State v. DeFreitas

• Decision Date: 08 January 1980
• Citation: 179 Conn. 431,426 A.2d 799
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Richard DeFREITAS.

Page 799

426 A.2d 799

179 Conn. 431

STATE of Connecticut v. Richard DeFREITAS.

Supreme Court of Connecticut.

Argued October 4, 1979.

Decision Released Jan. 8, 1980.

Michael R. Sheldon, West Hartford, with whom were Richard L. Lougee, Niantic and, on brief, James J. Barrett, III, law student intern, for appellant (defendant).

C. Robert Satti, State's Atty., with whom was Richard L. Shiffrin, Asst. State's Atty., for appellee (state).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, SPEZIALE and HEALEY, JJ.

COTTER, Chief Justice.

The bodies of a man and a woman buried in a shallow grave in a wooded area behind an A-frame house on Shewville Road in Ledyard, Connecticut were recovered by the Connecticut state police on May 30, 1974, acting on information supplied by Joanne Rainello, formerly the defendant's common-law wife. At an autopsy it was determined that the man had died from gunshot wounds of the head and chest and that the woman had died from a gunshot wound of her head and brain.

A grand jury, on November 12, 1974, found a true bill of indictment charging the defendant with two counts of murder in the first degree in violation of General Statutes § 53-9 (now § 53a-54a). Thereafter, a petit jury of twelve returned a verdict of guilty on both counts of the indictment as to the defendant Richard DeFreitas and his codefendant Donald Brant, now deceased. The defendant's motion to set aside the verdict was denied, judgment was entered, and the defendant has appealed.

I

The defendant has essentially raised two claims of error on appeal. To understand fully the nature of these claims and their factual as, well as legal underpinnings, it is necessary first to delineate the facts that the jury might reasonably have found from the evidence introduced at trial which serve to implicate the defendant with the murdered persons unearthed by the state police.

The dead male body discovered in the shallow grave on May 30, 1974 was identified subsequently by dental records as Gustavous Lee Carmichael; the identity of the female body was never established. On October 5, 1970, Carmichael and another man escaped from a deputy United States marshal while being transported from a Massachusetts state prison to federal court in Hartford to be sentenced for charges then pending against them. Carmichael and the other man robbed a New Jersey bank on December 22, 1970 of approximately $60,000. Carmichael and a woman companion (the other murder victim) six days later on December 28, 1970, appeared at the A-frame Ledyard home of the defendant DeFreitas and his common-law wife Joanne, who were living there under the names of Ray and Joanne Emerson.

On that date the defendant, DeFreitas, returned to his Ledyard home after having committed a bank robbery in Newport, Rhode Island where he had stolen approximately $30,000. By his own admission DeFreitas was a professional thief and robber.

Among the defendant's criminal associates were the other defendants, Donald Brant, now deceased, and James Gardner, who, along with Joanne Rainello, offered the crucial testimony linking the defendants DeFreitas and Brant to the murder of Carmichael and his companion. Both Brant and Gardner were at DeFreitas' home on the evening of December 28, 1970 and in the presence of Carmichael and his woman companion, DeFreitas divided the $30,000 spoils from his robbery with Brant and Gardner. DeFreitas stated that the three were partners and should take care of each other. When one of the three would commit a robbery, they would share the proceeds; the trio possessed a number of weapons in their arsenal; and maintained some apartments around Providence where they would harbor criminals.

Carmichael and his companion came to Ledyard on the run from the police and were seeking a place to hide out. They stayed two nights at the DeFreitas home and DeFreitas provided them with false identity papers in the names of Dirk and Lorraine Stahl who had once been residents of the same inn as the defendant. He had appropriated some of their identification documents. Carmichael's woman companion opened a checking account under the name of Lorraine Stahl and on December 30, 1970 the couple moved to a home they had rented in Noank under the name of Stahl.

During the time that Carmichael's female companion, who was now using the name Lorraine Stahl, was at DeFreitas' Ledyard home, she expressed fears to Joanne Rainello about the life she was leading, and told her that she was nervous about using fictitious names and was afraid of being caught by the police and what she might say if she were apprehended. Rainello relayed this information to DeFreitas soon after it was told to her.

At this point the defendant summoned Donald Brant from his home in Rhode Island to discuss the threat that Carmichael's companion posed. DeFreitas and Brant decided to kill both Gustavous Carmichael and his unidentified female companion because DeFreitas and Brant concluded they had too much at stake and that, in light of Carmichael's feelings for his girlfriend, they could not kill her without killing him as well. After making plans to carry out the murders with Brant, DeFreitas lured the victims back to his A-frame house on Shewville Road in Ledyard on December 31, 1970. The defendant shot Carmichael repeatedly and killed him; then Brant shot and killed the woman. Both the defendant and Brant described to Joanne Rainello and James Gardner how the shootings had taken place. Rainello had been out of the house at the time of the murders and was picked up by DeFreitas shortly after the shootings; Gardner had been called by DeFreitas to come to the Ledyard house because of a "problem." When he arrived at the A-frame house, Gardner was told for the first time that DeFreitas and Brant had murdered Carmichael and his female companion. The reason given to Gardner for the murders was that DeFreitas and Brant feared that Carmichael's female companion, to save herself, would, if Carmichael were caught by the police, reveal everything she knew about those who had helped Carmichael. Gardner then assisted DeFreitas and Brant with the burial of the bodies.

II

The first claim raised by the defendant in his appeal is that the trial court erred in excluding the testimony of three witnesses who were called by the defense to testify about alleged third party declarations against penal interest. The defendant contends that these declarations were inconsistent with the guilt of the defendant and thus their exclusion deprived him of his due process right to a fair trial in violation of the fourteenth amendment to the United States constitution.

The three witnesses called by the defense purportedly were to testify as to five declarations concerning the murders in question in the present case which were allegedly made by the following third party declarants: James Gardner and Joanne Rainello, both of whom had earlier in the trial been called to testify by the prosecution and who were testifying under a grant of immunity by the state, and one John Robichaud, who had died prior to the trial.

The first of these witnesses, Thomas A. Greene, called by the defense testified that he was then serving a sentence for robbery and in the previous fifteen to twenty years he had had many felony convictions. He also testified that he had known James Gardner for about fourteen years and Gardner was the best man at his wedding on December 7, 1970. When Greene started to testify about a conversation he had with Gardner two and one half weeks after the wedding, the state's attorney objected.

In the absence of the jury the defendant's trial counsel made an offer of proof as to the content of two conversations between Gardner and Greene. In the course of the first conversation Gardner allegedly requested Greene to kill a man and a woman in Connecticut. In the second conversation which was supposed to have taken place in early January, 1971, Greene asked Gardner whether he had been "kidding" about the request in the first conversation and Gardner allegedly replied that the matter had been taken care of by Gardner and another person who was named by Gardner and who was not either of the defendants on trial. At one point, in addition, the defendant's attorney advised the court that the testimony be admitted since it bore a marked identity to the offense being tried and therefore there was a suggestion that the offense might very well have been committed by Gardner.

The next witness called by the defense was Gerald Mastracchio who testified that he was at that time serving a life sentence for robbery and murder and that he had a substantial felony record for over thirty years. He knew James Gardner and one John Robichaud, having been incarcerated with them both in the Adult Correctional Institute in Cranston, Rhode Island. Robichaud at the time of the trial was deceased. As Mastracchio was about to testify to an alleged conversation he had with Robichaud concerning Carmichael, one of the victims in this case, and a young woman, presumably the other victim, the state's attorney objected and again the jury were excused. The defense's offer of proof was that Mastracchio would testify that Robichaud had told Mastracchio that Gardner and Robichaud had murdered Carmichael and the young woman and then buried their bodies. Just before being excused as a witness Mastracchio indicated to the trial court that he would like to testify further and he was permitted to relate in the jury's absence the contents of those further statements. Mastracchio testified that he had once spoken with Joanne Rainello in the visiting room of the Adult Correction Institute in Rhode Island sometime in the 1970s when Richard DeFreitas was present. At that meeting she allegedly asked Mastracchio if he could get in touch with John Robichaud because she feared Robichaud because she had participated in a crime with him and Gardner. Rainello allegedly...