State v. Paulino, 9426

Decision Date16 January 1992
Docket NumberNo. 9426,9426
Citation598 A.2d 666,26 Conn.App. 86
CourtConnecticut Court of Appeals
PartiesSTATE of Connecticut v. Jose PAULINO.

Neal Cone, Asst. Public Defender, with whom, on the brief, was G. Douglas Nash, Public Defender, for appellant (defendant).

Frederick W. Fawcett, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and C. Robert Satti, Jr., Asst. State's Atty., for appellee (state).

Before DALY, EDWARD Y. O'CONNELL and NORCOTT, JJ.

NORCOTT, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of the crime of possessing cocaine with intent to sell in violation of General Statutes § 21a-278(b). 1 The defendant was sentenced to twenty years in prison. He claims that the trial court improperly admitted inculpatory hearsay statements made by a third party, and improperly permitted unfairly prejudicial testimony by a prosecution witness, thereby denying him his federal and state constitutional rights to due process. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On May 3, 1989, shortly before 8 p.m., a 1978 Oldsmobile with two males, including the defendant, in the front seat, and a woman and a baby in the rear seat, passed an unmarked state police car on Interstate 95 in the Fairfield area at a speed of more than seventy miles per hour. State Trooper John Rodia gave chase in the unmarked car and radioed to his supervisor, Sergeant Robert Kenney, that he was doing so. Kenney, parked at a service area on Interstate 95, also saw the Oldsmobile drive past. He later identified the defendant as the passenger in the front seat.

Near exit 25, with Rodia about two car lengths behind and traveling at about eighty miles per hour, the front seat passenger in the Oldsmobile reached to his left, then swung his arm to the right, and threw a bag out the passenger side window. The bag landed near the guardrail alongside the highway. The Oldsmobile then left the highway on exit 25 and came to a stop after hitting a post near the exit ramp. When Rodia attempted to follow the Oldsmobile off exit 25, he lost control of his car, which left the ramp airborne, rolled over and went down an embankment. Rodia left the car and proceeded on foot back onto Interstate 95, where he retrieved the bag. Inside it was a brick-like package wrapped in tape, which a state toxicologist later identified at trial as a white powder that weighed one kilogram and contained 85 percent pure cocaine. The toxicologist testified that the cocaine could have been broken down for sale into ten thousand bags of the drug. Other state troopers, including Trooper Edward Alicea, also went to the accident scene, where the defendant was apprehended along with Pedro Navarro. At the state police barracks, they were given their Miranda 2 warnings and interviewed separately by Alicea, who is fluent in Spanish.

The defendant told Alicea that he was a passenger in the Oldsmobile. He then invoked his right to counsel, and the discussion ceased. Shortly thereafter, the defendant was placed in a holding cell adjacent to Navarro. As Alicea was leaving, he overheard the defendant ask Navarro if Navarro had told the police anything. Alicea also heard the defendant tell Navarro that the defendant hoped Navarro did not tell the police anything. When Alicea interviewed Navarro, Navarro initially claimed neither he nor the defendant was the driver of the car but that it had been driven by a third male. He then admitted to lying about the third male. He also told Alicea that he was traveling to Providence, Rhode Island, to look for work, that he had never been arrested and had always been employed, and that he had known there were drugs in the Oldsmobile but had nothing to do with them. Navarro also told Alicea that the package containing the cocaine belonged to the defendant.

As a result of Navarro's statements to Alicea, the defendant filed a pretrial motion for severance, requesting that he and Navarro be tried separately. The trial court granted the defendant's motion.

I

The defendant first claims that the trial court abused its discretion by improperly admitting inculpatory hearsay statements made by Navarro to Alicea to the effect that the cocaine belonged to the defendant. We disagree.

During cross-examination, Alicea testified that Navarro had denied being the car's driver. On redirect, the prosecution first elicited that the defendant, too, had denied being the driver, then proceeded to ask about ownership of the cocaine. Prior to Alicea's testimony and outside the presence of the jury, the court had ruled that if defense counsel inquired as to Navarro's statement that he was not the driver, the rest of his statement might be permitted to come in as well. Defense counsel told the court that he understood its ruling.

In his brief, the defendant concedes that he "opened the door" by asking about who was driving, but claims that he did not open it so wide as to permit inquiry about ownership of the cocaine. "Generally, a party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject.... The party who initiates discussion on the issue is said to have 'opened the door' to rebuttal by the opposing party. Even though the rebuttal evidence would ordinarily be inadmissible on other grounds, the court may, in its discretion, allow it where the party initiating inquiry has made unfair use of the evidence.... This rule 'operates to prevent a defendant from successfully excluding inadmissible prosecution evidence and then selectively introducing pieces of this evidence for his own advantage, without allowing the prosecution to place the evidence in its proper context.' " (Citations omitted.) State v. Graham, 200 Conn. 9, 13, 509 A.2d 493 (1986). Once the door has been opened, the trial court must then engage in a balancing test of sorts in determining whether further inquiry by the opposing party is proper to allow it to undo any unfair prejudice that may have resulted from the original testimony. State v. Graham, supra at 14, 509 A.2d 493. A trial court is charged with the responsibility to exclude evidence where its prejudicial tendency outweighs its probative value. State v. Geyer, 194 Conn. 1, 11, 480 A.2d 489 (1984); State v. Nardini, 187 Conn. 513, 521-22, 447 A.2d 396 (1982). A defendant who opens the door on cross-examination, however, cannot complain when the opposing party on redirect elicits from the witness highly prejudicial hearsay statements made by a third party. State v. Crowley, 22 Conn.App. 557, 561-62, 578 A.2d 157, cert. denied, 216 Conn. 816, 580 A.2d 62 (1990); State v. Aleksiewicz, 20 Conn.App. 643, 655-56, 569 A.2d 567 (1990).

Applying these principles, we conclude that the trial court properly permitted the prosecution to elicit testimony from Alicea as to ownership of the cocaine. To disallow introduction of this evidence would have greatly prejudiced the prosecution by permitting the defendant to make selective use of Navarro's statements so as to create for the jury the erroneous impression that Navarro, who as the passenger had thrown the package from the vehicle, was exculpating the defendant. Introduction of this evidence was thus essential to cure the unfairness that resulted from defense counsel's limited inquiry.

The defendant also asserts that the trial court's decision to permit testimony as to ownership of the cocaine was fundamentally unfair and therefore deprived him of his rights to due process and a fair trial. Properly viewed, the defendant's claim challenges the trial court's decision on evidentiary grounds only. State v. Castonguay, 218 Conn. 486, 497, 590 A.2d 901 (1991). Because a trial court's ruling on such grounds is accorded great deference, we will reverse such a ruling only in cases manifesting an abuse of discretion and resulting in substantial prejudice or injustice to the defendant. Id., citing State v. Hernandez, 204 Conn. 377, 390, 528 A.2d 794 (1987); State v. Martin, 170 Conn. 161, 166, 365 A.2d 104 (1976); see also State v. Sanchez, 25 Conn.App. 21, 24, 592 A.2d 413 (1991). In reviewing claims that the trial court abused its discretion, "the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness; the ultimate issue is whether the court could reasonably conclude as it did...." Jacobsen v. Jacobsen, 177 Conn. 259, 263, 413 A.2d 854 (1979). On the basis of our review, we cannot say the trial court abused its discretion in permitting the prosecution to elicit testimony as to ownership of the cocaine.

II

The defendant next claims that he was denied a fair trial because the trial court improperly permitted testimony by Alicea identifying the defendant as having worn a bag over his head at a pretrial hearing. None of the defendant's...

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  • State v. Williams
    • United States
    • Connecticut Court of Appeals
    • May 26, 1992
    ...interrogation and the focus is on the period immediately following the defendant's receipt of Miranda warnings. State v. Paulino, 26 Conn.App. 86, 93, 598 A.2d 666 (1991), cert. granted on other grounds, 221 Conn. 907, 600 A.2d The defendant's reliance on Doyle to support his argument that ......
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    ...of twenty years. Thereafter, he appealed to the Appellate Court, which affirmed the judgment of the trial court. State v. Paulino, 26 Conn.App. 86, 598 A.2d 666 (1991). We granted the defendant certification to appeal to this court. We affirm the judgment of the Appellate The Appellate Cour......
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    ...the court could reasonably conclude as it did....' Jacobsen v. Jacobsen, 177 Conn. 259, 263, 413 A.2d 854 (1979)." State v. Paulino, 26 Conn.App. 86, 92, 598 A.2d 666 (1991), cert. granted, 221 Conn. 907, 600 A.2d 1361 (1992). Further, when a constitutional violation is not at issue, the de......
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