Lubesky v. Bronson

• Decision Date: 28 November 1989
• Docket Number: No. 13650,13650
• Citation: 566 A.2d 688,213 Conn. 97
• Parties: Roger LUBESKY v. George BRONSON, Warden.
• Court: Connecticut Supreme Court

Page 688

566 A.2d 688

213 Conn. 97

Roger LUBESKY v. George BRONSON, Warden.

No. 13650.

Supreme Court of Connecticut.

Argued Oct. 6, 1989.

Decided Nov. 28, 1989.

Martin Zeldes, Asst. Public Defender, with whom, on the brief, was G. Douglas Nash, Public Defender, for appellant (petitioner).

Carolyn K. Longstreth, Asst. State's Atty., with whom were Bradford J. Ward, Asst. State's Atty., and, on the brief, John Connelly, State's Atty., for appellee (respondent).

Before PETERS, C.J., and SHEA, CALLAHAN, COVELLO and HULL, JJ.

COVELLO, Associate Justice.

This is an appeal from a decision of the trial court denying the petitioner's application for a writ of habeas corpus and rendering judgment for the respondent. The dispositive issue is whether the state deliberately concealed an eyewitness-victim during the presentation of the petitioner's defense at his trial for murder. We conclude that the habeas court did not err in finding that the petitioner had not met his burden of proof on this claim.

On September 1, 1979, at approximately 1:45 a.m., someone entered the Waterbury apartment shared by Thomas Radke and Patricia Reagan and shot them both in the head. Reagan died as a result and Radke sustained five bullet wounds in the head and neck.

On November 20, 1979, a grand jury returned a true bill on a two-part information charging Roger Lubesky with murder in the first degree in violation of General Statutes § 53a-54a ¹ and assault in the first degree in violation of General Statutes § 53a-59(a)(1). ² The petitioner was tried and found guilty by a jury of twelve. The petitioner was also convicted of being a persistent felony offender in violation of General Statutes § 53a-40(a). ³ On August 15, 1980, the trial court, Stoughton, J., sentenced the petitioner to an effective term of imprisonment of forty years to life. ⁴

On March 19, 1985, on direct appeal to this court, the judgment of the trial court was affirmed in State v. Lubesky, 195 Conn. 475, 488 A.2d 1239 (1985). At that time we declined, for lack of an adequate record, to review the claim now raised by the petitioner that a due process violation had occurred because the state had deliberately concealed the eyewitness-victim Radke when defense counsel sought to recall him to the witness stand as a defense witness. State v. Lubesky, supra, 480, 488 A.2d 1239. On May 20, 1985, the petitioner filed a petition for a writ of habeas corpus, which was later amended on September 5, 1985.

The amended petition alleged, inter alia, that the petitioner's constitutional right to due process under the fifth, sixth and fourteenth amendments to the United States constitution and under article first, § 8 of the Connecticut constitution had been violated by the state's misleading statements regarding the whereabouts of Radke during the petitioner's trial, by the state's failure to disclose to the petitioner, at or before his trial, the fact of Radke's pending application to the federal witness protection program, and by the state's making Radke unavailable or concealing Radke from the petitioner during the trial.

Between February 4 and February 8, 1988, the petition was tried before the habeas court, Barry, J. On July 26, 1988, the habeas court dismissed the amended petition. On August 30, 1988, the habeas court granted the petition for certification to appeal, limited to the deliberate concealment claim. On November 7, 1988, the petitioner filed the instant appeal in the Appellate Court. We thereafter transferred the matter to ourselves pursuant to Practice Book § 4023.

At the criminal trial, the case against the petitioner was largely circumstantial and was primarily, albeit not exclusively, dependent upon the testimony of the surviving victim, Thomas Radke. At that trial Radke testified that it was the petitioner who had entered the apartment and fired the shots that killed Reagan and wounded him. He testified that he and Reagan were together in the bedroom of the basement apartment they shared. Reagan was watching television while Radke was in bed, sleeping with a pillow wrapped around his head to drown out the noise of the television. Radke testified that he was awakened by the familiar sound of the petitioner's voice. He testified that he heard the petitioner say "turn down the t.v." and then "somebody told about the Mancione score." Radke testified that almost immediately thereafter he heard three shots fired from a gun. He then testified that he started to get up but lost consciousness. When he regained consciousness the pillow was stuck to the left side of his head. Radke further testified that he tried to arouse Reagan, who was lying on the floor, but that she did not move. Radke testified that he then dressed and walked to a nearby cafe to summon help. He was thereafter hospitalized and treated for five bullet wounds to his neck and head. A forensic expert determined that the bullets removed from Reagan and Radke were fired from the same gun, a weapon that was never located.

On June 24, 1980, two days prior to Radke's testimony at trial, assistant state's attorney Walter Scanlon sent a letter to Harold Pickerstein, chief assistant United States attorney, seeking to place Radke in the federal witness protection program. On June 25, 1980, Pickerstein sent a letter to Scanlon acknowledging receipt of Scanlon's June 24 letter. During Radke's testimony on June 26 and 27 he maintained that there had been no promises, threats or deals made with or to him by the state in exchange for his testimony against the petitioner. Radke did acknowledge that he hoped that some consideration would be given for his testimony, i.e., that he would receive little or no punishment for the larceny and forgery charges to which he had recently pled guilty.

Radke was cross-examined for the better part of two days and concluded his testimony on June 27, 1980. At that time the petitioner's trial counsel, Michael C. Hagstrom, did not indicate to the trial court that Radke would be required to testify again, nor did he request the trial court to order Radke back at any specific time. On June 27, 1980, Radke had not yet been approved to enter the federal witness protection program and neither Radke nor the state mentioned the pending efforts to place him in the program.

After the conclusion of Radke's trial testimony, Hagstrom learned that Radke had been the primary informant with respect to a search warrant issued in New Haven against Peter Pepe. Hagstrom contacted the attorneys for Pepe who confirmed that Radke was scheduled to testify against Pepe in his upcoming trial on larceny charges. Hagstrom then decided that it was necessary to bring Radke back into court to testify during the presentation of the petitioner's case. Hagstrom believed that the Pepe information revealed that Pepe had as much if not more of a motive to harm Radke as did the petitioner, and that the defense was unable to explore the matter at the time of trial because the information was not available when Radke was on the witness stand. A subpoena was issued that the sheriff unsuccessfully attempted to serve on Radke over the weekend of June 28-29. On July 2, 1980, the sheriff returned the unserved subpoena to Hagstrom with an attached note indicating his inability to find Radke.

On the previous day, July 1, 1980, Hagstrom happened to be outside the state's attorney's office when he observed Radke inside with several other persons. Radke was there to meet with the United States marshal's service, the administrator of the federal witness protection program. On July 3, 1980, after learning of the sheriff's inability to find Radke and serve him with the subpoena, Hagstrom sought an order requiring the state to disclose Radke's whereabouts. Hagstrom stated his belief that Radke either was being held in protective custody or had left the jurisdiction in order to avoid further testimony. In response, Scanlon represented to the trial court that Radke was not in protective custody and that he did not know Radke's whereabouts. The court granted the motion "for what it's worth." Scanlon then stated that in the event he learned where Radke was, he would produce Radke in lieu of disclosing his whereabouts. After further colloquy the court paraphrased Scanlon's statement to Hagstrom as follows: "What he is saying is, as I understand it, you want Thomas Radke, you want the State's help in trying to locate him, if they can find him, they will get him here, that is what he is saying." Hagstrom affirmatively accepted Scanlon's representation, indicating that the state's production of Radke in court was acceptable.

On July 9, 1980, trial testimony was concluded. Hagstrom made no request for a continuance for the purpose of looking further for Radke, or to have the state describe what efforts had been made to locate him. No further reference of any kind was made during the trial concerning Radke's testifying for the defense. On July 11, 1980, the verdict was reached.

On August 15, 1980, at the sentencing hearing, the petitioner filed a motion to dismiss. Hagstrom claimed that on August 11, 1980, after acceptance of the verdict, he discovered that Radke had entered the federal witness protection program. He contended that the state both knew of Radke's whereabouts when it denied such knowledge on July 3, 1980, and in fact had assisted Radke's entrance into the witness protection program. Hagstrom claimed that after the conclusion of his cross-examination of Radke, he uncovered the new information regarding the statement Radke had given to the New Haven police concerning the forgery and larceny charges previously pending against Radke that implicated Pepe. Hagstrom argued that the state had "sequestered" Radke and as a result the petitioner had lost his right to confront Radke and contradict his earlier testimony.

The state denied hiding Radke or misrepresenting his whereabouts. The state contended that it notified...