State v. Moore
Citation | 981 A.2d 1030,293 Conn. 781 |
Decision Date | 03 November 2009 |
Docket Number | No. 17992.,17992. |
Parties | STATE of Connecticut v. Dan L. MOORE. |
Court | Supreme Court of Connecticut |
Pamela S. Nagy, special public defender, for the appellee (defendant).
ROGERS, C.J., and KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.
The state appeals, following our grant of certification, from the judgment of the Appellate Court reversing the conviction of the defendant, Dan L. Moore, of three counts of robbery in the first degree in violation of General Statutes § 53a-134(a)(4), four counts of attempt to commit robbery in the first degree in violation of § 53a-134(a)(4) and General Statutes § 53a-49(a), and one count of conspiracy to commit robbery in the first degree in violation of § 53a-134(a)(4) and General Statutes § 53a-48(a). The state claims that the Appellate Court improperly concluded that the defendant's sixth amendment right of confrontation1 under the United States constitution was violated when the trial court denied his motion to strike certain testimony that the state elicited during its redirect examination of James Brooks, a participant in the robbery and a prosecution witness who invoked his fifth amendment privilege against self-incrimination2 before the assistant state's attorney (prosecutor) completed his redirect examination, thus depriving the defense of the opportunity to question Brooks on recross-examination. The defendant responds that the Appellate Court properly concluded that his right of confrontation was violated when the trial court denied his motion to strike. The defendant further maintains that, if this court concludes otherwise, the Appellate Court's judgment may be affirmed on the alternative grounds that (1) the trial court improperly allowed Brooks to invoke his fifth amendment privilege after he had waived the privilege by agreeing to testify, (2) the prosecutor committed improprieties during his direct and redirect examination of Brooks and during his closing argument that deprived the defendant of his right to a fair trial, and (3) the trial court improperly failed to give the jury a cautionary instruction on accomplice testimony.3 We agree with the state, reject the defendant's alternative grounds for affirmance and, accordingly, reverse the judgment of the Appellate Court.
The following relevant facts and procedural history are set forth in the opinion of the Appellate Court. "The defendant was charged in connection with a robbery that occurred on October 6, 2002, in Windsor. A group of seven individuals was ... in the parking lot of the Ranch House restaurant when a dark blue minivan was driven adjacent to them. Several men got out of the van, and the driver, Corey Wallace, remained inside the van.4 One of the men, Brooks, pointed a shotgun at the group while another, Andrew Cromwell, searched them. One witness testified that a third person stood near the van and told the victims to cooperate. After all seven individuals were searched, the men got back inside the van, threw two of the victims' wallets out a window and drove away. In total, approximately $30, a silver necklace and a cellular telephone were stolen.
5 6 7 State v. Moore, 103 Conn.App. 1, 3-6, 926 A.2d 1058 (2007).
After Brooks invoked his fifth amendment privilege, defense counsel moved to strike his redirect testimony from the record. In urging the court to grant the motion, defense counsel repeatedly argued that, although she had cross-examined Brooks following his testimony on direct examination and had done so "fully," her lack of an opportunity to recross-examine Brooks following his redirect testimony was prejudicial.8 The defense was especially concerned about the effect of Brooks' testimony that he had taken an oath to tell the truth on the jurors. Defense counsel also explained that she wanted to rehabilitate Brooks because the prosecutor had been given two opportunities to question him, whereas she had been given only one, thus making Brooks "appear to be a liar throughout what he's done." The prosecutor responded that Brooks' testimony on redirect examination was merely a repetition of his earlier testimony regarding the facts and the plea to which he had agreed. Thus, the redirect testimony did not add anything new for the jury to consider. The prosecutor also argued that Brooks' testimony on cross-examination already had shown him to be a liar and that the defense could do nothing to change that fact.
In denying the motion to strike, the court, Espinosa, J., stated:
"But, in any event, the court finds that, because the issues brought up on redirect [examination] go only to the credibility of the witness ... it will not be excluded." When the jurors returned to the courtroom, the court instructed that the testimony of Brooks had concluded and that the jurors were not to speculate as to the reason why he did not testify further. The jury subsequently found the defendant guilty of three counts of robbery in the first degree, four counts of attempt to commit robbery in the first degree and one count of conspiracy to commit robbery in the first degree. Although defense counsel moved for a mistrial, the trial court denied the motion for the same reasons that it had denied the motion to strike.
On appeal to the Appellate Court, the defendant claimed that the trial court improperly had denied the motion to strike Brooks' redirect testimony. He specifically claimed that, because the defense had not been given an opportunity to question Brooks about new issues raised on redirect examination, he had been deprived of his sixth amendment right of confrontation. See State v. Moore, supra, 103 Conn. App. at 6, 926 A.2d 1058. The Appellate Court agreed, stating: Id., at 7, 926 A.2d 1058. The court also explained that "[t]he issues raised during the state's redirect examination of Brooks were not collateral matters"; id., at 8, 926 A.2d 1058; and that Brooks' assertion of his fifth amendment privilege had prevented the defense from inquiring further into the details of Brooks' redirect testimony. Id., at 10, 926 A.2d 1058. As a result, the defense was unable to test the truth of Brooks' testimony regarding his...
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