199 Conn. 399 | Conn. | 1986
The defendant, David M. Pollitt, was found guilty after a jury trial of the crime of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A)
The principal issue on appeal is whether the trial court erred in denying the defendant’s motions for a mistrial or a continuance where allegedly exculpatory material, which could show another person committed the crimes charged and which had been specifically requested and wrongfully withheld by the state, was discovered midtrial and the exculpatory witness could not be located on short notice. At trial the principal issue was the identity of the perpetrator of the crime. The defendant also claims that the trial court erred: (1) in failing to instruct the jury accurately on the
Because of our determination to remand, a full recitation of the evidence before the jury is not necessary. The length of the trial and the number of witnesses who testified,
The following is some of the evidence that was adduced before the jury. On October 17, 1981, M, a twenty-five year old woman, left her Wallingford apartment at about 4:45 p.m. for a bicycle ride. She cycled past the defendant on Grieb Road near Durham Road and he yelled at her asking for directions. M stopped her bicycle, went back to him and asked him what he was looking for. He said: “I’m going to rape you, lady.” With his right hand and arm he grabbed her from “around [her] back” and grabbed her bicycle with his left hand. He dragged her and the bicycle off the road into the field where he discarded the bicycle. He then sexually assaulted her.
After the assault, she ran to the house across the street for help. Gail DeNegris opened the door,
The police made inquiries in the area of the crime shortly after its commission. Beverly Steinberg, a state’s witness who was an area resident, said that she saw a dark green AMC Pacer automobile “sitting” on Grieb Road just before its intersection with Durham Road at “around 5:00 o’clock” on October 17, 1981.
Detective Patricia Miranda was with M on October 18, 1981, when efforts were undertaken to make a composite of M’s assailant. Miranda testified that M “did not like the composite” and M herself said that she “did not like the composite when it was completed,” and was “[n]ot at all” satisfied with it. She also looked at numerous mug shots (“at least two hundred, perhaps more”) but did not make an identification. The defendant’s photo was not among those shown to M at this time. On April 22, 1982, six months after the assault, M was shown an array of eight photos of bearded males at her home by Detective Theodore Milewski of the Wallingford police department.
Against this background, we turn to the sworn written statement of David Isola given to the Wallingford
M was examined and cross-examined about the description of her assailant. On direct examination, she was asked to describe him “at the time [she] observed him.” She said that at that time she thought he “was a white male in his late 20’s, early 30’s possibly, four to five inches taller than me [she was five-five] . . . brown hair . . . with a mustache [it was trimmed, taken care of] . . . his hands were a little bit dirty . . . fingernails were a little bit short .... [He was of] medium build ... a little bit dark. ...” She reiterated that she did not describe him as “husky.” On direct examination, she also said that she felt that “he had very short fingernails and might have been a person who bit his fingernails ... it looked like he had grease on his hands or in his pores . . . like a garage person.” She said that he was wearing jeans and a brown flannel shirt, “button down shirt” which was plain and had long sleeves.
The defense first learned of Isola’s statement or of anything about his involvement on October 12, 1983, upon the conclusion of the direct testimony of Detective Patricia Miranda at which time defense counsel was given a sixteen page report or statement made by her. During the luncheon recess, defense counsel reviewed
After the guilty verdict, the defendant made a motion for a new trial, alleging, inter alia, error in the trial court’s refusal to dismiss the charges “due to the prosecutor’s failure to turn over Brady material in a timely fashion” and in denying his request for a continuance to obtain the presence of Isola, “whose testimony would exculpate [him].” No evidence was taken at that hearing and the motion was denied.
The defendant’s defense was structured around his alibi and his claim that someone else was the perpetrator of the crimes charged. He presented evidence at the trial going to those matters.
On September 14,1982, over a year prior to the trial, the defendant had filed a detailed “Motion for Discov
The defendant, pointing to the court’s order granting his discovery motion and claiming under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and its progeny that the state suppressed “[t]his highly exculpatory evidence,” makes a number of arguments. He claims that the police report summarizing Isola’s account was accidentally discovered by him during the trial almost a year after the court granted his discovery motion pursuant to Practice Book § 741. He also asserts that the state was on notice because of the specificity of his request and that such a statement was to be turned over to him pursuant to its continuing duty to do so under that order. To support his claim, the defendant refers to the United States and Connecticut constitutions, to General Statutes § 54-86c and to Practice Book §§ 734 and 741 (1). He
Our concern at this point is whether there was a suppression of Brady material as claimed and if there was, what are its constitutional consequences, including, but not limited to, the denial of the continuance by the trial court. In Brady v. Maryland, supra, 87, the United States Supreme Court said that “suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” See Moore v. Illinois, 408 U.S. 786, 92 S. Ct. 2562, 33 L. Ed. 2d 706, reh. denied, 409 U.S. 897, 93 S. Ct. 87, 34 L. Ed. 2d 155 (1972). “In Moore, the court said that ‘[t]he heart of the holding in Brady is the prosecution’s suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment. Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence’s favorable character for the defense, and (c) the materiality of the evidence.’ Moore v. Illinois, supra, 794-95; State v. Doolittle, 189 Conn. 183, 197, 455 A.2d 843 (1983); People v. Hedrick, 192 Colo. 37, 40-41, 557 P.2d 378 (1976).” State v. Green, 194 Conn. 258, 263, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985). Brady, of course, was aimed at ensuring that an accused receives a fair trial. Brady v. Maryland, supra, 87-88; see United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 3379-81, 87 L. Ed. 2d 481 (1985); United States ex rel. Smith v. Fairman, 769
The recent case of United States v. Bagley, supra, seems
In order to establish a violation under Brady and its progeny, this defendant has the burden of demonstrating not only that the state suppressed information that was favorable and material to him but also that it was not disclosed upon request. See State v. Gradzik, 193 Conn. 35, 40-41, 475 A.2d 269 (1984), and State v. Falcone, 191 Conn. 12, 17, 463 A.2d 558 (1983). The circumstance that claimed Brady material was disclosed during, and not after, trial hardly precludes the application of Brady which declared the right to material and favorable evidence as part of the fundamental right to a fair trial. Brady v. Maryland, supra, 87; State v. Dickens, 437 A.2d 159 (Del. 1981); see State v. Miner, 197 Conn. 298, 304, 497 A.2d 382 (1985). Brady’s due process basis, therefore, requires a determination of when disclosure must be made to ensure a fair trial.
Whether the tardy disclosure oí Brady material fairly requires a continuance or a delay in order to make effective use of such matter is essentially a factual question in each case. See United States v. Higgs, supra, 43-44; United States v. Kopituk, 690 F.2d 1289, 1339 (11th Cir. 1982), cert. denied, 463 U.S. 1209, 103 S. Ct. 3542, 77 L. Ed. 2d 1391 (1983); see also State v. Beckenbach, 198 Conn. 43, 47, 52, 501 A.2d 752 (1985). The focus is not on the fact of nondisclosure, but the impact of the nondisclosure on the jury’s verdict. See, e.g., United States v. Kubiak, 704 F.2d 1545, 1550 (11th Cir.), cert. denied, 464 U.S. 852,104 S. Ct. 163, 78 L. Ed. 2d 149 (1983); United States v. Provenzano, 615 F.2d 37, 49 (2d Cir.), cert. denied, 446 U.S. 953, 100 S. Ct. 2921, 64 L. Ed. 2d 810 (1980). The effect then of disclosable evidence should be viewed in terms of its likely effect upon those on whom the outcome rests—the jury. See, e.g., United States v. Librach, 609 F.2d 919, 921-22 (8th Cir. 1979), cert. denied, 444 U.S. 1080, 100 S. Ct.
We have chronicled at some length certain evidence that was before the jury, certain applicable legal principles, and the arguments of the state and the defendant directed to the important issues raised by the defendant’s Brady claim. The appellate record before us is not, however, amenable to meaningful appellate review on the Brady issue. This is so because of, inter alia, relevant fact-bound determinations necessary to be made to accomplish ultimate appellate resolution of this issue. This court does not find facts. See, e.g., Pelc v. Danbury, 166 Conn. 364, 366, 349 A.2d 825 (1974); Gormley v. Panuzio, 166 Conn. 1, 2, 347 A.2d 78 (1974). The record before us, therefore, must accordingly be augmented by an evidentiary hearing at the trial level for the ascertainment of those facts which will furnish the basis for the answers to the questions for which we remand this case. There can, of course, be no question but that the supervision of a case on appeal to this court is in the Supreme Court. Practice Book § 3096; State v. Gonzales, 186 Conn. 426, 436, 441 A.2d 852 (1982); State v. Ostroski, 184 Conn. 455, 460, 440 A.2d
We, of course, intimate no view on any of these issues to be resolved by the trial court on remand. We do not think that this court can or should vacate the defendant’s conviction at this time and order a new trial because the defendant’s rights are fully protected by our remand to the trial court with the direction to hold an evidentiary hearing consistent with this opinion. This will preserve not only the defendant’s opportunity to seek further appellate review on the augmented record ordered today in our supervisory capacity but also the right of the state to such review. See Practice Book § 3060D.
On remand, the trial court must resolve one or possibly two questions as the result of the evidentiary hearing we order. It must first determine the issue of whether the state suppressed, as the defendant claims, Brady material that was favorable and material to the defendant. It is directed to make in writing those findings of fact and conclusions of law upon which it bases that determination, whatever it may be. In the event that it resolves that issue against the defendant, this court will then, in its supervisory capacity, upon the filing of those findings and conclusions, proceed to dispose of this appeal. In the event, however, that the trial court resolves this issue in favor of the defendant, the trial court must set out its findings of fact and conclusions of law by an analysis of the issue of whether it was harmful error under all the circumstances to have denied the defendant’s motion for a continuance and/or mistrial in order to have a fair opportunity to evaluate and investigate that Brady material for meaningful use at the trial. These additional findings and conclusions would, it seems to us, include but not necessarily be
Finally, we want to emphasize that in remanding this case for the limited purpose set out in this opinion, we intimate no view at all on the ultimate merits of the issues discussed in this opinion or of any other of the defendant’s claims of error which we may later be called upon to decide.
The case is remanded for further proceedings in accordance with this opinion.
In this opinion the other judges concurred.
General Statutes § 53a-92 (a) (2) (A) provides: “A person is guilty of kidnapping in the first degree when he abducts another person and when ... (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually.”
General Statutes § 53a-70 (a) provides: “A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person.”
Commencing on October 5, 1982, an evidentiary hearing was held, extending over two days on the defendant’s motion to suppress the victim’s identification of the defendant. This motion was denied on October 7, 1982.
The presentation of evidence began on October 11,1983, and continued, with some interruptions, up to and including October 18,1983. The state presented eighteen witnesses and the defense presented twelve witnesses. More than forty exhibits were admitted into evidence. The jury rendered its verdict on October 18, 1983.
Detective Thomas Hanley sent the latent fingerprint lifts from the bicycle crossbar to the F.B.I. in Washington for further verification. At the trial, Burwell T. Driver, an F.B.I. fingerprint specialist, also identified the defendant’s left index fingerprint. In addition, he also identified the defendant’s left middle and left ring fingers from the latent prints forwarded by Hanley.
A1975 Pacer automobile was registered to the defendant on October 17, 1981. Steinberg did not get the license number from the Pacer she saw.
M testified that Detective Miranda called her prior to the April 22,1982, viewing of the array to say that they had some photos they wanted her to look at. On cross-examination, she said she did not remember if Miranda then said that “she had ... a suspect.” Later, on cross-examination of M, the following took place: “Isn’t it true that last week [at a suppression hearing] when you testified you indicated that before you saw the photos, [Detective] Patricia Miranda called you and said that there was a suspect whose photograph they wanted to show you or words to that effect?” She answered: “I may have-said it that way, yes.”
Later in the trial the defense called Detective Thomas Hanley, who had testified earlier for the state. His later testimony fairly established that he was the police officer who took Isola’s written statement on October 20, 1981. The defense attempts to elicit from Hanley what Isola had told him were defeated by the sustaining of the state’s objection of hearsay.
The defendant’s motion for discovery stated in relevant part:
“The defendant, David M. Pollitt, by his undersigned counsel, respectfully moves this Court, pursuant to Sections 741, 743, 744, 745, 750 and other relevant sections of the Connecticut Practice Book, the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States, Article 1, Sections 7,8 and 9 and other relevant provisions of the Constitution of the State of Connecticut, and Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, to order the prosecuting authority to disclose in writing the existence of and to allow the defendant to inspect, copy, photograph and have reasonable tests made on any of the following relevant materials, all of which are essential and necessary to enable him to prepare a defense:
“12. All material now known to the State or which may become known, or which through diligence may be learned from the investigating officers or any witnesses in this case or any related case, which is exculpatory in nature or favorable to the accused or which may lead to exculpatory material, including, but not limited to:
“(a) All evidence known to the State consistent with the innocence of this defendant, including that which is corroborative of any statements given
“(b) The statements of any and all witnesses, whether oral, written or otherwise recorded, that are contradictory of or inconsistent with the State’s contention that this defendant committed the crime alleged.
“(c) The statements of any and all witnesses, whether oral, written or otherwise recorded, that are contradictory of or inconsistent with other statements of witnesses, whether oral, written or otherwise recorded, including, but not limited to:
“(i) a description of the physical appearance, voice, clothing, etc. of the alleged assailant, including any scars, marks, tatoos, or disfigurements;
“(ii) a description of any motor vehicle alleged to be connected with the instant offense, including the license plate numbers, partial or complete.
“(d) The statements of any and all witnesses, whether oral, written or otherwise recorded, which place persons other than this defendant at or near the scene of the crime. . . .”
In his brief, the defendant anticipates the state’s argument that Isola’s testimony would not make any difference because of the fingerprint evidence adduced at the trial. He argues that the “faulty procedures” used by Wallingford police fingerprint personnel, the failure to retain intact the bicycle from which the prints were lifted and “especially” the failure to photograph the latent fingerprints “severely called into question the claimed source of the latent prints.”
The defendant asserts in his brief that Isola was not available to testify at the trial and that he could not be located on short notice and that
In United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985), Justice Blackmun wrote the opinion in which Justice O’Con-nor joined. Justice White, joined by Chief Justice Burger and Justice Rehnquist, wrote an opinion “concurring in part and concurring in the judgment.” Justice Marshall filed a dissenting opinion in which Justice Brennan joined and Justice Stevens filed a separate dissenting opinion. Justice Powell took no part in the decisions of the case.
Bagley, to date, has apparently not been hailed as a beacon in this area. For example, in United States v. Ben M. Hogan Co., 769 F.2d 1293, 1299 (8th Cir. 1985), the court said: “A majority of the Supreme Court now seems to agree that irrespective of the specificity of a request for evidence made by the defense, for purposes of a Brady inquiry, such ‘ “evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” ’ ” The Fifth Circuit Court of Appeals, in addressing what showing Brady required where the defendant makes a specific request, said: “Finally, a very recent decision [United States v. Bagley] handed down since we heard oral argument in today’s case, throws further—if somewhat flickering—
For a case employing Bagley in rejecting a Brady claim where the “suppressed” statement was found to contain “only cumulative impeachment material” therefore making it “altogether improbable that its production would have changed the jury’s verdict,” see United States v. McKenzie, 768 F.2d 602, 610 (5th Cir. 1985).