State v. Taveras

• Decision Date: 04 August 1998
• Docket Number: No. 16729,16729
• Citation: 49 Conn.App. 639,716 A.2d 120
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Francisco TAVERAS.

Page 120

716 A.2d 120

49 Conn.App. 639

STATE of Connecticut v. Francisco TAVERAS.

No. 16729.

Appellate Court of Connecticut.

Argued May 27, 1998.

Decided Aug. 4, 1998.

David M. Shein, New Haven, with whom, on the brief, was Frank Edward Babycos, Bridgeport, for appellant (defendant).

Eileen McCarthy Geel, Deputy Assistant State's attorney, with whom, on the brief, were Jonathan C. Benedict, State's Attorney, and Margaret E. Kelley, Assistant State's Attorney, for appellee (State).

Before EDWARD Y. O'CONNELL, C.J., and FOTI and DUPONT, JJ.

DUPONT, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of assault in the third degree in violation of General Statutes § 53a-61 (a)(1). ¹ The defendant claims that the trial court improperly (1) denied him a fair trial because the investigating officer allegedly gave his solicited opinion that the defendant was guilty, the state's attorney reiterated the officer's opinion and the trial court refused to give the jury a curative instruction, (2) excluded from evidence the jacket that the defendant wore at the time of the incident and (3) denied the defendant's request for a mistrial based on the statements made by a state's witness, regarding prior misconduct of the defendant, in violation of the court's order precluding such comments. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim, Gloria Taveras, is the defendant's former wife and the mother of their three children. The victim lived with her mother and the three children in the former marital home. By the terms of the Taveras' divorce agreement, the victim had physical custody of the children, and the defendant had unsupervised visitation every other week from 9 a.m. on Saturday to 6 p.m. on Sunday. By mutual agreement, however, the defendant often began his visitation with the children on Friday evenings.

On Friday, September 15, 1995, the defendant and the victim spoke by telephone and argued over the defendant's visit with the children that weekend. The defendant did not come to pick up his children on Friday, September 15, or on Saturday, September 16. On Sunday, September 17, shortly after the victim arrived home from work, the defendant arrived at her house. After the defendant spoke with one of his children, the victim came to the door and asked the defendant why he was there. An argument ensued between the defendant and the victim. When the victim would not allow the defendant to enter her home, he grabbed her by the hair and attempted to pull her outside. The defendant grabbed her by the arm, leaving scratches and bruises on her upper left arm. At one point during the altercation, the victim tore the defendant's jacket.

At the time of the altercation, the victim's mother was at home in her basement apartment. The victim's sister, Mildred Bauza, was visiting her mother, and Milton Quiles, an acquaintance of the family, was also in the basement apartment repairing the plumbing. Upon hearing the commotion at the front door, Bauza and Quiles came upstairs. Both Bauza and Quiles testified that when they arrived upstairs the defendant was trying to pull the victim out of the house while the victim resisted. Quiles intervened and was able to separate the victim and the defendant. The defendant then went to his car and telephoned the police to report that he had been attacked by the victim. Bauza also called the police to report the incident.

Officer Richard Golas of the Bridgeport police department arrived within ten to fifteen minutes. Golas testified that when he arrived at the victim's house he first spoke with the defendant who was outside of the house. Golas further testified that the defendant told him that he and his former wife had argued over his custody rights and that she had punched him and ripped his jacket. Golas observed that the defendant's jacket was ripped, but could not testify as to the extent of the damage. Golas also testified that he could not observe any injuries on the defendant.

Golas next went into the house to speak to the victim and the two witnesses. Golas observed ambulance personnel tending to the victim, who was six months pregnant and experiencing labor pains. Golas also observed that the victim looked upset, had scratches and bruises, and her hair was disheveled. Golas then interviewed Bauza and Quiles, the two witnesses to the incident, and interviewed the defendant again regarding what had transpired. After speaking with all of the parties present, and observing the physical conditions of both the defendant and the victim, Golas surmised that the defendant became angry with the victim and "tried to take her out, pulling her physically out of her house," and concluded that there was probable cause to arrest the defendant for third degree assault.

I

The defendant first claims that his constitutional right to due process, as guaranteed by the fifth and fourteenth amendments to the United States constitution, and article first, § 8, of the Connecticut constitution, was violated by the prejudicial testimony of the investigating officer, Golas. The defendant argues that Golas was permitted to give his expert legal opinion on the ultimate issue of the defendant's guilt, and that Golas' testimony was improperly emphasized by the prosecution. He further claims that the trial court should have given a curative instruction to the jury.

A

For the first time on appeal, the defendant objects to a portion of Golas' testimony in which the officer purportedly gave his opinion on the ultimate issue of the defendant's guilt or innocence. The portion of Golas' testimony to which the defendant now objects is as follows:

"Q. Okay, Now this is your normal course of your investigation when you arrive at a domestic call? Do you interview the parties?

"A. Sure, yes.

"Q. And, then what do you do after you interview the parties? What do you do with the information you've received?

"A. Well, you weigh the information. I saw the injury on the victim ... and I didn't see any injury on the defendant, so being a domestic violence call in the state of Connecticut, if there's any kind of an injury or an assault, you have to determine if there's going to be an arrest made. ²

"Q. Okay.

"A. Weighing my options, I did decide to arrest the defendant for assault third, domestic violence.

"Q. Now, aside from this particular case, is it your procedure when you go to a call like this, that sometimes you may arrest more than one party?

"A. Yes, depending on the circumstances, you might arrest both parties, you might arrest whoever's at fault, whoever's in the wrong.

"Q. Okay. And you made a determination that day-- "A. Correct, that the defendant was at fault, from weighing my information I was given, yes."

Because the defendant failed to object to Golas' testimony at trial, we must determine whether review of this issue is warranted under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). In Golding, our Supreme Court held that "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of a constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." Id., at 239-40, 567 A.2d 823. " 'The first two questions relate to whether a defendant's claim is reviewable, and the last two relate to the substance of the actual review.' State v. Newton, 8 Conn.App. 528, 531, 513 A.2d 1261 (1986)." State v. Shinn, 47 Conn.App. 401, 409, 704 A.2d 816 (1997), cert. denied, 244 Conn. 913, 713 A.2d 832, 244 Conn. 914, 713 A.2d 833 (1998).

"The improper admission of opinion testimony that answers a question that a jury should have resolved for itself is not of constitutional significance and is a type of evidentiary error. State v. Vilalastra, [207 Conn. 35, 47, 540 A.2d 42 (1988) ]." State v. Wright, 47 Conn.App. 559, 563, 707 A.2d 295 (1998), cert. denied, 244 Conn. 917, 714 A.2d 8 (1998). Because the defendant's claim regarding Golas' testimony is not of constitutional magnitude, we cannot afford it Golding review.

We next consider whether this issue is entitled to plain error review. ³ "Generally, where a claimed error of a nonconstitutional nature is not brought to the attention of the trial court, appellate review of that claim is available only if it constitutes plain error.... To prevail under the plain error doctrine, the defendant must demonstrate that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.... This doctrine is not implicated and review of the claimed error is not undertaken unless the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.... Furthermore, even if the error is so apparent and review is afforded, the defendant cannot prevail on the basis of an error that lacks constitutional dimension unless he demonstrates that it likely affected the result of the trial." (Internal quotation marks omitted.) State v. Connelly, 46 Conn.App. 486, 511, 700 A.2d 694 (1997); see also Kolich v. Shugrue, 198 Conn. 322, 326, 502 A.2d 918 (1986).

Plain error review is not warranted here. In this case, Golas testified not as an expert witness, but, instead, as a fact witness with firsthand knowledge of the incident in question. Furthermore, Golas did not in fact testify as to the ultimate issue of the defendant's guilt or innocence. Instead, he testified as to his personal observations at the scene, his method of investigation,...