State v. Bethea

Citation355 A.2d 6,167 Conn. 80
PartiesSTATE of Connecticut v. Mathew BETHEA.
Decision Date06 August 1974
CourtSupreme Court of Connecticut

Howard A. Jacobs, New Haven, with whom, on the brief, was Ira B. Grudberg, New Haven, for appellant (defendant).

Ernest J. Diette, Jr., Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty., and Robert K. Walsh, Asst. State's Atty., for appellee (state).

Before HOUSE, C.J., and COTTER, SHAPIRO, LOISELLE and BOGDANSKI, JJ.

LOISELLE, Associate Justice.

In a trial to the court, the defendant was found guilty of two counts of the sale of narcotics in violation of § 19-480(a) of the General Statutes. The defendant has appealed, assigning error in the refusal of the court (MacDonald, J.) to grant a continuance at a pretrial hearing, and in the finding and conclusions of the trial court (Parskey, J.). In his brief, the defendant has pursued two lines of argument. He first contends that the refusal of the court to grant a continuance violated his rights to offer the testimony of witnesses and to due process of law. Second, he argues that the court erred in failing to inquire into the factual basis of the motion for a continuance, into the competency of the defendant to stand trial, or into the adequacy of the representation of the defendant by counsel. The argument in the defendant's brief does not refer to any matters concerning the trial. Consequently the assignments of error pertaining to the trial are considered abandoned. State v. Brown, 163 Conn. 52, 55, 301 A.2d 547.

The defendant contends that the denial of his request for a continuance infringed upon his right to offer the testimony of witnesses and violated his right to due process of law. The sixth-amendment right of a criminal defendant to have compulsory process for obtaining witnesses in his favor is applicable to state criminal proceedings under the due process clause of the fourteenth amendment; Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019; and included within its scope is the right to offer the testimony of witnesses. 1 The rights of compulsory process and due process of law may be violated by the denial of a continuance which prevents a defendant from presenting witnesses on his behalf. See MacKenna v. Ellis, 280 F.2d 592, 602-604 (5th Cir.), modified on other grounds, 289 F.2d 928, cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78; Paoni v. United States, 281 F. 801 (3d Cir.). 'The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.' Washington v. Texas, supra,388 U.S. 19, 87 S.Ct. 1923. Apart from constitutional considerations, the general rule is that an alibi in a criminal case is of so material a nature that if the absence of a witnesses who will testify to such a defense is properly presented a continuance should be granted. Annot., 41 A.L.R. 1530.

The right of a defendant to have a continuance is not, however, absolute and the circumstance of this case present countervailing considerations. Courts must vigilantly ensure that requests for continuances do not become mere vehicles for achieving delay which, in turn, may obstruct the orderly procedure in the courts or interfere with the fair administration of justice. See United States v. Rosenthal, 470 F.2d 837, 844 (2d Cir.), cert. denied, 412 U.S. 909, 93 S.Ct. 2298, 36 L.Ed.2d 975; United States v. Llanes, 374 F.2d 712, 717 (2d Cir.), cert. denied, 388 U.S. 917, 87 S.Ct. 2132, 18 L.Ed.2d 1358. In reviewing the denial of a continuance which had been requested to allow the defendant additional time to obtain counsel and to prepare a defense, the United States Supreme Court has observed: 'The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process . . .. Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377. Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.' Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 850, 11 L.Ed.2d 921.

No evidence was given or offered by either the state or the defendant at the time of the defendant's motion for a continuance prior to trial. The court made a finding and formulated its conclusions on the representations made at that time by counsel and on its examination of the file. 2

The defendant was arrested in November of 1970. He pleaded not guilty and claimed a trial to the jury on December 3, 1970. The case was assigned for March 5, 1971, but did not reach the court for trial until a few days before the end of the winter session. The trial did not begin at that time because its length might have exceeded the number of court days that remaining in the session. The state represented to defense counsel that there would be no further delay after the spring recess and the case was assigned for trial for the beginning of the week of April 18, 1971.

The case was assigned for a jury trial on Wednesday, April 21, 1971. Before trial on that day, the defendant moved for a continuance to the following Tuesday. That morning the defendant had advised defense counsel that he had received new information in a telephone conversation the previous evening with people in Hampton, Virginia, and that a specific person would testify as to his presence in Hampton, at or shortly after the crime was alleged to have occurred. Defense counsel reported this conversation to the court and made it the basis of the motion for a continuance. Neither the name of the individual in Virginia nor the source of this new knowledge was disclosed to the court. Defense counsel represented that the defendant had a limited degree of intelligence and that there was considerable difficulty in communications. Prior to that morning, defense counsel did not believe that the defendant had any alibi witnesses who could testify that the defendant was in Virginia at or around the time of the alleged crime. At no time prior to the morning the case was to commence did the defendant indicate to his attorney that he wanted a continuance to obtain a witness.

In view of the five-month interim between the defendant's arrest and the trial; the failure of the defendant to inform his attorney, at the time of the entry of his plea or any time thereafter, of the existance of a claimed alibi witness; and the belief that, if the defendant had knowledge of the possibility of such a witness, he would have informed his attorney to ensure that the witness would be contracted promptly and be available at the time of trial; the court concluded that the defendant's request for a continuance was for the purpose of delay. When the motion for a continuance was made, there was no explanation of the manner in which the witness' contact with the defendant would establish an alibi defense nor was there a showing of the probability of securing the absent witness by the following Tuesday. There was no showing that the defendant exercised good faith and diligence in attempting to find such witnesses within the five months that he was waiting for trial nor did the defendant claim that incarceration or any other cause prevented him from contacting probable witnesses. Under these circumstances it was reasonable for the court to conclude that the request for continuance was merely for the purpose of delay. The court did not abuse its discretion in refusing to continue the trial of the case. See McKinney v. Wainwright, 488 F.2d 28 (5th Cir.); State v. Manning, 162 Conn. 112, 121, 291 A.2d 750; State v McLanghlin, 126 Conn. 257, 260, 10 A.2d 758; 17 Am.Jur.2d, Continuance, §§ 29-32; cf. State v. DiBella, 157 Conn. 330, 344, 254 A.2d 477.

The defendant's motion for a continuance was based solely on new information he claimed he had obtained in his telephone conversation of the previous evening. At that time, no other ground was presented to the court. On appeal, the assignment of errors includes a claim that the court erred in failing to make an...

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