10 Conn. App. 103 | Conn. App. Ct. | 1987
These two cases, which were tried together and combined on appeal, raise the issue of the conflict between the right of confrontation under the federal
The state’s case may be summed up as follows: In the early evening of November 26,1983, the victim, Arthur Navarette, drove his automobile to the G and G Market in Bridgeport. He had been drinking with a friend. He went into the store and bought some beer. When he left the store Nichols stole his wallet. Navarette returned and purchased cigarettes between 8:15 p.m. and 8:30 p.m. His back pocket was ripped. Johnson handed him his license, which was on the ground. After taking Navarette’s wallet, Nichols ran into the Marina Apartments housing project. On Navarette’s return, Bush suggested getting the person who took the wallet. Bush, Johnson, and Navarette went into the apartments. Bush knew that Nichols and others were going
Bush admitted going into the apartment with Navarette. He stated at the trial and in his written statement given to police before his arrest that he had gone with him to help him obtain his wallet from Nichols or to find it if Nichols had thrown it away. Bush was ahead of the others in the hallway. When he turned back, he saw Johnson holding Navarette as if he were robbing him, and he tried to convince Johnson that Navarette had no money. Nichols then ruthlessly beat Navarette despite Bush’s attempt to make him stop. Bush admitted that he checked the victim’s pockets. He claimed that Nichols was the only one beating the man.
Douglas admitted that he checked the victim’s pockets with Bush. He attributed the beating to Nichols and Johnson and the stomping to Nichols. Morales’ only involvement was driving away Navarette’s automobile.
I
Claimed Error in the Trial Court’s Denial to both Defendants of Access to the Transcript of the Earlier Trial of a Participant Who Had Been Acquitted.
Prior to trial, the court, Melville, J., denied the defendants’ motions to inspect or copy the transcripts of the Johnson trial but ordered that a transcript of the testimony of the state’s witnesses in State v. Johnson be prepared and sealed so that they would be available at a. later time if the trial court ordered their
Bush claims that without the Johnson transcript he could not determine what if any inconsistencies existed between statements made by various witnesses in the two different trials. He cites Davis v. Alaska, 415 U.S. 308, 319-20, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974), wherein the Supreme Court considered that a witness’ right to anonymity as a juvenile offender yielded to the paramount right to cross-examine provided in the confrontation clause. He also relied by analogy on the cases of State v. Esposito, 192 Conn. 166, 471 A.2d 949 (1984), and State v. Bruno, 197 Conn. 326, 497 A.2d 758 (1985), cert. denied, 475 U.S. 1119, 106 S. Ct. 1635, 90 L. Ed. 2d 181 (1986), which considered the conflict between a defendant’s right of confrontation and the right of confidentiality between patient and psychiatrist contained in General Statutes § 52-146e.
We look by analogy to four emerging lines of authority in Connecticut. All four areas overlap to some extent although each arises from a different statutory and historical matrix. We seek to distill the essence of these developing trends to guide the way in this case.
A
THE PSYCHIATRIST-PATIENT PRIVILEGE CASES
We cannot improve on the summary of the law on this subject by Justice Shea in State v. Pierson, 201 Conn. 211, 514 A.2d 724 (1986). “This court has faced similar problems of attempting to reconcile the privilege with the right of confrontation in respect to disclosure of records of psychiatric treatment of a witness in a criminal case. State v. Bruno, [supra, 329-32]; State v. Esposito, [supra, 177-80]; State v. Storlazzi, 191 Conn. 453, 455-63, 464 A.2d 829 (1983). In State v. Storlazzi, supra, an in camera inspection of the records had been made by the trial court, apparently without objection, as in this case, and we affirmed, after our own examination of these records, the denial of the defendant’s request for access to them, because they did not ‘sufficiently disclose material especially probative of the victim’s ability to know and correctly relate
“The procedure we established in Esposito and Bruno for permitting the trial court, with the consent of the witness, to review in camera the records of psychiatric treatment that are before the court must be modified if a defendant is to have the same protection of his constitutional right of confrontation in respect to unrecorded communications made confidential by § 52-146e. Where there is any reasonable basis in the evidence for believing that psychiatric personnel may have information relating to the mental condition of a witness that might affect his testimony, the court must conduct a voir dire of the person who may possess such information in order to discover whether it would be admissible. ... If, after conducting such a voir dire, the court decides that some of the evidence elicited is admissible at trial, the defendant shall be permitted to use it, but the remaining confidential communications shall be sealed. If no admissible impeaching evidence is discovered, the entire record of the proceeding shall be sealed for possible appeal review.” Id., 225-28.
B
THE GRAND JURY SECRECY CASES
In State v. Chesney, 166 Conn. 630, 353 A.2d 783, cert. denied, 419 U.S. 1004, 95 S. Ct. 324, 42 L. Ed. 2d 280 (1974), the defendant had been convicted of second degree murder. A witness at the trial testified that the decedent said before he died that Chesney shot him. The defendant attempted to cross-examine this witness to show an inconsistency in his testimony before the grand jury. The trial court would not allow such cross-examination because of the secrecy and informal nature of grand jury proceedings. On appeal the defendant claimed that his right of confrontation had been violated. The Supreme Court noted that the proceedings of a grand jury are informal and untranscribed, and that they are conducted in secret. Under the circumstances, it concluded that the secrecy of the grand jury could not be invaded. It cited State v. Coffee, 56 Conn. 399, 410, 16 A. 151 (1888), and State v. Fasset, 16 Conn. 457, 467 (1844). The Supreme Court did not comment on the exception to the secrecy rule for prosecutions for perjury and contradicting witnesses, enumerated in Fasset
On habeas corpus the district court in Chesney v. Robinson, supra, noted that Chesney, as the defendant, attended the proceedings of the grand jury which indicted him, and the witness did not identify Chesney as his assailant. The court concluded in pertinent part: (1) the petitioner was deprived of his opportunity to present fully to the jury his theory that the chief prosecution witness had fabricated a significant portion of his testimony and, in particular the damaging accusation by the decedent; (2) the petitioner was denied the right to an adequate cross-examination. A writ of habeas corpus issued, discharging Chesney unless he was promptly retried.
In 1978, General Statutes § 54-45a was enacted in apparent response to Chesney v. Robinson, supra. It provided as amended in pertinent part: “(a) In any grand jury proceeding ordered pursuant to the provisions of section 54-45, the official stenographer of the superior court or his assistant shall make a record of the proceedings excluding the deliberations, which shall be confidential and filed with the court. Access to the transcript shall be available only to the prosecutorial official or any person accused of crime as a result of the grand jury investigation or the accused person’s attorney. The prosecutorial official or the person accused of a crime as a result of such grand jury investigation or the accused person’s attorney may obtain a copy of the transcript by paying for it. (b) The transcript of such proceedings may not be used as evidence in any proceeding against the accused except for the purpose of impeaching a witness, attacking the credibility of a witness or proving inconsistent statements
In State v. Canady, 187 Conn. 281, 285, 445 A.2d 895 (1982), the Supreme Court took a restrictive view of the availability of such a transcript. Where the traditional secrecy of grand jury proceedings is well entrenched in the common law — -“older than our Nation itself”; Pittsburgh Plate Glass Co. v. United States, 360 U. S. 395, 399, 79 S. Ct. 1237, 3 L. Ed. 2d 1323 (1959); any change in that law must be strictly construed.
In State v. Burns, 194 Conn. 469, 481 A.2d 1077 (1984), the Supreme Court held that the trial court did not err in denying the defendant’s motion to obtain the transcript of the testimony of a witness in an earlier aborted grand jury hearing, since General Statutes § 54-45a did not so provide. It also held that the defendant’s due process rights were not violated when his motion under Practice Book § 752 for production of statements in the state’s possession was denied. The court noted that the defendant was present at the grand jury hearing and that no evidence was presented to the court indicating a prior inconsistent statement. It found that counsel for the defendant did not seek to lay a foundation for the introduction of an inconsistent statement. It further concluded that the court did not abuse its discretion in denying the defendant’s motion under Practice Book § 752 since the transcript was not in possession of the state. Likewise, it found no violation of the disclosure duty of exculpatory material under Brady v. Maryland, 373 U.S. 83, 87-88, 83 S. Ct. 1194,
Justice Shea concurred, but dissented from that portion of the opinion which affirmed the trial court’s refusal to disclose the testimony of the witness at the first grand jury hearing. In language strikingly apposite to our quest, Justice Shea stated: “In Dennis v. United States, 384 U.S. 855, 872-73, 86 S. Ct. 1840, 16 L. Ed. 2d 973 (1966), it was held that the grand jury testimony of witnesses for the prosecution was discoverable without any claim or showing that specific testimony of the witnesses was inconsistent. Indeed, such a showing is normally impossible because of the unavailability of grand jury testimony to counsel, except for those few defendants who attended the grand jury proceeding and are sufficiently astute to recall some discrepancy after a witness has testified at trial.
C
THE ATTORNEY-CLIENT PRIVILEGE
Two cases require brief mention. In State v. Cascone, 195 Conn. 183, 487 A.2d 186 (1985), Chief Justice Peters discussed the factors to be considered in determining the applicability of the attorney-client privilege to communications of an accomplice who testifies at trial. In order to resolve the competing interests of confidentiality and access to evidence, the court applied a fact-specific balancing test. The court then concluded that the harm of excluding the evidence because of the privilege was outweighed by the benefit to the defendant in admitting it. Because the court disposed of the issue on the basis of the defendant’s common law argument, it did not weigh the policy behind the attorney-client privilege against the criminal defendant’s constitutional rights of confrontation and compulsory production of witnesses. Id., 190 n.6. In State v. Silva, 201 Conn. 244, 256, 513 A.2d 1202 (1986), the court found the Cascone balancing test not to be involved under the circumstances of the case.
D
THE RAPE SHIELD STATUTE
One other area of statutory secrecy will be mentioned. The case of In re Robert H., 199 Conn. 693, 709-10, 509 A.2d 475 (1986), discussed the privilege created by General Statutes § 52-146k concerning communications of a sexual assault victim to a rape crisis counselor. The Supreme Court did not require a determination that the confidential communications of the
Our analysis of these four areas of emerging case law in Connecticut reveals the following. The restrictive approach taken in the grand jury cases is a reflection of the antiquity and sacrosanct nature of grand jury proceedings through more than three centuries of Connecticut history. The more modern view is strongly reflected in the abolition of grand jury proceedings for class A felonies and the legislative response thereto. The psychiatrist-patient, attorney-client and rape shield lines of authority reveal the gradual creation of a pragmatic, fact-specific balancing test in each of these areas. All of the cases together reveal a recognition of the futility of according rights to persons seeking access to otherwise- secret testimony without affording the court an opportunity to ascertain the validity of such a claim. Such a right without a remedy is at odds with emerging standards of due process, both state and federal.
We conclude that the rights of confrontation of the defendants under article six of the United States constitution and article first of the Connecticut constitution were violated by the court’s refusal to conduct an in camera examination to determine if the transcript in the trial of State v. Johnson contained material inconsistent statements of witnesses who were also witnesses in these cases sufficient to have affected the outcome of the trials of either or both of these defendants. No preliminary showing of inconsistency is required to trigger this inspection. Such a requirement would vitiate the very right we vindicate in these cases. The secrecy of the erasure statute must yield to the laser-like thrust of the defendants’ constitutional rights.
The case of State v. Gonzales, 186 Conn. 426, 435, 441 A.2d 852 (1982), concerned the trial court’s failure to conduct an in camera inspection under Practice Book § 753 to determine what if any part of a prior statement of a witness ordered produced under Practice Book § 752 should be excised because it “does not relate to the subject matter of the testimony of the witness.” The court set out the procedure on remand as follows: “Until the . . . statement is inspected by the court, the state’s final argument must also fail. Whether the defendant was prejudiced by not having access to the whole . . . statement cannot be determined by speculation about what that statement contains. Nor may we speculate as to whether the jury would have convicted the defendant had the [witness’] testimony been stricken if the state had elected to refuse to produce the statement. This is not, on the present record, a case of harmless error.
“The trial court’s error in failing to inspect the whole . . . statement does not, however, require us to set aside the judgment that has been rendered. We assume that the . . . statement is still in the hands of the prosecuting authority. On that assumption, the case is remanded to the judge who presided at the trial so that he can now conduct the in camera inspection required by § 753.
“After inspection of the . . . statement, the trial judge must resolve one or possibly two questions. He must first determine whether any undisclosed portion
II
Additional Claims of Error by the Defendant Bush
A
CLAIMED ERROR IN THE DENIAL OF THE DEFENDANT BUSH’S MOTION TO SEVER HIS TRIAL FROM THAT OF DOUGLAS
Before trial, Bush moved for severance of his case from that of Douglas and Morales.
The procedural background is as follows: Douglas’ written statement, which was offered at trial, contained the following statement attributed by Douglas to Bush: “Well let me go see what these guys are going to do to him.” On Bush’s motion, the court redacted this declaration. Thereafter, Douglas’ written statement was admitted into evidence as an admission by Douglas. Subsequently, the state’s attorney, while cross-examining Douglas, asked him whether he heard Bush say anything while he was standing outside of the G and G Market after Navarette had entered the Marina apartments. Douglas answered: “He was going to go and see what he — he was going to do or something like that.” Bush claims that since he never denied his presence at
“ ‘Joint trials of persons jointly indicted or informed against are the rule, and separate trials the exception resting in the discretion of the court.’ ” State v. Haskins, 188 Conn. 432, 449-50, 450 A.2d 828 (1982); State v. Castelli, 92 Conn. 58, 65, 101 A. 476 (1917). “A separate trial will be ordered where the defenses of the accused are antagonistic, or evidence will be introduced against one which will not be admissible against others, and it clearly appears that a joint trial will probably be prejudicial to the rights of one or more of the accused.” State v. DeWitt, 177 Conn. 637, 644, 419 A.2d 861 (1979). The criterion to be applied by the trial court is whether substantial injustice is likely to result unless a separate trial is accorded. State v. Varricchio, 176 Conn. 445, 447-48, 408 A.2d 239 (1979). The phrase “prejudicial to the rights of the parties” means something more than that a joint trial will probably be less advantageous to the accused than separate trials. State v. McCarthy, 130 Conn. 101, 103, 31 A.2d 921 (1943). The trial court enjoys great latitude in the application of the standard and it will be reversed on an issue of joinder only where it commits an abuse of discretion that results in manifest prejudice to one or more of the defendants. State v. Vinal, 198 Conn. 644, 649, 504 A.2d 1364 (1986). There is no constitutional or absolute right to a separate trial. State v. McLucas, 172 Conn. 542, 561, 375 A.2d 1014, cert. denied, 434 U.S. 855, 98 S. Ct. 174, 54 L. Ed. 2d 126 (1977).
The defendant’s reliance on this one isolated hearsay statement falls far short of the necessary prejudice to mandate a severance of the trials of Douglas and Bush. The claim is vitiated by Douglas’ previous testimony offered after having had his recollection refreshed that “[Bush] said he was going to see what these guys were doing or what Johnson was going to do.or something like that.”
The declaration in Douglas’ statement ascribed to Bush is not inculpatory. It proves his presence at the scene, which was not denied. The statements and testimony of Douglas and Bush were in harmony, each describing the other and himself in the hallway looking throught the victim’s pockets. Bush did not refute this declaration when he testified.
The defendant argues that the admission of the declaration caused a Bruton violation, thus creating prejudice. Bruton v. United States, supra, found a violation of the defendant’s sixth amendment right of confrontation when the confession of a nontestifying codefendant, inculpatory against the defendant Bruton, was admitted in their joint trial. Since each defendant testified in these trials the Bruton rule is inapplicable. Further, as we find the declaration noninculpatory it does not fall within the reach of Bruton since “extrajudicial statements or confessions by one defendant which do not directly inculpate the codefendant are not within the prohibition of Bruton v. United States, supra, and are admissible. Bruton reaches only those statements which implicate the complaining codefendant as well as the declarant.” State v. Cosgrove, 181 Conn. 562, 591, 436 A.2d 33 (1980).
B
CLAIMED ERROR IN THE COURT’S REFUSAL TO DISMISS THE INFORMATION DUE TO THE FAILURE OF THE WARRANT TO ESTABLISH PROBABLE CAUSE PURSUANT TO THE CONSTITUTIONS OF THE UNITED STATES AND CONNECTICUT
Bush moved to dismiss the information on the ground that the affidavit upon which the arrest warrant was predicated lacked probable cause because the reliability of the affiants’ informant, Rodriguez, was not established in the affidavit in accordance with the federal and state constitutional criteria enunciated in State v. Kimbro, 197 Conn. 219, 496 A.2d 498 (1985). The court denied this motion. Since Rodriguez was a witness and was an identified informer, his reliability did not have
We conclude that the affidavit establishes probable cause to believe that Bush committed the crimes for which his arrest was sought. The defendant admits this in his brief. Even if this were not so the defendant could not prevail in this claim of error. In State v. Fleming, 198 Conn. 255, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986), the Supreme Court expressly overruled the holding of State v. Licari, 153 Conn. 127, 214 A.2d 900 (1965), which had ruled that an illegal arrest deprives a court of jurisdiction over a defendant. In order to prevail on a motion to dismiss, the defendant must show that the fairness of the subsequent prosecution was impaired by the allegedly illegal arrest. State v. Graham, 200 Conn. 9, 21, 509 A.2d 493 (1986). The record in this case is devoid of any such showing. No statement, identification, or seizure of evidence occurred as a result of the defendant’s arrest under the warrant. The court did not err in denying the defendant’s motion to dismiss on the ground of lack of probable cause.
There is error, the judgments are set aside and the case is remanded to the trial court for further proceedings in accordance with this opinion.
In this opinion the other judges concurred.
Article sixth of the United States constitution provides in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right. . . to be confronted with the witnesses against him . . . .”
Article first, § 8, of the Connecticut constitution provides in pertinent part: “In all criminal prosecutions, the accused shall have a right . . . to be confronted by the witnesses against him . . . .”
General Statutes § 54-142a (a) provides in pertinent part: “Whenever in any criminal case, on or after October 1, 1969, the accused, by a final judgment, is found not guilty of the charge or the charge is dismissed, all police and court records and records of any state’s attorney pertaining to such charge shall be erased upon the expiration of the time to file a writ
General Statutes § 52-146e provides in pertinent part: “(a) All communications and records as defined in section 52-146d shall be confidential and shall be subject to the provisions of sections 52-146d to 52-146j, inclusive. Except as provided in sections 52-146Í to 52-146Í, inclusive, no person may disclose or transmit any communications and records or the substance or any part or any resume thereof which identify a patient to any person, corporation or governmental agency without the consent of the patient or his authorized representative.
“(b) Any consent given to waive the confidentiality shall specify to what person or agency the information is to be disclosed and to what use it will be put. Each patient shall be informed that his refusal to grant consent will not jeopardize his right to obtain present or future treatment except where disclosure of the communications and records is necessary for the treatment.
General Statutes § 54-86b(a) provides that: “In any criminal prosecution, after a witness called by the prosecution has testified on direct examination, the court shall on motion of the defendant order the prosecution to produce any statement oral or written of the witness in the possession of the prosecution which relates to the subject matter as to which the witness has testified, and the court shall order said statement to be delivered directly to the defendant for his examination and use.”
Practice Book § 752 provides that: “After a witness called by the state has testified on direct examination at trial, the judicial authority shall, on motion of the defendant, order the state to produce any statement of the witness in the possession of the state or its agents, including state and local law enforcement officers, which statement relates to the subject matter about which the witnesses has testified.”
Section 3 of Public Acts 1983, No. 83-210, effective May 26, 1983, repealed the grand jury provisions embodied in General Statutes § 54-45. In its stead, the public act prescribed procedures by which probable cause hearings would be conducted. See State v. Sanabria, 192 Conn. 671, 679-80, 474 A.2d 760 (1984).
The majority stated in a footnote: “The rule of Dennis v. United States, 384 U.S. 855, 872-73, 86 S. Ct. 1840, 16 L. Ed. 2d 973 (1966), is, as the dissent acknowledges, a rule of federal criminal procedure that has not, to date, been applied as a constitutional rule governing state criminal proceedings. We do not believe that the constitutional right of cross-examination invariably implicates a right to obtain grand jury testimony.” State v. Burns, 194 Conn. 469, 473, 481 A.2d 1077 (1984). The procedure we adopt hereafter obviates our consideration of the application of the rule of Dennis v. United States, to this case.
The court in Chesney v. Robinson, 403 F. Sup. 306 (D. Conn. 1975), affd, 538 F.2d 308 (2d Cir.), cert. denied, 429 U.S. 867, 97 S. Ct. 177, 50 L. Ed. 2d 147 (1976), stated that the claimed denial of Chesney’s right to an effective cross-examination is a claim which the Supreme Court has described as “constitutional error of the first magnitude” which “no amount of showing of want of prejudice would cure . . . .” Chesney v. Robinson, supra, 309, quoting Smith v. Illinois, 390 U.S. 129, 131, 88 S. Ct. 748, 19 L. Ed. 2d 956 (1968). Without directly distinguishing this standard, our Supreme Court has applied a harmless error standard in two cases; State
We approve of the criteria for such a harmless error analysis set forth in Delaware v. Van Arsdall, supra, 684. “The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully
Bush does not claim error in the court’s denial of his motion to sever concerning Morales.
He claims the admission of this declaration not as an error independently but as evidence of prejudice to him from the denial of his motion to sever the two trials.
For a comprehensive analysis of the criteria applicable in considering a motion to sever trials, see State v. Smith, 201 Conn. 659, 668-71, 519 A.2d 26 (1986).