Petition for Writ of Certiorari — Diorio v. Connecticut

| T} Court, U.S,

87 1059 Vir TLE D

DEC 21 87

Bagsere Aneisetiaas JR

No.

In Che

Supreme Court Of Che United States

OCTOBER TERM, 1987

MARY DIORIO,

Petitioner,

V.

STATE OF CONNECTICUT,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE APPELLATE COURT OF THE

STATE OF CONNECTICUT

WITH ATTACHED APPENDIX

RICHARD EMANUEL

350 Fairfield Avenue

P.O. Box 71

Bridgeport, Connecticut 06601

(203) 384-9361

Counsel for Petitioner

Printed by

Brescia’s Printing Services, Inc

66 Connecticut Boulevard

East Hartford, CT 06108

528-4254

QUESTION PRESENTED

Whether, in a case where the credibility of the prosecu-

tion’s principal witnesses was critical to the petitioner’s guilt

or innocence, the trial court unduly restricted petitioner’s right

to impeach the credibility of those witnesses, thereby violat-

ing her Sixth and Fourteenth Amendment rights to confront

and cross-examine adverse witnesses?

TABLE OF CONTENTS

Page

QUESTION PREGEN Ge ... isco ees e reer i

TABLE OF AUTHORITIES ................05000: iii

CPTI SCs TAM se is ot

Se NE ond he ee eee 2

CONSTITUTIONAL AND STATUTORY

PROVIGIONS INVOLVED . .. . wo 6 cece cae 2

STATEMENT OF THE CASE ............2-2ccsuus 4

I. State Trial Proceeeese ... gc ke csi eaes 4

II. State Appellate Proceedings ................... 14

REASONS FOR GRANTING THE WRIT ......... 15

A. Bias, Motive and Partiality.................... 17

B. Prior Misconduct Evidence.................... 21

CE a a ee ee 23

BP es a a eee 1A

il

TABLE OF AUTHORITIES

Cases: Page(s)

Alford v. United States, 282 U.S. 687, 51 S.Ct.

ae es | ee reer rar 16, 17, 22

Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21

EE ae ne a 15

Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct.

1066, 36 L.Ba.3a 207 (1078) ..................: 19

Davis v. Alaska, 415 U.S. 308, 94 S.Ct.

1105, 39 L.Ed.2d 347 (1974) ....... 15, 17, 19, 20, 22

Delaware v. Fensterer, 474 U.S. 15, 106 S.Ct. 292, 88

I ecu a eaausenaeesess 15

Delaware v. Van Arsdall, 475 U.S. 673, 106

S.Ct. 1431, 89 L.Ed.2d 674 (1986) .. 15, 16, 17, 18, 19

District of Columbia v. Clawans, 300 U.S. 617, 57

ee EO ey) 16

Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13

ee ee 15

Gordon v. United States, 344 U.S. 414, 73 S.Ct. 369,

Te Cee ew cee ec tee newvass 16

Gordon v. United States, 383 F.2d 936 (DC. Cir.

EN oe oe dk wks baaecn ste. 21

Kentucky v. Stincer, 482 US. , 107 S.Ct. 2658,

rr 15

Lee v. Illinois, 476 U.S , 106 S.Ct. 2056, 90

L.Ed.2d 514 (1986)............ Sea ee a ek a.

lil

TABLE OF AUTHORITIES (continued)

Cases: Page(s)

Pennsylvania v. Ritchie, 480 U.S. ____, 107 S.Ct. 989,

em 8 Ls ae 15

Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13

Raa IIE oo 5-4 & cea wx a Noh we oe oe doce 15

Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19

Ramee TD sc ks 3G) ob no So ew sahesaee 16, 17

State v. Asherman, 193 Conn. 695, 478 A.2d 227,

cert. denied, 470 U.S. 1050, 105 S.Ct. 1749, 84

Da De GRE (UGB . cw. cc ccc ccs vcccsaacen 20

State v. Diorio, 12 Conn. App. 74, 529 A.2d 1320,

cert. denied, 205 Conn. 813, 532 A.2d 587

i lear atea rear Eres ere gran, “Femme passim

State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973) .... 14

State v. Gaynor, 182 Conn. 501, 435 A.2d 1022

Ts 6 Sak eke oe eT SP oe ee 22

State v. Harris, 10 Conn. App. 217, 522 A.2d 323

SEs calc ise es ca ee ee oe eee woe 18

State v. Lloyd, 185 Conn. 199, 440 A.2d 867 (1981) ... 18

State v. Nardini, 187 Conn. 513, 447 A.2d 396

Baa ie CER SP ie ae Mest el EL Be tan gh re 21

State v. Orsini, 187 Conn. 264, 445 A.2d 887, cert.

denied, 459 U.S. 861, 103 S.Ct. 136, 74 L.Ed.2d

LS. ors eee Semen | 21

The Ottawa v. Stewart, 3 Wall. (70 U.S.) 268, 18 L.Ed.

RN 2 ee ko le aa ae en te i | 16

United States v. Abel, 469 U.S. 45, 105 S.Ct. 465,

83 L.Ed.2d 450 (1964) ................. + ae

iv

a

TABLE OF AUTHORITIES (continued)

Constitutional Provisions: Page(s)

Sixth Amendment to the Constitution of the

I I 0 Pe ed i eae 2, 4, 14, 15

Fourteenth Amendment to the Constitution of

i Ce ee na ha eae ee eas 2, 4, 14, 15

Article First, § 8 of the Constitution

ial ONIN os Sots re ee eae ae 14

Statutory Provisions and Rules:

Connecticut General Stat. § 53a-8................... 4

Connecticut General Stat. § 53a-149a..... Are 4

Connecticut General Stat. § 53a-151................. 4

Connecticut General Stat. § 53a-181................. 4

& & Err Pere rte ee. 21

fi: +k S.A nerene rt rere ste 2

United States Supreme Court Rule 17.1............. 15

Miscellaneous:

McCormick on Evidence § 42 (3rd Ed. 1984)......... 21

Note, Confrontation, Cross-Examination, and the

Right to Prepare a Defense, 56 Geo. L.J. 939

rire ree rn rr 17

No.

In Che

Supreme Court Of Che United States

OCTOBER TERM, 1987

MARY DIORIO,

Petitioner,

V.

STATE OF CONNECTICUT,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE APPELLATE COURT OF THE

STATE OF CONNECTICUT

The petitioner, Mary Diorio, respectfully prays that a writ

of certiorari issue to review the judgments and opinion of the

Appellate Court of the State of Connecticut, rendered on

August 18, 1987 and September 16, 1987.

OPINIONS BELOW

The opinion of the Appellate Court of Connecticut on peti-

tioner’s direct appeal is officially reported at 12 Conn. App.

74. The opinion is unofficially reported at 529 A.2d 1320, and

is reprinted in the Appendix to this petition, at pp. 1A-17A.

The petitioner's motion for reargument or reconsidera-

tion was denied by the Appellate Court of Connecticut,

without opinion, on September 16, 1987. A copy of that order

is reproduced in the Appendix to this petition at p. 18A. Peti-

tioner thereafter filed a petition to the Supreme Court of Con-

necticut, seeking certification for review of the Appellate

Court judgment. The Supreme Court of Connecticut denied

the petition for certification, without opinion, on October 21,

1987. State v. Dioria, 205 Conn. 813, 532 A.2d 587. A copy

of that order is reproduced in the Appendix at p. 19A.

JURISDICTION

The judgment of the Appellate Court of Connecticut was

entered on August 18, 1987, and petitioner's timely motion

for reargument or reconsideration was denied by the Appel-

late Court of Connecticut on September 16, 1987. Petitioner's

timely petition for certification for review to the Supreme

Court of Connecticut was denied on October 21, 1987. The

jurisdiction of this Court is invoked pursuant to 28 U.S.C.

§ 1257(3), on the grounds that the State of Connecticut has

violated the petitioner's rights under the Sixth and Four-

teenth Amendments to the Constitution of the United States.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Sixth Amendment to the Constitution of the United

States provides in pertinent part: “‘In all criminal prosecu-

tions, the accused shall enjoy the right to be confronted

with the witnesses against him

Section 1 of the Fourteenth Amendment to the Consti-

tution of the United States provides in pertinent part: **

; nor shall any State deprive any person of life, liberty or

property, without due process of law;

ae

——_— lt | -_- _

Section 53a-8 of the Connecticut General Statutes, enti-

tled ‘‘Criminal liability for acts of another;’ provides as fol-

lows: “‘A person acting with the mental state required for

commission of an offense, who solicits, requests, commands,

importunes or intentionally aids another person to engage in

conduct which constitutes an offense shall be criminally liable

for such conduct and may be prosecuted and punished as if

he were the principal offender.’

Section 53a-181 of the Connecticut General Statutes, enti-

tled ‘‘Breach of peace: Class B misdemeanor,’ provides as

follows:

(a) A person is guilty of breach of the peace when,

with intent to cause inconvenience, annoyance or

alarm, or recklessly creating a risk thereof, he:

(1) Engages in fighting or in violent, tumultuous or

threatening behavior in a public place; or (2) assaults

or strikes another; or (3) threatens to commit any

crime against another person or his property; or

(4) publicly exhibits, distributes, posts up or adver-

tises any offensive, indecent or abusive matter con-

cerning any person; or (5) in a public place, uses

abusive or obscene language or makes an obscene

gesture; or (6) creates a public, hazardous or physi-

cally offensive condition by any act which he is not

licensed or privileged to do.

(b) Breach of peace is a class B misdemeanor.

STATEMENT OF THE CASE

After a trial to a state jury in 1985, petitioner Mary Diorio

was convicted of aiding and abetting the crime of breach of

peace, in violation of Connecticut General Statutes §§ 53a-8

and 53a-181.' As a result of that conviction, petitioner was

sentenced on May 16, 1985, to the following: a term of

imprisonment of one hundred and twenty days, execution sus-

pended after thirty days, to be served on ten successive

weekends, a fine of one thousand ($1000) dollars, a two-year

period of probation, and not less than two hundred hours of

community service.

The petitioner appealed, and on August 18, 1987, the

Appellate Court of Connecticut affirmed her conviction. State

v. Diorio, 12 Conn. App. 74, 529 A.2d 1320. The petitioner’s

motion for reargument or reconsideration in the Appellate

Court of Connecticut was denied on September 16, 1987. On

October 21, 1987, the Supreme Court of Connecticut denied

petitioner’s petition for certification for review. State v. Diorio,

205 Conn. 813, 532 A.2d 587.

In this petition, petitioner seeks review of a single ques-

tion: Whether, in a case where the credibility of the prosecu-

tion’s principal witnesses was critical to the petitioner’s guilt

or innocence, the trial court unduly restricted petitioner’s right

to impeach the credibility of those witnesses, thereby violat-

ing her Sixth and Fourteenth Amendment rights to confront

and cross-examine adverse witnesses?

I. State Trial Proceedings

The petitioner’s prosecution arose from a “‘pie in the face”’

incident which occurred at a junior high school graduation

' The defendant was also charged with, and acquitted of, the crimes of

tampering with a witness, in violation of Connecticut General Statutes

§ 53a-151, and bribery of a witness, in violation of Connecticut General Stat-

utes § 53a-149a.

exercise in Fairfield, Connecticut, on June 25, 1984. The pie

was thrown at the dean of students by one Robert Fuller, a/k/a

‘“Tickles’’ the clown.

The basic facts of the incident are set out in the opinion

of the Appellate Court of Connecticut, at 12 Conn. App. 75-76:

The jury could reasonably have found certain

relevant facts. The defendant’s daughter was a mem-

ber of the graduating class of a junior high school.

Prior to graduation, the dean of students at the school

had disciplined the defendant’s daughter. Seeking

revenge,” the defendant hired and paid one Robert

Fuller to dress as a clown at graduation and throw

a pie in the face of the dean of students. The dean

was hit with a cream pie in front of between one thou-

sand and two thousand people.

Stated briefly, it was the prosecution’s theory that peti-

tioner had aided and abetted the crime of breach of peace by

hiring Mr. Fuller to throw the pie at the dean of students.°

With regard to the felony charges on which petitioner was

acquitted, it had been the state’s theory that the petitioner

and her husband‘ attempted to inducé Mr. Fuller not to

divulge the identity of the person who hired him to throw

the pie.

At trial, the primary disputed issue was the identity of

the petitioner as the person who solicited Fuller’s pie-throwing

service. The prosecution’s proof on the identity issue rested

almost exclusively on the testimony of Fuller — who freely

admitted throwing the pie while dressed as “‘Tickles”’ the clown

— and one Donald Bello. Fuller and Bello were homosexual

2 The ‘revenge’ motive was refuted by the testimony of the school prin-

cipal, who testified that petitioner told him it would be advisable to keep

her daughter on disciplinary probation to improve her schoolwork.

3 Mr. Fuller was not arrested for throwing the pie.

4 Petitioner's husband was and is a practicing attorney in Connecticut.

lovers who lived together and who had been involved in joint

business ventures. At the time in question, they were co-

owners of a business known as the Fun Factory,” which was

located near the junior high school where the incident

occurred.

With regard to the identity question, the following excerpt

from the Appellate Court’s opinion is relevant:

Shortly after the incident, the [petitioner] volun-

tarily gave a statement to the police in which she

denied having hired the clown to throw the pie at the

victim. At trial, that statement was introduced as evi-

dence. The clown testified that the [petitioner] and

her husband had telephoned his store to inquire about

his services, and that the [petitioner] later entered

his store, ordered the pie throwing as part of the

graduation ceremonies, and paid him for the service.

He identified her for the police at a place where she

was, or had been employed, and he identified her at

trial. The [petitioner's] niece testified, and stated that

the [petitioner] had admitted to being responsible for

the incident. The niece further testified that the [peti-

tioner] and her husband had offered her five hundred

dollars to assume responsibility for the incident, and

as part of that plan had taken her to have her hair

frosted in order to resemble the [petitioner] more

closely. Although the [petitioner] did not testify at

trial, her husband did and stated that neither he nor

his wife had hired the clown.

State v. Diorio, supra, 12 Conn. App. at 83-84

The defense evidence cast serious doubt on Fuller’s iden-

tification testimony. The state had presented evidence that

on June 26, 1984, at the request of the police, Fuller went to

° The Fun Factory offered a variety of services, including balloon deliver-

ies, singing telegrams, costume deliveries, and ‘‘pie in the face’’ services.

the Fairfield Medical Laboratory where the petitioner for-

merly worked. He did not initially see the defendant there,

but when he returned an hour later, he saw her in the office.

The defense refuted this evidence through the testimony of

the laboratory manager and a former co-worker of petitioner.

Their testimony established that petitioner terminated her

employment there on February 15, 1984 — four months prior

to the date on which Fuller claimed to have seen her there.

It should also be noted that petitioner’s niece, referred

to in the above excerpt, admitted at trial that she had previ-

ously acknowledged responsibility for the pie-throwing inci-

dent. The niece’s brother also testified, and he confirmed the

fact that his sister admitted having told petitioner that she,

the petitioner’s niece, was responsible for the incident.

Because the identification testimony of Fuller and Bello

was critical to the prosecution’s case, the major thrust of the

defense case was aimed at impeaching their credibility. Toward

that end, the defense called several individuals who had had

professional business dealings with Fuller, Bello, or both of

them. These witnesses testified that, based on reputation or

personal opinion, Fuller and Bello were not truthful people.

Beyond that, the defense was completely frustrated in its

attempt to impeach Fuller and Bello during cross-

examination. At a hearing held outside the presence of the

jury, the defense made an extended offer of proof on a wide

variety of impeachment material which it was seeking to uti-

lize during cross-examination of the two men. That offer of

proof encompassed prior acts of misconduct relating to verac-

ity and matters relating to bias and motive. The trial court

ruled against the defense with regard to all of the offered

impeachment material. The particulars are described below.

A. Prior Misconduct Evidence

The petitioner attempted to cross-examine Fuller about

five acts of prior misconduct in order to impeach his credibil-

ity. Reduced to essentials, the proffered misconduct evidence

indicated that Fuller had: (1) engaged in fraudulent and decep-

tive practices in connection with a summer camp which he

ran in 1976; (2) engaged in fraud and false advertising in cv n-

nection with a summer stock playhouse he ran in 1982;

(3) committed thefts and made a false criminal complaint in

1980 or 1981; (4) embezzled from a camp in 1981; and

(5) solicited contributions through false and misleading

representations. The specifications of the prior misconduct

evidence, as set forth by defense counsel in his offer of proof,

are as follows:

1. Misconduct Act #1: The New York Camp

In 1976, Robert Fuller ran a summer camp in New York

called The Berkshire Showcase. In connection therewith,

Fuller was accused civilly of making false, deceptive and mis-

leading claims about the camp. The Attorney General of New

York obtained a civil judgment against Fuller for $33,000 in

penalties and $11,000 in restitution to parents of campers.

In addition, Fuller was permanently enjoined ‘‘from conduct-

ing business in a persistently fraudulent and illegal manner

and from operating a summer camp unless he has posted a

$200,000 bond to secure refunds for customers.’ (Def. Ex. 4

for Identification).®

® At several times during the offer of proof hearing, the defense introduced,

for identification purposes, documents relating to the specific acts of mis-

conduct. No claim was made that the documents themselves were admis-

sible. Rather, their purpose was to show the trial court that there was a

legitimate and good faith basis for inquiry about the acts in question.

2. Misconduct Act #2: The Maine Camp

In 1982, Fuller ran the Centerstage Theatre — billed as

‘“‘America’s Only Summer Stock Playhouse For Teens’’ — in

Maine. On July 20, 1982, midway through the summer, the

theatre camp closed; the staff was not paid, and the 39

campers had to be temporarily housed at the county jail. A

lawsuit brought by parents alleged that Fuller acted fraudu-

lently in that he never intended to run the camp for the whole

summer. It was also claimed (1) that Fuller put tuition pay-

ments in bank accounts under other names to insulate the

funds from legal process; (2) that in advertising for the camp

he held himself out as ‘‘hold[ing] a B.A. degree in theatre edu-

cation’’;’ and (3) that he accumulated large advertising bills

which he didn’t pay. (Def. Ex. 5 for Identification).

3. Misconduct Act #3: The Frenchwoods Camp

In 1980 or 1981, Fuller was hired to work at Frenchwoods

Camp in Callicoon, New York. He had been hired by Ronald

Schaefer, the owner of the camp. While employed there, Fuller

began a liaison with a 17-year-old boy, stole $600 from a safe

containing the campers’ canteen money, and stole a camp vehi-

cle. When subsequently confronted about the $600 theft,

Fuller faked a heart attack. A few days later, when Schaefer

again demanded the money, Fuller and the 17-year-old swore

out a false criminal complaint against Schaefer for molest-

ing and sodomizing the youth. Schaefer was arrested. Fuller

than went to Schaefer and offered to have the charges dropped

if Schaefer would agree that a $25,000 deposit (which Fuller

had borrowed from Schaefer to purchase a camp) would be

refunded to Fuller. Schaefer later won a suit against the state

for false arrest. (Def. Ex. 6 for Identification).

” Puller had already testified, on cross-examination, that he never received

any post high school degree. He also asserted that he never held himself

out, in any type of advertisement, as having a degree, but Def. Ex. 5 for

Identification clearly shows otherwise. See App. p. 20A.

4. Misconduct Act #4: The Hartford Camp

In 1981, Fuller went to work as a camp director in Hart-

ford. He was hired by Ben Schlifman, owner of a Weight

Watchers Franchise. Fuller had complete charge of all the

checkbooks, and he embezzled over $23,000 from the camp.

When confronted by Mr. Schlifman, Fuller signed a statement

acknowledging the theft and agreeing to repay it. However,

Fuller then disappeared, and Mr. Schlifman desired to press

charges. (Def. Ex. 7 for Identification).

5. Misconduct Act #5: The Chamber of Commerce

During cross-examination, Fuller was asked whether he

had ever misrepresented to potential donors that a particu-

lar business activity of his was endorsed or sponsored by the

Chamber of Commerce:

Q Did you represent to potential donors in an

effort to raise money for that [business] activity that

you were — that it was in accordance with the Cham-

ber of Commerce?

A No.

Q That you were in fact amember of the Cham-

ber of Commerce?

A No. That we were a member, yes. That it was

endorsed, no. ‘emphasis added)

In a subsequent offer of proof, counsel indicated that he

desired ‘‘to question [the witness] further’’ about his involve-

ment with the Chamber. In support of his request, counsel

introduced for identification a newspaper article from the

Bridgeport Post (dated Nov. 6, 1984) which indicated (1) that

the Fun Factory had used the Chamber's name without autho-

rization in soliciting contributions for a children’s Halloween

party; and (2) that several contributors had been misled. (Def.

Ex. 8 for Identification).

10

6. Offer of Proof: The Nolled Charges

Defense counsel also sought permission to question Fuller

about two “‘bad check”’ charges, the prosecution of which had

been resolved by entry of a nolle prosequi on December 20,

1984 (a date between the time of the defendant’s arrest and

her trial). Counsel did not claim that the ‘‘bad check”’ charges,

which arose in Fairfield, constituted specific acts of miscon-

duct. Rather, he claimed that the nolles went to the witness’

bias and motive for testifying, ie., they may have represented

a quid pro quo for Fuller’s testimony at defendant’s trial.

Counsel argued that since a nolle can be “‘reopened’’ within

thirteen months, those charges were still pending, and coun-

sel was therefore entitled to question the witness about them.

7. Cross-Examination of Donald Bello

Donald Bello was Fuller’s partner in the Fun Factory. On

cross-examination, Bello testified that he and Fuller had been

involved in previous business endeavors, and that they had

been homosexual lovers for several years. The following ques-

tioning then occurred:

Q_ So you love Mr. Fuller. Is that not correct?

A Yes.

Q Anddo you love him maybe as much or more

than anyone else?

A_ I would guess so.

Q Okay. And if Mr. Fuller needed you to do cer-

tain things to help him out, you would help him out

would you not?

A If it was legal, yes.

Q And if it was illegal.

11

A I wouldn't do it.

Q Sothere are certain things that you wouldn’t

do even though you love him a great deal, if not more

than anyone else in the world. Is that right?

A Yes.

Q And if he asked you to make a statement to

help him maybe seven months? after something had

happened to something that you in fact did not wit-

ness, would you to that for him?

A No way. (emphasis added).

At a subsequent point in the cross-examination, the jury

was excused, and defense counsel advised the court of his

intention to cross-examine the witness about a particular act

of misconduct: In October of 1982, both Bello and Fuller

pleaded guilty to misdemeanor charges arising out of a fraudu-

lent food stamp scheme. Bello had been employed by a munic-

ipality, and he was illegally dispensing food stamps to Robert

Fuller. On October 7, 1982, Fuller pleaded guilty to larceny

in the third degree, and Bello pleaded guilty to aiding and abet-

ting larceny in the third degree. Both men were placed on pro-

bation and ordered to make restitution. (Def. Ex. 13A and 14

for Identification).

As noted earlier, the trial court precluded the defense from

using any of the impeachment material described above.

In prohibiting the defense from utilizing any of the prior

misconduct evidence (#s 1 through 5 above), the trial court

8 Bello testified that he was present on June 26th when petitioner and her

husband allegedly came to the store to induce Fuller not to divulge the

identity of the person who hired him. But Bello never told anyone that he

was present at the June 26th conversation until he gave a statement to

the police on February 5, 1985, approximately seven months later.

12

ruled that the acts in question were, inter alia, remote in time,

were not supported by sufficient evidence, and did not have

sufficient probative value concerning veracity to outweigh

their prejudicial effect.

The trial court also ruled that unless counsel could “‘sub-

stantiate a claim that there had been any offer of leniency [to

Fuller];’ counsel was foreclosed from inquiring about the

nolled ‘‘bad check’”’ charges (#6 above) since (1) they were not

pending when Fuller gave his statement to the police; (2) they

were not pending at the time of petitioner’s trial; and (3) the

charges did not result in a felony conviction.

Finally, with respect to the cross-examination of Bello

regarding his complicity in the food stamp scheme (#7 above),

the trial court ruled that the evidence in question did not suffi-

ciently demonstrate the witness’ bias, motive, or partiality.

One final point: At the trial, both sides agreed that the

case essentially turned on the credibility of Fuller. During

argument on a mistrial motion, the prosecutor described

Fuller as the “‘key state’s witness,’ whose ‘‘credibility was

obviously the most important issue in this case,’ and whose

‘credibility [was] absolutely essential to a determination by

the jury of the innocence or guilt of this defendant.’’ (empha-

sis added). And in defense counsel’s opening statement to the

jury, he asserted that ‘‘the only witness whose testimony is

going to be crucial to their case is the testimony of the clown

. . after you've heard the clown testify if you feel that you

question his truth and voracity, (sic) you feel that his tes-

timony is less than credible, he’s been less than candid with

you, you can’t prove everything he said, and you have one,

just a reasonable doubt, that you find Mary Diorio innocent.’

(emphasis added).

13

II. State Appellate Proceedings

On direct appeal, the petitioner claimed that the trial

court had unduly restricted her right fully and effectively to

cross-examine the principal witnesses against her. This claim

was predicated primarily’ on the petitioner’s Sixth and Four-

teenth Amendment rights to confront and cross-examine

adverse witnesses. Because trial counsel did not expressly

. claim that all the limitations on cross-examination violated

the petitioner’s confrontation rights, appellate counsel sought

review of the constitutional claim pursuant to State v. Evans,

165 Conn. 61, 70, 327 A.2d 576 (1973). That case permits

review of newly raised errors ‘‘where the record adequately

supports a claim that a litigant has clearly been deprived of

a fundamental constitutional right and a fair trial’’ The Appel-

late Court considered and rejected the petitioner’s federal con-

stitutional claim. State v. Diorio, supra, at 12 Conn. App.

76-79.

> Petitioner also claimed a violation of her state constitutional rights “to

be confronted by the witnesses against [her] Connecticut Constitu-

tion, Article First, § 8. The petitioner's claim on appeal also had a subsidi-

ary evidentiary component: if the petitioner's constitutional rights had

not been abridged by the trial court's rulings, then the trial court's rul-

ings constituted an abuse of discretion.

14

REASONS FOR GRANTING THE WRIT

This case falls squarely within the second of the two

“broad categories’’ of Confrontation Clause cases that have

been addressed by this Court, ie., a case “involving restric-

tions imposed by law or by the trial court on the scope of cross-

examination.’ Delaware v. Fensterer, 474 U.S. 15, 106 S.Ct.

292, 294, 88 L.Ed.2d 15 (1985); Kentucky v. Stincer, 482 U.S.

, 107 S.Ct. 2658, 2663, 96 L.Ed.2d 631 (1987). It is a case

which merits review by grant of certiorari, because the Con-

necticut Appellate Court “‘has decided a federal question in

a way in conflict with applicable decisions of this Court.’’ U.S.

Sup. Ct. R. 17.1(c).

The federal question involved here is the Sixth Amend-

ment right of confrontation, which is applicable to state

proceedings through the Fourteenth Amendment. Pointer v.

Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Dela-

ware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 1435, 89

L.Ed.2d 674 (1986). “‘[A] primary interest secured by [the Con-

frontation Clause] is the right of cross-examination”’; Douglas

v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 13 L.Ed.2d 934

(1965); Kentucky v. Stincer, supra, 2662; and cross-

examination, in turn, “‘is the principal means by which the

believability of a witness and the truth of his testimony are

tested.’ Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 39

L.Ed.2d 347 (1974). Cross-examination has been described as

“essentially a ‘functional’ right designed to promote reliabil-

ity in the truth-finding functions of a criminal trial.” Kentucky

v. Stincer, supra, 2662; Lee v. Illinois, 476 U.S. ____, 106 S.Ct.

2056, 90 L.Ed.2d 514, 525-26 (1986). Toward the achievement

of that objective, ‘‘the cross-examiner has traditionally been

allowed to impeach, ie., discredit, the witness.’ Davis v.

Alaska, supra, 316; Delaware v. Fensterer, supra, 294; see, e.g.,

Pennsylvania v. Ritchie, 480 U.S. ___, 107 S.Ct. 989, 999, 94

L.Ed.2d 40 (1987) (“right to cross-examine includes the oppor-

tunity to show that a witness is biased, or that the testimony

is exaggerated or unbelievable’); Berger v. California, 393 U.S.

314, 315, 89 S.Ct. 540, 21 L.Ed.2d 508 (1969) (‘‘one of the

15

important objects of the right of controntation was to quaran-

tee that the fact finder had an adequate opportunity to assess

the credibility of witnesses’’); Alford v. United States, 282 US.

687, 692, 51 S.Ct. 218, 751 L.Ed. 624 (1931) (a “permissible

purpose’”’ of cross-examination is to elicit facts “tending to

discredit the witness by showing that his testimony in chief

was untrue or biased . . "’); Smith v. Illinois, 390 U.S. 129,

131, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968) (where credibility of

witness in issue, trial court may not cut off, at the threshold,

cross-examination aimed at ** ‘exposing falsehood and bring-

ing out the truth’ "’); District of Columbia v. Clawans, 300 U.S.

617, 632, 57 S.Ct. 660, 81 L.Ed. 843 (1937) (‘the prevention

_ of all inquiry in fields where cross-examination is

appropriate, and particularly in circumstances where the

excluded questions have a bearing on credibility and on the

commission by the accused of the acts relied upon for convic-

tion, passes the proper limits of discretion and is prejudicial

error’); The Ottawa v. Stewart, 3 Wall. (70 U.S.) 268, 18 L.Ed.

165 (1865) (right of cross-examination is ‘‘a valuable one as

a means of separating hearsay from knowledge, error from

truth, opinion from fact, and inference from recollection, . .

and of testing the intelligence, memory, impartiality, truth-

fulness, and integrity of the witness; . . ”’).

Petitioner recognizes that ‘‘trial judges retain wide lati-

tude insofar as the Confrontation Clause is concerned to

impose reasonable limits on cross-examination based on con-

cerns about, among other things, harassment, prejudice, con-

fusion of the issues, the witness’ safety, or interrogation that

is repetitive or only marginally relevant.” Delaware v. Van Ars-

dall, supra, 1435; Alford v. United States, supra, 694 (“‘extent

of cross-examination with respect to an appropriate subject

of inquiry is within the sound discretion of the trial court’’);

Gordon v. United States, 344 U.S. 414, 422-23, 73 S.Ct. 369,

97 L.Ed. 447 (1953) (discretion when “‘dealing with collateral

evidence as to character’’). Nevertheless, ‘this principle [of

discretion in controlling cross-examination] cannot be

expanded to justify a curtailment which keeps from the jury

relevant and important facts bearing on the trustworthiness

of crucial testimony.’ /d., 423.

16

————————————

It has been observed that “‘[in the case of a limitation,

rather than a denial, of cross-examination.. . no clear line

separates evidentiary discretion from constitutional error.’

Note, Confrontation, Cross-Examination, And The Right to

Prepare A Defense, 56 Geo. L.J. 939, 961-62 (May 1968). Yet,

despite the frequent absence of a “bright line,’ this Court has

not hesitated to find a constitutional violation when that line,

however indistinct, has been crossed. See, e.g., Smith v. Illinois,

supra; Alford uv. United States, supra; Davis v. Alaska, supra,

and n.6 (noting that Alford v. United States was a holding

of ‘‘constitutional dimension’’); Delaware v. Van Arsdall,

supra. The boundary line between evidentiary and constitu-

tional error was transgressed in this case, because the trial

court did not permit cross-examination that was sufficient

to satisfy the requirements of the Sixth Amendment. The

impeachment material which petitioner sought to utilize at

trial was of two general types: evidence tending to show bias,

motive, or partiality; and evidence of prior misconduct bear-

ing on the issue of veracity. Because somewhat different con-

siderations apply, these two categories of impeachment

evidence are discussed separately below.

A. Bias, Motive, and Partiality

Davis v. Alaska, supra, makes clear that cross-

examination ‘‘directed toward revealing possible biases,

prejudices, or ulterior motives of the witness as they may relate

directly to issues or personalities in the case at hand’’; Jd.,

316; may not readily be precluded. ‘‘The partiality of a wit-

ness is subject to exploration at trial, and is ‘always relevant

as discrediting the witness and affecting the weight of his tes-

timony. '’’ Jd.; see United States v. Abel, 469 U.S. 45, 105 S.Ct.

465, 469, 83 L.Ed.2d 450 (1984) (“Proof of bias is almost always

relevant because the jury, as finder of fact and weigher of credi-

bility, has historically been entitled to assess all evidence

which might bear on the accuracy and truth of a witness’ tes-

timony.’). Moreover, *.. - . the exposure of a witness’ moti-

vation in testifying is a proper and important function of the

17

constitutionally protected right of cross-examination.”’ /d.,

316-17; Delaware v. Van Arsdall, supra, 1435.

In prohibiting petitioner from cross-examining Fuller

about the nolle prosequi of two unrelated charges, the trial

court impermissibly interfered with petitioner’s ability to

demonstrate Fuller’s bias or motive. The record shows that

those nolles were entered on December 20, 1984 — after the

pie incident, the petitioner’s arrest (July 12, 1984), and Fuller’s

written statement to the police (June 26, 1984) — but just

three months before the petitioner’s trial in March of 1985."°

The Appellate Court upheld the trial court’s ruling on this

proposed line of inquiry because the ‘‘charges were not pend-

ing either at the time Fuller gave his statement to the police

or at the time of the [petitioner]’s trial.’ State v. Diorio, supra,

12 Conn. App. at 77."

Under Connecticut law, ‘‘[t]he effect of a nolle prosequi

is to end pending proceedings without an acquittal and

without placing the defendant in jeopardy . . . (citations

omitted). . . . Although the entry of a nolle prosequi results

in the defendant’s release from custody, he can, within thir-

teen months; General Statutes § 54-142a(c); be tried again

upon a new information and a new arrest.” State v. Lloyd, 185

Conn. 199, 201, 440 A.2d 867 (1981). The ‘‘decision to initi-

ate a nolle prosequi still rests with the state’s attorney. . .”.

Id., 202.

10The Appellate Court's opinion inaccurately states that the nolles occurred

‘‘six months prior to the pie incident.’ 12 Conn. App. at 76. Counsel for

petitioner pointed out this inaccuracy in his motion for reargument or recon-

sideration, and the state, in responding to that motion, agreed that the

Appellate Court was in error with regard to the timing of the nolle.

' There is no question that, if the bad check charges had been “‘pending”’

when Fuller testified at petitioner’s trial, the defense would have had the

right to cross-examine him about the charges. State v. Harris, 10 Conn.

App. 217, 235, 522 A.2d 323 (1987) (‘‘a pending criminal charge is proba-

tive on the issue of the witness’ credibility’’).

18

It is clear from the foregoing that Fuller was subject to

re-prosecution for the bad check charges for a period of thir-

teen months, commencing on December 20, 1984. And that

decision was in the hands of the prosecutorial office in the

same judicial district where the petitioner was tried.

State statutes or rules, or technical distinctions as to

whether a nolled charge is ‘‘pending,;’ cannot be allowed to

emasculate a criminal defendant’s right to explore the possi-

ble bias or motive of a chief prosecution witness. See gener-

ally, Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1058, 35

L.Ed.2d 297 (1973) (state ‘‘voucher rule” cannot prevent cross-

examination to impeach own witness; substantive right can-

not be governed by “technicality or by any narrow and

unrealistic definition of the word ‘against’ ’’); Davis v. Alaska,

supra (state provisions protecting confidentiality of juvenile

offender records held to violate defendant’s confrontation

rights); Delaware v. Van Arsdail, supra (trial court ruling,

based on state evidence rule, held to violate defendant’s con-

frontation rights).

Delaware v. Van Arsdall, supra, is highly instructive on

this point. There, this Court agreed that the defendant’s rights

under the Confrontation Clause had been violated when a trial

judge prevented the defendant from questioning a prosecu-

tion witness ‘‘about the dismissal of a criminal charge against

him — being drunk on a highway — after he had agreed to

speak with the prosecutor about [the victim’s] murder.’ Jd.,

1434. To be sure, the witness ‘‘acknowledged that the drunken-

ness charge had been dropped in exchange for his promise to

speak with the prosecutor about the murder, but he denied

that the agreement had affected his testimony.’ Jd., 1434.

Because the trial court ruling ‘“‘prohibited all inquiry into the

possibility that [the witness] would be biased as a result of

the State’s dismissal of his pending public drunkenness

charge’’; and because the “‘jury might reasonably have found

[that the dismissal] furnished the witness a motive for favor-

ing the prosecution in his testimony’’; the trial court’s ruling

violated the defendant’s confrontation rights. Jd., 1435.

In this case, although ‘“‘counsel was permitted to ask [the

witness] whether he was biased, counsel was unable to make

a record from which to argue why [the witness] might have

been biased or otherwise lacked that degree of impartiality

expected of a witness at trial’”’ Davis v. Alaska, supra, 318.

With respect to the cross-examination of Donald Bello,

the proffered line of inquiry was highly relevant to demon-

strate Bello’s bias and partiality. See State v. Asherman, 193

Conn. 695, 720, 478 A.2d 227, cert. denied, 470 U.S. 1050, 105

S.Ct. 1749, 84 L.Ed.2d 814 (1984) (cross-examination to demon-

strate bias due to relationship of witness to a party “‘is a mat-

ter of right which may not be unduly restricted”’ and “‘[t]his

may also be true in many cases involving the relationship of

witnesses to each other.’). (Emphasis added.) See also United

States v. Abel, supra (evidence that defendant and defense

witness were members of prison gang, whose tenets required

members to “‘ ‘lie, cheat, steal [and] kill’ to protect each other,’

was probative of witness’ possible bias and admissible). Here,

the fact that Bello had aided his partner in an illegal scheme

would certainly have undermined the credibility of his tes-

timony which corroborated that of Fuller. Moreover, Bello’s

participation in the fraudulent scheme directly contradicted

his testimony (quoted, supra, at pp. 11-12) that he would not

do anything ‘“‘illegal’’ to help out his partner.

On the critical issues of bias, motive, and partiality,

defense counsel should have been permitted to expose

to the jury the facts from which jurors, as the sole

triers of fact and credibility, could appropriately draw

inferences relating to the reliability of the witness[es].

Davis v. Alaska, supra, 318

Because petitioner’s counsel was denied that opportunity

— and the constitutional standard was therefore not met —

this Court should grant the writ of certiorari.

20

B. Prior Misconduct Evidence

Under Connecticut law, ‘‘|a] witness may be impeached

during cross-examination by specific acts of misconduct which

bear a special significance upon the issue of veracity.’ State

v. Diorio, supra, 77-78. See Fed. R.Evid. 608(b); McCormick

on Evidence (3rd Ed. 1984) § 42. In connection with this claim,

three factors must be noted at the outset.

First, the acts of misconduct in question were classic,

veracity-related acts. They encompassed acts of larceny, fraud,

misrepresentation, and deceit — the kinds of acts which bear

a ‘‘special significance upon the issue of veracity . . ”’ State

v. Orsini, 187 Conn. 264, 268, 445 A.2d 887, cert. denied, 459

U.S. 861, 103 S.Ct. 136, 74 L.Ed.2d 116 (1982); Gordon v.

United States, 383 F.2d 936, 940 (D.C. Cir. 1967) (‘‘[i]n com-

mon human experience acts of deceit, fraud, cheating, or steal-

ing, for example, are universally regarded as conduct which

reflects on a man’s honesty and integrity-’).

Second, this was not a case where defense counsel was

blindly taking “‘pot shots’’ at a witness, hoping one would

land. Defense counsel introduced a substantial amount of

documentary material designed to demonstrate that there was

a legitimate and good faith factual basis for the proposed lines

of cross-examination.

Third, the acts of misconduct were not remote in time.

One act of misconduct had occurred nine years before trial

(1976); the other acts of misconduct were, respectively, 1 year

old (1984); 3 years old (1982); and 4-5 years old (1980-81 and

1981). Furthermore, this was not a situation where the defen-

dant sought to cross-examine a witness on a single act of dis-

honesty which “ ‘occurred long before and has been followed

by a legally blameless life . . ’” ’’ State v. Nardini, 187 Conn.

513, 525, 447 A.2d 396 (1982).

To the state’s anticipated response to the ‘“‘misconduct’”’

claim — that it was purely a discretionary matter for the trial

court — petitioner offers the following observation. The

21

restrictions on cross-examination of Fuller rose to the level

of a constitutional deprivation because (1) he was a “‘ ‘key’

government witness . . . who may have possessed ‘substan-

tial reason to cooperate with the government’ ”’; State v. Gay-

nor, 182 Conn. 501, 509 n.7, 435 A.2d 1022 (1980) (citing federal

cases); and (2) the proffered impeachment evidence was not

cumulative. Although a trial court has “‘a duty to protect [a

witness] from questions which go beyond the bounds of proper

cross-examination merely to harass, annoy or humiliate him’;

‘‘no obligation is imposed on the court . . . to protect a wit-

ness from being discredited on cross-examination. . .”’.

(Emphasis added.) Alford v. United States, supra, 694; Davis

v. Alaska, supra, 320 (quoting Alford). Here, the trial court’s

rulings protected the ‘“‘witness from being discredited on cross-

examination,’ but utterly failed to protect the

constitutionally-secured confrontation right of the person

being tried.'” For this reason, a grant of certiorari is warranted.

125 a result of the trial court’s rulings, the defense was effectively

precluded from impeaching the credibility of an undoubtedly impeachable

witness. Fuller's cross-examination impeachment was limited to one prior

inconsistent statement — for which he offered an explanation — and an

admission that he made one mistake in his testimony. Bello’s impeachment,

if any, consisted of a single prior inconsistent statement.

22

CONCLUSION

For all of the foregoing reasons, a writ of certiorari should

issue to review the judgments and opinion of the Appellate

Court of Connecticut.

RESPECTFULLY SUBMITTED,

MARY DIORIO, Petitioner

BY: /s/ Richard Emanuel

RICHARD EMANUEL

350 Fairfield Avenue

P.O. Box 71

Bridgeport, CT 06601

Counsel for Petitioner

23

No.

In Che

Supreme Court Of Che United States

OCTOBER TERM, 1987

MARY DIORIO,

Petitioner,

V.

STATE OF CONNECTICUT,

Respondent.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

TO THE APPELLATE COURT OF THE

STATE OF CONNECTICUT

INDEX TO APPENDIX

Page

Opinion of the Connecticut Appellate Court in

State v. Diorio, 12 Conn. App. 74, 529 A.2d

PRR ar ed eats ee ee ee a ee my ere 1A

Order of Connecticut Appellate Court denying

Petitioner’s Motion for Reargument or

Ns oe ee ee baa chenwau cadet 18A

Order of Connecticut Supreme Court denying

Petitioner’s Petition for Certification for Review

of Appellate Court Judgment.................... 19A

Excerpt of Defense Exhibit #5 for Identification .... 20A

iA

74

12 Conn. App. 74

State v. Diorio

STATE OF CONNECTICUT v. MARY DIORIO

(4244)

Dupont, C. J., DaLy and BrieLucH, Js.

Convicted of the crime of aiding and abetting a breach of the peace, the

defendant appealed to this court. The charge against the defendant arose

out of an incident in which she allegedly hired another individual to

dress as a clown and to throw a pie in the face of the dean of students

at the junior high school graduation of the defendant's daughter. Held:

. The defendant could not prevail on her claims that the trial court erred

in unconstitutionally restricting her cross-examination of the state's

principal witness concerning bias, prior acts of misconduct and pnor

convictions.

. The trial court did not err in instructing the jury with respect to the

crime of being an accessory to breach of the peace; the defendant's claim

to the contrary notwithstanding, being an accessory to breach of the

peace is a cognizable crime under Connecticut law.

The defendant's claim that the trial court erred in not instructing the

jurors that in reaching a verdict they must unanimously agree on the

method of committing the crime charged was unavailing under the cir-

cumstances here; the evidence presented at trial did not permit sig-

nificant disagreement as to what conduct the defendant had committed.

The defendant's challenge to the trial court’s charge to the jury on the

use of circumstantial evidence and the inferences to be drawn there-

from was unavailing; under the circumstances here, where the prin-

cipal factual issue to be determined by the jury was the identity of the

person who solicited the pie throwing services, it was not reasonably

possible that the jury was misled by that charge.

The defendant's claim to the contrary nutwithstanding, the trial court's

instructions concerning reasonable doubt as related to one’s activities

fairly conveyed the applicable rule of law to the jury, and no harmful

error was evidenced by that court's failure to use the specific words

requested by the defendant.

The evidence presented was sufficient to support a finding that the

defendant intended to do harm to the victim

Argued March 31—decision released August 18, 1087

1A

12 Conn. App. 74 75

State v. Diorio

Information charging the defendant with the crimes

of tampering with a witness, breach of the peace and

bribery, brought to the Superior Court in the judicial

district of Fairfield, geographical area number two, and

tried to the jury before Burns, J.; verdict and judgment

of guilty of breach of the peace, from which the defend-

ant appealed to this court. No error.

Richard Emanuel, for the appellant (defendant).

James A. Killen, deputy assistant state's attorney,

with whom, on the brief, were James G. Clark and Scott

Murphy, for the appellee (state).

DuPont, C. J. The defendant appeals from a judg-

ment of conviction, following a jury trial, of aiding and

abetting a breach of the peace, in violation of General

Statutes §§ 53a-8 and 53a-181.! The defendant claims

that the trial court erred (1) by impermissibly restrict-

ing her cross-examination of the state’s witnesses, (2)

by instructing the jury on an offense not cognizable

under Connecticut law, (3) by denying the defendant

her right to a unanimous jury verdict, (4) by its charge

to the jury on circumstantial evidence, (5) by its charge

to the jury on reasonable doubt, and (6) in failing to

grant the defendant’s motion for judgment of acquittal.

The jury could reasonably have found certain rele-

vant facts. The defendant’s daughter was a member

of the graduating class of a junior high school. Prior

to graduation, the dean of students at the school had

disciplined the defendant’s daughter. Seeking revenge,

the defendant hired and paid one Robert Fuller to dress

as a clown at graduation and throw a pie in the face

' The defendant was also charged with, and acquitted of, the crimes of

tampering with a witness, in violation of General Statutes § 53a-151, and

bribery of a witness, in violation of General Statutes § 53a 149a

2A

76 12 Conn. App. 74

State v. Diorio

of the dean of students. The dean was hit with a cream

pie in front of between one thousand and two thousand

people.

I

The defendant first claims that the trial court erred

by unconstitutionally restricting her cross-examination

of the state’s witness concerning bias, prior acts of mis-

conduct and prior convictions.

A

BIAS

At trial, the defendant attempted to cross-examine

Fuller concerning an improper motive for his testi-

mony. The defendant alleged that Fuller’s testimony

was in return for the nolle of unrelated charges against

him six months prior to the pie incident. The defend-

ant also attempted to cross-examine Fuller’s business

partner concerning bias or motive stemming from a

prior plea of guilty to a misdemeanor. The trial judge

prohibited cross-examination in both instances.

The right of an accused effectively to cross-examine

an adverse witness is embodied in the confrontation

clause of the sixth amendment. Davis v. Alaska, 415

U.S. 308, 94S. Ct. 1105, 39 L. Ed. 2d 347 (1974); State

v. Heinz, 3 Conn. App. 80, 85-86, 485 A.2d 1321 (1984).

A claim of undue restriction on cross-examination

ordinarily involves a two-pronged analysis: (1) whether

the constitutional standard has been met, and (2) if so,

whether the court nonetheless abused its discretion.

State v. Heinz, supra, 86. ‘‘The constitutional standard

is met when defense counsel is ‘permitted to expose

to the jury the facts from which the jurors, as the sole

triers of fact and credibility, could appropriately draw

inferences relating to the reliability of the witness.’ "’

State v. Gaynor, 182 Conn. 501, 509, 438 A.2d 749

(1980), quoting Davis v. Alaska, supra, 318.

3A

12 Conn. App. 74 77

State v. Diorio

The constitutional standard was met in this case. The

defendant was permitted to question Fuller at length

regarding any deals made in exchange for his testi-

mony. The trial judge restricted cross-examination

regarding the nolled charges, however, since these

charges were not pending either at the time Fuller gave

his statement to the police or at the time of the defend-

ant’s tria]. Similarly, the defendant was allowed to

cross-examine Fuller’s business partner extensively as

to any bias stemming from the latter’s close relation-

ship with Fuller. Hence, the defendant was “‘ ‘permit-

ted to expose to the jury the fact from which the jurors

. could appropriately draw inferences relating to

the reliability of the witness.’ ’’ State v. Gaynor, supra.

This leaves the remaining question of whether the

trial court abused its discretion in restricting the scope

of cross-examination. ‘‘ ‘To establish an abuse of dis-

cretion, appellants must show that the restrictions

imposed upon their cross-examination were clearly

prejudicial.’ ’’ State v. Gaynor, supra, 510. Our review

of the transcript indicates that the defendant was not

prejudiced. The defendant was permitted the oppor-

tunity to cross-examine the state’s witness extensively

regarding bias or improper motive. When the right to

cross-examine to demonstrate bias, motive,.or preju-

dice is not altogether denied, the scope and extent of

the cross-examination rests in the court’s discretion.

State v. Shipman, 195 Conn. 160, 163, 486 A.2d 1130

(1985); State v. Luzzi, 147 Conn. 40, 46-47, 156 A.2d

505 (1959). The trial court did not abuse its discretion.

B

PRIOR ACTS OF MISCONDUCT

The defendant attempted to cross-examine the state’s

principal witness concerning five acts of prior miscon-

duct in order to impeach his credibility. A witness may

be impeached during cross-examination by specific acts

4A

a bein RD

Se oP ee

78 12 Conn. App. 74

State v. Diono

of misconduct which bear a special significance upon

the issue of veracity. State v. Martin, 201 Conn. 74,

85-86, 513 A.2d 116 (1986); State v. Horton, 8 Conn.

App. 376, 380, 513 A.2d 168, cert. denied, 201 Conn.

813, 517 A.2d 631 (1986). It does not follow, however,

that if the acts inquired about are indicative of a lack

of veracity, the court must permit the cross-

examination. Whether to permit it lies largely within

the court’s discretion. State v. Roma, 199 Conn. 110,

117, 505 A.2d 717 (1986); Vogel v. Sylvester, 198 Conn.

666, 675-76, 174 A.2d 122 (1961). Our review of the

record indicates that the trial court did not abuse its

discretion in denying the cross-examination. The trial

court held a hearing at which defense counsel argued

at length for the opportunity to conduct cross-

examination concerning the prior acts of misconduct.

The court ruled that the acts were, inter alia, remote

in time, had a tendency to confuse the jury, were not

supported by sufficient evidence, and did not have

probative value concerning veracity sufficient to out-

weigh the potential for prejudicial effect. We agree with

its findings and conclude that under these circum-

stanees, the court did not abuse its discretion in restrict-

ing cross-examination.

C

PRIOR CONVICTIONS

The defendant claims as error the trial court’s denial

of his cross-examination of the state’s principal witness

regarding prior criminal convictions. The Connecticut

Supreme Court has interpreted General Statutes

§ 52-145? as permitting the use of a witness’ prior con-

* General Statutes § 52-145 provides in pertinent part: “‘(a) A person shal!

not be disqualified as a witness in any action because of, (1) his interest

in the outcome of the action as a party or otherwise, (2) his disbelief in the

existence of a supreme being, or (3) his conviction of crime. (b) A person's

interest in the cutcome of the action or his conviction of cnme may be shown

for purpose of affecting his credibility.”

5A

12 Conn. App. 74 79

State v. Diorio

viction to impeach credibility where the conviction was

for a crime punishable by imprisonment in excess of

one year. State v. Geyer, 194 Conn. 1, 10, 480 A.2d 489

(1984). The defendant was unable to demonstrate any

convictions by the witness which were punishable by

imprisonment for more than one year. Consequently,

the trial court did not err in denying cross-examination

concerning prior criminal convictions.

I]

The defendant next claims that the trial court erred

by instructing the jury on an offense, accessory to

breach of the peace, which is not cognizable under Gon-

necticut law. The defendant argues that conviction as

an accessory® requires proof of intent to commit the

substantive crime. Since breach of the peace may be

cominitted by either intentional or reckless conduct,‘

the defendant asserts that the offense is not cogniza-

ble because a breach of the peace may be committed

recklessly but the accessory must still be shown to have

intended the outcome.

General Statutes § 53a-8 requires that a defendant

have the mental state required for the commission of

a crvme while intentionally aiding another. ‘‘[A]n

3 General Statutes § 53a-8 provides: ‘A person, acting with the mental

state required for commission of an offense, who solicits, requests, com-

mands, importunes or intentionally aids another person tu engage in con-

duct which constitutes an offense shall be criminally liable for such conduct

and may be prosecuted and punished as if he were the principal offender.”’

- ‘General Statutes § 53a-181 provides: ‘‘(a) A person is guilty of breach

of the peace when, with intent to cause inconvenience, annoyance or alarm,

or recklessly creating a risk thereof, he: (1) Engages in fighting or in vio-

lent, tumultuous or threatening behavior in a public place; or (2) assaults

or strikes another; or (3) threatens to commit any crime against another

person or his property; or (4) publicly exhibits, distmbutes, posts up or adver-

tises any offensive, indecent or abusive matter concerning any person; or

(5) in a public place, uses abusive or obscene language or makes an obscene

gesture; or (6) creates a public, hazardous or physically offensive condition

by any act which he is not licensed or privileged to do.

6A

iia Bis 90

80 12 Conn. App. 74

State v. Diorio

accessory may be liable in aiding another if he acts

intentionally, knowingly, recklessly or with criminal

negligence toward the result, depending on the men-

tal state required by the substantive crime.’’ State

v. Foster, 202 Conn. 520, 531, 522 A.2d 277 (1987).

One may be an accessory to a crime without having

a conscious objective to cause the result described

by a statute defining the crime. Id. Thus, a person

may be held liable as an accessory to a reckless act—

in this instance, breach of the peace—if he has the

requisite culpable mental state—recklessness—for

the commission of the substantive offense, and he

intentionally aids another in the crime. Therefore,

we find that being an accessory to a breach of the

peace is a cognizable crime under Connecticut law.

The trial court did not err in instructing the jury with

respect to the crime.

Ill

The defendant’s third claim of error is the trial

court’s failure to instruct the jury to require that its

verdict be unanimous when considering alternatively

stated elements of the breach of the peace charge.

The defendant did not request such a charge at trial,

nor did she enter an objection and exception to the

instructions given. We have, however, previously

reviewed similar claims concerning jury unanimity

not raised at trial pursuant to State v. Evans, 165

Conn. 61, 327 A.2d 576 (1973), and will do so here.

See State v. Milledge, 8 Conn. App. 119, 122-23, 511

A.2d 366 (1986); State v. Benite, 6 Conn. App. 667,

671, 507 A.2d 478 (1986); State v. Wist, 3 Conn. App.

650, 654, 491 A.2d 428, cert. denied, 196 Conn. 810,

494 A.2d 906 (1985).

The sixth amendment to the United States consti-

tution guarantees a defendant in a criminal case the

right to a unanimous verdict if her jury, as here, con-

7A

12 Conn. App. 74 | 81

State v. Diorio

sists of only six members. Burch v. Louisiana, 441 U.S.

130, 99 S. Ct. 1628, 60 L. Ed. 2d 96 (1979). The defend-

ant argues that the trial court’s instruction to the jury

that it could convict the defendant on the basis of sub-

section (2) of General Statutes § 53a-181 (‘‘assaults or

strikes another’’) or, in the alternative, subsection (6)

(‘‘creates a public, hazardous, or physically offensive

condition by any act which he is not licensed or privi-

leged to do’’) indicates that the jury may have agreed

that the defendant committed a breach of the peace

but may have disagreed as to which subsection was vio-

lated. This possibility, the defendant asserts, deprived

her of her right to a unanimous jury verdict. We dis-

agree.

“Tf the actions necessary to constitute a violation of

one statute or subsection of a statute are distinct from

those necessary to constitute a violation of another,

then jurors who disagree on which one the state proves

cannot be deemed to agree on the actus reus: the con-

duct the defendant committed. Where the evidence pre-

sented supports both alternatives, the possibility that

the jurors may actually disagree on which alternative,

if either, the defendant violated is the highest. Under

such circumstances, the jurors should be told that they

must unanimously agree on the same alternative. We

do not now hold that that kind of charge . . . must

always be given. Rather, such a charge is required only

where a trial court charges a jury that the commission

of any one of several alternative actions would subject

a defendant to criminal liability, and those actions are

conceptually distinct from each other, and the state has

presented some evidence supporting each alternative.

The determination of whether actions are conceptually

distinct must be made with reference to the purpose

behind the proposed charge: to ensure that the jurors

are in unanimous agreement as to what conduct the

defendant committed.” State v. Benite, supra, 674-75.

8A

does

. nih a remiss 1 erry

iis ah she ph AAA ls Cd Ane SO RS a ASIEN RIAL al POLE St LEE: an SNe ip OAD oP hae wa ce

nt ant

82 12 Conn. App. 74

State v. Diorio

The state presented evidence to demonstrate that the

defendant was accessorily responsible for only one act:

the throwing of the pie into the face of the dean. While

some of the jurors might have believed that the pie inci-

dent violated subsection (6) of General Statutes

§ 53a-181 by creating a public, hazardous or physically

offensive condition, they could not have reached this

conclusion without first believing that the pie was actu-

ally thrown, in violation of subsection (2). See State v.

Jones, 193 Conn. 70, 76-77, 475 A.2d 1087 (1984). In

other words, the jury could only have found that the

defendant created a public, physically offensive condi-

tion by striking the dean of students with the pie. Thus,

the evidence presented at trial did not permit signifi-

cant disagreement as to what conduct the defendant

committed.

IV

The defendant also claims that the trial court erred

in its charge to the jury on the use of circumstantial

evidence, and the inferences to be drawn therefrom.®

> In its general instructions, the court charged the jury that: ‘‘By the evi-

dence I mean not only the testimony of the witnesses which you heard,

but also the exhibits which wil! be provided to you in the jury room. And

any reasonable inferences which you may draw from either the testimony

or from the exhibits, you may draw reasonable inferences from the estab-

lished facts in the case. The inference which you draw, however, must not

be from a guess on the evidence or a surmise upon the evidence, but it must

be from a fact which the evidence has established. And I think you may

recall that during the course of the triai I may have referred to that mat-

ter as well and it is the facts which must be presented to you and it is on

the facts as presented to you that you must make your decision.

‘‘Inferences that you may draw from these established facts must be log-

ical and reasonable and well founded upon facts which have been proven

in the trial of the case.”

In charging the jury on the elements of tampering with a witness, in vio-

lation of General Statutes § 53a-151, the court stated: ‘‘What the defend-

ant’s intent was in this respect is subject to proof just as in any other fact

in the case. In determining what the person's intent was at any given time,

in addition to the direct evidence which you would have before you, you

may infer intent from what the person's conduct was at the time and what

9A

12 Conn. App. 74 83

State v. Diorio

The court, in its charge to the jury on tampering with

a witness and bribery of a witness, stated that infer-

ences to be drawn be “‘strong enough so that you can

find’’ that ‘‘it is more probable than not that the infer-

ence being drawn is true.”

The facts pertinent to the defendant’s claim of error

are as follows: Shortly after the incident, the defend-

ant voluntarily gave a statement to the police in which

she denied having hired the clown to throw the pie at

the victim. At trial, that statement was introduced as

evidence. The clown testified that the defendant and

her husband had telephoned his store to inquire about

his services, and that the defendant later entered his

store, ordered the pie throwing as part of the gradua-

tion ceremonies, and paid him for the service. He iden-

tified her for the police at a place where she was, or

the circumstances were surrounding that conduct. Such an inference may

be drawn provided two elements are satisfied.

The first is that the conduct of the defendant at the time and the cir-

cumstances surrounding such conduct from which you are being asked to

draw an inference have themselves been proven beyond a reasonable doubt,

and secondly, that the inference asked to be drawn is not only logical and

reasonable, but it is strong enough so that you can find that it is probable,

more probable than not that the fact that you are asked to infer is true.”’

(Emphasis added.)

The court then charged the jury on the elements of the crime of bribery

of a witness, a violation of General Statutes § 53a-149a, and stated: “‘The

defendant's intent is to subject to proof just as any other fact in the case.

In determining what is her intent was at the time of the issue you may

in addition to any direct testimony, infer from what the defendant's con-

duct was at the time or from what the circumstances were concerning that

conduct and you may make such an inference provided that you are satis-

fied, one, that the conduct of the defendant and the circumstances surround-

ing such conduct had been proven beyond a reasonable doubt, two, that

the making of such an inference is not only logical and reasonable, but is

strong enough so that you can find that it is more probable than not that

the ingerence being drawn is trve.

“If you find that the State has failed to prove beyond a reasonable doubt

any one of the elements on which you have been instructed, you will find

the defendant not yralty.”’

10A

84 12 Conn. App. 74

State v. Diorio

had been employed, and he identified her at trial. The

defendant’s niece testified, and stated that the defend-

ant had admitted to being responsible for the incident.

The niece further testified that the defendant and her

husband had offered her five hundred dollars to assume

responsibility for the incident, and as part of that plan,

had taken her to have her hair frosted in order to

resemblé the defendant more closely. Although the

defendant did not testify at trial, her husband did and

stated that neither he nor his wife had hired the clown.

In the recent past, despite the failure of a defendant

to object and except to similar erroneous instructions

at trial, such claims of error, under the ‘‘exceptional

circumstances” doctrine of State v. Evans, 165 Conn.

61, 327 A.2d 576 (1973), have been reviewed. State v.

Mullings, 202 Conn. 1, 12-14, 519 A.2d 58 (1987); State

v. Whelan, 200 Conn. 743, 756, 513 A.2d 86, cert.

denied , U.S. , 1078S. Ct. 597, 93 L. Ed. 2d 1598;

(1986); State v. Sullivan, 11 Conn. App. 80, 94, 525 A.2d

1353 (1987). Such review is appropriate ‘‘where the

defendant can demonstrate the deprivation of a fun-

damental constitutional right and a fair trial. State v.

Preyer, 198 Conn. 190, 196-97, 502 A.2d 858 (1985).”’

State v. Whelan, supra. The record in this case is ade-

quate to support the contention that the defendant’s

claim is reviewable under the Evans doctrine. See State

v. Robinson, 204 Conn. 207, 210 n.4, A.2d

(1987).

Our review of the record in this case, however, fails

to support the defendant's claim that the court’s

charge, which related to the use of circumstantial evi-

dence to infer intent, clearly deprived her of a ‘“‘fun-

damental constitutional right and a fair trial.’’ State

v. Evans, supra, 70. It is by now well established that

such a charge, when given once as part of a general

charge where the principal factual issue is identity, will

rarely if ever lead to the conclusion that it is reason-

11A

12 Conn. App. 74 85

State v. Diorio

ably possible that the jury was misled as to the state’s

burden of proving every element of the crime beyond

a reasonable doubt. State v. Miller, 202 Conn. 463,

491-92, 522 A.2d 249 (1987); State v. Reddick, 197

Conn. 115, 1382-33, 496 A.2d 466 (1985), cert. denied,

U.S. , 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986).

Here, the principal factual issue to be determined by

the jury was the identity of the person who solicited

the pie throwing services. That element was established

primarily by the testimony of che clown who, as an eye-

witness, identified the defendant. This testimony of the

defendant’s identity as the solicitor of the clown’s ser-

vices was a matter of direct evidence, and required no

inference drawing by the jury. State v. Sullivan, supra,

97. The testimony of the niece, which related the

defendant’s admission of her responsibility for the inci-

dent, was likewise evidence that the defendant had

solicited the clown’s services. The niece’s further tes-

timony about the offer of money to her and the hair

frosting, if believed, was circumstantial evidence from

which the inference of the defendant’s solicitation could

be drawn. Id.

In this case, the language complained of was charged

only with respect to the proof of intent of the two

crimes of which the defendant was acquitted. That

charge was not given to the jury with respect to the

proof of the elements of the crime of which she was

convicted, nor was an erroneous general charge on cir-

cumstantial evidence and inferences given. The record

reveals that in this case the element of intent was

undisputed by the defendant throughout the course of

the trial. The defense consisted of an attempt to dis-

credit the state’s witnesses who testified about the

defendant’s involvement by showing their bias and

motives, and in so doing to destroy the state’s proof

of the identity of the defendant as the perpetrator of

the crimes charged. The charge on the use of circum-

12A

Pr Ter

86 12 Conn. App. 74

State v. Diorio

stantial evidence and the drawing of inferences was

limited in its use to the issue of intent, was not related

to any other element of the crimes charged, and was

unrelated to the issue of identity. We conclude, there-

fore, that it is not reasonably possible that the jury was

misled by this charge.

V

The defendant next claims that the trial court erred

in its charge to the jury on reasonable doubt.* She

argues that the court erred (1) by charging the jury that

‘‘fa] reasonable doubt is a doubt for which a valid rea-

son can be assigned,” and (2) by not charging the jury,

as she requested, that ‘‘a reasonable doubt is the kind

of doubt that would make you hesitate to act.’’’

Although she did not preserve the first claim at trial,

she now seeks a full review under State v. Evans, supra,

70, in reliance upon the review granted to such a claim

in State v. Findlay, 198 Conn. 328, 502 A.2d 921, cert.

denied, U.S. , 106 S. Ct. 2279, 90 L. Ed. 2d

721 (1986).

6 The court charged the jury on the concept of reasonable doubt as fol-

lows: “Now the phrase ‘reasonable doubt’ has no technical or unusual mean-

ing. You can arrive at the real meaning of it by emphasizing the word

‘reasonable.’ A reasonable doubt 1s a doubt for which a valid reason can

be assigned. It is a doubt that is something more than a guess or a surmise.

It is not a conjecture or fanciful or captious doubt. A reasonable doubt is

not a doubt which is raised by someone simply for the sake of raising doubts,

nor is it a doubt suggested by the ingenuity of counsel or a juror which

is not warranted by the evidence. A reasonable doubt in other words is a

real doubt, an honest doubt, a doubt which has its foundation in the evi-

dence or in the lack of the evidence. It is such a doubt as in the serious

affairs which concern you in everyday life you would pay some heed to.”’

(Emphasis added.)

’ The defendant’s request to charge on the hesitation to act relied upon

Johnson v. Louisiana, 406 U.S 356, 92 S. Ct. 1620, 32 L. Ed. 2d 152 (1972),

and states: ‘‘A reasonable doubt is the kind of doubt that would make you

hesitate to act in pursuing the most important affairs of your life. Proof

beyond a reasonable doubt, therefore, must be proof of such a convincing

character as to cause you not to hesitate in the most important of your

affairs.”

13A

74 87

State v. Diorio

12 Conn. App.

The defendant's challenge to the language ‘‘a doubt

for which a valid reason can be assigned”’ in the con-

text of a reasonable doubt charge is essentially identi-

cal to both the charge and challenge brought previously

to our Supreme Court in State v. Findlay, supra, 346

n.14.

In order to determine whether the defendant’s claim

is reviewable under the Evans doctrine we must answer

two questions in the affirmative. The first is does the

defendant raise an issue which by its terms implicates

a fundamental constitutional right, and the second is

can we conclude, upon a limited review of the record,

that the claim is truly of constitutiona! proportions, or

is only characterized as such by the defendant. State

v. Thurman, 10 Conn. App. 302, 306-307, 523 A.2d

891 (1987). ‘‘In those instances in which our Supreme

Court or this court has already clearly indicated that

the particular claim is or is not of constitutional propor-

tions and therefore reviewable or not reviewable, a

summary ‘yes’ or ‘no’ answer may be sufficient.’”’ Id.,

307. The defendant’s claim here implicates a fundamen-

tal constitutional night; State v. Findlay, supra, 345-48;

but it does not thereby automatically qualify for a full

scale appellate review. State v. Thurman, supra,

306-307; see also State v. Farrar, 7 Conn. App. 149,

153 n.3, 508 A.2d 49, cert. denied, 200 Conn. 805, 512

A.2d 229 (1986); State v. Cosby, 6 Conn. App. 164, 172,

504 A.2d 1071 (1986).

Our limited review of the record reveals that this

claim is characterized by the defendant as being of con-

stitutional proportions, but is not truly of such propor-

tion. The language of this charge was held in Findlay

not to be a deprivation of a constitutional right. Thus,

we may summarily answer the second question of our

Evans analysis with a ‘‘no,” and conclude that this claim

does not qualify for further review. See State v.

Thurman, supra. Preserving Evans as a narrow bypass

14A

88 12 Conn. App. 74

State v. Dioric

serves to ensure that claims which might require rever-

sal will be raised at trial, permitting their timely cor-

rection, thereby avoiding ‘‘needless multiple

proceedings which are neither in the defendant’s nor

the public’s interest, and which contribute to the eco-

nomic waste of court congestion. State v. Kurvin, 186

Conn. 555, 563-66, 442 A.2d 1327 (1982); State v.

Torrence, 1 Conn. App. 697, 704-705, 483 A.2d 622

(1984), aff'd, 196 Conn. 430, 493 A.2d 865 (1985).”’ State

v. Cosby, supra, 173.

The defendant’s second claim, that the trial court

committed harmful error by failing to charge the jury

with “hesitate to act” language, was preserved by the

defendant by her request to charge. Practice Book

§ 852. That claim, however, is equally unavailing. The

defendant is not entitled to a charge comprised of

exactly the words she requests. State v. Estep, 186

Conn. 648, 653, 443 A.2d 483 (1982). The court’s

instruction regarding the concept of a reasonable doubt

as affecting one’s daily activities fairly conveyed the

point to the jury. The charge on this point, reviewed

in light of the instruction as a whole, was adequate to

guide the jury and protect against injustice. No harm-

ful error is evidenced by the failure to use the words

requested by the defendant. State v. Estep, supra, 652.

VI

The defendant’s final claim is that the evidence was

insufficient to establish her guilt beyond a reasonable

doubt. The claim of insufficient evidence was raised by

the defendant’s motion for judgment of acquittal at the

close of the state’s case, and by her motion to set aside

the verdict. The defendant claims that the charge as

given allowed the jury to consider the subsections in

the alternative and that the evidence was insufficient

on both subsections (2) and (6) of General Statutes

§ 53a-181 as charged to the jury. The defendant did not

15A

12 Conn. App. 74 89

State v. Diorio

object to the charge to the jury on either subsection

on the ground that the evidence was insufficient to sup-

port a conviction—The defendant also neglected to

request a jury poll after the verdict to clarify the basis

of the defendant’s conviction.

In these circumstances, where the defendant has not

taken steps to clarify which subsection she was con-

victed under, the conviction will be upheld if the evi-

dence is sufficient under either subsection. State v.

Duhan, 194 Conn. 347, 353--55, 481 A.2d 48 (1984). The

evidence presented at trial is viewed in a light most

favorable to sustaining the verdict. State v. Leavit, 8

Conn. App. 517, 523, 513 A.2d 744 (1986). On review,

we must determine whether “ ‘any rational trier of fact

could have found the essential elements of the crime

beyond a reasonable doubt.’ State v. Scielzo, 190

Conn. 191, 197, 460 A.2d 951 (1983); quoting Jackson

v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.

Ed. 2d 560 (1979).

The jury was charged, in part, with respect to sub-

section (2) of the statute, that ‘‘striking”’ another is “‘the

intentional use of force or violence on the person of

another,”’ and that ‘‘the striking must be accompanied

with an intent to do harm.”’ The defendant contends

that the evidence adduced at trial fails to support a find-

ing that the defendant intended to do harm to the vic-

tim. While harm is not defined in the penal code, it is,

in common usage defined as ‘‘pnysical or mental dam-

age’’ by Webster, Third New International Dictionary;

and as ‘‘to-damage; injure; impair’ by the New Col-

lege Edition of the American Heritage Dictionary

(1981).

With respect to subsection (6), the jury was instructed

that a ‘‘physically offensive’’ condition “refers to mat-

ter, material, or substance which is revolting, disgust-

ing, or repugnant.” A material which is repugnant Is

16A

90 12 Conn. App. 90

one which is “‘distasteful to a high degree: exciting dis-

taste or aversion.’’ Webster Third New International

Dictionary.

The facts which the jury could reasonably have found

from the evidence introduced at trial are that the vic-

tim was hit in the face by a pie, which caused his vision

to be blurred and a burning sensation to be felt in his

eyes for several hours afterward, as well as shock and

embarrassment from the event. This evidence clearly

supports a finding that by use of force his vision was

impaired, and that he suffered some degree of physi-

cal damage. The evidence of being struck by a pie in

the face in front of somewhere between one and two

thousand people, and the testimony of embarrassment

and humilitation suffered, is sufficient to uphcld a

rational trier’s finding that the incident was thus highiy

distasteful, and would cause distaste or aversion to a

reasonable person. Thus, the evidence was sufficient

to sustain the conviction not only under one subsection,

as is required here, but under both subsections-of the

statute. Compare State v. Duhan, supra, 353-55; with

State v. Marino, 190 Conn. 639, 650-51, 462 A.2d 1021

(1983).

There is no error.

In this opinion the other judges concurred.

17A

STATE OF CONNECTICUT

APPELLATE COURT

AC 4244

STATE OF CONNECTICUT

V. : SEPTEMBER 16, 1987

MARY DIORIO

ORDER

THE MOTION OF THE DEFENDANT, FILED

AUGUST 28, 1987, FOR REARGUMENT OR RECON-

SIDERATION, HAVING BEEN PRESENTED TO THE

COURT, IT IS HEREBY ORDE RED DENIED.

BY THE COURT,

/s/ Patricia J. Friedle

ASSISTANT CLERK — APPELLATE

NOTICE SENT: 9-16-87

Richard Emanuel

James Clark, A.S.A.

James Killen, D.A.S.A.

Fairfield at GA2, (CR2-76693)

Hon. Robert P. Burns

Emily J. Lebovitz

18A

ES een en ert

SUPREME COURT

STATE OF CONNECTICUT

NO. PSC-87-1053

State of Connecticut

v.

Mary Diorio

ORDER ON PETITION FOR

CERTIFICATION TO APPEAL

On consideration of the petition by the defendant for cer-

tification to appeal from the Appellate Court (12 Conn. App.

74) it is hereby ordered that said petition be, and the same

hereby is denied.

BY THE COURT,

/s/ Alan M. Gannuscio

Assistant Clerk — Appellate

Dated: October 21, 1987.

Notice to: 10/21/87

Clerk, Superior Court, Fairfield at GA 2, CR2-76693

Clerk, Appellate Court

Richard Emanuel

James G. Clark, A.S.A.

James Killen, D.A.S.A.

Richard Emanuel in support of petition — James A. Killen,

Deputy Assistant State's Attorney in opposition.

19A

DEFENDANT’S EXHIBIT 5 FOR

IDENTIFICATION (EXCERPT)

Robert B. Fuller, PROGRAM DIRECTOR

Mr. Fuller holds a B.A. degree in theatre education. He

is formerly a television actor who has made over 30 commer-

cials. He has appeared on numerous TV shows and for several

years portrayed Ronald McDonald, the national clown charac-

ter for McDonald’s Corp. He has studied with many well-

known celebrities and at the Neighborhood Playhouse in NYC.

He is also a youth worker and for sometime counseled

teenagers at a temporary youth shelter. He grew up as a

camper and has had many years in camp administration. He

has received numerous awards for his work with retarded chil-

dren and has been written up in ‘‘Who’s Who in the East.”

He is a member of the American Camping Association.