State v. Johnson

• Citation: 188 Conn. 515,467 A.2d 1237
• Court: Supreme Court of Connecticut
• Decision Date: 28 September 1982
• Parties: STATE of Connecticut v. Alphonso JOHNSON.

Page 1237

467 A.2d 1237

188 Conn. 515

STATE of Connecticut v. Alphonso JOHNSON.

Supreme Court of Connecticut.

Argued March 5, 1982.

Decided Sept. 28, 1982.

Richard Emanuel, Asst. Public Defender, with whom, on the brief, was Jerrold H. Barnett, Public Defender, for appellant (defendant).

Guy W. Wolf III, Asst. State's Atty., with whom, on the brief, was Arnold Markle, State's Atty., for appellee (state).

Before PETERS, HEALEY, PARSKEY, SPONZO and BRENNAN, JJ.

BRENNAN, Associate Justice.

After a jury trial, the defendant was convicted of robbery in the first degree in violation of General Statutes § 53a-134(a)(2) and also of conspiracy to commit robbery in the first degree in violation of General Statutes § 53a-48. The defendant has appealed, claiming error in (1) the court's instructions during the course of the trial concerning discussion of the evidence by the jurors and alternates; (2) the admission of prior conviction evidence and the absence of limiting instructions thereon; (3) the admission of physical evidence; (4) the charge to the jury; and (5) the denial of the defendant's motions for acquittal. We find no error.

The following facts which the jury might reasonably have found are pertinent in considering the merits of this appeal: In the early afternoon of May 12, 1978, the defendant parked a stolen green Oldsmobile on East Ramsdell Street in New Haven near its intersection with Whalley Avenue, leaving the motor running. In the front seat with him was Audrey Ashe, while Michael Edwards and Robin Roaix were seated in the rear passenger seat. Edwards passed an object to the defendant who thereafter exited the vehicle and placed an object into his belt. Ashe simultaneously left the car wearing a maroon ski mask on top of her head. The defendant and Ashe crossed the street and entered the Hartford National Bank. The defendant wore a rain hat and both he and Ashe carried loaded revolvers. The defendant removed money from drawers at several tellers' stations and placed it in a white plastic bag, while Ashe stood guard over the employees and customers. There was no observable commotion in the car during the course of the robbery. The two then left the bank, and entered the Oldsmobile from the right side after Roaix had opened the door for them. Edwards then drove off at a high rate of speed. When the car was stopped by police at the West Haven Toll Plaza, four suspects, including the defendant and Ashe, were found in it. Additionally, there were discovered in the car two loaded handguns, the defendant's hat, Ashe's ski mask, and a white plastic bag containing the bank's money. All four occupants of the car were taken into custody. At trial, the defendant claimed that the robbery was not premeditated, and that none of the others had at any time voluntarily agreed to rob the bank, doing so only at his violent urging.

I

The defendant has first alleged that the trial court's admonitions to the jury during the trial of the case constituted error. ¹ Those admonitions, the defendant claims, violate the due process clauses of the federal and state constitutions ² and the right to a trial by an impartial jury, ³ because they permitted jurors to discuss the case before its submission to them.

The defendant did not object to the admonitions at trial. Therefore, this belatedly raised claim must fall into one of the two situations which may constitute "exceptional circumstances" such that it can and will be considered by this court. State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). The first exception is applicable where a new constitutional right not readily foreseeable has arisen between the time of trial and appeal, and the second exception where the record adequately supports a claim that the litigant has clearly been deprived of a fundamental constitutional right and a fair trial. Id., 70, 327 A.2d 576.

The defendant in pressing his claim of reversible error contends that State v. Washington, 182 Conn. 419, 438 A.2d 1144 (1980), announced a new constitutional right not readily foreseeable at the time of his trial. In State v. Washington, decided twenty-three months after the jury returned its verdict in the present case, we held that it was error of constitutional magnitude for the trial court expressly to instruct the jurors that they might discuss the case among themselves prior to its submission to them. Id., 429. Review of a claimed violation of a constitutional right not perfected at trial and to which no exception was taken is justified under the first prong of the Evans test only where the neglected claim "appeared to lack semblance of merit because it was clearly contrary to settled state law...." State v. Evans, supra, 67-68; O'Connor v. Ohio, 385 U.S. 92, 87 S.Ct. 252, 17 L.Ed.2d 189 (1966). "A decision establishes a new principle of law 'either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed.' Chevron Oil Co. v. Huson, 404 U.S. 97, 106, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971)." (Citations omitted.) Battie v. Estelle, 655 F.2d 692, 697 (1981).

State v. Washington upset no established state procedure permitting pre-submission juror discussion. Relying on the well settled law of other jurisdictions, the opinion itself noted that prohibition of premature juror discussion was "the common-law practice which has been followed for more than 150 years." State v. Washington, supra, 427; State v. Darwin, 155 Conn. 124, 144, 230 A.2d 573 (1967), rev'd on other grounds, 391 U.S. 346, 88 S.Ct. 1488, 20 L.Ed.2d 630 (1968). Therefore, the claims of error are not reviewable under the first Evans exception.

The defendant also contends that the trial court's admonitions to the jury fall within the purview of the second exception. For that to be true, however, the record should be sufficiently complete and clearly disclose that the litigant has been deprived of a fundamental constitutional right and a fair trial. We do not believe that the record indicates this. We therefore do not reach this claim of error.

II

A

The second contention of the defendant is that the trial court erred in permitting introduction of his prior felony convictions into evidence. The credibility of the defendant was in question, as his claim was that his three companions were not willing accomplices in the crime, but took part only after threats of physical violence from him. The defendant claims that the introduction of his past convictions into evidence was error in that the prejudicial effect of this evidence outweighed its probative value, and, consequently, denied him a fair trial.

It is well established that a defendant's credibility may be impeached by proof of prior convictions of crimes for which imprisonment may be more than one year. General Statutes § 52-145; State v. Shaw, 185 Conn. 372, --- (43 CLJ 7, pp. 37, 40) 441 A.2d 561 (1981); State v. Townsend, 167 Conn. 539, 563, 356 A.2d 125, cert. denied, 423 U.S. 846, 96 S.Ct. 84, 46 L.Ed.2d 67 (1975); State v. Jones, 167 Conn. 228, 236, 355 A.2d 95 (1974); State v. Hall, 165 Conn. 599, 606, 345 A.2d 17 (1973); State v. Marquez, 160 Conn. 47, 52-53, 273 A.2d 689 (1970).

There are various factors which the court must consider in determining whether the prejudicial effect of the evidence outweighs its probative value, among them, " 'the danger that the facts offered may unduly arouse the jury's emotions of prejudice, hostility or sympathy.... 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. 319-20; see also 6 Wigmore, Evidence (3d Ed.) § 1904." State v. Bitting, 162 Conn. 1, 10, 291 A.2d 240 (1971).

In reviewing the correctness of the trial court's ruling in such a matter, the trial court enjoys the presumption that its decision in a matter of discretion was correct. State v. Bitting, supra, 11, 291 A.2d 240; Cables v. Bristol Water Co., 86 Conn. 223, 225, 84 A. 928 (1912). "[T]he ultimate issue is whether the court could reasonably conclude as it did. E. M. Loew's Enterprises, Inc. v. Surabian, 146 Conn. 608, 612, 153 A.2d 463 [1959]." State v. Bitting, supra, 11, 291 A.2d 240.

The defendant testified that he coerced his accomplices into committing the crime. The credibility of that statement was relevant to whether there was a conspiracy to commit robbery in the first degree. Therefore, the defendant's prior convictions served to shed light on the issue of whether his accomplices voluntarily participated in the crime. Thus, the record in the present case reveals no abuse of the discretion invested in the trial court in denying the defendant's motion.

B

At trial, after offering his statement regarding the crime which he had given the New Haven police department, the defendant introduced his prior felony convictions into evidence. The defendant did not request a limiting instruction concerning them, and the court did not address them in its charge.

The defendant contends for the first time on appeal that his right to a fair trial was denied by the court's failure to instruct the jury that evidence of the defendant's prior convictions could only be considered for impeachment purposes. The defendant's counsel is ordinarily under an obligation to request such a limiting instruction. United States v. Conley, 523 F.2d 650, 655 (8th Cir. 1975), cert. denied, 424 U.S. 920, 96 S.Ct. 1125, 47 L.Ed.2d 327 (1976); Nutt v. United States, 335 F.2d 817, 818-19, (10th Cir.), cert. denied, 379 U.S. 909, 85 S.Ct. 203, 13 L.Ed.2d 180 (1964). The defendant admits that he failed to request a limiting instruction but contends that the trial court had a responsibility to instruct the jury sua sponte that evidence of prior convictions could be used only to impeach his credibility and not...