State v. Sullivan

• Decision Date: 26 May 1987
• Docket Number: No. 3013,3013
• Citation: 525 A.2d 1353,11 Conn.App. 80
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Samuel SULLIVAN.

Page 1353

525 A.2d 1353

11 Conn.App. 80

STATE of Connecticut v. Samuel SULLIVAN.

No. 3013.

Appellate Court of Connecticut.

Argued January 8, 1987.

Decided May 26, 1987.

Martin Zeldis, Asst. Public Defender, with whom, on the brief, was Joette Katz, Public Defender, for the appellant (defendant).

Susan C. Marks, Deputy Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty., and Jane Brandfon Emons, Asst. State's Atty., for the appellee (State).

Before BORDEN, DALY and BIELUCH, JJ.

BORDEN, Judge.

After a jury trial, the defendant was convicted of risk of injury to a minor in violation of General Statutes § 53-21. ¹ On appeal from the judgment of conviction, he claims that the trial court erred (1) in violating its sequestration order by allowing a mother, who was to be a witness, to be present during the testimony of her minor daughter, (2) in permitting the state to amend its information to charge an additional or different offense, (3) in enlarging the offense charged in the information by its jury instructions, (4) in erroneously charging on circumstantial evidence, and (5) in denying the defendant's motion to poll the jury. We find no reversible error.

The jury could reasonably have found the following facts. In July, 1982, Shirley McGill ² was in the process of moving her family into a second floor apartment in New Haven. She was accompanied by her nine year old daughter, Kim, and her friend, Beverly Raney. At around 2:30 p.m., Kim looked out the kitchen window and saw the defendant, a young man ³ and the victim, a four year old boy. According to her testimony, the defendant was lying on his back, with his hands behind his head. The victim had a small stick and was moving it in front of the defendant's eyes. The defendant then pulled down his pants to his knees, and the victim touched the defendant's exposed penis with the stick and moved it back and forth. Kim told the victim and the defendant to get out of the alley and then called her mother, who was working in another room. McGill testified that she came into the kitchen, looked out the window, and saw the defendant lying on the ground with the victim sitting between his legs. She testified that the defendant was holding the victim's hand on the defendant's erect penis. McGill yelled at the victim and the defendant to get out and called her friend, Raney, to look out the window. Raney testified that she observed the defendant with one hand behind his head and one hand on top of the victim's hand which was stroking his erect penis.

The victim's mother was at work during this incident and, upon her return, McGill told her what had happened. She confronted the defendant and asked him what he did to her son. The defendant responded: "I am mentally retarded. They can't do anything to me." He laughed at her and also said, "If that f'n lady wasn't looking out of the window...." Thereafter, the police were contacted and the defendant was arrested.

The defendant did not testify at trial nor did he present any witnesses or evidence.

I

The defendant first claims that the trial court erred when it violated its witness sequestration order by allowing McGill to be present during the testimony of her daughter, since both were to be witnesses at trial. Prior to trial, the defendant moved to sequester all potential witnesses during any hearings and at trial. The state made no objection to the motion and it was granted by the court. Thereafter, the state indicated that it intended to call McGill and her daughter at trial, and that it wanted the mother present during her daughter's testimony. The state also expressed its preference in having the daughter testify first. The defendant objected on the ground that the mother would hear her daughter's testimony and might fashion her own testimony to correspond more closely to it. ⁴ The court nonetheless amended the sequestration order to permit the daughter to testify first, in the presence of her mother. The defendant claims that the trial court's amendment to the sequestration order constitutes reversible error because it led to the tainting of McGill's testimony. More specifically, the defendant claims that McGill was given the opportunity to reshape her testimony to conform more closely with her daughter's. We disagree.

The state concedes, as it must in light of State v. Stovall, 199 Conn. 62, 505 A.2d 708 (1986), and Practice Book § 876, that the trial court erred in violating the sequestration order and allowing McGill to be present during the testimony of her daughter. Practice Book § 876 provides in relevant part that "[t]he judicial authority upon motion ... of the defendant shall cause any witness to be sequestered during the hearing on any issue or motion or during any part of the trial in which he is not testifying." (Emphasis added.) See also General Statutes § 54-85a. ⁵ In State v. Stovall, supra, our Supreme Court, after taking note of Practice Book § 876 and General Statutes § 54-85a, held that a trial court commits error when it violates a sequestration order. In that case, the trial court refused to excuse a witness in response to the defendant's motion, during a colloquy between the defense counsel and the court over an alleged inconsistency in the testimony of the witness. While the court found error in this ruling, it could not conclude that the failure to sequester the witness was "probably harmful to the defendant." Id., 68, 505 A.2d 708. We hold, also, that the failure of the trial court in this case to observe the sequestration order was error. Our finding of error does not end the discussion, however. As the court in State v. Stovall, supra, 69, 505 A.2d 708, pointed out, "[t]he burden is on the defendant to show prejudice in the trial court's failure to observe its sequestration order...." Id., 69, 505 A.2d 708. This standard applies when nonconstitutional error is involved. State v. Silveira, 198 Conn. 454, 479, 503 A.2d 599 (1986). The defendant has failed to carry this burden.

"The purpose of a sequestration order is to prevent a witness from fashioning his testimony to correspond to the statements of others in the courtroom...." State v. Stovall, supra, 67-68, 505 A.2d 708. This purpose was not thwarted under the facts of this case. McGill testified at a pretrial motion to dismiss, untainted by exposure to her daughter's testimony. Thus, the defendant had an opportunity to hear her version of events uncolored by the subsequent testimony of her daughter. Any fashioning of her testimony at trial to correspond to that of her daughter at trial could have been exposed by the defendant on cross-examination. A review of McGill's cross-examination fails to disclose any attempt by the defendant either to expose inconsistencies between her pretrial testimony and her testimony at trial, or to demonstrate consistencies between her daughter's testimony and her testimony attributable to the fact that she had already heard her daughter's testimony. This is not surprising since a review of McGill's pretrial and trial testimony, and of her daughter's trial testimony, fails to disclose any such material inconsistencies or consistencies. The inconsistencies between McGill's pretrial testimony and her testimony at trial were "marginal in the extreme" and with "little or no impeachment value"; State v. Stovall, supra, 69, 505 A.2d 708; and the degree of consistency between her daughter's testimony and her testimony at trial was wholly explainable by reference to factors other than the order of their testimony. ⁶ We therefore hold that any error flowing from the trial court's failure to observe the sequestration order was harmless.

We point out further that the defendant's failure to impeach McGill with her pretrial testimony undermines the defendant's claim that prejudice flowed from the violation of the sequestration order. Trial counsel was, of course, aware of the potential taint that could flow from McGill's exposure to her daughter's testimony, having argued it in opposition to the amendment of the sequestration order. Additionally, the trial court, in response to trial counsel's concerns, pointed out that defense counsel could expose any inconsistencies between the pretrial testimony and trial testimony on cross-examination. The failure of trial counsel to attempt, on cross-examination of McGill, to show any harm that may have flowed from the violation of the sequestration order is strong evidence that he did not deem it to be prejudicial. Defense counsel's silence at trial is a powerful signal that he did not consider the court's action to constitute the harmful error which he now presses on appeal. State v. Huff, 10 Conn.App. 330, 338, 523 A.2d 906 (1987). "Under the circumstances, it appears that trial counsel chose not to pursue the question[s] because he concluded, as have we, that any purported inconsistency between the witness' testimony on the motion and her testimony at trial was marginal in the extreme." State v. Stovall, supra, 68-69, 505 A.2d 708.

II

The defendant next claims that the trial court erred by allowing the state to amend its information, after trial had begun, to charge an additional or different offense. We disagree.

The defendant was charged by a long form information with risk of injury to a minor in violation of General Statutes § 53-21. ⁷ The original information alleged that the defendant "did unlawfully or wilfully cause or permit the morals of a four year old child ... to be impaired, inter alia by dropping his pants, exposing his penis and compelling and encouraging the young child to touch his penis, all in violation of Section 53-21 of the Connecticut General Statutes." After voir dire had begun, the state sought permission to amend the risk of injury count to read, in part: "[The defendant] did unlawfully or wilfully cause or permit the morals of a four year old child ... to be impaired, or did an act likely to impair...