Opinion
Convicted of indecent assault and of conspiracy to commit rape, indecent assault, sodomy, robbery with violence and aggravated assault, the defendant appealed. Held: 1. The trial court, as set forth in State v. Clemente, 166 Conn. 501, did not err in holding itself not bound by the statute ( 54-86b) pursuant to which the defendant sought production of prior statements of prosecution witnesses. 2. The trial court did not abuse its discretion when it permitted the state to cross-examine, as a hostile witness, its own witness after he had become equivocal and evasive on direct examination and after it was established that he was acquainted with the defendant.
3. The trial court did not abuse its discretion when it refused to permit the defendant to demonstrate how his hand had allegedly been bandaged on the night when the crimes charged were claimed to have occurred: the proffered bandaging had no probative value and its size and cleanliness would have been difficult to duplicate.
(Two judges dissenting)
Argued December 11, 1973
Decision released July 2, 1974
Information in two counts charging the defendant with the crimes of indecent assault and conspiracy to commit the crimes of rape, indecent assault, sodomy, robbery with violence and aggravated assault, brought to the Superior Court in New Haven County and tried to the jury before Shapiro, J.; verdict and judgment of guilty on both counts and appeal by the defendant. No error.
The appellant filed a motion for reargument which was denied.
Jeremy G. Zimmerman, special public defender, for the appellant (defendant).
Jerrold H. Barnett, assistant state's attorney, with whom were Ernest J. Diette, Jr., assistant state's attorney, and, on the brief, Arnold Markle, state's attorney, for the appellee (state).
The defendant, Vincent Esposito, was convicted in a jury trial of one count of indecent assault and of a second count of conspiracy to commit the crimes of rape, indecent assault, sodomy, robbery with violence and aggravated assault. The defendant's motion to set aside the verdict was denied by the trial court and he has appealed from the judgment rendered thereon, assigning error in certain rulings on evidence. This case was a companion case to State v. Clemente, ante, 501, and State v. DellaCamera, post, 557, both decided this day.
In the late evening of April 12 and the early morning hours of April 13, 1969, two young females and one young male, the complaining witnesses, were subjected to a series of sexual assaults by a group of males belonging to a motorcycle club known as the Slumlords. Reference is made to State v. Clemente, supra, for more detailed facts. Among those who allegedly forced one of the female complaining witnesses to commit an indecent assault and conspired with others that rape and aggravated assaults and indecent assaults be committed was the defendant Vincent Esposito. During the trial the complaining witness identified this defendant and the three codefendants as her assailants.
The assignments of error directed to the finding have been reviewed and corrections have been made where necessary. The defendant has assigned as error two rulings made by the court denying discovery motions under 54-86b of the General Statutes.
There is no merit to the defendant's argument that the court should have included in the defendant's claims of proof the fact that a state's exhibit for identification was never submitted as evidence. "Where a party seeks additions to its own claims of proof in a case tried to the jury, the additions should be made if they are material and are supported by the evidence." Wright v. Coe Anderson, Inc., 156 Conn. 145, 149, 239 A.2d 493. This paragraph of the draft finding was immaterial since the state never claimed that the exhibit was in evidence and there was no need for disproof of that fact in the finding. The state conceded in its brief that there was an error in a portion of one of its claims of proof as to the first date of testimony about the bandage on the defendant's hand. The necessary corrections have been made in the finding. The state also admitted that it erred in its claims of proof as to the subject covered in the testimony of three witnesses. The remaining assignments of error either are supported by the evidence in the appendix to the state's brief or are immaterial.
On direct examination the complaining witness described the series of assaults perpetrated on her on the evening and early morning of April 12 and 13, 1969. She stated that there was sufficient illumination at that time for her to observe her attackers. She identified the defendant as one of the individuals who forced her to commit an indecent assault and described his appearance at that time. The witness had previously furnished the police with five statements relating to her direct testimony. The defendant requested these statements from the state's attorney as of right under 54-86b. The court had previously made it abundantly clear that it would not recognize the statute. It had also previously stated to all counsel that it would examine any statement to determine if there were inconsistencies under the rule of such cases as Hurley v. Connecticut, 118 Conn. 276, 284, 172 A. 86. When counsel for the defendant requested these statements, the court stated: "I take it that you are also making the request through the Court by motion, Mr. Trotta, strictly and solely under Public Act 680 [General Statutes 54-86b]." Counsel answered: "At this time, yes, your Honor." The record does not indicate any change of position on the demand nor is any other position claimed in the brief.
Officer William Andrews of the Wallingford police department testified that he observed a gathering of people around a bonfire off Tyler Mill Road at about 2 a.m. on April 13, 1969, and that he later filed a written report of his observations on that morning. Counsel for another defendant moved under 54-86b that this report be produced for examination. The court denied the motion and counsel for the defendant Esposito joined in the exception to this ruling.
The court was not in error in refusing to be bound by 54-86b and in holding that if counsel requested prior statements of witnesses on the stand, they were to follow the recognized procedures referred to. State v. Clemente, supra.
The defendant claims that the court erred in allowing the state to examine Thomas Palmer, its own witness, as a hostile witness. "Whether a State Attorney shall be permitted to cross-examine his own witness, and to what extent, upon the ground of surprise, or that the witness is hostile, is ordinarily under our practice a matter resting in the sound discretion of the trial court. The essential question . . . is whether the court abused its discretion in allowing certain questions to be asked." State v. Gargano, 99 Conn. 103, 113, 121 A. 657. A ruling on evidence must be tested by the finding. Practice Book 648; Katz v. Brandon, 156 Conn. 521, 538, 245 A.2d 579. The finding discloses that Palmer was a member of the New Haven Slumlords and was called by the state as a witness. He testified that he had been at the bonfire until 10:15 or 10:30 p.m. on April 12, 1969, and thereafter was in a car drinking beer and smoking marijuana with fellow club members. The record indicates that after preliminary questions on direct examination the witness was equivocal and evasive. On October 23, 1969, in the state's attorney's office, Palmer had given a statement which was written down and subsequently read back to him. He had acknowledged the statement to be true but had declined to sign it. During direct examination, the state's attorney was compelled to refer repeatedly to portions of Palmer's statement about identification of a photograph of the defendant and whether it accurately depicted the defendant's appearance as of April 12, 1969. After he also had established that Palmer and the defendant had known each other since approximately February of 1967, the state's attorney requested and received the court's permission to cross-examine Palmer on the dual basis of prior friendship and prior inconsistent statements. In this situation it was not an abuse of discretion for the trial court to declare Palmer a hostile witness and to allow cross-examination by the state. Fox v. Schaeffer, 131 Conn. 439, 447, 41 A.2d 46; State v. Gargano, supra; 58 Am.Jur., Witnesses, 570, 571; 1 Jones, Evidence (6th Ed.) 24.12; McCormick, Evidence (2d Ed.) 6, p. 10.
The defendant's final assignment of error is that the court erred in not allowing him to demonstrate before the jury how his right hand was allegedly bandaged on the night of April 12, 1969. The defendant produced several witnesses besides himself who testified that a gauze bandage covered his right hand on or about April 12, 1969. While the descriptions varied in detail, testimony indicated that when the defendant arrived at the bonfire on the evening of April 12, the bandage was covered by a large "railroad glove" which reached to his elbow. The defendant testified that he wore an ace bandage around the gauze on his hand, under the work glove. He further testified that while he was at the bonfire he had taken the glove off, and that earlier in the day while his hand was bandaged, he had changed the transmission on his motorcycle. Other testimony also indicated that the bandage was dirty. Neither the complaining witness who was forced by the defendant to commit an indecent assault nor the other female complaining witness noticed a bandage on the right hand of the defendant during the time of the assaults.
The court made two rulings on counsel's requests that the defendant be allowed to bandage his hand with gauze to demonstrate its appearance. In his reply brief, the defendant abandons the claim of error on the ruling disallowing the offered demonstration of bandaging the hand as it appeared on April 9, 1969, since that was three days before the episode in question, and was too far removed in time to be relevant. As to the second ruling, however, the defendant claims that his testimony established a proper foundation showing similarity of conditions and that the court erred in refusing to allow the defendant to bandage his hand as it appeared on April 12, 1969.
The bandaging of the hand had no probative value other than to serve as a visual aid to illustrate the defendant's testimony to the jury. Although the defendant did testify that he would "wrap" his hand as it appeared on April 12, 1969, there would be difficulties in duplicating both the size and the cleanliness of the original bandage. The offer involved using gauze that the defendant had purchased for the demonstration. Clean, white gauze on a hand would have a different appearance from the bandages which testimony had established were dirty and three days old, and which had been used in working on the transmission and motor of a motorcycle. The offered demonstration would naturally be more visible and more likely to attract attention than the bandages of April 12, especially under the darkened conditions existing at the time of the assaults.
The admission of demonstrations rests in the sound discretion of the trial court, in both criminal and civil cases, and this discretion will not be interfered with on appeal unless it is apparent that it has been abused. Although the basis of decision was not expressed by the court, the ruling could have relied upon the dissimilarity of appearance indicated by the record. "[T]he question of the similarity of conditions prevailing at the time of the [demonstration] to those which prevailed at the time of the occurrence in question is one that lies within the sound discretion of the trial court, to be decided in the light of all the surrounding facts and circumstances." 29 Am.Jur.2d 909, Evidence, 818; State v. Vennard, 159 Conn. 385, 395-96, 270 A.2d 837, cert. denied, 400 U.S. 1001, 91 S.Ct. 576, 27 L.Ed.2d 625; King v. Spencer, 115 Conn. 201, 203, 161 A. 103. The defendant had no absolute right to the demonstration evidence and no abuse of discretion has been shown in the court's refusal to allow the demonstration.
In his brief, the defendant expressly abandoned the remaining assignments of error.