State v. Vitale

• Citation: 197 Conn. 396,497 A.2d 956
• Court: Supreme Court of Connecticut
• Decision Date: 10 September 1985
• Parties: STATE of Connecticut v. John E. VITALE, Jr.

Page 956

497 A.2d 956

197 Conn. 396

STATE of Connecticut v. John E. VITALE, Jr.

Supreme Court of Connecticut.

Argued June 11, 1985.

Decided Sept. 10, 1985.

Joseph G. Bruckmann, Asst. Public Defender, with whom were Joette Katz, Public Defender, and on brief, Temmy Ann Pieszak, Asst. Public Defender, for appellant (defendant).

Carl Schuman, Asst. State's Atty., with whom, on brief, were Dennis A. Santore, State's Atty., and Erin M. Kallaugher, Law Student Intern, for appellee (State).

Before PETERS, C.J., and SHEA, DANNEHY, SANTANIELLO and CALLAHAN, JJ.

CALLAHAN, Justice.

On September 18, 1978, a grand jury for Litchfield county indicted the defendant, John E. Vitale, Jr., and three codefendants, Stanley Chenkus, Joseph LeBlanc and James Calca, for two counts of felony murder in violation of General Statutes § 53a-54c ¹ in connection with the deaths of Bruce M. Gilbert and Henry J. Kulesza. The defendant pleaded not guilty to both counts of the indictment and elected to be tried by a jury, as did James Calca. Chenkus and LeBlanc entered into plea negotiations with the state, pleaded guilty to reduced charges of conspiracy to commit robbery and testified at the trial of the defendant and Calca. The trial resulted in a hung jury and the declaration of a mistrial. Subsequently Calca changed his plea.

The defendant was tried a second time alone, and on August 8, 1980, a jury found him guilty of both counts of felony murder charged in the indictment. Chenkus and LeBlanc testified again at the second trial. On September 19, 1980, the trial court sentenced the defendant on each count of the indictment to consecutive terms of not less than twelve years to life imprisonment, thereby imposing an effective sentence of not less than twenty-four years to life.

The defendant has appealed claiming (1) a violation of his constitutional right to confront the witnesses against him; (2) error in an evidentiary ruling by the trial court; (3) error in the trial court's refusal to charge the jury on larceny in the fourth degree as a lesser included offense of felony murder; (4) a violation of his fifth and sixth amendment rights under the federal constitution by the admission into evidence of statements the defendant made to a correction officer; and (5) the denial of effective assistance of counsel. We find no error.

The jury could reasonably have found the following facts. On the afternoon of May 3, 1978, the bodies of Bruce Gilbert and Henry Kulesza were found in their combination home-antique shop in Woodbury. Gilbert was lying dead on the kitchen floor. His death was attributed to stab wounds of the abdomen. Kulesza's body was discovered at the foot of a set of stairs. His death was caused by multiple fractures of the skull and stab wounds of the chest. Death in both instances had occurred the previous night. The premises were in disarray, and the upstairs rooms, one of which contained a safe, appeared to have been ransacked.

In the early evening of May 2, 1978, Joseph LeBlanc and James Calca, while at Calca's home in Waterbury, made plans to commit a burglary that night. They made several telephone calls and enlisted the aid of the defendant and Stanley Chenkus. The four men left Waterbury and rode to Southbury in a Ford station wagon driven by the defendant, looking for a place to burglarize. Unable to accomplish their purpose in Southbury, they left and eventually arrived in Woodbury at the home of the victims. The defendant went to the back door and, on the pretext that he wished to use the telephone, was admitted to the house. He returned to the car in about twenty to twenty-five minutes and told the others that two gay men lived there, that they were drunk, and that one was going to bed and the other wanted the defendant to return in about thirty minutes. The four went to a restaurant for coffee, but found it closed and drove back to the victims' house.

When they returned to the house, the defendant entered first, followed by Calca. Chenkus and LeBlanc remained outside, smoking marijuana. Once inside, Calca grabbed Gilbert and demanded the combination to the safe. Gilbert started to yell and was assaulted with karate blows by the defendant. The defendant then met Kulesza coming down the stairs and knocked him to the floor.

The defendant ran out of the house and told Chenkus and LeBlanc to come inside. When they entered the house, the defendant first told Chenkus to tie up Gilbert, then told him to go upstairs to look for money. While Chenkus, LeBlanc and Calca were upstairs ransacking the rooms and prying open a safe, the defendant stabbed Kulesza. He then joined the others in looting the safe. Calca went downstairs, followed shortly by the others, who met Calca coming from the kitchen. Gilbert was dead in the kitchen.

The four left and returned to Waterbury in the Ford station wagon driven by the defendant. On the way, Calca disbursed the proceeds of the robbery, giving each participant approximately $1200 in cash. The four also split one hundred silver dollars. The defendant said that each could keep whatever jewelry he had stolen.

On the afternoon of May 4, 1978, the defendant purchased a motorcycle from Family Cycle in Waterbury. The purchase price of $1189 plus the sales tax was paid in cash by the defendant.

On May 15, 1978, the state police found a jewelry box and a set of cameo cuff links beneath the driver's seat of a 1973 Ford station wagon which was registered to the defendant's grandmother. The car had been seized pursuant to a search warrant on May 11, when the defendant was arrested. It had been parked on a public street near the Walking Man Cafe in Waterbury, where the defendant was taken into custody. The jewelry box and cuff links were identified as belonging to the victim Kulesza.

The defendant testified at his trial. His testimony was markedly different from that of Chenkus and LeBlanc, who testified as to the defendant's extensive and direct involvement in the crimes. In summary, the defendant testified that he did drive the car on the night of May 2, 1978, but that he thought he was transporting the other three to a drug transaction. He testified that he was directed to the victims' home and was ordered to stay in the car as a lookout while the others exited from the car and approached the house. He believed that they were making the drug deal. He then heard yelling and entered the house by an open back door. Upon entering the house, he saw a man lying on the kitchen floor with blood coming from his mouth. He then met Calca, who ordered him into the house. He observed a second man with a cut on his head lying naked at the foot of the stairs.

The defendant testified further that he was told to accompany LeBlanc upstairs where the others were looking through rooms and trying to open a safe in one of the bedrooms. The defendant testified that he wanted to leave the house and went downstairs, but that Calca told him to go back upstairs.

The defendant denied having injured either Kulesza or Gilbert, or asking anyone else to harm them. In fact, he denied touching them. According to the defendant, his only purpose that night was to give LeBlanc, Chenkus and Calca a ride to a drug deal, and he had nothing to do with searching the house, robbing the safe, or stealing anything from the house. The defendant's testimony was consistent with the elements of an affirmative defense to felony murder under General Statutes § 53a-54c. ²

I

The defendant first claims that the trial court restricted his cross-examination of Stanley Chenkus, in violation of his right of confrontation under the sixth amendment to the federal constitution. Having cross-examined Chenkus at length, the defendant attempted to question him concerning possible criminal activity, particularly burglaries, in which Chenkus may have participated with Joseph LeBlanc prior to May 2, 1978. The trial court sustained a general objection to this line of questioning on the ground that it was not probative of veracity. The defendant duly excepted.

A defendant's right to cross-examine witnesses is not absolute and is subject to reasonable limitation. State v. Thompson, 191 Conn. 146, 148, 463 A.2d 611 (1983). Whether to permit cross-examination as to particular acts of misconduct to show a lack of veracity lies largely within the discretion of the trial court. Vogel v. Sylvester, 148 Conn. 666, 675-76, 174 A.2d 122 (1961). Chenkus had already been extensively cross-examined at the time of the inquiry concerning his prior criminal activity with LeBlanc. He had admitted having been arrested for prior criminal charges, including burglary. Had the evidence of prior misconduct been offered on the issue of veracity, it would not have been an abuse of the trial court's discretion to sustain the objection.

The defendant contends, however, and the state concedes, that the court misunderstood the purpose for which the evidence was offered and consequently based its ruling on irrelevant grounds. It is sufficiently clear from the record that the purpose of the offer was not to attack directly Chenkus' veracity, but rather to show a relationship between Chenkus and LeBlanc which involved their joint participation in burglaries prior to May 2, 1978. The defendant in his brief contends that had he been allowed to pursue this line of inquiry, it "could have provided independent evidence that because at least two of the codefendants engaged in other burglaries together, possibly establishing a modus operandi, it is more likely than not they had planned the Gilbert home burglary together, to the exclusion of [the defendant]." He further asserts that "[a] history of previous burglaries could have been used to refute Chenkus' testimony geared to show that [the defendant] was the instigator of the break-in," and he claims that the ruling of the court denied him the opportunity "to plant the seed of his defense."

The general rule is that...