State v. Ostolaza, 5996

• Decision Date: 19 September 1989
• Docket Number: No. 5996,5996
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Simon OSTOLAZA.

Page 324

564 A.2d 324

20 Conn.App. 40

STATE of Connecticut v. Simon OSTOLAZA.

No. 5996.

Appellate Court of Connecticut.

Argued June 9, 1989.

Decided Sept. 19, 1989.

James J. Nixon, with whom, on the brief, was Penny Q. Seaman, New Haven, for appellant (defendant).

Timothy J. Sugrue, Deputy Asst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty., and Juliett Crawford, Asst. State's Atty., for appellee (State).

Before DALY, STOUGHTON and NORCOTT, JJ.

NORCOTT, Judge.

The defendant appeals from the judgment of conviction rendered after a jury trial on an information alleging, in counts one through eight, sexual assault in the second degree in violation of General Statutes § 53a-71(a)(1) and, in counts nine through sixteen, risk of injury to a child in violation of General Statutes § 53-21. He raises the following four claims of error on appeal: (1) the prosecutor's misconduct during the trial deprived him of his constitutional right to an impartial jury and a fair trial; (2) the trial court erred in allowing the prosecution to raise the defendant's prior conviction of robbery during the cross-examination of a noncharacter defense witness; (3) the trial court erred in its instruction to the jury by removing an essential element of the crime from its consideration; and (4) the trial court erred by failing to give the jury a fact specific unanimity charge. We find error in part.

The jury could reasonably have found the following facts. For several years, the defendant spent much of his time in the company of minor boys, including the two victims who testified at trial. He would allow the boys access to his house and the boys would go there frequently. He would take them to various places including church, the beach and the park.

On April 21, 1986, thirteen year old J was alone with the defendant in the defendant's bedroom. The defendant asked J to allow him to perform fellatio on him, and J permitted the defendant to do so. The defendant gave J $10 after the completion of the act. On April 30, in his living room, the defendant again performed fellatio on J The defendant also asked J to engage in anal intercourse with him, but J refused.

During the months of March and April, 1986, the defendant performed fellatio on another thirteen year old victim, M, while they were alone in the defendant's apartment. There were between five and twenty of these encounters. M, upon the defendant's request, engaged in anal intercourse with the defendant on more than one occasion. The defendant sometimes would give M money after the acts were completed.

On April 30, 1986, the date of one of the alleged sexual assault incidents involving J and the defendant, J's mother and her friend went to the defendant's house to find J. There they observed the defendant, J, and six or seven other children who appeared to be under the influence of alcohol or drugs. The women detected the odor of marihuana and observed beer cans in the apartment. J said that the defendant sent him to buy drugs. M said that while at the defendant's home he had consumed beer and smoked marihuana.

Other minor boys who associated with the defendant testified that he never had acted in an inappropriate manner toward them, and they felt confident that he would not have done the things with which he was charged. In addition to the boys, several parents and grandparents testified that they had the utmost confidence in the defendant and, given their knowledge of and association with him, they would have no reservations in allowing their children to be in the defendant's company.

I

The defendant first claims that the prosecutor's misconduct, alleged to have occurred repeatedly throughout the trial and particularly during her summation, deprived him of his state and federal constitutional rights to a fair trial. ¹ The defendant concedes that he failed properly to preserve this claim during trial, but argues that it should be reviewed under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), or the plain error doctrine. Practice Book § 4185.

"Review of unpreserved claims of prosecutorial misconduct has been reserved for instances where the claimed misconduct was part of a pattern of misconduct repeated throughout the trial or was blatantly egregious. State v. Williams, 204 Conn. 523, 537, 529 A.2d 653 (1987); State v. Reddick, 15 Conn.App. 342, 354-55, 545 A.2d 1109, cert. denied, 209 Conn. 817 , 551 A.2d 758 (1988)." State v. Horne, 19 Conn.App. 111, 128, 562 A.2d 43 (1989). Our review of the record with regard to all but one of the defendant's asserted claims of misconduct does not convince us that the prosecutor engaged in "a pattern of repeated, strident and serious misconduct"; State v. Rodgers, 207 Conn. 646, 653, 542 A.2d 1136 (1988); or that the prosecutor's comments and inferences constituted the type of " 'character assassination and vitriolic personal attacks that [our Supreme Court has] held to constitute a denial of the constitutional due process right [and] a fair trial.' " State v. Smith, 209 Conn. 423, 429, 551 A.2d 742 (1988), quoting State v. Rodgers, supra, 207 Conn. at 654, 542 A.2d 1136.

One of the challenged remarks, however, implicates the defendant's right to have the state prove his guilt beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). The defendant contends that the prosecutor, in her remarks to the jury, shifted the burden of proof of guilt from the state to the defendant.

In her closing argument, the prosecutor said, "The role of the defense counsel is to put doubt in your mind." In her rebuttal, she reiterated, "Defense counsel's role is to create some kind of doubt in your minds. He is creating confusion, and I think he is doing an admirable job."

Although the defendant characterizes these remarks as having shifted the burden of proof, we conclude that, the comments, at worst, had the potential of misleading the jury on this issue. The two challenged remarks were only isolated instances in the state's lengthy summation. Against these comments, the trial court gave the jury thorough and proper instructions on the burden of proof and the presumption of innocence. ² We conclude that any possible misleading effect of the prosecutor's isolated remarks was cured by the court's instructions and did not affect the fairness of the trial.

Because we conclude that the prosecutor's actions did not rise to the level of an exceptional circumstance as contemplated in State v. Evans, supra, and its progeny, and that they did not precipitate a "truly extraordinary [situation] where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings"; State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985); in which plain error is noticed, we decline further review of this claim.

II

The defendant next claims that the trial court erred in permitting the prosecution to ask a defense witness if his opinion of the defendant would change if he knew that the defendant had been convicted of a felony. The defendant objected and excepted to this question. The defendant concedes that the defendant's prior conviction is admissible on cross-examination of a character witness to test the credibility of that witness. He claims, however, that the defense witness questioned, V, was not a character witness.

"Character may be proved by testimony concerning the accused's general reputation in the community as to the trait.... The law in this state also allows proof of character by the testimony of those who have had an opportunity to form, and have formed, an opinion as to whether the accused possessed a particular character trait." (Citation omitted). State v. Martin, 170 Conn. 161, 163, 365 A.2d 104 (1976). Although the defendant claims that V was not a character witness, defense counsel established that V had enough knowledge of the defendant upon which to base an opinion about him. On direct examination, defense counsel asked V, "Ever since you have known him, would you believe he has done something wrong since you have known him," to which V responded, "He would not do that."

Although there is no talismanic question that marks a witness as a character witness, the context of the question and answer in the present case leads to our conclusion that the trial court properly concluded that the witness was a character witness. ³ Defense counsel's questions would have been irrelevant if he did not intend the witness' responses to relate to the defendant's character. Defense counsel was clearly asking V if, on the basis of his opinion of the defendant, he felt the defendant could have committed the alleged acts. We conclude that the defendant's argument that V was not a character witness is without merit.

Having concluded that the trial court did not err in labeling V a character witness for the purpose of deciding the parameters of the cross-examination, we find no error in the admission of questions regarding the defendant's convictions. "If the accused offers evidence of a trait of character as circumstantial evidence to prove that he acted in conformance with that trait and that it is unlikely he committed the crime charged, then the prosecution may offer evidence to disprove the existence of the trait." State v. Martin, supra; State v. Apostle, 8 Conn.App. 216, 229, 512 A.2d 947 (1986). "When a character witness has given his opinion as to a particular trait, the state may cross-examine that witness concerning specific acts, not to prove the truth of such facts, but to test the credibility of the character witness by ascertaining his good faith, his source and amount of information and his accuracy.... When, on cross-examination, questions as to specific acts are asked for that purpose, they are not objectionable." (Citations omitted.) State v. Martin, supra, 170 Conn. at 165, 365...