State v. Rogelstad

73 Conn. App. 17

806 A.2d 1089

STATE OF CONNECTICUT v. SHANNON ROGELSTAD.

(AC 21493)

Appellate Court of Connecticut.

Argued April 22, 2002

Officially released October 15, 2002

Foti, Mihalakos and Dranginis, Js.

Jon L. Schoenhorn, for the appellant (defendant).

Joy K. Fausey, deputy assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and James R. Dinnan, senior assistant state's attorney, for the appellee (state).

Opinion

MIHALAKOS, J.

The defendant, Shannon Rogelstad, appeals from the judgment of conviction, rendered after a jury trial, of risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21 (1)¹ and assault in the third degree in violation of General Statutes § 53a-61.² On appeal, the defendant claims that the trial court improperly (1) restricted her right to confront and to cross-examine witnesses, (2) denied her the right to present a defense, (3) allowed the prosecutor to engage in prosecutorial misconduct and (4) refused to consider her motion for a new trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On July 22, 1999, the defendant stabbed the victim, her nine year old son, Erik Gilbert (Erik), in the back with a pair of opened scissors. The stabbing resulted in two superficial puncture wounds to Erik's lower back. Following the stabbing, the defendant cleaned and dressed the wound. Within the next day or two, Erik went swimming and reported the incident to his day care provider and then to his father, Wayne Gilbert (Wayne).³ A police investigation followed.

In a long form information, the defendant was charged with risk of injury to a child in violation of § 53-21 (1) and assault in the second degree in violation of General Statutes § 53a-60 (a) (2). The trial commenced on March 15, 2000, at which Erik testified that he was wounded while playing on a slide at a local McDonald's restaurant. The jury returned a verdict of guilty as to the first count and a verdict of guilty of the lesser included offense of assault in the third degree on the second count. The defendant was sentenced to three years imprisonment, execution suspended, and three years probation with special conditions. On March 28, 2000, the defendant renewed her previous oral motion for a judgment of acquittal and for a new trial. On June 9, 2000, the defendant filed a motion for a new trial on the basis of newly discovered evidence. The trial court issued its memorandum of decision denying the defendant's motion for a new trial on December 7, 2000. This appeal followed.

I

The defendant first argues that the court unfairly restricted her right to confront and to cross-examine witnesses. Specifically, she claims that the denial of her efforts to explore the matter of the influence that her ex-husband exerted on Erik and the investigation constituted a deprivation of the right to confront and to cross-examine witnesses under the constitution of Connecticut and the United States constitution.⁴ In addition, she argues that the court improperly denied her the right to present a defense by prohibiting evidence concerning Wayne's statements and efforts to deprive her of custody of her son. Because both claims implicate the defendant's rights under the sixth amendment to the United States constitution, we will address them together.

The defendant concedes that she did not argue before the court that her sixth amendment rights were violated. She now seeks review under the doctrine set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).⁵ Because the record is adequate for review and the issues raised involve a fundamental right, we will review the defendant's claim under Golding. See State v. Wegman, 70 Conn. App. 171, 190, 798 A.2d 454, cert. denied, 261 Conn. 918, 806 A.2d 1058 (2002). The defendant, however, cannot prevail under the third prong of Golding because she has failed to establish that a constitutional violation clearly exists and that it clearly deprived her of a fair trial.

"The sixth amendment to the United States constitution guarantees the right of an accused in a criminal prosecution to confront and cross-examine the witnesses against him." State v. Valentine, 255 Conn. 61, 70, 762 A.2d 1278 (2000). "The primary interest secured by confrontation is the right to cross-examination ... and an important function of cross-examination is the exposure of a witness' motivation in testifying." (Internal quotation marks omitted.) State v. Hall, 66 Conn. App. 740, 753, 786 A.2d 466 (2001), cert. denied, 259 Conn. 906, 789 A.2d 996 (2002). "Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted.... However, [t]he [c]onfrontation [c]lause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." (Emphasis in original; internal quotation marks omitted.) State v. Price, 61 Conn. App. 417, 428, 767 A.2d 107, cert. denied, 255 Conn. 947, 769 A.2d 64 (2001).

"[T]o comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the jury facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.... In determining whether a defendant's right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial." (Internal quotation marks omitted.) State v. Wegman, supra, 70 Conn. App. 187.

Again, the confrontation clause does not guarantee a defendant's right to engage in unfettered cross-examination. See State v. Valentine, supra, 255 Conn. 71. Only relevant evidence may be elicited through cross-examination. See id. "The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. Every reasonable presumption should be made in favor of the correctness of the court's ruling in determining whether there has been an abuse of discretion.... Furthermore, [t]o establish an abuse of discretion, [the defendant] must show that the restrictions imposed upon [the] cross-examination were clearly prejudicial.... The proffering party bears the burden of establishing the relevance of the offered testimony. Unless such a proper foundation is established, the evidence ... is irrelevant." (Citations omitted; internal quotation marks omitted.) Id., 69-70.

"Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. ... [E]vidence need not exclude all other possibilities [to be relevant]; it is sufficient if it tends to support the conclusion [for which it is offered], even to a slight degree." (Internal quotation marks omitted.) State v. Johnson, 67 Conn. App. 299, 305-306, 786 A.2d 1269 (2001), cert. denied, 259 Conn. 918, 791 A.2d 566 (2002). "It is not logical relevance alone, however, that secures the admission of evidence. Logically relevant evidence must also be legally relevant ... that is, not subject to exclusion for any one of the following prejudicial effects: (1) where the facts offered may unduly arouse the jury's emotions, hostility or sympathy, (2) where the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues, (3) where the evidence offered and the counterproof will consume an undue amount of time, and (4) where the defendant, having no reasonable ground to anticipate the evidence, is unfairly surprised and unprepared to meet it." (Citation omitted; emphasis added; internal quotation marks omitted.) State v. Joly, 219 Conn. 234, 260-61, 593 A.2d 96 (1991).

We first address whether the defendant has successfully established that a constitutional violation clearly exists and clearly deprived her of a fair trial with regard to her cross-examination of Erik. Defense counsel posited, inter alia, to Erik: "Did your father encourage you to pursue this complaint against your mother?" The prosecutor objected to this line of questioning, and the court sustained the objection. The defendant now argues that because "the entire case against the defendant was dependent upon Erik's out-of-court statements, in the face of [her and Erik's] categorical denials in court, the need to demonstrate [Wayne's] motives and influence were paramount. Instead, the court precluded the only evidence showing that Erik was influenced and encouraged to make false allegations against his mother by her hostile and vindictive ex-husband." This argument is misplaced.

During her cross-examination of Erik, the defendant attempted to show Wayne's motives and influence. Neither Wayne's motives, nor his influences, were at issue in this case. Thus, such testimony and evidence, if admitted, would have created a side issue that would have distracted the jury from the issue of whether the defendant stabbed her son with a pair of scissors. Therefore, the court properly excluded the testimony as irrelevant.

In addition, the defendant fully delved into Erik's motives and credibility during cross-examination. After categorically denying that his mother had stabbed him, Erik admitted to having changed his story several times. For example, Erik testified that he went to day care the next day, and "she saw the scab and I was really mad at my mom then for ripping [a flag he had made for her], and I said that my mom stabbed me because I was mad." At one point, he told his physician that he had walked three miles to his day care that day. Erik also testified that he told the police that his moth...