State v. Ireland

• Decision Date: 30 April 1991
• Docket Number: No. 13900,13900
• Citation: 590 A.2d 106,218 Conn. 447
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Kenneth F. IRELAND, Jr.

Page 106

590 A.2d 106

218 Conn. 447

STATE of Connecticut v. Kenneth F. IRELAND, Jr.

No. 13900.

Supreme Court of Connecticut.

Argued Feb. 19, 1991.

Decided April 30, 1991.

Susan M. Hankins, Asst. Public Defender, with whom, on the brief, was G. Douglas Nash, Public Defender, for appellant (defendant).

Judith Rossi, Asst. State's Atty., with whom, on the brief, was Michael Dearington, State's Atty., for appellee (State).

Before PETERS, C.J., and COVELLO, HULL, BORDEN and SANTANIELLO, JJ.

COVELLO, Associate Justice.

This is the defendant's appeal from his conviction of one count of felony murder in violation of General Statutes § 53a-54c, one count of sexual assault in the first degree in violation of General Statutes § 53a-70(a), and one count of burglary in the third degree in violation of General Statutes § 53a-103(a). ¹ The issues on appeal are whether the trial court: (1) unduly restricted the cross-examination of the state's primary witnesses; (2) improperly restricted the direct examination of the defendant's primary witness thereby limiting the defendant's right to present evidence; (3) improperly assumed the role of an advocate in issuing a cautionary instruction to the jury; (4) improperly failed to strike the testimony of Lisa Cozikowski; and (5) improperly instructed the jury as to the state's burden of proof.

The jury might reasonably have found the following facts. On September 2, 1986, the victim was working alone on the 10:30 p.m. to 6:30 a.m. shift at her place of employment. Around 6:30 a.m. on September 3, a co-worker found Pelkey dead, lying face down in an office, the victim of a massive blow to the head. In September, 1987, John Card and Marilu Flaler gave statements to the police that included unpublished details of the crime and implicated the defendant, Kenneth F. Ireland, Jr., Lee Magoon, and a third person known only as "Moe." In their statements, Card and Flaler claimed that the defendant and Magoon had made incriminating remarks indicating their involvement in the crime during a conversation that occurred in the home shared by Card and Flaler on a Sunday afternoon shortly after the victim's death.

The defendant was tried before a jury on November 27, 1989, which returned a verdict of guilty on all counts. On January 12, 1990, the trial court sentenced the defendant to three terms of imprisonment: fifty years for felony murder; twenty years for first degree sexual assault; and five years for third degree burglary. The sentences were to run concurrently for a total effective sentence of fifty years.

I

The defendant first claims that the trial court improperly restricted his cross-examination of Card and Flaler, the state's primary witnesses, in violation of his rights under the fifth, sixth and fourteenth amendments to the federal constitution, and article first, § 8 of the Connecticut constitution. ² The defendant claims that court-imposed limitations on his cross-examination of these crucial witnesses prevented him from proving the couple's motive for incriminating the defendant, all in violation of his constitutionally protected right to confront the witnesses against him.

The defendant's theory of the case was that Card and Flaler lied in an effort to protect Edmond Card, John Card's brother, either because they believed that he was a suspect in the case or because he actually was involved in the murder. The defendant further theorized that the source of John Card and Flaler's detailed information concerning the crime was not Magoon, but Edmond Card. In his cross-examination of John Card, the defendant's attorney sought to establish that, at the time he gave incriminating evidence to the police, Card was aware that his brother was a suspect in the case. The state objected and out of the presence of the jury, Card denied knowing that his brother was a suspect. The trial court then sustained the state's objection to this question being asked in the presence of the jury. It is this ruling that the defendant claims constituted the first impermissible limitation upon his right to confront the witnesses against him. We disagree.

"A defendant may give evidence concerning a third party's involvement with the crime, as long as there is some evidence which directly connects the third party with the crime." Siemon v. Stoughton, 184 Conn. 547, 555, 440 A.2d 210 (1981). "[I]t is within the sound discretion of the trial court to refuse to admit such evidence when it simply affords a possible ground of possible suspicion against another person." State v. Giguere, 184 Conn. 400, 405, 439 A.2d 1040 (1981). Implicit in the attack on John Card's alleged motive for implicating the defendant is the inference that Edmond Card was in fact involved in the crime. The defendant's claim that Edmond Card was a suspect, or that John Card thought so, was never removed from the realm of counsel's speculation, however, by the introduction of competent evidence or an offer of proof. To the contrary, a police detective testified, without contradiction, that Edmond Card was not a suspect at the time John Card provided his statement to the police. Furthermore, John Card testified that he was unaware that his brother was a suspect at that time. There was no other evidence brought to the trial court's attention that remotely suggested that Edmond Card was involved in the murder or that John Card thought that was the case. Because there was no offer of proof to connect Edmond Card with the murder, or that John Card thought so, the trial court's ruling was correct.

During cross-examination, Flaler acknowledged that she had given the police a statement in which she claimed that Magoon had talked to Edmond Card about the crime. The defendant's counsel attempted to question Flaler as to the substance of the alleged conversation between Edmond Card and Magoon. The state objected to the line of questioning as being beyond the scope of direct examination. The trial court sustained the state's objections. It is this ruling that forms the basis for the second part of the defendant's claim that his right to cross-examine the state's witnesses was impermissibly limited.

"It is well settled that our rule restricts cross-examination to matters covered in the direct examination, except as they involve credibility alone. State v. Zdanis, 173 Conn. 189, 195, 377 A.2d 275 (1977).... Restrictions on the scope of cross-examination are within the sound discretion of the trial court." State v. Sharpe, 195 Conn. 651, 657, 491 A.2d 345 (1985). A review of the transcript reveals that the subject matter of the questions on cross-examination did indeed exceed the scope of the direct examination of Flaler. Furthermore, what Magoon may have told Edmond Card was, at best, remote to this witness and, as the trial court pointed out, was more properly the subject of questions to be directed to Edmond Card who, in fact, did testify.

"The trial court has broad discretion to determine both the relevancy and remoteness of evidence.... Only upon a showing of a clear abuse of discretion will this court set aside on appeal rulings on evidentiary matters." Dunham v. Dunham, 204 Conn. 303, 324, 528 A.2d 1123 (1987). Further, any statement by Flaler as to what Magoon told Edmond Card would have involved two levels of hearsay, i.e., what Magoon told Card and then what Card thereafter told Flaler. While the statements made by Magoon would likely have qualified as statements against penal interest and, therefore, arguably would have been within an exception to the rule against hearsay, defendant's counsel offered no hearsay exception or nonhearsay use for the statement from Edmond Card to Flaler.

II

The defendant next claims that the trial court's decision to limit his direct examination of Edmond Card restricted his right " 'to present a defense ... to the jury so that it may decide where the truth lies.' " State v. Kelly, 208 Conn. 365, 375, 545 A.2d 1048 (1988), quoting Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967).

The defendant called Edmond Card as a defense witness. The state then filed a motion in limine seeking to preclude Edmond Card's impeachment through use of two inconsistent statements that he had earlier given to the Wallingford police. In the first statement, given on September 4, 1987, Edmond Card claimed that Magoon had told him that he (Magoon), the defendant and a third person raped and murdered the victim. After a polygraph test indicated that the first statement was untrue, Edmond Card gave a second statement on September 9, 1987, in which he disavowed the earlier statement and stated that Magoon had not said anything about the crime. He also stated that he had been with Magoon and the defendant on the night of the murder. Defense counsel claimed that proof of the two inconsistent statements bore on the issue of John Card's and Flaler's motives for testifying against the defendant, i.e., that they thought that Edmond Card was a suspect in the murder. The trial court granted the motion in limine in part and precluded the introduction of the two written statements as they were irrelevant to the issue of whether John Card and Flaler had motives for testifying. The trial court did, however, allow the defendant to question Edmond Card as to his whereabouts on the night of the murder and his relationship with Magoon and others. Edmond Card also testified that he gave two statements to the police and that there were inconsistencies between his first and second statements.

The defendant now argues that Edmond Card's inconsistent statements should have been introduced as evidence of his consciousness of guilt as well as a basis for John Card's and Flaler's motivation for testifying. Consciousness of guilt was never advanced to the trial court as a reason for admitting the contradictory statements. It is fundamental that "counsel had the duty to state to the court the proper grounds...