State v. Cosgrove

• Decision Date: 16 March 1982
• Citation: 186 Conn. 476,442 A.2d 1320
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. William C. COSGROVE.

Page 1320

442 A.2d 1320

186 Conn. 476

STATE of Connecticut v. William C. COSGROVE.

Supreme Court of Connecticut.

Argued Jan. 13, 1982.

Decided March 16, 1982.

Charles D. Gill, Public Defender, with whom were John L. Carbonneau, Jr., Lakeville, and, on brief, Susan Leslie, legal intern, for appellant (defendant).

Carl J. Schuman, Asst. State's Atty., with whom, on brief, were Dennis A. Santore, State's Atty., Richard E. Maloney, Deputy Chief State's Atty., and Elizabeth Palmer, legal intern, for appellee (State).

Before SPEZIALE, C. J., and HEALEY, PARSKEY, ARMENTANO and SHEA, JJ.

SHEA, Associate Justice.

The jury found the defendant guilty of murdering Christopher Clark in violation of General Statutes § 53a-54a as charged in the indictment. In this appeal from the judgment rendered on the verdict the errors claimed are (1) the denial of the defendant's motion to transcribe the grand jury proceeding; (2) the denial of his motion for the presence and assistance of counsel at the hearing before the grand jury; (3) the portion of the charge to the jury stating that "every person is presumed to intend the natural and necessary consequences of his or her acts;" and (4) the failure of the trial judge to take appropriate steps to overcome the prejudice resulting from the state's tardy delivery of certain "exculpatory" material which had been requested before trial. We find no error.

The briefs contain no reference to the facts constituting the crime charged because the issues raised do not require their consideration. An affidavit submitted in support of a search and seizure warrant indicates that the defendant confessed to shooting the victim with a shotgun and that the body was found in a factory parking lot in Watertown.

I

Motions for the recordation and transcription of grand jury proceedings have been the subject of many decisions of this court uniformly finding no error in the denial of such requests. State v. Piskorski, 177 Conn. 677, 680, 419 A.2d 866 (1979); State v. Cobbs, 164 Conn. 402, 411-12, 324 A.2d 234, cert. denied, 414 U.S. 861, 94 S.Ct. 77, 38 L.Ed.2d 112 (1973); State v. Delgado, 161 Conn. 536, 539, 290 A.2d 338 (1971), remanded for resentencing, 408 U.S. 940, 92 S.Ct. 2879, 33 L.Ed.2d 764 (1972); State v. Vennard, 159 Conn. 385, 390, 270 A.2d 837 (1970), cert. denied, 400 U.S. 1011, 91 S.Ct. 576, 27 L.Ed.2d 625 (1971); see State v. Stepney, 181 Conn. 268, 280, 435 A.2d 701 (1980), cert. denied, 449 U.S. 1077, 101 S.Ct. 856, 66 L.Ed.2d 799 (1981). The federal courts also have recognized that there is no constitutional right to a transcript of such proceedings. United States v. Cramer, 447 F.2d 210, 213-14 (2d Cir. 1971), cert. denied, 404 U.S. 1024, 92 S.Ct. 680, 30 L.Ed.2d 674 (1972); Chesney v. Robinson, 403 F.Supp. 306, 310 n.9 (D.Conn.1975), aff'd, 538 F.2d 308 (2d Cir.), cert. denied, 429 U.S. 867, 97 S.Ct. 177, 50 L.Ed.2d 147 (1976). In Chesney the court held that the traditional shroud of secrecy accorded to grand jury proceedings must be lifted to permit cross-examination of a witness at trial, based upon his earlier contradictory testimony before the grand jury in order to implement the constitutional right of confrontation; see Davis v. Alaska, 415 U.S. 308, 317, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); but the court observed that recordation of the proceedings was not essential. Id.

The fact that the legislature enacted General Statutes § 54-45a, effective October 1, 1978, a date about four months after the grand jury returned the indictment in this case, does not indicate any error on the part of the presiding judge in adhering to our previous practice ¹ in denying the motion of the defendant. Although the statute had actually been passed, but was not signed by the governor, at the time of the motion, the legislature decided not to make it effective any earlier than the date selected and there is no reason for the court to have disregarded that choice.

II

The denial of the motion for the presence of counsel at the grand jury hearing was similarly in accordance with the position this court has consistently taken that there is no such right, constitutional or otherwise. State v. Piskorski, supra, 177 Conn. 681, 419 A.2d 866; State v. Cobbs, supra; State v. Delgado, supra, 161 Conn. 539, 290 A.2d 338; State v. Vennard, supra; State v. LaBreck, 159 Conn. 346, 347-48, 269 A.2d 74 (1970); State v. Stallings, 154 Conn. 272, 283, 224 A.2d 718 (1966); see Practice Book § 609. Much of the defendant's argument was responded to in Piskorski, where we considered whether to modify this view in the light of the extension of the right to counsel to a preliminary hearing of the kind deemed to be a "critical stage" of the Alabama criminal process in Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970). We continue to retain our view that our unique Connecticut grand jury procedure, which excludes both prosecuting and defense attorneys from participation in the hearing, is not a "critical stage" requiring the presence of counsel. State v. Piskorski, supra, 177 Conn. 681, 419 A.2d 866. In Cobbs v. Robinson, 528 F.2d 1331, 1338-39 (2d Cir. 1975), cert. denied, 424 U.S. 947, 96 S.Ct. 1419, 47 L.Ed.2d 354 (1976), where our grand jury procedure was thoroughly scrutinized at the federal circuit court level, a clear distinction was found from the Alabama preliminary hearing referred to in Coleman.

The only additional consideration advanced by the defendant is his limited mental capacity, claimed to be evidenced by his record as a student who had left school when he was sixteen years of age after completing two years of high school, because he was told he would not graduate. ² The defendant's comparative youth and lack of a full high school education hardly indicate mental deficiency. There is no suggestion in the record that the defendant suffered any disability of a mental nature which would have prompted the standard examination for competency to stand trial pursuant to General Statutes § 54-56d (formerly § 54-40). We have no occasion, therefore, to decide whether some modification of our rule excluding counsel from the grand jury hearing should be made where a substantial mental deficiency appears.

III

The claim of error based upon the inclusion in the charge to the petit jury of the statement, "(e)very person is presumed to intend the natural and necessary consequences of his ... acts," has been a familiar subject of consideration in this court since the decision of the Supreme Court of the United States in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), which pointed to the potential such an instruction may have for shifting the burden of proof to a defendant upon the issue of intent, an essential element for the charge of murder in this case. State v. Pina, 186 Conn. 261, 440 A.2d 967 (1982); State v. Stankowski, --- Conn. ---, 439 A.2d 918 (42 Conn.L.J., No. 46, pp. 5, 15), cert. denied, --- U.S. ----, 102 S.Ct. 596, 70 L.Ed.2d 588 (1981); State v. Brokaw, --- Conn. ---, 438 A.2d 815 (42 Conn.L.J., No. 31, pp. 9, 11) (1981); State v. Truppi, --- Conn. ---, 438 A.2d 712 (42 Conn.L.J., No. 25, pp. 1, 5-6) (1980), cert. denied, 451 U.S. 941, 101 S.Ct. 2024, 68 L.Ed.2d 329 (1981); State v. Nemeth, --- Conn. ---, 438 A.2d 120 (42 Conn.L.J., No. 23, pp. 3, 6) (1980); State v. Vasquez, --- Conn. ---, 438 A.2d 424 (42 Conn.L.J., No. 8, pp. 36, 38-40) (1980); State v. Maselli, 182 Conn. 66, 437 A.2d 836 (1980), cert. denied, 449 U.S. 1083, 101 S.Ct. 868, 66 L.Ed.2d 807 (1981); State v. Perez, 181 Conn. 299, 311-16, 435 A.2d 334 (1980); State v. Arroyo, 180 Conn. 171, 173-81, 429 A.2d 457 (1980). We have held that the use of the word "presumed" in one sentence of the charge does not constitute harmful error where sufficient "qualifying instructions"; Sandstrom v. Montana, supra; are also given, making clear to any reasonable juror that only its connotation of a permissive inference was meant and that the burden of proving intent remained upon the prosecution. The absence of such clarifying instructions has led us to conclude that the potential for an unconstitutional conclusive or burden-shifting presumption had not been removed, necessitating a remand for a new trial in accordance with Sandstrom. State v. Harrison, 178 Conn. 689, 425 A.2d 111 (1979); State v. Moye, ³ 177 Conn. 487, 493, 418 A.2d 870 (1979), vacated, 444 U.S. 983, 100 S.Ct. 199, 62 L.Ed.2d 129, remanded, --- Conn. ---, 409 A.2d 149 (41 Conn.L.J., No. 25, p. 14) (1979). Although the impropriety of the particular portions of the charge under challenge before us was never raised at trial by exception or otherwise, the exceptional circumstances under which we permit review of such belated claims of error are satisfied. State v. Moye, supra, 177 Conn. 490, 418 A.2d 870; State v. Evans, 165 Conn. 61, 69-70, 327 A.2d 576, 418 A.2d 870 (1973).

As the defendant virtually concedes, the charge in this case ⁴ is quite similar to those we have scrutinized and found not to involve harmful error in the long series of cases commencing with State v. Arroyo, supra, the most recent of which is State v. Pina, 186 Conn. 261, 440 A.2d 967 (1982). Despite the inclusion of the earlier presumptive language, the court also stated that "the only way in which a jury can determine what a person's purpose or intention was at a given time, aside from that person's own testimony, is by determining what that person's conduct was and what the circumstances were surrounding his conduct, and from those infer what his or her purpose or intention was." (Emphasis added.) Without detailing the many other portions of the charge relating to intent consistently referring to it as an inference and imposing the burden of proving it upon the state, we are satisfied from our review that the single reference to a presumption was adequately clarified to preclude any misunderstanding on the part of the jury.

IV

The final claim...