State v. Robinson, 14846

• Decision Date: 09 August 1994
• Docket Number: No. 14846,14846
• Citation: 230 Conn. 591,646 A.2d 118
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Shawn ROBINSON.

Page 118

646 A.2d 118

230 Conn. 591

STATE of Connecticut v. Shawn ROBINSON.

No. 14846.

Supreme Court of Connecticut.

Argued May 10, 1994.

Decided Aug. 9, 1994.

Rita M. Shair, Asst. State's Atty., with whom were Michael Dearington, State's Atty., and, on the brief, Paul J. Ferencek and Mary Elizabeth Baron, Asst. State's Attys., for appellant (State).

Susan M. Hankins, Asst. Public Defender, for appellee (defendant).

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON and NORCOTT, JJ.

NORCOTT, Associate Justice.

This appeal concerns issues arising out of the criminal trial and sentencing of the defendant, Shawn Robinson. The principal issue presented is whether the defendant was prejudiced by the trial court's violation of its own witness sequestration order issued pursuant to General Statutes § 54-85a. ¹ In accordance with our grant of certification, ² the state appeals from the Appellate Court's determination that the trial court's breach of the sequestration order denied the defendant a fair trial.

The defendant was charged with one count of possession of a weapon or dangerous instrument in a correctional facility in violation of General Statutes § 53a-174a(a), ³ and with two counts of assault in the second degree, in violation of General Statutes § 53a-60(a)(5). ⁴

On September 12, 1991, prior to the commencement of trial, the trial court granted the defendant's motion in limine to sequester all witnesses ⁵ and to require all correction officers to testify in civilian clothing. The trial commenced on September 16, 1991, before a six person jury.

The state's case consisted of the testimony of eight correction officers. ⁶ They testified that on January 11, 1990, the defendant, while an inmate at the Connecticut correctional center in New Haven, had attacked a group of correction officers who were attempting to place restraints on him. According to the officers' testimony, the defendant lunged at them with a shank that had been fashioned from the metal arch support from a prison issued inmate's shoe. Before the defendant was subdued with mace, three officers were injured. One officer required eleven stitches in his arm.

The defendant testified to a different version of the facts. He testified that the correction officers had been the aggressors and that they had attacked him in retribution for an incident that had occurred between the defendant and another correction officer the previous day. The defendant asserted that the charges had been initiated as part of an institutional coverup. The defendant testified that on the morning of January 11, he had been summoned to the captain's office to discuss the previous day's events. The defendant testified that he had asked Deputy Warden William Marcinczyk to take pictures of him to document the injuries he had received as a result of the altercation on the previous day. The defendant further testified that Marcinczyk had taken two polaroid photographs of him and that the defendant had taken one of the pictures for "safekeeping." The defendant testified that he had given this picture to his cousin approximately one-half hour later. The defendant also testified that he had then been approached by a trio of officers who had demanded that the defendant return the picture. According to the defendant, as he had turned out his pockets to show them that he did not have the picture, the officers had attacked him and he had been beaten, maced and dragged to isolation. The defendant stated that later that day he had been transferred back to Somers where William King, a correction officer, took five pictures of him shortly after he arrived. The defendant maintained that he had made photocopies of these pictures, had given one to his mother, another to his father, and had kept one for himself. He testified that his copy of the picture had been taken from his cell when it was searched by the correction officers. The defendant also testified that he had not had access to a camera. Finally, the defendant emphatically denied possessing the shank and assaulting the officers.

The defendant also called King and Mark Murray, another correction officer, to testify to the defendant's physical condition when he had arrived at Somers on the evening of January 11. ⁷ King testified that he had taken four pictures of the defendant in order to document the defendant's condition, which he described as a "superficial laceration on his lips." These pictures were subsequently lost. Similarly, Murray testified that when the defendant had arrived at Somers his "lips were swollen. The side of his face on both sides was swollen. There was some blood on the front of his shirt."

Both prior to and following their testimony, Murray and King remained in the courtroom guarding the defendant. ⁸ Although the defendant repeatedly objected to the presence of these subpoenaed witnesses in violation of the sequestration order, the court refused to exclude the officers from the courtroom.

Marcinczyk also testified during the defendant's case. Marcinczyk confirmed that the defendant had filed a complaint with him on the morning of January 11. Marcinczyk also testified that at the defendant's request, he had taken pictures of the defendant. These pictures were subsequently lost. Further, the defendant called his father, Diago Robinson, to testify. Robinson, also an inmate at Somers, maintained that he had been in King's office when the defendant was photographed, and that the defendant had given him a copy of the pictures for safekeeping. The defendant introduced into evidence a copy of the pictures taken by King. Robinson also attested to the defendant's condition when he had arrived at Somers, recounting that the defendant's eye was swollen nearly shut, his lip was swollen, he was limping and he had bruises on his face.

On rebuttal, the state called King, who had been in the courtroom guarding the defendant during the presentation of the defendant's entire case. The defendant objected on the ground that allowing King to take the stand would violate the sequestration order. The objection was overruled. King's rebuttal testimony directly contradicted the salient features of the testimony given by the defendant's witnesses. King testified that he had been with the defendant from the time he had arrived at Somers until the time he was placed in isolation. King denied that the defendant had been in contact with his father, or any other inmate, on that evening. King also stated that he had noticed no other injury to the defendant aside from a lip abrasion. Finally, King testified that Somers inmates generally had access to cameras and photocopy machines, although he had no knowledge as to whether the defendant had been given access to either.

The jury returned a verdict of guilty of possession of a weapon or dangerous instrument in a correctional facility, and a mistrial was declared as to the assault charges. ⁹ The trial court sentenced the defendant to a term of twenty years imprisonment, to run consecutively with the defendant's sixty-two year sentence for prior convictions.

The defendant appealed from the judgment of conviction. ¹⁰ The Appellate Court held that the defendant was prejudiced by the trial court's failure to enforce its sequestration order by permitting a subpoenaed witness to remain in the court throughout the trial and by allowing that witness to be recalled by the state on rebuttal. In the Appellate Court's view, the sequestration violation was likely to have affected the jury's verdict in that it "went to the heart of the defense ... [and King's] testimony directly contradicted that of the defense witnesses." State v. Robinson, 32 Conn.App. 448, 458, 630 A.2d 87 (1993). The judgment was reversed by the Appellate Court and the case was remanded for a new trial. Id. We granted the state certification to appeal this issue. We affirm the judgment of the Appellate Court. ¹¹

I

The state claims that the Appellate Court improperly determined that the trial court's decision to allow the rebuttal testimony of a correction officer who had been guarding the defendant during trial was so prejudicial as to require a new trial. Specifically, the state argues that: (1) the defendant was not harmed by the violation of the sequestration order because King did not tailor his testimony to conform to the testimony of other witnesses; (2) any harm caused by the violation of the sequestration order could have been or was mitigated through cross-examination, jury instructions and closing arguments; (3) King's testimony related solely to the defendant's claim of self-defense on the dismissed assault charges and did not pertain to the defendant's conviction on the possession charge; and (4) the violation of the sequestration order was justified because the defendant posed a security risk. We disagree.

The state concedes, as it must, that the trial court violated the sequestration order when it allowed King to take the stand. See State v. Stovall, 199 Conn. 62, 68, 505 A.2d 708 (1986); State v. Sullivan, 11 Conn.App. 80, 84, 525 A.2d 1353 (1987). The right to have witnesses sequestered is an important right that facilitates the truth seeking and fact-finding functions of a trial. Geders v. United States, 425 U.S. 80, 87, 96 S.Ct. 1330, 1334, 47 L.Ed.2d 592 (1976). In Connecticut, the granting of a sequestration order in criminal cases is not discretionary and can be invoked by either party. General Statutes § 54-85a; see footnote 1; see also State v. Paolella, 211 Conn. 672, 681, 561 A.2d 111 (1989); State v. Soltes, 20 Conn.App. 342, 346, 566 A.2d 1374 (1989), appeal dismissed, 215 Conn. 614, 577 A.2d 717 (1990); State v. Arroyo, 13 Conn.App. 687, 693, 539 A.2d 581, cert. denied, 208 Conn. 805, 545 A.2d 1103 (1988). Practice Book § 876 provides: "The judicial authority upon motion of the prosecuting authority or of the defendant shall cause any witness to be sequestered during the hearing on...