State v. Privitera, 2003

Citation1 Conn.App. 709,476 A.2d 605
Decision Date15 May 1984
Docket NumberNo. 2003,2003
CourtAppellate Court of Connecticut
PartiesSTATE of Connecticut v. Carmello PRIVITERA.

Erskine D. McIntosh, Asst. Public Defender, for appellant (defendant).

Julia D. Dewey, New Haven, with whom, on the brief, were Arnold Markle, State's Atty., Robert J. Devlin, Jr., Asst. State's Atty., and Michael Stern, law student intern, for appellee (state).


BORDEN, Judge.

The defendant was charged in a two count information. The first count charged him with assault on a peace officer, namely officer Robert Beal of the Meriden police department, in violation of General Statutes § 53a-167c(a)(1). 1 The second count charged the defendant with interfering with an officer, namely officer Robert Green of the Meriden police department, in violation of General Statutes § 53a-167a(a). 2 The defendant was acquitted of the assault charge and convicted of the crime of interfering with an officer. He appealed. 3 We find error.

The jury could have reasonably found the following facts supporting the conviction. The defendant was a passenger in his cousin's car on West Main Street in Meriden. The car's muffler was dragging along the ground, causing sparks. Green, who was on patrol, followed the car for several blocks and then pulled it over into the parking lot of a food store. Beal arrived in response to Green's previous backup request. Green learned that the registration to the car had expired. During this process, the defendant had left the car and was jumping up and down and swearing at the officers. The police called for a truck to tow the car. The defendant stood between the tow truck and the car so that the truck could not back up. Beal twice asked him to move and warned him that he would be arrested if he did not do so. The defendant said he would take his time in moving. Beal advised the defendant that he was under arrest and began to escort him to the police cruiser. The defendant raked his fingernails down Beal's cheek and a fight ensued between them, which Green joined. After the defendant was subdued, Beal went to the hospital and Green took the defendant to the police station where, still acting violently, he kicked Green as they were entering the building.

The defendant offered evidence of a quite different version. His evidence was to the effect that he was peaceful at the scene; that he did no more than request of Green and Beal that he be permitted to call someone to tow the car; that after he was told the second time to move he turned to do so when he was struck without provocation by one of the officers and jumped by the other; that both of them continued to beat him; and that, as he was being taken, handcuffed, into the police station, he was thrown face first into a wall and kicked Green in self-defense.


The defendant first claims error in the ruling of the trial court prohibiting him from cross-examining Beal about possible bias, interest or motive. We agree.

On cross-examination of Beal, the defendant attempted to question him about the pendency of a federal civil law suit filed by the defendant against Beal, Green and a third policeman for a claim arising out of the arrest of the defendant. Beal acknowledged that he had seen the complaint. The basis of the offer was to show bias, interest and motive. The state objected, and the court sustained the state's objection, to which the defendant duly excepted.

"Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. State v. Corley, 177 Conn. 243, 246, 413 A.2d 826 (1979); State v. Luzzi, 147 Conn. 40, 46, 156 A.2d 505 (1959). The sixth amendment to the constitution guarantees the right of an accused in a criminal prosecution 'to be confronted with the witnesses against him.' This right is secured to defendants in both state and federal prosecutions. Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1067, 13 L.Ed.2d 923 (1965). The primary interest secured by confrontation is the right to cross-examination. Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965). An important function of cross-examination is the exposure of a witness' motivation in testifying. Greene v. McElroy, 360 U.S. 474, 496, 79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377 (1959). To comport with the constitutional standards embodied in the confrontation clause the defendant in exercising his right of cross-examination must be allowed to 'expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.' Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974)." State v. Wilson, 188 Conn. 715, 720, 453 A.2d 765 (1982).

The pendency of civil litigation between a witness and a party against whom he testifies is relevant to bias. 3A Wigmore, Evidence (Chadbourn Rev.) § 949. A police officer who has been sued by the defendant for his conduct in arresting the defendant may be sensitive to a claim of misconduct expressed in that suit and eager to see it rejected. He may be concerned about the imposition of a damages award against him and may harbor animosity toward the defendant for suing him. See United States v. Gambler, 662 F.2d 834, 837 (D.C.Cir.1981). Thus, such evidence " 'would reasonably tend to indicate that his testimony might be influenced by interest, bias or a motive to testify falsely.' " State v. Moynahan, 164 Conn. 560, 601, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S.Ct. 291, 38 L.Ed.2d 219 (1973).

The state's arguments that Beal had no financial motive because of the indemnity provision of General Statutes § 7-101a, and that the error, if any, was harmless because the defendant was acquitted of assaulting Beal, are without merit. First, the basis of the claim of bias goes beyond that of a financial motive, the lack of which would more properly be a subject for redirect examination. Second, although the defendant was accused of assaulting Beal, the record plainly indicates that much of Beal's testimony was also relevant to the crime of interfering with an officer, of which the defendant was convicted. The state's evidence in the case was sharply contested by the defendant, and the credibility of both of the officers was equally sharply in issue.

Although this evidentiary ruling is dispositive and will require a new trial, we discuss the defendant's other grounds of appeal because they are likely to arise again.


The defendant claims that the court erred in two other evidentiary rulings. We disagree.

The defendant called Diane Simoneau, who was a witness to a small part of the incident, including the pursuit of the car of the defendant's cousin, the beginning of the argument at the food store and the defendant's being brought into the police station. She was asked to give her opinion as to Green's truth and veracity on the basis of what she saw and heard that evening. The court properly sustained the state's objection since her opinion was based only on her disagreement with Green's version of the facts and not on any prior contact with him. This falls far short of the "deliberate opinion formed as the result of personal contact and experience"; Richmond v. Norwich, 96 Conn. 582, 594, 115 A. 11 (1921); required as a foundation for an opinion as to a witness' character for truth and veracity. See State v. Rodriguez, 180 Conn. 382, 393, 429 A.2d 919 (1980); State v. Gelinas, 160 Conn. 366, 279 A.2d 552 (1971).

The court also sustained the state's objection to the defendant's attempt to elicit from Simoneau a purported prior inconsistent statement by Green. Simoneau had testified that in the pursuit of the defendant's vehicle before arriving at the food store Green ran a red light. She was then asked to relate the version which she overheard Green give to his police captain at the police station as to whether he had run the light. The court sustained the state's objection. Since there was no showing that Green had been asked in his cross-examination what he told the police captain, and since in any event the excluded statement was collateral, the court did not abuse its discretion in excluding it. See Tait & LaPlante, Handbook of Conn. Evidence (1983 Sup.) § 7.24(c) and (d).


The defendant's final claim is that the court erred in denying his motion for judgment of acquittal and in its charge to the jury. Insofar as it is relevant to this appeal, the court charged that it is an essential element of the crime of interfering with an officer under General Statutes § 53a-167a(a) that Green was acting in the performance of his lawful duties. The charge stated in essence that a police officer has the duty to enforce the laws and preserve the peace. It further stated that if Green reasonably believed that the defendant, either intentionally or recklessly, engaged in violent, tumultuous or threatening behavior an arrest would be proper, 4 and that if Green was acting to make an arrest on a reasonable belief that such a crime had been committed, the defendant would not be justified in using any physical force against Green to resist the arrest, whether the arrest was later determined to be legal or illegal, because of General Statutes § 53a-23, 5 which the court read to the jury. It also stated that if Green was performing some lawful duty other than trying to make an arrest General Statutes § 53a-23 would not apply.

The defendant claims in effect that it is an essential element of the crime defined by General Statutes § 53a-167a(a) that the police officer was acting legally; that there was evidence that the defendant was arrested not for breach of peace but for interfering with the towing of the vehicle; and that the towing was illegal because under General Statutes § 14-150(c) the officers, before towing a vehicle...

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