Opinion
(7088)
Convicted of the crime of assault in the first degree, the defendant appealed to this court. Held: 1. Under the circumstances here, the trial court did not abuse its discretion in refusing to permit the defendant to impeach the testimony of B, a witness for the state, by showing that R was on probation; the defendant was permitted to cross-examine B as to sufficient facts from which the jury could draw inferences relating to B's credibility and the effect of B's probationary status was a speculative and collateral matter. 2. The trial court did not abuse its discretion in excluding evidence of a prior act of violence by the victim; a victim's violent character may not be established by evidence of specific acts, and, because the defendant did not claim that he was acting in self-defense, he did not establish the necessary predicate to introducing evidence of any type concerning the victim's alleged propensity for violence. 3. The defendant's claim, raised for the first time on appeal, that the trial court erred in considering charges pending against him at the time of sentencing was not reviewable.
Submitted on briefs May 17, 1989
Decision released July 18, 1989
Substitute information charging the defendant with the crime of assault in the first degree, brought to the Superior Court in the judicial district of New Haven and tried to the jury before Quinn, J.; verdict and judgment of guilty, from which the defendant appealed to this court. No error.
John F. Kavanewsky, Jr., filed a brief for the appellant (defendant).
Vincent J. Dooley, deputy assistant state's attorney, Michael Dearington, state's attorney, and Gerald F. Esposito, assistant state's attorney, filed a brief for the appellee (state).
The defendant appeals from the judgment of conviction, after a jury trial, of assault in the first degree in violation of General Statutes 53a-59 (a)(1). He claims that the trial court erred (1) in improperly restricting his cross-examination of a state's witness, (2) in refusing to admit evidence of a prior aggressive act of the victim, and (3) in taking improper information into consideration at the time of sentencing. We find no error.
The record shows that on February 11, 1988, the defendant was on trial for assault in the first degree in violation of General Statutes 53a-59 (a)(1). The victim's brother, Wilber Brown, was called as a state's witness. Following his direct testimony and after extensive cross-examination on the details of his direct examination, he was dismissed. After an off the record conference, the court permitted the defendant to recall the witness and to resume cross-examination for the purpose of introducing his prior felony record for impeachment purposes. Because of certain discrepancies in that record, court was adjourned until February 16, 1988, to allow the state an opportunity to obtain Brown's correct criminal record. At the time of the adjournment, Brown was instructed to return to court at noon on February 16. He did not appear at that time and the state proceeded with other evidence. When he returned to court the following day, he testified that this disobedience of the order to return at noon on February 16 was wilful. He also testified that he had two robbery convictions but the court sustained an objection to the defendant's question as to whether he was on probation for these convictions.
The defendant first claims that the court erred in refusing to permit him to impeach Brown by showing that he was on probation and that his wilful failure to reappear in court may have inspired a fear that he would be charged with a violation of that probation. The defendant argues that this limitation on his cross-examination violated his right of confrontation under the sixth amendment to the United States constitution. He contends that the possibility of a probation violation might have motivated Brown to testify adversely to the defendant. We agree that the sixth amendment right of confrontation includes the opportunity to cross-examine concerning a witness' motive, interest, bias and prejudice. State v. Monteeth, 208 Conn. 202, 209, 544 A.2d 1199 (1988). It is well recognized that an important function of cross-examination is to expose a witness' possible motivation in testifying. Id.
The defendant also bases this claim on a violation of the Connecticut constitution. He does not, however, offer any separate analysis for his argument of a state constitutional violation. Accordingly, we will consider only his federal claim. State v. Bruens, 18 Conn. App. 459 460 n. 1, 557 A.2d 1290 (1989).
"`A claim of undue restriction on cross-examination ordinarily involves a two-pronged analysis: (1) whether the constitutional standard has been met; and if so, (2) whether the court nonetheless abused its discretion' State v. Chapman, 16 Conn. App. 38, 46, 546 A.2d 929 (1988), quoting State v. Diorio, 12 Conn. App. 74, 76, 529 A.2d 1320, cert. denied, 205 Conn. 813, 532 A.2d 587 (1987), cert. denied, ___ U.S. ___, 108 S.Ct. 1025, 98 L.Ed.2d 990 (1988). The first prong has been satisfied when the defendant has been permitted to reveal facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the witness' reliability. State v. Jones, 205 Conn. 638, 669, 534 A.2d 1199 (1987); State v. Chapman, supra.
A review of the record in the present case discloses extensive cross-examination by the defendant revealing, inter alia, that the witness was the victim's brother, that he had been convicted of robbery twice, that each robbery involved use of a gun and that he had wilfully disobeyed the court's order to return to court. The only restriction imposed related to whether the witness was on probation. Accordingly, the defendant was permitted to expose facts to the jury from which it could properly draw inferences relating to the reliability of the witness. State v. Chapman, supra, 46-47. We conclude that the first prong has been satisfied.
Turning to the second prong, `[w]hen the right to cross-examine to demonstrate bias, motive or prejudice is not altogether denied, the scope and extent of cross-examination rests in the court's discretion.' Id., 47, quoting State v. Diorio, supra, 77. The defendant argues that the witness's disobedience of the court's order could expose him to being found in contempt of court which could trigger a violation of probation charge. These are speculative and collateral matters and inquiry into them was clearly within the trial court's discretion. Thus, we conclude that under the circumstances of this case, the trial court did not abuse that discretion in refusing to allow cross-examination on the witness's probationary status.
II
The defendant next claims that the trial court erred in refusing to allow him to establish that the victim was the aggressor by introducing evidence of a similar act of violence by the victim. Several witnesses related the victim's predisposition to aggression. Following that testimony, the defendant attempted to introduce evidence of a prior unrelated incident in which the victim is alleged to have used a shotgun to resolve a dispute.
It is well settled that in an assault case, when the defendant has claimed self-defense, the victim's violent character may not be established by evidence of specific acts. State v. Webley, 17 Conn. App. 200, 206, 551 A.2d 428 (1988). In the present case, however, the defendant did not claim that he was acting in self-defense when he shot the defendant. Because such a claim is a necessary predicate to introducing evidence of any type concerning the victim's alleged propensity for violence, we are satisfied that the trial court did not abuse its discretion in excluding evidence of a prior specific act.
III
The defendant's final claim is that the trial court erred in considering pending charges against him for similar offenses when it sentenced him. It is a fundamental appellate principle that a claim of error is not reviewable unless it is distinctly raised in the trial court. Practice Book 4185. Two recognized exceptions to this principle are the exceptional circumstances doctrine of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), and the plain error rule of Practice Book 4185. The defendant does not seek review under either of these exceptions. Thus, under the facts of this case, we decline to address the merits of this claim. State v. Maisonet, 16 Conn. App. 89, 97, 546 A.2d 951, cert. denied, 209 Conn. 816, 550 A.2d 1086 (1988), cert. denied, ___ U.S. ___, 109 S.Ct. 1127, 103 L.Ed.2d 189 (1989).