State v. Burns

• Decision Date: 04 September 1984
• Parties: STATE of Connecticut v. Michael J. BURNS.
• Court: Connecticut Supreme Court

Page 1077

481 A.2d 1077

194 Conn. 469

STATE of Connecticut v. Michael J. BURNS.

Supreme Court of Connecticut.

Argued June 14, 1984.

Decided Sept. 4, 1984.

John R. Williams, New Haven, with whom, on the brief, was Elizabeth M. Inkster, Madison, for appellant (defendant).

Guy W. Wolf III, Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty., and Jill Niederhauser, legal intern, for appellee (State).

Before PETERS, PARSKEY, SHEA, GRILLO and BIELUCH, JJ.

GRILLO, Associate Justice.

The defendant was charged with the murder of Paul Anderson following the return by the grand jury of a true bill of indictment on March 12, 1980. A prior grand jury, on March 5, 1980, after hearing the testimony of two witnesses, including that of Dennis DeLoughery, was discharged because one of the jurors disqualified himself and no alternate jurors were in attendance.

On April 14, 1980, the defendant moved that he be provided with a transcript of the testimony of Dennis DeLoughery taken at the first grand jury proceeding, as well as a complete transcript of the proceedings before the indicting grand jury. The court, Ment, J., denied the motion as to the first grand jury proceeding. ¹ 1] The defendant was furnished a transcript of the testimony before the indicting grand jury.

On January 26, 1981, at the commencement of the trial, the defendant renewed his motion for discovery of the March 5, 1980 transcript. He argued that "we [defense counsel] are making the representation here that there is information in that transcript which could be used by the defense at trial, either to impeach the testimony of a witness or to otherwise attack his credibility in showing inconsistency in his statements." This motion was denied.

At the trial, following the direct examination of the prosecution witness DeLoughery, the defendant renewed his motion for the March 5 transcript, citing § 752 of the Practice Book. ² The court again denied the motion, noting that "[t]his [the transcript of the March 5 hearing] is not something that is in the possession of the State, something that the State was able to get from some witness who made a statement which is in the State's Attorney's office."

On cross-examination, counsel for the defendant questioned DeLoughery concerning the March 5 hearing. When asked whether he had told the truth at that hearing, the witness replied that he had. No further attempt was made by counsel to examine the witness concerning any statements he made before the March 5 grand jury.

On appeal following his conviction of murder, the defendant assigns as error: (1) the denial of his motions seeking access to the earlier testimony of the prosecution witness DeLoughery, (2) the exclusion of evidence demonstrating that identification witnesses for the prosecution had been coached, and (3) the failure to exclude the alibi rebuttal testimony of a state's witness not disclosed to the defendant. We find no error.

In support of his first claimed error, the defendant argues that the trial court failed to comply with General Statutes § 54-45a ³ which he claims affords a clear legal right to a transcript of testimony at the March 5 hearing. We disagree.

The meaning of the words used by the legislature in § 54-45a is clear: "Access to the transcript shall be available only to the prosecutorial official or any person accused of a crime as a result of the grand jury investigation...." (Emphasis added.) The terms of § 54-45a do not provide for access to the transcript of an aborted grand jury hearing. Since the meaning of this statute is plain and its language unambiguous, we refuse to adopt a construction not clearly stated by the legislature in the statute. See Connecticut State Board of Labor Relations v. Board of Education, 177 Conn. 68, 73, 411 A.2d 28 (1979).

Prior to the passage of § 54-45a, moreover, the law was clear that a defendant indicted by a grand jury had no absolute right to inspect the testimony taken before it. The matter was wholly within the discretion of the trial court, to be exercised only for strong reasons. See State v. Hayes, 127 Conn. 543, 580, 18 A.2d 895 (1941). The passage of § 54-45a, while opening the door of the grand jury hearing in a limited way for designated purposes, did not deprive the court of its general supervisory power over the release of grand jury testimony. In the absence of a controlling statute, whether to divulge grand jury evidence is still a matter falling within the exercise of the court's discretion. See State v. Canady, 187 Conn. 281, 285, 445 A.2d 895 (1982). ⁴

At the pretrial hearings, the defendant's counsel had the benefit of the defendant's knowledge concerning DeLoughery's testimony at the March 5 hearing, since the defendant was present at those proceedings. No argument, however, was made nor evidence presented indicating a prior inconsistent statement. Moreover, at trial, counsel for the defendant cross-examined and recross-examined DeLoughery at length, affording the defendant a golden opportunity to present evidence of inconsistency in the testimony of the witness. Yet, other than an innocuous inquiry as to whether the witness had told the truth at the March 5 hearing, counsel for the defendant did not seek to lay a foundation for the introduction of an inconsistent statement by DeLoughery. See State v. Saia, 172 Conn. 37, 46, 372 A.2d 144 (1976). The nature of the claimed inconsistency never having been proffered to the court, there is no support in the record for the defendant's contention.

Little need be said relative to the defendant's claim that the refusal of the court to release the transcript was a denial of due process in violation of Practice Book § 752. The court's observation that there existed nothing in the possession of the state to which the defendant could have access decimates this argument. We recognize the Brady rule which imposes a constitutional duty upon a prosecutor to disclose exculpatory evidence which is known to the prosecution but unknown to the defense. See Brady v. Maryland, 373 U.S. 83, 87-88, 83 S.Ct. 1194, 1196-1197, 10 L.Ed.2d 215 (1963). Here, however, there is no showing nor could there be a showing that the state had the transcript or had access to it. Furthermore, by making this argument in Brady terms, the defendant limited his request to the production of materials in the possession of the state, and should not now be permitted to make a different claim about the independent duty of the court to order disclosure on other grounds. Finally, it was the defendant, who had been present at the aborted hearing, who had the better opportunity to know the evidence that was revealed at that hearing. See Henson v. United States, 399 A.2d 16 (D.C.App.), cert. denied, 444 U.S. 848, 100 S.Ct. 96, 62 L.Ed.2d 62 (1979). Accordingly, we find no abuse of the trial court's discretion to release the transcript of the March 5 hearing.

Equally without merit is the defendant's second assignment of error based on the court's exclusion of evidence which the defendant claims would have demonstrated that identification witnesses who testified for the prosecution were coached prior to giving testimony. We note that the defendant's brief fails to observe the procedure required by Practice Book § 3060F(c)(3). ⁵ While this omission could be fatal to a consideration of the error alleged; State v. Tinsley, 181 Conn. 388, 400-401, 435 A.2d 1002 (1980); we reluctantly excuse this noncompliance. See State v. McDowell, 179 Conn. 121, 127 n. 5, 425 A.2d 935 (1979).

At trial, Dennis DeLoughery, Steven Tarquino, Mark Cunha, and Thomas DeLoughery all positively identified the defendant as the one who was responsible for stabbing Anderson in the left side of the head on January 25, 1980. After the prosecution rested, the defendant, in the absence of the jury, made an extensive offer of proof tending to impeach the identification testimony of the prosecution witnesses. Andrew Calandrelli was called as a witness by the defense. A friend of the defendant's family, he had been present in the courtroom when the second grand jury convened. Seated behind him at the proceedings were various prosecution witnesses including DeLoughery, Cunha, Steven Tarquino, and Gary Tarquino who was not a witness in this case. Calandrelli testified, still in the absence of the jury, that during the proceedings he saw Gary Tarquino point out the defendant and identify him to the others. After this offer of proof, the judge indicated that he would allow the testimony since identification of the accused was an issue in the case. He further indicated that he would disallow the use of hearsay testimony.

Upon the jury's return to the courtroom, the witness Calandrelli was permitted to testify, the only limitation being to the words of Gary Tarquino. When asked, "What did Gary Tarquino say?" an objection by the state was sustained by the court. Defense counsel argued that the statement was "admissible hearsay" and insisted on having "on the record what Gary Tarquino said so I can have the issue for appeal." The jury was excused; the witness stated that Tarquino said, "There he is. There is the (expletive deleted)," and that Tarquino was pointing to the defendant. Defense counsel again stated that it was "admissible hearsay" and indicated that the statement showed that the prosecution witnesses had to have the defendant pointed out to them. The court again sustained the state's objection and the defendant took an exception.

We first note that the derogatory words allegedly spoken by Tarquino could be interpreted as an expression of Tarquino's animus toward the defendant. Even if we assume the response is construed as the defendant suggests, however, defense counsel had the duty to state to the court the proper grounds for the admission of this evidence; Practice Book §§ 288, 3060F(c)(3); Acampora v. Ledewitz, 159 Conn. 377, 381, 269 A.2d 288 (1970); rather...