State v. Altrui
| Decision Date | 17 August 1982 |
| Citation | 188 Conn. 161,448 A.2d 837 |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. Frank ALTRUI. STATE of Connecticut v. Charles DeMARTIN. |
Anthony J. Lasala and John H. Peck, Jr., with whom, on the brief, was Margaret J. Berthold, New Haven, for appellant (defendant Charles DeMartin).
John H. Durham, Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty., and Cathryn Krinitsky, law student intern, for appellee (state).
Before SPEZIALE, C. J., and PETERS, PARSKEY, ARMENTANO and SPONZO, JJ.
On July 21, 1979, the defendants, Charles DeMartin and Frank Altrui, were arrested in New Haven on a variety of criminal charges 1 stemming from an incident involving the attempted shooting of an individual on Main Street in East Haven. In a trial to the jury the defendants were convicted of all charges. In their appeal, the defendants claim: (1) that the court erred in permitting a key witness, Michael Solevo, to assert the privilege against self-incrimination; (2) that they were denied due process by the state's alleged suppression of a tape recording of Solevo's "recantation"; (3) that the court should have suppressed a shotgun and bullets found in the defendant Altrui's car; and (4) that the court erred in communicating ex parte with a juror.
The jury could have found the following facts: On the evening of July 21, 1979, Michael Solevo was working at his family's restaurant, "Antonio's," which is located on Main Street in East Haven. The Solevo family was "on [its] toes" while at work as a result of certain persons pressuring Solevo's At approximately 8:15 p. m., Solevo saw a black Cadillac Eldorado pull up and double-park in front of the restaurant. Solevo had a clear view of the passenger whom he immediately positively identified as the defendant DeMartin and a profile view of the driver whom he later positively identified as the defendant Altrui. Solevo had known both men for approximately ten years.
father for money. Aside from other related incidents,[188 Conn. 164] less than two weeks before the evening in question the front window of the Solevo home had been shot out following problems at the restaurant
The Cadillac, which was subsequently identified as belonging to Altrui, then pulled up and parked in front of a market located immediately adjacent to Antonio's. Solevo went out the side door of the lounge and watched as the passenger's door of the car opened and the passenger's leg came out. Solevo also saw what he thought might be a cane. He went back into the restaurant to ask his uncle if DeMartin had been walking with a cane. When the uncle responded that he knew nothing of DeMartin using a cane, Solevo said that DeMartin must then have a shotgun.
Solevo walked back outside through the side door of the lounge, and he observed one John Taddei, another codefendant, walking toward the Cadillac in which the defendants were sitting. Upon seeing Solevo standing near the corner of the building, Taddei pointed at him. At that point the driver's door of the Cadillac opened and the defendants emerged. Altrui had a shiny object in his hand which looked like a handgun and which was subsequently recovered from Altrui's Cadillac and proved to be an operable nickel-plated .38 caliber revolver. DeMartin was armed with a firearm which also was recovered from the Altrui vehicle and which proved to be a .12 gauge pump shotgun. DeMartin put the shotgun up to his shoulder, Solevo jumped back behind the corner of the building, and DeMartin fired, missing Solevo but hitting two youths who were some distance away.
East Haven police were dispatched to the restaurant at 8:23 p. m. After a preliminary review of the situation, a broadcast was issued for the police to be on the lookout for DeMartin, the black Cadillac Eldorado (including a partial plate number), and for the need to use caution in approaching the vehicle due to the suspected presence of a shotgun. At approximately 8:30 p. m., New Haven police located the car at GG's Lounge in the Fair Haven section of New Haven. DeMartin and Altrui were standing together next to the vehicle and no one else was near the car. The distance from Antonio's to GG's Lounge is approximately three miles and takes about eight minutes to drive.
East Haven police immediately proceeded to the lounge with Solevo who upon arrival immediately and positively identified DeMartin, Altrui, and Altrui's vehicle. The defendants were then arrested by the East Haven police. In addition, the Altrui vehicle was seized as evidence. As the vehicle was being prepared for towing, the driver's door was opened so that the front wheel drive linkage could be disengaged. When the door was opened, the interior lights went on and a .12 gauge shotgun and a .38 caliber nickel-plated revolver were observed in plain view on the front floor of the car. Later, when the car was being inventoried at the New Haven police department garage, a spent .12 gauge shotgun shell was discovered, as well as a live .38 caliber round.
The physical evidence developed during the investigation confirmed the fact that the shotgun recovered from the Altrui vehicle fired the shot at Solevo. Ballistics evidence connected the shotgun and the shotgun shell found in the Altrui car with a plastic shotgun shell wad and shotgun pellets discovered at the crime scene. The barrel of the shotgun provided a fingerprint of Altrui. Evidence also established that the shotgun and the revolver were operable and that neither DeMartin nor Altrui had a state or local permit.
During the prosecution's case-in-chief the state called Michael Solevo as its first witness.
Solevo testified on direct examination on December 6 and 7, 1979. After the state completed its direct examination of Solevo, the defendants moved for and were granted a recess in the trial so that they might better prepare their cross-examinations. The defendants cross-examined Solevo from December 11 through 13, 1979. The state asked only two questions on redirect examination and there was no recross. Solevo answered each and every question put to him by the prosecution and the defendants during the five separate days he was on the witness stand. On January 1, 1980, while the trial was in recess, Kent Kelsey, who had known all three codefendants for varying periods of time, met with Michael Solevo. From there Kelsey went to codefendant John Taddei's home to tell Taddei that Solevo wanted to change his testimony. Thereafter counsel for DeMartin called a representative from the state attorney's office and informed him that Solevo wished to talk to the defense. The prosecution contacted Solevo to find out what his intentions [188 Conn. 167] were and recorded this conversation. On January 2, 1980, the defense advised the court of the January 1, 1980 events and the state advised the court and counsel that it had spoken with Solevo. Counsel for DeMartin advised the court that he would be meeting with Solevo to talk with him about his alleged desire to change his testimony. On January 9, 1980, the state rested its case in chief
On January 17, 1980, Altrui called Solevo to testify. Solevo exercised his fifth amendment rights on twelve separate and specific questions. 2 Neither the state nor The critical question is whether in freely testifying both on direct and on cross-examination concerning the shooting incident Solevo waived his fifth amendment privilege against self-incrimination. A testimonial waiver is "not lightly to be inferred." Smith v. United States, 337 U.S. 137, 150, 69 S.Ct. 1000, 1007, 93 L.Ed. 1264 (1949). It should be inferred only in the most compelling circumstances. Klein v. Harris, 667 F.2d 274, 288 (2d Cir. 1981). Vague and uncertain evidence will not support a finding of waiver. Rogers v. United States, 340 U.S. 367, 377, 71 S.Ct. 438, 444, 95 L.Ed. 344 (Black, J., dissenting), reh. denied, 341 U.S. 912, 71 S.Ct. 619, 95 L.Ed. 1348 (1951). Where a witness who has testified fully is recalled to the witness stand under a claim that he has recanted his prior testimony and thereafter upon inquiry the witness claims the privilege, the trial court must conduct a two-prong inquiry to determine waiver. Waiver can be inferred only "if (1) the witness' prior statements have created a significant likelihood that the finder of fact will be left with and prone to rely on a distorted view of the truth, and (2) the witness had reason to know that his prior statements would be interpreted as a waiver of the fifth amendment's privilege against self-incrimination." Klein v. Harris, supra, 287.
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