State v. Biller

• Decision Date: 05 July 1983
• Citation: 190 Conn. 594,462 A.2d 987
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Meyer BILLER.

Page 987

462 A.2d 987

190 Conn. 594

STATE of Connecticut v. Meyer BILLER.

Supreme Court of Connecticut.

Argued March 8, 1983.

Decision Released July 5, 1983.

M. Mitchell Morse, New Haven, with whom, on brief, were Howard A. Jacobs and Karen F. Tross, New Haven, for appellant (defendant).

Julia D. Dewey, Asst. State's Atty., with whom, on brief, were Arnold Markle, State's Atty., and Mary M. Galvin, Asst. State's Atty., for appellee (state).

Before SPEZIALE, C.J., and PETERS, PARSKEY, SHEA and GRILLO, JJ. PARSKEY, Associate Justice.

The defendant, Meyer Biller, a licensed public adjuster and a notary public, was charged in a two-count information with falsely certifying two oaths in violation of General Statutes § 53-368. The case was tried to a jury and the defendant was found guilty on both counts. The court imposed consecutive eighteen month to three year sentences on each count for a total effective sentence of not less than three, nor more than six years; from which judgment the defendant has appealed.

Although the testimony was contradictory, the jury could reasonably have found the following facts: On April 13, 1975, and April 18, 1975, suspicious fires heavily damaged an apartment building located at 66-68 Norton Street in the city of New Haven. The property was an asset of the Bridgehaven Corporation, a closely held corporation controlled by Peter and Marilyn Cappola.

Peter Cappola, a key state's witness, had insured the property for approximately $580,000. Prior to the date of the fires, the Cappolas had retained the defendant for the purpose of settling claims with insurance companies. Also prior to the date of the April 13, 1975, fire Peter Cappola advised Biller that a fire would in fact occur. Cappola admitted setting the April 13, 1975, fire, but denied any involvement in the April 18, 1975, fire.

Biller proceeded to adjust claims arising out of both fires. He and his son, Lawrence Biller, prepared a detailed survey itemizing the damage and replacement costs. Before the expiration of the deadline for filing proofs of loss with the insurance company, Biller provided Peter Cappola with two proof of loss forms and instructed Cappola to take them home and get his wife's signature. Cappola took the forms home. There the Cappolas signed one blank form for each fire. These signed but otherwise blank forms were then submitted to the defendant's office. The Cappolas were unaware of the amounts claimed in the proofs of loss until after their submission to the insurer. Neither Peter nor Marilyn Cappola took an oath concerning the claims submitted.

Gerald Hale, the insurance company adjuster, received the proofs with a cover letter from the defendant and sent them on to the insurer. When Hale received the proof of loss statements, they were completely filled in with no blank lines remaining on the forms. The forms were signed by the defendant as a notary. The damages claimed were $538,180.58 for the April 13 fire and $123,206.60 for the April 18 fire. Hale, who had examined the Norton Street structure soon after both fires and on subsequent occasions, considered the claims excessive. It was Hale's opinion that $225,000.00 and $75,000.00 were proper figures for the first and second fires respectively. Additionally there was evidence that the defendant had inflated the figures by twenty percent and that he had charged a fee of ten percent of the settlement.

The defendant has pressed seven claims of error on appeal. At issue is (1) whether the trial court erred in admitting into evidence, for the purpose of rebuttal, statements allegedly compelled from the defendant by an investigative grand jury; (2) whether the oath on a proof of loss form is one required by law as is necessary to sustain a conviction pursuant to General Statutes § 53-368; (3) whether the defendant's right to counsel was violated when the police secretly recorded his conversations after he had been arrested and had retained counsel for other charges arising out of the same grand jury investigation; (4) whether testimony offered by the defendant concerning structural replacement cost was properly excluded from evidence; (5) whether evidence of the usual practice within the insurance industry regarding damage estimates offered by the defendant was properly excluded; (6) whether the court erred in restricting the defendant's cross-examination of two government witnesses and (7) whether the court properly charged the jury.

I

The defendant claims that the trial court erred in admitting into evidence, for the purpose of rebuttal, statements allegedly compelled from the defendant by an investigative grand jury.

In contradiction of the testimony of Marilyn and Peter Cappola, the defense offered the testimony of Florence Biller and Lawrence M. Biller (the defendant's wife and son), corroborated in part by other witnesses. Lawrence Biller testified that the Cappolas signed duplicate sets of proofs of loss at the defendant's office where the defendant notarized them. On cross-examination, Lawrence Biller was questioned about the ordinary course of business at Biller Associates concerning the filling out and execution of proofs of loss. He stated that they ordinarily filled out an original plus one--one for the insurance company and one for their records. He denied that it was the usual course to have them filled out, including the notary date, prior to signing and stated that the Cappola proofs had been filled out except for the date, before signing.

The state, in rebuttal, offered two excerpts ¹ from the defendant's testimony before Judge Levine sitting as a one man grand jury investigating incidents of arson in the New Haven area. The defendant had been subpoenaed to the grand jury to produce his corporate records. ² Biller appeared before the grand jury on nine different days between October 9, 1975, and March 12, 1976. When questioned about his own activities on behalf of the corporation, Biller asserted his constitutional privilege against self-incrimination. The grand juror ordered him to answer the questions because they involved actions which the defendant might have taken in a corporate capacity regardless of whether the answers would implicate the defendant personally. This ruling was established by Judge Levine on the defendant's first day of testimony before the grand jury and was reaffirmed on every subsequent day of testimony up to and including March 2, and March 4, when the defendant gave the statements that were later introduced at trial.

On appeal the defendant claims that the trial court erred in admitting statements allegedly compelled from the defendant by the investigative grand jury in violation of his fifth amendment rights. In his brief the defendant adopts a two stage analysis. First, the defendant asserts that the grand juror erred when he ordered Biller to give incriminating testimony about his own activities on behalf of the corporation; and second, the defendant argues that the trial court erred in finding that the admitted statements were not involuntary or compelled under the circumstances.

The state does not seriously challenge the first step of the defendant's analysis. The state contends, however, that the defendant waived his fifth amendment right by failing to raise the privilege prior to giving the statements that were later introduced at trial. The state does not concede that the grand juror's alleged error necessarily rendered the defendant's statements inadmissible at trial.

The privilege against compulsory self-incrimination extends to proceedings before a grand jury. State v. Kemp, 126 Conn. 60, 72, 9 A.2d 63 (1939). The federal fifth amendment standards were made applicable to the states in Malloy v. Hogan, 378 U.S. 1, 11, 84 S.Ct. 1489, 1495, 12 L.Ed.2d 653 (1964); State v. Simms, 170 Conn. 206, 209, 365 A.2d 821, cert. denied, 425 U.S. 954, 96 S.Ct. 1732, 48 L.Ed.2d 199 (1976). "[The fifth amendment] can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any disclosure that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used." Kastigar v. United States, 406 U.S. 441, 444-45, 92 S.Ct. 1653, 1656, 32 L.Ed.2d 212, reh. denied, 408 U.S. 931, 92 S.Ct. 2478, 33 L.Ed.2d 345 (1972).

That a corporation has no fifth amendment privilege is long established and is not disputed here. See Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652 (1906). Nor is it seriously questioned that the grand juror erred when he compelled the defendant to answer questions in his "corporate capacity" where the answers may have been personally incriminating to the defendant. The determinative law was enunciated by the United States Supreme Court in Curcio v. United States, 354 U.S. 118, 77 S.Ct. 1145, 1 L.Ed.2d 1225 (1957). ³ Therein, the court stated that "A custodian, by assuming the duties of his office, undertakes the obligation to produce the books of which he is custodian in response to a rightful exercise of the State's visitorial powers. But he cannot lawfully be compelled, in the absence of a grant of adequate immunity from prosecution, to condemn himself by his own oral testimony." Id. 354 U.S., 123-24, 77 S.Ct. 1149. The court, citing Wilson v. United States, 221 U.S. 361, 385, 31 S.Ct. 538, 546, 55 L.Ed. 771 (1911), further noted that " 'They [the custodians of corporate records] may decline to utter upon the witness stand a single self-criminating word. They may demand that any accusation against them individually be established without the aid of their oral testimony or the compulsory production by them of their private papers.' " Id. 354 U.S., 124, 77 S.Ct., 1149. (Bracketts in original.) The defendant as the president of Biller Associates had voluntarily assumed a duty which overrode his claim of privilege only with respect to the...