State v. Canady
| Decision Date | 01 June 1982 |
| Citation | 445 A.2d 895,187 Conn. 281 |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. Alan CANADY. |
William J. Sweeney, Jr., Hartford, with whom, on the brief, was Thomas P. Griffen, for appellant (defendant).
Paul E. Murray, Asst. State's Atty., with whom, on the brief, was Francis M. McDonald, State's Atty., for appellee (state).
Before SPEZIALE, C. J., and PETERS, HEALEY, ARMENTANO and SHEA, JJ.
The defendant, Alan Canady, was convicted by a jury of twelve of the bludgeoning murder of his eight-year-old son and of assault in the first degree for the shooting of his son's mother, with whom the defendant had lived. He has appealed from the judgment, claiming various errors in the rulings of the trial court, which we treat separately below. 1
This is a case of first impression regarding the availability and the use of a transcript of grand jury proceedings. The long-established secrecy of grand jury proceedings has been invaded to a limited extent by General Statutes § 54-45a 2 and by Practice Book § 609. 3 Because of two of the defendant's claims of error, we address the extent of the invasion authorized by these provisions. We today hold that the transcript that § 54-45a(a) makes available to a defendant is made available under the inherent supervisory power of the Superior Court and that the evidentiary uses of the transcript by the defendant are restricted to impeaching a witness, attacking the credibility of a witness or proving inconsistent statements of a witness.
The defendant ordered a copy of the transcript of the grand jury proceeding directly from the court reporter without permission of the trial court soon after he was indicted and before any further proceedings. After receipt of the transcript he used it to challenge the warrant for his arrest and the indictment. The issues raised by these challenges raise serious problems that we have not addressed before.
Prior to the enactment of General Statutes § 54-45a and the adoption of paragraph (5) of Practice Book § 609 there was no requirement that grand jury proceedings be recorded and a defendant had no right to have them recorded. State v. Cosgrove, 186 Conn. 476, 477-78, 442 A.2d 1320 (1982).
In apparent response to Chesney v. Robinson, supra, the legislature enacted § 54-45a which provides that grand jury proceedings be recorded and that the transcript of them A copy of the grand jury transcript was not intended to be automatically available to the state's attorney, the accused person, or the accused person's attorney. This is evident from the language that the transcript "shall be confidential and filed with the court."
The Superior Court has incorporated the practice of § 54-45a into its rules through the 1981 amendment to Practice Book § 609, which added "court reporter" to the list of persons who "may be present" at grand jury proceedings. See State v. Cosgrove, supra, 479 n.1, 442 A.2d 1320. Implicit in this adoption, made explicit today, is our recognition that access to grand jury transcripts is a matter within the general supervisory power of the court. The transcript must be filed with the court. Because it "shall be confidential," the court should seal it. The state's attorney and the defendant or the defendant's attorney, may not have access to the transcript outside of the general supervisory power of the court. They must apply to the court for an order that the court reporter provide a copy of the transcript. They may not, as has been the practice in some judicial districts, order the transcript directly from the court reporter. 4
Prior to the trial testimony of a witness who testified before the grand jury, the court in ruling on a motion for release of a grand jury transcript may exercise its discretion and impose such conditions on the release and use of the transcript as are consistent with General Statutes § 54-45a and the rules of the court. Some considerations that may be relevant to its ruling are these: If recalcitrance or fear of reprisal on the part of witnesses is a concern, the court may deny the motion or restrict the extent of the transcript released. Not to accommodate these concerns might undermine Practice Book § 609(4), which permits a defendant to be present before a grand jury only in the discretion of the court. If the court denies a request by a defendant to be present, the point of doing so may be lost if the excluded defendant can still buy a copy of the transcript of the grand jury testimony of a trial witness prior to that witness' testimony at trial. Also, if a defendant has been permitted to be present before the grand jury, no purpose would seem to be served by denying a defendant's request for a transcript of the proceedings he observed.
Section 54-45a expressly limits the evidentiary uses of grand jury transcripts. Part (b) of the statute provides: See Chesney v. Robinson, supra; State v. Coffee, 56 Conn. 399, 412, 16 A. 151 (1888); State v. Fasset, 16 Conn. 457, 467 (1844). The defendant seeks to use the grand jury transcript in ways not authorized by law. Where the traditional secrecy of grand jury proceedings is well entrenched in the common law--"older than our Nation itself," Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399, 79 S.Ct. 1237, 1240, 3 L.Ed.2d 1323 (1959)--any change in that law must be strictly construed. Because the defendant's use of the grand jury transcript is unauthorized, he may not prevail on claims of error that depend on it.
The defendant claims error in the trial court's denial of his motion to dismiss the information and the denial of a hearing on said motion. The defendant challenged the warrant for his arrest for assault as unsupported by probable cause. He claims that the statement in the affidavit, "she [the victim] stated that the assailant had a ski type mask on," conflicted with testimony of the victim before the grand jury that the assailant did not have a ski type mask on, and referred to a specific page of the grand jury transcript. Because this evidentiary use does not fall within the evidentiary uses authorized by law, the defendant may not use the grand jury transcript to challenge the warrant for his arrest. 5 The court did not err in its ruling concerning the arrest warrant.
For the first time on appeal, the defendant claims that an alternate grand juror, in asking a question of a witness at the grand jury proceeding, violated the stricture of General Statutes § 54-45(a) 6 against an alternate grand juror's counseling or conferring with the regular grand jurors; the indictment, the defendant claims, was therefore constitutionally defective.
Because this claim of the defendant depends upon the unauthorized use of the grand jury transcript, it is improper; therefore we do not address it. 7
The defendant claims the court erred in denying his motion that counsel be allowed to be present at the grand jury proceeding. He contends that a grand jury proceeding is a critical stage of a prosecution and that he, therefore, had a constitutional right to counsel, or, alternatively, that the court abused its discretion in not allowing counsel to be present.
It is well established that an accused person has no constitutional right to the presence of counsel before a grand jury. State...
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State v. Morrill
...because it must be supported by unauthorized use of the grand jury transcript. State v. Couture, supra, 554-55; State v. Canady, 187 Conn. 281, 287, 445 A.2d 895 (1982). "[A]n indictment, 'fair upon its face,' and returned by a 'properly constituted grand jury,' conclusively determines the ......
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