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State v. Johnson

Court of Appeals of Connecticut

April 24, 1990

STATE of Connecticut
v.
Bernard JOHNSON.

Argued Nov. 14, 1989.

Page 1219

Stephen V. Moran, Asst. Public Defender, for appellant (defendant).

Richard F. Jacobson, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Stephen J. Sedensky, Asst. State's Atty., for appellee (State).

Before BORDEN, SPALLONE and KULAWIZ, JJ.

[21 Conn.App. 292] KULAWIZ, Judge.

The defendant appeals from the judgment of conviction, after a jury trial, of robbery in the third degree in violation of General Statutes § 53a-136. The defendant claims that the trial court erred (1) in limiting his cross-examination of the victim, and (2) in allowing the testimony of a rebuttal witness. We find no error.

I

The defendant claims that the court violated his rights under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution to confront the witnesses against him by unduly limiting the cross-examination of the victim, Charles Douglas. [1] Douglas reported to a police officer that the defendant, armed with a firearm, robbed him of $6. The

Page 1220

defendant sought to show that he was unarmed during the incident and that he assaulted Douglas with his fist for selling imitation drugs. To this end, the defendant asked several questions[21 Conn.App. 293] during cross-examination of Douglas designed to impeach his credibility by showing that Douglas was soliciting drug sales at the time of the incident, and that he had committed various illegal or dishonest acts in the past. The trial court sustained the state's objections to some of these questions, and the defendant assigns constitutional error. [2]

The purpose of the constitutional right to confrontation is to ensure that criminal defendants are not denied the opportunity to cross-examine adverse witnesses. Pointer v. Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965); Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965). Connecticut courts have long recognized that cross-examination is a right, and its denial or undue restriction is error. State v. Luzzi, 147 Conn. 40, 46-47, 156 A.2d 505 (1959). The confrontation clause does not, however, suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination. Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 294, 88 L.Ed.2d 15 (1985) (per curiam); State v. D'Ambrosia, 212 Conn. 50, 57, 561 A.2d 422 (1989). Interrogation must not be repetitive or unduly harassing. Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). The evidence sought through cross-examination must be relevant. See State v. Gaynor, 182 Conn. 501, 509, 438 A.2d 749 (1980), and cases cited.

[21 Conn.App. 294] Under the confrontation clause, there is a minimum of cross-examination that must be accorded the defendant into matters affecting the reliability and credibility of the state's witnesses. Davis v. Alaska, supra; State v. Ortiz, 198 Conn. 220, 224, 502 A.2d 400 (1985). Hence, the trial court commits error if it precludes all inquiry upon a subject tending to show the bias of a witness. State v. James, 211 Conn. 555, 573, 560 A.2d 426 (1989); State v. Ortiz, supra, 198 Conn. at 226, 502 A.2d 400; State v. Ouellette, 190 Conn. 84, 103, 459 A.2d 1005 (1983). In order to determine whether cross-examination has been unduly restricted, this court must consider the two-step analysis set forth in State v. Castro, 196 Conn. 421, 493 A.2d 223 (1985).

The general rule that restrictions on the scope of cross-examination are within the court's sound discretion comes into play only after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment. State v. Gaynor, supra, 182 Conn. at 508, 438 A.2d 749. The first issue, therefore, is whether the defendant was accorded the minimum of cross-examination required by the constitution.

In the present case, the trial court did not preclude the defendant from cross-examining Douglas on matters tending to show bias, motive, or lack of credibility. The court permitted questions concerning his prior felony convictions, and whether he dropped out of school after robbing a woman who was carrying numbers money for organized crime. The defendant was permitted to enter into evidence a photograph of Douglas as he entered prison to serve a sentence for a 1983 robbery, and he was permitted cross-examination on the subject of whether Douglas had ever lied by using a false name either in court or in speaking with police officers. The defendant also cross-examined Douglas regarding whether he owed the defendant $75, and whether he and the defendant had [21 Conn.App. 295] agreed that he would either repay the defendant with $75 in cash or with $125 worth of "product," or cocaine. The defendant also asked Douglas whether he knew the defendant was upset with him for selling "burn bags," or

Page 1221

phony drugs, and Douglas responded that he did not remember an argument and that he was not engaged in business with the defendant.

Although the defendant was allowed to cross-examine the complainant on all of these matters, he claims that the court erred in failing to allow the following question: "If you changed your story here you could be charged with making a false report by this man, right?" When Douglas first took the stand he attempted to invoke the fifth amendment privilege against self-incrimination, and when the court informed him that the privilege did not apply to him, Douglas stated that he did not "want to go through with it." The jury was excused, and Douglas was given private legal advice outside the courtroom. Upon his return, the court asked him if he understood that he could be charged with contempt if he refused to testify, and that he could be charged with perjury if he testified ...


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