Opinion
(7210) (7874)
Convicted of the crimes of assault in the second degree, assault in the third degree, threatening, disorderly conduct and breach of the peace, the defendant appealed to this court. He also appealed from the judgment of the trial court revoking his probation on an earlier conviction. At trial, the defendant relied on a defense of mental disease or defect. On appeal he claimed error in the trial court's refusal to permit his mother to testify concerning his mental condition at the time the offenses were committed. Held: 1. The trial court abused its discretion in refusing to permit the defendant's mother to testify concerning genetic family illnesses that he alleged were medically linked to his mental condition; a parent is always competent to testify as to a child's mental, physical or emotional state at a given time, and, because the excluded testimony might well have been sufficient to allow the defendant to prove his insanity by a preponderance of the evidence, the defendant was entitled to a new trial. 2. The defendant's challenge to the trial court's sequestration of all witnesses, including his expert witness, was unavailing; the state's oral motion for sequestration of unspecified witnesses was reasonably interpreted by that court as a motion for sequestration of all witnesses, and, contrary to the claim of the defendant, expert witnesses are not exempted from either the statute ( 54-85a) or the rule of practice (876) requiring that witnesses in criminal cases be sequestered on motion by either the state or the defense. Because the finding of a probation violation rested upon the defendant's conviction of the crimes here, the judgment revoking his probation was reversed.
Argued October 13, 1989
Decision released December 12, 1989
Substitute information charging the defendant with the crimes of assault in the second degree, reckless endangerment in the first degree, threatening, disorderly conduct, breach of the peace and assault in the third degree, brought to the Superior Court in the judicial district of Ansonia-Milford, geographical area number five, and tried to the jury before Gray, J.; verdict and judgment of guilty of assault in the second degree, threatening, disorderly conduct, breach of the peace and assault in the third degree; thereafter, the court rendered judgment revoking the defendant's probation, and the defendant filed separate appeals to this court. Error; new trial.
Elaine M. Scanlon, with whom, on the brief, was Howard T. Owens, Jr., for the appellant (defendant).
Timothy J. Sugrue, deputy assistant state's attorney, with whom, on the brief, were Mary M. Galvin, state's attorney, and Michael J. Weber, Jr., deputy assistant state's attorney, for the appellee (state).
In these combined appeals, the defendant appeals from the judgment following the convictions by a jury on several criminal charges. He also appeals from a subsequent judgment of the trial court revoking his prior probation because the court determined that he had violated the terms of the probation as a result of the convictions.
The defendant was charged with assault in the second degree, assault in the third degree, threatening, disorderly conduct, breach of the peace and reckless endangerment, and was found guilty of all charges except the last. He did not dispute the facts underlying the state's charges, but instead relied solely on a defense of mental disease or defect pursuant to General Statutes 53a-13.
The dispositive issue on the appeal is whether the court erred in excluding the testimony of the defendant's mother as a lay witness. Her testimony was offered to show the defendant's mental condition at the time the offenses were committed. We hold that the testimony should have been admitted.
Under 53a-13 (a), insanity is an affirmative defense, and the defendant bears the burden of proving by a preponderance of the evidence; General Statutes 53a-12 (b); that, as a result of mental disease or defect, he or she, at the time the offenses were committed, lacked substantial capacity "either to appreciate the wrongfulness of his conduct or to conform that conduct to the requirements of the law." General Statutes 53a-13 (a).
"It is well settled that a nonexpert witness may testify as to his impression of another's mental or emotional state if that opinion is reliable and based on the witness's observations." State v. Spigarolo, 210 Conn. 359, 371, 556 A.2d 112, cert. denied, ___ U.S. ___, (58 U.S.L.W. 3288, October 31, 1989); see Wolk v. Wolk, 191 Conn. 328, 330, 464 A.2d 780 (1983); State v. Palozie, 165 Conn. 288, 298-99, 334 A.2d 468 (1973); State v. McGinnis, 158 Conn. 124, 130-31, 256 A.2d 241 (1969). The tests regarding the admissibility of a nonexpert opinion include whether the evidence is relevant, and whether the witness is competent. State v. Spigarolo, supra. The decision as to the admissibility of such testimony is within the discretion of the trial court and will be reversed only if the court has abused that discretion. Id., 374-75.
A parent is clearly a person who is uniquely able to observe her or his child, and that testimony, based on first hand knowledge and observations of the child, would be competent. "A parent is always competent to testify as to a child's mental, physical or emotional state at a given time." State v. Duhan, 38 Conn. Sup. 665, 670-71, 460 A.2d 496 (1982), rev'd. on other grounds, 194 Conn. 347, 481 A.2d 48 (1984); see also State v. Palozie, supra, 299. In this case, the testimony of the defendant's mother was also relevant because the primary issue for the jury was whether the defendant suffered from a mental disease or defect.
Here, the defendant sought to introduce his mother's testimony to show genetic, family illnesses that he alleged were medically linked to his mental condition. The court refused to admit that testimony. The excluded lay testimony, had it been admitted, might well have been sufficient to allow the defendant to prove his insanity by a preponderance of the evidence. Therefore, depriving him of the right to present this potentially crucial testimony was tantamount to curtailing his ability to defend himself. The mother's testimony should have been admitted, and to exclude it was an abuse of discretion. Having thus been denied the right fully to present his defense, the defendant is entitled to a new trial.
Although we need not reach another claim of error, the claim that the trial court erred in granting the state's oral motion for sequestration, we will address that issue because it may recur on retrial. General Statutes 54-85a provides: "In any criminal prosecution, the court, upon motion of the state or the defendant, shall cause any witness to be sequestered during the hearing on any issue or motion or any part of the trial of such prosecution in which he is not testifying." That section mandates that, in a criminal case, a sequestration motion by either the defense or prosecution shall be granted. State v. Arroyo, 13 Conn. App. 687, 693, 539 A.2d 581, cert. denied, 208 Conn. 805, 545 A.2d 1103 (1988); see also Practice Book 876 (providing for sequestration).
The defendant also raises several other claims of error. He argues that the trial court erred in excluding the testimony of a rebuttal witness, in qualifying a particular state's witness as an expert, in "extensively" examining the defendant's key witness, in making "detailed inaccurate and prejudicial comments on the evidence during the jury charge," and in failing to order a presentence investigation of the defendant prior to imposing sentence for the violation of probation and the criminal convictions. These issues need not be discussed because they are not likely to recur on retrial.
Because the state's motion did not specify particular witnesses to be sequestered, the court directed the sequestration of all witnesses, both defense and prosecution. The defendant therefore characterizes that order as having been issued sua sponte and argues that the court erred in issuing a blanket sequestration order. He argues that Practice Book 876 requires that the motion be directed to "any witness," apparently interpreting those words to require the movant to name specific witnesses.
The interpretation suggested by the defendant would strain the natural meaning of the words of 876 and violate the directive of 54-85a. It is unlikely that either the statute or the rule of practice would have been drafted to refer to "any witness" if they had been intended to require that a specific witness be named. We read those sections to mean that a sequestration order shall be granted with respect "to anyone the mover wishes to have sequestered" or "to any or all witnesses." The oral motion for sequestration of unspecified witnesses was, therefore, reasonably interpreted by the trial court as a motion for sequestration of all witnesses, and the court's blanket order was not a sua sponte action but a response to the motion.
The defendant further argues that the court erroneously applied the sequestration order to his expert witness. Expert witnesses are not excepted under either the rule of practice or the statute and may be sequestered. State v. Falby, 187 Conn. 6, 27, 444 A.2d 213 (1982). The reason for sequestration of witnesses, namely, to prevent the shaping of the testimony of one witness on the basis of the testimony of another witness, is applicable to medical expert witnesses as well as to other witnesses, even in cases involving insanity as a defense. Id., 26-27. We conclude that there was no error in the sequestration order.
The defendant further argues that if the underlying criminal convictions are reversed, the judgment of probation revocation must also be reversed. The reason stated by the probation department, in its motion to terminate the defendant's probation, was: "Soltes currently has pending charges in G.A. 5, under docket # CR 5-69103 of Assault 2d, Breach of Peace (2 counts), Reckless Endangerment 1st, and Threatening. Should he be found guilty of any of the charges he will be found in Violation of Probation." The finding by the court of a probation violation rested upon the conviction of the defendant on those underlying criminal charges. Cf. State v. Smith, 18 Conn. App. 368, 370 n. 1, 558 A.2d 257 (1989). Because we now set aside the judgment of conviction on those charges, the judgment of a probation violation must also be reversed.
Finally, the defendant contends that even if his convictions were not set aside, the court erred in revoking his probation because the revocation hearing was initiated by a motion by the department of adult probation rather than by an arrest warrant supported by an affidavit or sworn testimony. See State v. Barter, 19 Conn. App. 304, 312 n. 8, 563 A.2d 721 (1989). This claim is premature. It is not now known whether the defendant will be found guilty or not guilty by reason of mental disease or defect. Thus it cannot be known if the defendant will be charged with a violation of probation or, if so, whether that charge will be initiated by motion of a probation officer or by an arrest warrant. We, therefore, do not address this issue.