State v. Person

• Decision Date: 26 September 1989
• Docket Number: No. 6774,6774
• Citation: 20 Conn.App. 115,564 A.2d 626
• Parties: STATE of Connecticut v. Eric N. PERSON.
• Court: Connecticut Court of Appeals

Page 626

564 A.2d 626

20 Conn.App. 115

STATE of Connecticut v. Eric N. PERSON.

No. 6774.

Appellate Court of Connecticut.

Argued June 22, 1989.

Decided Sept. 26, 1989.

F. Mac Buckley, with whom, on the brief, was Hubert J. Santos, Hartford, for appellant (defendant).

Harry Weller, Deputy Asst. State's Atty., with whom, on the brief, were Walter Flannigan, State's Atty. and Mary Elizabeth Barran, Asst. State's Atty., for appellee (state).

Before SPALLONE, DALY and FOTI, JJ.

SPALLONE, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of the crimes of risk of injury to a child, General Statutes § 53-21, ¹ and sexual assault in the second degree, General Statutes § 53a-71(a)(1). ² The defendant claims that the trial court erred (1) in permitting a key defense witness to assert his fifth amendment privilege in the presence of the jury, (2) in prohibiting the defendant from calling certain expert witnesses, (3) in prohibiting the defendant from questioning the victim's best friend concerning the friend's complaint of sexual assault against her father, (4) in admitting as a state's exhibit an audiotaped interview given by the victim, (5) in permitting two police detectives to give opinions concerning the victim's credibility and "common pattern" evidence in child abuse cases, (6) in not declaring a mistrial after the prosecutor questioned a defense witness regarding his use of marihuana at the defendant's apartment, and (7) in permitting hearsay testimony that the defendant's sister had asked one of the victims not to testify and then warning the defendant's sister, in the presence of the jury, of her right against self-incrimination.

The defendant was arrested and charged with one count of sexual assault in the fourth degree; General Statutes § 53a-73a(a)(1)(D); and one count of risk of injury to a child; General Statutes § 53-21; in connection with certain sexual acts allegedly perpetrated against his older daughter. He was tried to a jury on these charges, along with the charges of risk of injury to a child and sexual assault in the second degree related to offenses involving his younger daughter, age eight at the time of the trial. ³ He was acquitted of the crimes involving the older daughter, but was convicted of the two counts involving his younger daughter (the victim).

The defendant and the victim's mother were divorced in June, 1981. Subsequent to the divorce, the victim visited the defendant on weekends at his apartment in Danbury. At trial, the victim stated that during these visits the defendant would take her into his bedroom and engage in a number of sexual acts with her. The victim described these acts very specifically, in graphic detail. Moreover, the victim used anatomically correct dolls to describe the defendant's sexually abusive behavior.

The victim's doctor provided constancy of accusation testimony, stating that there was physical evidence of the victim's molestation. Other constancy of accusation testimony was provided by the victim's mother and two police officers who had investigated the matter. Following his conviction of the crimes of risk of injury to a child and sexual assault in the second degree, the defendant filed this appeal.

The defendant's first claim of error is that the trial court erred in permitting a key defense witness to assert a fifth amendment privilege in the presence of the jury. The following facts are relevant. Following the defendant's testimony, he called his friend, Dean Mercier, to testify for the defense. Mercier testified that he had been a frequent visitor at the defendant's apartment during the period of time the alleged assaults on the victim occurred and that nothing unusual had transpired while he was at the apartment. On cross-examination, in response to the state's question regarding how well he was able to perceive events during his visits to the apartment, Mercier stated that his perception was very sharp. The state then inquired whether it was true that, during such visits, Mercier frequently smoked marihuana. The defendant objected to this question, and the court excused the jury. In argument to the court, the state claimed that its inquiry into Mercier's use of marihuana was proper because a positive answer would call into question his ability to perceive events properly. The defendant argued that the introduction of this issue into the case was inflammatory and moved for a mistrial. The court denied the defendant's motion for a mistrial. The court indicated that, although the question would have been improper if asked of the defendant, it was permissible for the state to question a defense witness regarding his ability to perceive. Mercier, apparently concerned that an answer to the question might incriminate him, asked for the opportunity to consult with an attorney. He left the witness stand, and, upon returning later, agreed to answer the state's questions, despite the fact that he had been unable in the interim to contact his attorney. The trial court advised Mercier against testifying under the circumstances, however, and Mercier was excused for the day.

When Mercier was recalled for cross-examination, he informed the court that he would not answer any questions about marihuana use. Defense counsel argued that Mercier's invocation of his fifth amendment privilege should occur outside the presence of the jury. The trial court denied the defendant's request, and the defendant excepted. In the jury's presence, the state asked Mercier eight questions regarding his use of marihuana. ⁴ In response to each question, Mercier asserted his fifth amendment privilege against self-incrimination.

The following day, the defendant recalled Mercier, and at that time Mercier waived his fifth amendment privilege and testified that he had never smoked marihuana in the defendant's apartment when the victim was present. Upon recross-examination, the state asked several questions designed to show that Mercier's present denial of marihuana use was inconsistent with his previous assertion of his privilege against self-incrimination. During final argument, the state argued that Mercier was not credible because he had first asserted his privilege against self-incrimination and later waived that privilege, denying any involvement in any illegality.

We note at the outset that the defendant's first claim does not present any constitutional issues. The defendant claims no violation of his own constitutional rights, and he has no standing to assert the constitutional rights of the witness. See State v. Williams, 206 Conn. 203, 208, 536 A.2d 583 (1988); State v. Jones, 205 Conn. 723, 739, 535 A.2d 808 (1988). In essence, therefore, he presents a claim of evidentiary trial error.

The defendant claims that the circumstances in this case present the type of situation that warrants reversal of his conviction and a new trial under the theories discussed in Namet v. United States, 373 U.S. 179, 83 S.Ct. 1151, 10 L.Ed.2d 278 (1963). Our Supreme Court discussed Namet v. United States, supra, in State v. Reddick, 197 Conn. 115, 126, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S.Ct. 822, 88 L.Ed.2d 795 (1986). "In Namet v. United States [supra], the United States Supreme Court addressed the issue of when a witness' claim of his privilege not to answer results in reversible error. The court outlined two aspects of the issue, each suggesting a distinct ground of error. 'First, some courts have indicated that error may be based upon a concept of prosecutorial misconduct, when the Government makes a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege.... A second theory seems to rest upon the conclusion that, in the circumstances of a given case, inferences from a witness' refusal to answer added critical weight to the prosecution's case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant.' " State v. Reddick, supra. The defendant bases his claim of error on both theories, arguing that the prosecutor deliberately utilized the fact that Mercier had asserted his privilege against self-incrimination as a trial tactic to create "the overall implication of depravity and licentiousness in the defendant's household" and to prejudice the defendant unfairly. We find the defendant's claim unpersuasive and reject his assertion that a new trial is necessary.

First, this case does not present the scenario of prosecutorial misconduct contemplated by Namet v. United States, supra. This is not a situation in which the prosecutor deliberately called to the stand a witness whom she knew intended validly to invoke the privilege against self-incrimination. See id., 373 U.S. at 185-86, 83 S.Ct. at 1154; United States v. Maloney, 262 F.2d 535 (2d Cir.1959). Rather, in this case the witness was called by the defense, and the witness' assertion of the privilege occurred in the context of cross-examination by the prosecutor. Nor should the prosecution's conduct be characterized as "deliberate attempts by the Government to make capital out of [the witness'] refusals to testify." Namet v. United States, supra, 373 U.S. at 189, 83 S.Ct. at 1156. The prosecutor's initial purpose in questioning Mercier regarding his use of marihuana was to impeach his credibility by casting doubt on his ability to perceive and recall the events that were the subject of his testimony. The capacity of a witness to observe, recollect and narrate an occurrence is a proper subject of inquiry on cross-examination. State v. Esposito, 192 Conn. 166, 176, 471 A.2d 949 (1984). Consumption of alcohol or drugs obviously can impair an individual's ability to observe and recall accurately and so is a proper subject of inquiry on cross-examination. State v. Heinz, 3 Conn.App. 80, 86, 485 A.2d 1321 (1984). At the outset, then, the prosecutor's questioning of Mercier was proper....