State v. Lee

Katz, J., with whom Berdon, J.,

joins, concurring in part and dissenting in part. I agree with the majority’s conclusion that the Appellate Court improperly held that the trial court was required to allow the questioning in issue as a matter of constitutional entitlement. I disagree, however, with the majority’s conclusion that the trial court’s ruling prohibiting the question was nevertheless correct. I agree with the majority’s resolution in part II. I disagree with the majority’s resolution in part III and join in the dissenting opinion by Justice Berdon.

The majority is correct that the right of confrontation did not require the trial court to permit the defendant to cross-examine David Hoyt for bias arising from his status as an employee of the United States government. Once cross-examination sufficient to satisfy the sixth amendment has been allowed, it falls to the sound judicial discretion of the trial judge to decide whether to restrict the scope of cross-examination. State v. Lewis, 220 Conn. 602, 622, 600 A.2d 1330 (1991). In addition, as the majority points out, the trial court improperly failed to exercise its discretion when it “categorically prohibited all questioning on any forfeiture actions . . . based on the mistaken belief that such testimony was categorically inadmissible.”

I do not agree, however, that “had the trial court exercised its discretion, it could only have concluded, based upon the record in this case, that the proffered testimony was inadmissible.” (Emphasis added.) I do not believe that the proffered testimony was, as a matter of law, so remote and attenuated, that the jury, following a proper limiting instruction, would have had its sympathy so unduly aroused had the questioning been allowed. Nor do I think that the proceedings would have been so protracted and chaotic. In my opinion, the trial court could have gone either way; that is to say, the trial court could have exercised its discretion and allowed the questions or exercised its discretion and prohibited the questions.¹ Had the trial court done either, on this basis of the record in this case, I would find that there had been no abuse of discretion.

I see no reason to preempt the trial court from determining whether certain cross-examination material is attenuated to the point of being inadmissible because of relevancy or possible prejudice. Ultimately it is for the trial court, in its discretion, to rule as an evidentiary matter, and we review accordingly. Both parties agree that the dispositive issue in the Appellate Court is not before us in this appeal, and that there is to be a new trial. I would allow the trial court at this new trial to start with a clean slate and exercise its judicial discretion as it deems appropriate should this area of inquiry be revisited.

1 In addition to the question posed, defense counsel indicated in his brief that he would also have asked, had he not been foreclosed with the threat of disciplinary proceedings, whether Hoyt was the supervising agent in the forfeiture actions.