State v. Varszegi

• Decision Date: 19 March 1996
• Docket Number: No. 15219,15219
• Citation: 236 Conn. 266,673 A.2d 90
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Paul VARSZEGI.

Page 90

673 A.2d 90

236 Conn. 266

STATE of Connecticut v. Paul VARSZEGI.

No. 15219.

Supreme Court of Connecticut.

Argued Oct. 31, 1995.

Decided March 19, 1996.

James J. Ruane, Special Public Defender, with whom, on the brief, were James O. Gaston and Nancy A. DeRose, Bridgeport, for the appellant (defendant).

Frederick W. Fawcett, Assistant State's Attorney, with whom, on the brief, were Donald A. Browne, State's Attorney, and Richard L. Palombo, Jr., Assistant State's Attorney, for the appellee (state).

Before PETERS, C.J., and BORDEN, BERDON, NORCOTT and KATZ, JJ.

NORCOTT, Justice.

The defendant, Paul Varszegi, was convicted of attempted escape in the first degree in violation of General Statutes §§ 53a-49 ¹ and 53a-169(a)(1) ² and criminal mischief in the second degree in violation of General Statutes § 53a-116(a)(1). ³ The Appellate Court affirmed the judgment of conviction and we granted the defendant's petition for certification limited to review of the Appellate Court's resolution of the following issues: (1) Was the defendant deprived of a constitutional right when he was impeached at trial by evidence of a prior conviction that was subsequently reversed on the ground of insufficient evidence? (2) If there was such a deprivation, was the error harmless? (3) Was the Appellate Court correct in holding that an objective test is employed in determining whether the defendant was entitled to have submitted to the jury the defense of necessity? State v. Varszegi, 233 Conn. 912, 659 A.2d 184 (1995). We affirm the judgment of the Appellate Court.

The jury reasonably could have found the following facts. On March 1, 1992, the defendant was incarcerated at the Bridgeport correctional center. After having noticed suspicious activity in the defendant's cell, a correction officer inspected the cell and found a hacksaw, which had been used to cut the bars on the cell window. The defendant admitted to the officer that he had cut the bars on the window. The defendant was charged with attempted escape in the first degree and criminal mischief in the second degree. At trial, the defendant testified and introduced evidence to show that he was motivated to escape because: (1) he was fearful of assault by other inmates; (2) he was not receiving proper medical care; and (3) he was in danger of contracting tuberculosis. State v. Varszegi, 36 Conn.App. 680, 682, 653 A.2d 201 (1995). He claimed that this evidence was sufficient to entitle him to a jury instruction on the common law defense of necessity. The trial court disagreed and rejected his request. The Appellate Court agreed with the trial court. At trial, the state impeached the defendant with a prior larceny conviction that was, at the time of trial, on appeal to the Appellate Court. Following the trial in the present case, the Appellate Court reviewed the prior larceny conviction, concluded that there was insufficient evidence to support it and, consequently, remanded the case to the trial court with direction to render a judgment of not guilty on the charge of larceny in the third degree. See State v. Varszegi, 33 Conn.App. 368, 375, 635 A.2d 816 (1993), cert. denied, 228 Conn. 921, 636 A.2d 851 (1994). Additional facts will be presented in each part of this opinion as needed.

I

The first certified question addresses the defendant's claim that his constitutional rights to a fair trial and to due process of law were violated when he was impeached at trial by evidence of a prior conviction that was subsequently reversed on the ground of insufficient evidence. ⁴ The defendant claims that his right to due process was violated by the state's use of his prior larceny conviction, subsequently reversed for insufficient evidence, to impeach him at trial. This claim has several subparts. First, the defendant asserts that a conviction obtained in the absence of sufficient evidence is as violative of the defendant's right to a fair trial as one obtained in violation of the sixth amendment right to counsel; Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 796-97, 9 L.Ed.2d 799 (1963); in the absence of an impartial tribunal; Tumey v. Ohio, 273 U.S. 510, 523, 47 S.Ct. 437, 441, 71 L.Ed. 749 (1927); and in violation of the right to remain silent. Biller v. Lopes, 834 F.2d 41, 46 (2d Cir.1987). Second, he asserts that all such convictions must be reversed without engaging in harmless error analysis. Finally, he asserts that any conviction resulting from a trial in which he had been impeached by a prior conviction reversed for insufficient evidence must also be reversed without engaging in harmless error analysis. We are unpersuaded.

The following additional facts are relevant to the defendant's claim. Prior to the defendant's trial in the present case, he had been convicted of larceny in the third degree. Claiming that there had been insufficient evidence to sustain his conviction, the defendant had appealed the judgment against him to the Appellate Court. State v. Varszegi, supra, 33 Conn.App. at 375, 635 A.2d 816. While that appeal was pending, the defendant was tried in the present case and the trial court allowed the state to use the larceny conviction to impeach him. ⁵

Following the trial in the present case, the Appellate Court reversed the larceny conviction and remanded that case with direction to render a judgment of not guilty based upon its holding that there had been insufficient evidence of specific intent. Id., at 378, 635 A.2d 816. Subsequently, the defendant appealed his conviction in the present case to the Appellate Court claiming, inter alia, that impeachment by the reversed larceny conviction violated his constitutional rights to present a defense, to a fair trial and to due process of law. State v. Varszegi, supra, 36 Conn.App. at 685, 653 A.2d 201. The Appellate Court reasoned that his claim did not raise constitutional issues, but instead was solely evidentiary and, therefore, that the defendant was required to bear "the burden of establishing that there has been an erroneous ruling which was probably harmful to him." (Internal quotation marks omitted.) Id., at 686, 653 A.2d 201. The court determined that the defendant had not met this burden and, therefore, that he could not prevail on his claim, and affirmed the judgment of the trial court. Id. Pursuant to General Statutes § 51-197f, the defendant petitioned for and was granted certification to appeal this issue to this court. We affirm the judgment of the Appellate Court, but with different reasoning.

Generally, the use of prior convictions for impeachment purposes is treated as an evidentiary issue unless there is a resulting denial of fundamental fairness or of a specific constitutional right. State v. Braswell, 194 Conn. 297, 307-308, 481 A.2d 413 (1984), cert. denied, 469 U.S. 1112, 105 S.Ct. 793, 83 L.Ed.2d 786 (1985); State v. Periere, 186 Conn. 599, 611, 442 A.2d 1345 (1982); see also Fed.R.Evid. 609(a) (certain convictions admitted "if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused"). In the present case, the Appellate Court followed the majority rule, which provides that the trial judge is vested with the discretion "to allow the use for impeachment of a conviction under appeal, although he must, of course, allow defense counsel to point out the pendency of an appeal to the jury." (Internal quotation marks omitted.) State v. Varszegi, supra, 36 Conn.App. at 686, 653 A.2d 201; State v. Schroff, 3 Conn.App. 684, 689, 492 A.2d 190 (1985). This is also the rule set forth in rule 609(e) of the Federal Rules of Evidence. ⁶

The defendant concedes that the federal rule, on its face, would sustain the trial court's ruling in the present case, but he maintains that rule 609(e) does not "adequately consider" the constitutional issues raised in the present case. ⁷ Rule 609(e) of the Federal Rules of Evidence allows the use of convictions on appeal, for the purpose of impeachment, and does not address the outcome of the appeal. See United States v. Mitchell, 886 F.2d 667, 671 (4th Cir.1989); United States v. Klayer, 707 F.2d 892, 895 (6th Cir.), cert. denied, 464 U.S. 858, 104 S.Ct. 180, 78 L.Ed.2d 161 (1983); United States v. Vanderbosch, 610 F.2d 95, 97 (2d Cir.1979); United States v. Klein, 560 F.2d 1236, 1240 (5th Cir.1977), cert. denied, 434 U.S. 1073, 98 S.Ct. 1259, 55 L.Ed.2d 777 (1978). The question presented in the present case, however, is not whether the trial court improperly allowed the prior larceny conviction on appeal to be used for impeachment purposes. Rather, the question is whether, after having learned that the prior conviction on appeal has been reversed for insufficient evidence, we must conclude, in retrospect, that the use of the prior conviction for impeachment purposes deprived the defendant of his rights to a fair trial and due process of law.

While both our common law rules of evidence and rule 609(e) of the Federal Rules of Evidence suggest that the admissibility of prior convictions on appeal is an evidentiary question, not dependent on the outcome of the appeal, there are situations in which courts have determined that a successful appeal may have retroactive ramifications on a conviction in which the prior conviction was used to impeach the defendant. Loper v. Beto, 405 U.S. 473, 480, 92 S.Ct. 1014, 1018, 31 L.Ed.2d 374 (1972); Biller v. Lopes, 834 F.2d 41, 46 (2d Cir.1987). Prior to the enactment of the Federal Rules of Evidence, the United States Supreme Court addressed an issue similar to that raised in the present case. See Loper v. Beto, supra, at 473, 92 S.Ct. at 1014-15. The defendant argues that Loper supports his assertion that, if a constitutional defect inheres in a prior conviction, then the use of that conviction to impeach the defendant at trial requires automatic reversal, without regard to the extent of its effect on the trial. We disagree.

In Loper, the...