14 Conn. App. 322 | Conn. App. Ct. | 1988
The defendant appeals from the judgment of conviction, after a jury trial, of three counts of bribe receiving in violation of General Statutes § 53a-148 (a).
The jury could reasonably have found the following facts. The defendant, a former mayor of Naugatuck, on three occasions manipulated the process by which municipal construction contracts were awarded. Twice the defendant altered the process under which public contracts were awarded by providing Ronald Albaitis, one of the three partners in the family owned Albaitis Brothers Construction Company, with the necessary information for obtaining the contract; the defendant supplied Albaitis with the dollar figure of the lowest bid and allowed Albaitis to resubmit an altered bid after the bidding was supposedly closed.
On November 18, 1983, the chief state’s attorney made an application to the chief court administrator pursuant to General Statutes (Rev. to 1985) § 54-47
The defendant’s first claim of error is that it is unconstitutional for a judge to act as grand juror. Specifically, the defendant argues that having a judge perform
As a preliminary matter, we must first decide whether the defendant has standing to raise this claim. “ ‘Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented. See, e.g., Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962); Stern v. Stern, 165 Conn. 190, 192, 332 A.2d 78 (1973). These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity.’ Maloney v. Pac, 183 Conn. 313, 320-21, 439 A.2d 349 (1981). The question of standing does not involve an inquiry into the merits of the case. It merely requires the plaintiff to make allegations of a colorable claim of injury to an interest which is arguably protected or regulated by the statute or constitutional guarantee in question. Data Processing Service v. Camp, 397 U.S. 150, 153, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1969); Ducharme v. Putnam, 161 Conn. 135, 139, 285 A.2d 318 (1971).” Reitzer v. Board of Trustees of State Colleges, 2 Conn. App. 196, 199-200, 477 A.2d 129 (1984).
In the present case, the defendant cannot claim that he has any cognizable legal interest in the validity of the inquiry, even when it might lead to his arrest. Unlike a search warrant, which authorizes governmental invasion of a person’s privacy interest, the one-man grand juror conducts a general investigation into the commission of a crime. The existence of a general
Even if we assume that the defendant’s claims are reviewable, he has failed to prove that the statute was unconstitutional. In reviewing the claim, we must follow the rule set forth in State v. Olds, 171 Conn. 395, 370 A.2d 969 (1976). “ ‘We approach the question with great caution, examine it with infinite care, make every presumption and intendment in favor of validity, and sustain the act unless its invalidity is, in our judgment, beyond a reasonable doubt.’ ” State v. Olds, supra, 411, quoting Edwards v. Hartford, 145 Conn. 141, 145, 139 A.2d 599 (1958). The party challenging the constitutionality of a statute bears a “heavy burden” of proving unconstitutionality beyond a reasonable doubt. State v. Hernandez, 204 Conn. 377, 385, 528 A.2d 794 (1987). The defendant has failed to meet this burden.
We begin this analysis by stating that investigating inquiries by a judge have been held, in part, constitutional. State v. Moynahan, 164 Conn. 560, 565-67, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219 (1973); McCarthy v. Clancy, 110 Conn. 482, 495-97, 148 A. 551 (1930). The defendant’s argument simply stated is that the former General Statutes (Rev. to 1985) § 54-47 offends the separation of powers doctrine. He asserts that the relationship between the judge and prosecutor “is an intercourse which is foul, unhealthy, abnormal and unnatural,” because it confers to the judge the powers of the prosecutor. The defendant’s argument clearly ignores the weight of authority.
“It is rudimentary that the three branches of government do not exist in discrete, airtight compartments, and that the rule of separation of governmental powers
The defendant has, additionally, asserted that the judicial inquiry creates a pervasive judicial bias which infects the cases which have begun with the one-man grand jury. The claim is that the trial court is improperly influenced by the investigatory reporting because they all belong to the same “judicial club.” Once again, the defendant’s claim is off base.
In his second claim of error, the defendant argues that the trial court erred in denying the defendant’s motion to dismiss. The defendant puts forth two arguments in support of this claim. The first argument is that the court should have granted a judgment of acquittal because his conduct was not a “decision, opinion, recommendation or vote” within the meaning of the bribe receiving statute.
Moreover, the legislative history of the statute is helpful in construing the statute. State v. West, 192 Conn. 488, 494, 472 A.2d 775 (1984); State v. Giorgio, 2 Conn. App. 204, 209, 477 A.2d 134 (1984). The original bribe receiving statute defined the scope of conduct as embracing a “decision ... or other act of discretion.” In that context a decision was equivalent to any exercise of discretion by the public servant.
In the defendant’s second argument, he claimed that he should not have been charged with violating General Statutes § 53a-148 (a), a class D felony, but should, instead, have been charged with General Statutes § 53a-161b, a class A misdemeanor. It is firmly established in Connecticut case law, however, that a prosecutor may charge any offense reasonably supported by the facts. State v. O’Neill, 200 Conn. 268, 279-80, 511 A.2d 321 (1986); State v. Riggs, 7 Conn. App. 180, 185, 508 A.2d 67, cert. denied, 200 Conn. 804, 510 A.2d 191 (1986).
In this case, we need only examine the plain language of the statute to disregard the defendant’s claim. See State v. Ellis, 197 Conn. 436, 442, 497 A.2d 974 (1985). The statute, on its face, applies only to bidders and offerors. The plain language combined with the legislative history
In the final issue, the defendant argues that the trial court erred in denying his motion for disclosure of transcripts of witnesses who appeared before the one-man grand jury. Before trial, the defendant sought to obtain
The defendant in a criminal prosecution has a constitutional right to confront the witnesses against him. Douglas v. Alabama, 380 U.S. 415, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965); see also State v. Shindell, 195 Conn. 128, 140, 486 A.2d 637 (1985). The Supreme Court, however, has held that a denial of access to grand jury transcripts is not a violation of the confrontation clause. Pennsylvania v. Ritchie, 309 U.S. 316, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987). This court’s recent analysis is consistent with Ritchie in stating that “the right to confrontation is the right to cross-examine and not the right to an all-inclusive cross examination.” State v. D' Ambrosio, 14 Conn. App. 309, 316, 541 A.2d 880 (1988).
The defendant’s claim that nondisclosure of the transcript offended his due process rights is, likewise incorrect. This court has recently stated in State v. Waterman, 7 Conn. App. 326, 345, 509 A.2d 518, cert. denied, 200 Conn. 807, 512 A.2d 231 (1986): “A defendant has no absolute right to inspect investigative grand jury testimony for the purpose of assisting him in preparation of a defense.” (Citation omitted.) Connecticut case law is rich with citations that the safeguarding of the secrecy of the grand jury is an important task that the trial courts assume.
There is no error.
In this opinion the other judges concurred.
General Statutes § 53a-148. “bribe receiving: class d felony, (a) A public servant or a person selected to be a public servant is guilty of bribe receiving if he solicits, accepts or agrees to accept from another any benefit for, because of, or as consideration for his decision, opinion, recommendation or vote.”
The defendant informed Albaitis that the lowest bid on the construction contract for the drainage of the high school field was $16,295. After the silent bidding was closed, the defendant handed Albaitis the necessary
On the brook blasting contract, the defendant called Albaitis and the two inspected the brook. After inspection, Albaitis estimated the price of the work at $6500. The defendant, later, phoned Albaitis and informed him that the contract was his for $4000 with $1000 payable for receiving the contract.
Prior to its repeal by Public Acts 1985, No. 85-611, General Statutes § 54-47 (b) provided in relevant part: “The chief state’s attorney . . . may also apply to the chief court administrator for an order that an inquiry be made to determine whether or not there is probable cause to believe that a crime or crimes have been committed.”
See footnote 1, supra.
General Statutes § 53a-161b. “disclosure of bid or proposal: class a misdemeanor. Unless otherwise required by law, the prices quoted in a bid or proposal for any contract to be awarded by any commission, agency or department of the state or any political subdivision of the state shall not be disclosed by the bidder or offeror prior to the opening, in the case of a bid, or prior to the award, in the case of a proposal, directly or indirectly to any other bidder or offeror or to any competitor. Any person who violates the provisions of this section shall be guilty of a class A misdemeanor.” (Emphasis added.)
Model Penal Code § 240.1 (Proposed Official Draft 1962) also defined bribery as requiring a “decision, opinion, recommendation, vote or other exercise of discretion . . . .” The comment on that particular section notes: “The official action focuses on decision-making, i.e., upon the exercise of discretion by the designated person. It is designed to include minor ministerial acts as well as major decisions of policy.” (Emphasis added.) Id.
In summarizing the proposed legislation that would become § 53a-161b, Representative Richard D. Tulisano explained that the purpose was to “disallow inside dealing between competitors to fix prices and restrict price competition in bidding against, in dealing with both the State and political subdivisions of the State. (Emphasis added.) 23 H.R. Proc., Pt. 20, 1980 Sess., p. 5938.
“Safeguarding the confidentiality of grand jury proceedings serves a number of functions. ‘First, if [precharging] proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements. . . . Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule.’ ” In re Final Grand Jury Report Concerning the Torrington Police Department, 197 Conn. 698, 709-712, 501 A.2d 377 (1985), quoting Douglas Oil v. Petrol Stops Northwest, 441 U.S. 211, 219, 99 S. Ct. 1667, 60 L. Ed. 2d 156 (1979).