State v. Greene, (AC 17329)

• Decision Date: 06 April 1999
• Docket Number: (AC 17329)
• Citation: 52 Conn. App. 617,727 A.2d 765
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. ALLISON GREENE

52 Conn. App. 617

727 A.2d 765

STATE OF CONNECTICUT v. ALLISON GREENE

(AC 17329)

Appellate Court of Connecticut.

Argued December 11, 1998.

Officially released April 6, 1999.

O'Connell, C. J., and Lavery and Daly, JS.

Cheryl E. Heffernan, for the appellant (defendant).

Bruce R. Lockwood, deputy assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Cara Eschuk, assistant state's attorney, for the appellee (state).

Opinion

LAVERY, J.

The defendant, Allison Greene, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A)¹ and risk of injury to a child in violation of General Statutes § 53-21.² On appeal, the defendant claims (1) that the trial court improperly (a) determined that defense counsel had "opened the door" to evidence of the defendant's uncharged misconduct and (b) permitted the prosecutor to question a defense witness about her knowledge of the defendant's uncharged misconduct, (2) that evidence of the defendant's uncharged misconduct tainted the verdict thereby denying the defendant a fair trial and (3) that the defense counsel's negligence deprived the defendant of her constitutional right to the effective assistance of counsel. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant, who was born in 1971, baby-sat for the victims, a boy, M, and a girl, S, between October 1, 1990, and July 30, 1992. At the time, M was between six and eight years of age and S was between seven and nine years of age. The defendant generally took care of the children on Friday evenings at their home, but on occasion the children stayed with the defendant at her parents' home.

While she cared for them, the defendant subjected both M and S to sexual contact on numerous occasions. The contact included having one of the children insert his or her finger into the defendant's vagina and moving it about at the defendant's direction. Sometimes the defendant touched M's penis. On occasion, the defendant removed her clothing, had the children do the same and attempt sex together, and then the defendant rubbed M's penis against her vagina. The defendant instructed the children not to tell anyone what they had done. In 1992, S asked the defendant to stop subjecting her to sexual contact and the defendant complied. The defendant did, however, continue to have sexual contact with M, including one incidence of placing M's penis in her mouth. In July, 1995, M told his mother about the sexual activity. When questioned by her mother, S confirmed the events. The defendant was arrested and charged shortly thereafter. Trial was held in March, 1997, at which time M and S were twelve and thirteen, respectively. Additional facts will be addressed as necessary.

I

The defendant first claims that the trial court improperly ruled that defense counsel had "opened the door" to evidence of the defendant's uncharged misconduct and permitted the prosecutor to question a defense witness regarding her knowledge of that misconduct. We disagree.

"`The standard for review is clear. The admission of evidence of prior uncharged misconduct is a decision properly within the discretion of the trial court.... [E]very reasonable presumption should be given in favor of the trial court's ruling.... [T]he trial court's decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done.' ... State v. Cooper, [227 Conn. 417, 426-27, 630 A.2d 1043 (1993)]." (Citations omitted; internal quotation marks omitted.) State v. Oliver, 48 Conn. App. 41, 51, 708 A.2d 594, cert. denied, 244 Conn. 930, 711 A.2d 729 (1998).

"Evidence of a defendant's prior misconduct is not ordinarily admissible to prove his bad character or criminal tendencies. State v. Williams, 203 Conn. 159, 185, 523 A.2d 1284 (1987); see State v. Ortiz, 40 Conn. App. 374, 378, 671 A.2d 389, cert. denied, 236 Conn. 916, 673 A.2d 1144 (1996). Evidence of other misconduct, however, may be allowed for the purpose of proving many different things, such as intent, identity, malice, motive or a system of criminal activity ... or an element of the crime.... State v. O'Neill, 200 Conn. 268, 273, 511 A.2d 321 (1986); State v. Sierra, 213 Conn. 422, 428-29, 568 A.2d 448 (1990); State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982); State v. Falby, 187 Conn. 6, 23, 444 A.2d 213 (1982); State v. Busque, 31 Conn. App. 120, 128, 623 A.2d 532 (1993), appeal dismissed, 229 Conn. 839, 643 A.2d 1281 (1994). Such evidence, however, to be admissible must also be relevant and material. State v. Asherman, 193 Conn. 695, 728, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985); State v. Smith, 198 Conn. 147, 157, 502 A.2d 874 (1985); State v. Ibraimov, supra, 352; State v. Wiedl, 35 Conn. App. 262, 265, 644 A.2d 1313, cert. denied, 231 Conn. 914, 648 A.2d 160 (1994).

"The trial court has broad discretion not only to rule on the relevancy of evidence; State v. Jones, 205 Conn. 638, 666-67, 534 A.2d 1199 (1987); but also to determine the scope of cross-examination. State v. Cooper, [supra, 227 Conn. 431]; State v. Hernandez, [224 Conn. 196, 208, 618 A.2d 494 (1992)]; State v. Sharpe, 195 Conn. 651, 657, 491 A.2d 345 (1985). Uncharged misconduct evidence must satisfy a two part test in order to be admitted as an exception. The evidence must be relevant and material to at least one of the claimed exceptions, and its probative value must outweigh its prejudicial effect. State v. Cooper, [supra, 427]. State v. Wiedl, supra, 35 Conn. App. 265." (Internal quotation marks omitted.) State v. Moore, 49 Conn. App. 13, 21-22, 713 A.2d 859 (1998).

"When relevant evidence of other crimes is offered, the trial court must still consider whether its prejudicial tendency outweighs its probative value before ruling upon its admissibility.... State v. Braman, 191 Conn. 670, 676, 469 A.2d 760 (1983). Because of the difficulties inherent in this balancing process, we will uphold the trial court's ruling on the admission of uncharged misconduct evidence unless there is a manifest abuse of discretion or an injustice appears to have been done. Id.; State v. Harris, [43 Conn. App. 830, 837, 687 A.2d 544 (1996)]." (Internal quotation marks omitted.) State v. Vega, 48 Conn. App. 178, 191, 709 A.2d 28 (1998).

A

The following additional facts are relevant to our analysis of the defendant's first evidentiary claim, i.e, that the trial court improperly determined that defense counsel opened the door to evidence of the defendant's uncharged misconduct. Prior to trial, the state asked the trial court to determine whether it would permit the state to place in evidence facts of the defendant's uncharged misconduct to show a course of conduct. Another incident of the defendant's uncharged misconduct pertained to S and was barred by the statute of limitations. Other of the defendant's uncharged misconduct concerned a minor, H, and is unrelated to this case. The trial court reserved judgment with respect to the uncharged misconduct pertaining to S, but ruled that the uncharged misconduct concerning H was more prejudicial than probative and precluded the state from putting it in evidence. In opposing the defendant's claim on appeal, the state argues that during trial, defense counsel's cross-examination of S and her mother opened the door so that the state was properly permitted to introduce evidence concerning the H matter. We agree with the state.

The following exchange took place during defense counsel's cross-examination of S:

"Q. At any point [prior to your confirming the defendant's acts], did your mother come to you and ask you if Allison Greene had done something to you?

"A. Yes.

"Q. When was that?

"A. I don't remember, but it was after 1994. I know that. And I told her `No.'

"Q. So you told her `No'?

"A. Yes.

"Q. And today your answer would be `Yes'?

"A. Yes.

"Q. So that wasn't true?

"A. What wasn't true?

"Q. When you told your mother that nothing had happened?

"A. Right.

"Q. When your mother asked you that question, was she angry?

"A. No.

"Q. Do you know why she asked you that question?

"A. Yes.

"Q. Why did she ask you that question?

"A. Because of what someone else was accusing Allison for."

At the conclusion of cross-examination, the prosecutor, outside the presence of the jury, argued that defense counsel had opened the door to the H matter. The state contended that defense counsel was attempting to argue bias on the part of the victims' mother and that the mother was planting ideas in S's mind. The trial court again ruled that evidence of the H matter was more prejudicial than probative and would not permit it to come into evidence. Following the ruling, the prosecutor informed the trial court that if defense counsel continued to pursue a line of questioning with S or any other witness so as to suggest that the victims' mother attempted to indoctrinate the victims, the state would ask the court to reconsider its ruling concerning the H matter. The trial court responded that it had already put defense counsel on such notice.

The next day, during defense counsel's cross-examination of the victims' mother, the following exchange occurred.

"Q. Now ... is it not a fact that you questioned your daughter a full year and a half earlier about getting molested by my client?

"A. No.

"Q. Is it your testimony that you never asked S if she had been molested by Allison Greene? Now, think about that.

"A. Once.

"Q. Okay. When was that?

"A. That was back in December of 1994 and in January of 1995. "Q. If you were shocked to even think that Allison Greene committed this act, why were you asking her six months earlier if she had molested your children?"

Before the victims' mother could respond, the prosecutor asked the trial...