State v. Watson

• Decision Date: 03 March 1998
• Docket Number: No. 16560,16560
• Citation: 47 Conn.App. 794,707 A.2d 1278
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Michael WATSON.

Page 1278

707 A.2d 1278

47 Conn.App. 794

STATE of Connecticut v. Michael WATSON.

No. 16560.

Appellate Court of Connecticut.

Argued Oct. 30, 1997.

Decided March 3, 1998.

Mark Rademacher, Assistant Public Defender, for appellant (defendant).

Frederick W. Fawcett, Assistant State's Attorney, with whom, on the brief, were Jonathan C. Benedict, State's Attorney, and Gerard P. Eisenman, Assistant State's Attorney, for appellee (State).

Before EDWARD Y. O'CONNELL, C.J., and SPEAR and DALY, JJ.

DALY, Judge.

In this action, the defendant, Michael Watson, appeals from the judgment of conviction, rendered after a jury trial, of two counts of robbery in the first degree in violation of General Statutes § 53a-134 (a)(4) and, as found by the court, of being a persistent dangerous felony offender in violation of General Statutes § 53a-40 (a).

The defendant claims that the trial court improperly (1) permitted cross-examination of an alibi witness about her failure to report the alibi, (2) denied the defendant's motion for a mistrial, which he based on a reference by the prosecutor to his incarceration, (3) failed to inquire about a possible conflict of interest of defense counsel, (4) failed to find ineffective assistance of counsel, and (5) refused to permit the defendant to demonstrate his voice without being forced to testify. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of December 17, 1994, Elaine Jackson and Christina Ramerez were employed at a sandwich shop in Bridgeport. At approximately 11 p.m., the defendant entered the store and asked for a soda. Ramerez waited on the defendant. He inquired about a telephone, and Ramerez indicated that there was one on the street corner. The defendant then displayed a gun and demanded money from Ramerez, who was standing next to the cash register. Ramerez called to Jackson, who observed the gun pointed at Ramerez. Both employees were behind a floor-to-ceiling partition that had an opening through which customers received their orders. The defendant kept the gun pointed at Ramerez and repeatedly demanded money. The defendant took the money that Ramerez removed from the cash register. He then pointed the gun at Jackson and demanded that she open the door leading to the rear of the store. Apparently unable to exit the store from the rear, he ordered the two employees to lie face down on the floor and to count to ten before moving. He left by the front door, and the employees then notified the police and the store supervisor.

The employees described the defendant as a Hispanic male, five feet, five inches tall, who spoke broken English, had a gauze bandage over one eye and was wearing a red and black flannel jacket. Ramerez selected the defendant's picture from a photographic array of eight males as being that of the perpetrator. The defendant was thereafter arrested.

At trial, the defendant presented an alibi defense that on the evening of December 17, 1994, he was attending a Christmas party at a club in Stratford with his fiancee, Lisa Cabral, who is now his wife. Cabral testified that she was with him from shortly before 9:30 p.m. until after 12:15 a.m. She testified that the defendant had no accent or injury to his face. Two other witnesses testified that the defendant was at the party and that he had no accent and no injury to, or bandage on, his eye.

I

A

The defendant first claims that the trial court improperly permitted the state to cross-examine Cabral concerning her failure to report the defendant's alibi to the proper authorities.

As noted previously, Cabral testified that the defendant was with her at the time of the robbery. The state inquired on cross-examination whether she had reported this to the police department or to the state's attorney's office. The defendant did not interpose an objection to those questions on relevancy grounds, but did object to one of the questions on the ground that it assumed that Cabral had an obligation to report the alibi. The court overruled the defendant's objection and the witness testified that she did not report the alibi to the police or to the state's attorney's office. The state then attempted to ask the witness whether, and how many times, she had come to court on this case. The defendant objected, contending that the question was irrelevant, and suggested that the state give an offer of proof as to the relevance of that "line of questioning." The court overruled the objection and permitted the state to inquire as to the number of times Cabral had come to court on this case. The defendant also objected to the state's question as to how many days per week Cabral was in the downtown Bridgeport area. The defendant did not, however, object to the state's question as to whether Cabral was in the downtown area, at her job, five days per week from February through July, 1995. The state then asked: "Okay. You told us you never told the police department that you had an alibi for your husband? You never told anyone in the state's attorney's office you had an alibi for your husband other than his attorney. Did you ever tell anyone in law enforcement that you had an alibi for your husband?" Cabral responded that she had not informed anyone in law enforcement of the alibi, but that she had told defense counsel. In his brief, the defendant argues that the state asked, "[o]ver multiple relevancy objections, if Cabral had ever reported the alibi to police or the state's attorney even though she worked down the street from the courthouse."

The defendant asserts that the court improperly admitted evidence of Cabral's silence and denied the request for a hearing to challenge the relevancy of the silence. The defendant requested a hearing to show that Cabral had refrained from speaking on the advice of defense counsel.

The standard of review on the propriety of the trial court's ruling on the relevance of questions by a state's attorney is well settled. State v. Ghere, 201 Conn. 289, 303, 513 A.2d 1226 (1986). "The scope of cross-examination in a criminal trial is a matter properly left to the sound discretion of the trial court.... Every reasonable presumption should be given in favor of the correctness of the court's ruling in determining whether there has been an abuse of discretion. Reversal is required only where an injustice appears to have occurred...." (Citations omitted; internal quotation marks omitted.) Id.

"Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue.... One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable.... All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative.... State v. Cosby, 44 Conn.App. 26, 31-32, 687 A.2d 895 (1996), cert. denied, 240 Conn. 910, 689 A.2d 474 (1997)." (Emphasis in original; internal quotation marks omitted.) State v. Torres, 47 Conn.App. 149, 155-156, 702 A.2d 142 (1997).

In State v. Ghere, supra, 201 Conn. at 300, 513 A.2d 1226, the defendant challenged "the propriety of the trial court's ruling allowing the state's attorney to impeach the defendant's alibi witnesses by exposing their failure to tell the police their story in support of the alibi." The Supreme Court addressed the narrow issue of "whether the failure of the witnesses to approach the police with their alibi story was relevant on the issue of credibility or, more specifically, the issue of fabrication." Id., at 303-304, 513 A.2d 1226. The court pointed out that "[a]lthough we do not believe that an alibi witness has a duty to report an alibi story to the police or, for that matter, to any other person, a witness in many instances naturally may be expected to convey such information, especially when the witness is friendly with the accused. Failure of the witness to do so would, under these circumstances, constitute grounds for impeachment." Id., at 304, 513 A.2d 1226.

In State v. Bryant, 202 Conn. 676, 703, 523 A.2d 451 (1987), the court referred to its decision in Ghere and stated that the alibi witnesses in Ghere " 'were shown to be friends or acquaintances of the defendant and it would only have been natural for them to exculpate the defendant of any wrongdoing by approaching the police' and, therefore, the trial court correctly allowed the state to impeach them by questioning their failure to relate their stories to the police." Id., quoting State v. Ghere, supra, 201 Conn. at 305, 513 A.2d 1226.

The defendant concedes that he has the burden of establishing that there has been an erroneous ruling that was harmful to him. State v. Moody, 214 Conn. 616, 629, 573 A.2d 716 (1990); B. Holden & J. Daly, Connecticut Evidence (2d Ed.1988) § 60i. The questions relating to Cabral's failure to report the alibi to the police were relevant to the issues of credibility and fabrication. "[I]f evidence adduced on cross-examination conduces in any reasonable degree to establish the probability or improbability of the fact in controversy, it should be admitted." (Internal quotation marks omitted.) State v. Ghere, supra, 201 Conn. at 303, 513 A.2d 1226. Cabral's credibility was clearly in issue and it was proper for the state's attorney to inquire into the circumstances of the alibi claim in an attempt to discredit it. See id. We hold that the trial court did not improperly permit, as relevant, questions concerning the witness' failure to report the alibi.

B

The defendant also claims a violation of his right to a fair trial under the constitution of Connecticut, article first, § 8, and under the sixth and fourteenth amendments to the United States constitution. The defendant asserts that Cabral was advised by defense counsel not to report the alibi. The defendant...