State v. Aillon

• Decision Date: 03 March 1987
• Citation: 521 A.2d 555,202 Conn. 385
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Guillermo AILLON.

Page 555

521 A.2d 555

202 Conn. 385

STATE of Connecticut v. Guillermo AILLON.

Supreme Court of Connecticut.

Argued Jan. 9, 1987.

Decided March 3, 1987.

John R. Williams, New Haven, for the appellant (defendant).

Julia DiCocco Dewey, Asst. State's Atty., with whom were Robert J. Devlin, Jr. Asst. State's Atty., and, on the brief, Arnold J. Markle, State's Atty., for the appellee (state).

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

PETERS, Chief Justice.

The principal issue in this case is the propriety of several trial court rulings arising out of the alleged unavailability of an expert witness for the defense. The defendant, Guillermo Aillon, was charged by three separate indictments with having committed three murders in violation of General Statutes § 53a-54. ¹ Two previous trials on these charges failed to result in a conclusive judgment of either conviction or acquittal. In the present third trial, a jury found him guilty on each of the indictments and the trial court, Hadden, J., sentenced him to three consecutive terms of imprisonment for 25 years to life. The defendant appeals from this judgment. We find no error.

The charges against the defendant arose out of three killings that occurred on August 14, 1972, when George Montano, his wife, Bernice Montano, and his daughter, Barbara Aillon, the defendant's estranged wife, were stabbed to death. The defendant was tried on these charges in 1973, and convicted by a jury, but he was granted a new trial because of an improper ex parte conversation between the trial court and a member of the jury. Aillon v. State, 173 Conn. 334, 339-40, 377 A.2d 1087 (1977). The defendant's second trial, in 1978, ended with a declaration of mistrial after the jury failed to return a verdict. Thereafter, the defendant filed a motion for a judgment of acquittal arguing, inter alia, that his retrial constituted double jeopardy. That claim was twice rejected by the trial court and by this court. State v. Aillon, 182 Conn. 124, 130-31 n. 5, 137-38, 438 A.2d 30 (1980), cert. denied, 449 U.S. 1090, 101 S.Ct. 883, 66 L.Ed.2d 817 (1981), and State v. Aillon, 189 Conn. 416, 421-22, 456 A.2d 279, cert. denied, 464 U.S. 837, 104 S.Ct. 124, 78 L.Ed.2d 122 (1983). It was raised again in the context of two habeas corpus petitions alleging ineffective assistance of counsel. Only recently we upheld the dismissals of those petitions. Aillon v. Manson, 201 Conn. 675, 683-84, 519 A.2d 35 (1986). The present appeal arises out of the defendant's convictions at his third jury trial which began on July 23, 1984.

The defendant's appeal raises three claims of error. He maintains that: (1) the trial court, Hadden, J., erred in precluding the defendant from offering the evidence of an expert hair analyst; (2) the trial court, Hadden, J., erred in permitting the state to introduce statements and other evidence allegedly obtained as a result of an unconstitutional search and seizure; and (3) the trial court, O'Sullivan, J., erred in refusing to dismiss the grand jury indictments despite a social connection between the grand jury foreman and the family of the victims. ² We find none of these claims of error persuasive.

I

We will consider first the defendant's two part claim relating to the expert witness whose testimony was allegedly both unavailable and essential to his defense. The defendant's primary claim is that the trial court violated his state and federal constitutional rights to due process by denying his motion to admit the transcript of that witness' prior testimony at his first trial into evidence in this trial. Secondarily, the defendant claims that once the trial court excluded this evidence, the court erred in denying the defendant's request for a continuance to enable him to obtain the services of a substitute expert witness.

At each of the defendant's three trials, one of the links between the defendant and the murders was hair that was found on the bloody bedsheets and blanket in George Montano's bedroom. The state produced evidence from two FBI experts that this hair belonged to the defendant. At his first trial, the defendant contradicted this evidence through the testimony of Wellon D. Collom, a Pennsylvania criminologist, who asserted that there was no similarity between the hair found on George Montano's bedding and the defendant's hair. At the second trial, when Collom was physically ill, he did not testify in person, but a transcript of his 1973 testimony was read to the jury. At the third trial, however, the defendant was not permitted to have this transcript read to the jury. It is this ruling that underlies the defendant's first claim of error.

At the defendant's third trial, the defendant offered the following basis for having the transcript of Collom's 1973 testimony introduced into evidence. Conceding that Collom was not physically or mentally unable to testify, defense counsel alleged that he had been advised that Collom was not presently willing to hold himself out as an expert on hair "because he doesn't do that any longer." Accordingly, since the witness was no longer prepared to come into court and testify as an expert, the defense claimed the applicability of the exception to the hearsay rule allowing former testimony into evidence when the witness is "unavailable." See, e.g., Fed.R.Evid. 804; Practice Book §§ 793, 803; ³ State v. DeFreitas, 179 Conn. 431, 441-45, 426 A.2d 799 (1980); State v. Parker, 161 Conn. 500, 501-502, 289 A.2d 894 (1971); State v. Weinrib, 140 Conn. 247, 251, 99 A.2d 145 (1953); C. McCormick, Evidence (3d Ed.1984) § 253. The state objected, contesting both the expertise and the unavailability of the witness. The trial court, after hearing argument, sustained the objection of the state, and the defendant duly excepted.

The defendant now renews his argument that, because the reputed lapse of Collom's expertise in hair analysis effectively rendered his testimony unavailable, and because a transcript of Collom's former testimony was reliable evidence, the trial court's exclusion of the former testimony violated his rights to due process of law under article first, § 8, of the Connecticut constitution and the fourteenth amendment to the United States constitution. ⁴ We disagree.

When a defendant offers evidence that is hearsay, his proffer runs counter to our well established preference for having a witness appear personally in court, under oath, so that his testimony can be subjected to cross-examination and his credibility adjudged in accordance with his demeanor. State v. DeFreitas, supra, 179 Conn. at 441, 445, 426 A.2d 799. This preference may be overcome by a showing that the proffered evidence is both reliable and necessary. State v. Sharpe, 195 Conn. 651, 664, 491 A.2d 345 (1985); State v. Frye, 182 Conn. 476, 480, 438 A.2d 735 (1980). Establishing a witness' unavailability because of physical or mental incapacity is one way of showing the necessity for the admission of hearsay evidence.

We recognize the force of the defendant's argument that there may well be circumstances in which constitutional considerations require expansion of the concept of unavailability, for the purposes of the hearsay exception, beyond the parameters of physical or mental incapacity. See generally State v. DeFreitas, supra, 179 Conn. at 442-43, 426 A.2d 799. Such an argument, however, is predicated on an assumption that the unavailability on which the defendant relies was factually demonstrated to the trial court. The record in the present case does not substantiate this assumption.

Even if we assume that, in this case, Collom's prior cross-examination establishes the reliability of his testimony; see State v. Sharpe, supra, 195 Conn. at 665, 491 A.2d 345; State v. Parker, supra, 161 Conn. at 504-505, 289 A.2d 894; C. McCormick, supra, § 255; it was still the defendant's burden to demonstrate its necessity by proving his unavailability. State v. Frye, supra, 182 Conn. at 480, 438 A.2d 735; C. McCormick, supra, § 253. Specifically, the defendant had to prove that Collom was in fact no longer prepared to testify as an expert. In the face of an objection by the state, the defendant did not satisfy his burden of proof through the unsupported representations of defense counsel that Collom was no longer qualified as an expert. So far as the record shows, the defendant made no attempt whatsoever to secure Collom's physical presence so that he might personally advise the court as to his present inability, or unwillingness, to testify as an expert hair analyst. "Due diligence to procure the attendance of the absent witness [is] ... an essential ... predicate of unavailability." State v. Weinrib, supra, 140 Conn. at 252, 99 A.2d 145; see also United States v. Amaya, 533 F.2d 188, 191 (5th Cir.1976), cert. denied, 429 U.S. 1101, 97 S.Ct. 1125, 51 L.Ed.2d 551 (1977); Carter-Wallace, Inc. v. Otte, 474 F.2d 529, 536 (2d Cir.1972), cert. denied, 412 U.S. 929, 93 S.Ct. 2753, 37 L.Ed.2d 156 (1973); Fed.R.Evid. 804(a)(5). The defendant's failure to produce Collom denied the trial court the opportunity to question him in person to discern whether he was truly "unavailable" or merely recalcitrant. See United States v. Zappola, 646 F.2d 48, 54 (2d Cir.1981). The defendant was obliged, at minimum, to make a good faith effort to procure Collom's attendance. Having failed to do so, he cannot now be heard to complain that the trial court's adverse evidentiary ruling constituted an abuse of its discretion. State v DeFreitas, supra, 179 Conn. at 445, 426 A.2d 799; State v. Jeustiniano, 172 Conn. 275, 285, 374 A.2d 209 (1977).

The defendant argues that it was unnecessary to attempt to procure Collom's presence at trial because the trial court accepted defense counsel's representations that Collom was unwilling to testify as an expert. The record shows, however, that the trial court several times indicated an unwillingness to declare...