State v. Stavrakis

• Decision Date: 05 April 2005
• Docket Number: (AC 24110).
• Citation: 88 Conn. App. 371,869 A.2d 686
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. MICHAEL STAVRAKIS.

88 Conn. App. 371

869 A.2d 686

STATE OF CONNECTICUT v. MICHAEL STAVRAKIS.

(AC 24110).

Appellate Court of Connecticut.

Argued December 1, 2004.

Officially released April 5, 2005.

Schaller, DiPentima and Peters, Js.

Nicholas P. Cardwell, for the appellant (defendant).

Ronald G. Weller, assistant state's attorney, with whom, on the brief, were Walter D. Flanagan, state's attorney, and Anthony Bochicchio, assistant state's attorney, for the appellee (state).

Opinion

PETERS, J.

In this criminal appeal, the defendant challenges his conviction of criminal trespass in the first degree in violation of General Statutes § 53a-107 and assault in the second degree in violation of General Statutes § 53a-60.¹ The principal issue is the trial court's admission into evidence of a felony narcotics conviction and a larceny incident, both of which had occurred more than ten years prior to trial in this case. The defendant also raises other claims of instructional impropriety, evidentiary impropriety, an inconsistent verdict and prosecutorial misconduct. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the morning of April 7, 2002, the defendant, Michael Stavrakis, and his father became involved in an altercation with the victim, Stephen DeLuca. The altercation arose out of the father's disapproval of a relationship between the victim and Christina Stavrakis, the defendant's sister. During the course of the struggle, after the victim had pushed the defendant's father through a glass panel, the defendant struck the victim over the head with a stick. Additional facts will be set forth as necessary.

I EVIDENTIARY IMPROPRIETY

The defendant raises four claims of evidentiary impropriety. The standard of review for evidentiary rulings is well established. We will make every presumption in favor of the correctness of the trial court's evidentiary ruling and will disturb this ruling only where an abuse of discretion is manifest. See State v. Whitford, 260 Conn. 610, 636, 799 A.2d 1034 (2002). "[T]he burden to prove the harmfulness of an improper evidentiary ruling is borne by the defendant . . . [who] must show that it is more probable than not that the erroneous action of the court affected the result." (Internal quotation marks omitted.) State v. Collins, 68 Conn. App. 828, 831, 793 A.2d 1160, cert. denied, 260 Conn. 941, 835 A.2d 58 (2002).

In his first two claims, the defendant contends that the court improperly admitted into evidence an act of larceny that he had committed in 1988 and his conviction in 1989 for possession of narcotics with intent to sell. He argues that the court should have precluded reference to both acts of misconduct because of their remoteness in time to the present incident. In his other evidentiary claims, he maintains that the court improperly precluded him from presenting evidence of prior violence on the part of the victim and of hospital records describing the extent of the victim's physical injury. We agree with the state that none of the challenged rulings entitles the defendant to a new trial.

A

The defendant claims that the court improperly admitted into evidence an act of larceny that he had committed in 1988 and his conviction in 1989 for possession of narcotics with intent to sell. We conclude that the court properly admitted the act of larceny into evidence. Although we agree that evidence of the defendant's narcotics conviction should not have been admitted, we conclude that this evidentiary impropriety was harmless error.

"Three factors have usually been identified as of primary importance in considering whether a former criminal conviction is to be admitted: (1) the extent of the prejudice likely to arise; (2) the significance of the commission of the particular crime in indicating untruthfulness; and (3) its remoteness in time." State v. Nardini, 187 Conn. 513, 522, 447 A.2d 396 (1982); see also Conn. Code Evid. § 6-7. Credibility also may be challenged by "acts of misconduct other than a felony conviction if those acts bear a special significance upon the issue of veracity . . . ." (Internal quotation marks omitted.) State v. Martin, 201 Conn. 74, 85-86, 513 A.2d 116 (1986).

In Nardini, our Supreme Court adopted the ten year rule embodied in rule 609 (b) of the Federal Rules of Evidence² as "a rough bench mark in deciding whether trial court discretion has been abused . . . ." State v. Nardini, supra, 187 Conn. 526. A prior conviction that is more than ten years old may, therefore, be admissible under some circumstances. See, e.g., id.; see also State v. Cooper, 227 Conn. 417, 436, 630 A.2d 1043 (1993) (finding no abuse of discretion in admission of twenty-six year old conviction); State v. Prutting, 40 Conn. App. 151, 162, 669 A.2d 1228 (finding no abuse of discretion in admission of two eleven year old convictions), cert. denied, 236 Conn. 922, 674 A.2d 1328 (1996).

The defendant claims that the court improperly admitted into evidence his conviction for a felony that occurred thirteen years prior to the assault at issue in this case. The state concedes that this conviction, which involved the possession of narcotics, was not especially probative of the defendant's truthfulness. Relying primarily on State v. Askew, 245 Conn. 351, 716 A.2d 36 (1998), the state argues, nonetheless, that the court did not abuse its discretion when it admitted evidence of the defendant's felony conviction. We are not persuaded.

In State v. Askew, supra, 245 Conn. 364, 366-71, our Supreme Court held that it was not an abuse of discretion where the trial court admitted evidence of a criminal defendant's conviction for felony larceny that exceeded the ten year benchmark by a mere seven months. This case differs from Askew in that, here, the defendant's conviction exceeded the ten year benchmark by three years.

The state argues that such differences are outweighed by an important similarity between the cases in that, here, as in Askew, the outcome hinged on the relative credibility of the victim and the defendant. See id., 369-70. Our Supreme Court has observed that, in such cases, "there [is] greater, not less, compelling reason for exploring all avenues which would shed light on which of the two witnesses [is] to be believed." (Internal quotation marks omitted.) Id., 369. In this regard, the court in Askew found significant the fact that the defendant had already been impeached with a felony conviction by the state before defense counsel attempted to impeach the victim with a prior felony conviction of his own. Id., 371. For the most part, the present case is similar, even though the order of impeachment is reversed.

Although Askew is instructive, the state overemphasizes the importance of "relative credibility" as a controlling factor in the court's analysis. In Askew, our Supreme Court evaluated "relative credibility" as one factor among many. Id., 370-71. In this case, however, the state would have us disregard all the other factors, such as remoteness in time and truthfulness, to which the court in Askew attached considerable weight. See id. This we are not inclined to do. Whatever effect on credibility the defendant's felony drug conviction might once have had must have dissipated by the start of trial in this case. Admission of this evidence cannot, therefore, be justified.

An evidentiary error does not automatically require a new trial. The defendant also must show that the improper admission of the felony conviction was so prejudicial that he was deprived of a fair trial. State v. Ciccio, 77 Conn. App. 368, 388, 823 A.2d 1233, cert. denied, 265 Conn. 905, 831 A.2d 251 (2003). In this case, the potential for prejudice arising out of the admission of the felony conviction was slight. Because the jury already was aware of the larceny incident for purposes of impeaching the defendant, "it is . . . highly improbable that any additional prejudice arising from knowledge by the jury of [the felony] conviction affected the outcome." State v. Nardini, supra, 187 Conn. 530. This conclusion is buttressed by the fact that the offenses for which the defendant was charged in this case differed substantively from those offenses with which he was impeached, and by the fact that the jury found him not guilty of two of the charges brought against him. See footnote 1.

The defendant also argues that the court improperly admitted evidence of his involvement in a larceny incident that occurred fourteen years prior to trial. Remoteness, however, is only one of three primary factors for us to consider. We also must evaluate the extent to which the evidence provides an indication of the defendant's veracity, as well as the potential for prejudice arising from its admission.

In State v. Irving, 27 Conn. App. 279, 290, 606 A.2d 17, cert. denied, 222 Conn. 907, 608 A.2d 694 (1992), this court observed that an act of larceny is particularly probative of a defendant's truthfulness. On that ground, the evidence in this case was clearly admissible. See id.

In addition, as our Supreme Court observed in Nardini with respect to the possibility of prejudice, a dissimilarity between the prior conviction and the present charge "lessens the likelihood that the jury drew any inference of propensity." State v. Nardini, supra, 187 Conn. 529. Where, as here, the relative credibility of the defendant and the alleged victim is a central issue, and where, as here, both the alleged victim and the defendant have been impeached with prior convictions,³ the prejudicial effect of such evidence is diminished. See id. As was noted previously, the fact that the jury found the defendant not guilty on two counts in this case provides some indication that the admission of the defendant's larceny conviction did not unduly influence the jury in its assessment of the evidence. See id.

We conclude, therefore, that the defendant cannot prevail on this claim. The court did not abuse its...