State v. Scott, 4674

• Decision Date: 16 July 1987
• Docket Number: No. 4674,4674
• Citation: 525 A.2d 1364,11 Conn.App. 102
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Leroy SCOTT.

Page 1364

525 A.2d 1364

11 Conn.App. 102

STATE of Connecticut v. Leroy SCOTT.

No. 4674.

Appellate Court of Connecticut.

Argued Feb. 3, 1987.

Decided May 26, 1987.

Certification Denied July 16, 1987.

Temmy Ann Pieszak, Asst. Public Defender, with whom, on the brief, was Joette Katz, Public Defender, for appellant (defendant).

Judith Rossi, Deputy Asst. State's Atty., with whom, on the brief, were James G. Clark, Asst. State's Atty. and Thomas V. O'Keefe, Former Asst. State's Atty., for appellee (State).

Before BORDEN, SPALLONE and BIELUCH, JJ.

BORDEN, Judge.

The defendant appeals from the judgment of conviction, after a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70(a), one count of assault in the third degree in violation of General Statutes § 53a-61(a)(1), and one count of larceny in the second degree in violation of General Statutes §§ 53a-119 and 53a-123(a)(3). He claims that the court erred (1) in denying his motion in limine, which sought to preclude the state from cross-examining him regarding other sexual misconduct, (2) in refusing to charge that the state was required to prove, as an essential element of the sexual assault charges, that the defendant and the victim were not married to each other, and concomitantly, in refusing to rule that proof of that claimed essential element was lacking, and (3) in permitting the jury to consider two factual bases for the larceny verdict, one of which was not proven beyond a reasonable doubt. We find no error.

The jury could reasonably have found the following facts. Late in the evening of Monday, August 13, 1984, the defendant picked up the victim in New Haven while she was hitchhiking. The victim was wearing jeans and a tee shirt, and was not carrying a purse. She had a silver ring on her finger, and was carrying a key ring with a turquoise ring attached to it. The defendant drove the victim to the top of the New Haven Coliseum parking garage, where he stripped her of her clothing, hit her and forced her to submit, in the car, to vaginal intercourse and fellatio. Thereafter, while the victim was naked and outside the car, the defendant kicked her and knocked her down. In response to her request, he gave her back her jeans and then drove away. A subsequent search of the defendant's bedroom yielded the victim's two rings.

I

The defendant first claims that the court erred in denying his motion in limine which attempted to preclude the state from cross-examining him about his presence with a woman at the Coliseum parking garage on the night after the assault on the victim. Specifically, he claims that the court erred by failing to rule in advance that the state was limited in its cross-examination of the defendant to the scope of his proposed direct testimony, and by ruling that the state could cross-examine him concerning a specific act of sexual misconduct. We disagree.

This claim arose in the following procedural context. The defendant was employed at the Coliseum garage. Following his arrest, he was interviewed by the New Haven police. He denied involvement in the assault on the victim, which took place on Monday, August 13, 1984. He also stated to the police, however, that on the following evening, Tuesday, August 14, 1984, he had taken a woman to level A of the garage where he engaged in consensual sexual relations with her.

By his motion in limine, the defendant sought a ruling from the court that would prohibit the state from cross-examining him about this event if he testified on his own behalf. Defense counsel represented that it was her intention, on direct examination of the defendant, not to ask any questions about Tuesday, August 14, the night following the alleged attack, about girlfriends, or about frequenting the garage for sexual purposes. Therefore, the defendant argues, the court should have ruled that the state was prohibited from cross-examining him about his presence at the garage the following evening with another woman. The state indicated that, if the defendant testified, it intended to cross-examine him about his presence at the Coliseum on Tuesday evening and who was with him. It did not, however, intend to ask him about his sexual conduct with the woman. The basis of the defendant's argument was twofold: (1) the state's cross-examination would exceed the scope of the defendant's proposed direct examination; and (2) even with the state's intended limitation, the evidence would implicitly bring into play the defendant's sexual conduct with another woman, in violation of the Supreme Court's decision in State v. Rothenberg, 195 Conn. 253, 262, 487 A.2d 545 (1985), and the prejudicial effect of the evidence would outweigh its probative value. The court denied the defendant's motion. The defendant promptly stated that, in view of the court's ruling, he would not testify, and invited the court to reconsider its ruling. The court declined to do so.

We first consider the defendant's claim that the court's ruling violated the rule confining cross-examination of a witness to the scope of the direct examination. We conclude that the court acted within its discretion in rejecting the claim of the defendant because the procedure employed by the defendant, namely, a motion in limine, was an inappropriate vehicle for adequately presenting to us the question of the propriety of the trial court's ruling.

The procedure employed by the defendant was obviously based on the procedures approved by the Supreme Court in cases such as State v. Binet, 192 Conn. 618, 473 A.2d 1200 (1984), State v. Iasevoli, 188 Conn. 325, 449 A.2d 996 (1982), and State v. Nardini, 187 Conn. 513, 447 A.2d 396 (1982), and by this court in State v. Sergi, 7 Conn.App. 445, 509 A.2d 56, cert. denied, 201 Conn. 806, 515 A.2d 380 (1986), State v. Garcia, 7 Conn.App. 367, 509 A.2d 31 (1986), and State v. Murrell, 7 Conn.App. 75, 507 A.2d 1033 (1986). In those cases, the defendants were permitted to seek a ruling, prior to their direct examination, on whether certain of their prior convictions would be admissible on cross-examination to impeach their credibility. Those cases did not, however, involve the quite different question of whether certain proffered cross-examination would be within the scope of the defendant's proffered direct examination. Nor are we aware of any cases approving use of the motion in limine as a vehicle to challenge potential cross-examination as outside the scope of what is only inchoate direct examination. Thus, the defendant's reliance on the Binet, Iasevoli and Nardini line of cases was unjustified. ¹

Our Supreme Court subsequently, and prospectively, disapproved of that procedure, and now requires "that to 'raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify.' Luce v. United States, [469 U.S. 38, 43, 105 S.Ct. 460, 464, 83 L.Ed.2d 443 (1984) ]." State v. Harrell, 199 Conn. 255, 265-66, 506 A.2d 1041 (1986). ² The reasons for this new rule requiring the defendant to testify in order to challenge impeachment evidence are to supply the reviewing court with a complete record, thus permitting it to gauge the possible impact of the impeachment evidence on the verdict, and to apply a factual context within which a reviewing court can gauge the propriety of the trial court's action in performing its subtle, balancing-type evidentiary rulings. Id. at 266, 506 A.2d 1041.

The same reasoning applies with even more force to the defendant's attempt, in advance of any direct examination, to bar cross-examination beyond the scope of the intended direct examination. Although cross-examination is restricted to the matters covered in direct examination, except insofar as the cross-examination relates to credibility; State v. Sharpe, 195 Conn. 651, 657, 491 A.2d 345 (1985); such restriction rests in the trial court's sound discretion. Id. A question on cross-examination is within the scope of the direct examination "if it is designed to 'rebut, impeach, modify, or explain any of the defendant's direct testimony.' " Id., quoting State v. Zdanis, 173 Conn. 189, 196, 377 A.2d 275 (1977). In determining whether cross-examination is within the scope of the direct examination, "the trial court is allowed a liberal discretion...." Akers v. Singer, 158 Conn. 29, 36, 255 A.2d 858 (1969).

Given this discretion laden and fact bound standard, it is clear that a proper appellate determination of whether a trial court has erred in permitting a particular question or line of inquiry to be attacked on cross-examination can only be made upon " 'a complete record detailing the nature of [the defendant's] testimony, [and] the scope of the [direct] examination....' " State v. Harrell, supra, at 266, 506 A.2d 1041, quoting Luce v. United States, supra, 469 U.S. at 41, 105 S.Ct. at 463. Without such a record, we are "particularly 'handicapped in any effort to rule on subtle evidentiary questions outside a factual context.' " Id. In order to accomplish this task, we " 'must know the precise nature of the defendant's testimony which is unknowable when ... the defendant does not testify.' " Id.

The assertion in this case by defense counsel that she did not intend to ask the defendant about the Tuesday night incident, about his girlfriends or about frequenting the garage for sexual purposes, cannot supplant the appellate requirement of an adequate trial record. The fact that she may not have intended to ask him such questions does not foreclose the possibility that, in answering other questions which she did ask, the defendant may have responded in such a way as to permit the trial court to exercise its broad discretion and permit the state to inquire about the Tuesday night occurrence and about his presence there with a woman. We have no way of knowing, nor could the trial court, what the scope of the defendant's direct examination would have been, and...