STATE v. DAN L. MOORE, SC 17992

Judicial District of Hartford

 Criminal; Right to Confrontation; Whether Trial Court Improperly Denied Motion to Strike Testimony of State's Witness Who Invoked Fifth Amendment Right Against Self-Incrimination. In October, 2002, a group of seven people who were in a restaurant parking lot were robbed by several individuals who had driven up beside them.  The defendant was charged in connection with the robbery.  During the defendant's trial, three of his coconspirators, including James Brooks, testified against him pursuant to plea agreements.  During cross-examination, Brooks changed his testimony, stating that the defendant was not present during the robbery.  Brooks testified that the state had encouraged him to implicate the defendant in order to receive a favorable plea deal.  During redirect examination, the state asked Brooks questions about his conversations with the prosecutor about going to trial and about his dialogue with the court at his plea canvass.  Before the state concluded its redirect examination, Brooks invoked his fifth amendment right against self-incrimination.  Because the defendant was thereby precluded from recross-examining Brooks, he moved to strike Brook's redirect examination testimony from the record.  The court denied the motion.  Thereafter, the defendant was convicted of robbery in the first degree, attempt to commit robbery in the first degree and conspiracy to commit robbery in the first degree.  On appeal, the defendant challenged the denial of the motion to strike, claiming that he was deprived of his right to confrontation because he did not have the opportunity to question Brooks on issues raised during redirect examination.  The Appellate Court (103 Conn. App. 1) found that the state raised new matters during redirect examination that had not been explored during direct examination.  Also, it found that the issues about which Brooks refused to testify were not collateral because they bore directly on the truthfulness of his testimony, not on Brooks' general character or credibility.  In addition, it determined that Brooks' assertion of the privilege precluded the defendant from testing the truth of Brooks' statements.  Hence, it concluded that it was improper for the court to have denied the motion to strike.  It further determined that the failure to strike was not harmless error.  The Supreme Court has granted certification as to the following issue: "Did the Appellate Court properly conclude that the trial court abused its discretion by refusing to strike the state's redirect examination of a witness and, if so, was the impropriety harmless error?"