State v. Powell

• Decision Date: 07 February 2006
• Docket Number: No. 24582.,24582.
• Citation: 889 A.2d 885,93 Conn.App. 592
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Larry POWELL.

889 A.2d 885

93 Conn.App. 592

STATE of Connecticut v. Larry POWELL.

No. 24582.

Appellate Court of Connecticut.

Argued September 14, 2005.

Decided February 7, 2006.

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Daniel J. Foster, special public defender, with whom was Michael P. Shea, special public defender, for the appellant (defendant).

John A. East III, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Michael A. Colombo, Jr., deputy assistant state's attorney, for the appellee (state).

SCHALLER, McLACHLAN and MIHALAKOS, Js.

SCHALLER, J.

The defendant, Larry Powell, appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics in violation of General Statutes § 21a-279(a) and assault of public safety personnel in violation of General Statutes § 53a-167c(a)(1).¹ On appeal, the defendant claims that (1) the trial court improperly admitted evidence regarding a civil lawsuit he brought against the city of Stamford and the police officers who arrested him, and (2) he was denied due process of law as a result of prosecutorial misconduct. We conclude that the court's admission of the evidence was proper and that no prosecutorial misconduct occurred. Accordingly, we affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On March 4, 2000, at approximately 1 a.m., Officer Thomas Scanlon of the Stamford police department observed a gold Ford Taurus parked in front of a known drug location at 27 High Street in Stamford. Suspicious of the activity, Scanlon followed the car to the Fairfield Court housing project. As Scanlon drove his police cruiser behind the car, he observed the defendant exit the passenger door of the vehicle. Scanlon proceeded to question the driver and learned that the driver did not know the defendant. On the basis of his experience, Scanlon believed that a drug transaction was occurring. Consequently, Scanlon approached and questioned the defendant as he attempted to enter a building within the housing complex.

During that conversation, the defendant explained that the driver of the Taurus was seeking to buy marijuana. Scanlon asked the defendant if he was carrying any drugs or weapons. The defendant responded in the negative and invited the officer to search him.² During the search, Scanlon discovered six bags and one loose rock of crack cocaine concealed in the fold of the defendant's winter cap. The defendant resisted arrest, and an altercation ensued, during which Scanlon used his police radio to request emergency assistance. Officers Brian Cronin and David Dogali of the Stamford police department were the first to respond to the request, and assisted Scanlon in subduing and arresting the defendant. During the scuffle, Cronin kicked at the defendant's leg in an effort to stop him from resisting. The defendant suffered a broken tibia during his arrest.³

Following the defendant's arrest, he filed a civil lawsuit against Scanlon, Cronin and the city of Stamford. The lawsuit alleged that the officers, acting in their official capacity, "falsely arrested" the defendant and "employed unreasonable force. . . ." As part of the civil lawsuit, depositions of the arresting officers were taken.

At the defendant's criminal trial, during cross-examination of Scanlon, defense counsel sought to impeach Scanlon's direct testimony with a deposition transcript from the defendant's civil lawsuit. Defense counsel inquired whether Scanlon had placed the defendant's hand "behind [the defendant's] head" during the altercation. Scanlon responded that he had not, at which point defense counsel asked: "You testified in another proceeding in this matter regarding this. Do you recall giv[ing] a deposition?" (Emphasis added.) Defense counsel proceeded to impeach Scanlon with his deposition testimony, referring specifically to the "deposition" on five occasions during that initial cross-examination.

On redirect examination, the prosecutor asked: "Counsel had mentioned something about a deposition. Well, what's that all about?" The court overruled an objection as to relevance by defense counsel and allowed the question, and Scanlon replied: "The defendant is suing myself as well as the other officers in the city of Stamford for, I believe, $1 million or in excess of $1 million."⁴

On recross examination, defense counsel referred to the civil lawsuit by asking: "You're being sued because you were one of the officers that broke [the defendant's] — that injured [the defendant], correct?" In sustaining the state's objection that the question required the witness to give an opinion, the court explained that it believed that defense counsel had opened the door to questioning regarding the civil action. Specifically, the court stated: "The existence of a suit is fine because that was raised by the deposition business." (Emphasis added.)

Throughout the remainder of the trial, both defense counsel and the state made repeated references to the defendant's civil lawsuit. Following his initial objection, defense counsel primarily used that evidence to suggest that the arresting officers had fabricated their version of the events and had falsified their police reports in light of the pending civil lawsuit.⁵ During the cross-examination of Cronin, defense counsel asked, "So, you made every effort to try and take pictures of all of the injuries that [Scanlon] suffered on that night for evidence in the case and in the civil suit?" Defense counsel next inquired of Cronin, "Isn't it, in fact, true that knowing [the defendant] was injured, you discussed the case with the other officers in order to get your story straight?" During the cross-examination of Sergeant James Van Allen, the police supervisor at the scene of the incident, defense counsel again suggested that the police officers had falsified their reports in light of the pending civil lawsuit. Specifically, defense counsel adduced from Van Allen that the police reports were completed sixteen days after the incident occurred and then asked, "At that point, you knew there was probably going to be a lawsuit [filed] against you; is that correct?"⁶

The state's use of that evidence included impeaching the credibility of the defendant and suggesting that he had a significant financial incentive to testify falsely. The prosecutor referred to the defendant's "million dollar lawsuit" both while questioning witnesses and during the rebuttal portion of his closing argument.⁷

At the conclusion of the trial, the jury found the defendant guilty of possession of narcotics and assault of public safety personnel. The court rendered judgment in accordance with the verdict and sentenced the defendant to a total effective term of five years incarceration, followed by three years of special parole. The crux of the defendant's appeal centers on the admission of testimony about the civil lawsuit and the state's subsequent use of that evidence. Additional facts will be set forth as necessary.

I

The defendant first claims that the court abused its discretion in permitting the state to elicit testimony that he had filed a civil lawsuit against the arresting officers and the city of Stamford. The state maintains that defense counsel "opened the door for the admission" of that testimony by introducing Scanlon's civil deposition during his cross-examination of Scanlon. The state further contends that the defendant has not demonstrated that the admission of testimony about the civil lawsuit, even if improper, was harmful. We agree with the state's contention that the court did not abuse its discretion in permitting the challenged testimony.

Before addressing the merits of that claim, we set forth the applicable standard of review. "Unless an evidentiary ruling involves a clear misconception of the law, [t]he trial court has broad discretion in ruling on the admissibility . . . of evidence. . . . The trial court's ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion. . . . We will make every reasonable presumption in favor of upholding the trial court's ruling. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice." (Internal quotation marks omitted.) State v Aaron L., 272 Conn. 798, 811, 865 A.2d 1135 (2005).

The state argues that by cross-examining Scanlon regarding his deposition testimony, the defendant opened the door to the state's line of questioning. We agree. "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." (Internal quotation marks omitted.) State v. Colon, 272 Conn. 106, 186-87, 864 A.2d 666 (2004), cert. denied, ___ U.S. ___, 126 S.Ct. 102, 163 L.Ed.2d 116 (2005).

In determining whether otherwise inadmissible evidence should be admitted to rebut evidence offered by an opposing party, the "court must carefully consider whether the circumstances of the case warrant further inquiry into the subject matter, and should permit it only to the extent necessary to remove any unfair prejudice which might otherwise have ensued from the original evidence." (Internal quotation marks omitted.) Id., at 187, 864 A.2d 666.

In essence, the defendant argues that the testimony concerning his civil lawsuit was irrelevant and that the prejudice to him that it caused outweighed any legitimate benefit to the state in placing the deposition...