State v. Taborsky

• Citation: 147 Conn. 194,158 A.2d 239
• Court: Supreme Court of Connecticut
• Decision Date: 16 February 1960
• Parties: STATE of Connecticut v. Joseph L. TABORSKY. STATE of Connecticut v. Arthur CULOMBE. Supreme Court of Errors of Connecticut

Page 239

158 A.2d 239

147 Conn. 194

STATE of Connecticut v. Joseph L. TABORSKY.

STATE of Connecticut v. Arthur CULOMBE.

Supreme Court of Errors of Connecticut.

Feb. 16, 1960.

Wallace R. Burke, Hartford, Special Public Defender, with whom were John J. Daly, Asst. to Special Public Defender, and Maxwell Heiman, Hartford, for appellant (defendant) in the first case.

Alexander A. Goldfarb, Hartford, Special Public Defender, for appellant (defendant) in the second case.

John D. LaBelle, Manchester, State's Atty., for appellee (state) in each case; with him, on the brief in the second case, were J. Read Murphy, Hartford, and George D. Stoughton, W. Hartford, Asst. State's Attys.

Before BALDWIN, C. J., and KING, MURPHY, MELLITZ and SHEA, JJ.

BALDWIN, Chief Justice.

The defendants, Joseph L. Taborsky and Arthur Culombe, were convicted of murder in the first degree in a joint trial to a jury in the Superior Court. They were indicted under what is now § 53-9 of the General Statutes for the killing of Edward J. Kurpiewski and Daniel J. Janowski, committed during a holdup at a gasoline station in New Britain on December 15, 1956. The defendants, in their appeals, have assigned error in the rulings of the court preliminary to the trial, in the admission of their confessions and other evidence during the trial, in the charge, and in the denial of their motions to set aside the verdicts of guilty.

On December 15, 1956, the bodies of Edward J. Kurpiewski and Daniel J. Janowski were found in Kurp's gasoline station on Stanley Street in New Britain. An autopsy revealed that both had died from bullet wounds in the head. In the afternoon of February 23, 1957, the defendants were taken into custody by the state police. Culombe, on February 27, and Taborsky, on March 1, confessed to robberies at the gasoline station and to the two homicides. Each confession corroborated the other in the main. A general summary of the facts contained in them follows: About 6 p. m. on Saturday, December 15, 1956, the defendants drove in Culombe's Oldsmobile from Hartford to New Britain. They were armed and they intended to hold up a gasoline station. They stopped at Kurp's station. The proprietor, Kurpiewski, serviced their car. Taborsky left the car to go, as he said, to the toilet in the station. After Culombe had paid for the gasoline, he ordered Kurpiewski, at gun point, into the boiler room of the station, shot him, and took his wallet. Meanwhile, Taborsky was searching the main office of the station for money. Culombe joined him and they found and took money from the cash register and the desk. During this search Janowski, who had his eighteen-month-old daughter with him, drove up and stopped by the pumps. Taborsky and Culombe waited in the station, but when Janowski did not drive away they came out. Culombe pretended to service Janowski's car. Taborsky pointed a gun at Janowski, took his wallet and ordered him into the station and then into the toilet room, where Taborsky shot him twice in the left side of the head above the ear. Taborsky and Culombe then drove to Culombe's house in Hartford and divided the money. Taborsky returned later that evening to his home in Brooklyn, New York.

Before the trial began, Taborsky filed a motion for a separate trial which the court denied. This action is assigned as error. Taborsky claimed that the defense to be offered by Culombe would be antagonistic to his defense and that Culombe's confession, if admitted in evidence, would be prejudicial to him. Whether separate trials should be allowed rests in the sound discretion of the trial court. State v. McCarthy, 133 Conn. 171, 174, 49 A.2d 594; State v. Luria, 100 Conn. 207, 209, 123 A. 378; State v. Klein, 97 Conn. 321, 323, 116 A. 596; State v. Castelli, 92 Conn. 58, 62, 101 A. 476; State v. Brauneis, 84 Conn. 222, 226, 79 A. 70. In each confession, most of the material facts were substantially the same as in the other. See People v. Doran, 246 N.Y. 409, 425, 159 N.E. 379; People v. Fisher, 340 Ill. 216, 227, 172 N.E. 743; State v. Rios, 17 N.J. 572, 585, 112 A.2d 247; Kirkendoll v. State, 198 Tenn. 497, 522, 281 S.W.2d 243; Opper v. United States, 348 U.S. 84, 95, 75 S.Ct. 158, 99 L.Ed. 101. Each confession, if legally corroborated, was sufficient to convict the defendant making it of murder in the first degree. An examination of all the testimony in the joint appendix to the briefs discloses no material fact incriminating either of the defendants which would not have been before the jury if he had been tried separately and only his own confession admitted. See State v. Castelli, supra, 92 Conn. 64, 101 A. 479. The court was meticulous in cautioning the jury many times during the trial, especially when the counsel for either Taborsky or Culombe made objection, that each confession was to be considered by the jury only in the state's case against the defendant who had made it. See State v. McCarthy, supra, 133 Conn. 175, 49 A.2d 596; State v. Castelli, supra, 92 Conn. 63, 101 A. 478. This caution was repeated in the charge to the jury. Upon the whole record, it does not appear that any injustice was done to Taborsky by the denial of his motion for a separate trial.

Both defendants moved for a change of venue. General Statutes, § 54-78. Prior to their apprehension by the police, there had been a series of holdup killings which had particularly aroused the fears of the operators of gasoline stations, package stores and small shops. Newspapers and radio and television networks throughout the state published and broadcast news of these crimes and referred to those perpetrating them as 'mad killers.' The court conducted a lengthy hearing on this feature of the cases. Editors of newspapers, radio broadcasters and many others testified, and a number of newspaper files were received as exhibits. While some of the witnesses stated that the public were aroused against the defendants after they had confessed, by far the greater number testified to facts from which a conclusion could reasonably be drawn that a fair trial could be had in Hartford County. The court concluded that the defendants had failed to sustain the burden of proving, as the law requires them to do, that a fair and impartial trial could not be had in Hartford County. State v. Chapman, 103 Conn. 453, 470, 130 A. 899; State v. Rocco, 109 Conn. 571, 572, 145 A. 47; State v. Rogers, 143 Conn. 167, 172, 120 A.2d 409, certiorari denied 351 U.S. 952, 76 S.Ct. 850, 100 L.Ed. 1476; 4 Wharton, Criminal Law and Procedure, p. 114. The court did not abuse its discretion in denying the motions for a change of venue.

The defendants claim that they were denied counsel in violation of the fourteenth amendment to the federal constitution and article first, § 9, of the constitution on this state. They were taken into custody by the state police on Saturday afternoon, February 23. On February 25, they were taken by the state police to police headquarters in New Britain, where they were booked for breach of the peace. They were presented in the Police Court in New Britain on February 26, when their cases were continued until March 5 without plea. On February 28, bench warrants having been served upon them charging them with murder in the first degree, they were presented in the Superior Court in Hartford. The court ordered them placed in the custody of the state police for further investigation. Before this was done, however, the defendants were asked whether they had counsel. It appearing that they did not and that they were without funds to provide any, the court offered to assign counsel to them. Taborsky stated that he did not want the public defender. He asked for Attorney Nathaniel Bergman or, if he was not available, Attorney Wallace R. Burke. Bergman not being able to undertake the case, Burke was assigned as counsel. Culombe also refused the services of the public defender and asked that Attorney Thomas McDonough be appointed to defend him. The court appointed McDonough. ¹ Provision is made by law for the appointment by the judges of a public defender to act in behalf of accused persons who are unable to provide counsel for themselves. General Statutes, § 54-80; State v. Reid, 146 Conn. 227, 234, 149 A.2d 698. Nevertheless, each of these defendants was provided with counsel of his own choice who acted as a special public defender at the expense of the state. § 54-81. Although an accused who cannot provide counsel for himself is entitled to competent representation, there is nothing in our law which requires that he be given a choice of counsel.

The finding made by the court concerning the admissibility of Taborsky's confession shows that Taborsky did not ask for an attorney until he was presented in the Superior Court on February 28. The finding made in the Culombe case concerning the admissibility of his confession shows that Culombe, almost from the time of his first contact with the police concerning the New Britain murders, had abundant opportunity to call an attorney; for example, the police offered to call any attorney whom Culombe would name, but he named none; he was taken to his house by the police and there talked with his wife; she also saw him at state police headquarters. Taborsky claims that he should have been provided with counsel in time for the counsel to represent him at his presentation in the Superior Court on February 28. Culombe appears to assume that immediately upon his apprehension he should have been offered counsel by the state. His appearance for booking at the police headquarters in New Britain was not a hearing, and for it he did not require counsel. His presentation in the Police Court in New Britain without counsel, when his case was continued, in no way jeopardized his rights. He was not required to, nor did he, enter any plea, nor was he called upon to do or say anything. See State v. Reid, supra, 146 Conn. 235, 149 A.2d 701. The 'refusal of a...