State v. Marquez

• Decision Date: 10 November 1970
• Citation: 160 Conn. 47,273 A.2d 689
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Daniel MARQUEZ.

Page 689

273 A.2d 689

160 Conn. 47

STATE of Connecticut v. Daniel MARQUEZ.

Supreme Court of Connecticut.

Nov. 10, 1970.

Richard E. Maloney, Asst. Public Defender, for appellant (defendant).

Joseph F. Skelley, Jr., Asst. State's Atty., with whom, on the brief, was John D. LaBelle, State's Atty., for appellee (state).

Before ALCORN, C.J., and HOUSE, THIM, RYAN and BARBER, ^* JJ.

ALCORN, Chief Justice.

The defendant was convicted by a jury of the crime of manslaughter and has appealed from the judgment rendered on the verdict. The only errors pursued on the appeal are a ruling on evidence and the denial of the defendant's motion to set aside the verdict on the ground that it was not supported by the evidence.

During the trial the accused chose to testify in his own behalf and, on cross-examination the state asked: 'Mr. Marquez, weren't you convicted of manslaughter in the first degree on June 10 of 1960, in New York for which you served seven and a half to thirteen years in Sing Sing Prison?' The defendant answered 'Yes'. Defense counsel immediately objected and asked to be heard. The court excused the jury and the subsequent discussion and ruling of the court occurred in the absence of the jury. No motion to strike the answer was made.

General Statutes § 52-145 provides, in pertinent part, that '(n)o person shall be disqualified as a witness in any action by reason of his interest in the event of the same as a party or otherwise, * * * or of his conviction of crime; but such interest or conviction may be shown for the purpose of affecting his credit.' The state claimed the question and answer to be admissible for the purpose of affecting the defendant's credibility on the ground that he had been convicted of a felony. There is no dispute that the crime was a felony, and that it was one which we have held to be admissible under § 52-145 for the purpose of affecting the witness' credibility. Heating Acceptance Corporation v. Patterson, 152 Conn. 467, 469, 208 A.2d 341; Drazen v. New Haven Taxicab Co., 95 Conn. 500, 508, 111 A. 861.

The defendant objected to the admissibility of the evidence on three grounds: (1) that proof of the conviction could be established only by offering an exemplified copy thereof; (2) that the defendant had pleaded guilty to the charge inquired about and that such a plea did not amount to a conviction of the crime; and (3) that in order to be admissible to affect credibility the conviction had to be of a crime which involved a lack of veracity. The court overruled the objection and the defendant duly excepted.

On the appeal, the defendant does not pursue the grounds of objection which were stated to and ruled upon by the trial court but, instead, indulges in an argument concerning the possible prejudicial effect of disclosing the defendant's prior criminal record to the jury which, he asserts, required the trial judge, under § 52-145, to exercise a discretion to exclude the evidence as prejudicial. Reliance is placed primarily on a decision of the United States Court of Appeals for the District of Columbia Circuit which turned, in part, upon District of Columbia Code § 14-305 (1961), which provided that '(n)o person shall be incompetent to testify, in either civil or criminal proceedings, by reason of his having been convicted of a crime, but such fact may be given in evidence to affect his credit as a witness, * * *' Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763, 768. In that case a divided court seemed to say (p. 768) that the statute, by its wording, was intended to confer upon the trier the discretion to allow impeachment by prior conviction by leaving room for 'the operation of a sound judicial discretion to play upon the circumstances as they unfold in a particular case.' Judge Danaher, in his dissenting opinion in that case, says, and we think correctly, that the statute only 'tells the trier the fact of conviction is evidence, and it is to be received' although he does 'not reject the principle that the trial judge may exercise a broad discretion with reference to cross-examination in certain impeachment situations.' Id., 771. Judge (now Chief Justice) Burger, in Gordon v. United States, 383 F.2d 936, 939, 127 U.S.App.D.C. 343, said that '(t)he test of Luck, however, is that to bar them (prior convictions) as impeachment the court must find that the prejudice must 'far outweigh' the probative relevance to credibility, or that even if relevant the 'cause of truth would be helped more by letting the jury hear the defendant's story than by the defendant's foregoing that opportunity because of the fear of prejudice founded upon a prior conviction." He indicated that the trial judge's discretion should be exercised to bar a prior conviction remote in time, a prior conviction for a crime involving the same or substantially the same conduct for which the accused is on trial, and a prior conviction which does not rest on dishonest conduct related to credibility.

The United States Court of Appeals for the Second Circuit has refused to overrule cases holding that when a defendant voluntarily becomes a witness in his own behalf, his credibility may be impeached by evidence of previous convictions in the same manner as any other witness. United States v. Palumbo, 401 F.2d 270 (2d Cir.), cert. denied, 394 U.S. 947, 89 S.Ct. 1281, 22 L.Ed.2d 480; United States v. Cacchillo, 416 F.2d 231, 234 (2d Cir.). After a detailed discussion of the problem that court has adopted a more limited rule than Luck with respect to the discretion of the trial judge to admit or exclude evidence of a prior conviction to impeach a defendant and has held that a trial judge may bar the use of a prior conviction to impeach a defendant 'if he finds that a prior conviction negates credibility only slightly but creates a substantial change of unfair prejudice, taking into account such factors as the nature of the conviction, its bearing on veracity, its age, and its propensity to influence the minds of the jurors improperly.' United States v. Palumbo, supra, 273, 89 S.Ct. 1281.

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