Posts tagged with "discretion"

Where Defense Counsel Invited Error, He Could Not Then Demand a Mistrial

In the article “Jury Could Reasonably Infer That Defendant Withheld Fact She Participated in Robbery In Order To Receive State Benefits,” the defendant did not succeed in her claim that the State presented insufficient evidence to convict her of fraudulent receipt of worker’s compensation benefits. In her appeal, she additionally argued that because an officer improperly referenced the defendant’s request for counsel during his testimony, the court should have declared a mistrial but failed to do so.

During cross-examination, defense counsel pressed the officer regarding whether he had taken a statement from the defendant following the robbery, asking variants of the same question. The officer consistently stated he did not take a statement, and upon repeat questioning, clarified that he had not done so because the defendant asked for an attorney. Defense counsel did not object to this testimony, and it was the judge who pointed out, outside the presence of the jury, the potential constitutional issue of referencing the counsel request.

At this point, defense counsel made an oral motion for a mistrial, arguing that the statement was improper and non-responsive. The court denied the motion, finding that the officer’s testimony was “sort of responsive,” and instead instructed the jury to disregard the officer’s testimony about the defendant’s request for counsel.

Motion for a Mistrial

Declaring a mistrial is an extreme measure granted in very few situations, such as prejudice undermining the right to a fair trial. If the court can implement a curative action to counter the prejudice, oftentimes through a jury instruction, this is the preferred course of action. It is within the trial court’s discretion to grant or deny a motion for a mistrial, and the defendant “bears the burden of establishing that there was irreparable prejudice to the defendant’s case such that it denied him a fair trial.”

However, if the error claimed by the defendant resulted from questioning on his part during cross-examination, “[s]o long as the answer is clearly responsive to the question asked, the questioner may not later secure a reversal on the basis of any invited error.”

The Court’s Decision

In this case, the Appellate Court determined that defense counsel invited the error. By repeatedly asking the officer whether he had taken a statement from the defendant, despite consistent negative answers, defense counsel “opened the door for [the officer] to explain why there was no statement.”

In addition, the defendant failed to show how she was denied a fair trial. The judge gave a curative instruction to disregard the statement, and “[a]bsent evidence to the contrary, we presume that the jury followed the court’s limiting instruction.” The Court further noted the strength of circumstantial evidence against the defendant. Therefore, this argument on appeal was rejected as well, and the judgment affirmed.

Written by Lindsay E. Raber, Esq.

When faced with a charge of larceny, burglary, conspiracy, or attempt, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at

Despite Trial Court’s Abuse of Discretion, Defendant Failed to Prove Specific Harm Warranting Reversal

In a criminal law matter, the Appellate Court of Connecticut affirmed judgment after a defendant, convicted of DUI, unsuccessfully claimed that his constitutional rights were violated when the trial court arbitrarily denied his motion for a minor continuance.

Case Background

This case arose from an incident that occurred on November 22, 2003, in Stratford. The defendant crashed his vehicle into an unoccupied parked car, and responding officers noticed visible signs of intoxication. The defendant failed several field sobriety tests and was arrested for operating a motor vehicle while under the influence (OMVUI) of alcohol in violation of General Statutes § 14-227a(a)(1). The defendant wanted a jury trial, and during jury selection, the defendant used up all his peremptory challenges.

When Juror T was selected as the alternate, defense counsel challenged him for cause. The reason given was because Juror T’s vehicle had been rear-ended by an intoxicated driver, he had been the passenger of an intoxicated driver, and he managed an alcoholic employee. The court would not excuse Juror T for cause, and defense counsel did not seek any additional peremptory challenges.

Due to a miscommunication, a regular juror did not appear at court on the scheduled trial date. However, because the alternate was present, the court stated that the trial would proceed that afternoon. Defense counsel immediately objected and requested a continuance to the next morning, when the regular juror would be available.

The court denied the request “without giving any reason… other than that the alternate juror was selected in the same manner as the regular jurors were selected.” The defendant was convicted of OMVUI and thereafter appealed, arguing that the court abused its discretion when it denied the motion, therefore depriving him of the right to an impartial jury.

Motion for a Continuance

Trial courts have wide discretion in deciding whether or not to grant a motion for a continuance. These decisions will not be overturned on appeal unless the appellant shows that the denial of this motion was arbitrary. A reviewing court will consider a number of non-exclusive factors:

[T]he timeliness of the request for continuance; the likely length of the delay; the age and complexity of the case; the granting of other continuances in the past; the impact of delay on the litigants, witnesses, opposing counsel and the court; the perceived legitimacy of the reasons proffered in support of the request; [and] the defendant’s personal responsibility for the timing of the request.

State v. Coney, 266 Conn. 787, 801 (2003). Even if the Appellate Court finds that the trial court acted arbitrarily, it must also determine that the denial was harmful, a burden placed on the appellant. If the denial implicates the violation of a constitutional right, prejudice is presumed. In addition, with respect to alternate jurors, they must have “the same qualifications and be selected in the same manner as regular jurors.” General Statutes § 54-82h(a).

The Court’s Decision

In this case, the Appellate Court considered the factors listed above and came to the conclusion that the trial court’s denial of the motion for a continuance was “unreasonable and arbitrary under the unique circumstances of the case.” However, though the defendant cited a deprivation of his Sixth Amendment protections, he did not cite any case law or provide any analysis in support of his claim.

As such, prejudice was not presumed, and the defendant had to show he was harmed by Juror T sitting on the jury. The defendant failed to demonstrate specific harm, and the Appellate Court declined to presume that Juror T was not “an impartial juror under these circumstances.” Therefore, the judgment was affirmed.

When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence) or license suspension, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at

Written by Lindsay E. Raber, Esq.