Martin v. Flanagan

• Decision Date: 19 February 2002
• Docket Number: (SC 16453)
• Citation: 789 A.2d 979,259 Conn. 487
• Court: Connecticut Supreme Court
• Parties: CARLTON MARTIN v. WALTER FLANAGAN, STATE'S ATTORNEY

259 Conn. 487

789 A.2d 979

CARLTON MARTIN v.WALTER FLANAGAN, STATE'S ATTORNEY

(SC 16453)

Supreme Court of Connecticut.

Argued December 5, 2001.

Officially released February 19, 2002.

Norcott, Katz, Palmer, Vertefeuille and Zarella, JS.Jonathan K. Gable, certified legal intern, with whom was Kent Drager, senior assistant public defender, for the plaintiff in error.

James Ralls, assistant state's attorney, with whom, on the brief, were Walter Flanagan, state's attorney, and David Shannon, assistant state's attorney, for the defendant in error.

Opinion

KATZ, J.

The dispositive issue in this writ of error is whether, pursuant to General Statutes § 51-33,¹the trial court improperly rejected the assertion by the plaintiff in error, Carlton Martin(plaintiff), of his fifth amendment privilege not to testify and improperly held him in contempt for refusing to answer questions at the criminal trial of a codefendant based on the plaintiffs previous waiver of the privilege at his own criminal trial.

The record discloses the following undisputed facts.In connection with the death of Bobbie Gallo during an alleged armed robbery at Gallo's Liquor Store in Danbury on January 18, 1999, the plaintiff was charged with and convicted of felony murder in violation of General Statutes § 53a-54c, first degree robbery in violation of General Statutes § 53a-134 (a)(2), and five counts of tampering with a witness in violation of General Statutes § 53a-151 (a).Following his sentence to a total effective sentence of ninety years imprisonment, the plaintiff appealed from the judgment of conviction to this court.That appeal is still pending.²

Thereafter, in connection with the same events, the state proceeded to trial in the case against the plaintiffs codefendant, Tommie Martin, charging that he had conspired with the plaintiff to commit robbery in the first degree.During that trial, the state filed a motion to compelthe plaintiff's testimony, contending that, because he previously had waived the fifth amendment privilege against self-incrimination during his own trial, at which he was convicted of charges arising from Gallo's homicide, the privilege was no longer viable.In response, the plaintiff filed a brief raising essentially four arguments in opposition to the state's motion.First, the plaintiff claimed that he retained the right to invoke his fifth amendment privilege at Tommie Martin's trial because that proceeding was separate from his own criminal trial.Second, the plaintiff maintained that, because his judgment of conviction was on appeal, it was not yet final, and consequently, if his conviction were to be overturned, anything that he stated in the trial of Tommie Martin could be used against him at his retrial.Third, the plaintiff contended that he was entitled to invoke his privilege against self-incrimination based upon his legitimate concern that the testimony that the state sought to compel might furnish a link in the chain to other evidence supporting charges against him either for having committed perjury in his previous testimony or for having given a false sworn statement to the police, or for both.Finally, the plaintiff argued that he was entitled to invoke his fifth amendment privilege because the testimony the state possibly would seek to elicit could expose him to prosecution for other offenses, including conspiracy.

The court permitted the state to call the plaintiff as a witness at Tommie Martin's trial, but ordered that the initial questioning take place outside the presence of the jury.Before the state began its questioning, the trial court advised the plaintiff"that in regard to ... your testimony connected to the January 18, 1999 robbery and shooting at Gallo's Liquor Store, you don't have a fifth amendment privilege.And, I'm ordering you to answer questions that are put to you.If you fail to answer appropriate questions, then I'm going to hold you in contempt of court and give you a jail sentence, which will be consecutive to the time you've already gotten.You have your lawyer sitting next to you.If you feel or he feels that some question might elicit information that's incriminating in another case or another crime, and I believe that's appropriate, then I'll make a decision about whether you should ... answer those questions.OK?But, I'm telling you that you have to testify here.If you don't, you may be found in contempt of court and get an additional jail sentence."

Following some preliminary questions, the state asked the plaintiff the following question: "Did you go to 32 Fairfield Ridge in Danbury, Connecticut in the early morning hours of January 18, 1999?"When the plaintiff refused to answer, the court found him in contempt and sentenced him to six months imprisonment.The state then asked the plaintiff whether he had "testif[ied] previously that [he], Tommie Martin, and Nicole Harris drove to the BP gas station on January 18, 1999, in the early morning hours?"He again refused to answer, resulting in a second contempt finding and an additional sentence of six months imprisonment.

The court thereafter cautioned the plaintiff: "I'm going to remind you once again, you do not have a fifth amendment privilege in regard to the events of January 18, 1999, at Gallo's Liquor Store, and I'm warning you to testify, and if you don't, I'm going to hold you in contempt of court."Thereafter, the state asked the plaintiff a series of questions, to which the plaintiff again invoked his privilege against self-incrimination and refused to answer.The questions were as follows: (1)"[D]id Tommie Martin, your cousin, come out of the house when you pulled up—when you got to 32 Fairfield Ridge?"; (2)"Tommie [Martin] was with you at this time, wasn't he?"; (3)"Did you change your story and tell [Detective Daniel Trompetta of the Bridgeport police department] that you were with Tommie Martin at the BP gas station next to Gallo's [Liquor Store]?"; (4)"[D]id you testify previously at your trial that you initially didn't tell [Detective] Trompetta that you were with Tommie Martin because you wanted to protect him?"; (5)"[D]id you tell the police that Tommie Martin wasn't there in order to protect him?"; (6)"Did you testify previously that you ... initially told the police Tommie [Martin] wasn't there in order to protect him?Did you testify to that?"; (7)"[W]as [the .25 caliber Titan handgun, the alleged murder weapon] in your apartment in early January—when it was in your apartment in early January of 1999, was Tommie Martin in the apartment [at] the same time?"; and (8)"These [letters that were being shown by the state] are the letters that Tommie Martin gave you while you [and he] were incarcerated together at Walker correctional facility.Isn't that correct?"Each time the plaintiff refused to answer a question, the court ordered him to answer and held him in contempt of court for thereafter refusing.The court imposed a fine each of the eight times it held the plaintiff in contempt.See footnote 3 of this opinion.

Later that afternoon, the state called the plaintiff as a witness before the jury.During his testimony, the plaintiff invoked the privilege against self-incrimination eight more times in response to the following questions: (1)"[W]hen you saw [the gun that was the alleged murder weapon] in your apartment in early January of 1999, was ... Tommie Martin ... present at the time?"; (2)"[H]ave you testified previously that that gun was in your apartment at the same time Tommie Martin was in your apartment?"; (3)"Did you testify previously that [Tommie Martin] didn't have a ride in a prior court proceeding?"; (4)"Did you testify previously... that when you got to [Harris'] house, that Tommie Martin was coming out of the house.Did you testify to that ... ?"; (5)"Did you testify previously that Tommie Martin got in the car after he was coming out of the house ... [stating that]`He met me coming to the house, got back in the car and drove off?'"; (6)"Did you testify previously ... [that]Tommie Martin got in the car with you and the three of you went to the BP gas station?"; (7)"[D]id you testify previously that when you got to the BP gas station, Tommie Martin was pumping the gas and Nicole Harris went to go and pay for the gas?"; and (8)"Did you testify previously... that you initially told the police Tommie Martin wasn't with you in order to protect Tommie Martin?"

At the conclusion of the plaintiff's testimony, the trial court, outside the presence of the jury, imposed fines for each of its eight additional contempt findings.Therefore, in total, the trial court found the plaintiff in contempt eighteen times and sentenced him to twelve months imprisonment and $1600 in fines.³Thereafter, the court remitted all the fines, but left intact the sentences of imprisonment based upon the first two contempt findings.

On appeal, the plaintiff claims that he properly exercised his privilege against self-incrimination and that the trial court therefore, improperly held him in contempt.In support of his claim, the plaintiff reiterates the arguments that he had made before the trial court.The trial court, however, did not address all of the plaintiffs claims, focusing instead on only one factor— that, by testifying at his own trial, the plaintiff had waived his privilege against self-incrimination.The state does not argue in support of the trial court's reasoning, but, rather, submits a variety of alternate grounds supporting the ultimate findings of contempt.The state's primary position is that the plaintiff properly was compelled to testify because he could not be punished any further for testifying, either for perjury, conspiracy or felony murder, were his conviction to be overturned.Essentially, the state contends that, because the trial courtcompelledthe plaintiff to testify, the testimony would be inadmissible against him in any subsequent prosecution....