State v. Harrell

• Decision Date: 25 March 1986
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Willie L. HARRELL.

Page 1041

506 A.2d 1041

199 Conn. 255

STATE of Connecticut v. Willie L. HARRELL.

Supreme Court of Connecticut.

Argued Dec. 13, 1985.

Decided March 25, 1986.

Charles E. Oman, Certified Legal Intern, with whom were Timothy H. Everett and, on brief, Mark Soboslai, Bernadette Conway and Mona Camhe, Certified Legal Interns, for appellant (defendant).

Edmund C.A. Tiryakian, Sp. Deputy Asst. State's Atty., with whom, on brief, were Arnold Markle, State's Atty., and Julia DiCocco Dewey, Assty. State's Atty., for appellee (State).

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

ARTHUR H. HEALEY, Justice.

The defendant, Willie L. Harrell, was convicted, after a jury trial, of burglary in the second degree with a firearm, in violation of General Statutes § 53A-102a, ¹ and attempted robbery in the first degree, in violation of General Statutes §§ 53a-49(a) ² and 53a-134(a)(4). ³ The defendant appeals from the judgment of conviction on these charges.

The defendant raises three issues on appeal. He claims that: (1) the trial court abused its discretion in denying his motion in limine to prevent impeachment by the use of evidence of prior convictions; (2) the ruling on the motion in limine effectively precluded the exercise of his state and federal constitutional right to testify; and (3) the trial court erred in its jury instructions on identification. We find no error.

The jury reasonably could have found the following facts relevant to this appeal: On March 20, 1981, at approximately 7 p.m., the Crawford family returned to their Guilford home from a restaurant and found an unfamiliar car parked in their circular driveway. John Crawford, the father, parked behind the vehicle and he and his wife Catherine exited their car and approached the other vehicle, a red and black Chevrolet. Their three children, ages 12, 11, and 9, remained in the back seat of their car. No one was in the Chevrolet. The Crawfords heard the sound of breaking glass and decided to leave the area. Before they could do so, the defendant approached them from the side of the house, ordered Catherine Crawford to "get [her] hands up," and then ordered the family into their house. He held a flashlight in his left hand, but he kept his right hand in his pocket, telling them that he had a "pistol." The Crawford family, however, never saw a weapon. John Crawford turned the lights on in the foyer of the house but the defendant ordered him to turn them off. The children remained in the kitchen of the home while the defendant questioned their parents in the foyer about valuables. The defendant did not take the stereo or television, the small amount of cash, or the credit cards that the Crawfords offered him. Throughout the five to ten minute confrontation, John Crawford was unable to make out the defendant's features because the defendant was shining a flashlight into his eyes. He was able, however, to determine that the intruder was a black male, approximately six feet tall. Several times the defendant gestured and said that "Crazy Tommy" was with him, that "Crazy Tommy" was uncontrollable and he ordered "Tommy" to "come up." The defendant became nervous and concerned that someone had seen his license plate. Without taking any of the Crawfords' property, the defendant started to leave. As he approached his car, he turned to the left and called: "Come up, Tommy. It is okay." No one ever saw a second individual. After the defendant was in his car, friends of the Crawfords drove into the circular driveway and blocked his exit. The defendant yelled to have that car moved out of his way and Catherine Crawford ran to the car, removed a girl from the car and told the girl's father to leave. Both drivers then drove out of the driveway.

Michael, the twelve year old son of Catherine and John Crawford, memorized the license plate number and color of the burglar's car ("red [with] black roof") and, once in the kitchen, wrote this information on his hand with a pen. Catherine Crawford also memorized the license plate number. Michael and Catherine were able to give a description of the defendant to the police who arrived at their home immediately afterward. By using the license plate number memorized by Michael, the police were able to determine that the vehicle was registered to the defendant. At a photo array four days later, Michael and Catherine independently selected the defendant's photo as the man who had burglarized their home.

At trial, after the state had rested, the defendant made a motion for a judgment of acquittal, which the trial court denied. The defendant then filed a written motion in limine ⁴ requesting that, if he should testify, the court prohibit the state from using for impeachment purposes the defendant's prior convictions in 1971 for two counts of robbery with violence and in 1976 for attempted burglary in the third degree. ⁵ Before argument on the motion, defense counsel orally amended his motion so that it included a total of four prior convictions, two counts of robbery with violence and one count each of forgery and attempted false pretenses. ⁶ The release date from incarceration for the two 1971 robbery convictions was June 29, 1973, which was "nine years, three months, one day" from the date the motion was argued in court. The trial court denied the motion. The defendant did not testify, and the jury returned guilty verdicts.

I

The defendant's first claim of error is that the trial court's ruling that the defendant could be impeached with his two prior convictions for robbery with violence was an abuse of discretion because of their prejudicial impact and remoteness in time to the present crimes. A criminal defendant who has previously been convicted of a crime carrying a term of imprisonment of more than one year may be impeached by the state if his credibility is in issue. General Statutes § 52-145(b). ⁷ See State v. Braswell, 194 Conn. 297, 307, 481 A.2d 413 (1984), cert. denied, --- U.S. ----, 105 S.Ct. 793, 83 L.Ed.2d 786 (1985); State v. Nardini, 187 Conn. 513, 521, 447 A.2d 396 (1982); Heating Acceptance Corporation v. Patterson, 152 Conn. 467, 472, 208 A.2d 341 (1965).

"A trial court's decision denying a motion to exclude a witness' prior record, offered to attack his credibility, will be upset only if the court abused its discretion." ⁸ State v. Binet, 192 Conn. 618, 623, 473 A.2d 1200 (1984); State v. Braswell, supra; State v. Bitting, 162 Conn. 1, 10-11, 291 A.2d 240 (1971). This court has identified three factors that should be analyzed in order to determine whether a prior conviction is to be admitted: "(1) the extent of the prejudice likely to arise; (2) the significance of the commission of the particular crime in indicating untruthfulness; and (3) its remoteness in time." State v. Nardini, supra, 187 Conn. at 522, 447 A.2d 396.

We recognize that "[w]here 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." Id.; see State v. Carter, 189 Conn. 631, 642-43, 458 A.2d 379 (1983). "There is, of course, no per se rule prohibiting impeachment of a defendant by proof of a prior conviction of a crime similar to that for which he is being tried when that prior conviction is offered to attack his credibility." State v. Binet, supra, 192 Conn. at 622, 473 A.2d 1200. The trial court specifically noted, after the state's case-in-chief and prior to argument on the motion in limine, that the case "boil[ed] down at this point to a pure question of credibility. That being, was the defendant there that night or was he not." While there is some similarity between the defendant's two prior convictions for robbery with violence and burglary in the second degree and attempted robbery in the first degree, this similarity, standing alone, does not necessarily create prejudice which outweighs probative value. "In moving to bar introduction of prior convictions a defendant in a criminal case bears the burden of demonstrating the specific harm that will occur if the convictions are introduced." State v. Braswell, supra, 194 Conn. at 308, 481 A.2d 413. The trial court must undertake a balancing test to determine if the probative value of the prior convictions outweighs any prejudicial impact. " 'This balancing of intangibles--probative values against probative dangers--is so much a matter where wise judges in particular situations may differ that a lee-way of discretion is generally recognized.' McCormick, Evidence, pp. 319-320." State v. Bitting, supra, 162 Conn. at 10, 291 A.2d 240; State v. Nardini, supra, 187 Conn. at 522, 528, 447 A.2d 396. As in State v. Braswell, "the record indicates that the defendant's argument in support of his motion amounted to little more than a perfunctory recitation of the prior conviction, a conclusory statement as to its prejudicial effect, and a request for a ruling." State v. Braswell, supra.

While in this case the defendant also argued the third Nardini factor, the remoteness in time of the conviction, the trial court, well within its discretion and in considering all the factors, determined that "remoteness is not really involved here." Acknowledging that the rule in Connecticut is moving closer to the federal ten-year rule, the trial court deemed a nine year old release date to satisfy the remoteness in time factor. See State v. Nardini, supra, 187 Conn. at 526, 447 A.2d 396. In addition, the trial court concluded that "the prejudice is [not] that great," specifically noting that "the larceny which is the underlying crime in any robbery does go directly to the credibility of the robber or larcener...." See, e.g., State v. Glenn, 194 Conn. 483, 499, 481 A.2d 741 (1984); State v. Nardini, supra, 187 Conn. at 526, 447 A.2d 396. As we have noted, "crimes involving larcenous intent imply a general disposition toward dishonesty," and convictions for this...