State v. Lee

• Decision Date: 16 March 1994
• Docket Number: No. 14749,14749
• Citation: 229 Conn. 60,640 A.2d 553
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Anna M. LEE.

Page 553

640 A.2d 553

229 Conn. 60

STATE of Connecticut v. Anna M. LEE.

No. 14749.

Supreme Court of Connecticut.

Argued Oct. 29, 1993.

Decided March 16, 1994. ^*

John A. East III, Deputy Assistant State's Attorney, with whom, on the brief, were C. Robert Satti, Sr., State's Attorney, and John Gravelec-Pannone, Assistant State's Attorney, for the appellant (state).

Jeremiah Donovan, Special Public Defender, with whom, on the brief, was Terry Sablone Donovan, Special Public Defender, for the appellee (defendant).

Before PETERS, C.J., and BORDEN, BERDON, NORCOTT and KATZ, JJ.

BORDEN, Associate Justice.

The defendant, Anna M. Lee, was convicted after a jury trial of criminal attempt to possess more than one kilogram of marijuana with intent to sell by a person who is not drug-dependent, in violation of General Statutes §§ 21a-278(b) and 53a-49(a)(2). ¹ The defendant appealed from the judgment of conviction to the Appellate Court, which reversed the judgment of the trial court and remanded the case for a new trial. State v. Lee, 30 Conn.App. 470, 620 A.2d 1303 (1993). We granted the state's petition for certification to appeal the question of whether the Appellate Court correctly held that the trial court had improperly precluded inquiry into potential bias of the state's expert witness, a federal government employee, by virtue of pending forfeiture actions by the federal government against the defendant's property. ² Thereafter, we granted the defendant's request, pursuant to Practice Book § 4140, ³ to review whether the Appellate Court had improperly: (1) declined to recognize a defense of "objective entrapment" in addition to the statutory defense of "subjective entrapment"; or (2) ruled that the lawfulness of investigative activities conducted in sister states is to be determined by Connecticut law rather than by the law of the state in which the investigative activity took place. We affirm the judgment of the Appellate Court.

The jury could reasonably have found the following facts. During the summer of 1990, two confidential informants, Linda and Augustus Buckley, contacted Detective Daniel Losey of the organized crime division of the Fort Lauderdale, Florida, police department to inform him that the defendant, a resident of Connecticut, was interested in obtaining a large amount of marijuana for resale purposes. Posing as a drug supplier, Losey telephoned the defendant at her home in Connecticut to arrange a marijuana sale. In July and August, 1990, Losey and the defendant communicated frequently by telephone in connection with the potential sale. During that time, the confidential informants also maintained contact with the defendant. The defendant eventually agreed to purchase from Losey fifty pounds of marihuana at a price of $800 per pound, for a total price of $40,000. To finance the sale, the defendant took out a loan against her house. Losey and the defendant agreed to meet in Connecticut to consummate the sale. Upon the completion of the sale, members of the federal Drug Enforcement Administration and the Connecticut statewide narcotic task force arrested the defendant.

The defendant's primary defense was entrapment under General Statutes § 53a-15. ⁴ The defendant, a fifty-five year old woman with no prior criminal record, testified that her son was currently incarcerated in Florida and that Augustus Buckley was in prison with him. She testified that Buckley had sent her crude, intimidating letters and that he had threatened her son's life. She further testified that Buckley had urged her to hire a private attorney to get her son out of jail and had offered to facilitate a drug deal in order to raise money for the attorney. She testified that Buckley had threatened her son's life if she failed to go through with the deal, and that he had offered to arrange for both a purchaser and seller of marijuana. It was in this context, she asserted, that she had agreed to purchase the drugs from Losey.

In her appeal to the Appellate Court, the defendant's principal claim was that she had been unable to present her defense of entrapment fully, because the trial court had improperly denied her requests for access to information about the state's confidential informants, particularly, Augustus Buckley. State v. Lee, supra, 30 Conn.App. at 477, 620 A.2d 1303. The Appellate Court applied the balancing test established in Rovario v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), ⁵ which weighs the state's interest in confidentiality against the defendant's right to prepare a defense, and concluded that disclosure of the information had been required. State v. Lee, supra, 30 Conn.App. at 480, 620 A.2d 1303. Accordingly, the Appellate Court reversed the judgment of conviction and remanded the case to the trial court for a new trial, in which the state will be required either to disclose Buckley's whereabouts or to produce him as a witness. Id., at 481, 620 A.2d 1303. The state did not petition for certification to appeal that issue, and it is not before us.

The Appellate Court reviewed three additional issues that are relevant to this appeal. The Appellate Court concluded that the trial court had improperly restricted cross-examination of the state's expert witness. We granted the state's petition for certification to appeal that issue. The Appellate Court further upheld the trial court's refusal, on the defendant's motion to dismiss, to apply Florida law regarding the effect of the police investigative activity. The Appellate Court also upheld the trial court's refusal to recognize a defense of objective entrapment. We granted the defendant's request to consider these issues, since they will likely arise again in the event of a new trial. ⁶

I

We first consider the certified issue. The state claims that the Appellate Court incorrectly concluded that the trial court had improperly precluded inquiry into the potential bias of an expert witness for the state. Specifically, the state argues that the trial court correctly prevented the defendant from questioning the state's expert witness, a federal government employee, regarding federal forfeiture actions then pending against the defendant's property. We agree with the state that the trial court was not required to permit such questioning.

The following facts are relevant to this claim. At trial, the state called special agent David Hoyt of the federal Drug Enforcement Administration to testify as an expert witness. Hoyt testified to the usual tactics employed to monitor drug trafficking and the use of informants. Hoyt also explained the price, quantity and quality of various grades of marijuana.

On cross-examination, the defendant attempted to elicit information from Hoyt concerning pending civil forfeiture actions, arising from the same transaction as the criminal prosecution, brought by the United States government against the defendant's property. ⁷ The state objected on grounds of prejudice. The defendant argued that the questions revealed Hoyt's potential bias and motive to testify because Hoyt's employer, the United States government, stood to profit from a guilty verdict. The trial court sustained the state's objection and barred any questioning on the topic. ⁸ The Appellate Court agreed with the defendant and ordered the trial court, on remand, to permit questioning regarding potential bias of the expert witness. State v. Lee, supra, 30 Conn.App. at 485, 620 A.2d 1303. Relying on our decision in State v. Santiago, 224 Conn. 325, 618 A.2d 32 (1992), in which we concluded that the confrontation clause ⁹ required that the defendant be permitted to inquire into the relationship between a state's witness and the police department, the Appellate Court concluded that restricting cross-examination regarding the relationship between this case and Hoyt's employer violated the defendant's right to confrontation. State v. Lee, supra, 30 Conn.App. at 487, 620 A.2d 1303. The Appellate Court acknowledged that the witness' motive to distort the truth in this case was somewhat attenuated, but concluded that the weight to be accorded such evidence was a matter for the jury. Id. Accordingly, the Appellate Court determined that the confrontation clause required that if, in the new trial, "the state calls as a witness Hoyt or anyone else with a similar relationship to the civil forfeiture proceeding, the defendant may examine that witness' potential bias stemming from involvement with the forfeiture action." Id., at 488, 620 A.2d 1303.

The state now argues that the confrontation clause does not give the defendant the right to engage in unrestricted cross-examination. The state contends that the trial court had discretion to limit cross-examination on the basis of considerations such as low probative value. We agree.

"The sixth amendment to the [United States] constitution guarantees the right of an accused in a criminal prosecution 'to confront the witnesses against him....' " State v. Lubesky, 195 Conn. 475, 481, 488 A.2d 1239 (1985), quoting Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1067-68, 13 L.Ed.2d 923 (1965). The primary interest secured by the confrontation clause of the sixth amendment is the right to cross-examination; Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965); because cross-examination is the principal means by which the credibility of witnesses and the truth of their testimony is tested. State v. Randolph, 190 Conn. 576, 591, 462 A.2d 1011 (1983); State v. Wilson, 188 Conn. 715, 720, 453 A.2d 765 (1982). Cross-examination concerning "motive, interest, bias or prejudice ... is a matter of right and may not be unduly restricted." (Internal quotation marks omitted.) State v. Lewis, 220 Conn. 602, 621, 600 A.2d 1330 (1991). Moreover, a party is ordinarily permitted to inquire into the bias of a witness by demonstrating that the witness' employer has an interest in the outcome...