Moynahan v. Manson

• Decision Date: 31 August 1976
• Docket Number: Civil No. H-218.
• Citation: 419 F. Supp. 1139
• Court: U.S. District Court — District of Connecticut
• Parties: Paul MOYNAHAN v. John R. MANSON, Commissioner of Correction of the State of Connecticut.

419 F. Supp. 1139

Paul MOYNAHAN v. John R. MANSON, Commissioner of Correction of the State of Connecticut.

Civil No. H-218.

United States District Court, D. Connecticut.

August 31, 1976.

COPYRIGHT MATERIAL OMITTED

Edward F. Hennessey, III, Robinson, Robinson & Cole, Hartford, Conn., for petitioner.

Jerrold H. Barnett, Asst. State's Atty., Woodbridge, Conn., for respondent.

MEMORANDUM OF DECISION

BLUMENFELD, District Judge.

The petitioner, Paul Moynahan, one-time Deputy Police Superintendent of the City of Waterbury, Connecticut, was convicted on February 4, 1970, after a jury trial, of the crime of receiving stolen goods.¹ The conviction was affirmed by the Connecticut Supreme Court. State v. Moynahan, 164 Conn. 560, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S.Ct. 291, 38 L.Ed.2d 219 (1973). He now seeks a writ of habeas corpus. Jurisdiction exists in this court pursuant to 28 U.S.C. §§ 2241, 2254.²

I. The Petitioner's Claims

The State accused the petitioner of having received a stolen twenty-two inch Motorola color television console from one Charles Vernale, known to the police in the Waterbury area as a dealer in stolen property. At trial, the prosecution was able to produce the affirmative evidence of only two witnesses; John Bishop, a convicted thief, who testified that the television set in question was one of many he had stolen in the course of several burglaries of appliance stores and that he helped Vernale deliver it to the petitioner's home;³ and Edward Miller, a Waterbury television repairman, who identified the stolen television set, which had been found abandoned in a field, as one which he had earlier repaired in the home of the petitioner. Vernale was also called to the stand by the prosecutor, but he invoked the fifth amendment.⁴ Finally, the State offered impeachment of the petitioner's denials.

Petitioner raises nine separate challenges to the conduct of his trial, which he alleges are of constitutional magnitude.⁵ Of these, three merit extended discussion.

II. The Right-to-Confrontation Claim

A. On Its Merits

The most damaging testimony⁶ against the petitioner was that given by the television repairman, Edward Miller. Mr. Miller testified that, although he had never previously met the petitioner, Mr. Moynahan had called him at home on a Sunday morning and had asked him to come to his home to repair his television set which was without sound.

Miller testified that he had gone to the petitioner's home and had discovered that the sound coil, which was enclosed in a box in the set's chassis, was broken. He further testified that he had repaired the set in the petitioner's home by opening the metal box, removing the coil, soldering the broken wire, covering the wire with electrical tape to hold it in place, and then reassembling the set, finishing the repair by soldering the metal box. For this work, he testified, the petitioner paid him $15.

He further testified that sometime later, after the State Police had found the set smashed and abandoned in a field, he had been able to identify it by the solder marks on the box, and that he had been present when the State Police opened the box and confirmed the presence of the electrical tape.

Petitioner claims that he was deprived of his sixth and fourteenth amendment rights to confront the witnesses against him by the refusal of the trial judge to allow him to impeach Miller's testimony by showing that Miller, himself, was a member of the stolen-goods ring⁷ along with John Bishop and Vernale, and therefore had a strong personal interest in falsifying his testimony. Petitioner claimed that Miller's involvement served both to lend credence to a theory that the petitioner was being "framed" by the two witnesses, and to make Miller vulnerable to pressure from the police and prosecutors to force him to alter or color his testimony.

Petitioner claims that Miller was in fact an outlet for stolen television sets, i.e., that he sold sets which he obtained from Vernale and that when repair work had to be done on sets which Vernale had sold, it was done by Miller. Petitioner attempted to present this evidence to the jury in two ways, through cross-examination of Miller himself, and through the testimony of two witnesses who would testify that they had purchased sets from Miller at unusually low prices, and that the sets had turned out to have been stolen. In both instances the trial judge rejected the offers of proof, ruling that the issues raised were collateral. While the judge allowed Miller to be examined to a limited extent concerning sales of sets which he had obtained from Vernale, in order to challenge his identification of the specific set he claimed to have repaired in the petitioner's home, he refused to allow the questioning to be expanded to show Miller's general business practices, and the obvious inference that they were dishonest and inferably in aid of a stolen radio and television ring.⁸

To the extent that the petitioner was not allowed to cross-examine Miller concerning his alleged criminal involvement, this case is governed by Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).⁹ In that decision, the Supreme Court held that it was constitutional error to deny a defendant the right to develop before the jury the fact that a witness had himself been a suspect in the crime alleged, and therefore had a peculiar vulnerability to police pressure. The Court stated:

"We cannot accept the Alaska Supreme Court's conclusion that the cross-examination that was permitted defense counsel was adequate to develop the issue of bias properly to the jury. While counsel was permitted to ask Green whether he was biased, counsel was unable to make a record from which to argue why Green might have been biased or otherwise lacked that degree of impartiality expected of a witness at trial. On the basis of the limited cross-examination that was permitted, the jury might well have thought that defense counsel was engaged in a speculative and baseless line of attack on the credibility of an apparently blameless witness or, as the prosecutor's objection put it, a `rehash' of prior cross-examination. On these facts it seems clear to us that to make any such inquiry effective, defense counsel should have been permitted to expose to the jury those facts from which jurors, as the sole triers of fact and credibility could appropriately draw inferences relating to the reliability of the witness."

415 U.S. at 318, 94 S.Ct. at 111.

Here, as in Davis, the petitioner was not allowed to cross-examine an important prosecution witness concerning his possible bias due to his involvement, or suspected involvement, in the same criminal scheme, and therefore was deprived of essential constitutional rights. And while Davis holds that, given these circumstances, no showing of prejudice is necessary, 415 U.S. at 318, 94 S.Ct. 1105, quoting Smith v. Illinois, 390 U.S. 129, 131, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968), it is clear that the State capitalized on the defense's inability to show Miller's involvement. In his rebuttal argument, the prosecutor was able to argue:

"Why shouldn't you believe Miller? I will tell you why you should believe him. He had no axe to grind in this case. . . .

"Why does he do a thing like that? Is there some kind of inference in the background here that the Connecticut State Police got him to do it? There has been no evidence of that, not a shred of evidence of that."

Tr. 1970-71, Exhibit 10 to Defendant's Return.¹⁰

While this denial of cross-examination was in itself error of constitutional magnitude, the error was compounded when the defendant was prohibited from calling two additional witnesses, Stevens and Gaspari, to testify concerning the circumstances under which they purchased televisions from Miller which later proved to have been stolen.

It is clear that, as a matter of evidence, when attempting to show bias or interest, as opposed to bad reputation, the examiner is not bound to accept the witness' answer, but is free to call additional witnesses for impeachment. McCormick, Evidence § 40 at 81 (2d ed. 1972). And while the right to call additional witnesses was not at issue in Davis, it does fit into the phrase "to expose to the jury those facts from which they . . . could appropriately draw inferences . . .," and the denial of this right was likewise a denial of the sixth amendment right of confrontation. Johnson v. Brewer, 521 F.2d 556 (8th Cir. 1975).

B. Waiver

Although the petitioner raised the issue of denial of cross-examination on appeal, the Connecticut Supreme Court refused to rule on it, holding that it had been abandoned.¹¹ Petitioner seeks to challenge that determination here.¹²

An examination of the transcript¹³ convinces me that the conclusion of the Connecticut Supreme Court is not fairly supported by the record. 28 U.S.C. § 2254(d)(8).

After an in-chambers discussion concerning the permissible scope of petitioner's cross-examination,¹⁴ the trial judge allowed the petitioner's attorney to question Miller in a "dry-run" out of the presence of the jury.¹⁵ The questions asked were to serve as an offer of proof in the event that the judge held the answers inadmissible. Objections were made by the prosecution to almost all of the questions. The judge sustained some objections but rejected others.¹⁶ At the end of the offer, the judge ruled that all the questions which he had allowed could be read to the jury. Both sides objected to this proposal, at which time the following colloquy occurred:

"MR. HENNESSEY: May this line of inquiry, your Honor, be considered as an offer of proof in the absence of the jury?

"THE COURT: Yes, and I would suggest that the best way of handling this would be in the presence of the jury, to have the reporter read the questions and the answers to the jury, and have the questions and answers appear before them rather than have you repeat them again.

"MR. HENNESSEY: Well,

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