State v. Boucino, 12068

CourtSupreme Court of Connecticut
Writing for the CourtBefore PETERS; SANTANIELLO
Citation506 A.2d 125,199 Conn. 207
PartiesSTATE of Connecticut v. Steven BOUCINO.
Docket NumberNo. 12068,12068
Decision Date18 March 1986

Page 125

506 A.2d 125
199 Conn. 207
STATE of Connecticut
v.
Steven BOUCINO.
No. 12068.
Supreme Court of Connecticut.
Argued Dec. 4, 1985.
Decided March 18, 1986.

Page 127

[199 Conn. 208] Richard T. Meehan, Jr., with whom, on the brief, was James J. Ruane, Bridgeport, for appellant (defendant).

Elpedio Vitale, Deputy Asst. State's Atty., with whom were Julia D. Dewey, Asst. State's Atty., and, on the brief, Arnold Markle, State's Atty., and John Durham, Asst. State's Atty., for appellee (State).

Before [199 Conn. 207] PETERS, C.J., and SHEA, DANNEHY, SANTANIELLO and CALLAHAN, JJ.

[199 Conn. 208] SANTANIELLO, Associate Justice.

After a trial by jury, the defendant, Steven Boucino, was convicted of robbery in the first degree, in violation of General Statutes § 53a-134(a)(4), and larceny in the first degree, in violation of General Statutes § 53a-122(a)(2). He received a total effective sentence of not less than fifteen nor more than forty years. On appeal, he raises a number of claims: (1) that the trial court erred in excluding alibi testimony for failure to comply with Practice Book § 763; (2) that the trial court erred in failing to suppress in-court and out-of-court identifications of the defendant made by two witnesses to the robbery; (3) that his conviction of both larceny and robbery violated his constitutional right to be free from double jeopardy; (4) that his constitutional right of due process was violated by the failure of the trial court to have final arguments recorded; and (5) that the trial court

Page 128

erred in making various evidentiary rulings. We find no error.

The jury could reasonably have found that the defendant and an accomplice entered the City Trust Bank in Cheshire on May 22, 1980, at 11:30 a.m., and robbed it of approximately $9000. The defendant was armed with a shotgun and his companion with a pistol. Both men had nylon stockings covering their faces. The defendant stood near the entrance and issued commands[199 Conn. 209] to the people in the bank while his companion jumped over the counter and obtained the money. The entire robbery lasted approximately ten to twelve minutes. A number of bank employees were later able to describe the two men and one, Nina Mansourian, was able to select the defendant's photo from two arrays. A customer of the bank, Beatrice Ararat, who saw the defendant leaving the bank in his car, also identified him from two arrays. Other facts will be discussed as they become relevant to the specific claims raised.

I

The defendant's first claim is that the trial court erred in excluding proffered alibi testimony. He argues that Practice Book §§ 762 through 767, our so-called "notice of alibi" discovery rules, are unconstitutional in two respects. First, he claims that the Practice Book provisions are facially invalid because they infringe his fifth amendment privilege against self-incrimination and his right to due process. Second, he claims that the application of the Practice Book rules by the trial court violated his sixth amendment rights to compulsory process and to present a defense. 1 We disagree and find that, under the circumstances of this case, the trial court acted properly in excluding the alibi testimony.

Adopted on June 7, 1976, our state's notice of alibi discovery rules are similar in scope and wording to those used in the federal system and most states. See Fed.R.Crim.Proc., rule 12.1; see generally LaFave & Israel, Criminal Procedure (1985 Ed.) § 19.4(b). Practice Book § 763 provides that "[u]pon written demand filed by the prosecuting authority ... the [199 Conn. 210] defendant shall file within ten days, or at such other time as the judicial authority may direct, a written notice of his intention to offer a defense of alibi." The notice "shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom he intends to rely...." Practice Book § 763. If the defendant files notice, the state "within ten days after filing of the notice, but in no event less than ten days before the trial unless the judicial authority otherwise directs, shall file a written notice stating the names and addresses of the witnesses upon whom the state intends to rely to establish the defendant's presence at the scene of the alleged offense and any other witnesses to be relied upon to rebut testimony of any of the defendant's alibi witnesses." Practice Book § 764. Upon failure of the defendant or the state to comply with these provisions, the trial court "may exclude the testimony of any undisclosed witness...." Practice Book § 766. 2 "For good cause shown, the judicial authority may grant an exception to any of the requirements of [ss] 763 through 766." Practice Book § 767.

Page 129

The defendant in this case concedes that he failed to comply with Practice Book § 763 and that Practice Book § 766 authorizes the trial court to exclude the testimony of undisclosed alibi witnesses. 3 The state filed [199 Conn. 211] its demand for notice pursuant to § 763 on July 2, 1980. The trial court granted the state's demand on July 15, 1980. No response was filed by the defendant until August 19, 1982. It came ten days after the jury selection and seven days after the state had begun to present its case. On the date of the filing, the state objected to the late notice but discussion of the issue was postponed at the state's request until August 26. On that date, the state argued that the defendant should be precluded from calling the five alibi witnesses listed in the late notice because of the defendant's failure to comply with the state's demand. Defense counsel at trial admitted to the court that the filing did not comply with the Practice Book but explained that the defendant "did not want these people harrassed." No other reason for the delay was given. 4 No evidence was presented concerning any prejudice suffered by the state due to the delay and there was no request for a continuance to allow the state time to interview the witnesses. The court found that the defendant had "utterly failed to comply" with the applicable notice requirements and that he had not shown "good cause" why the court should grant an exception to the rule of exclusion.

[199 Conn. 212] The defendant claims that the Practice Book notice of alibi discovery rules are facially invalid because they restrict his privilege against self-incrimination and his right to due process. He does not question the well established rule that reciprocal alibi notice provisions are valid. See Wardius v. Oregon, 412 U.S. 470, 474-76, 93 S.Ct. 2208, 2211-13, 37 L.Ed.2d 82 (1973); Williams v. Florida, 399 U.S. 78, 82, 90 S.Ct. 1893, 1896, 26 L.Ed.2d 446 (1970); Mayer v. Moeykens, 494 F.2d 855, 859 (2d Cir.), cert. denied, 417 U.S. 926, 94 S.Ct. 2633, 41 L.Ed.2d 229 (1974); State v. Villafane, 171 Conn. 644, 666-68, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S.Ct. 1137, 51 L.Ed.2d 558 (1977). He claims instead that Connecticut's alibi provisions are not truly "reciprocal" because the time period for disclosure favors the state.

We do not agree that the notice provisions favor the state and we therefore reject the defendant's fifth amendment and due process claims. The defendant argues that "[t]he state is given the entire period of from 10 days after its demand, usually right after arraignment, until 10 days prior to trial to investigate defendant's alibi. It is not required to disclose its rebuttal to the alibi until 10 days prior to trial, and not at all if defendant has not complied with Section 762." The defendant misinterprets

Page 130

the rules. Under Practice Book § 764, the state is required to file notice of its rebuttal witnesses within ten days after the defendant files his notice of alibi. The Practice Book notice provisions treat each party with an even hand and adequately implement the mandate of Wardius v. Oregon, supra, 412 U.S. 475, 93 S.Ct. 2212, that "discovery ... be a two-way street." And while it is true that the state's duty to file is not triggered unless the defendant first files his notice; see State v. Burns, 194 Conn. 469, 477-79, 481 A.2d 1077 (1984); we fail to see how this unconstitutionally favors [199 Conn. 213] the state when the defendant can compel disclosure by his own timely action.

The defendant also claims that the sanction of exclusion imposed by the trial court under Practice Book § 766 violated his sixth amendment rights to compulsory process and to present a defense. The United States Supreme Court has yet to address the sixth amendment implications of a state's power to enforce its discovery rules against a criminal defendant by excluding probative, relevant evidence. See Williams v. Florida, supra, 399 U.S. 83 n. 14, 90 S.Ct. 1897 n. 14. Other courts have held that use of such sanctions is not, per se, a violation of the sixth amendment. See, e.g., State v. Dodd, 101 Ariz. 234, 237, 418 P.2d 571 (1966); State v. Roberts, 226 Kan. 740, 744, 602 P.2d 1355 (1979); Commonwealth v. Edgerly, 372 Mass. 337, 343, 361 N.E.2d 1289 (1977); State v. Smith, 88 N.M. 541, 543, 543 P.2d 834 (1975); State v. Flohr, 301 N.W.2d 367, 371 (N.D.1980); Commonwealth v. Vecchiolli, 208 Pa.Super. 483, 489, 224 A.2d 96 (1966); State ex rel. Simos v. Burke, 41 Wis.2d 129, 139-40, 163 N.W.2d 177 (1968). We agree that the right to compulsory process is not absolute. The sixth amendment "does not confer the right to present testimony free from the legitimate demands of the adversary system." United States v. Nobles, 422 U.S. 225, 241, 95 S.Ct. 2160, 2171, 45 L.Ed.2d 141 (1975). "The adversary system of trial is hardly an end in itself; it is not yet a poker game in which players enjoy an absolute right always to conceal their cards until played. We find ample room in that system [for a notice of alibi rule] which is designed to enhance the search for truth in the...

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89 practice notes
  • State v. Greco, No. 13864
    • United States
    • Supreme Court of Connecticut
    • 14 Agosto 1990
    ...crimes are the [216 Conn. 291] same offense. Multiple punishments are forbidden only if both conditions are met." ' State v. Boucino, 199 Conn. 207, 222, 506 A.2d 125 (1986)." State v. John, supra, 210 Conn. at 693, 557 A.2d 93. There is no dispute in this case that each of the three crimes......
  • State v. Miller
    • United States
    • Supreme Court of Connecticut
    • 10 Marzo 1987
    ...arrays is not presumptively suggestive. United [202 Conn. 474] States v. Bowie, 515 F.2d 3, 7-8 (7th Cir.1975); State v. Boucino, 199 Conn. 207, 219, 506 A.2d 125 (1986). When a witness first views a photograph in which an accused bears little resemblance to his appearance in another photog......
  • State v. Milner, No. 12980
    • United States
    • Supreme Court of Connecticut
    • 15 Marzo 1988
    ...a constitutional right of the defendant, the burden rests upon the defendant to establish the harmfulness of the error. State v. Boucino, 199 Conn. 207, 225, 506 A.2d 125 (1986); State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985); State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 At tr......
  • State v. Chicano, No. 13663
    • United States
    • Supreme Court of Connecticut
    • 25 Diciembre 1990
    ...whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met." ' State v. Boucino, 199 Conn. 207, 222, 506 A.2d 125 (1986)." State v. John, supra, 210 Conn. at 693, 557 A.2d 93. The traditional test for determining [216 Conn. 707] wheth......
  • Request a trial to view additional results
89 cases
  • State v. Greco, No. 13864
    • United States
    • Supreme Court of Connecticut
    • 14 Agosto 1990
    ...crimes are the [216 Conn. 291] same offense. Multiple punishments are forbidden only if both conditions are met." ' State v. Boucino, 199 Conn. 207, 222, 506 A.2d 125 (1986)." State v. John, supra, 210 Conn. at 693, 557 A.2d 93. There is no dispute in this case that each of the three crimes......
  • State v. Miller
    • United States
    • Supreme Court of Connecticut
    • 10 Marzo 1987
    ...arrays is not presumptively suggestive. United [202 Conn. 474] States v. Bowie, 515 F.2d 3, 7-8 (7th Cir.1975); State v. Boucino, 199 Conn. 207, 219, 506 A.2d 125 (1986). When a witness first views a photograph in which an accused bears little resemblance to his appearance in another photog......
  • State v. Milner, No. 12980
    • United States
    • Supreme Court of Connecticut
    • 15 Marzo 1988
    ...a constitutional right of the defendant, the burden rests upon the defendant to establish the harmfulness of the error. State v. Boucino, 199 Conn. 207, 225, 506 A.2d 125 (1986); State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985); State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 At tr......
  • State v. Chicano, No. 13663
    • United States
    • Supreme Court of Connecticut
    • 25 Diciembre 1990
    ...whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met." ' State v. Boucino, 199 Conn. 207, 222, 506 A.2d 125 (1986)." State v. John, supra, 210 Conn. at 693, 557 A.2d 93. The traditional test for determining [216 Conn. 707] wheth......
  • Request a trial to view additional results

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