State v. Annunziato

• Decision Date: 16 September 1975
• Citation: 169 Conn. 517,363 A.2d 1011
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Salvatore ANNUNZIATO.

Page 1011

363 A.2d 1011

169 Conn. 517

STATE of Connecticut v. Salvatore ANNUNZIATO.

Supreme Court of Connecticut.

Sept. 16, 1975.

Howard A. Jacobs, New Haven, with whom was Jean L. Welty, New Haven, for appellant (defendant).

William F. Gallagher, Sp. Asst. State's Atty., with whom, on the brief, was Arnold Markle, State's Atty., for appellee (state).

Before HOUSE, C.J., and COTTER, LOISELLE, LONGO and BARBER, JJ.

LOISELLE, Associate Justice.

The defendant was convicted, on a trial to the jury, of conspiracy to commit murder in violation of then General Statutes § 54-197 (now § 53a-48). The defendant's motion to set aside the verdict was denied by the trial court. The defendant has appealed from the judgment rendered on the verdict.

The defendant claims that the court committed error in denying his motions for a directed verdict and to set aside the verdict, in denying his motion to dismiss for want of jurisdiction over the person, in rulings on evidence, in failing to charge as requested, and in charging as it did.

The state's statement of facts ¹ includes the following: At about 9:30 p.m. on August 10, 1968, Edward Gould went to Chip's Lounge in the Fair Haven section of New Haven to pick up a prescription left there for him by a druggist. When he arrived a party was in progress; the defendant, also known as 'Midgie,' his son Francesco Annunziato, Richard Biondi, Bruno Pino and others were in attendance. Gould sat at the bar and had three to five drinks. He saw the defendant sit down with friends at a table at the other end of the bar, where Biondi approached the defendant and whispered with him for several minutes. Later in the evening at Chip's Lounge, Pino observed Biondi talking with the defendant. Immediately after talking with the defendant, Biondi approached Pino and asked him to take Biondi's girl friend, Regina, home because he, Biondi, had 'some business to do for 'Midgie." Biondi then went outside.

At about 12:30 a.m., Gould left Chip's Lounge and was met outside the front door by Biondi and Francesco Annunziato. He was asked to give them a ride up the street to Francesco's car. Gould agreed. He got into the driver's seat, Biondi got in the right front passenger's seat, and Francesco got in the back. Francesco instructed Gould to proceed to a corner and take a right, but Gould took a left instead. As he took the left turn Gould saw a gun in the rearview mirror. He jammed on the brakes, opened the door, jumped from the moving car and, as he jumped, felt something hit his body. He rolled on the ground, got up, ran across a parking lot to the rear of a gas station and finally found refuge in a house in the area.

A police detective went to the scene of the incident in the early morning of August 11, 1968, examined the car, which had jumped a curb, and found a bottle of medication prescribed to Gould in the car. Bullet holes and bullet fragments were found in the car, and it was determined that more than one gun was involved in the shooting. The detective then went to Gould's home, observed Gould with a shoulder wound and took him to the hospital, where a bullet fragment was removed from his body. On the night of the shooting, another officer observed Biondi, who was accompanied by Francesco Annunziato, at the hospital with a bullet wound in his left knee. Biondi was unwilling to make any statement to the police.

On the next day, August 11, Pino was in a restaurant where he saw the defendant with Francesco Annunziato and others. Pino heard the defendant, who was speaking in a loud voice and swearing, say, 'Frankie can't do nothing right.' Francesco did not respond to his father's statement.

In March, 1970, during a conversation between Gould and the defendant, Gould asked the defendant why he tried to kill him, and the defendant replied: 'I want to kill you because you killed my brother-in-law' Sonny Gondak. Gondak was killed by a hit-and-run driver in June of 1963, on State Street in New Haven, after alighting from a car driven by Gould. When Gould told the defendant about Gondak's death the next day, the defendant blamed Gould for the death.

Hostility developed between Gould and the defendant in July of 1968. Gould was associated with a group of men which included Edward Devlin. Devlin was the leader of this group, and Gould was Devlin's closest associate. The defendant was the leader of a group which included his son Francesco, Biondi, Pino and others. Prior to June of 1968, Devlin and the defendant were social friends and were seen together several times a week in Chip's Lounge. Their relationship terminated abruptly in the middle of June, and Devlin was not seen in Chip's Lounge after that. On two occasions after this, in June or July of 1968, Gould mentioned Devlin's name, and the defendant told Gould that he did not want to hear that name.

Francesco Annunziato and Biondi were the defendant's closest associates. When the defendant rode in his automobile, his son Francesco or Biondi would drive for him.

The evidence recited in the state's statement of facts which is annotated to the transcript, ² when viewed in the light most favorable to sustaining the jury's verdict, supports the court's action in denying the defendant's motions to direct a verdict and to set aside the verdict. State v. Saia, 167 Conn. 286, 287, 355 A.2d 88; State v. Romano,165 Conn. 239, 250, 332 A.2d 64; State v. Brathwaite, 164 Conn. 617, 619, 325 A.2d 284.

The defendant filed a timely motion to dismiss for want of jurisdiction over the person on the grounds that the judge issuing the bench warrant failed to find probable cause and that the state's attorney did not make the representations required by § 54-43 of the General Statutes. ³ The court denied the motion to dismiss.

The defendant argues that '(n)owhere did the judge indicate that he made a finding that probable cause existed' and that '(i)nstead of the State's Attorney representing that he had reasonable ground to believe that a crime had been committed in his jurisdiction, the State's Attorney merely accused the defendant of committing a crime.' The defendant claims that since neither the judge nor the state's attorney stated in writing that he made a judgment of probable cause, the arrest warrant was insufficient as a matter of law. Through the fourteenth amendment of the federal constitution, the constitutional safeguards embodied in the fourth amendment as to the issuance of warrants are obligatory on the states. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726. The fourth amendment provision that 'no Warrants shall issue, but upon probable cause, supported by Oath or affirmation' applies to arrest warrants as well as to search warrants; Giordenello v. United States, 357 U.S. 480, 485, 78 S.Ct. 1245, 1250, 2 L.Ed.2d 1503; State v. Licari, 153 Conn. 127, 132, 214 A.2d 900; and requires 'that a state's attorney applying for a bench warrant submit facts, supported by oath or affirmation, from which the judge or court can make an independent determination that probable cause exists for the issuance of the bench warrant under General Statutes § 54-43.' State v. Licari, supra, 153 Conn. 132, 214 A.2d 902. For an arrest warrant to satisfy the constitutional standard, the affidavits presented to the judge must contain a sufficient basis for finding that probable cause existed for his issuing the warrant after considering the facts alleged. State v. Saidel, 159 Conn. 96, 99, 267 A.2d 449; State v. DeNegris, 153 Conn. 5, 9, 212 A.2d 894; see Giordenello v. United States, supra, 486, 78 S.Ct. 1245. The record in this case discloses that the judge who issued the bench warrant had three affidavits before him. These affidavits, taken together, substantially state the facts outlined above and presented at the time of the trial. It is unquestioned that the information contained in these affidavits attached to the arrest warrant affords a sufficient basis for a finding of probable cause. The fact that the judge did not state his finding of probable cause in the body of the arrest warrant or that the state's attorney did not state in writing his belief that a crime had been committed did not render the arrest warrant invalid or contrary to constitutional requirements.

The defendant claims error in the court's refusal to allow his cross-examination of two witnesses, Pino and Judith Papero, concerning the pendency of criminal proceedings against them to which not guilty pleas had been entered, to show their interest and motive for testifying.

Although evidence of conviction where punishment may be more that a one-year term of imprisonment is admissible to affect credibility, evidence of arrest without conviction is not admissible to attack the credibility of a witness. State v. Moynahan, 164 Conn. 560, 600, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S.Ct. 291, 38 L.Ed.2d 219. The defense, however, had sought to cross-examine the two witnesses concerning their arrests for the purpose of showing bias, motive and interest. The right to cross-examine a witness for the purpose of attacking credibility on the ground of bias, motive and interest was clearly stated in State v. Luzzi, 147 Conn. 40, 46, 156 A.2d 505. In State v. Tropiano, 158 Conn. 412, 426, 262 A.2d 147, cert. denied, 398 U.S. 949, 90 S.Ct. 1866, 26 L.Ed.2d 288, it is indicated that evidence of the not guilty plea of a witness, the guilty plea, and his subsequent sentencing was admissible to show motive, interest and bias.

In the present case, both witnesses had been arrested, and charges were pending against them to which they had pleaded not guilty. That evidence was a circumstance which might show or tend to show an expectation or hope on the part of the witnesses for immunity or leniency in the disposition of their own cases. That being so, the defendant had a right to attempt to elicit that evidence. State v. Moynahan, supra, 601, 325 A.2d 199; 3 Wigmore, Evidence ...