State v. Mitchell

• Court: Connecticut Supreme Court
• Writing for the Court: Before HOUSE; MacDONALD
• Citation: State v. Mitchell, 169 Conn. 161, 362 A.2d 808 (Conn. 1975)
• Decision Date: 15 July 1975
• Parties: STATE of Connecticut v. Robert Lee MITCHELL.

Page 808

362 A.2d 808

169 Conn. 161

STATE of Connecticut v. Robert Lee MITCHELL.

Supreme Court of Connecticut.

July 15, 1975.

John M. Byrne, Asst. Public Defender, with whom, on the brief, was James D. Cosgrove, Chief Public Defender, for the appellant (defendant).

John D. LaBelle, State's Atty., with whom was Richard F. Banbury, Asst. State's Atty., for the appellee (state).

Before HOUSE, C.J., and LOISELLE, MacDONALD, BOGDANSKI and LONGO, JJ.

MacDONALD, Associate Justice.

The defendant was tried upon a two-count information charging him with the offenses of robbery in the second degree in violation of General Statutes ² § 53a-135(a)(2) and larceny in the third degree in violation of General Statutes § 53a-124(a)(4). The jury returned a verdict of guilty on both counts. The court denied the defendant's motion to set aside the verdict and rendered judgment on July 27, 1973, from which the defendant appeals.

The defendant assigns error in two evidentiary rulings of the trial court, each essentially dealing with the testimony of Mrs. Gloria Spagna, an eyewitness to the crime, called by the state to testify. The finding, as it relates to the testimony of Mrs. Spagna, may be summarized as follows: She was called as a witness by the state without having been previously interviewed by any member of the state's attorney's office. She testified that she had arrived at the Towne House Motel, the scene of the robbery, at 12:15 a.m. to 12:45 a.m., to visit a guest of the motel. Mrs. Spagna described the man who robbed the cash register as light-complexioned with 'a very well cut Afro, not a bushy Afro,' but without a mustache, twenty-five to thirty years old, not too tall, stocky, wearing a tan raincoat or camel's hair coat. On December 17, 1972, Mrs. Spagna had given an oral statement to the Wethersfield police department which was summarized by the department and placed in their report. The state claimed that the description in the report was inconsistent with Mrs. Spagna's testimony describing the man who had robbed the cash register, on this basis claiming surprise and the right to impeach and cross-examine Mrs. Spagna. The court directed the state's attorney to use the statement in the report to refresh the recollection of the witness. After reviewing this report, Mrs. Spagna admitted that she had originally described one of the holdup men as having a medium complexion, 'natural hairdo not teased into an Afro,' and wearing a mustache. Mrs. Spagna, after refreshing her recollection again, testified that she had told the policy that the man previously described was five feet five to five feet seven inches in hight. She also said that she did not recognize anyone in the court room as either robber. On cross-examination Mrs. Spagna testified that the defendant was not one of the men who committed the robbery; and, further, the she had been questioned by the Wethersfield police several times because her description was different from that given by Mrs. Louise Slater, the attendant at the motel. Detective John S. Karangekis of the Wethersfield police had advised her that he believed she was lying, and because of this fact, he arranged two polygraph examinations which she took.

Detectie Karangekis testified on redirect examination that there were several inconsistencies in the statement given by Mrs. Spagna and that this was the reason the polygraph examinations were arranged. When he spoke to Mrs. Spagna on December 17, 1972, she gave a description of the holdup men and said she was at the motel that night to visit Louise Slater. The description she gave in the police interview was inconsistent with the description she gave during the trial. When Detective Karangekis interviewed Mrs. Slater at a later time she stated that she did not know Mrs. Spagna and that Mrs. Spagna had come to the motel that night looking for 'someone allegedly named Steve.' The defendant took timely exception to the court's rulings allowing testimony to be produced by the state designed to impeach the credibility of Mrs. Spagna.

In a recent case this court reaffirmed the long-standing rule with regard to impeaching one's own witness: 'It has long been the accepted general rule that a party presenting a witness may not directly discredit him or impeach his credibility. Carney v. Hennessey, 77 Conn. 577, 586, 60 A. 129; Carpenter's Appeal, 74 Conn. 431, 435, 51 A. 126. 'However strong may be the belief of counsel that his witness is biased, prejudiced or hostile, it is a fundamental requirement of a just and orderly procedure that having called a witness and sought the benefit of his testimony by putting him on the witness stand, . . . he cannot directly impeach him save where it is shown to the satisfaction of the court that the testimony of the witness is a surprise to him, or is inconsistent with other statements made by the witness, that he is adverse or hostile or (for) some equally potent reason, as the interests of justice under the particular circumstances of the case seem to the court to require.' Schmeltz v. Tracy, 119 Conn. 492, 498, 177 A. 520, 523. A party who is surprised by the adverse testimony of his own witness, although voluntarily called, may be permitted to examine him for the purpose of showing that he has made statements contradictory to his testimony upon the stand. Such examination is, however, a privilege and not a matter of right. Gondek v. Pliska, 135 Conn. 610, 616-617, 67 A.2d 552; Sandora v. Times Co., 113 Conn. 574, 585, 155 A. 819; State v. Gargano, 99 Conn. 103, 113, 121 A. 657.' State v. Jones, Conn., 353 A.2d 764, p. 766.

The state claimed surprise in the testimony of Mrs. Spagna that she was unable to identify the defendant as a perpetrator of the robbery. In fact, the finding indicates that at the insistence of Detective Karangekis prior to trial, Mrs. Spagna was subjected to two polygraph examinations as a result of her indication that she could not identify the defendant. The state was aware, in advance of trial, that this would be her testimony. The element of surprise is clearly lacking in this instance and that element must be demonstrated prior to any attempt to impeach one's own witness' testimony. That the witness did not testify as the state had hoped she would is certainly insufficient grounds to declare her adverse and to allow her to be cross-examined and impeached by the proponent of her testimony.

It is well established, as claimed by the state, that a state's attorney has a duty, not solely to obtain convictions, but 'to ensure that all evidence tending to aid in the ascertaining of the truth be laid before the court, whether it be consistent with the contention of the prosecution that the accused is guilty.' State v. Moynahan, 164 Conn. 560, 568, 325 A.2d 199, 206; State v. Harris, 147 Conn. 589, 598, 164 A.2d 399; State v. Zimnaruk, 128 Conn. 124, 127, 20 A.2d 613.

It would not appear that in the circumstances of this case the performance of this duty imposed upon the state's attorney any obligation to go further than to make known to the court and to the defendant that such evidence exists in the same manner as any other evidence that tends to be exculpatory is revealed. Here, for example, knowing in advance that Mrs. Spagna had refused to identify the defendant as one of the robbers, the state could have informed the court and the defendant that Mrs. Spagna had witnessed the robbery, but that it did not propose to call her as a witness. If, for tactical reasons, he preferred to introduce her as a state's witness, the state's attorney could have simply inquired if she had witnessed the event, leaving it to the defendant to cross-examine or to call her as a defense witness. Instead, the state's attorney inquired at length about other details of the robbery and not once inquired whether the defendant was one of the robbers, waiting until the very end of his direct examination before inquiring: 'All right, and do you recognize either of these two men in the courthouse?'-to which Mrs. Spagna replied: 'No, I don't.' At this point, the state's attorney claimed surprise and sought to attack her credibility in an apparent effort to destroy in advance the effectiveness of any favorable testimony she might give for the defendant.

A state's attorney has no more of a duty to vouch for a witness whom he would prefer simply to make known to the court and not to examine as a state's witness than he has to introduce in behalf of the state and vouch for any alibi witness whose name is submitted to him in the defendant's notice of alibi defense in accordance with Practice Book § 533G. The...