State v. Milum

Decision Date19 November 1985
Citation197 Conn. 602,500 A.2d 555
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Ronald J. MILUM.

William F. Dow III, New Haven, for appellant (defendant).

Julia D. Dewey, Asst. State's Atty., with whom, on brief, were Arnold Markle, State's Atty., and Robert J. Devlin, Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and ARTHUR H. HEALEY, DANNEHY, SANTANIELLO and CALLAHAN, JJ.

ARTHUR H. HEALEY, Associate Justice.

The defendant, Ronald J. Milum, was convicted by a jury of the crimes of assault in the second degree; General Statutes § 53a-60; and unlawful restraint in the second degree; General Statutes § 53a-96(a). 1 On appeal, the defendant claims that the trial court erred in: (1) denying the defendant the right to cross-examine the complaining witness to show bias, motive, prejudice and interest arising out of her having instituted a civil action against him for money damages based on the same circumstances as the instant crimes and arising out of the fact that she had sought $25,000 in exchange for her recommendation of a suspended sentence for him; (2) refusing to strike the complaining witness' testimony because the police had erased and reused the tape recording of her original statement that allegedly contradicted her trial testimony; (3) refusing to strike the complaining witness' testimony that she suffered emotional trauma as a result of the incident involved in these criminal charges; and (4) denying the defendant's objection to further proceedings which was based on General Statutes (Rev. to 1981) § 54-142a(c). 2 We find error and order a new trial.

The jury could reasonably have found the following facts: The complaining witness met the defendant in 1976 when she was fifteen and the defendant was thirty-three years of age. A relationship developed between them and they lived together at various locations in the New Haven area. At a party given by the defendant on December 22, 1978, he announced his engagement to the complaining witness and he gave her a ring. The engagement was terminated on February 9, 1979. The complaining witness stated that she had broken off the engagement with the defendant on February 9, 1979, but she did not return the ring. The defendant testified that he had terminated the relationship because the complaining witness had become more involved with drugs and alcohol than he could accept.

On Saturday, February 10, 1979, and into the early morning hours of Sunday, February 11, the complaining witness was with a male companion. She admitted using both alcohol and marijuana during that evening with a male companion. When the male companion drove the complaining witness to her mother's home in Hamden at approximately 2:30 a.m., the defendant was sitting in his truck in front of the house. The defendant approached the car and opened the passenger's door. The complaining witness either fell to the ground or the defendant pulled her from the car. The defendant broke the passenger side window of the car and punched the driver who then immediately drove away. The defendant then walked or partly dragged the complaining witness to his truck and drove her to a secluded dirt road in Hamden. During the drive from her mother's house to the dirt road, and while stopped on this road, the victim was cut by a beer bottle wielded by the defendant as she attempted to shield her face with her hands. The principal injuries she sustained were lacerations to her head and mouth, a broken finger in her left hand, and puncture wounds, bruises and abrasions on her body.

The defendant thereafter drove her to his father's house in Hamden, where she fell asleep. When she awoke around 7 a.m., she removed her blood-stained shirt and was given a clean shirt to wear. The defendant's father then drove her to her mother's house, where the police were called. She was taken to St. Raphael's Hospital where she received medical treatment. The defendant was arrested that afternoon. Hamden detective Gerald Benway took a tape recorded statement from the complaining witness on February 12, 1979.

The defendant first claims that the trial court erred in denying him the right to cross-examine the complaining witness concerning the civil action for damages which she had instituted against him on the basis of the circumstances giving rise to the criminal charges for which he was on trial. This claim of error also includes the denial of cross-examination on his contention that she demanded $25,000 from him in exchange for "her recommendation" of a suspended sentence. 3 He argued in the trial court that he was relying on his sixth amendment right to confrontation and his due process rights under the fifth amendment in his claims concerning the cross-examination into the pending civil action and the complaining witness' demand for $25,000. The defendant has not, however, briefed any due process claim on this appeal and we only address his sixth amendment claim. See Hayes v. Smith, 194 Conn. 52, 66, 480 A.2d 425 (1984). Contending that he was entitled to cross-examine her on the ground of bias, motive, interest, and state of mind, the state countered that such evidence was irrelevant and collateral and also involved an offer to compromise. 4 In addition, he claims that this was a "complete denial" of cross-examination and not a mere limitation on its extent as the state argues. Maintaining that such evidence was clearly relevant on the grounds claimed, 5 he further argues that prejudice need not be shown because credibility was the critical issue. The state urges that the trial court "properly limited" this attempt to cross-examine into "her attorney's efforts to settle a pending civil litigation" because it was inadmissible as an offer to compromise. In addition, the state claims that the defendant effectively utilized the "ample opportunity" afforded him for impeachment. In any event, the state claims that the trial court's ruling was not erroneous and harmful because even if the desired cross-examination had been allowed, it could not have affected the verdict. We find error.

"The sixth amendment to the [United States] constitution guarantees the right of an accused in a criminal prosecution 'to confront the witnesses against him....' Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065 [1068], 13 L.Ed.2d 923 (1965)." State v. Lubesky, 195 Conn. 475, 481, 488 A.2d 1239 (1985). 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); 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 is the principal means by which the believability of a witness and the truth of his testimony are tested.' Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105 [1110] 39 L.Ed.2d 347 (1974); State v. Brigandi, 186 Conn. 521, 533, 442 A.2d 927 (1982); see State v. Luzzi, 147 Conn. 40, 47, 156 A.2d 505 (1959). 'The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.' Davis v. Alaska, supra [415 U.S. at] 315-16 , quoting 5 Wigmore, Evidence (3d Ed.1940) § 1395, p. 123. The denial or undue restrictions of the right can at times constitute constitutional error. Davis v. Alaska, supra, 318 ; State v. Haskins, 188 Conn. 432, 454, 450 A.2d 828 (1982)." State v. Ouellette, 190 Conn. 84, 101, 459 A.2d 1005 (1983). " 'To comport with the constitutional standards embodied in the confrontation clause the defendant in exercising his right of cross-examination must be allowed to "expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness." Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105 [1111], 39 L.Ed.2d 347 (1974).' State v. Wilson, 188 Conn. 715, 720, 453 A.2d 765 (1982)." State v. Shindell, 195 Conn. 128, 140, 486 A.2d 637 (1985); see State v. Ouellette, supra.

In State v. Asherman, 193 Conn. 695, 718, 478 A.2d 227 (1984), we quoted with approval from State v. Gaynor, 182 Conn. 501, 508, 438 A.2d 749 (1980): "The general rule is that restrictions on the scope of cross-examination are within the sound discretion of the trial judge ... but this discretion comes into play only after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment." (Citations omitted.) We need not address the threshold question in this case, however, because the trial court did not allow any cross-examination into the witness' possible motive and interest. Cross-examination regarding motive, bias, interest and prejudice is a matter of right and may not be unduly restricted. State v. Lubesky, supra, 195 Conn. 482, 488 A.2d 1239; State v. Shindell, supra; State v. Corley, 177 Conn. 243, 246, 413 A.2d 826 (1979); State v. Luzzi, 147 Conn. 40, 46, 156 A.2d 505 (1959).

The matters sought to be probed by the defendant's proposed cross-examination were clearly relevant. Moreover, it would have made available to the jury significant information to aid in assessing the bias motive, interest and prejudice of the victim for testifying as she did. See Skinner v. Cardwell, 564 F.2d 1381, 1389 (9th Cir.1977), cert. denied, 435 U.S. 1009, 98 S.Ct. 1883, 56 L.Ed.2d 392 (1978); United States v. Turcotte, 515 F.2d 145, 151 (2d Cir.), cert. denied sub nom. Gerry v. United States, 423 U.S. 1032, 96 S.Ct. 564, 46 L.Ed.2d 406 (1975). In this context, the Eighth Circuit has said that " '[e]vidence tending to show a substantial reason for bias or interest in an important witness is never collateral or irrelevant. It may be ... the very key to an intelligent appraisal of the testimony of the [witness].' Barnard v. United States, 342 F.2d 309, 317 (9th Cir.1965)." United States v....

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    ...must be afforded to the defendant into matters affecting the reliability and credibility of the state's witnesses. State v. Milum, 197 Conn. 602, 609, 500 A.2d 555 (1985).'' State v. Slimskey, 257 Conn. 842, 858, 779 A.2d 723 (2001). The ''cross-examiner is not only permitted to delve into ......
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