State v. George

Citation481 A.2d 1068,194 Conn. 361
CourtSupreme Court of Connecticut
Decision Date28 August 1984
PartiesSTATE of Connecticut v. Noel J. GEORGE.

Louis S. Avitabile, Waterbury, with whom, on brief, was John P. Santucci, Waterbury, for appellant (defendant).

Catherine J. Capuano, Sp. Asst. State's Atty., with whom, on brief, were Francis M. McDonald, State's Atty., and Bradford J. Ward, Asst. State's Atty., for appellee (state).

Before PETERS, PARSKEY, SHEA, GRILLO and DALY, JJ.

SHEA, Associate Justice.

After a jury trial the defendant was convicted of conspiracy to commit larceny in the first degree in violation of General Statutes § 53a-122 and of conspiracy to commit burglary in the third degree in violation of General Statutes § 53a-48 and General Statutes § 53a-103. In his appeal from the judgment the defendant claims error in five rulings of the trial court on evidence and also in the failure to grant his request to charge upon the credibility of a witness for the state. We find no reversible error.

From the evidence the jury could reasonably have found that on April 19, 1979, a forcible entry had been made into a house in Woodbury and that various items, including a collection of Hummel figurines, had been stolen from the premises. About three weeks before the burglary, the defendant had visited the house and had seen part of the Hummel collection.

On June 13, 1979, Edward Benner gave a written statement to the police in which he confessed to the burglary of the Woodbury residence and the theft of the Hummel collection as well as some other property he found within. His statement also implicated the defendant in these crimes.

At trial Benner testified that the defendant told him of the Woodbury residence and wanted him to steal the Hummel collection. He said that after the theft he delivered the collection to the defendant, who paid him between $300 and $500 for his services.

Eileen Snyder, who had an extensive Hummel collection, testified that several years earlier she had purchased some Hummel figurines from the defendant who then used the name, Jack Stolfi. In the spring of 1979 the defendant, using the same name, came to her house with two boxes of Hummels, some of which were damaged. After examining them, she paid the defendant between $800 and $1000 for the merchandise. On June 12, 1979, when the police visited her in the course of investigating the theft from the house in Woodbury, she still had in her possession about fifteen of the Hummels received from the defendant, the others having been sold. She delivered the remaining Hummels to the police and they were subsequently identified by the owner as part of the collection which had been stolen in Woodbury on April 19, 1979.

The defendant testified in his own behalf, denying his participation in the theft and any dealings with Eileen Snyder.

I

The defendant claims error in the exclusion of a question related to the interest of the state's principal witness against him, Edward Benner, a self-confessed accomplice in the crimes charged. A few days before the trial began, Benner had pleaded guilty to four charges arising from the burglary and theft in Woodbury: burglary in the third degree, larceny in the first degree, conspiracy to commit burglary in the third degree and conspiracy to commit larceny in the first degree. He testified that, although he believed he could receive a maximum sentence of sixty years for those offenses, the state had not agreed to make any recommendation concerning the sentence to be imposed.

On cross-examination Benner was asked whether he hoped that his testimony at the defendant's trial would help him at the time he was sentenced for his involvement in the Woodbury crimes. He responded, "I pray a lot." Later in his cross-examination Benner was asked whether he hoped to receive a sentence for the Woodbury crimes which would be concurrent with sentences he was presently serving for some unrelated crimes. The court sustained the state's objection and the defendant excepted to the ruling. 1

"Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted." State v. Wilson, 188 Conn. 715, 720, 453 A.2d 765 (1982). The principal purpose of the right guaranteed to an accused "to be confronted with the witnesses against him" by the sixth amendment of our federal constitution is to provide the opportunity for cross-examination. Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965); 5 Wigmore, Evidence (Chadbourn Rev.) § 1395. "We have recognized that the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination." Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974); Greene v. McElroy, 360 U.S. 474, 496-97, 79 S.Ct. 1400, 1413-14, 3 L.Ed.2d 1377 (1959).

Although a trial judge has authority to restrict the scope and extent of cross-examination within reasonable limits, this discretion may not be exercised until a defendant has been permitted as a matter of right sufficient cross-examination to satisfy the confrontation clause of the sixth amendment. United States v. Vasilios, 598 F.2d 387, 389 (5th Cir.1979). That constitutional standard is satisfied only when a defendant has "been permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness." Davis v. Alaska, supra, 415 U.S. 318, 94 S.Ct. 1111. Although the trial court should have permitted the inquiry concerning Benner's hope for a concurrent sentence on the pending charges, the contrary ruling did not under all the circumstances have the effect of violating the defendant's right of confrontation. The jury had been apprised of the four crimes which Benner had admitted by his plea of guilty and were aware that his sentence upon them had been deferred until after he had testified against the defendant. They knew that Benner believed he was exposed to a maximum sentence of sixty years for those offenses. The essential point, that Benner was hoping for leniency in the disposition of the charges against him, had been effectively made by the question whether he hoped that his testimony against the defendant would help him at the time he was sentenced and his response thereto, "I pray a lot." Although the state suggests no good reason for disallowing the related inquiry concerning Benner's hope for a concurrent sentence, this isolated ruling does not in the context of the whole case amount to a deprivation of the opportunity to reveal the facts from which the jury "could appropriately draw inferences relating to the reliability of the witness." Davis v. Alaska, supra, 318, 94 S.Ct. 1111.

The defendant points to two circumstances which he contends gave the exclusion of his inquiry about a concurrent sentence significant prejudicial impact: (1) the testimony of Benner's sister that he had no motive to lie because he was already serving a sentence, which had been imposed for crimes unrelated to the Woodbury incident; and (2) a claim to the same effect allegedly made by the state's attorney during final arguments. In respect to the latter, it appears that the arguments were not recorded, no request to do so having been made. Since the state does not concede the defendant's version of what transpired and the closing arguments have not been reconstructed in some other way, we cannot review the defendant's claim as related to the arguments. State v. Killenger, 193 Conn. 48, 58, 475 A.2d 276 (1984); State v. Vitale, 190 Conn. 219, 226, 460 A.2d 961 (1983).

The testimony referred to was given during the defendant's cross-examination of Benner's sister, who had testified that she had seen the defendant in a car with her brother several times and that, after her brother's arrest, the defendant gave her $200 to help pay for his lawyer. This portion of her extensive cross-examination was as follows:

"Q. And, aren't you lying here fingering this man in order to protect your brother?

"A. What good would that do? My brother is already in prison. If I lied on this witness stand and went to jail, there would be no one to care for my six kids. They come first.

"Q. If you lied on this witness stand that it would help your brother with his cases, that would make you happy, wouldn't it?

"A. Would it get him out of jail?" 2

We see nothing in this testimony, elicited by the defendant, which would have accentuated the minimal prejudice he may have suffered from the exclusion of his inquiry of Benner about a concurrent sentence.

There was a very thorough cross-examination of Benner relating to his credibility. Evidence of his several prior convictions was introduced, including one for giving a false statement under oath to a police officer. It was brought out that Benner had refused to sign the statement he gave to the police implicating the defendant until a felony charge of burglary in the third degree of a house in Prospect was reduced to the misdemeanor of criminal trespass in the second degree. In addition the trial court gave an elaborate charge on the considerations involved in judging the credibility of an accomplice, a "self-confessed criminal," including the observation that "he may in his own mind be looking for or hoping for some favors in the disposition of his own case and ... may have such an interest in the outcome of the case on trial that his testimony might be colored by that fact." We are persuaded that the ruling complained of did not deprive the defendant of a fair opportunity to bring to the attention of the jury any significant consideration bearing upon the credibility of Benner.

II

The next ruling claimed as error also is related to the credibility of the state's witness, Benner. A corrections officer, Fra...

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