State v. Martin

• Decision Date: 03 February 1976
• Citation: 365 A.2d 104,170 Conn. 161
• Parties: STATE of Connecticut v. Roy M. MARTIN.
• Court: Connecticut Supreme Court

Page 104

365 A.2d 104

170 Conn. 161

STATE of Connecticut v. Roy M. MARTIN.

Supreme Court of Connecticut.

Feb. 3, 1976.

Francis J. Foley III, Sp. Public Defender, with whom, on the brief, was Michael E. Driscoll, Norwich, for appellant (defendant).

Edmund W. O'Brien, State's Atty., for appellee (state).

HOUSE, C.J., LOISELLE, BOGDANSKI, LONGO AND MACDONALD, JJ.

LOISELLE, Associate Justice.

A jury found the defendant guilty of burglary in the first degree in violation of General Statutes § 53a-101(a)(1) and of assault in the third degree in violation of § 53a-61. He has appealed from the judgment rendered on the verdict. The claims of error relate to the admission of certain evidence at the trial.

During the trial, the complaining witness testified that, on February, 27, 1974, at about 2 p.m., the defendant, while holding a jackknife, forced his way into the hallway of the two-family home in which she lived. In the ensuing struggle, the defendant knocked the witness to the floor where he held her for a short time. He subsequently released the witness and left the building through the front door. After his departure, she noticed a cut across the palm of her hand.

The defendant first claims that, on the cross-examination of the defendant's father, the court erred by allowing questions regarding specific incidents relating to character traits of the accused. During his examination-in-chief, the defendant's father was asked: '(A)re you familiar with his (the defendant's) reputation in the community in regard to the traits of peacefulness or nonviolence?' The father answered: 'I have never known him to perform any violent act or-He is not aggressive in any way. He never raised a hand to anyone to my knowledge.' Counsel's question called for an answer regarding the accused's general reputation for the trait. The witness, however, responded with an opinion as to the trait. The state did not object to the answer and it was therefore opinion evidence to be considered by the jury.

If the accused offers evidence of a trait of character as circumstantial evidence to prove that he acted in conformance with that trait and that it is unlikely he committed the crime charged, then the prosecution may offer evidence to disprove the existence of the trait. State v. Campbell, 93 Conn. 3, 10, 104 A. 653; State v. Gilligan, 92 Conn. 526, 531, 103 A. 649. Character may be proved by testimony concerning the accused's general reputation in the community as to the trait. State v. Blake, 157 Conn. 99, 104, 249 A.2d 232. The law in this state also allows proof of character by the testimony of those who have had an opportunity to form, and have formed, an opinion as to whether the accused possessed a particular character trait. State v. Gelinas, 160 Conn. 366, 368, 279 A.2d 552; State v. Blake, supra, 157 Conn. 104, 249 A.2d 232. See Richmond v. Norwich, 96 Conn. 582, 115 A. 11, for the reasoning behind the rule. See also 7 Wigmore, Evidence (3d Ed.) §§ 1980, 1986. Whether or not the accused produces testimony of reputation or opinion to prove a trait, the prosecution may not use specific acts of misconduct to disprove the trait. Richmond v. Norwich, supra, 597, 115 A. 11; State v. Gilligan, supra. See Verdi v. Donahue, 91 Conn. 448, 454, 99 A. 1041, for the rationale of this rule.

On cross-examination of the witness, the state, over objection, asked the witness if he knew that the defendant had made an obscene telephone call and that the defendant had been apprehended by police officers when he failed to pay his bill at a resturant. The state also asked the witness if he knew whether the defendant had been aggressive during the latter incident. The character of the cross-examination can be illustrated by the following question asked by the state's attorney: 'Q: So that in terms of just those specifc instances, isn't it fair to say that in those two matters I have mentioned, your determination and opinion in terms of his agressive traits-a: Right. Q:-are limited to what he told you and not what other witnesses to the event told you?' From the state's offer of proof concerning the cross-examination of the witness, it is apparent that the state's attorney wanted to test the basis of the witness' opinion, not to disprove the existence of the trait by proof of specific acts. ¹

The opinion of a good-character witness must have some basis and the prosecution is allowed to test that basis. People v. Hurd, 5 Cal.App.3d 865, 880, 85 Cal.Rptr. 718. See Atwood v. Atwood, 74 Conn. 169, 173, 79 A. 59; Richmond v. Norwich, supra, 96 Conn. 595, 115 A. 11, quoting Spencer's Appeal, 77 Conn. 638, 643, 60 A. 289. See also Michelson v. United States, 335 U.S. 469, 479, 69 S.Ct. 213, 93 L.Ed. 168. There is a distinction between the prosecution's use of specific acts in rebuttal to disprove the trait in question and the prosecution's use of specific acts in the cross-examination of a character witness. When a character witness has given his opinion as to a particular trait, the state may cross-examine that witness concerning specific acts, not to prove the truth of such facts, but to test the credibility of the character witness by ascertaining his good faith, his source and amount of information and his accuracy. See Michelson v. United States, supra; United States v. Curry, 512 F.2d 1299, 1305 (4th Cir.), cert. denied, 423 U.S. 832, 96 S.Ct. 55, 46 L.Ed.2d 50; United States v. Beno, 324 F.2d 582, 588 (2d Cir.), cert. denied, 379 U.S. 880, 85 S.Ct. 147, 13 L.Ed.2d 86. See cases cited in annotation, 47 A.L.R.2d 1258, 1274-77. The question should not be extended to the details of the acts. See Magee v. State, 198 Miss. 642, 650, 22 So.2d 245; State v. Carroll, 188 S.W.2d 22, 24 (Mo.); Schroeder v. State, 142 Tex.Cr.R. 443, 447, 154 S.W.2d 480. When, on cross-examination, questions as to specific acts are asked for that purpose, they are not objectionable. The purpose of the cross-examination in the present case as stated by the state's attorney, was not to prove that certain acts occurred, and thereby disprove a trait of character, but to test the witness' concept of the character trait, the extent of his observations, and the good faith with which he testified.

The defendant also claims that the testimony concerning those incidents was prejudicial and irrelevant to the trait of nonviolence. Evidence of an accused's trait of character must be relevant to an element of the crime charged. State v. Blake, 157 Conn. 99, 104, 249 A.2d 232; State v. Campbell, 93 Conn. 3, 10, 104 A. 653. Likewise, when the prosecutor attacks the basis of the witness' opinion by questioning him as to his knowledge of specific acts, such acts must be relevant to those traits. See Aaron v. United States, 397 F.2d 584, 585 (5th Cir.) People v. Marsh, 58 Cal.2d 732, 745, 26 Cal.Rptr. 300, 376 P.2d 300. The determination of relevance must be made according to reason and judicial experience. Robinson v. Faulkner, 163 Conn. 365, 371, 306 A.2d 857. That determination requires the exercise of the court's discretion. State v. Blyden, 165 Conn. 522, 531, 338 A.2d 484.

' In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court's ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.' State v. Brown, 169 Conn. 692, 702, 364 A.2d 186. '(T)he ultimate issue is whether the court could reasonably...