Smith v. State

• Decision Date: 20 April 1954
• Citation: 141 Conn. 202,104 A.2d 761
• Court: Connecticut Supreme Court
• Parties: SMITH v. STATE. Supreme Court of Errors of Connecticut

Page 761

104 A.2d 761

141 Conn. 202

SMITH v. STATE.

Supreme Court of Errors of Connecticut.

April 20, 1954.

Joseph G. Shapiro, Bridgeport, with whom were Melvin M. Dichter, Stamford, and Milton H. Belinkie, Bridgeport, for appellant (plaintiff).

Lorin W. Willis, State's Attorney, Bridgeport, for appellee (state).

Before INGLIS, C. J., and BALDWIN, WYNNE, DALY, and O'SULLIVAN, JJ.

INGLIS, Chief Justice.

The plaintiff was convicted of murder in the first degree for the killing of Grover S. Hart at the Indian Harbor Yacht Club in Greenwich in the early morning of Saturday, July 23, 1949. Upon appeal that conviction was sustained. State v. Smith, 138 Conn. 196, 82 A.2d 816. Smith made application for a new trial on the ground of newly discovered evidence. The trial court rendered judgment denying the application and from that judgment this appeal has been taken.

The evidence produced on the trial of the case in which Smith was convicted left no doubt that Hart, the night watchman at the Indian Harbor Yacht Club, had been killed in the perpetration of a robbery at the club. The bullet which caused his death was from a .22 caliber Smith and Wesson revolver. Another bullet and four cartridge cases found on the premises came from a .22 caliber Colt automatic pistol, and this indicated that at least two persons were involved in the crime. George F. Lowden had pleaded guilty to murder in the second degree in connection with the killing.

Smith's connection with the crime was proved by circumstantial evidence, which may be summarized as follows: At about half past one in the morning of Sunday, July 24, 1949, a gray Cadillac automobile, parked outside the Hollywood Cafe in Brewster, New York, was noticed by New York police. One man was seated in the car and another was standing beside it. Before the police reached the car the two men vanished. Shortly before that, Smith had been seen in the Hollywood Cafe by the proprietor. In the car was found the Colt automatic pistol from which the cartridge cases found at the scene of the crime had been discharged, a hat, the property of the manager of the Indian Harbor Yacht Club, and six neckties, several small pieces of jewelry and two tie clasps, all of which had been taken from the club. All of this indicated that the car was one which had been used in the perpetration of the murder. The car was peculiar in that the cover of the trunk was tied down by a rope. That Smith had been in possession of the car was proved not only by the fact that he had been seen in the Hollywood Cafe while the car was parked there but also by the fact that a shirt which belonged either to Smith or some member of his family was found in the car and by the testimony of at least three persons that they had seen Smith driving either that automobile or one that looked like it earlier in the month of July. One of these witnesses, Edith Springer, has since attempted to repudiate her testimony. On the strength of her repudiation a new trial was sought, but the trial court in that case found that her recantation was not credible and denied the new trial. That judgment was affirmed on appeal. Smith v. State, 139 Conn. 249, 93 A.2d 296.

Other evidence against Smith produced on his trial was his guilty conduct at the time he was arrested on July 28. He was found concealed in the woods at the Wilton reservoir. He gave a fictitious name, denied that he was Francis Smith, falsely claimed that he was a member of a camping party in the neighborhood, and had in his possession a bottle of hair dye. Smith himself testified at his trial. He denied that he had any connection with the Cadillac car found at Brewster, although he did admit he had been driving a different model of a Cadillac provided for him by a gambler by whom he was employed. He attempted to avoid the effect of his conduct at the time of his arrest by testifying that he thought the police were after him for some violation of his parole from the Connecticut state prison.

The claimed newly discovered evidence upon which the present application for a new trial is based is that set forth in a written statement and in a deposition made by David Blumetti, now a prisoner in Kilby prison, Montgomery, Alabama. The gist of this statement and deposition is that it was Blumetti and not Smith who was associated with Lowden in the perpetration of the murder. His story is that he and Smith spent most of the day of Friday, July 22, 1949, riding around in the gray Cadillac, which Smith had, discussing where they could find a place to 'rob.' They concluded that they would look for a place after dark. They met again after supper time, but then Smith said he did not want to go through with any robbery. Accordingly, Smith loaned Blumetti the car and got out of it in the center of Stamford. At a little after 5 o'clock Blumetti met Lowden, who said he wanted to pick up some money. They drove to Danbury and into New York state but finally decided on the Indian Harbor Yacht Club. They arrived there at about 2 o'clock in the morning and finally effected an entrance. Blumetti made a noise by throwing an ash tray on the floor. Soon they heard steps and a man came through a door. Blumetti jumped in front of him. '* * * I jumped in front of him told him to put his hands up, he jumped, I didn't know what was happening. I started, I shot and Frankie shot from behind me. The man started to holler. All we did then, we both turned around and run out and run right out through the back this time. * * * We got in the car and left.' Blumetti accounted for his reference to 'Frankie' in the above quotation by stating that he meant George Francis Lowden rather than Francis C. Smith.

As Blumetti's story goes on, the two drove back to Stamford. Blumetti let 'Frankie' out and then he slept in the car outside the town until 9 or 10 o'clock in the morning. He met 'Georgie' about 4 o'clock in the afternoon and they then agreed to go out again that night. He picked Lowden up after supper. They drove around and finally arrived at the Hollywood Cafe. They were inside that place for a while, then went out to the car and were making plans to rob the place when they saw the police. They became alarmed and ran away. Other details of Blumetti's story and other facts connected therewith which the court could reasonably have found will be recited later in the opinion.

The trial court concluded that no injustice was done Smith on the former trial, that due diligence in an effort to obtain the present evidence for use at that time was not proven, that the credible evidence connecting Smith with the murder was strengthened rather than weakened by Blumetti's deposition, that, in so far as Blumetti attempted to exonerate Smith, his testimony was unworthy of credit, and that there was no reasonable ground for believing that on a new trial, if one were to be granted, a jury would bring in a different or more favorable verdict. Upon argument before us, the state's attorney stated that he does not now take the position that there had been a lack of due diligence in failing to obtain the evidence of Blumetti at the former trial. It is quite clear from the record that although Blumetti was available as a witness at the former trial, the defendant's counsel could not then by due diligence have become aware that he would testify as he now has. There was no inkling at that time that Blumetti would testify that it was he and not Smith who was implicated. He could hardly be expected to make such a startling disclosure. The trial court was not warranted in concluding that due diligence on the part of the defendant would have produced such evidence on the former trial.

Whether a new trial on the ground of newly discovered evidence is to be granted rests in the sound legal discretion of the trial court, and upon appeal the ultimate question is whether that discretion has been abused. Smith v. State, 139 Conn. 249, 251, 93 A.2d 296; Link v. State, 114 Conn. 102, 107, 157 A. 867; Burns v. State, 84 Conn. 518, 521, 80 A. 712. The test to be applied in the trial court is whether the newly discovered evidence indicates that an injustice was done on the former trial and whether it is probable that on a new trial a different result would be reached. Krooner v. State, 137 Conn. 58, 67, 75 A.2d 51; Gonirenki v. American Steel & Wire Co., 106 Conn. 1, 12, 137 A. 26. Accordingly, the question before us on this appeal is whether the trial court's conclusions that no injustice had been done on the former trial and that it was improbable that Blumetti's testimony would change the result on a new trial were so unreasonable that they constituted an abuse of discretion. The decision of this question turns upon the correctness of the trial court's other conclusion, that Blumetti's present story is utterly unworthy of credence. If this conclusion is correct, it follows that no injustice was done on the earlier trial. It also follows, since it should be presumed that no jury will believe an incredible story, that the trial court would be warranted in concluding that a new trial would not produce a different verdict.

In considering the credibility of Blumetti's present story, the first question which naturally arises is why he should implicate himself in a first-degree murder unless in doing so he was telling the truth. The circumstances under which he told the story go a long way toward answering that question. He had been a lifelong friend of Smith. They had served prison terms together. When he first told the story, on February 10, 1953, he was serving a sentence of fifteen years in Kilby prison in Alabama on a conviction of armed robbery. Of that sentence, more than twelve years was yet to run. By reason of his having escaped and by reason of his having been involved in a prison riot, he had been kept in segregation since October, 1951, and he knew that he would continue in segregation until the warden saw fit to move...