State v. Gary

• Decision Date: 09 May 1989
• Docket Number: No. 13448,13448
• Citation: 558 A.2d 654,211 Conn. 101
• Parties: STATE of Connecticut v. Lee GARY.
• Court: Connecticut Supreme Court

Page 654

558 A.2d 654

211 Conn. 101

STATE of Connecticut v. Lee GARY.

No. 13448.

Supreme Court of Connecticut.

Argued Jan. 31, 1989.

Decided May 9, 1989.

Jon C. Blue, former Asst. Public Defender, with whom, on the brief, was Joette Katz, former Public Defender, for appellant (defendant).

Mary H. Lesser, Deputy Asst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty., and Elpedio Vitale, Asst. State's Atty., for appellee (State).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, CALLAHAN, GLASS, COVELLO and HULL, JJ.

GLASS, Associate Justice.

The defendant, Lee Gary, was found guilty by a jury of larceny in the second degree in violation of General Statutes § 52a-123(a)(3). ¹ He appealed to the Appellate Court from the judgment of conviction rendered on the verdict, claiming that the trial court erred (1) in denying his motion for a mistrial after the complaining witness stated in the jury's presence that the defendant previously had pleaded guilty to the crime for which he was on trial, and (2) in failing to instruct the jury that to convict him of larceny in the second degree, the state had to prove beyond a reasonable doubt that he had taken property from the person of another. We transferred the case to ourselves pursuant to Practice Book § 4023. We find no error.

The jury could reasonably have found the following facts. In the early morning of August 29, 1986, the defendant accosted the victim, Rosemary Furman, as she walked a short distance from a friend's house to her sister's house in New Haven. Furman recognized the defendant from previously having seen him in the neighborhood. The defendant asked Furman if she would have sex with him for money. Furman refused. Thereafter, as they stood in front of Furman's sister's house, the defendant snatched a gold wristwatch that hung loosely from her arm, and fled. Furman gave chase, but stopped shortly after she saw the defendant's mother seated in an automobile. When the defendant's mother asked what was happening, Furman replied, "[t]hat guy just took my watch." The defendant's mother then responded, "[t]hat's my son, call the cops."

On the night of the incident, Furman's two nieces, April and Kimberly, observed Furman running down the street. In addition, Kimberly observed that Furman was chasing the defendant. After the defendant had evaded Furman's pursuit, Furman went to the New Haven police station where she identified the defendant's mug shot. A week or two after the incident, the defendant spoke to Furman's niece, April, apologized for taking the watch, and said that he would not have done so had he known that Furman was her aunt. According to April, the defendant's sister was present when the defendant apologized. The defendant repeated this statement to April during a telephone conversation approximately one month later.

On June 4, 1987, the state filed a substitute information charging the defendant with the crimes of robbery in the third degree in violation of General Statutes § 53a-136(a), ² and larceny in the second degree in violation of General Statutes § 53a-123 (a)(3). ³ The defendant pleaded guilty to the larceny count, and the robbery count was nolled. Under the plea agreement, the defendant was to receive a ten year prison sentence suspended after six years, and five years probation. Thereafter, however, the defendant moved to withdraw his guilty plea, and on July 17, 1987, the trial court granted his motion. On July 27, 1987, the state filed a new substitute information charging the defendant with robbery in the third degree and larceny in the second degree. The defendant pleaded not guilty to the charges in the second substitute information and elected a jury trial.

The record discloses that on the first day of trial, August 4, 1987, following Furman's testimony concerning the theft of the watch, the state's attorney asked her whether she had had any conversations with the defendant subsequent to the incident. Upon Furman's affirmative response, the defendant objected on the ground that any conversations between Furman and the defendant after the date of the incident were irrelevant. The trial court excused the jury to permit the state to present an offer of proof. With the jury out of the courtroom, Furman stated that after the defendant had pleaded guilty in June, 1987, he had called her several times from jail and asked her to drop the charges and not to respond to a subpoena. The trial court overruled the defendant's objection and recalled the jury to the courtroom.

After the jury returned, the following exchange took place between the state's attorney and Furman:

"Q. Ms. Furman, subsequent to August twenty nine, nineteen eighty six have you had the opportunity to have conversations with the defendant, Mr. Gary?

"A. Yes.

"Q. Have you had telephone conversations with him?

"A. Yes.

"Q. And how did those occur?

"A. The last time that we came to court he had pleaded guilty and said he took the watch and they gave him six years."

The defendant immediately objected to Furman's statement. The trial court forthwith instructed the jury: "At this point, the injury [sic] will disregard what was just said." On the defendant's request, the trial court excused the jury, stating that "[y]ou just have to bear with us. This is usual, this is normally [sic] in a criminal case. There are things that have to be resolved in your absence." After the jury left the courtroom, the defendant moved for a mistrial on the grounds that Furman's statement irreparably prejudiced the jury, and that any curative instructions by the trial court would be futile. The court denied the defendant's motion, stating that Furman's statement was "volunteered" and nonresponsive to the state's attorney's question. Defense counsel excepted to the court's denial of his motion, and then asked the court how it intended to "handle" the situation. The trial court stated that it would reinstruct the jury upon its return to "totally disregard" Furman's statement. The court also admonished Furman to answer only the questions asked of her, and to refrain from referring to any plea of guilty or any term of incarceration.

Upon the jury's return, the trial court gave the following instructions: "Let me again make it clear to you, as the jury, there was a question asked of this witness before you were excused from the courtroom. She really did not respond to the specific question, but then she made a statement about her opinion or conclusions about some other course of conduct relating to this defendant. I have already told you that you are to totally disregard her response to the last question. And so, therefore, you are only really to decide this case only on the basis of proper evidence that comes out in the course of this trial." Following this instruction, Furman testified that while awaiting trial the defendant had called her several times requesting her to drop the charges and to ignore any subpoena.

After the state had concluded its case on August 5, 1987, it withdrew the robbery count. The only witness presented by the defendant was the deputy warden of the Whalley Avenue Correctional Center in New Haven. He testified that each inmate is permitted only ten minutes a day in which to make telephone calls to the outside. The jury found the defendant guilty of larceny in the second degree. On August 14, 1987, the trial court sentenced him to ten years imprisonment, execution of the sentence suspended after seven years, followed by three years probation. Thereafter, the defendant filed a motion for a new trial on the ground that he was denied a fair trial because of Furman's disclosure of the prior guilty plea. The trial court denied the defendant's motion at a hearing on August 28, 1987.

I

The defendant first claims that the trial court erred in denying his motion for a mistrial after Furman remarked that the defendant had pleaded guilty to the offense for which he was on trial. He argues that Furman's statement violated Practice Book § 718 as well as the right against self-incrimination and the presumption of innocence underlying § 718. He further argues that the remark so prejudiced the jury that he could no longer receive a fair trial. Finally, he asserts that even if the prejudicial effect of such a remark could be cured by subsequent instructions, the trial court's instructions in this case were inadequate. We are not persuaded.

"A trial court should grant a motion for mistrial only where it is apparent that an occurrence during the trial has so prejudiced a party that he can no longer receive a fair trial. State v. Fleming, 198 Conn 255, 264, 502 A.2d 886 (1986); State v. Binet, 192 Conn. 618, 628, 473 A.2d 1200 (1984); State v. Ubaldi, 190 Conn. 559, 562, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S.Ct. 280, 78 L.Ed.2d 259 (1983). The trial court enjoys broad discretion in deciding whether a mistrial is warranted, and its decision will be reversed on appeal only if this discretion has been abused. State v. Fleming, supra; State v. Nowakowski, 188 Conn. 620, 624, 452 A.2d 938 (1982)." State v. Smith, 200 Conn. 544, 548-49, 512 A.2d 884 (1986).

The defendant first argues that the trial court's denial of his motion for a mistrial violated the mandate of Practice Book § 718. We disagree. Practice Book § 718 provides: "No evidence of the court proceedings at which a plea of guilty or nolo contendere was entered, where such plea is not accepted by the judicial authority or is later withdrawn pursuant to Sec. 719, shall be received at the trial of the case." ⁴ In the present case, the trial court excluded Furman's nonresponsive remark by instructing the jury totally to disregard it. Because Furman's remark was not available to the jury as "evidence" of the defendant's guilt, there was no violation of § 718. Further, because § 718 was not violated, we need not consider the defendant's argument that § 718 effectuates the...