State v. Manning

• Decision Date: 22 December 1971
• Citation: 162 Conn. 112,291 A.2d 750
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Henry MANNING.

Page 750

291 A.2d 750

162 Conn. 112

STATE of Connecticut v. Henry MANNING.

Supreme Court of Connecticut.

Dec. 22, 1971.

Charles G. Karanian, New Britain, with whom were Daniel J. Hagearty, New Britain, and Lewis Platt, Newington, for appellant (defendant).

George D. Stoughton, Chief Asst. State's Atty., with whom was John D. LaBelle, State's Atty., for appellee (state).

Before HOUSE, C.J., and COTTER, THIM, SHAPIRO and LOISELLE, JJ.

LOISELLE, Associate Justice.

The defendant, Henry Manning, was tried to the jury on an information in eight counts. Four counts charged him with the crime of injury or risk of injury to a child on four different days and four counts charged indecent assault on the same days. The jury acquitted the defendant on the four counts of indecent assault, but found him guilty on the four counts of injury or risk of injury to a child. From the judgment of guilty on those four counts, he had appealed. There are seven assignments of error and are pressed on the appeal.

From the evidence introduced at the trial, the state claimed to have proved that the defendant was a teacher of retarded children at a junior high school; that these children had an intelligence quotient of seventy-five or lower; that, on several occasions, he called a student, the complaining witness, aged fifteen, into the cloakroom of his classroom and committed on her person the crime charged. The defendant offered evidence to prove, beside his educational background and his relationship with the faculty at the junior high school, that he is married and has four children; that the complaining witness is socially and emotionally different from children in the regular classes at the school; that she is preoccupied with sex; that he took students into the cloakroom or outside the classroom to chastise or scold them; that he had on occasion taken the complaining witness to the cloakroom when her behavior or her problem demanded it; that he is a state-certified psychological examiner; that he has a good reputation in the area for truth and veracity; and that he is not guilty of the offenses charged.

The defendant claims that the trial court erred in refusing to order a psychological evaluation of three witnesses for the state, all minors, to aid in determining their competence to testify. The competency of a witness is a matter peculiarly within the discretion of the trial court and its ruling will be disturbed only in a clear case of abuse or of some error in law. State v. Orlando, 115 Conn. 672, 675, 163 A. 256. The considerations which should govern the determination of competency are the proposed witness' maturity to receive correct impressions by his senses, ability to recollect and narrate intelligently, and ability to appreciate the moral duty to tell the truth. State v. Segerberg, 131 Conn. 546, 547, 41 A.2d 101; Kuczon v. Tomkievicz, 100 Conn. 560, 570, 124 A. 226; see McCormick, Evidence, pp. 139-40; note, 18 A.L.R.3d 1433.

The finding indicates that the court considered the question whether there was sufficient doubt as to the competency of the three proposed witnesses to warrnat their examination. The court concluded that the complaining witness was competent on the basis of the preliminary examination, relevant testimony from previous witnesses, and the court's own observation of demeanor. It satisfied itself on the question of her competency according to the principle indicated in State v. Segerberg, supra, and found there was no need for a psychiatric examination. The court also found to be competent the two other minors offered as witnesses. It did so as to one on the basis of that witness' testimony and as to the other minor witness on the basis of a preliminary examination. In both instances, the court ruled in accordance with the principle in State v. Segerberg, supra. The trial court did not misapply any principle of law or, on the facts appearing of record, depart from a reasonable determination of the competency of the three minor witnesses. It was explicitly declared in State v. Vars, 154 Conn. 255, 268, 224 A.2d 744, 750, that the court is not bound to order a mental examination to aid it in its ruling on competency in all cases: "The court is not bound to order an examination on the question merely because counsel for the accused requests that it be done, where the court, after hearing the testimony of the witness, has no doubt of his mental soundness."

The defendant claims that the court erred in not allowing the cross-examination of the complaining witness' mother as to her child's medical and psychiatric history. The record does not indicate that the issue was within the scope of the direct examination or that the defendant claimed the cross-examination as affecting credibility. Cross-examination, insofar as it does not take the form of an attack on the credibility of the witness, is limited to the subject matter of the direct examination. Mendez v. Dorman, 151 Conn. 193, 198, 195 A.2d 561; Lancaster v. Bank of New York, 147 Conn. 566, 571, 164 A.2d 392; Finch v. Weiner, 109 Conn. 616, 619, 145 A. 31. Where, as here, there is such an obvious basis for denying cross-examination, no error can be found. Further, in the view of the trial court, the defendant, by his questions, was attempting to suggest adverse facts of which he had no proper evidence. 'If the defendant wished to extend his examination beyond the scope of the matters covered in the direct examination, he should have made the witness his own. Finch v. Weiner, 109 Conn. 616, 619, 145 A. 31. And the evidence should have been offered in an orderly way in the course of the defendant's own case.' Grievance Committee v. Dacey, 154 Conn. 129, 151, 222 A.2d 339, 350, cert. denied, 386 U.S. 683, 87 S.Ct. 1325, 18 L.Ed.2d 404.

After the defendant had rested his case, the state, in rebuttal, offered the testimony of two girls, both minors and former pupils of the defendant. They testified that the defendant committed acts on them of the same type as those charged in the information here. The defendant claims that this testimony was improper rebuttal. A close reading of the record does not disclose a succinct statement of the grounds for the objections which is required by Practice Book § 226. Indeed, the whole argument of counsel is too vague to establish any ground of objection other than the claim that the defendant had not been charged with these crimes and that such testimony was improper rebuttal.

Except with respect to the issue of competency, which we have already discussed the record reveals only four instances where the defendant excepted to the testimony of the two girls. The first occurred when the state asked one of the girls if she had occasion to go into the cloakroom with the defendant. The defendant objected on the ground that 'as long as Mr. Accarpio can't testify to the actions which took place in the classroom, Your Honor, then this witness shouldn't be allowed.' The court overruled the objection and the defendant took an exception. The second occurred while the same witness was testifying and came after a fairly lengthy colloquy between the court and counsel. In the course of the colloquy the court stenographer read previous testimony of the defendant, on his cross-examination, in which he denied taking students into the cloakroom to molest them. The court stated to counsel that 'because of that testimony, and the offer here made, not on the basis to explain motive, but on the basis to explain that there was an inconsistency here, that there is a question of credibility, and to show perhaps a common design in the nature in which they were committed, and I don't know what's coming, as you well know. It's offered now. It's up to you to object to it and protect your rights by objection.' Thereafter, the state asked the witness what happened when she went into the cloakroom with the defendant. The defendant objected, stating: 'Unless a time is specified here . . . it's improper.' The court overruled the objection and the defendant took an exception. The third occurred while the same witness was testifying. When the state asked what occurred when she was in the cloakroom with the defendant, counsel for the defendant inquired whether the defendant was being charged with 'anything regarding this girl.' The court answered: 'The state's attorney right now is examining the witness in rebuttal and he may proceed to do so.' The court overruled the objection and the defendant took an exception. The fourth occurred when the second girl was testifying. The state asked whether she had had discussions with the defendant in the cloakroom, during the ninth grade. There was an objection on the ground that the year in which this occurred was not established. The court overruled the objection and the defendant took an exception.

This court reviews rulings solely on the ground on which the party's objection is based. Casalo v. Claro, 147 Conn. 625, 629, 165 A.2d 153. The two rulings concerning the time when each girl was in the cloakroom with the defendant were within the court's discretion. The ruling concerning the objection to testimony by one witness because another was not allowed to testify is without merit and requires no further comment. It is unknown what claim the defendant relied on when he asked whether the state was adding a new charge. In the absence of a specific ground of objection we do not usually consider the ruling. La Voie v. Marshall, 141 Conn. 681, 687, 109 A.2d 508; McCarthy v. Maxon, 134 Conn. 170, 173, 55 A.2d 912; Petrillo v. Kolbay, 116 Conn. 389, 395, 165 A. 346. The defendant's brief claims that the testimony of the two girls should not have been admitted because it contained evidence of unrelated criminal acts which may not be admitted to prove the commission of the one charged. The defendant did not object on this ground. The first statement of the court quoted above indicates that it was well...