State v. Holbrook, 25771.

• Decision Date: 12 September 2006
• Docket Number: No. 25771.,25771.
• Citation: 97 Conn.App. 490,906 A.2d 4
• Parties: STATE of Connecticut v. Michael A. HOLBROOK.
• Court: Connecticut Court of Appeals

906 A.2d 4

97 Conn.App. 490

STATE of Connecticut v. Michael A. HOLBROOK.

No. 25771.

Appellate Court of Connecticut.

Argued May 24, 2006.

Decided September 12, 2006.

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Alice M. Osedach, assistant public defender, for the appellant (defendant).

C. Robert Satti, Jr., senior assistant state's attorney, with whom, on the brief, was Jonathan C. Benedict, state's attorney, for the appellee (state).

FLYNN, C.J., and LAVINE and FOTI, Js.

FOTI, J.

On December 8, 1996, John Fred Dean was shot and killed inside a Bridgeport nightclub known as the Factory. The state charged the defendant, Michael A. Holbrook, with Dean's murder. In 2003, the defendant's first jury trial ended in a mistrial. After a second trial, in 2004, the jury found the defendant not guilty of murder but found him guilty of the lesser included offense of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a(a). The jury also made a finding that the defendant had committed a class A, B or C felony with a firearm in violation of General Statutes § 53-202k. The trial court rendered judgment in accordance with the verdict and sentenced the defendant to a total effective term of thirty-five years incarceration. The defendant now appeals from the judgment of conviction, claiming that the court improperly (1) conducted a hearing with an incarcerated witness in the courthouse cell block, (2) permitted that witness to testify as to why he feared for his safety, (3) restricted the scope of cross-examination of that witness and (4) admitted into evidence the written statements of three other witnesses. We affirm the judgment of the trial court.

I

The defendant first claims that the court improperly conducted a hearing with an incarcerated witness in the courthouse cell block. The witness, Demetrius Brown, had been transported to the courthouse in order to testify for the state at the defendant's trial but refused to leave the cell block and to be escorted to the courtroom because he feared for his safety. After Brown physically resisted an attempt to remove him from his cell, the court decided to visit the cell block with the courtroom clerk, the court monitor, the prosecutor and defense counsel but denied the defendant's request to be present. In the cell block, the court found Brown in contempt and imposed a six month term of imprisonment. The defendant claims that the court's contempt proceeding against Brown in the cell block deprived the defendant of (1) the right to a public trial and (2) the right to be present. We disagree with both parts of his claim.

A

As to the first part of the defendant's claim, which is that the court denied him the right to a public trial, "[a] defendant's right to a public trial is guaranteed in all criminal proceedings by the sixth amendment to the United States constitution.... This right is made applicable to the states through the fourteenth amendment ... and also is encompassed in article first, § 8, of the Connecticut constitution.... Public trials vindicate an important public interest in the judicial system and help ensure testimonial trustworthiness.... Openness of a criminal trial enhances both its basic fairness and the appearance of fairness, which is essential to public confidence in the system.... The right to a public trial, however, is not absolute.... An accommodation must sometimes be made between the individual's right to a public trial and other societal interests that might justify closing the courtroom to the public.... In light of these concerns, a court's power to order a closure of the courtroom should be sparingly exercised, and limited to those situations where closure is demonstrably necessary to further the administration of justice." (Internal quotation marks omitted.) State v. Eric M., 79 Conn.App. 91, 96-97, 829 A.2d 439 (2003), aff'd, 271 Conn. 641, 858 A.2d 767 (2004).

In the present case, the court's contempt proceeding against Brown in the cell block did not constitute a closure of the courtroom and did not implicate the defendant's right to a public trial. The court decided to conduct the proceeding in the cell block because Brown had resisted appearing in the courtroom to testify. In making its decision, the court considered the disruption that could have accompanied the forcible removal of Brown from his cell. Because the proceeding concerned Brown, not the defendant, and related to Brown's conduct, not the charges against the defendant, it did not affect the defendant's right to a public trial.

B

As to the second part of the defendant's claim, which is that the court denied him the right to be present, "a criminal defendant has a constitutional right to be present at all critical stages of his or her prosecution.... Although the constitutional right to be present is rooted to a large extent in the confrontation clause of the sixth amendment, courts have recognized that this right is protected by the due process clause in situations when the defendant is not actually confronting witnesses or evidence against him.... In judging whether a particular segment of a criminal proceeding constitutes a critical stage of a defendant's prosecution, courts have evaluated the extent to which a fair and just hearing would be thwarted by [the defendant's] absence or whether his presence has a relation, reasonably substantial, to the [fullness] of his opportunity to defend against the charge." (Citations omitted; internal quotation marks omitted.) State v. Lopez, 271 Conn. 724, 732, 859 A.2d 898 (2004).

In the defendant's view, if he had been present at the contempt proceeding against Brown, he would have been able to assist with his attorney's preparation for cross-examination of Brown as to why he feared testifying. On the basis of our review, we determine that the defendant's presence would have been of minimal importance to his defense and that the proceeding did not constitute a critical stage of his prosecution. The proceeding concerned Brown, not the defendant, and therefore the defendant's absence did not affect the fairness of the proceeding. For the same reason, the defendant's presence would not have had a reasonably substantial relationship to the fullness of his opportunity to defend himself. We therefore reject the defendant's claim.

II

The defendant next claims that the court improperly permitted Brown to testify as to why he feared for his safety. We disagree.

Brown witnessed the shooting of the victim, Dean, and provided a written statement to the police approximately ten months later. He agreed to testify after the court had found him in contempt for refusing to leave the courthouse cell block. Defense counsel cross-examined him regarding the time at which he had arrived at the Factory on the night of Dean's shooting. Brown then testified that he felt nervous. When defense counsel asked him to explain whether he felt nervous in the courtroom or only when he had given his written statement, he replied: "Both." Defense counsel again asked him whether he felt nervous in the courtroom, and he replied that he did. Defense counsel then stated: "Well, just look at me and see if you can block out everybody else in this room, okay?"

Thereafter, Brown informed the court during a recess that he felt intimidated by a spectator in the courtroom. The court then excluded that spectator from the trial. On redirect examination, the prosecutor asked Brown whether the spectator who had been excluded had intimidated him, and Brown answered: "Yes." Defense counsel then objected on relevance grounds. The court overruled the objection but granted defense counsel's request for a limiting instruction. The court told the jury: "I want to make it clear to the ... jury, that ... there's no evidence ... that the defendant in any way participated [in] or encouraged [the intimidation of Brown]. That's all I can say to you." Brown then testified that the spectator "shook his head, like he gonna get me."

"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.... 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." (Internal quotation marks omitted.) State v. Powell, 93 Conn.App. 592, 599, 889 A.2d 885, cert. denied, 277 Conn. 924, 895 A.2d 797 (2006).

It is clear from the transcript that defense counsel delved into the issue of Brown's nervousness and therefore opened the door to rebuttal by the prosecutor. Although the rebuttal evidence may have been inadmissible on other grounds, the court acted within its discretion in permitting the state to question Brown regarding the alleged intimidation.¹

III

The defendant next claims that the court improperly precluded him from cross-examining Brown as to his testimony before a federal grand jury in a matter involving drug dealing. We disagree.

"Our standard of review of a claim that the court improperly limited the cross-examination of a witness is one of abuse of discretion.... [I]n ... matters pertaining to control over cross-examination, a considerable latitude of discretion is allowed.... The determination of whether a matter is relevant or collateral, and the scope and extent of cross-examination of a witness, generally rests within the sound discretion of the trial court.... Every reasonable presumption should be made in favor of the correctness of the court's ruling in determining whether there has been an abuse of discretion....

"The court's discretion, however, comes into play only after the defendant has been permitted cross-examination sufficient to...