State v. Otto

Page 775

717 A.2d 775

50 Conn.App. 1

STATE of Connecticut v. Buckley OTTO.

No. 16180.

Appellate Court of Connecticut.

Argued May 28, 1998.

Decided Aug. 25, 1998.

Neal Cone, Assistant Public Defender, for appellant (defendant).

Michael E. O'Hare, Assistant State's Attorney, with whom, on the brief, were James E. Thomas, State's Attorney, and Carl Taylor, Assistant State's Attorney, for appellee (State).

Before EDWARD Y. O'CONNELL, C.J., and SCHALLER and SULLIVAN, JJ.

SULLIVAN, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a)(3), ¹ interference with a police officer in violation of General Statutes § 53a-167a, ² attempted possession of narcotics within 1500 feet of a school in violation of General Statutes §§ 53a-49 (a)(2) and 21a-279 (d), ³ and attempted possession of narcotics in violation of General Statutes §§ 53a-49 (a)(2) and 21a-279 (a). ⁴ On appeal, the defendant claims that the trial court improperly (1) excluded evidence that two prosecution witnesses had settled injury claims with the defendant, (2) instructed the jury on the first degree assault, (3) improperly instructed the jury on the narcotics possession charges, (4) concluded as a matter of law that sufficient evidence existed to support the conviction of first degree assault and (5) violated the defendant's constitutional protection against double jeopardy by allowing both of the narcotics convictions to stand. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. This case arises out of a reverse sting operation that the Hartford police department conducted on January 14, 1995, at the Bellevue Square housing project in Hartford. ⁵ Officer Reginald Allen posed as a drug dealer while Officers Mark Castagna and David Kardys awaited Allen's signal in a nearby building. Lieutenant Michael Fallon watched the scene from a van on the same street.

At approximately 11:32 a.m., the defendant and a female companion approached Allen in a Chrysler New Yorker. The defendant asked Allen if he "had anything" and said that he wanted heroin. After speaking to his passenger, the defendant told Allen that he wanted five bags of heroin. The defendant had money in his hand.

At that point, Allen signalled the other officers and identified himself to the defendant as a police officer. The defendant said "Oh, shit," and the passenger said, "go, go, go." The defendant then sped down the street.

Castagna and Kardys appeared, identified themselves as police officers and ordered the defendant to stop. Both officers were wearing clothing clearly identifying them as police officers. ⁶ Castagna drew his gun as he ordered the car to stop. The defendant veered his car onto the sidewalk, hitting Castagna and Kardys.

As the defendant continued down the street, Fallon blocked the defendant's car with his vehicle. Kardys, Allen, and Fallon surrounded the car, identified themselves as police officers, and ordered the defendant to shut off the engine and get out of the car. When the defendant did not comply, the officers forcibly removed the defendant from the car and arrested him. The officers then arrested the defendant's companion.

A jury convicted the defendant of first degree assault, interfering with a police officer, attempted possession of narcotics, and attempted possession of narcotics within 1500 feet of a school. This appeal followed.

I

The defendant first claims that the trial court improperly excluded as irrelevant the cross-examinations of Castagna and Kardys on their settlements with the defendant's insurance company and improperly excluded extrinsic evidence of those settlements offered to impeach the witnesses' credibility. The defendant argues that this ruling violated his constitutional rights to confrontation and to due process. Because the settlements of the injury claims are not relevant to the officers' credibility, this court finds no impropriety in the trial court's ruling.

The right to confrontation, which includes the right to cross-examine adverse witnesses, is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article one, § 8, of the Connecticut constitution, but it is not an absolute and unbounded right. State v. Thompson, 191 Conn. 146, 463 A.2d 611 (1983). A court may, in the exercise of its discretion, limit the extent of cross-examination, especially with respect to credibility. C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.1988) § 3.4.3, pp. 43-44. We traditionally apply a two part analysis to determine whether a party has been deprived of effective cross-examination. "First, we determine whether the defendant received the minimum opportunity for cross-examination of adverse witnesses required by the constitution.... If so, we then consider whether the trial court's restriction of cross-examination amounted to an abuse of discretion under the rules of evidence.... To establish an abuse of discretion, [the defendant] must show that the restrictions imposed upon the cross-examination were clearly prejudicial.... If, however, the defendant is denied the right of effective cross-examination, there would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it." (Citations omitted; internal quotation marks omitted). State v. Plaskonka, 22 Conn.App. 207, 214, 577 A.2d 729, cert. denied, 216 Conn. 812, 580 A.2d 65 (1990).

As to the first part, the defendant does not assert that he was denied the minimum opportunity for cross-examining the witnesses. Although the defendant largely limited his cross-examination of Castagna to the settlement issue, the defendant cross-examined Kardys more widely with no restriction from the court except as to the settlement issue.

Contrary to the defendant's assertions, the trial court's decision did not unduly restrict the defendant's questioning so as to violate his right effectively to cross-examine the witnesses against him or to present a defense. Effective cross-examination does not include eliciting or presenting evidence that is immaterial or irrelevant. See State v. Barnes, 232 Conn. 740, 746, 657 A.2d 611 (1995). When the trial court properly excludes evidence as irrelevant, it does not abuse its discretion in limiting cross-examination as to the excluded evidence. See State v. Barrett, 43 Conn.App. 667, 676-77, 685 A.2d 677, (1996) cert. denied, 240 Conn. 923, 692 A.2d 819 (1997).

On cross-examination, Castagna testified that the defendant intentionally hit him with his car. Prior to his court appearance, Castagna had settled a personal injury claim with the defendant's insurer pursuant to a policy that excludes intentional torts from its coverage. At trial, the defendant asserted that the settlement constituted conduct equivalent to a prior inconsistent statement and sought to impeach Castagna by eliciting testimony and introducing extrinsic evidence in the form of a signed general release of liability. The defendant also wanted to introduce similar evidence with respect to Kardys. The trial court limited the cross-examination about the settlement and excluded the extrinsic evidence. ⁷

The trial court's ruling was proper because the settlement evidence was not relevant to impeach Castagna and Kardys. A defendant may introduce prior inconsistent statements to impeach a witness. State v. Keating, 151 Conn. 592, 597, 200 A.2d 724 (1964), cert. denied sub nom. Joseph v. Connecticut, 379 U.S. 963, 85 S.Ct. 654, 13 L.Ed.2d 557 (1965); C. Tait & J. LaPlante, supra, § 7.24.3, p. 207. The trial court must determine, however, whether the statement or conduct is, in fact, sufficiently contrary to the position asserted at trial to justify its introduction as a prior inconsistent statement. State v. Piskorski, 177 Conn. 677, 710, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S.Ct. 283, 62 L.Ed.2d 194 (1979).

The relevancy issue, therefore, hinges on whether the mere settlement of a potential tort claim permits the imputation to a settling party of a position sufficient to constitute an inconsistent statement. Specifically, the defendant argues that by settling civil claims where intentionality would bar recovery, Castagna and Kardys essentially admitted that the defendant did not act intentionally. We do not agree.

Signing a general release of liability does not necessarily constitute an assertion of any particular theory of liability. That the insurer settled the claims on a negligence basis does not necessarily lead to the conclusion that this representation was made to the insurer or that the witnesses' counsel in those matters did not present alternate theories. A prior inconsistent statement must be "sufficiently inconsistent." State v. Piskorski, supra, 177 Conn. at 711, 419 A.2d 866. On the basis of the facts and assertions in the record here, we cannot find that the trial court abused its discretion in excluding this evidence.

Moreover, the settlement does not serve as an indicia of financial incentive, motive, or bias. Neither Castagna nor Kardys had any personal interest in the outcome of the criminal trial. Although a pending claim or civil suit by one of the witnesses might suggest evidence of bias or interest because the outcome of the criminal trial would bear directly on the success of the civil action, there was no such pending action here.

We do not go so far as to say that representations made in a settlement or complaint will never constitute statements or admissions. In this case, however, they do not and, thus, we conclude that the trial court properly excluded the settlement evidence.

II

The defendant next claims that the trial court improperly instructed the jury with respect to the first degree assault charge. Specifically, the defendant claims that the trial court failed to comment on the evidence and...