State v. Ubaldi

• Decision Date: 05 July 1983
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Charles F. UBALDI.

Page 1001

462 A.2d 1001

190 Conn. 559

STATE of Connecticut v. Charles F. UBALDI.

Supreme Court of Connecticut.

Argued April 5, 1983.

Decided July 5, 1983.

Timothy C. Moynahan, Waterbury, with whom, on the brief, was Kevan J. Acton, New Haven, for appellant (defendant).

John A. Connelly, Asst. State's Atty., with whom were Catherine F. Capuano, Sp. Asst. State's Atty., and, on the brief, Francis M. McDonald, State's Atty., Bradford J. Ward, Asst. State's Atty., and Todd M. DeMatteo, Legal Asst., for appellee (state).

Before SPEZIALE, C.J., and PETERS, HEALEY, SHEA and GRILLO, JJ.

SHEA, Associate Justice.

The defendant has appealed from his conviction of five counts of larceny in the first degree, in violation of General Statutes § 53a-122, and one count of larceny in the second degree, in violation of General Statutes § 53a-123, ¹ based upon his conversion of tax monies collected on behalf of the city of Waterbury. These charges of larceny against the defendant arose from incidents which occurred during his tenure as a deputy sheriff of New Haven County. At trial the state presented the testimony of numerous witnesses, the substance of which was that the defendant collected back taxes owed the city of Waterbury, deposited the money in a bank account and issued checks on that account for his personal use. The defendant testified on his own behalf and called several witnesses, three of whom testified only to his good character.

The defendant claims a new trial on the ground that the trial court erred in failing to grant either of his two motions for a mistrial. According to the defendant, his motion for a mistrial should have been granted when: (1) during his cross-examination, the prosecutor implied by a question that the defendant had used city funds to pay a gambling debt; and (2) during closing argument, the prosecutor urged the jury to draw an unfavorable inference from the defendant's failure to call a witness whose testimony had been excluded from consideration of the jury by the trial court. We find error only in the refusal to declare a mistrial on the basis of the comments made by the prosecutor during closing argument.

I

The defendant's first claim of error involves the proper bounds of cross-examination. During its case in chief the state introduced financial records showing disbursements made from the bank account into which the defendant had deposited city funds. After the defendant had completed his direct testimony, the state on cross-examination sought to elicit evidence regarding the personal nature of the disbursements made from the account. At one point the following exchange occurred between the assistant state's attorney and the defendant: "Q. And there is a third marking here, Nick Jamele? A. Yes, sir. Q. He is your bookie, isn't he, Mr. Ubaldi?" Defense counsel objected immediately. The jury was excused. The defendant moved for a mistrial and took an exception when the trial court denied the motion. Once the jury reconvened, the trial court issued a cautionary instruction to the jury at the request of the defendant. ²

The defendant claims that the implication in the question of the prosecutor that Jamele was the defendant's bookie was an attempt to introduce inadmissible evidence of bad conduct. This reference to illegal gambling, according to the defendant, not only unfairly prejudiced him in a general sense, but also undermined his credibility, which was crucial to his theory of defense that he lacked the requisite mens rea to commit the crime charged.

The general rule in Connecticut is that a mistrial is granted only where it is apparent to the court that as a result of some occurrence during trial a party has been deprived of the opportunity for a fair trial. State v. DeMatteo, 186 Conn. 696, 703, 443 A.2d 915 (1982); State v. Gooch, 186 Conn. 17, 25, 438 A.2d 867 (1982); State v. Turcio, 178 Conn. 116, 143, 422 A.2d 749 (1979), cert. denied, 444 U.S. 1013, 100 S.Ct. 661, 62 L.Ed.2d 642 (1980); see Practice Book § 887. When a mistrial is sought on the ground that a prosecutor's improper remarks violated the defendant's constitutional right to due process of law the same standard applies. See State v. Cosgrove, 186 Conn. 476, 488-89, 442 A.2d 1320 (1982); State v. Hawthorne, 176 Conn. 367, 372, 407 A.2d 1001 (1978). The burden on the defendant is to show that the prosecutor's remarks were prejudicial in light of the entire proceeding. See State v. Cosgrove, supra, 488-89, 442 A.2d 1320; State v. Hawthorne, supra, 372, 407 A.2d 1001; State v. Kinsey, 173 Conn. 344, 348-49, 377 A.2d 1095 (1977). The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct. State v. Cosgrove, supra, 488-89, 442 A.2d 1320; citing Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 947, 71 L.Ed. 78 (1982).

Upon reviewing the defendant's first claim of error, we note that the trial court, as a result of its familiarity with the context in which the prosecutor's remark was uttered, was in a favorable position to evaluate any resultant prejudice. Therefore its determination as to the fairness of the defendant's trial must be afforded great weight. State v. McCall, 187 Conn. 73, 77, 444 A.2d 896 (1982); see State v. DeMatteo, supra, 704, 443 A.2d 915; State v. Gooch, supra, 25; State v. Piskorski, 177 Conn. 677, 720, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S.Ct. 283, 62 L.Ed.2d 194 (1979). We do not condone the assistant state's attorney's inquiry, which carried an ugly innuendo that the defendant gambled illegally with municipal funds. The impropriety of such an implication is unquestionable and its utterance without excuse. ³ The prejudice to the defendant, however, was promptly minimized by the action of the trial court. Once an objection to the question was made by the defendant, the jury was dismissed and excluded from the subsequent discussion of the grounds of the objection. Upon reconvening the jurors, the trial court immediately instructed them to disregard completely the state's question. The defendant made no claim at trial, nor has he claimed on appeal, that the curative instruction given to the jury was in any way defective. We have often held that a prompt cautionary instruction to the jury regarding improper prosecutorial remarks obviates any possible harm to the defendant. See State v. Nowakowski, 188 Conn. 620, 624, 452 A.2d 938 (1982). State v. Piskorski, supra, 720-21, 419 A.2d 866; State v. Hawthorne, supra, 373, 407 A.2d 1001. Under the circumstances we find it appropriate to defer to the trial court's determination that the improper question of the prosecutor did not deprive the defendant of a fair trial.

II

The defendant's second claim of error involves the propriety of certain remarks in the state's summation to the jury. During its rebuttal the state sought to subpoena Nick Jamele as a witness, presumably to refute the defendant's statement on cross-examination that certain payments to Jamele were for repairs to the defendant's house. The defendant advised the court, outside the hearing of the jury, that the witness Jamele would seek to exercise his fifth amendment privilege of silence and requested that the court hear argument and testimony on whether such exercise should be permitted in the absence of the jurors to avoid prejudicing them in any way. The court permitted examination of Jamele outside the jury's presence. Apparently Jamele was facing federal prosecution for gambling activities and for tax evasion. During the examination the state sought to question Jamele regarding the nature of any construction work done for the defendant, whether Jamele had received money from the defendant, whether the recorded payments were for work done on the defendant's property, and whether they were reported to federal income tax authorities. The trial court sustained the right of the witness to remain silent in each of these areas of inquiry, thereby foreclosing any examination of Jamele before the jury. The state took exception to each of the court's rulings, but has not pressed any claim of error in this matter on appeal.

During closing argument the state remarked: "Where is Nick Jamele? Where is the man that he [the defendant] paid six thousand dollars to?" The defendant immediately objected to the comment, but the trial court overruled the objection and allowed the state to continue without any cautionary instruction to the jury. ⁴ Later, outside the presence of the jury and prior to the jury charge, the defendant moved for a mistrial on the ground that, because of the court's instruction for the jury to disregard the question implying that Jamele was the defendant's bookie and Jamele's successful invocation of his fifth amendment privilege, the state's request that an unfavorable inference be drawn from the defendant's failure to call Jamele was improper. The state responded that the remark was a rhetorical question within the proper bounds of summation. When the trial court denied the motion for mistrial, the defendant took an exception to the ruling but did not request that any special instructions be given to the jury.

The state has not attempted on appeal to justify its challenged remarks upon the ground urged in the trial court or on any others. Instead, the state asks this court to apply the due process analysis discussed in part I of this opinion to the closing remarks of counsel and to sustain the conviction because insufficient prejudice befell the defendant as a result. The state argues that our decision in State v. Daniels, 180 Conn. 101, 429 A.2d 813 (1980), should govern our determination here. In Daniels, the defendant appealed from his assault conviction on the ground that the trial court erred in permitting the state to urge in summation that the jury draw adverse inferences from the failure of the...