State v. Ortiz

• Decision Date: 31 December 1985
• Citation: 502 A.2d 400,198 Conn. 220
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Jose ORTIZ.

Page 400

502 A.2d 400

198 Conn. 220

STATE of Connecticut v. Jose ORTIZ.

Supreme Court of Connecticut.

Argued Nov. 14, 1985.

Decided Dec. 31, 1985.

Carl D. Eisenman, Asst. Public Defender, with whom, on brief, was Margaret Hayman, Asst. Public Defender, for appellant (defendant).

Susann E. Gill, Deputy Asst. State's Atty., with whom, on brief, were John Bailey, State's Atty., John M. Massameno, Asst. State's Atty., James R. Turcotte, Sp. Deputy Asst. State's Atty., and Bernadette Conway, Legal Intern, for appellee (State).

Before PETERS, C.J., and ARTHER H. HEALEY, DANNEHY, SANTANIELLO and COVELLO, JJ.

DANNEHY, Justice.

A jury found the defendant guilty of manslaughter in the first degree, in violation of General Statutes § 53a-55(a)(3). He was sentenced to imprisonment for not less than ten nor more than twenty years. His posttrial motions for acquittal and a new trial were denied. The defendant claims on appeal that the trial court erred: (1) in precluding cross-examination of a state's witness concerning criminal charges pending against him at the time of trial; (2) in admitting testimony of an expert witness concerning an identification of the defendant by his tooth mark preserved in an apple found at the scene of the crime; and (3) in admitting testimony of a witness whom the state failed to disclose in response to the defendant's request for discovery. We find error on the defendant's first claim. We will address briefly the second claim, but we do not consider the third because it cannot recur on retrial.

On the evening of May 16, 1978, Hartford police officers, responding to a report of a possible burglary, discovered the dead body of seventy-four year old Maria Joaquim on the floor of her apartment on Lawrence Street in Hartford. She was blindfolded, and her wrists and legs were bound with cord taken from lamps in her apartment. Her mouth was stuffed with cloth fastened tightly in place by a band tied across her lower face and mouth. The medical examiner testified at trial that the cloth in Joaquim's mouth had caused her death by suffocation.

The victim's apartment was in complete disarray, and appeared to have been ransacked. Bureau and desk drawers were removed and emptied and clothes were scattered about. The mattress was pulled from the bedframe, linoleum tile and floorboards were torn up, and sofa cushions were removed. Several pieces of apple found in the apartment and in the cellar were taken to Lester Luntz, a dentist and the state's expert witness in the field of forensic odontology. Luntz assembled the apple pieces and testified that they fit together "like a jigsaw puzzle." Luntz identified a human bite mark found preserved in the apple as that of the defendant. Additional facts will be discussed as we consider the various issues raised by the parties.

We first address the defendant's claim that the trial court improperly restricted his cross-examination of Carlos Carrasquillo, one of the state's principal witnesses against him. Carrasquillo testified at trial that on the evening of May 16, 1978, while in a cafe on Park Street in Hartford, the defendant stated that he and a companion "tried to get some money out of this old lady down on Lawrence Street and that she started screaming. And they put something in her mouth. She started shaking. She was acting like she was going to have a heart attack." Carrasquillo further related that the defendant threatened him. According to that testimony, the defendant said that if Carrasquillo said anything, the defendant would "smash his face." The state concluded its direct examination by asking Carrasquillo if he had ever been convicted of a felony. The witness answered in the negative.

Midway through the defendant's cross-examination of Carrasquillo, the jury was excused. Outside the presence of the jury Carrasquillo insisted that he had never been convicted of a felony. On further inquiry, however, he acknowledged that criminal charges were pending against him. The state objected to this line of questioning. The defendant pressed the inquiry, vigorously contending that he had a right, under the sixth amendment to the United States constitution, to cross-examine the witness regarding the pending charges in order to demonstrate his bias, interest, or motive. The trial court sustained the objection and allowed an exception to the ruling.

The primary interest secured by the confrontation clause is the right to cross-examination. State v. Milum, 197 Conn. 602, 608, 500 A.2d 555 (1985). Our cases have consistently recognized the right of an accused, during cross-examination, to place before the jury the fact that criminal charges are pending against the state's witnesses. State v. Lubesky, 195 Conn. 475, 482, 488 A.2d 1239 (1985); State v. George, 194 Conn. 361, 365, 481 A.2d 1068 (1984), cert. denied, --- U.S. ----, 105 S.Ct. 963, 83 L.Ed.2d 968 (1985); State v. Wilson, 188 Conn. 715, 720, 453 A.2d 765 (1982); State v. Corley, 177 Conn. 243, 246, 413 A.2d 826 (1979); State v. Annunziato, 174 Conn. 376, 380, 387 A.2d 566 (1978). "[E]xposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination"; Davis v. Alaska, 415 U.S. 308, 316-17, 94 S.Ct. 1105, 1110-11, 39 L.Ed.2d 347 (1974); and it is "well settled law that '[t]he fact that the witness is a defendant in a criminal prosecution ... creates an interest which affects his credibility.' " (Citations omitted.) State v. Ferrara, 176 Conn. 508, 512, 408 A.2d 265 (1979). For that reason we have held that cross-examination to show "motive, bias, interest and prejudice is a matter of right and may not be unduly restricted." State v. Milum, supra, 197 Conn. at 609, 500 A.2d 555; State v. Lubesky, supra, 195 Conn. at 482, 488 A.2d 1239; State v. Shindell, 195 Conn. 128, 140, 486 A.2d 637 (1985).

The confrontation clause of the sixth amendment requires that the defendant be accorded some irreducible minimum of cross-examination into matters affecting the reliability and credibility of the state's witnesses. Thus, while as a general rule restrictions on the scope of cross-examination are within the sound discretion of the trial judge, " 'this discretion comes into play only after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment.' " State v. Asherman, 193 Conn. 695, 718, 478 A.2d 227, cert. denied, --- U.S. ----, 105 S.Ct. 1749, 84 L.Ed.2d 814 (1984); State v. Gaynor, 182 Conn. 501, 508, 438 A.2d 749 (1980); State v. Luzzi, 147 Conn. 40, 46, 156 A.2d 505 (1959). We have adhered to this principle and found no error in the limitation of cross-examination into pending criminal charges where we were "satisfied, upon review of the entire cross-examination, that the opportunity to impeach the witness sufficiently comported with the constitutional standards embodied in the confrontation clause." State v. Lubesky, supra, 195 Conn. at 482, 488 A.2d 1239; State v. George, supra, 194 Conn. at 365-66, 481 A.2d 1068; State v. Wilson, supra, 188 Conn. at 721, 453 A.2d 765; see also State v. Denby, 198 Conn. 23, 501 A.2d 1206 (1985); State v. Asherman, supra, 193 Conn. at 721, 478 A.2d 227; State v. Gaynor, supra, 182 Conn. at 509, 438 A.2d 749. In the present case, however, we need not address the threshold question under the sixth amendment "because the trial court did not allow any cross-examination into the witness' possible motive and interest." State v. Milum, supra, 197 Conn. at 609, 500 A.2d 555.

The state, while conceding error, contends that overwhelming evidence of guilt renders the error harmless beyond a reasonable doubt. Despite language in Davis v. Alaska, supra, to the effect that denial of the right of effective cross-examination "would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it"; id., 415 U.S. 318, 94 S.Ct. at 1111; the state argues that it is the "duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations." United States v. Hasting, 461 U.S. 499, 509, 103 S.Ct. 1974, 1980, 76 L.Ed.2d 96 (1983). We have reviewed the state's evidence against the defendant and note that most of it was circumstantial. We further observe that much of this evidence was controverted by the defendant, who testified in his own defense. While we are convinced that the state's evidence, even without the testimony of Carrasquillo, would have been sufficient to sustain a finding of guilt beyond a reasonable doubt, the "harmlessness of an error depends upon its impact on the trier and the result, not upon whether the particular evidence involved was legally essential to support the finding." State v. Bruno, 197 Conn. 326, 336, 497 A.2d 758 (1985) (Shea, J., concurring).

In this case, Carrasquillo was a key witness for the prosecution. His testimony was the only evidence which directly implicated the defendant. We are not satisfied beyond a reasonable doubt that without Carrasquillo's testimony the jury would have returned a verdict of guilty. Nor can we rule out the possibility that had Carrasquillo testified to the pending charges, he could have been completely discredited. We believe this case falls squarely within our holding in State v. Ouellette, 190 Conn. 84, 103, 459 A.2d 1005 (1983), where we stated that the "prevention, throughout the trial of a criminal case, of all inquiry in fields where cross-examination is appropriate, and particularly in circumstances where the excluded questions have a bearing on credibility and on the commission by the accused of the acts relied upon for conviction, passes the proper limits of discretion and is prejudicial error." (Emphasis in original.) Accord State v. Milum, supra; State v. Corley, supra; State v. Annunziato, supra; State v. Luzzi, supra. Accordingly, we reject the state's claim that the...