State v. Place

• Decision Date: 30 September 2014
• Docket Number: No. 34113.,34113.
• Citation: 153 Conn.App. 165,100 A.3d 941
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Michael Robert PLACE.

153 Conn.App. 165

100 A.3d 941

STATE of Connecticut

v.Michael Robert PLACE.

No. 34113.

Appellate Court of Connecticut.

Argued May 19, 2014.

Decided Sept. 30, 2014.

Allison M. Near, assigned counsel, for the appellant (defendant).

Nancy L. Walker, special deputy assistant state's attorney, with whom, on the brief, were Patricia M. Froehlich, state's attorney, and Matthew A. Crockett, assistant state's attorney, for the appellee (state).

DiPENTIMA, C.J., and ALVORD and HARPER, Js.

Opinion

DiPENTIMA, C.J.

The defendant, Michael Robert Place, appeals from two separate judgments of conviction arising out of two robberies, one committed at an Xtra Mart convenience store in Putnam on July 17, 2008, and the other at a branch office of Putnam Bank on May 10, 2008. In docket number CR–08–0135945 (Xtra Mart case), the defendant appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a–134 (a)(3) and larceny in the sixth degree in violation of General Statutes § 53a–125b. He claims that the trial court erred in refusing him the opportunity to display his tattoos to the jury without being subject to cross-examination by the state, in violation of his right to due process and a fair trial.

The defendant also appeals from the judgment of conviction in docket number CR–09–137439 (Putnam Bank case), rendered after a jury trial, of larceny in the second degree in violation of General Statutes § 53a–123 and robbery in the second degree in violation of General Statutes § 53a–135 (a)(2). With respect to that judgment of conviction, the defendant claims that (1) the court erred in failing to admit into evidence a photographic array depicting someone who resembled the perpetrator, but who did not resemble the defendant, (2) the court improperly denied his motion to strike certain testimony from the state's witness, Dr. Angela Przech, a state forensic science examiner, who stated that the defendant had a prior conviction in Massachusetts, and (3) the prosecutor engaged in impropriety by eliciting testimony about the defendant's prior conviction in contravention of the court's pretrial orders. We affirm the judgments of the trial court.

The following procedural history is relevant to both appeals. The cases were tried separately, with the court, Swords, J., presiding over both jury trials. In the Xtra Mart case, the jury found the defendant guilty of robbery in the first degree and larceny in the sixth degree. A different jury found the defendant guilty in the Putnam Bank case of larceny in the second degree and robbery in the second degree. It acquitted him of robbery in the first degree. On June 10, 2011, the court sentenced the defendant on both verdicts. In the Xtra Mart case, the court sentenced the defendant to twenty years incarceration on robbery in the first degree, which the court merged with the lesser included offense of larceny in the sixth degree. In the Putnam Bank case, the court sentenced the defendant to twenty years incarceration. The defendant received a total effective term of thirty years incarceration. This appeal followed.¹

IXTRA MART CASE

The jury reasonably could have found the following facts. Daniel Hartman, the third shift night clerk at the Xtra Mart convenience store in Putnam, was working on July 17, 2008. At 1:20 a.m., he was in the bathroom gathering materials to mop the floor. When he heard someone enter the store, he left the bathroom and saw a Caucasian “[s]ix foot male, [with] dark hair, roughly a hundred and sixty to a hundred and seventy-five pounds, wearing gym shorts, [and] a T-shirt.... [T]he rest of his face was covered ... [by] a T-shirt kind of turbaned around ... his head and his face.”² Almost immediately upon entering, however, the defendant told Hartman that “this is a ... robbery.” He demanded money and when Hartman told the defendant the money was in the cash register, he forced Hartman, with a knife pressed against the back of his neck, to retrieve the money. Within minutes, the defendant left with approximately one hundred and twenty-five dollars. Hartman then called the police, and the defendant was later arrested in connection with the crime.

In his testimony, Hartman did not describe the perpetrator as having any tattoos.³ In addition, the lack of clarity in the state's surveillance video made it such that any tattoos on the perpetrator were not readily visible. It is undisputed that the defendant has two tattoos, one on his upper right arm and one between his thumb and forefinger on his left hand. The state entered into evidence photographs of those tattoos taken the day after the robbery.

At trial, the defendant wanted to emphasize the fact that, although he had visible tattoos on the day of the robbery, Hartman did not mention any tattoos in his description of the perpetrator. Defense counsel therefore informed the court that the defendant intended to display his tattoos to the jury, without testifying.⁴ He argued that this was proper because the defendant would be exhibiting a static bodily condition and therefore he need not be put under oath or be subject to cross-examination by the state. The state objected, arguing: “It has been approximately two and [a] half years since this incident. The defendant has had the opportunity to alter or change the tattoo that he wants to display.... I would expect to ask him questions about whether he has altered it, what opportunities he's had to alter it, whether it has changed at all naturally.”

After hearing both arguments and considering the nature of tattoos, their ability to be altered, and the length of time that had elapsed since the robbery, the court held: “[T]he state is legitimately entitled to ask him about the tattoos and its appearance today, and question him about any alterations between the time of the robbery and today, which is approximately two and [a] half years.... [T]he defendant would need to be under oath, and those questions and the answers to those questions call into question the defendant's credibility. So, if the defendant did get on the [witness] stand, did display the tattoo, and the state chose to cross-examine him, then the state would also be permitted to use the robbery convictions⁵ to impeach his credibility.” (Footnote added.) On the basis of this ruling, the defendant chose not to display his tattoos and therefore was not subject to cross-examination by the state. The jury thereafter found the defendant guilty of robbery in the first degree and larceny in the sixth degree. This appeal followed.

The defendant claims that the court's ruling, requiring that he subject himself to cross-examination if he chose to display his tattoo to the jury, deprived him of his rights to due process and a fair trial.⁶ We conclude that this constitutional claim must fail because the court properly precluded the defendant from displaying the tattoos to the jury in accordance with the rules of evidence. State v. Annulli, 309 Conn. 482, 490, 71 A.3d 530 (2013) ; see also State v. Davis, 298 Conn. 1, 10, 1 A.3d 76 (2010) ; State v. Winot, 294 Conn. 753, 775–76, 988 A.2d 188 (2010).

“In determining the relevancy and admissibility of evidence, trial courts have broad discretion.... Our standard of review of an evidentiary ruling is dependent on whether the claim is of constitutional magnitude. If the claim is of constitutional magnitude, the state has the burden of proving the constitutional error was harmless beyond a reasonable doubt.... Otherwise, in order to establish reversible error on an evidentiary impropriety, the defendant must prove both an abuse of discretion and a harm that resulted from such abuse.” (Citations omitted; internal quotation marks omitted.) State v. Swinton, 268 Conn. 781, 797–98, 847 A.2d 921 (2004).

The defendant and the state disagree as to whether this claim is one of constitutional magnitude. The defendant states that “[s]ince the trial court would have only permitted the defendant to testify at the cost of relinquishing his fifth amendment right not to testify, this claim is of a constitutional magnitude.” He supports his argument by citing State v. Asherman, 193 Conn. 695, 712–13, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S.Ct. 1749, 84 L.Ed.2d 814 (1985), for the proposition that the state may compel a defendant to display a particular physical characteristic without violating the defendant's right against self-incrimination. He then compares that situation to the present, arguing that the defendant has the same right to display a physical characteristic without being subject to cross-examination. He concludes that the court erred in denying him such right, stating that the “court's insistence that [he] subject himself to cross-examination if he chose to display his tattoos contravened well settled law and deprived [him] of due process and a fair trial.”

The state, however, argues that it “has found no Connecticut or United States Supreme Court decisions holding that a defendant is constitutionally entitled to exhibit bodily conditions without following the rules of evidence.... [E]ven the cases the defendant cites hold that a defendant must lay a proper evidentiary foundation before displaying tattoos or other physical characteristics.”⁷ We agree with the state. There is no established constitutional right to display a bodily condition without first laying a proper foundation. The defendant, therefore, has the burden of proving that the court abused its discretion in its evidentiary ruling and that it resulted in harm.

In attempting to carry this burden, the defendant claims that because the state put into evidence photographs of his tattoos, a proper evidentiary foundation was laid to display them to the jury. To the contrary, the state argues that the defendant failed to present evidence from any source that the tattoos on his body looked substantially the same as they did on the night of the robbery, two and...