200 Conn. 310 | Conn. | 1986
On November 19,1980, after a jury trial, the defendant was found guilty of the crimes of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4),
On appeal, the defendant claims that the trial court erred in: (1) overruling the challenge to the jury array from which his trial jury was selected;
Certain background facts which the jury could reasonably have found include the following: On March 21, 1980, the Fournier Insurance Agency in the Oakville section of Watertown was robbed by the defendant’s coconspirator, Elbert Roberson, who was armed with a handgun. Roberson asked the clerk for the agency’s gray cash box, fled down the street with it, and was arrested shortly thereafter. On March 12, 1980, the defendant and his sister had gone to the Fournier agency, purchased some insurance and made a cash payment for it. At that time, the clerk who had dealt with the defendant had placed the cash she received from him in the same cash box that was taken by the robber on March 21,1980. Approximately five minutes after the robbery, the defendant came into the insurance agency where the same clerk, who had observed him on March 12, 1980, was on duty. She recognized
In a statement given to the Watertown police, the defendant stated that on the night before the robbery, Roberson had asked the defendant to give him a ride to Oakville because “he had to throw down on something [‘rob the place’] in Oakville for some big money.” The next morning the defendant picked Roberson up and drove him to Oakville. Roberson gave him twenty dollars for driving him there so that he could rob “this place he was going to hit.” A few minutes after Roberson exited the car in Oakville, he came back to tell the defendant that he was getting ready to commit the robbery and he showed the defendant his gun, flipping the cylinder so that the defendant could see bullets in it. The defendant asked Roberson not to commit the robbery at that time because his car would not start. The latter reiterated that he had to rob the agency and he walked toward the Fournier agency. There was also evidence that the defendant later gave a false statement to Watertown police officers.
The defendant claims error in the trial court’s denial of his motion for a continuance in conjunction with its ruling concerning Roberson’s claimed fifth amendment privilege against self-incrimination. The background circumstances involved are the following: On August 21,1980, during the argument on the defendant’s motion to sever his case from that of Roberson, the defendant’s counsel indicated that he wanted Roberson to be available to testify for the defendant. This was a result of the state’s response to the defendant’s discovery motion seeking exculpatory information which stated: “The co-accused, Elbert Roberson, claimed not to have had an accomplice during this [r]obbery and claims not to know the Defendant.” The
On October 29, 1980, Roberson pleaded guilty to a substitute information charging him with robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134, 53a-48. The court
On October 30, 1980, jury selection began in the defendant’s case. Later, on November 5,1980, during jury selection, the defendant’s counsel informed the court that Roberson was “very strongly” a possible witness in the case. At that time, he stated that he had received a letter from Roberson’s attorney indicating that Roberson intended, if called, to invoke his fifth amendment privilege against self-incrimination and that this privilege, the attorney had informed the defendant’s counsel, persisted until he was actually sentenced. Moreover, counsel also said that Roberson’s attorney had told him that a motion to quash would be directed to any subpoena issued to Roberson, and, if that failed, Roberson just would not testify. The defendant’s counsel said that Roberson, having pleaded guilty, had waived his right to self-incrimination, but pointed out that if the trial court agreed with Roberson’s argument, then he asked that the trial not continue any further (“at least not proceed with the evidence”) until after Roberson had been sentenced on December 12,1980. The state opposed the request for a continuance, argu
On November 12,1980, Roberson was called as a witness by the defense after the trial court had denied his motion to quash defense counsel’s subpoena. He was questioned in the absence of the jury to determine whether he would exercise his fifth amendment privilege although defense counsel persisted in his claim that Roberson had already waived it by pleading guilty. Roberson’s refusal to answer a number of questions was sustained by the trial court because of his fifth
At the outset of jury selection, the trial court heard the defendant’s counsel announce to the jury panel that Roberson was a possible witness in the case. During
The state proposed several reasons why the privilege against self-incrimination continued at least until sentencing. Roberson had, according to the state, pleaded guilty on October 29, 1980, on the basis of a recommended sentence. In the event that the sentencing court had rejected that recommendation, Roberson could have moved to withdraw his guilty plea and proceeded to trial. See Practice Book § 721 (3); State v. Lasher, 190 Conn. 259, 265, 460 A.2d 970 (1983). If this had been done, then the state might have been
We add that a judge, appraising such a claim by a witness, “must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence.” Ex parte Irvine, 74 F. 954 (S.D. Ohio 1896) (Taft, J.), quoted in Hoffman v. United States, supra, 487. We note that a defendant who has pleaded guilty but who is awaiting sentencing may invoke the fifth amendment privilege in order to prevent the possible enhancement of his sentence. United States v. Wilson, 598 F. Sup. 138, 142 (E.D. Pa. 1984) and cases there cited. Thus, the right to.one’s privilege against prosecution that could result from the testimony sought does not depend upon the likelihood of prosecution but upon the possibility of prosecution. In re Folding Carton Antitrust Litigation, 609 F.2d 867, 872 (7th Cir. 1979); see United States v. Johnson, 488 F.2d 1206 (1st Cir. 1973).
In this case, the trial court had been timely alerted to the defendant’s claims concerning Roberson’s testimony. His “exculpatory” testimony that he had no accomplice would hardly have been cumulative. Once Roberson was permitted to invoke his fifth amendment privilege during the defendant’s trial, the unique interest that the defendant had in a continuance in order to get that testimony before the trial jury became more significant. “A criminal defendant is not entitled to a trial which guarantees to him ‘every item of evidence he would like to offer, but one which meets constitutional standards of due process.’ Byrd v. Wainwright, 428 F.2d 1017, 1021 (5th Cir. 1970).” United States v. Blackston, 547 F. Sup. 1200, 1207 (S.D. Ga. 1982). While the trial court could properly consider counter
The same legal considerations also apply to the lack of the need to address the defendant’s remaining claim that the trial court’s instructions on conspiracy misled the jury and, thus, deprived him of his right to a fair trial.
There is error, the judgment is set aside, and a new trial is ordered.
In this opinion the other justices concurred.
General Statutes § 53a-134 (a) (4) provides: “(a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of robbery in the second degree, robbery in the third degree or any other crime.”
General Statutes § 53a-48 provides in part: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”
General Statutes § 53a-157 provides in part: "A person is guilty of false statement when he intentionally makes a false written statement under oath or pursuant to a form bearing notice, authorized by law, to the effect that false statements made therein are punishable, which he does not believe to be true and which statement is intended to mislead a public servant in the performance of his official function.”
Since we remand the case for a new trial on the ground of failure to grant a continuance, we need not discuss this challenge to the jury array.
The judge who accepted Roberson’s guilty plea and who later sentenced him was the same judge who heard the motion to sever and who also presided at the defendant’s trial.
The record is not clear here. The state referred to its prior “cross-examination” of Roberson where it maintained that he “admitted, in fact, he did know [the defendant].” -
Initially, Roberson was asked if, on October 29, 1980, he had pleaded guilty to robbery in the first degree. He said, as he did to some questions: “I claim my rights against self-incrimination, I refuse to answer any questions.”
Thereafter, his refusal to answer the following questions was sustained on the basis of his fifth amendment privilege:
“Q. Mr. Roberson, on March 21st of 1980, that was a Friday, at any time during that day did you have in your possession a weapon that was capable of discharging a shot? . . .
“Q. Mr. Roberson, on Thursday, March 20th, did you at any time have an occasion to meet with Stanley Williams? . . .
“Q. Mr. Roberson, at any time did you tell law enforcement authorities that you did not have an accomplice in this matter? . . .
“Q. Mr. Roberson, did Stanley Williams agree with you to rob the Fournier Insurance Agency on March 21st? . . .
“Q. Mr. Roberson, did Sharon Rabb know why you were going to the Fournier Insurance Agency that day?... {to] the Fournier Insurance Agency on March 21st of 1980? . . .
“Q. Mr. Roberson, did Stanley Williams pick you up in front of 2 Pilgrim Avenue on March 21st, 1980?”
At the time Roberson was called by the defendant, the latter was being tried not only for the three crimes of which the jury eventually found him guilty, but also for the crimes of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2) and hindering prosecution in violation of § 53a-166. At the close of all the evidence, the trial court granted the defendant’s motion for judgment of acquittal as to the latter two crimes.
We note that, according to the defendant, he had already served the sentence imposed in this case for which his maximum discharge date was December 15, 1985.
The defendant seems to argue that because Roberson had already pleaded guilty he had no fifth amendment privilege to invoke when called by the defendant as a witness on November 12, 1980. He argues that to hold that he did is contrary to our holding in State v. Rado, 172 Conn. 74, 372 A.2d 159 (1976), cert. denied, 430 U.S. 918, 97 S. Ct. 1335, 51 L. Ed. 2d 598 (1977). We do not agree.
In Rado, there is nothing in the opinion to indicate that the circumstances under which the witness was invoking the privilege were in issue or that the trial court was aware that he may not have been sentenced. The issue in Rado actually was the propriety of the state calling as a witness a codefendant who had pleaded guilty to one of the charges for which the defendant was on trial (two others having been nolled) whom it allegedly knew or should have known would refuse to testify. State v. Rado, supra, 77.
In Rado, we quoted the following statement of the Second Circuit: “It is well established that once a witness has been convicted for the transactions in question, he is no longer able to claim the privilege of the Fifth Amendment and may be compelled to testify.” United States v. Romero, 249 F.2d 371, 375 (2d Cir. 1957). A reading of Romero discloses that the witness in that case had in fact been sentenced. Moreover, Rado, immediately following the quote from Romero, also cites Reina v. United States, 364 U.S. 507, 513, 81 S. Ct. 260, 5 L. Ed. 2d 249 (1960), and Brown v. Walker, 161 U.S. 591, 597-600, 16 S. Ct. 644, 40 L. Ed. 819 (1896). A reading of Reina makes evident that the witness in that case had in fact also been sentenced. In Brown, the witness involved had been immunized when called to the stand. In sum, Rado did not hold as the defendant appears to claim.
The defendant also argues that the refusal to grant the continuance denied him, inter alia, his right to compulsory process. While our disposition of the continuance issue does not require that we discuss this claim further, we do note that we have said: “The rights of compulsory process and due process of law may be violated by the denial of a continuance which prevents a defendant from presenting witnesses on his behalf.” State v. Bethea, 167 Conn. 80, 83, 355 A.2d 6 (1974).