State v. Geyer

Citation480 A.2d 489,194 Conn. 1
CourtSupreme Court of Connecticut
Decision Date24 July 1984
PartiesSTATE of Connecticut v. Albert GEYER.

Bruce A. Sturman, Asst. Public Defender, for appellant (defendant).

Julia D. Dewey, Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty., Patrick Clifford, Asst. State's Atty., and Elbert N. Gates, legal intern, for appellee (State).

Before SPEZIALE, C.J., and PETERS, ARTHUR H. HEALEY, SHEA and GRILLO, JJ.

SPEZIALE, Chief Justice.

The defendant was convicted by a jury of the crime of possession of a narcotic substance with intent to sell or dispense, General Statutes § 19-480(a). He has appealed from the judgment claiming, inter alia, that the trial court erred in denying the defendant's motion in limine thereby allowing the state to mention specific prior felonies of which the defendant had been convicted. We find error.

The jury were presented with conflicting testimony from the principal witnesses for each side. Officers Robert L. Cappiello and Edward Clough, of the New Haven police department, testified for the state in its case-in-chief as follows: On May 22, 1980, the officers entered the Bama Lounge in New Haven with a search warrant for the defendant's person. As they entered they observed the defendant seated alone at a table on a raised platform at the front of the lounge, approximately ten to fifteen feet from the officers. As the officers announced their presence and displayed police identification both observed the defendant drop a vial on the floor. The officers immediately secured the vial from the floor and searched the defendant. The vial contained eighteen foil packets, each containing a small amount of white powder. Cappiello then conducted a field test on the white powder which indicated that the substance was cocaine. The officers then placed the defendant under arrest. No other narcotics were found. 1

The defendant took the stand in his own behalf. He agreed with much of the police officers' testimony about the arrest. He disputed, however, their testimony that he dropped the vial containing the cocaine packets on the floor. The defendant testified that he had no knowledge of the vial's existence until Clough picked it up from the floor. He stated that upon entering the lounge Cappiello approached and searched him but found no contraband. The defendant testified that Cappiello then turned to Clough and said "He is clean, what do I do now?" According to the defendant, Clough then began searching the floor and, after a few moments, arose with the vial in his hand.

In response to the assistant state's attorney's cross-examination the defendant again averred that he knew nothing of the vial or its contents until Clough picked it up from the floor. When the assistant state's attorney pointed out the discrepancy between his testimony and that of the police officers the defendant stated that the officers were lying when they said that they saw him drop the vial to the floor. 2

The defendant had previously been convicted on several different occasions for felony violations. In 1966 he was convicted of possession of heroin; in 1970 he was convicted of violation of the state narcotics and drug act; in 1973 he was convicted of sale of heroin, and in separate incidents, assault in the second degree and carrying a pistol without a permit; and in 1978 he was convicted of possession of a narcotic substance. Before putting on his defense the defendant filed a motion in limine to prohibit the state from introducing evidence of his prior convictions. 3 At a hearing on the motion the assistant state's attorney indicated that if the defendant were to testify, the state intended to introduce all of the prior convictions for impeachment purposes. The assistant state's attorney also stated that the state might try to introduce the 1973 conviction for sale of heroin during its case-in-chief, as evidence of the defendant's intent to sell the narcotics that he allegedly possessed.

The trial court granted that portion of the defendant's motion relating to the 1973 convictions for assault and carrying a pistol without a permit. It ruled that the assistant state's attorney could only mention that the defendant had been convicted of felonies, but could not relate the specific crime involved. The trial court denied that portion of the motion pertaining to prior narcotics convictions, and the defendant duly excepted. In explaining its ruling to counsel the trial court indicated that the scope of questioning by the state on the narcotics charges would be addressed at the time the state chose to introduce those convictions. The assistant state's attorney agreed that he would warn the court before exploring the narcotics charges.

Because the trial court had denied his motion in limine with respect to the prior narcotics convictions, on direct examination the defendant testified that he had been convicted of narcotics violations in 1966, 1973, and 1978 and that the 1973 conviction involved the sale of heroin. Although the assistant state's attorney had promised to notify the trial court before mentioning the defendant's prior narcotics convictions, he did not do so. On cross-examination the assistant state's attorney immediately questioned the defendant about the convictions in 1973 and 1978. Near the close of cross-examination, after the defendant testified that the arresting officers had lied during their testimony, the assistant state's attorney questioned the defendant about the narcotics convictions of 1966 and 1970 and again raised the convictions of 1973 and 1978. He also asked the defendant if he had been convicted of "two other felonies" in 1973; the defendant responded that he had. In each instance the assistant state's attorney asked only if the defendant had been convicted of the charge. He did not inquire about the circumstances surrounding the conviction or arrest.

On appeal the defendant claims, inter alia, that the trial court erred in denying his motion in limine as it related to prior narcotics convictions. 4 He argues that the trial court should have permitted the state to mention only that he had been convicted of unspecified felonies on those occasions. We agree.

We must first decide the specific purpose for which the defendant's narcotics convictions were introduced. Evidence that a criminal defendant has been convicted of crimes on prior occasions generally is not admissible. State v. Amaral, 179 Conn. 239, 244, 425 A.2d 1293 (1979); McCormick, Evidence (2d Ed. 1972) § 190. There are, however, several well-recognized exceptions to this rule, two of which concern us here. One such exception provides that "[e]vidence of other misconduct, although not ordinarily admissible to prove the bad character or criminal tendencies of the accused, may be allowed for the purpose of proving many different things, such as intent, identity, malice, motive or a system of criminal activity. State v. Falby, 187 Conn. 6, 23, 444 A.2d 213 (1982); State v. Barlow, 177 Conn. 391, 393, 418 A.2d 46 (1979)." State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982); see State v. Williams, 190 Conn. 104, 107, 459 A.2d 510 (1983). Another exception to the general rule allows the state, in certain circumstances, to introduce evidence of a criminal defendant's prior convictions after the defendant has testified for the purpose of impugning the credibility of the defendant's testimony. General Statutes § 52-145; 5 State v. Carter, 189 Conn. 631, 642, 458 A.2d 379 (1983); State v. Hamele, 188 Conn. 372, 383, 449 A.2d 1020 (1982); State v. Iasevoli, 188 Conn. 325, 328, 449 A.2d 996 (1982); State v. Nardini, 187 Conn. 513, 521, 447 A.2d 396 (1982); State v. Marquez, 160 Conn. 47, 52, 273 A.2d 689 (1970); Heating Acceptance Corporation v. Patterson, 152 Conn. 467, 472, 208 A.2d 341 (1965); Drazen v. New Haven Taxicab Co., 95 Conn. 500, 508, 111 A. 861 (1920).

Both in their briefs and at oral argument the parties disagreed about the purpose for which the evidence of prior convictions was offered and introduced. The state argues that the prior convictions were admitted to show the defendant's intent to sell the narcotics, as charged in the information. The defendant argues that the evidence was admitted only as bearing on the defendant's credibility. Under both exceptions evidence of a defendant's prior convictions is admissible only where its prejudicial effect does not "far outweigh" its materiality and relevancy. State v. Ibraimov, supra; State v. Holliday, 159 Conn. 169, 173, 268 A.2d 368 (1970); State v. Nardini, supra, 522; State v. Marquez, supra. The degree to which any evidence is material and relevant must be assessed in light of the fact or issue that it was intended to prove. In order to determine whether the trial court correctly admitted evidence of this defendant's prior convictions, therefore, we must first determine whether it was admitted to show intent or only to reflect on the defendant's credibility.

We are unpersuaded by the state's argument that the trial court properly allowed the prior convictions to be introduced as evidence of the defendant's intent to sell narcotics in this case. An examination of the record reveals that the assistant state's attorney who tried the case offered the prior convictions only on the issue of credibility and that the trial court admitted that evidence for that limited purpose only and so instructed the jury.

In ruling on the defendant's motion in limine the trial court observed that the defendant's prior narcotics convictions "might" be admissible for purposes other than impeachment of the defendant's testimony. When asked by counsel about the extent to which the narcotics convictions could be explored, the trial court explained to the assistant state's attorney that "[w]e don't want you to say something unless you give us warning." The assistant state's attorney stated that he...

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