State v. Nowakowski

• Decision Date: 07 December 1982
• Citation: 188 Conn. 620,452 A.2d 938
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Richard NOWAKOWSKI.

Page 938

452 A.2d 938

188 Conn. 620

STATE of Connecticut v. Richard NOWAKOWSKI.

Supreme Court of Connecticut.

Argued Oct. 14, 1982.

Decided Dec. 7, 1982.

Raymond C. Seligson, Hartford, for appellant (defendant).

Ernest J. Diette, Jr., Asst. State's Atty., with whom, on the brief, was Arthur C. Hadden, Deputy Asst. State's Atty., for appellee (state).

Before SPEZIALE, C.J., and PETERS, HEALEY, PARSKEY and GRILLO, JJ.

GRILLO, Associate Justice.

The defendant was charged in an information with the crime of misconduct with a motor vehicle in violation of § 53a-57 of the General Statutes. ¹ After a jury trial he was found guilty, and from the judgment rendered he has appealed.

Two grounds of appeal are advanced: (a) that the court erred in denying the defendant's motion for a mistrial following a remark by a prosecution witness; (b) that the court erred in having portions of the direct testimony, but none of the testimony on cross-examination, of two prosecution witnesses read to the jury following a request by the jury.

The alleged improper remark by Officer Joseph L. Collet occurred during cross-examination following a series of questions by defense counsel. ² Following the response "[i]f he was so innocent he would have given me a statement," defense counsel moved for a mistrial, asserting that the answer was inflammatory and malicious and prevented a fair trial. The court then gave a claimed curative instruction. ³ Defense counsel took an exception to the charge, stating no reason for the exception.

In contending that the statement of the witness violated his constitutional rights under the fourteenth amendment to the United States constitution, the defendant cites Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) and Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Succinctly stated, Griffin condemns comments to the jury by a prosecutor upon a defendant's failure to testify as to matters which he can reasonably be expected to deny or to explain. Griffin v. California, supra, 380 U.S. at 615, 85 S.Ct. at 1233. Doyle prohibits cross-examination by a prosecutor relative to post-arrest silence by a defendant after he has been given the Miranda warnings, the court concluding that it would be a deprivation of due process to allow a defendant's silence to impeach an explanation subsequently offered at trial. Doyle v. Ohio, supra, 426 U.S. at 618, 96 S.Ct. at 2245.

The attacked comment involved in the present case was not elicited as a response to prosecutorial questioning nor was it an address to the jury by the prosecutor. It came, after a line of questioning by defense counsel, as a spontaneous utterance, an occurrence fairly similar to that initiating the motion for a mistrial which was denied in State v. Gooch, 186 Conn. 17, 25, 438 A.2d 867 (1982).

The defendant predicates his claim that the curative instructions failed to eliminate the prejudicial effect of the remark on State v. Tinsley, 180 Conn. 167, 429 A.2d 848 (1980). Tinsley involved a charge of sexual assault. The state presented evidence by the complainant that she had engaged in sexual intercourse with the defendant at various periods from February to August, 1976. Thereafter, recognizing that the requirements of the controlling statute (now General Statutes § 53a-69) rendered inadmissible the testimony concerning intercourse occurring between February and May of 1976, the trial court permitted the state to open its case and to recall the complainant who testified as to her sexual relations with the defendant on various dates from May to August of 1976. The trial court also permitted the state to file a substituted information limiting the sexual assault charge to the period between May and August, 1976. The jury was instructed to disregard any evidence of sexual intercourse occurring between February and May of 1976. On appeal, we reversed the judgment of conviction, holding that there was little likelihood that the prejudicial effect of the inadmissible evidence could be cured by the court's instruction. When considered from the standpoint of potential prejudice, Collet's remark, asserted to be injurious in the present case, pales into insignificance when compared with the highly prejudicial testimony given by the complainant in Tinsley.

The decision whether to grant a motion for a mistrial depends upon whether an event occurs of such a character as to preclude a fair trial, thus vitiating the entire proceeding. State v. DeWitt, 177 Conn. 637, 648, 419 A.2d 861 (1979). As to this aspect of a trial, the trial court possesses a wide degree of discretion. State v. Gooch, supra, 186 Conn. at 25, 438 A.2d 867. Further, curative instructions often remedy the prejudicial impact of inadmissible evidence. State v. Tinsley, supra, 180 Conn. at 170, 429 A.2d 848. In taking prompt corrective action in its instruction cautioning the jury to disregard the statement made by the witness, the trial court adequately prevented any potential use of the remark by the jury in their deliberations. We conclude that the trial court did not abuse its discretion in refusing to grant a mistrial.

The defendant next assigns as error the partial reading of previous testimony to the jury. After the jury had been charged and had begun their deliberations, the jury requested a reading of the testimony of the witnesses Wayne R. Hansen and Daniel Adams. As to Hansen's testimony, the trial court stopped the reading after inquiring of the jurors whether they wished a further reading. The jury answered "no." In regard to the reading of Adams' testimony the trial court again terminated the reading. The defendant objected to the failure of the court to order a reading of the testimony given by the witnesses on cross-examination, maintaining that such a procedure amounted to an abuse of judicial discretion. We disagree.

The first question read to the jury initiating the direct examination of Hansen was practically word for word that which was first asked of Adams, i.e., what each was doing and where each was on July 19. Thereafter each gave an account as to the vehicles he saw, the identity of the vehicles and other pertinent information. The court halted the reading of Adams' testimony. As noted above, the jury indicated by word that they had heard enough of Hansen's testimony....