State v. Castonguay

• Decision Date: 07 May 1991
• Docket Number: Nos. 13498,13515,s. 13498
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Gary G. CASTONGUAY.

Page 901

590 A.2d 901

218 Conn. 486

STATE of Connecticut v. Gary G. CASTONGUAY.

Nos. 13498, 13515.

Supreme Court of Connecticut.

Argued Feb. 19, 1991.

Decided May 7, 1991.

Lauren Weisfeld, Asst. Public Defender, with whom, on the brief, was G. Douglas Nash, Public Defender, for appellant in the first appeal, appellee in the second appeal (defendant).

Julia DiCocco Dewey, Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and James Thomas, Asst. State's Atty., for appellee in the first appeal, appellant in the second appeal (state).

Before PETERS, C.J., and COVELLO, HULL, BORDEN and SANTANIELLO, JJ.

PETERS, Chief Justice.

The principal issue in this appeal is whether a criminal defendant's prior testimony, voluntarily given at a trial that resulted in a conviction subsequently overturned on appeal, may properly be used as substantive evidence against the defendant in a subsequent retrial at which he elects not to testify. In a prior case, State v. Castonguay, 194 Conn. 416, 481 A.2d 56 (1984) (Castonguay I ), this court overturned the convictions of the defendant, Gary G. Castonguay, for capital felony, in violation of General Statutes §§ 53a-54a(a) and (c) and 53a-54b, and felony murder, in violation of General Statutes §§ 53a-54c and 53a-54a. The defendant had been charged in a two count indictment with those crimes for the November 21, 1977 shooting death of Plainville police officer Robert M. Holcomb, which occurred during the course of a burglary of the residence of Dennis Thompson (the Thompson burglary). A jury found the defendant guilty on both counts.

Following our reversal and order of a new trial in Castonguay I, the state retried the defendant for the same crimes. Although the defendant elected not to testify at his retrial, the state nonetheless introduced portions of the defendant's testimony from his cross-examination in his first trial. A jury again found the defendant guilty on both counts. The trial court imposed upon the defendant two consecutive sentences of twenty-five years to life. Pursuant to the defendant's motion, the trial court vacated one of the two sentences and rendered a new judgment. The defendant now appeals to this court from the judgment on the remaining conviction. ¹ We affirm the judgment of the trial court.

I

The defendant argues that the use of the transcript of his testimony from the first trial as substantive evidence at his retrial violated his privilege against compelled self-incrimination. The state counters that neither the federal nor the state constitution required the exclusion of that testimony under the circumstances of this case. We agree with the state.

The record reveals that the defendant elected in Castonguay I to take the stand in his own defense. He testified on direct examination that he neither participated in the Thompson burglary nor shot Holcomb. On cross-examination, however, the defendant admitted to: (1) having committed two other burglaries, the Crispino and Fennessey burglaries, that occurred prior to the Thompson burglary; (2) habitually owning pry bars of a size and shape used in the Fennessey burglary; and (3) grinding the serial numbers off the gun that had been stolen during the Fennessey burglary and later used to kill Holcomb. For reasons unrelated to the defendant's testimony, we overturned the defendant's conviction in that case and ordered a new trial.

At the defendant's retrial, the state sought to introduce as substantive evidence, in its case-in-chief, portions of the testimony elicited from the defendant during cross-examination in his first trial. These admissions were potentially damaging when linked to independent evidence that the state had offered to prove that the individual responsible for the Crispino and Fennessey burglaries had also committed the Thompson burglary and shot Holcomb.

The defendant moved, in limine, for exclusion of the admissions, claiming that their use would violate his privilege against self-incrimination. After argument, the trial court ruled that because the defendant's testimony in his first trial had not been compelled, the use of the admissions in the retrial did not violate that privilege. The defendant then sought to introduce from the first trial that portion of his direct examination testimony in which he had denied his participation in the Thompson burglary and in the shooting of Holcomb. The state objected, arguing that the testimony in question was unrelated to the admissions that the state sought to introduce and, therefore, inadmissible for the purpose of placing those admissions in context. Furthermore, because the defendant was available to testify, his offer could not be admitted into evidence under the prior testimony exception to the hearsay rule. The trial court accordingly denied the defendant's request.

On appeal, the defendant argues that: (1) the admission of any of his prior testimony at his retrial violated his privilege against compelled self-incrimination; (2) assuming the admissibility of the cross-examination testimony from Castonguay I, the trial court nonetheless erred in refusing also to admit portions of his direct testimony; and (3) the trial court incorrectly instructed the jury on the use of the admitted prior testimony. The defendant also raises eight additional claims of error. We consider each of these arguments in turn.

A

In Harrison v. United States, 392 U.S. 219, 222, 88 S.Ct. 2008, 2010, 20 L.Ed.2d 1047 (1968), the United States Supreme Court recognized the "general evidentiary rule that a defendant's testimony at a former trial is admissible in evidence against him in later proceedings." A considerable body of federal and state decisional law supports that rule. See, e.g., United States v. Mortensen, 860 F.2d 948, 951 (9th Cir.1988); United States v. Nell, 570 F.2d 1251, 1259 (5th Cir.1978); Edmonds v. United States, 273 F.2d 108, 112-13 (D.C.Cir.1959); Bloodsworth v. State, 76 Md.App. 23, 34, 543 A.2d 382 (1988); see also annot., 5 A.L.R.2d 1406, 1411 (1949). These cases establish that, unless a defendant's prior testimony was involuntary or compelled in a constitutional sense, the use of that testimony against the defendant in a subsequent trial does not violate his privilege against self-incrimination under the fifth and fourteenth amendments to the federal constitution.

The defendant concedes that his testimony at the first trial was not compelled, ² and that, under Harrison v. United States, supra, the state's use of portions of his testimony from Castonguay I did not violate federal constitutional law. Nonetheless, the defendant maintains that the use of his prior testimony was improper as a matter of state law. That argument comes to us in a variety of ways. The defendant first argues that any waiver of his privilege against compelled self-incrimination was limited to his first trial and that he did not independently waive his privilege at his retrial. Consequently, the state's use of his testimony at the retrial was improper. In a related argument, he contends that his first trial, having been reversed by this court in Castonguay I, was a nullity and, therefore, that his testimony therein could not be admitted against him at his retrial. Last, the defendant argues that the Connecticut constitution, article first, § 8, bars the use of his prior testimony at his retrial. For the reasons stated below, we find each of these arguments unpersuasive.

B

The defendant relies on this court's decision in State v. Grady, 153 Conn. 26, 34, 211 A.2d 674 (1965), for the proposition that a defendant's waiver of his privilege against self-incrimination is limited to the particular proceeding in which he volunteers testimony. The defendant argues that his retrial constituted a separate, distinct proceeding from his first trial and that, under Grady, his prior testimony was, therefore, inadmissible at the retrial. We are unpersuaded.

In Grady, the defendant was convicted under a two part information that charged him in the first part with several counts of breaking and entering and related crimes, and, in the second part, with being an "habitual criminal." Id., at 29, 211 A.2d 674. The defendant elected a jury trial on the first part of the information and took the stand in his own behalf. He objected on cross-examination, however, to certain questions, the answers to which he knew would be used against him in his trial on the second part. The trial court nonetheless ordered the defendant to answer the questions and, as anticipated, those answers were used against him in the subsequent trial.

The decision in Grady turned on this court's determination that the defendant's responses to the challenged questions had been, in some sense, unconstitutionally compelled, and, therefore, that their use in the subsequent trial violated the defendant's federal and state constitutional privileges against compelled self-incrimination. ³ Id., at 34, 211 A.2d 674. In sharp contrast to Grady, however, no element of unconstitutional compulsion is present in this case, as the defendant conceded, and as the discussion below illustrates.

Additionally, although there is language in Grady that even an accused's voluntary waiver of his privilege against self-incrimination is limited to the particular proceeding in which he testifies, that limitation applies only to the power of the state, in a separate, yet related proceeding, to recall the defendant to the stand and subject him to additional cross-examination. It does not limit the subsequent use of a transcript of the defendant's prior voluntary testimony. See, e.g., annot., 5 A.L.R.2d, supra, 1407; 8 J. Wigmore, Evidence (McNaughton Rev.1961) § 2276(4) and (5), pp. 470-72.

The defendant next argues that this court's reversal of his conviction in Castonguay I rendered his first trial a nullity. He directs our attention to State v. Darwin, 161 Conn. 413, 419, 288 A.2d 422 (19...