State v. Graham

• Decision Date: 24 July 1990
• Docket Number: No. 6974,6974
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Thomas GRAHAM.

Page 1057

575 A.2d 1057

21 Conn.App. 688

STATE of Connecticut v. Thomas GRAHAM.

No. 6974.

Appellate Court of Connecticut.

Argued Oct. 10, 1989.

Decided June 5, 1990.

Certification Denied July 24, 1990.

Linda L. Morkan, Sp. Public Defender, with whom was Leny K. Wallen-Friedman, Sp. Public Defender, for appellant (defendant).

Richard F. Jacobson, Asst. State's Atty., for appellee (State).

Before DALY, NORCOTT and FOTI, JJ.

FOTI, Judge.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of the crime of assault in the first degree in violation of General Statutes § 53a-59(a)(1). The defendant claims that the trial court erred (1) in conducting the proceedings in a manner that deprived the defendant of a fair trial, (2) in its ruling and instructions regarding certain prior inconsistent statements, (3) in allowing the state to exercise a peremptory challenge to exclude a black venireperson, (4) in failing to cover all the salient points requested by the defendant when instructing the jury, (5) in refusing to give a missing witness instruction, and (6) in denying the defendant's request to voir dire an expert witness. We find no reversible error.

The jury could have reasonably found the following facts. On the evening of September 15, 1987, the defendant shot four victims with a .12 gauge shotgun in the courtyard adjacent to Building 19 of the P.T. Barnum Apartments in Bridgeport. All of the victims were friends or acquaintances of the defendant and had known him for periods of time ranging from ten years to a few days. Shortly after the incident, each of the victims positively identified the defendant as his or her assailant while being treated at Park City Hospital. Three additional eye witnesses to the shooting positively identified the defendant as the gunman. After the defendant was arrested for the shootings, the Bridgeport police performed an atomic absorption test on his hands confirming the fact that he had recently fired a gun.

I

The defendant first claims that the conduct of the trial court, viewed in its entirety, infringed upon the right of the defendant to a fair trial. In raising this claim, the defendant asserts that the judge assumed a prosecutorial role periodically during the course of the trial, that defense counsel was repeatedly denied a chance to create a record, that defense counsel was rebuked by the judge thus prejudicing the defendant, and that the judge's questioning of two witnesses went beyond the bounds of impartiality.

The defendant admits that he neither objected to the court's conduct during the course of the trial nor made a motion for mistrial because of the perceived misconduct. He argues, however, that because the remarks made by the court implicate his fundamental right to a fair trial his claim may be properly reviewed under State v. Evans, 165 Conn. 61, 67-70, 327 A.2d 576 (1973).

"Only under exceptional circumstances will this court review a claim that is raised here for the first time.... Review may be appropriate ... where the record adequately supports a claim that the defendant has been deprived of a fundamental constitutional right and a fair trial." (Citation omitted.) State v. Cazimovski, 20 Conn.App. 190, 191, 565 A.2d 254 (1989); see also Practice Book § 4185.

"[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail. The appellate tribunal is free, therefore, to respond to the defendant's claim by focusing on whichever condition is most relevant in the particular circumstances." (Emphasis in original.) State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

Our review discloses that the defendant's claim fails to meet the third Golding condition in that the record does not support the clear existence of a violation of the defendant's constitutional right to a fair trial.

Certain additional facts are relevant to the resolution of this claim. Six eyewitnesses to the shooting positively identified the defendant as the gunman. ¹ All four of the victims named Graham as their assailant at the hospital immediately after the shooting and later reiterated their identification while on the witness stand. Four of the eyewitnesses went to junior high school or high school, or both, with the defendant and had known him for a number of years. To confirm the details and extent of their school relationships, questioning by both counsel began with general background information that included the extent of the witnesses' high school education and their current occupations. One of the victims, Michael Barr, testified that after being shot in the eye by the defendant he required treatment at two separate hospitals and that he was without sight in his left eye. Barr further stated that he was a junior in high school at the time of the shooting, but had been unable to graduate with his class and had not yet returned to school.

Other relevant facts include two admissions made by the defendant the night of the incident. The first admission was made at the hospital. The second was made at the police station when Graham told one of the victims that Michael Barr was the only person he had intended to shoot.

To support his claim that he did not receive a fair trial the defendant first cites two particular instances during the course of a twelve day trial and asserts that on these occasions the judge's questioning could not be distinguished from that of a prosecutor. We disagree.

"Due process requires that a criminal defendant be given a fair trial before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm.... In a criminal trial, the judge is more than a mere moderator of the proceedings, and it is his responsibility to conduct a trial in a manner which approaches an atmosphere of impartiality." (Citations omitted.) State v. Jenkins, 8 Conn.App. 35, 42, 510 A.2d 1370 (1986).

A trial court has a discretionary right to intervene in the examination of witnesses where such intervention is necessary to clarify confusing testimony, restrain an obstreperous witness, or elucidate a witness' understanding of a question. State v. Smith, 200 Conn. 544, 549, 512 A.2d 884 (1986).

When the comments the defendant asserts are prosecutorial in nature are placed in their proper context, the judge's questioning falls squarely within his discretionary authority to moderate the trial and "do not either singly or together, deprive the defendant of a fair trial." State v. Jenkins, supra, 8 Conn.App. at 43, 510 A.2d 1370. ² The defendant also claims that he was repeatedly denied the right to create a record and was repeatedly rebuked by the court. He claims judicial indifference to both of the objections he raised and his arguments supporting his objections. Our review of the instances the defendant has brought to our attention shows no judicial indifference, but rather indicates that the following pattern developed during the course of the trial between the bench and both counsel. When an objection was made as to defense counsel's behavior or his line of questioning, both counsel were given an opportunity to present their arguments on the questions of law involved. ³ In those instances where the court ruled against the defendant, he took exceptions to the ruling and then attempted to continue his argument in opposition to the objection. Our review of the transcript discloses that the defendant was not cut short without first having had ample opportunity to present his case. ⁴ The defendant also asserts that the trial court denied him a fair trial by inexcusably buttressing the testimony of two state's witnesses. The first witness the defendant claims was bolstered by the court was Hubert Joyner. The defendant asserts that Joyner's testimony was rambling and inconsistent and that the court's inquiry as to why he was "so slow this morning" before he left the witness stand impermissibly added to the witness' credibility.

The second witness whose credibility the defendant claims was impermissibly buttressed by the court was Michael Barr. Barr was questioned by both counsel as to the nature and extent of his eye injuries. At the close of Barr's testimony, the court asked him if he was going to finish his education. When he responded affirmatively, the court responded "Very good."

"The court's questioning of a witness is not necessarily improper because it draws attention to the strengths or weaknesses of a party's case.... However, the court should avoid questioning witnesses in a manner that reflects in any fashion on their credibility.... Determinations of credibility are solely the function of the jury." (Citations omitted.) State v. Smith, supra, 200 Conn. at 550, 512 A.2d 884.

To support his claim that the court's remarks inexcusably enhanced the credibility of Barr's testimony, the defendant cites State v. Smith, supra. In Smith, our Supreme Court held that the trial court's questioning of the state's witness about his time as a hostage in Iran tended to enhance the witness' credibility.

The present case can be readily distinguished from Smith. First, it should be noted that although the defendant in Smith did not immediately object to the judge's questioning, he did move for a mistrial the following day. The defendant in the present case neither objected to the trial court's questioning nor moved for a mistrial.

The second...