State v. Cocheo

• Decision Date: 13 February 1963
• Docket Number: No. CR,CR
• Citation: 24 Conn.Supp. 377,190 A.2d 916
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Parties: , 24 Conn.Supp. 377 STATE of Connecticut v. John F. COCHEO. 15-1686.

Page 916

190 A.2d 916

1 Conn.Cir.Ct. 610, 24 Conn.Supp. 377

STATE of Connecticut v. John F. COCHEO.

No. CR 15-1686.

Circuit Court of Connecticut, Appellate Division.

Argued Oct. 11, 1962.

Decided Feb. 13, 1963.

Robert Satter and Karl Fleischmann, Hartford, for appellant (defendant).

James R. Burton, Asst. Pros. Atty., for appellee (state).

KOSICKI, Judge.

The defendant was found guilty, after a trial to the jury, of wilful injury to personal property in violation of § 53-126 of the General Statutes. In his appeal, the defendant assigns a single error--that the court erred in denying the request of defendant's attorney, in the course of cross-examination of the state's witness, Edward Hawley, for permission to see a statement previously given by the witness to the police.

The facts may be summarized as follows: On August 13, 1961, Hawley, together with Jack Gasiorowski, stole an automobile in Newington and drove it to Beckley's quarry in Berlin, where they attempted to push the car off a cliff. Later, they enlisted the help of the defendant and two others, John Lyman and Anthony Palombizio. The latter drove the defendant's automobile, with the defendant as a passenger, to the scene of the crime. Hawley testified that the defendant was not only present but helped push the stolen car over the cliff. This testimony was contradicted by the defendant, who testified in his own behalf. Since Hawley's testimony was most damaging to the claim of the defendant of nonparticipation, defense counsel, in order to impeach Hawley's credibility, sought to obtain from the prosecutor a statement purported to have been given by Hawley to the police in the course of their investigation. No reason for the claim was stated, nor was it asserted that, in the belief of counsel, the statement contained declarations of the witness, previously made, which were inconsistent with his present testimony. The defendant demanded to see the alleged statement as a matter of right on the ground that a communication of the police department, in the possession of the prosecutor, was not privileged and the defendant was entitled to inspect it. The court denied the request. 'It is within the discretion of the court to grant or deny a defendant the right to inspect statements of the state's witnesses in the possession of the state's attorney. State v. Pambianchi, 139 Conn. 543, 548, 95 A.2d 695; State v. Zimnaruk, 128 Conn. 124, 127, 20 A.2d 613; State v. Hayes, 127 Conn. 543, 602, 18 A.2d 895. The defendant urges that we adopt the rule of Jencks v. United States, 353 U.S. 657, 668, 77 S.Ct. 1007, 1 L.Ed.2d 1103, to the effect that pretrial statements, after they have been shown to be relevant, are demandable as of right. The Supreme Court of the United States was divided on this issue. Shortly after the decision was announced, the Congress enacted the so-called Jencks Act, which severely limited the effect of the decision. 71 Stat. 595, 18 U.S.C. § 3500. The trial court in the case at bar followed the procedure laid down in our cases, and there was no abuse of discretion. We see no reason for changing our rule.' State v. Pikul, 150 Conn. 195, 202, 187 A.2d 442, 445; see State v. Roy, 23 Conn.Sup. 342, 183 A.2d 291. ¹

It has been variously stated that the rule denying examination of such prior statements of a state's witness to the defendant as a matter of right is based on public policy, the informer privilege or the attorney-client privilege. See 8 Wigmore, Evidence §§ 2374, 2375 (McNaughton Rev. 1961) and cases cited. Much of the defendant's argument in this case is devoted to a denial of any attorney-client privilege between the prosecutor and the police department and with that we agree. That point was perhaps inadvertently interposed during the trial and had no significance in the claim of the defendant to inspect the statement as a matter of right. Our rule is based on public policy and is derived not so much from any absolute privilege of nondisclosure as from a basic rule of evidence applicable not only in criminal prosecutions but also in civil cases. Thus, where a party in a civil action is required to produce a document in response to a subpoena duces tecum, the document so produced may not be examined by the opposing party as a matter of right. It is within the sound discretion of the court, after first inspecting the document, to permit or refuse examination by opposing counsel, and this discretion is not reviewable when properly exercised. 'In the exercise of this discretion, the paper should not be subjected to the inspection of opposing counsel unless it serves some legitimate purpose, such as...