State v. Moore

981 A.2d 1030

293 Conn. 781

STATE of Connecticut v. Dan L. MOORE.

No. 17992.

Supreme Court of Connecticut.

Argued February 19, 2009.

Decided November 3, 2009.

James A. Killen, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Edward R. Narus, senior assistant state's attorney, for the appellant (state).

Pamela S. Nagy, special public defender, for the appellee (defendant).

ROGERS, C.J., and KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.

ZARELLA, J.

The state appeals, following our grant of certification, from the judgment of the Appellate Court reversing the conviction of the defendant, Dan L. Moore, of three counts of robbery in the first degree in violation of General Statutes § 53a-134(a)(4), four counts of attempt to commit robbery in the first degree in violation of § 53a-134(a)(4) and General Statutes § 53a-49(a), and one count of conspiracy to commit robbery in the first degree in violation of § 53a-134(a)(4) and General Statutes § 53a-48(a). The state claims that the Appellate Court improperly concluded that the defendant's sixth amendment right of confrontation¹ under the United States constitution was violated when the trial court denied his motion to strike certain testimony that the state elicited during its redirect examination of James Brooks, a participant in the robbery and a prosecution witness who invoked his fifth amendment privilege against self-incrimination² before the assistant state's attorney (prosecutor) completed his redirect examination, thus depriving the defense of the opportunity to question Brooks on recross-examination. The defendant responds that the Appellate Court properly concluded that his right of confrontation was violated when the trial court denied his motion to strike. The defendant further maintains that, if this court concludes otherwise, the Appellate Court's judgment may be affirmed on the alternative grounds that (1) the trial court improperly allowed Brooks to invoke his fifth amendment privilege after he had waived the privilege by agreeing to testify, (2) the prosecutor committed improprieties during his direct and redirect examination of Brooks and during his closing argument that deprived the defendant of his right to a fair trial, and (3) the trial court improperly failed to give the jury a cautionary instruction on accomplice testimony.³ We agree with the state, reject the defendant's alternative grounds for affirmance and, accordingly, reverse the judgment of the Appellate Court.

The following relevant facts and procedural history are set forth in the opinion of the Appellate Court. "The defendant was charged in connection with a robbery that occurred on October 6, 2002, in Windsor. A group of seven individuals was ... in the parking lot of the Ranch House restaurant when a dark blue minivan was driven adjacent to them. Several men got out of the van, and the driver, Corey Wallace, remained inside the van.⁴ One of the men, Brooks, pointed a shotgun at the group while another, Andrew Cromwell, searched them. One witness testified that a third person stood near the van and told the victims to cooperate. After all seven individuals were searched, the men got back inside the van, threw two of the victims' wallets out a window and drove away. In total, approximately $30, a silver necklace and a cellular telephone were stolen.

"The victims immediately called 911 to report the robbery and the license plate number of the van. Shortly after the robbery was reported, a Hartford police officer saw the van as it stopped near Main and Sanford Streets in Hartford. The driver, Wallace, ignored police efforts to stop the van, instead leading police from four different police departments on a high speed chase until the van eventually was brought to a stop on Interstate 84. Brooks, Cromwell, Wallace and the defendant were detained and arrested.

"Later that night at the Windsor police station, the seven victims viewed photographic arrays containing photographs of Brooks, Wallace, Cromwell and the defendant. Three victims identified Brooks as the gunman. One victim identified Cromwell as an assailant. None of the victims identified Wallace. One victim identified the defendant, but he stated that he thought the defendant was the driver.

"At trial, Brooks, Cromwell and Wallace testified against the defendant pursuant to plea agreements. On direct examination, Brooks testified that the defendant was present during the robbery and at some point got out of the van to pick up a wallet that Cromwell had taken from a victim and thrown on the ground. He also testified that the defendant threw the wallet out of the van as they drove away. This testimony generally was consistent with testimony given by the victims and by Wallace and Cromwell, although Brooks' overall depiction of the evening's events varied from the testimony of others in several respects.

"On cross-examination, Brooks changed his testimony. He testified that the defendant had been dropped off at a nightclub, Club Pyramid, prior to the robbery and was picked up after the robbery.⁵ Brooks testified that he was encouraged to implicate the defendant in order to get a favorable plea agreement. On redirect examination, the [prosecutor] questioned Brooks about the details of his plea proceedings, including his dialogue with the court, Miano, J., during the plea proceedings, and the facts to which Brooks had agreed to testify. The [prosecutor] also asked Brooks about a conversation he had had with the prosecutor about going to trial.⁶ Prior to the conclusion of redirect examination, Brooks invoked his fifth amendment right and refused to testify further, precluding any opportunity for recross-examination by the [defense]."⁷ State v. Moore, 103 Conn.App. 1, 3-6, 926 A.2d 1058 (2007).

After Brooks invoked his fifth amendment privilege, defense counsel moved to strike his redirect testimony from the record. In urging the court to grant the motion, defense counsel repeatedly argued that, although she had cross-examined Brooks following his testimony on direct examination and had done so "fully," her lack of an opportunity to recross-examine Brooks following his redirect testimony was prejudicial.⁸ The defense was especially concerned about the effect of Brooks' testimony that he had taken an oath to tell the truth on the jurors. Defense counsel also explained that she wanted to rehabilitate Brooks because the prosecutor had been given two opportunities to question him, whereas she had been given only one, thus making Brooks "appear to be a liar throughout what he's done." The prosecutor responded that Brooks' testimony on redirect examination was merely a repetition of his earlier testimony regarding the facts and the plea to which he had agreed. Thus, the redirect testimony did not add anything new for the jury to consider. The prosecutor also argued that Brooks' testimony on cross-examination already had shown him to be a liar and that the defense could do nothing to change that fact.

In denying the motion to strike, the court, Espinosa, J., stated: "[A] small portion of redirect [examination] goes to the impeachment of the witness' credibility, a collateral issue, and not regarding the matters directly related to the crimes charged. Defense [counsel] had an ample opportunity to cross-examine [Brooks] about the crimes charged and, indeed, elicited testimony exculpating the defendant.

"The facts of the plea on January 27, 2005, [were] brought up on direct examination, and inconsistencies between [Brooks'] in-court testimony ... were pointed out on direct examination, [and] there are several instances in the testimony where ... Brooks' plea was ... mentioned. So ... defense [counsel] had an opportunity to cross-examine [Brooks] about that plea on cross-examination. If ... defense [counsel] did not do that, well, that was up to the defense.

"But, in any event, the court finds that, because the issues brought up on redirect [examination] go only to the credibility of the witness ... it will not be excluded." When the jurors returned to the courtroom, the court instructed that the testimony of Brooks had concluded and that the jurors were not to speculate as to the reason why he did not testify further. The jury subsequently found the defendant guilty of three counts of robbery in the first degree, four counts of attempt to commit robbery in the first degree and one count of conspiracy to commit robbery in the first degree. Although defense counsel moved for a mistrial, the trial court denied the motion for the same reasons that it had denied the motion to strike.

On appeal to the Appellate Court, the defendant claimed that the trial court improperly had denied the motion to strike Brooks' redirect testimony. He specifically claimed that, because the defense had not been given an opportunity to question Brooks about new issues raised on redirect examination, he had been deprived of his sixth amendment right of confrontation. See State v. Moore, supra, 103 Conn. App. at 6, 926 A.2d 1058. The Appellate Court agreed, stating: "On redirect examination, the state raised new issues that had not been explored during direct examination, including Brooks' dialogue with Judge Miano at the plea canvass and a conversation between Brooks and [the] prosecutor regarding the plea. The defendant's inability to recross-examine the witness, therefore, is no different from a situation in which cross-examination has been precluded." Id., at 7, 926 A.2d 1058. The court also explained that "[t]he issues raised during the state's redirect examination of Brooks were not collateral matters"; id., at 8, 926 A.2d 1058; and that Brooks' assertion of his fifth amendment privilege had prevented the defense from inquiring further into the details of Brooks' redirect testimony. Id., at 10, 926 A.2d 1058. As a result, the defense was unable to test the truth of Brooks' testimony regarding his...