State v. Prioleau

BERDON, J.,

dissenting. The trial court, in my view, should not have allowed the state to cross-examine the defendant, Herbert Prioleau, about the other weapons found in his apartment and should not have allowed these other weapons to be admitted into evidence. I reach this conclusion for three reasons: (1) the defendant’s statements that the state sought to attack were irrelevant, collateral issues and, as such, should not have been grounds for impeachment; (2) the impeaching evidence used by the state — the other weapons found in the defendant’s apartment — was evidence of other misconduct and, as such, was inadmissible; and (3) the prejudice suffered by the defendant as a result of the admission into evidence of the weapons outweighed any probative value they may have had.

I

During direct examination, the defendant made a very limited reference to the weapon he had used to shoot *327the victim. The defendant testified that before leaving his apartment immediately before encountering the victim, he had put on his coat. In the right pocket of the coat, he testified, was a .38 caliber pistol. The defendant testified that this was the weapon he had pulled out of his coat and used to shoot the victim. As the majority notes, although the defendant “testified in detail on direct examination regarding the shooting itself and the circumstances leading up to the fatal encounter, he intentionally refrained from testifying as to the type of gun used or as to where, when or how he had acquired it." (Emphasis added.)

Nevertheless, during cross-examination, the state expanded the scope of the defendant’s testimony with a series of seemingly innocuous questions. This colloquy was as follows:

“Q. When did you buy the gun, sir?
“A. On Monday after [the victim] told me he was going to kill me.
“Q. The Monday after [the victim] told you he was going to kill you. All right. Which was when, sir?
“A. That would be around the 25th or the 24th, something like that.
“Q. Of November.
“A. Yes, sir.
“Q. So, you needed to go buy a gun, is that your testimony?
“A. That’s right.”

The state then asked the following question, over the objection of the defendant:

“Q. Is that because you didn’t have any guns in the house?
*328“A. That’s right.”

It was in response to this latter answer by the defendant, to a question to which his counsel objected, that the state justified launching into an avalanche of prejudicial evidence.1 Over the objection of the defendant, the state introduced into evidence the following weapons, ammunition and firearm accessories (hereinafter weapons) that were found in the defendant’s apartment but were otherwise totally unrelated to this case: a loaded .41 caliber revolver; a shotgun case containing a loaded shotgun; several rounds of ammunition for the shotgun; Rossi brand pistol grips; a holster that would hold the .38 caliber revolver the defendant had used to shoot the victim; and a speed loader for .38 caliber bullets. This line of questioning, therefore, was a cleverly crafted strategy on the part of the state to bring into evidence through the back door what it could not bring in through the front: evidence of other misconduct by the defendant.

Nevertheless, the questions asked by the state, and the responses given by the defendant, had no relevance to the issues presented by this case.2 Indeed, the questions asked by the state did not have any bearing on points raised during the direct examination of the defendant. Rather, this series of questions gradually *329went beyond the scope of the direct examination, raising issues the only purpose of which was to allow impeachment of the defendant. The state, therefore, should not have been allowed to impeach the defendant on the basis of the answers he had given to these irrelevant questions. “A witness cannot be impeached by contradicting his testimony as to collateral matters, that is, matters not material to the merits of the case. State v. Wilson, 158 Conn. 321, 324, 260 A.2d 571 (1969); 2 B. Holden & J. Daly, Connecticut Evidence (1988) § 125d (1), p. 1270.” State v. Graham, 21 Conn. App. 688, 703, 575 A.2d 1057, cert. denied, 216 Conn. 805, 577 A.2d 1063 (1990). Accordingly, the trial court should not have allowed the state to impeach the testimony of the defendant.

II

Moreover, this evidence used by the state to impeach the defendant was not properly admitted. By introducing evidence of the other weapons found in the defendant’s apartment, the state left the jury with the impression that the defendant possessed a violent disposition, bad character and a predisposition to commit crimes of a violent nature.

Misconduct evidence of this type is not admissible to show that a defendant is guilty of the crime with which he is charged. “It is fundamental to American jurisprudence that a defendant must be tried for what he did, not for who he is.” (Internal quotation marks omitted.) United States v. Foskey, 636 F.2d 517, 523 (D.C. Cir. 1980). “The rationale of this rule [making evidence of other misconduct inadmissible] is to guard against its use merely to show an evil disposition of an accused, and especially the predisposition to commit the crime with which he is now charged. . . . Evidence of other misconduct, however, may be allowed for the puipose of proving many different things, such as intent, *330identity, malice, motive or a system of criminal activity. . . .” (Citations omitted; internal quotation marks omitted.) State v. O’Neill, 200 Conn. 268, 273, 511 A.2d 321 (1986).

The evidence of the other weapons found in the defendant’s apartment does not satisfy any of these exceptions to the rule. Rather, the state introduced the evidence of the other weapons solely as a means to impeach the defendant. As such, the trial court should not have allowed the state to admit these other weapons into evidence.

Ill

Finally, even if the basis for impeachment was sound, and even if misconduct evidence, as a general principle, may be used for such a purpose, the trial court should not have allowed the misconduct evidence to be used in this manner in this case. In short, the prejudice suffered by the defendant as a result of the testimony regarding the discovery of the weapons in his apartment, as well as the admission into evidence of the weapons themselves, outweighed any probative use they may have had. See generally State v. Morowitz, 200 Conn. 440, 443, 512 A.2d 175 (1986). I disagree both with the standard employed by the majority to analyze this issue and with the conclusion that the majority draws therefrom.

The majority mischaracterizes and misapplies the degree of discretion a trial court may exercise in determining whether the prejudicial effect of evidence outweighs any probative value. The majority states that a trial court has “broad discretion” to make this determination. Because of the highly prejudicial effect of misconduct evidence, however, the applicable discretion is not “broad” but rather quite limited. Indeed, the trial court’s discretion in this circumstance has always been limited by what I consider to be a very important consid*331eration — justice. As Justice Longo wrote for a unanimous court sixteen years ago: “Discretion . . . imports something more than leeway in decision-making. . . . Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. In a plain case this discretion has no office to perform, and its exercise is limited to doubtful cases, where an impartial mind hesitates. . . . When assessing the admissibility of other crimes evidence, the application of a mechanical test determining that the proffered evidence fits within some class of exception to the rule of nonadmissibility, may obscure sight of the underlying policy of protecting the accused against unfair prejudice. That policy ought not to evaporate through the interstices of the classification. The problem is thus one of balancing the actual relevancy of the other crimes evidence in light of the issues and the other evidence available to the prosecution against the degree to which the jury will probably be roused by the evidence. . . . Put another way, if the issue to be proved is competent but can just as well be demonstrated by other evidence, or if the evidence is of but slight weight or importance upon that point, a trial judge is justified in excluding the evidence entirely, if its probative value is marginal and its prejudicial tendencies clear. Such a balancing calls for a large measure of individual judgment about the relative gravity of imponderables. It should be recognized, however, that the discretion invested in the trial court is not a license to depart from the principle that evidence of other crimes, having no substantial relevancy except to ground the inference that the accused is a bad person and hence probably committed this crime, must be excluded. The leeway of discretion lies rather in the opposite direction, empowering the judge to exclude the other-crimes evidence, even when it has substantial *332independent relevancy, if in his judgment its probative value for this purpose is outweighed by the danger that it will stir such passion in the jury as to sweep them beyond a rational consideration of guilt or innocence of the crime on trial. ... A decision clearly wrong on this question of balancing probative value against danger of prejudice will be corrected on appeal as an abuse of discretion. . . .” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Onofrio, 179 Com. 23, 29-30, 425 A.2d 560 (1979).

In my view, the trial court, in allowing the evidence of the weapons to be introduced in this case, abused the limited discretion with which it was vested.3 Indeed, by allowing the other weapons into evidence as full exhibits, the trial court set the stage for a highly prejudicial impact on the jury. One of the police officers demonstrated in front of the jury how to use a speed loader and pistol grips. Moreover, the jurors were allowed to take the weapons into the deliberating room with them. Because the defendant was charged with having committed a murder with a firearm, the physical presence of the weapons mdoubtedly had a very powerful impact on the jurors. Indeed, I agree with Justice Norcott that “the evidence of the other guns was likely to provoke an mdue emotional response or hostility from the jurors. [T]he sight of deadly weapons . . . tends to overwhelm reason and to associate the accused with the [crime] without sufficient evidence. ... I fail to see what these other guns had to do with the gravamen of the case and why the placing of this veritable arsenal *333before the jury did not prejudicially cast the defendant as a bad character.” (Citations omitted; internal quotation marks omitted.) State v. Prioleau, supra, 324-25 (Norcott, J., concurring).4 The defendant’s other weapons should not have been admitted into evidence.

Furthermore, I disagree with the majority that the trial court’s limiting instructions alleviated any prejudice that may have resulted from the admission into evidence of the weapons. This court has recognized the reality of highly prejudicial evidence. “[W]e have . . . held that a curative instruction is not inevidently sufficient to overcome the prejudicial impact of [misconduct] evidence.” (Internal quotation marks omitted.) State v. Horne, 215 Conn. 538, 551, 577 A.2d 694 (1990). “The naive assumption that prejudicial effects can be overcome by instructions to the jury ... all practicing lawyers know to be unmitigated fiction.” (Citation omitted.) Krulewitch v. United States, 336 U.S. 440, 453, 69 S. Ct. 716, 93 L. Ed. 790 (1949) (Jackson, J., concurring).

Accordingly, I would reverse the conviction of the defendant and order a new trial. See, e.g., State v. Onofrio, supra, 179 Conn. 23 (reversing conviction where photographs of several weapons had been admitted into evidence in order to impeach credibility of defendant’s wife).

I respectfully dissent.

After the defendant answered the last question, the prosecutor indicated outside the presence of the jury that “I intend to submit evidence now [that] when the police searched this man’s house that he had a gun that had ammunition different than what has been introduced here, Judge, which is directly contrary to what he just testified to.”

The majority dismisses this argument of the defendant on the basis that he “did not claim at trial that the admission of the [police testimony regarding the other weapons] was an improper method of impeachment because it was ‘extrinsic misconduct evidence’ offered to contradict the defendant on a ‘collateral issue.’ Rather, the defendant’s counsel objected solely on the ground of relevancy.” (Emphasis in original.) In my view, however, the defendant’s timely objections to the line of questioning of the defendant by the state, and to the proposed police testimony about the other weapons found in the defendant’s apartment, was sufficient to preserve this claim for review.

Indeed, the transcripts do not demonstrate that the trial court even considered the merits of the defendant’s argument that the prejudicial effect of the weapons testimony outweighed any probative value. Although the defendant twice voiced this claim, the trial court never explained why the probative value outweighed the prejudicial effect. Moreover, the trial court never acknowledged that the admission into evidence of the weapons would have any prejudicial effect whatsoever. For this reason alone, I would reverse the defendant’s conviction and order a new trial.

Nevertheless, I disagree with Justice Norcott that the error was harmless because of the “compelling evidence of the defendant’s guilt” adduced by the state. “Any improper evidence that may have a tendency to excite the passions, awaken the sympathy, or influence the judgment, of the jury, cannot be considered as harmless.” (Internal quotation marks omitted.) State v. Onofrio, supra, 179 Conn. 32. Furthermore, the medical evidence, upon which Justice Norcott principally relies, is not conclusive. The medical examiner testified that, on the basis of the bullet wounds, he could only determine the relative positioning of the defendant and the victim, and that he could not determine in which order the shots were inflicted, the defendant’s distance from the victim at the time of the shooting, or whether the wounds had been inflicted in rapid succession.