State v. Clemente

• Court: Supreme Court of Connecticut
• Writing for the Court: Before HOUSE; LOISELLE; In this opinion HOUSE, C.J., and MacDONALD; COTTER; BOGDANSKI
• Citation: 353 A.2d 723,166 Conn. 501
• Parties: STATE of Connecticut v. Domenic CLEMENTE.
• Decision Date: 02 July 1974

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353 A.2d 723 166 Conn. 501 STATE of Connecticut
v.
Domenic CLEMENTE. Supreme Court of Connecticut. July 2, 1974.

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[166 Conn. 502] Charles G. Albom, New Haven, for appellant (defendant).

Jerrold H. Barnett, Asst. State's Atty., with whom were Ernest J. Diette, Jr., Asst. State's Atty., and, on the brief, Arnold Markle, State's Atty., for appellee (state).

Before [166 Conn. 501] HOUSE, C.J., and COTTER, LOISELLE, MacDONALD and BOGDANSKI, JJ.

[166 Conn. 502] LOISELLE, Associate Justice.

The defendant was charged with two counts of indecent assault and one count of conspiracy to commit rape, indecent assault, sodomy, robbery with violence and aggravated assault. The case was tried to the court with four companion cases which were tried to a jury. The court found the defendant guilty of the three charges and the defendant appealed.

The facts found by the court relevant to the assignments of error are as follows: ¹ The Slumlords, a motorcycle club with chapters in New Haven and Wallingford, held an outdoor party on the evening of April 12, 1969, near Tyler Mill Road in Wallingford. Forty to fifty-five members attended with their girlfriends or wives. Two generators [166 Conn. 503] provided power for electric lighting and a jukebox. A large bonfire, about six feet high and ten to fifteen feet across, gave off additional light.

The party had been observed by the two female complaining witnesses early in the evening as they drove along Tyler Mill Road. Later in the evening, the two girls met the male complaining witness. Thinking it was a 'hippy' party, the three of them drove to Tyler Mill Road in his station wagon. The young man parked his car on the side of Tyler Mill Road, about seventy-five feet or more, in a straight line, from the bonfire. Some of the floodlights in the trees were between the car and the bonfire. The lights and the fire provided sufficient illumination to allow a clear view from the location of the car of a person on the other side of the road. The young man left the two girls in the car and approached the bonfire. He realized that the group was a motorcycle club rather than a collection of 'hippies.' After staying there about five minutes, he returned to the car accompanied by two men who insisted that the two girls attend the party. The two men persisted and upon assurance that nothing would happen, all of them walked to the bonfire. [166 Conn. 504] Around the fire was a large number of people drinking, swearing

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and smoking marijuana. Almost all the men present had long hair and beards. Loud noises were made by bullets and firecrackers being thrown into the fire.

The girls were frightened by the appearance, acts and speech of the persons present. After staying at the bonfire for about five minutes and refusing offers of drinks and drugs, they conferred with their companion and agreed that they should leave and that he should follow them to the car about five munutes later so that it would not appear as if they were afraid. The girls returned to the car and locked the doors. About ten minutes later when their young companion returned, accompanied by a group of men, fifteen or twenty people were standing around the car. The tailgate of the station wagon had not been locked and members of the group entered through it, unlocking the car doors. The dome light in the forward portion of the car was ripped out but a second light over the rear deck could not be removed.

No useful purpose would be served by describing what happened in the two or three hours of depravities that followed. Under the threat of knifings and other physical violence, the two girls were the victims of repeated rape, indecent assaults, indecent acts and attempted sodomy. Their male companion was forced to attempt to cover the rear dome light with his hand when he was not also forced to commit indecent assaults on members of this group. He had had a knife in his side at one time and was also struck in the face, resulting in a black eye, a bloody nose and chipped teeth.

[166 Conn. 505] Sufficient light existed in the station wagon from various sources, the lights in the trees, the bonfire and the rear dome light, for the faces of the assailants to be discerned. The complaining witnesses could see clearly who was next to them. The defendant was one of the men who forced the girl in the front seat in the first part of the incident to perform an indecent assault. One of the first of these men had threatened to cut her face with a switchblade knife if she did not submit. The defendant also forced the second girl to commit an indecent assault. After the girls had switched positions in the car and during the time the defendant was in the front seat with the second girl, he asked her where she came from. When she replied 'Meriden,' he said he was also from Meriden and stated that his name was 'Dom.' During this conversation, the girl who was in the rear seat was directly behind the defendant. She also heard him say to the girl in the front seat that his name was 'Dom.' The girl in the front seat also remembered the defendant from his physical appearance and that he was thin with a thin face and had hair that was shorter than the other men.

The requests to the onlookers by the victims for help or to be left alone were ignored. When the group departed in a procession of unlighted vehicles, sometime after two o'clock in the morning of April 13, 1969, someone in the last car dropped the keys to the station wagon on the ground. The three victims then returned to Meriden.

In his appeal, the defendant has assigned as error the rulings of the trial court on his motions for discovery, the denial of the motion to suppress the [166 Conn. 506] in-court identification of the defendant, and the limitation of the scope of direct and cross-examination of witnesses.

The two female complaining witnesses each gave a number of statements to the police. The defendant claims that the court erred in refusing to order production of these statements under § 54-86b of the General Statutes after the girls had testified on direct examination. The state's attorney objected to this request on the ground that the statute was unconstitutional because it governed matters of procedure which by virtue of the state constitution are vested exclusively in the courts. This objection was sustained by the court

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and formed the basis for the court's denial of each subsequent motion by the defendant for discovery under § 54-86b. A statute cannot be ruled unconstitutional unless its invalidity is established beyond a reasonable doubt. Kellems v. Brown, 163 Conn. 478, 486, 313 A.2d 53; Patterson v. Dempsey, 152 Conn. 431, 445, 207 A.2d 739; Hartford Bridge Co. v. Union Ferry Co., 29 Conn. 210, 227. The sections of the Connecticut constitution under which this statute must be considered are as follows: 'The powers of the government shall be divided into three distinct departments and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another,' Conn.Const., art. 2; '(t)he judicial power of the state shall be vested in a supreme court, a superior court, and such lower courts as the general assembly shall, from time to time, ordain and establish. The powers and jurisdiction of these courts shall be defined by law.' Conn.Const., art. 5, § 1. These two sections [166 Conn. 507] of the 1965 constitution are virtually identical to the original provisions of the constitution of 1818. ² Violations of the separation of powers provision of the constitution may take various forms. Legislative interference with the judicial power may involve imposing nonjudicial duties on the court, a situation considered in Adams v. Rubinow, 157 Conn. 150, 251 A.2d 49, and Norwalk Street Ry. Co.'s Appeal, 69 Conn. 576, 37 A. 1080, or may take the form of an attempt of the legislature to exercise a power of the judiciary, e.g., State Bar Assn. v. Connecticut Bank & Trust Co., 145 Conn. 222, 140 A.2d 863, Heiberger v. Clark, 148 Conn. 177, 169 A.2d 652.

'(T)he General Assembly lacks any power to make rules of administration, practice or procedure which are binding on either the Supreme Court or the Superior Court.' State ex rel. Kelman v. Schaffer, 161 Conn. 522, 529, 290 A.2d 327, 331; Adams v. Rubinow, supra, 157 Conn. 156, 251 A.2d 49. The question of whether a statute is substantive or procedural has arisen in a variety of contexts. An analysis of § 54-86b under the separation of powers doctrine cannot blindly apply definitions of these two concepts which were developed for other purposes. Instead, the meaning of 'substance' and 'procedure' must be considered in the context of the separation of powers provision of the Connecticut constitution. 'The words 'substantive' and 'procedural' . . . are not talismanic. Merely calling a legal question by one [166 Conn. 508] or the other does not resolve it otherwise than as a purely authoritarian performance. But they have come to designate in a broad way large and distinctive legal domains within the greater one of the law and to mark, though often indistinctly or with overlapping limits, many divides between such regions. . . . (W)hether a particular situation or issue presents one aspect or the other depends upon how one looks at the matter. As form cannot always be separated from substance in a work of art, so adjective or remedial aspects cannot be parted entirely from substantive ones in these borderland regions.' Guaranty Trust Co. v. York, 326 U.S. 99, 115-116, 65 S.Ct. 1464, 1473, 89 L.Ed. 2079 (Rutledge, J., dissenting). Ultimately, every statute passed by the legislature will be reflected in court proceedings. While a test which relies upon the characterization of a statute as substantive or procedural will suffice where a statute neatly fits into one of these categories, the...