State v. Graham

• Decision Date: 27 May 1986
• Citation: 200 Conn. 9,509 A.2d 493
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. John A. GRAHAM.

Page 493

509 A.2d 493

200 Conn. 9

STATE of Connecticut v. John A. GRAHAM.

Supreme Court of Connecticut.

Argued Feb. 6, 1986.

Decided May 27, 1986.

Conrad O. Seifert, Old Lyme, for appellant (defendant).

Richard A. Schatz, Asst. State's Atty., with whom, on the brief, was C. Robert Satti, State's Atty., for appellee (state).

Before HEALEY, SHEA, DANNEHY, SANTANIELLO and DEAN, JJ.

SANTANIELLO, Associate Justice.

The dispositive issue on this appeal is whether the trial court erred in allowing the state to bring before the jury evidence implicating the defendant in other crimes. After a trial to a jury, the defendant, John Graham, was convicted of robbery in the first degree in violation of General Statutes § 53a-134(a)(3), burglary in the first degree in violation of General Statutes §§ 53a-101(a)(1) and 53a-8, larceny in the second degree in violation of General Statutes § 53a-123(a)(2), and unlawful restraint in the first degree in violation of General Statutes §§ 53a-95 and 53a-8. He was subsequently sentenced to an effective prison term of thirty years.

On appeal, the defendant claims: (1) that the trial court erred in allowing the state to introduce evidence of his involvement in other robberies; (2) that the state should not have been permitted to impeach its own witness; (3) that the admission of certain pictures and the corresponding remarks of the prosecutor denied him his right to a fair trial; (4) that a rope seized in contravention of his rights under the fourth and fourteenth amendments should have been excluded; and (5) that the trial court should have dismissed the charges against him on the basis that he was illegally arrested. We find error on the first of these claims and we accordingly vacate the judgment and remand the case for a new trial. We will consider the remaining claims only insofar as they may affect a subsequent retrial.

The jury could reasonably have found that on February 5, 1983, two masked men robbed the Medi Mart Pharmacy on the Boston Post Road in Waterford. The two men were armed and stole cash and store merchandise including almost one hundred wristwatches. The defendant and another man, Willie Thompson, were later arrested and charged with various crimes in connection with the robbery.

I

The defendant's first claim is that the trial court abused its discretion and unfairly prejudiced his defense in allowing evidence implicating him in other crimes to be placed before the jury. At trial, the state called Dinah McNair, Thompson's niece, as a witness. McNair had given a signed statement to the police after the robbery indicating that she had overheard the defendant and Thompson plan this and other robberies. When called to the stand, McNair denied ever having heard the defendant and Thompson plan the robbery of a Medi Mart pharmacy. The court then declared the witness "hostile" and permitted the state to impeach her testimony with the prior inconsistent statement concerning the Medi Mart robbery. The court had initially refused the state permission to impeach the witness using her statements concerning the planning of other robberies and the state had respected that ruling during direct examination. During cross-examination, however, defense counsel asked McNair: "You never heard John Graham and Willie [Thompson] discussing any robbery, did you?" (Emphasis added.) She responded, "No." Before engaging McNair on redirect examination, the state again requested and was then given permission to inquire as to the other robberies on the ground that the defendant had "opened the door" to impeach the witness on the point by asking the question quoted above. The state proceeded to confront the witness with the part of the statement in which she detailed how the defendant was involved in three other New London county robberies. The trial court opined that the other crimes evidence was prejudicial and not very probative, but agreed with the state that the defendant had on cross-examination opened the subject to inquiry.

The trial court is charged with the responsibility to exclude evidence where its prejudicial tendency outweighs its probative value. State v. Geyer, 194 Conn. 1, 11, 480 A.2d 489 (1984); State v. Nardini, 187 Conn. 513, 521-22, 447 A.2d 396 (1982); State v. Marquez, 160 Conn. 47, 52, 273 A.2d 689 (1970). Evidence is prejudicial "when it tends to have some adverse effect upon a defendant beyond tending to prove the fact or issue that justified its admission into evidence." United States v. Figueroa, 618 F.2d 934, 943 (2d Cir.1980). Strong reasons arise for excluding evidence of similar crimes " 'because of the inevitable pressure on lay jurors to believe that "if he did it before he probably did so this time." ' Gordon v. United States, 383 F.2d 936, 940 (D.C.Cir.1967), cert. denied, 390 U.S. 1029, 88 S.Ct. 1421, 20 L.Ed.2d 287 (1968).... 'Where the prior crime is quite similar to the offense being tried, a high degree of prejudice is created and a strong showing of probative value would be necessary to warrant admissibility.' State v. Nardini, supra, [187 Conn. at] 522 ." State v. Carter, 189 Conn. 631, 644, 458 A.2d 379 (1983).

In this case the trial court specifically found that the evidence of the defendant's involvement in other crimes was "clearly prejudicial, and ... not probative" but admitted the evidence for impeachment purposes because the defendant had "put before this Jury an indication that [he] never discussed any robbery...." We concur with the trial court that the evidence was prejudicial in this case because it placed before the jury details of the defendant's alleged involvement in three unrelated, though similar robberies. See State v. Geyer, supra, 194 Conn. at 15, 480 A.2d 489. We also agree that the information had, at best, marginal probative value in that the witness' credibility had already been impeached by the use of the inconsistent statement regarding the Medi Mart robbery. The question then becomes whether it was proper to allow the evidence on the ground that defense counsel had opened the door to its admission by inquiring as to "any robbery."

Generally, a party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject. State v. Roy, 173 Conn. 35, 50, 376 A.2d 391 (1977); McCormick, Evidence (3d Ed.1984) §§ 32, 57. The party who initiates discussion on the issue is said to have "opened the door" to rebuttal by the opposing party. Even though the rebuttal evidence would ordinarily be inadmissible on other grounds, the court may, in its discretion, allow it where the party initiating inquiry has made unfair use of the evidence. United States v. Winston, 447 F.2d 1236, 1240-41 (D.C.Cir.1971); State v. Glenn, 194 Conn. 483, 499, 481 A.2d 741 (1984); State v. Roy, supra; McCormick, supra, § 57. This rule "operates to prevent a defendant from successfully excluding inadmissible prosecution evidence and then selectively introducing pieces of this evidence for his own advantage, without allowing the prosecution to place the evidence in its proper context." United States v. Lum, 466 F.Supp. 328, 334 (D.Del.1979).

"The doctrine of opening the door cannot, of course, 'be "subverted into a rule for injection of prejudice." ' United States v. Lum, [supra, 335], quoting United States v. Winston, [supra, 1240]." State v. Glenn, supra. The trial court must carefully consider whether the circumstances of the case warrant further inquiry into the subject matter, and should permit it " 'only to the extent necessary to remove any unfair prejudice which might otherwise have ensued from the original evidence.' California Ins. Co. v. Allen, 235 F.2d 178, 180 (5th Cir.1956)." United States v. Winston, supra. Thus, in making its determination, the trial court should balance the harm to the state in restricting the inquiry with the prejudice suffered by the defendant in allowing the rebuttal. Id., 1241-42; People v. Arends, 155 Cal.App.2d 496, 509, 318 P.2d 532 (1957).

Applying these principles here, we conclude that the trial court erred in allowing the state to elicit testimony on the defendant's involvement in other robberies. As we have already noted, the introduction of the evidence greatly prejudiced the defendant and the evidence was of only marginal probative value. The introduction of the other crimes evidence was not essential to cure the unfairness, if any, that the state may have suffered by the defense counsel's limited inquiry into the other robberies. The trial court therefore abused its discretion in failing to limit the state's impeachment of McNair on redirect examination. Because the evidence was of a highly prejudicial character in that it left with the jury the knowledge that the defendant also may have committed three similar robberies, we cannot say that the court's error was harmless and we must remand the case for a new trial. See State v. Carter, supra.

II

The defendant also claims that the state should not have been permitted to impeach McNair at all. The defendant argues that the state was aware that McNair would repudiate her prior statement and, as a result, lacked the "surprise" necessary to impeach its own witness. See State v. Mitchell, 169 Conn. 161, 164-65, 362 A.2d 808 (1975). The claim gives us the opportunity to re-evaluate our rules governing the right of a party to impeach his own witness.

At common law in this state and most jurisdictions, a party presenting a witness was generally not allowed to discredit or impeach the witness. State v. Mitchell, supra, 164, 362 A.2d 808; State v. Jones, 166 Conn. 620, 622, 353 A.2d 764 (1974); Delfino v. Warners Motor Express, 142 Conn. 301, 307, 114 A.2d 205 (1955); Schmeltz v. Tracy, 119 Conn. 492, 498, 177 A. 520 (1935); Carney v. Hennessey, 77 Conn. 577, 586, 60 A. 129 (1905); Carpenter's Appeal, 74 Conn. 431, 435, 51 A. 126 (1902); see generally 3A Wigmore,...