State v. Heinz

• Decision Date: 25 December 1984
• Docket Number: No. 3382,3382
• Citation: 485 A.2d 1321,3 Conn.App. 80
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Curtiss HEINZ.

Page 1321

485 A.2d 1321

3 Conn.App. 80

STATE of Connecticut v. Curtiss HEINZ.

No. 3382.

Appellate Court of Connecticut.

Argued Oct. 9, 1984.

Decided Dec. 25, 1984.

Vincent J. Trantolo, Hartford, for appellant (defendant).

Carl Schuman, Asst. State's Atty., with whom, on brief, were Rosita Creamer, Asst. State's Atty., and Maureen Platt, Deputy Asst. State's Atty., for appellee (state).

Before HULL, BORDEN and SPALLONE, JJ.

BORDEN, Judge.

This case comes to us on a remand from the Supreme Court. That court had granted petitions for certification by both the state and the defendant from a decision of the Appellate Session of the Superior Court; State v. Heinz, 38 Conn.Sup. 570, 455 A.2d 346 (1982) (Heinz I ); and, after resolving the claims raised by the petitions, it remanded the case to this court ¹ for consideration of other claims of error which neither the Supreme Court nor the Appellate Session had the occasion to resolve. State v. Heinz, 193 Conn. 612, 631, 480 A.2d 452 (1984) (Heinz II ).

The facts of the case have already been stated in the two previously reported decisions and need not be fully repeated here. Suffice it to say that they involve four performances by female "exotic" dancers at a cafe in East Hartford known as the Venus Lounge, of which the defendant was the liquor permittee. Two of the performances took place on December 19, 1979, when the defendant was on the premises, and two on January 9, 1980, when he was not seen on the premises. The defendant was convicted on four counts of promoting an obscene performance in violation of General Statutes § 53a-194. The four counts correspond to the four performances.

The procedural history of this case is also documented in the two previous decisions and need not be described at length here. In short, the defendant appealed to the Appellate Session which held that counts two, three and four should be dismissed, and that a new trial was required on count one. Heinz I, supra. Thereafter, the Supreme Court granted the defendant's petition for certification to appeal from the decision of the Appellate Session on count one and the state's petition for certification to appeal from the decision of the Appellate Session on counts three and four.

The Supreme Court found no error on the defendant's appeal, found error on the state's appeal and remanded the case to this court for resolution of the defendant's claims of error on counts three and four. ² Heinz II, supra. The posture of the case upon its arrival in this court, therefore, is that a new trial is required on count one count two is to be dismissed, and the defendant's remaining claims of error must be addressed. On those claims, we find error.

I

The first issue requires little discussion. The state concedes that the evidentiary error found by the Appellate Session on count one and affirmed by the Supreme Court; see Heinz II, supra, 627-28, 480 A.2d 452; also applies to counts three and four, but it attempts to persuade us that we should hold the error harmless as to those counts. Because we find other errors requiring a new trial on counts three and four, which errors involve issues which are likely to recur, and because it is not likely that this evidentiary error will recur, we need not consider the state's argument. See footnote 2, supra.

II

The defendant argues that the court erred in restricting his cross-examination of two of the state's principal witnesses, Robert F. Kenary of the East Hartford police department and James Malcolm of the Hartford police department. We agree.

Kenary was assigned to investigate the activities at the Venus Lounge with Malcolm, who was unknown in East Hartford, assisting him. Their testimony on direct examination described in detail the performances of January 9, 1980.

The trial was conducted in February, 1981, approximately fourteen months after the night in question. Kenary used his affidavits, which he had prepared the day after his observations, to refresh his recollection of many of the details of the performances. Malcolm testified solely from memory. Neither had made any notes at or after leaving the Venus Lounge that night.

Kenary testified on cross-examination that after leaving the Venus Lounge they went to investigate another cafe in East Hartford known as Pompei's, where they observed two performances by female dancers. He also testified that he had three beers at the Venus Lounge, three beers at Pompei's, and one beer at home after going off duty that night. Malcolm testified on cross-examination that he had three or four beers at the Venus Lounge, and that he had a total of six beers that night at both the Venus Lounge and Pompei's within a period of two and one quarter hours.

The defendant's principal challenge to the evidentiary rulings of the court involve his attempts to elicit from Kenary and Malcolm testimony regarding the effect of this consumption of alcohol on their abilities to recall what they observed that night. ³ The defendant attempted to ask Kenary in effect whether the alcohol he had consumed could have affected his ability to recall what he observed that night and thus what he wrote the next day in his affidavit. In a similar vein, the defendant attempted to cross-examine Malcolm by inquiring into his experience with alcohol as a police officer, and by asking him about the effect of alcohol on the ability to recall. The court sustained the state's objections, and the defendant duly excepted.

The defendant claims that these rulings limiting his cross-examination of Kenary and Malcolm deprived him of his constitutional right of confrontation under the sixth and fourteenth amendments to the United States constitution. Although we do not think that they rise to the level of a constitutional violation, we conclude that under the particular facts of this case they were an abuse of discretion by the trial court. ⁴

" 'The right of an accused to effectively cross-examine an adverse witness is embodied in the confrontation clause of the sixth amendment.... The general rule is that restrictions on the scope of cross- examination are within the sound discretion of the trial judge ... but this discretion comes into play only after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment.' " (Citations omitted.) State v. Asherman, 193 Conn. 695, 718, 478 A.2d 227 (1984). "The constitutional standard is met when defense counsel is 'permitted to expose to the jury the facts from which the jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.' " State v. Gaynor, 182 Conn. 501, 509, 438 A.2d 749 (1980), quoting Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Thus, a claim of undue restriction on cross-examination ordinarily involves a two-pronged analysis: whether the constitutional standard has been met, and, if so, whether the court nonetheless abused its discretion. State v. Gaynor, supra, 509-10, 438 A.2d 749.

Here, the constitutional standard was met. The defendant was permitted to bring before the jury the facts that Kenary had seven and Malcolm had six beers the night of January 9, 1980, and that Kenary prepared his affidavits, on which he relied in his testimony, the next day. The confrontation clause does not require that the defendant be permitted also to elicit from the officers the opinion that consumption of alcohol during and after observing something can affect one's ability accurately to observe and later recall what one observed. This is so, however, not because, as the trial court ruled, there is no such effect. It is so because it is an effect which is common knowledge and is an inference which is clearly within the ability of the jurors, as laypersons, to draw based on their own common knowledge and experience. The jury may, without the aid of expert testimony, use the consumption of alcohol as a basis on which to infer impairment of ability to observe and recall accurately. D'Amato v. Johnston, 140 Conn. 54, 58, 97 A.2d 893 (1953) (intoxication and its accompaniments are a matter of general knowledge); McCormick, Evidence (2d Ed.) § 45 n. 23; see also Prisk v. State, 137 Conn. 35, 36, 74 A.2d 462 (1950). Therefore, while this was evidence which the trial court could, in its discretion, have permitted, we do not find that it violated the defendant's rights under the sixth and fourteenth amendments by declining to do so.

This leaves the question of "whether the trial court abused its discretion in restricting the scope of cross-examination. 'To establish an abuse of discretion, [the defendant] must show that the restrictions imposed upon [his] cross-examination were clearly prejudicial.' ... 'The purpose of such cross-examination is to test the credibility of the witness and the accuracy and reasonableness of his direct testimony.' " (Citations omitted.) State v. Gaynor, supra, 510, 438 A.2d 749. A combination of factors persuades us that the court not only "would have been well advised to have exercised its discretion in favor of permitting the inquiry"; State v. Asherman, supra, 721, 478 A.2d 227; but also that it abused its admittedly "wide discretion in fixing the limits of cross-examination ... on the issue of credibility"; State v. Miller, 186 Conn. 654, 670, 443 A.2d 906 (1982); in barring that inquiry.

First, Kenary's and Malcolm's descriptions of the performances were critical to the state's case. Whether a particular performance is obscene depends necessarily on a number of important factors, one of which is the relation to the entire performance of those parts of it which are sexually explicit. See Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); State v. Andrews, 150 Conn. 92, 97, 186 A.2d 546 (1962). Thus, the extent to which Kenary and Malcolm could accurately observe and later recall the details of that performance and...