State v. McIntosh

530 A.2d 191, 12 Conn. App. 179, 1987 Conn. App. LEXIS 1046
CourtConnecticut Appellate Court
DecidedAugust 25, 1987
Docket4898
StatusPublished
Cited by10 cases

This text of 530 A.2d 191 (State v. McIntosh) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. McIntosh, 530 A.2d 191, 12 Conn. App. 179, 1987 Conn. App. LEXIS 1046 (Colo. Ct. App. 1987).

Opinion

Borden, J.

The defendant appeals from the judgment of conviction, after a jury trial, of sexual assault in the first degree with a deadly weapon in violation of General Statutes § 53a-70a. The defendant’s principal claims are that the trial court erred (1) in allowing the state to cross-examine the defendant with evidence of prior acts of misconduct that did not relate to veracity and, additionally, to introduce extrinsic evidence on rebuttal with respect to those acts, (2) in denying the defendant’s motion for judgment of acquittal, and (3) in permitting the state to elicit prior consistent statements from two of its witnesses on direct examination. We find error on the defendant’s first claim.

The jury could reasonably have found the following facts: On September 2, 1982, the victim was working as a prostitute in Waterbury. A man driving a brown Monte Carlo, later identified as the defendant, pulled up alongside the victim and began talking with her. He left the car to approach her, displayed a revolver, and told her to get into the car. The victim complied because she was frightened. They drove one mile to Fulton Park where the defendant stopped the car. He grabbed the victim by the hair and said, “Bitch, you’re going to do what I want [you] to do.” She struggled with the defendant and he hit her a number of times. He forced her to perform oral and vaginal intercourse. The entire incident lasted about thirty minutes and, at the conclusion, the defendant drove off in his car leaving the victim in the park. A motorist stopped to aid her and took her to the police station. On the way, the victim [181]*181saw her friend, Velma King, another prostitute, speaking with the defendant who was sitting in the Monte Carlo. She yelled to King not to leave with the defendant. The defendant sped off and King accompanied the victim to the police station. The victim identified the defendant during a photographic array and in court.

I

The defendant first claims that the trial court erred in permitting the state to impeach him on collateral matters raised during cross-examination. This claim has two aspects: first, that the trial court erred in allowing the defendant to be questioned on cross-examination about prior acts of misconduct, namely, soliciting prostitutes; and second, that the trial court erred in allowing the state, after the defendant’s denial of the misconduct, to present two of the prostitutes as rebuttal witnesses. We agree.

In order to place this issue in its proper context, it is necessary to examine the relevant testimony, objections and rulings. The victim testified, as the state’s witness, that both prior to and after the sexual assault, she had seen the defendant. Specifically, she testified that she had seen Judy Nordby getting out of the defendant’s car on one occasion and Denise Dearie getting into the car on another. She testified, without objection by defense counsel, that both women were prostitutes.

The defendant testified on his own behalf, and denied committing the sexual assault. On cross-examination, the assistant state’s attorney asked: “And, you occasionally would pick up1 prostitutes in the car, isn’t that [182]*182right?” Defense counsel objected, but after a short colloquy withdrew his objection. The defendant responded that he did not pick up prostitutes. The assistant state’s attorney then asked the defendant whether he had “picked up” Denise Dearie and Judy Nordby, respectively.. The defendant answered “No.” The state’s attorney then began to ask: “Didn’t you have sex” at which point defense counsel objected. The trial court sustained the objection on the ground that the defendant had denied ever “picking up” the two women. Thereafter, the assistant state’s attorney asked the defendant whether he “picked up” Debbie Cybulski. Defense counsel objected on the basis that there was no earlier testimony by the victim concerning this person. The objection was overruled and defense counsel duly excepted. The state’s attorney thereupon asked the defendant whether he ever “picked up” Sandra Webb. Once again, the defendant objected and out of the presence of the jury argued that the state was attempting to impeach the defendant by evidence of prior acts of misconduct.2 Defense counsel argued that patronizing a prostitute, a misdemeanor, is not a basis for impeachment. The court ruled that the questions were permissible. Defense counsel took an exception to the ruling only with respect to questions about Cybulski and Webb, conceding that since the victim had earlier testified that she had seen the defendant in the presence of Nordby and Dearie, the questions asked of the defendant with respect to these two women were [183]*183relevant to the victim’s identification of him. Thereafter, the defendant was asked whether he “picked up” Cybulski and Webb, respectively, to which he answered “No.”

After both the state and the defendant had completed their cases, the state called as rebuttal witnesses both Nordby and Cybulski. The defendant objected on the ground that the purpose of the testimony was to place before the jury evidence of the defendant’s prior acts of misconduct, namely, patronizing prostitutes, which, even if a permissible subject of inquiry on cross-examination, as a collateral matter could not be proved by the introduction of extrinsic evidence. The defendant argued further that the state was required to accept the answers given by the defendant on cross-examination that he had not “picked up” Nordby or Cybulski. The state argued that the evidence was admissible on the issue of the truthfulness of the defendant’s answer on cross-examination. The trial court overruled the defendant’s objection and allowed the rebuttal witnesses to testify. Thereafter, both Nordby and Cybulski testified that they were prostitutes, and had been approached by the defendant and had gone off with him. Cybulski testified that she met the defendant in a bar and left with him for Fulton Park and remained with him for three and one-half hours. Nordby testified that after the defendant drove up to her in his car she got in and they drove away.

It is beyond dispute that a witness may be impeached by evidence of specific acts of misconduct which relate to veracity, but not by those that merely illustrate general bad behavior. State v. Martin, 201 Conn. 74, 85-86, 513 A.2d 116 (1986); State v. Roma, 199 Conn. 110, 116-17, 505 A.2d 717 (1986); Martyn v. Donlin, 151 Conn. 402, 408, 198 A.2d 700 (1964); Vogel v. Sylvester, 148 Conn. 666, 675, 174 A.2d 122 (1961); C. Tait & J. LaPlante, Connecticut Evidence § 7.22a. The concern, [184]*184of course, is that a jury will convict the defendant on the basis of his bad character as evidenced by his prior bad acts and not on the basis of the evidence adduced at trial on the specific crime with which he is charged. Where, however, the collateral bad acts relate to veracity, the defendant is subject to cross-examination concerning them. State v. Perry, 195 Conn. 505, 523, 488 A.2d 1256 (1985); State v. Orsini, 187 Conn. 264, 268,

Related

State v. Lambert
754 A.2d 182 (Connecticut Appellate Court, 2000)
State v. Chance
671 A.2d 323 (Supreme Court of Connecticut, 1996)
State v. Dunn
598 A.2d 658 (Connecticut Appellate Court, 1991)
State v. Moore
581 A.2d 1071 (Connecticut Appellate Court, 1990)
State v. Wynter
564 A.2d 296 (Connecticut Appellate Court, 1989)
State v. Nguyen
552 A.2d 823 (Connecticut Appellate Court, 1989)
Demers v. State
547 A.2d 28 (Supreme Court of Connecticut, 1988)
State v. Coleman
544 A.2d 194 (Connecticut Appellate Court, 1988)
State v. McIntosh
205 Conn. 788 (Supreme Court of Connecticut, 1987)
State v. Trujillo
531 A.2d 142 (Connecticut Appellate Court, 1987)

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Bluebook (online)
530 A.2d 191, 12 Conn. App. 179, 1987 Conn. App. LEXIS 1046, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mcintosh-connappct-1987.