State v. Onofrio

• Decision Date: 04 September 1979
• Citation: 179 Conn. 23,425 A.2d 560
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Eugene ONOFRIO.

Page 560

425 A.2d 560

179 Conn. 23

STATE of Connecticut v. Eugene ONOFRIO.

Supreme Court of Connecticut.

Argued May 9, 1979.

Decided Sept. 4, 1979.

Ira B. Grudberg, Special Public Defender, New Haven, with whom, on brief, was Jean L. Welty, New Haven, for appellant (defendant).

William F. Gallagher, Sp. Asst. State's Atty., with whom, on brief, was Arnold Markle, State's Atty., for appellee (state).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and PETERS, JJ.

LONGO, Associate Justice.

In the early morning hours of June 9, 1972, James Cotter was discovered lying unconscious on East Town Road in Milford, suffering from multiple bullet wounds. He was taken to Milford Hospital where he underwent surgery later that morning. Between June 9 and June 14, his condition remained unstable, and by June 14, severe circulation problems had developed from a gunshot wound in the victim's right leg resulting in the amputation of his right leg on that day. At the time of this operation, a massive abdominal infection was discovered in the area of the victim's rectum, which resulted in an extensive bloodstream infection, which in turn directly caused his death in the early afternoon of June 15, 1972.

The defendant, Eugene Onofrio, was indicted, together with Robert Celentano and Donald Perrotti, for the murder of James Cotter. The defendants were tried together, and an initial trial failed to result in a jury verdict. After a second trial, the jury returned a verdict finding the defendant Onofrio guilty of manslaughter in the first degree. Celentano and Perrotti were acquitted. From the judgment rendered, the defendant has appealed to this court.

In his appeal, the defendant challenges a number of the trial court's rulings relating to the admission of evidence the cross-examination of witnesses, and the denial of a motion to suppress and a motion for a mistrial. We shall discuss those issues and additional facts relating thereto which are necessary to the disposition of this appeal.

I

We first address the defendant's claim that the court erred in admitting evidence which was alleged to be of no probative value and highly prejudicial in nature. Pertinent to that claim are the following facts: During a search of the defendant's home in East Haven on June 14, 1972, police officers seized a number of rifles, a pistol and a holster. ¹ During a preliminary offer of proof, the state indicated that it would offer all of the evidence, including a holster, the rifles, a pistol and an ammunition clip, as stolen contraband. The defendant claimed that those items were irrelevant to the issues involved in the defendant's trial, and that the proffer of this evidence would be severely prejudicial. The court determined that the state would be permitted to inquire of witnesses with reference to the holster, but ruled that "any testimony with reference to the other guns" could not be adduced, as "the relevancy seems ... to be rather remote on the basis of the indictment as it is here now." Following that ruling, and the resting of the state's case, the defense called the defendant's wife, Teresa Onofrio, and elicited from her, inter alia, that the holster, which had already been admitted as an exhibit and which prior testimony from a state's witness tended to establish was a .38 caliber pistol holster, was her son's and was used as a plaything by him. On cross-examination, the state, inquiring of Mrs. Onofrio how long the holster had been in the house, posited the question: "(W)hat else did the officers take out (of the house)?" Counsel for the defendant objected, the jurors were excused, and in the ensuing colloquy between counsel and the court, the state indicated that it intended to show what other weapons were found in the house, that the defense had "opened up" this line of inquiry and that the jurors were entitled to know that three rifles were found in the house. The court ruled that it would allow the prosecution to ask where the holster was located at the time of its seizure, but would not at any time allow the state to introduce the items, including the rifles that were obtained in the search, and that it was "foreclosing (the state) from bringing in the other items."

Immediately following the court's ruling, upon the resumption of cross-examination of Mrs. Onofrio by the state, the state offered two photographs for introduction into evidence. One photograph, state's exhibit AP, depicted a room used as a nursery in the Onofrio home, with several rifles leaning against one wall and a holster on top of a dresser. The other photograph, state's exhibit AQ, depicted the defendant's bedroom with a bureau drawer opened to reveal a handgun which was not the pistol for which the search warrant was issued. The defendant objected strenuously to the admission of the two photographs, claiming that they were irrelevant, and that their prejudicial impact far outweighed whatever probative value they might have. The state claimed in response that the photographs were admissible to impeach the credibility of Mrs. Onofrio insofar as she testified that the holster was her child's "plaything," and the court admitted the two photographs as full exhibits. The defendant claims that the admission of these photographs constitutes reversible error. We agree.

" 'Evidence as to articles found in the possession of an accused person subsequent to the time of the commission of a crime for which he is being tried is admissible only if it tends to establish a fact in issue or to corroborate other direct evidence in the case; otherwise the law does not sanction the admission of evidence that the defendant possessed even instruments or articles adapted to the commission of other crimes. .... The reason is analogous to that applicable to evidence of other crimes committed by a defendant but unrelated to the offense under investigation.' State v. Groos, 110 Conn. 403, 407, 148 A. 350; see State v. Brown, 169 Conn. 692, 364 A.2d 186, and cases and authority therein cited." State v. Acklin, 171 Conn. 105, 114, 368 A.2d 212; see also State v. Turcio, 178 Conn. 116, 129, 422 A.2d 749; State v. Hauck, 172 Conn. 140, 144, 374 A.2d 150; State v. Marshall, 166 Conn. 593, 600, 353 A.2d 756. It is firmly established that evidence of criminal activities is generally inadmissible to prove the guilt of the defendant as to the crime charged. See, e. g., State v. Brown, 169 Conn. 692, 700-701, 364 A.2d 186; State v. Holliday, 159 Conn. 169, 172, 268 A.2d 368; State v. Harris, 147 Conn. 589, 599, 164 A.2d 399; McCormick, Evidence (2d Ed.) § 190, 1 Wharton, Criminal Evidence (13th Ed.) § 170; 1 Wigmore, Evidence, §§ 192-194. Although such evidence may be admissible for other purposes, such as the impeachment of the defendant's credibility; State v. Brown, supra, 169 Conn. 701, 364 A.2d 186, 192; the general rule excludes the evidence so as to avoid "the danger of prejudice against the defendant which may result from the admission of such evidence. State v. Gilligan, 92 Conn. 526, 530, 103 A. 649." State v. Brown, supra, 169 Conn. 700, 364 A.2d 186; see State v. Carr, 172 Conn. 458, 463-64, 374 A.2d 1107. The trial judge must determine, in the exercise of judicial discretion, that the probative value of the "other crimes" evidence outweighs its prejudicial tendency. State v. Turcio, supra; State v. Ralls, 167 Conn. 408, 418, 356 A.2d 147; State v. Moynahan, 164 Conn. 560, 597, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S.Ct. 291, 38 L.Ed.2d 219; cf. State v. Piskorski, 177 Conn. 677, 700-701, 419 A.2d 866.

Discretion, however, imports something more than leeway in decision-making. See State v. Battle, 170 Conn. 469, 365 A.2d 1100; State v. Gilligan, 92 Conn. 526, 103 A. 649; McCormick, Evidence (2d Ed.) § 190. " 'Discretion means "a legal discretion, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice. In a plain case, this discretion has no office to perform, and its exercise is limited to doubtful cases, where an impartial mind hesitates." ' " State v. Battle, supra, 170 Conn. 476, 365 A.2d 1104; see Hammerberg v. Leinert, 132 Conn. 596, 604-605, 46 A.2d 420. When assessing the admissibility of "other crimes" evidence, the application of a mechanical test determining that the proffered evidence fits within some class of exception to the rule of nonadmissibility, may obscure sight of the underlying policy of protecting the accused against unfair prejudice. That policy ought not to evaporate through the interstices of the classification. The problem is thus one of balancing the actual relevancy of the "other crimes" evidence in light of the issues and the other evidence available to the prosecution against the degree to which the jury will probably be roused by the evidence. State v. Holliday, supra, 159 Conn. 173, 268 A.2d 368; 6 Wigmore, Evidence (3d Ed.) § 1904. Put another way, if the issue to be proved is competent but can just as well be demonstrated by other evidence, or if the evidence is of but slight weight or importance upon that point, a trial judge is justified in excluding the evidence entirely, if its probative value is marginal and its prejudicial tendencies clear. Such a balancing calls for a large measure of individual judgment about the relative gravity of imponderables. It should be recognized, however, that the discretion invested in the trial court is not a license to depart from the principle that evidence of other crimes, having no substantial relevancy except to ground the inference that the accused is a bad person and hence probably committed this crime, must be excluded. "The leeway of discretion lies rather in the opposite direction, empowering the judge to exclude the other-crimes evidence, even when it has substantial independent relevancy, if in his judgment its probative value for this purpose is outweighed by the danger that it...