*1 before full of their claims adjudication to a titled in this case the material facts courts. Because disputed, granting were vigorously summary judgment motions defendants’ improper. judgment set aside the error,
I would find on the merits. for a trial remand ease J. Connecticut Lombardo v. State Donald Longo J., Loiselle, Dannehy, C. Js. Bogdanski, House, 15, 1977 February Argued decision released November *2 Courtney appellant (plaintiff). B. for the Bourns, Richard, Maloney, attorney, E. assistant state’s Stoughton, George with on the whom, brief, D. attorney, appellee (state). state’s for the The J. was convicted of a vio- Loiselle, (a) §§ lation of 19-452 General Statutes 19-480 selling cannabis-type drug. Upon appeal in that a conviction was Lombardo, sustained. v. State petitioned for Conn. 304 A.2d 241, 36. Lombardo ground newly a new trial on the of evi- discovered denying judgment dence. The trial court rendered judgment appeal and from has that this been taken.
At the in trial which Lombardo was two convicted, agents they purchased undercover testified that four kilos the defendant. marihuana from charges, defendant denied the and offered in defense verdict of an alibi. The rendered a guilty. original
At the offered evidence state man, that Ronald met Minas, a a detective, had in court in whom identified defendant, as the Park in times Wickham Manchester four or five July, during they and that 1970, each time evening discussed sale of a marihuana. On the July Minas 22, 1970, and his John Officer associate, Mayoros, met Park C. Lombardo at Wickham they buy and advised him that much wished as possible marihuana as for were made Plans $1000. delivery morning park. the next Minas telephone gave his so Lombardo, number to concerning Lombardo could call time for him July At about Minas sale. 9 a.m., 1970, telephone Lom- from at his home received a call Arrangements for the sale were made bardo. at Wickham Park
four kilos of marihuana England morning. Tele- a.m. that Southern New phone Company Lom- showed a call records day. telephone telephone on that bardo’s to Minas’ Mayoros, officers, the two undercover Minas Shortly 11 a.m. after to Wickham Park. drove up Dominick blue Ford. Lombardo drove *3 registered one arrived a white Pontiac Lisella opened Majewski. the trunk of Robert Lisella opened which Lombardo’s vehicle and a suitcase was twenty-four substance later contained kilos of a four identified as Minas chose kilos marihuana. from the and Lombardo
this substance suitcase Mayoros. accepted never from Minas was $1000 during more than two or three feet from Lombardo the entire transaction. original the trial before the defendant
At the concerning offered evidence claim of an alibi. testimony by This included the defendant and July a number of witnesses that on the when put arrang- state’s evidence him at Wickham Park ing continuously for the marihuana he sale, he with attended some- friends; visited wake, hospital one at a and but never returned home, went to Wickham for Park. ITis alibi the time day the the next sale was based on his own testi- mony, on and the of a friend saw who preparing him at home, attend a without funeral, operable an car at about 11 available, a.m. on shortly put before the 23rd, state’s evidence him park selling marihuana. Another witness telephoned testified that she had Lombardo at his spoken home and had with him three or four times 12:30 on the p.m. 23rd, between a.m. and go home that she him at his at 12:45 up picked to a funeral. Robert the defense was
Another witness mentioned the white Pontiac owner of Majewski, spent He testified that he the state’s witnesses. arriving at Lombardo’s home, of the 22nd night when Lombardo returned friends the 23rd wake. He testified that at 10 a.m. on also drove Dominick Lisella, and Richard Putinas he, Lom- car to Wickham Majewski Park, leaving bardo at home in bed. At park, two met “Ron” (presumably Putinas and “Jack” May- undercover Ronald Minas and John agents, and drove to a rear lot oros) He, together. left car Majewski, had and was two helping wax their girls car and did not see went on what in the rear lot. he Although all park on day the 22nd and the Lom- 23rd, did not see bardo at the park either day.
At the original trial Dominick tes- Lisella also tified for the defense. boyhood He was a friend and of neighbor to whom he like Lombardo, was a brother. He testified that he met “Ron” and “Jack” on the of evening July 22nd and discussed “business” with but he them, did not see Lombardo at the He the park. spent night with Lombardo and made a the telephone call next from Lom- morning bardo’s but he telephone, refused to tell whom he made the call. After the call he went to the park with Putinas and Majewski. He met “Ron” and “Jack” at the park and went with them to the back lot. He declined to further testify on direct he examination, claiming might incriminate himself. According five memorandum of the decision, hearing for the on the witnesses testified at testimony trial. of three of those wit- a new merely by the cumu- nesses was discounted court as repetitious testimony given trial. or of at the lative the war- The “new evidence” which claims testimony a new is the who Putinas, rants trial testify original not the and who did at Lisella, gave testimony original trial then some at but the fifth “new” invoked amendment. This evening July Lisella made is that on Mayoros arrangements and for the sale with Minas telephone call them he made marihuana, that morning 23rd, on the of the from Lombardo’s home Majew- put trunk of of marihuana in the a suitcase Majewski park and car, ski’s drove to Majewski out back let drove to the and Putinas, parking opened trunk. Putinas lot where “participated” in Lisella sale. Minas Mayoros gave took the marihuana and money. present the sale. Lombardo explained hearing, it was that Putinas
At original counsel trial told Lombardo’s testify participated that he would that he attorney he but on advice from his sale, changed sub- Lombardo’s issued a mind. counsel poena him. but the sheriff could not find him, for Lombardo did not for a continuance Counsel ask he concluded that after Lisella claimed because privilege against there no self-incrimination testify. hope Putinas would *5 petition new con- trial,
The court denied the for a testimony cluding Putinas that Lisella and testimony basically given cumulative Majewski original con- trial and others
390 tradictory testimony to of the undercover officers. credibility It concluded that the case turned on jury oppor- of witnesses whom had had an tunity appear to and that it observe, did not injustice an done or been that a new trial with the additional would result in a different verdict. petition
A
for a new trial
is addressed to
legal discretion of the trial
v. Grimes,
court. State
It is true that in a which this is case, not, “[a] [relating trials] 11of the . . . rules new are qualified light principle ... in of the laid down in Andersen v. 43 Conn. that fin a State, 517, 514, justice, case where human life is at as well stake, humanity, requires pause as us to and consider ” apply rigor.’ before we those rules their in all Taborsky v. State, Conn. A.2d 623, supra, Hamlin 433; v. State, 94. granted
Whether a new trial should be does not on turn whether the evidence such that the is credibility could extend to it. A for a new trial is a civil action. The has the burden
391 proof, preponderance of the of the evidence. granted except “A will never be on sub- grounds.” supra, stantial State v. 325. The Grimes, persuade new evi- must the court that the probably, merely possibly, dence he submits will not result in different at new or that trial, a verdict a injustice 131 State, an been done. Pradlik has v. 41 906. It is not sufficient 682, Conn. A.2d 686, jury bring him to in new evidence which a guilty—it evidence could find him not must be jury persuades judge find the which that a would Judge guilty. York him of New not Cardozo Appeals this of to consider Court had occasion sought problem in a case when a new trial was prior their because state witnesses recanted testimony. affirming Concurring of the in denial judge, rejected view that a faced new conflicting should the search stories, abandon jury. He it to said: for truth and turn over a try judge duty to “I think it of the trial could where and determine as best he facts, lay. He not truth . likelihood . .
liberty upon shift the shoulders another responsibility.” People Shilitano, v. his own 2d, 58 Am. Jur. see 180, 733; N.E. N.Y. § Trial, New 166. person might appear that where a
At blush it first testify effect, will to that confesses to crime only weight not of such that it is is guilt of or issue of innocence to the material likely necessarily also be but would accused, an produce however, case, result. In this a different evi- rise to that level. the evidence does arranged be is that dence new claimed present at that Putinas was sale, for and made the “participated” it, sale and time *7 Analyzing not evi- that Lombardo was there. this significantly to it does contradict or add dence, jury. produced At the the evidence at the trial to testimony Majewski’s that that both trial, Lisella and Putinas were at the scene of the sale. testify, before his refusal to continue to Lisella, stated that he was the one had discussed who agents night “business” with the undercover telephone before the sale, had made a call on the morning next from Lombardo’s driven house, had Majewsld and Putinas to Wickham Park, agents met the undercover and went to the back parking agents lot. The undercover testified that at opened lot Lisella was the one who participation trunk of the vehicle; Lisella’s produced by sale was evidence which was state by anyone. only and stood uncontradicted The new contradictory money evidence was that passed to Lisella rather than that Lombardo, testimony Lombardo was not there. At most, the Putinas him an makes interested The observer. totality being of the new evidence boils down to cumulative to the claimed which sub- alibi, was the ject jury of extensive trial. produced
In view of the evidence at the trial jury participant, according which made Lisella a to the state’s witnesses and inference Majewski’s testimony, and Lisella’s own the claimed new evidence is not of the same substance as that gave supra. which concern in v. State, Smith Essen- tially, story jury the whole is one that heard although at the trial, some facts which the might have inferred are filled in the new testi- mony. jury judged credibility the wit- guilty. nesses and found Lombardo Under all the it circumstances cannot be said the trial court abused its discretion in con- cluding probability that the evidence in all would produce if not, offered in a new different concluding injustice and in result, that no had been done.
There is no error. opinion In this J., C. Longo House, Dannehy, concurred. Js., *8 (dissenting). J. The two confessions Bogdanski,
to the crime involved in this case the witnesses Putinas and Lisella under oath cannot be charac- merely terized as cumulative evidence. ground newly
A motion for on a new trial of merely discovered evidence should not be denied judge because the trial evi- refuses to believe the applied determining dence. The test to be granted whether another trial should be is whether the evidence meets the five conditions enumerated in Hamlin v. State, Conn. 92, and whether 93, upon jury, evidence is of such a nature that the reasonably a new credibility trial, could extend to it. requires judge grant above test the trial to regardless a new if trial he is satisfied his that, own disbelief in the trustworthiness of new only certainty evidence, there is not reasonable that evidence will be admitted at the new trial probability but jury also a reasonable that will accept applied it. Had the trial court it test, logically could have reached no other conclusion plaintiff ought than that the to have a new trial. con- than the be less cumulative could
Nothing and if the Lisella, of Putinas fessions con- confessions as true—a those accept should reasonable within the field of well tingency lying them for be probability—it legally impossible would plaintiff conclusion than that any reach other charged.1 is of the crime guilty
The hard fact which neither inferences reasoning, nor wishful can that the thinking destroy is is while other protesting innocence, persons two hearing following petition At the on the for a new presented: evidence was “The witnesses Biehard Putinas prior Dominie Lisella were advised their own counsel hearing hearing. on the testify trial new not to They they they testify understood that did not have to and that if did their could used incriminate them and would be against them. Messrs. Putinas and Lisella drove to Wickham Park together July . . . participated on 1970 and in an illicit marijuana sale of park in a back lot of the about 11:00 a.m. Mayoros, police Bonald Minas and Jack undercover nar both agents, present cotics also part were and took in the sale. Mr. Lisella up Mayoros set night the sale with Messrs. Minas and on the July 22, agreeing day . consummate it the next . . at 11:00 a.m. morning July 23, telephoned On the Mr. Messrs. Minas *9 Mayoros and left from Mr. before Mr. Lisella Lombardo’s home placed for Wickham driving park Park. Before Mr. to the a containing marijuana suitcase car in the trunk his car. The belonged Majewski to Bobert and and he was with Messrs. Putinas Majewski they park. got Lisella when at arrived Mr. out before complete parking Messrs. Putinas and Lisella drove to the back lot to Mayoros. parking sale with lot Messrs. Minas and In the back opened Mayoros Mr. Lisella the trunk and and took Messrs. Minas packages four marijuana gave from and the trunk Mr. Lisella money present them. Donald not Lombardo was in the back Mayoros lot Putinas, Lisella, with Messrs. Minas and and participate did not in the and sale. Messrs. Putinas Lisella were aware subsequently making that Mr. Lombardo arrested for was marijuana said Mayoros. sale of to Messrs. and Minas Messrs. Putinas and testify Lisella were Lombardo his asked Mr. to on behalf at resulting the criminal trial making from his arrest for Thereafter, said sale. Mr. Vignati, Putinas told Francis counsel Lombardo, for Mr. participated in he the sale and would take of the have not the commission only confessed to have placed plaintiff away offense but also scene the crime. in entitled my judgment, to is, new trial. Highland Mortgage Company
Associated East v. al. Park, et Inc., Longo J., Barber, Js. House, Loiselle, Bogdanski, C. and present the stand the trial and admit this. Mr. was Putinas court at ready Mr. trial and testify Lombardo’s to that he was present at present the sale and that Mr. Lombardo was not did not make sale. testifying, Before he however, called attorney, Alfano, Charles testify. and Mr. Alfano advised him not to Immediately following telephone Alfano, this conversation Mr. with Mr. Putinas left building, telling leaving. the court no one he was Thereafter, during the remainder of the he did return the court and was not in or communication Mr. Lombardo Vignati. Mr. Attorney Vignati subpoena issued a for Mr. Putinas when he learned that gave left the courthouse. He the sub- poena to Sheriff Yacovone, previous experience known him from to be reliable attempted conscientious and Sheriff Yacovone locate Mr. Putinas to him serve but unable him to find and so reported Attorney Vignati. Vignati concluded, after Attorney Mr. testify Lisella refused to further and after left Mr. Putinas *10 the court and was to be unable Yacovone, located Sheriff there longer was no any hope obtaining Mr. Putinas’ self- incriminating testimony, and, therefore, there justification nowas asking for a continuance of the trial.”