209 Conn. 290 | Conn. | 1988
The principal issue in this appeal is the admissibility of the defendant’s written statement, which he claims was procured in violation of the rules of professional conduct, and was involuntary and unreliable. The present proceedings result from a retrial ordered by this court in State v. Avis, 198 Conn. 644, 504 A.2d 1364 (1986) (Avis I). The defendant, James Avis, had been found guilty of felony murder in violation of General Statutes § 53a-54c
The events surrounding the defendant’s conviction are fully set forth in Avis I, supra, 647. As in that case, the present jury could reasonably have found the following facts. The victim, the defendant and Vinal were together in a Torrington bar early on the morning of October 8, 1978. The defendant knew that Vinal was armed. When the victim left the bar, the defendant and Vinal, in a car driven by the defendant, followed the victim’s car as the victim drove toward Litchfield. After blinking his headlights to persuade the victim to pull over, the defendant parked his own car in the immediate vicinity, and he and Vinal accosted the victim in
An investigator hired by Vinal’s attorney obtained from the defendant a written statement in which he confessed to shooting and robbing the victim, and exonerated Vinal. The investigator gave the statement to the police who obtained a warrant for the defendant’s arrest. The defendant was arrested in Seattle, Washington, and returned to Connecticut for trial.
In the present proceedings, in which the defendant was charged with felony murder, the state conceded that it was Vinal who had shot the victim. What was at issue at trial was the defendant’s role in the robbery. The defendant maintained that he had been unaware of Vinai’s intent to rob the victim and had himself taken no part in the robbery. The state contended, to the contrary, that the defendant had participated in the robbery in the course of which Vinal killed the victim. After the jury found the defendant guilty, the trial court denied his motions for a new trial, to arrest judgment and for acquittal.
In his appeal from the trial court’s judgment, the defendant has raised seven issues that can conveniently be addressed in four groupings. The defendant’s principal claim of error is that the trial court erred in denying his motion to suppress his written statement. He also contends that the trial court made several erroneous evidentiary rulings, erred in its charge to the jury and in its submission of documents to them, and improperly denied his motion for acquittal.
The main issue on appeal is the defendant’s claim that the trial court should have granted his motion to suppress his written statement. He claims that his statement was inadmissible for three reasons: unethical procurement, involuntariness and unreliability. We are not persuaded.
A
In the defendant’s motions to suppress at trial,
A necessary predicate to the defendant’s argument is a factual finding of professional misconduct. The trial court, however, made the contrary finding. Even if we apply to this finding the scrupulous review that we undertake when constitutional rights are possibly implicated; see State v. Weidenhof 205 Conn. 262, 267-68, 533 A.2d 545 (1987); the trial court’s finding must stand.
This record contains no definitive evidence that the defendant’s written statement was the product of conduct by Gallicchio that violated DR 7-104 (A) (2). The
On this record, it was not clearly erroneous for the trial court to have found Gallicchio the more credible witness and to have concluded that the state had proven that Gallicchio had not given the defendant legal advice. In the absence of a factual showing of a violation of DR 7-104 (A) (2), we need not reach the question of whether a private attorney’s unethical behavior would require the court to exclude evidence obtained thereby from a criminal defendant not in police custody.
B
The defendant also contends that the court should have granted his motion to suppress his written statement because it was given involuntarily. In accordance with settled principles of due process, the state may not make use of an involuntary confession at trial; Brown v. Allen, 344 U.S. 443, 475, 73 S. Ct. 397, 97 L. Ed. 469 (1953); State v. Smith, 200 Conn. 465, 475, 512 A.2d 189 (1986); and bears the burden of proving voluntariness by a preponderance of the evidence. Lego v. Twomey, 404 U.S. 477, 489, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972); State v. Smith, supra, 477. The dispositive question in determining voluntariness is: “ ‘Is the
On the record before us, we conclude that the trial court was not clearly erroneous in finding the defendant’s statement voluntary. The defendant contends that the statement was made involuntarily because it was made upon the advice of a person he considered to be his attorney and in return for a promise of financial gain from Vinal. As previously noted, both of these allegations were controverted at trial. Furthermore, the record demonstrates the defendant’s exercise of independent control over the circumstances leading to his statement. For example, he repeatedly refused to cooperate in efforts to have a discussion of the incident until he could set preconditions for such a conference, and he successfully insisted on a delayed time schedule for public disclosure of his statement after he had
C
The defendant further contends that the trial court erred in denying his motion to suppress his written statement because it was substantially inaccurate, unreliable and untrustworthy. The basis for this claim is that the statement materially contradicted other evidence and was inconsistent with the state’s theory of the incident. The trial court determined, however, that the statement was more probative than prejudicial.
The trial court has wide discretion to determine the relevancy of evidence. State v. Fritz, 204 Conn. 156, 167, 527 A.2d 1157 (1987); State v. Boucino, 199 Conn. 207, 225, 506 A.2d 125 (1986); State v. Sharpe, 195 Conn. 651, 658-59, 491 A.2d 345 (1985); State v. Piskorski, 177 Conn. 677, 695, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. State v. Fritz, supra, 167-68; State v. Boucino, supra; State v. Falcon, 196 Conn. 557, 566, 494 A.2d 1190 (1985).
Statements may be admitted into evidence although portions of those statements are known to be false. For example, statements intended by the defendant to be exculpatory may be admitted for an inculpatory purpose. State v. Stepney, 191 Conn. 233, 251, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984); State v. DeMatteo, 186 Conn. 696, 702-703, 443 A.2d 915 (1982) (misstatement admissible because it permits the inference that it was made to avoid detection). Just as the state need not vouch in its entirety for the credibility of the witnesses it calls; see, e.g., State v. Williams, 204 Conn. 523, 530-31, 529 A.2d 653 (1987); State v. Graham, 200 Conn. 9, 14-18, 509 A.2d 493 (1986); so the state is not required to adopt an all or nothing position with respect to the admission of written statements. The trial court’s decision to admit the defendant’s written statement into evidence was not an abuse of discretion in the circumstances of this case.
II
Apart from the admissibility of his inculpatory statement, the defendant raises three other evidentiary
A
The defendant sought to examine the state’s attorney and assistant state’s attorney, during the hearing on the motion to suppress the defendant’s written statement, in order to ascertain their opinions about the statement’s reliability. The defendant claims that the trial court erred in sustaining the state’s objection that these questions were irrelevant and immaterial.
The defendant maintains that the excluded questions were relevant with respect to the reliability of his confession because the state is under an ethical obligation not to offer tainted evidence. Whatever the contours of that obligation may be; see State v. Jones, 180 Conn. 443, 455, 429 A.2d 936 (1980), overruled in part on other grounds, State v. Powell, 186 Conn. 547, 442 A.2d 939, cert. denied sub nom. Moeller v. Connecticut, 459 U.S. 838, 103 S. Ct. 85, 74 L. Ed. 2d 80 (1982); State v. Moynahan, 164 Conn. 560, 568, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219 (1973); we have already held that it does not encompass a duty to suppress a statement in its entirety simply because the state disavows it in part. See part IC, supra. In light of this holding, the trial court did not abuse its discretion in ruling that the proffered evidence was irrelevant and immaterial. State v. Williams, 203 Conn. 159, 183-84, 523 A.2d 1284 (1987); State v. Fritz, supra, 167-68.
The defendant sought to impeach the credibility of Robert DePretis by cross-examining him about allegedly inconsistent prior statements. The trial court ruled, on the state’s urging, that DePretis’s prior statements at the defendant’s first trial were not materially inconsistent with his present testimony. The defendant assigns error to this ruling and to the trial court’s consequent refusal to permit the questioning or to admit the earlier transcript into evidence.
The allegedly inconsistent statements in this case concern conversations that DePretis had with the defendant in New Hampshire when the defendant was persuaded to write his inculpatory statement. First, on cross-examination in the present trial, DePretis testified that he had gone to New Hampshire in order to find out what had happened on the night of the murder, because Vinal allegedly could not remember. In the Avis I trial, the witness had answered in the affirmative a question asking him whether he had hoped that the defendant would incriminate himself and exonerate Vinal. Second, during the present cross-examination, DePretis testified that he had never told the defendant that the victim’s wallet was missing, whereas, in Avis I, his response to a similar question had been, “I believe I may have.”
As an evidentiary matter, evidence of a witness’s prior inconsistent statement is admissible to attack the witness’s credibility. State v. Reed, 174 Conn. 287, 302, 386 A.2d 243 (1978); State v. Vega, 163 Conn. 304, 307, 306 A.2d 855 (1972); State v. Keating, 151 Conn. 592, 597, 200 A.2d 724 (1964), cert. denied sub nom. Joseph v. Connecticut, 379 U.S. 963, 85 S. Ct. 654, 13 L. Ed. 2d 557 (1965). A statement is admissible as a prior inconsistent statement, however, only when the trial court is persuaded that, taking the testimony of the witness as a whole, the statements are in fact inconsistent. State v. Piskorski, supra, 710; State v. Reed, supra, 302-303; State v. Chesney, 166 Conn. 630, 636, 353 A.2d 783, cert. denied, 419 U.S. 1004, 95 S. Ct. 324, 42 L. Ed. 2d 280 (1974). Such a determination as to inconsistency lies within the discretionary authority of the trial court. State v. Piskorski, supra, 711; State v. Reed, supra, 303.
The defendant also sought to impeach the credibility of DePretis by cross-examining him about alleged prior misconduct. Because DePretis had been named in a grand jury report investigating alleged misconduct in the Torrington police department, the defense attempted to ascertain from DePretis whether he had ever received proceeds from the illegal sale of evidence held by the Torrington police while he was a member of that department. The trial court sustained the state’s objection to this questioning. The defendant contends that the court should not have excluded this evidence because it was relevant to the veracity of DePretis.
A witness may be cross-examined regarding specific acts of misconduct only if they bear a specific significance upon the issue of the witness’s veracity. State v. Martin, 201 Conn. 74, 86, 513 A.2d 116 (1986); State v. Sharpe, supra, 658; State v. Dolphin, 195 Conn. 444, 459, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985). “ ‘Whether to permit cross-examination as to particular acts of misconduct . . . lies largely within the discretion of the trial court.’ ” State v. Martin, supra, 86, quoting State v. Vitale, 197 Conn. 396, 401, 497 A.2d 956 (1985).
The trial court could reasonably have concluded that the proffered evidence was lacking in factual support and more likely to be prejudicial than probative. The court noted that the report of an investigatory grand jury is, at best, accusatory. The alleged misconduct, not being especially relevant to veracity, might have served to distract the jury’s attention. Accordingly, the trial court’s ruling was not an abuse of its discretion.
Ill
The defendant claims that the trial court erred in its instructions to the jury and in the documentation it sub
A
The defendant does not challenge the accuracy of the trial court’s basic instructions to the jury. He takes issue, instead, with the trial court’s refusal to give supplemental charges to the jury to define “passive acquiescence” and “intentional.”
So long as jury instructions provide sufficient overall guidance for the jury; State v. Rodgers, 198 Conn. 53, 56, 502 A.2d 360 (1985); State v. Mason, 186 Conn. 574, 585, 442 A.2d 1335 (1982); State v. Cooper, 182 Conn. 207, 211, 438 A.2d 418 (1980); they need not contain standard dictionary definitions, because such definitions are “taken as a matter of common knowledge which the jury is supposed to possess.” State v. Asherman, 193 Conn. 695, 737, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985). “ Tn appeals not involving a constitutional question the court must determine whether it is reasonably probable that the jury were misled . . . .’” State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982), quoting State v. Williams, 182 Conn. 262, 268, 438 A.2d 80 (1980).
The trial court read General Statutes § 53a-8
“Passive acquiescence” is not statutorily defined and has no legal meaning beyond the words’ ordinary usage. Consequently, the court would ordinarily not be called upon to define the term. State v. MacFarlane, 188 Conn. 542, 550-52, 450 A.2d 374 (1982). The jury’s multiple requests to hear the portion of the charge dealing with “passive acquiescence,” however, support the defendant’s claim that the court’s refusal to define “passive acquiescence” in response to these requests might have deprived the jury of sufficient guidance in its deliberation. State v. Fletcher, 207 Conn. 191, 193-94, 540 A.2d 370 (1988). Consequently, we agree with the defendant that the trial court erred in refusing to define “passive acquiescence.”
The trial court’s error was, however, harmless. The record indicates that the jury was ultimately satisfied with the court’s responses to its inquiries. Furthermore, read as a whole, the charge adequately instructed the jury that the defendant could not be convicted pursuant to § 53a-8 without intending to aid, and aiding, in the commission of the crime.
B
The defendant also claims that the jury’s deliberations were impaired because the trial court, over his objection, erroneously submitted his original indictment to the jury. The indictment that underlay the proceedings in Avis I charged that either the defendant or Vinal had shot the victim. The substituted bill of particulars filed by the state before the defendant’s retrial charged instead that “in the course of and in furtherance of the said robbery or flight therefrom, the co-participant, Daniel Vinal, caused the death of the victim . . . . ” A subsequent substituted bill of particulars specifically alleged that Vinal had caused the death of the victim.
The trial court submitted the original indictment to the jury on the ground that the jury had been adequately instructed about the charge on which the defendant was being prosecuted. As the state virtually
We are, however, persuaded that the trial court’s error was harmless. The court had correctly instructed the jury that the substituted bill of particulars stating that Vinal caused the victim’s death was binding on the state and that the defendant was not charged with intentional murder.
IV
The final issue is whether the trial court erred in denying the defendant’s motion for acquittal. The defendant contends that the evidence against him was insufficient to support the jury’s guilty verdict. He challenges in particular the sufficiency of the evidence to establish that he participated in the alleged robbery. We are not persuaded.
When a verdict is challenged because of insufficient evidence, the issue is whether “ ‘ “the jury could have reasonably concluded, upon the facts established and
There was sufficient evidence at trial to support the jury’s finding in this case. In addition to the defendant’s confession, the state proved that the defendant, in the company of Vinal, whom he knew to be armed, followed the victim’s car and persuaded the victim to stop by the side of the road. The jury could reasonably have disbelieved the defendant’s story that he thereafter remained in his own car and fell asleep or passed out. The defendant’s testimony that he saw Vinal throw a wallet into the river after the incident, his subsequent
There is no error.
In this opinion the other justices concurred.
“[General Statutes] Sec. 53a-54c. felony murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, sexual assault in the first degree with a firearm, sexual
Vinal was retried and found guilty of the crimes of murder in violation of General Statutes § 53a-54a and felony murder in violation of General Statutes § 53a-54c. Vinal appealed to this court, which found no error. State v. Vinal, 205 Conn. 507, 534 A.2d 613 (1987).
The defendant filed motion to suppress the statement dated May 6,1986, and a motion to dismiss or in limine dated September 5,1986. After a suppression hearing, the trial court denied both motions.
Disciplinary Rule 7-104 (A) (2) of the Code of Professional Responsibility, in effect at the time in question, provided in relevant part: “During the course of his representation of a client a lawyer shall not... (2) Give advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of his client.”
The statement reads:
“To whom it may concern:
On or about October 8,1978, in the early morning hours, I pulled a vehicle over on Old Route 8, East Litchfield, Connecticut. The vehicle was driven by the sole occupant known to me as ‘Freddy.’ I intended to rob him. He put up a struggle, and I fired at him twice. I left him unconscious, his car engine running. The wallet that was in his possession prior to my taking it was discarded by me at the bottom of Toll Gate Hill in a brook in Litchfield. The man riding in my vehicle was passed out and knew absolutely nothing about the incident mentioned above. My passenger was Danny Vinal. I found the gun in the front seat of the car I drove. I really don’t know what make or model it was. I discarded the weapon somewhere during my travels since this incident occurred.
I’m confessing of this crime to rid myself of the overpowering guilt feelings. I gave this confession to Robert DePretis of Torrington, Connecticut.
Signed James J. Avis”
The United States Supreme Court has stated that “[t]he most outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible under the Due Process Clause.” Colorado v. Connelly, 479 U.S. 157, 166, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986). That court has held that “coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment.” Id., 167. We reserve for another day the issue of whether statements made to a private individual may be found involuntary within the meaning of the due process clause contained in the Connecticut constitution.
The trial court stated: “The reliability and trustworthy arguments, again, perhaps raise more smoke than substance. . . . [W]hile there was some inconsistency in the statement apparently bearing on the truth thereof, this is not to say that the entire statement or entire confession has to be excluded ■for that reason.
“The Court is satisfied that it does have substantial probative value, that that probative value does outweigh any prejudicial or inflammatory consideration it may have, and it does shed light actually on the fact that there really was a robbery.”
On cross-examination, DePretis testified:
“Q. You never told Mr. Avis that a wallet was missing?
“A. No.
“Q. You never did?
“A. No.”
In the July 9, 1981 testimony that the defendant contends is inconsistent, DePretis testified:
“Q. Did you tell him that [the victim’s] wallet was missing?
“A. I believe I may have.
“Q. Before he wrote the confession? . . .
“The Court: You have to answer the question, oh you’re thinking.
“The Witness: Yes. Um, I can’t recall.”
DePretis testified: “Q. Was there any indication between you and Avis about the contents of that particular statement?
“A. In reference to the wallet, for corroborative purposes, to indicate where he had discarded it, so the police could retrieve it, and that would corroborate the facts in that statement.
“Q. So I’m clear on this, you told him you wanted to know where the wallet had been thrown?
“A. After he told me he had taken it during the robbery.”
In addition, we note that DePretis’s statements regarding whether he told the defendant that the victim’s wallet was missing are substantively irrelevant. Later testimony by the defendant provides support for a conclusion that the victim’s wallet was taken and that, therefore, a robbery occurred. The defendant testified that after the incident, Vinal told him to stop the car because he had to throw something out. Vinal then got out of the car and threw a wallet into the river.
“[General Statutes] Sec. 53a-8. criminal liability for acts of another. 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.”
The court charged as follows: “To find a person guilty under this section, you must find he had a criminality of intent and unlawful purpose in common with the person or persons who actually committed the crime. . . .
“If you find that a person committed the felony murder in question, then the next thing you must decide is whether the Defendant shared the intent
The court instructed the jury as follows: “As I told you, you can’t consider the indictment as evidence of anything ....
“The State is not alleging that the Defendant intended to cause the death of the victim. That would constitute an intentional act of murder. In fact, the bill of particulars alleges Mr. Vinal shot [the victim] and not Mr. Avis.”