant. The ruling is sustained.
As to part one of the information there is no error.
In his appeal relating to the second part of the information, the defendant assigns error in the admission of certain evidence and in the court's conclusion that upon all...
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