State v. McPhailState v. McPhail
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- Before:
- Shea
Lead Opinion
Aftеr a jury trial, the defendant was convicted of arson in the first degree in violation of
I
The defendant first claims that the state’s failure to divulge exculpatory evidence to him at the probable cause hearing required by
During the probable cause hearing the state presented the testimony of Shirley Evans, a resident of the rooming house at the time of the fire. Evans testified that she lived in the room next to that of the defendant and Hazel Carter, and that the defendant and Carter had been engaged in “arguing, cursing and fighting” for most of the night prior to the fire. Evans also testified that the police had come to the rooming house, at “around three something,” to quiet this argument and that the defendant had then left, but had returned sometime later in the morning. Evans also stated that when the defendant returned, Carter would not let him back into their room. At this point she heard the defendant tell Carter, “You going to get out of here one way or the other” because he was going to burn the house down. About ten or fifteen minutes after hearing this, Evans heard Carter bang on the wall and tell her that the building was on fire.
After Evans had completed her testimony, the defendant moved for disclosure of any written statements made by Evans in the possession of the state. This request was denied by the trial court on the ground
In response to a discovery request made prior to trial, the defendant was, however, provided with copies of statements made by Evans to members of the Bridgeport arson squad on May 1 and May 7, 1986. The May 1,1986 statement indicates that it was Carter, and not the defendant, who had threatened to burn down the house, and also appears to be somewhat inconsistent with Evans’ testimony at the probable cause hearing concerning the timing of events during the night prior to the fire.5
The defendant was also furnished, as a result of his discovery request following the probable cause hearing, with statements made by Frank Singleton and McKinley Tuck, both residents of the rooming house at the time of the fire. Tuck’s statement reveals that, at a prior time, he had had trouble with a person he had allowed to stay overnight in the rooming house,
In State v. Mitchell, 200 Conn. 323, 338, 512 A.2d 140 (1986), we held, on the basis of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and its progeny, that “[s]ince the adversarial probable cause hearing [mandated by article first, § 8 of the Connecticut constitution as amended] . . . is an essential part of a defendant’s criminal prosecution, the constitutional obligation to disclose exculpatory material attaches at that time.”6 Subsequently, in State v. Shannon, 212 Conn. 387, 406, 563. A.2d 646 (1989), we held that in order for this court to consider claims of nondisclosure of exculpatory material at a probable cause hearing required by our state constitution, the defendant must demonstrate: “(1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that it was material.” State v. Milner, 206 Conn. 512, 539, 539 A.2d 80 (1988). We further held, in Shannon, that the materiality of such exculpatory evidence is to be determined by utilizing the test set forth in United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985). State v. Shannon, supra, 406-407. Under the Bagley test,
Applying these principles of law to this case, we find error in the state’s failure to disclose to the defendant, at the probable cause hearing, the statements of Evans, Singleton and Tuck. It is well established that “[i]mpeachment evidence as well as exculpatory evidence falls within Brady’s definition of evidence favorable to an accused.” State v. Pollitt, 205 Conn. 132, 142, 531 A.2d 125 (1987); United States v. Bagley, supra, 676. The state concedes that the statements in question were both suppressed and favorable to the defendant. The state argues, however, that none of the statements were material to the determination of probable cause, as defined by the test announced in Bagley. We do not agree.
The state presented only two witnesses at the defendant’s probable cause hearing: Evans and the investigating officer from the Bridgeport fire department’s arson squad. The defendant does not claim that the evidence presented at the probable cause hearing was insufficient to warrant a person of reasonable caution to believe that the accused had committed the crimes of arson and arson murder. State v. Shannon, supra, 404; State v. Mitchell, supra, 336. The defendant does claim, however, that, since the testimony of the arson inspector established only the commission of the alleged offenses, the materiality of the nondisclosed statements must be determined solely on the basis of the testimony given by Evans. This is the proper inquiry to be made, as it was only the testimony of Evans that linked the defendant to the commission of the crimes established
Under these circumstances, we conclude that there exists a reasonable probability that, had the statements of Evans, Singleton and Tuck been provided to the defendant, the result of the probable cause hearing would have been different. In reaching this conclusion, we are “aware of what аdverse effect the nondisclosure may have had on the defendant’s preparation or presentation of his case and that we should act ‘with an awareness of the difficulty of reconstructing in a post-trial proceeding the course that the defense and the [probable cause hearing] . . . would have [otherwise] taken . . . .’ ” State v. Pollitt, supra, 148-49, quoting United States v. Bagley, supra, 683. In light of the meagemess of the state’s presentation, impeachment of Evans’ version of the sequence of events leading up to the fire, coupled with the information concerning the presence and motive of the person mentioned by Singleton and Tuck, might well have led the trial court to conclude that there was no probable cause to hold the defendant to answer for the crimes with which he had been charged.7
We must next determine, therefore, whether a finding of probable cause, tainted not by insufficiency of the evidence supporting that finding but by the state’s failure to disclose exculpatory evidence, deprives the trial court of jurisdiction over the person of the defendant. This situation is not unlike the question we resolved 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). In Fleming, we held that “[wjhere the fairness of a subsequent prosecution has not been impaired by an illegal arrest, neither the federal nor the Connecticut constitution requires dismissal of the charges or a voiding of the resulting conviction.” Id., 263. We based that holding on the premise that “due process of law is satisfied when one present in court is convicted of crime after having been fairly apprized of the charges
In State v. Mitchell, supra, 331-32, however, we specifically declined to adopt the state’s request “to extend the princiрle underlying Fleming and to hold that all defects in pretrial procedures are cured by a subsequent conviction after trial . . . .” We concluded, therefore, that “an invalid finding of probable cause at such a hearing undermines the court’s power to hear the case at trial.” Id., 332. We did not, in Mitchell, define precisely what defects would render a finding of probable cause “invalid,” although implicit in our decision was an understanding that, at the very least, insufficiency of the evidence presented at the probable cause hearing will deprive the trial court of jurisdiction over the person of the defendant, thus rendering moot any subsequent prosecution and conviction. While we decline, at this time, to limit Mitchell to that understanding, we conclude that where, as here, there has been a failure to disclose exculpatory evidence at a criminal defendant’s probable cause hearing, the proper inquiry is not whether there exists a reasonable probability that the undisclosed evidence would have changed the outcome of that hearing, but rather, whether the nondisclosure did in fact taint the defendant’s subsequent prosecution. On this basis, we adopt the jurisdictional reasoning of Fleming, and look to the record to determine whether the state’s nondisclosure deprived the defendant of his constitutional right to a fair trial. We conclude that in this case there was no such deprivation.
The exculpatory statements in question were disclosed to the defendant prior to trial and were available to him for both the preparation and presentation of his defense. Our review of the trial transcript reveals that the defendant expressly elected to pose no ques
We conclude that the failure of the state to disclose exculpatory evidence at the probable cause hearing did not deprive the defendant of his constitutional right to a fair trial and thus was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 22-23, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied, 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 (1967).
The defendant’s second claim of error, denial of a fair trial due to ex parte communications between the trial judge and a member of the jury, we find unpersuasive. The trial transcript reveals that on the morning of the jury’s third day of deliberations, the trial judge was notified that a juror who was pregnant had fallen at home and was unable to be present that day. The judge informed counsel that he had telephoned the juror’s number, had told the person answering the phone that no conversation was permissible, but that, if possible, the juror was to come to court and, if not able to do so, she was to be available for a phone conference with the court clerk and counsel. The judge further informed counsel that when the juror had not arrived by 10 a.m., the court clerk had called the juror and had been informed that she was fearful of any movement and would not be able to be present that day. The trial court asked whether either the defendant’s counsel or the state’s attorney had any objection to the action taken and was informed by both that there was none. The other jurors were informed of the condition of their colleague and were released for the day. The court then asked counsel if “there [was] any objection to anything [it had] done today?” The defendant’s counsel replied: “None, Your Honor.”
The next morning, a Friday, the court informed counsel that the clerk had, at its direction, again telephoned the juror who had been unable to attend the day before. The clerk stated that the juror had indicated she was to see her doctor that morning and would call the court after that had been accomplished. After receiving suggestions from counsel on how best to proceed, the trial court released the remaining jurors until the results of the doctor’s examination could be obtained. Later that morning, the clerk informed the trial court and
“It has long been the law of this state that jurors shall not converse with any person, not a member of the jury, regarding the cause under consideration . . . .’’Aillon v. State, 168 Conn. 541, 545, 363 A.2d 49 (1975). “It has thus become a universally accepted principle that communications between a judge and a jury, especially after the jury have begun deliberations, should be made only in open court in the presence of the parties.” Id., 546; State v. Altrui, 188 Conn. 161,181-82, 448 A.2d 837 (1982); State v. McCall, 187 Conn. 73, 81-82,444 A.2d 896 (1982); State v. Hackett, 182 Conn. 511, 522-23, 438 A.2d 726 (1980). “In a criminal trial this rule takеs on constitutional dimensions since the accused has a right to be present at every stage of the trial and to have the assistance of counsel for his defense.” Aillon v. State, supra, 546. We have held, consequently, that where a trial judge engages in an ex parte communication with a juror concerning the cause under consideration by that juror, prejudice will be presumed and the burden will shift to the state to show that the communication was harmless beyond a reasonable doubt. State v. Altrui, supra, 182. This presumption will apply “however innocuous the communication may be reported to be . . . . ” Id. We have also held that claims of ex parte communications are
In addressing the merits of the defendant’s сlaim, the state argues that the record is not clear whether the trial judge in fact engaged in an ex parte communication with the injured juror. The state claims that the communication was indirect, rather than direct, by virtue of the trial judge’s comment that “I told him that I could not speak with the juror or have any discussion with the juror . . . .” (Emphasis added.) The state’s reliance on this distinction is misplaced. Regardless of whether the contact with the juror was direct or indirect, the disclosure made by the trial judge clearly indicates that his message was intended to be given to the juror. The question of whether the trial judge’s message was passed through an intermediary thus becomes irrelevant, where the message itself was expressly intended to be a communication from the judge and not the intermediary.
In determining the propriety of the trial judge’s actions, we note that his evident concern was only for the progress and not the substance of the jury’s deliberations. There is no claim by the defendant that the communications in question were in any way related to the cause under consideration by the injured juror. We conclude, nonetheless, that a more prudent course of action would have been for the trial judge to notify counsel prior to any action taken to contact the juror in question.9 In this manner, the defendant and his counsel
Despite our discussion of possible alternatives to the trial judge’s ultimate resolution of the problem with which he was confronted during the jury’s deliberations, we conclude, nonetheless, that any error was harmless beyond a reasonable doubt. The trial court made a full and immediate disclosure of what had transpired during the telephone call to the juror’s home. At no time did the defendant object to any of the actions taken by the trial court or the clerk. Further, counsel
HI
In his third claim of error, the defendant asserts that he was denied his constitutional right to compulsory process and a fair trial by the state’s failure to inform him of the address of a potential witness. We find no merit in this claim.
On October 29, 1987, the defendant filed a request that the jurors be charged that they might draw an adverse inference against the state by virtue of its failure to call Hazel Carter as a witness. That same day, the jury heard testimony from three witnesses who had been hired by the defendant to attempt to locаte and serve subpoenas on both Carter and a potential alibi witness. All three witnesses testified that their efforts had, until that time, been unsuccessful. After further testimony concerning the possible whereabouts of the alibi witness, counsel for the defendant informed the trial court that he thought he had presented sufficient evidence to avoid a missing witness instruction relating to the defendant’s failure to present the potential alibi witness. See Secondino v. New Haven Gas Co., 147 Conn 672, 165 A.2d 598 (1960).
On November 2,1987, the next day of trial, counsel for the defendant asked that the trial court allow him to present further testimony concerning efforts made,
That same day, the defendant having rested, the state presented testimony from James Gallick, an investigator in its office. Gallick testified, outside the presence of the jury, that he had served a subpoena on Carter on October 26,1987, in the courthouse, and that he had not seen her on the day of his testimony. Gallick also stated that Carter had provided the state with her current address, 36 6th Street, and that this had been placed upon thе subpoena. Gallick testified further that he had made an unsuccessful attempt to locate Carter on 6th Street, but that he had been unsure of the correct house number at the time he had gone. The state’s attorney informed the trial court that Carter had been told to appear that day, had failed to do so, and that the state “would like to have a chance to get a capias for Miss Carter. It would appear that she would have some valuable testimony to add to this case by way of rebuttal in this particular case.”
The defendant strenuously objected to the issuance of a capias on several grounds: that the subpoena was invalid on its face; that the state was merely attempting to escape a missing witness instruction for its failure to call her during its case-in-chief; that Carter was avаilable and could have been called as a witness during the state’s case-in-chief; that her testimony would
“The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is а fundamental element of due process of law.” Washington v. Texas, 388 U.S. 14,19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967). Where, as here, a defendant claims that action on the part of the government has resulted in his inability to present witnesses in his defense, there is no violation of the compulsory process clause of the sixth amendment unless the defendant can make “some plausible explanation of the assistance he would have received from the testimony of the [missing] witness.” United States v. Valenzuela-Bernal, 458 U.S. 858, 871, 102 S. Ct. 3440, 73 L. Ed. 2d 1193 (1982). Likewise, there is no violation of the constitutional right to due process of law unless the defendant makes “some explanation of how [the witness’] testimony would have been favorable and material.” Id., 872.
As a threshold consideration, we conclude that the question of whether Carter’s testimony would have been favorable and material to the defendant is irrelevant, as the record makes patently clear that the defendant had no desire to call Carter as a witness for his defense. Regardless of the defendant’s initial objec
IV
The defendant requested that the jurors be instructed that they might draw an adverse inference against the state for its failure to call Hazel Carter as a witness. This request was granted by the trial court. Despite his failure to object to the charge as given, the defendant now claims that the trial court committed, plain error in its rendering of this missing witness instruction. We conclude that there was no error.
With thе exception of one reference to Hazel Carter, the defendant’s request to charge10 consists of noth
Our review of the defendant’s requested jury instruction on the issue of the failure of the state to call Carter as a witness and the transcript of the jury instruction
Regardless of any linguistic distinctions that may exist between the term “party” and the phrase “the state or the accused,” we conclude that the substance of the defendant’s request was accurately given to the jury.
There is no error.
In this opinion Callahan, Glass and Covello, Js., concurred.
Notes
Evans’ May 1, 1986 statement includes in part:
“Q. When the argument started Melvin came in from the outside of the building?
“A. I guess so, because he was banging on the door trying to get in.
“Q. What happened next?
“A. 1 heard the big door in the hallway slam close, and Melvin and Hazel kept on arguing.
“Q. How long [did] this argument go on?
“A. Man, I don’t know. I heard Hazel go down the hall and say, ‘Man I’m going to bum this bitch down!’ Then when she was in her room, I heard Melvin say, ‘That you going to get out one way or other!’
“Q. Was Melvin still trying to get in the room?
“A. Yea.
“Q. Did Hazel let Melvin into the room?
“A. Sounded like Hazel was in the room, and Melvin was outside.”
(Emphasis added.)
The Brady court based its holding upon the due process clause of the fourteenth amendment to the United States constitution. Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). “A similar, independent right [to the disclosure of exculpatory evidence] exists under the due process provision of the Connecticut constitution.” State v. Cohane, 193 Conn. 474, 495-96 n.16, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984).
The defendant would have been аllowed to cross-examine Evans concerning the inconsistent statements, and would have been allowed, follow ing a determination of probable cause, to make at least an offer of proof concerning the third party information contained in the statements of Singleton and Tuck.
The defendant’s actions are not surprising in light of Evans’ testimony on direct examination, as well as the contents of her May 7, 1986 statement, which includes the following:
“Q. Did you hear any threats just prior to the fire at 561 Newfield Ave?
“A. I heard Melvin say when he was in the hall I am going to burn this mother fucker down[.] Hazel you are going to get out one way or another.
“Q. Why did you not tell us this on the previous statement?
“A. Because I was worried about my son and this man[’]s house [too].
“Q. How soon after hearing this did the fire [occur]?
“A. I don’t know[,] it got quiet[,] about 5 or 10 [minutes].”
The defendant also claims error in the trial court’s actions in directing the court clerk to make further tеlephone communications with the juror concerning her ability to continue deliberations. While it is certainly true that prejudicial or coercive comments made by court officials other than the trial judge can constitute reversible error; see 75 Am. Jur. 2d, Trial §§ 1002 through 1004 and cases cited therein; it is also recognized that “the custodian of a jury necessarily must have some communication with them in order to attend to their needs, carry messages to the court, and the like . . . . ” Id., § 1008, p. 845. Further, it is also recognized that where a defendant is apprised of contemplated communications with members of the jury, specifically assents to the procedures to be utilized and is provided full disclosure of the contents of the communications, he may not later complain of error in that which he had previously approved. United States v. Musto, 540 F. Sup. 318, 336 (D.N.J. 1982). The record here reveals that after his own telephone call to the injured juror and prior to any action being taken by the clerk, the trial judge met with counsel and revealed to them what had already transpired. The record also shows that the clerk then made telephone contact with the juror, whereupon the trial judge disclosed, for purposes of the record, all that had transpired. Upon being asked if there was any objection to what had occurred to that point, counsel for the defendant replied: “We have none, Your Honor. I have discussed this with Mr. McPhail.” Thereafter, all actions taken by the court clerk were disclosed upon the record. At no time did the defendant voice any concern or objection to the course of action taken or the communications made. Taking into consideration these circumstances, as well as the fact that the defendant does not claim on appeal that the conversations of the court clerk consisted of any coercive or prejudicial comments regarding the subject matter of the trial, we conclude that the claim of error regarding communications between the court clerk and the injured juror is without merit.
The defendant requested that the jury be charged as follows: “You will recall that during the final arguments here, reference was made to the absence of Hazel Carter. As indicated in the course of the argument of the case, attention was called to the failure to call a certain witness who might by his testimony have shed some light on the situation before you. Where a party fails to call a witness, you may infer that the witness’ testimony would have been unfavorable to the party’s cause, if you find firstly that the witness was available, and that the witness was one that the party would naturally produce. Whether the witness was available is a question of fact for you to determine as a condition precedent to drawing any adverse inference from the absence of the witness. Availability may be shown or determined not only from the mere physical presence or accessibility for service, but also from the relationship, usefulness, or nature of the expected testimony, and this means only that the witness is in such a relationship with the party that it is likely that his presence could be procured. A witness who would naturally be produced by a party is one who is known to that party or who by reason of his relationship to that party оr to the issues or both could be reasonably expected to have peculiar or special information materia! to the case, which, if favorable, the party would produce.”
Concurrence Opinion
concurring. I fully subscribe to parts II, III and IV of the majority opinion. I also agree with the two conclusions reached in part I of the opinion, that the state improperly failed to disclose exculpatory material at the defendant’s probable cause hearing, and that this error was harmless in the circumstances of this case. I respectfully disagree, however, with the majority opinion’s reliance on 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), as the basis for concluding that the error was harmless. In my view,
State v. Mitchell was this court’s first opportunity to establish ground rules to govern probable cause hearings prescribed by amendment seventeen to article first, § 8 of the Cоnnecticut constitution for defendants charged with crimes “punishable by death or life imprisonment.” In Mitchell, the state vigorously argued that a finding of probable cause at a preliminary hearing should be completely unreviewable following conviction after trial. The state sought to broaden the scope of our holding in State v. Fleming, supra, 263, that an illegal arrest, without more, “imposes no jurisdictional barrier to a defendant’s subsequent prosecution” and therefore does not require “a voiding of the resulting conviction.” We rejected the state’s argument because of the fundamental distinction between an arrest and a constitutionally mandated adversarial probable cause hearing. An arrest, according to our law, is neither an integral part nor a critical stage of a judicial proceeding. A probable cause hearing specifically mandated by our state constitution, by contrast, is a critical stage in a criminal prosecution. Accordingly, we concluded that an invalid finding of probable cause undermines the trial court’s jurisdiction to hear the case at trial. State .v. Mitchell, supra, 332.
While establishing the ultimate reviewability of a finding of probable cause at a preliminary hearing, Mitchell noted that the burden of proof appropriate to sustain such a finding was “less than the quantum necessary to establish proof beyond a reasonable doubt at trial . . . .’’Id., 336. The proper standard, we held, was a determination “ ‘whether the government’s evidence would warrant a person of reasonable caution to believe that the accused [had] committed the crime.’ ” Id.
Applying these principles in the present case, I believe it is inappropriate to invoke the invalid-arrest analysis of State v. Fleming to determine the harmlessness of the state’s wrongful failure to disclose exculpatory evidence at the defendant’s probable cause hearing. Mitchell requires us to focus on what happened at the probable cause hearing and not on what happened at the subsequent trial. The majority opinion‘s reliance, in this case, on the jurisdictional reasoning of Fleming cannot be reconciled with our holding in Mitchell. Events at the defendant’s plenary trial cannot directly demonstrate the harmlessness of the state’s misconduct.
The conclusion of harmlessness can, nonetheless, be sustained in this case because the record demonstrates, beyond a reasonable doubt, that timely disclosure of the exculpatory evidence would not have altered the outcome of the probable cause hearing. It would be entirely speculative to suppose that the defendant would have made more vigorous use of this exculpatory evidence at the probable cause hearing than he did at trial. The majority opiniоn describes the minimal use of this evidence at trial, particularly the failure to use the evidence to impeach Evans by cross-examination. Although in toto the evidence might have raised some doubt about Evans’ credibility, the court deciding the issue of probable cause would still
Accordingly, I respectfully concur in the judgment.