State v. Turcio

Decision Date26 June 1979
Citation422 A.2d 749,178 Conn. 116
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Joseph TURCIO.

Hubert J. Santos, Hartford, with whom, on the brief, was A. Susan Peck, Hartford, for appellant (defendant).

Ernest J. Diette, Jr., Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty. and John T. Redway, Asst. State's Atty., for appellee (State).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, PETERS and PARSKEY, JJ.

LOISELLE, Associate Justice.

The defendant was found guilty by a jury of twelve of causing the death of Frank Massaro, while committing or attempting to commit a robbery, in violation of General Statutes § 53a-54c and also guilty of the crime of assault in the first degree upon Jean Massaro, in violation of General Statutes § 53a-59(a)(1) and of robbery in the first degree in violation of General Statutes § 53a-134(a)(1). From the judgments rendered on the verdicts, the defendant has appealed.

On March 5, 1975, at about 8 p. m., the owners of Frank's Market on Foxon Road in East Haven, Frank and Jean Massaro, were closing their store. Mrs. Massaro went to their car first, carrying a cigar box containing money. After she and her husband got into their car, the defendant jumped in behind them waving a gun. Mrs. Massaro turned, saw the defendant's face, opened the car door, got out and ran screaming around the car. She was then shot in the back and fell to the ground. She heard another shot and saw her husband fall. The defendant then picked up the cigar box and ran. Frank Massaro died as a result of the shooting.

Both in his brief and at oral argument, the defendant conceded that the state had a "strong" case against him and that the real issue was whether he was so intoxicated from the use of drugs as to be incapable of forming the requisite intent required to be convicted of the crimes charged. To resolve this issue, both the state and the defendant introduced evidence as to the defendant's activities on the day of the shootings and of his condition prior thereto, including the early morning hours of March 3, 1975, the details of which are discussed more fully in response to the defendant's claims of error in the charge and in certain evidentiary rulings.

The defendant has raised and briefed numerous claims of error. In this case, the maximum sentence was life imprisonment. It has been the policy of this court that in such situations, although the research and decision process is not affected, the opinion is more detailed than is otherwise warranted.

I

The defendant first contends that the court erred in charging the jury that it should weigh the testimony of a certain class of witnesses "with particular care." In presenting his defense, the defendant called a number of witnesses to testify in support of his claim that he was under the influence of drugs when he committed the crimes in question. Among those witnesses were the defendant's parents, Joseph Turcio, Sr., and Jeanette Turcio, his uncle Michael Liso, his friends David Leary and Robert Torres, and his former attorney, Fred D. Dahlmeyer. At the prosecution's request the trial court charged the jury as follows: "In weighing the credibility of a witness who is a member of defendant's family, or a friend, or an associate, or who bears a professional relationship to the defendant, you should scrutinize his or her testimony with particular care." Defense counsel excepted to this charge on the ground that there was a lack of balance. 1

The issue as presented on appeal is whether it is permissible for the court to single out a particular class of witnesses and instruct the jury to scrutinize their testimony more carefully because they have a particular relationship with the defendant. In determining the credibility of a witness, the jury may take into account the fact that he stands in some legal or contractual relationship to a party which might affect his testimony, such as where the witness is an attorney, a relative, or a friend. As a general rule, "(a) court may not by an instruction deny to the jury the right to consider the interest of a party in determining the credit to which his testimony is entitled, but in instructing the jury as to the credibility of witnesses, may authorize them to take into consideration the interest of the witnesses, if any, in the result of the lawsuit, and in a proper case should caution the jury as to the care to be exercised in weighing the testimony of interested persons." 75 Am.Jur.2d, Trials, § 861, p. 743.

In an analogous situation, that of instructions concerning the alibi witness, this court has held that an instruction as to the interest of witnesses is correct and necessary: "On numerous occasions this court has stated that the trial court in a criminal case may, in its discretion, make fair comment on the evidence and particularly on the credibility of witnesses. See State v. Tropiano, 158 Conn. 412, 428, 262 A.2d 147; State v. LaFountain, 140 Conn. 613, 620, 103 A.2d 138; State v. Pecciulis, 84 Conn. 152, 158, 79 A. 75. In addition, we have also declared that an instruction on the credibility of alibi witnesses similar to that challenged by this assignment of error is both proper and fair when weighed in the light of the other paragraphs of the charge. State v. Groos, 110 Conn. 403, 410, 148 A. 350; State v. Cianflone, 98 Conn. 454, 466, 120 A. 347 .... It is well recognized that the credibility of alibi witnesses is a subject as to which fair comment by the court to the jury is allowed. See Sullivan v. Scafati, 428 F.2d 1023 (1st Cir.), cert. denied, 400 U.S. 1001, 91 S.Ct. 478, 27 L.Ed.2d 452; Surridge v. State, 239 Ark. 581, 393 S.W.2d 246; Commonwealth v. Sullivan, 354 Mass. 598, 239 N.E.2d 5, cert. denied, 393 U.S. 1056, 89 S.Ct. 697, 21 L.Ed.2d 698; State v. Griffin, 336 S.W.2d 364 (Mo.); Commonwealth v. Gates, 392 Pa. 557, 141 A.2d 219; Rogers v. State, 2 Tenn.Cr.App. 491, 455 S.W.2d 182; Bolin v. State, 219 Tenn. 4, 405 S.W.2d 768." State v. Cari, 163 Conn. 174, 182, 303 A.2d 7, 10-11 (1972). While the defendant here did not offer an alibi in the sense that he claimed to be somewhere else at the time of the shooting, the testimony offered by the witnesses in question went directly to his only defense, i. e., intoxication due to drug ingestion, and is, therefore, quite similar to the alibi defense in Cari, supra. See also State v. Bennett, 172 Conn. 324, 329-30, 374 A.2d 247 (1977); State v. Jones, 167 Conn. 228, 238, 355 A.2d 95 (1974).

The defendant further contends that the trial court's instructions 2 as to prior inconsistent statements and witnesses with prior felony convictions and ascertainable interests compounded the problem, because taken together with the "particular care" charge they suggested that certain defense witnesses should not be believed. 3 The court was correct in its instructions on the credibility to be accorded witnesses with prior felony convictions, ascertainable interests or who had given prior inconsistent statements. It was an unfortunate situation, but one for which the trial court had no responsibility to compensate, that only those witnesses who had testified for the defendant fell into these categories. The rule is well settled in this state that a charge does not rise or fall on individual, isolated sentences, but must be looked at as a whole. This court laid down the test in State v. Ralls, 167 Conn. 408, 422, 356 A.2d 147, 157 (1974): "The charge to the jury, however, must be read as a whole, and an attempt to assert reversible error by culling a single phrase or inaccurate statement must fail unless it is reasonably probable that the jury were misled. State v. Tropiano, 158 Conn. 412, 433, 262 A.2d 147, cert. denied, 398 U.S. 949, 90 S.Ct. 1866, 26 L.Ed.2d 288; Penna v. Esposito, 154 Conn. 212, 215, 224 A.2d 536; Allard v. Hartford, 151 Conn. 284, 292, 197 A.2d 69." The charge in the instant case was well balanced. Prior to giving the complained of charge on "particular care," the court gave the following instruction on how to determine the credibility of all the witnesses: "In weighing the testimony of a witness, you should consider his appearance on the stand; you should try to size him up; you should have in mind all those little circumstances which point to his truthfulness or untruthfulness; you should consider any possible bias or prejudice he may have, whether for or against the state or the accused; his interest or lack of interest, of whatever sort, in the outcome of the trial ... you should test the evidence he gives you by your own knowledge of human nature, and of the motives which influence and control human beings." Moreover, the charge contained the customary reference to the presumption of innocence and the burden on the state to prove all the elements of the offense beyond a reasonable doubt before they could convict. Taken as a totality, it is obvious that the charge accurately and adequately presented the law to the jury. State v. Roy, 173 Conn. 35, 40, 376 A.2d 391 (1977); State v. Crawford, 172 Conn. 65, 69, 372 A.2d 154 (1976); State v. Mullings, 166 Conn. 268, 275, 348 A.2d 645 (1974). In light of the fact that the jury had already been instructed that in weighing the credibility of all witnesses they could consider the ordinary factors that might affect recollection or produce bias, the additional instruction was inappropriate and should be discouraged. When viewed as a whole, however, the charge did nothing more than state to the jury what good common sense dictates; namely, that they may weigh on the credibility scale the potential for bias where a witness has some relationship with a party to an action.

II

The defendant's second assignment of error is that the trial court erred in allowing the defendant's father to be cross-examined as to other crimes and bad acts committed by the defendant. On direct examination, the...

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