State v. Delgado

• Decision Date: 23 November 1971
• Citation: 290 A.2d 338,161 Conn. 536
• Parties: STATE of Connecticut v. Roberto DELGADO.
• Court: Connecticut Supreme Court

Page 338

290 A.2d 338

161 Conn. 536

STATE of Connecticut v. Roberto DELGADO.

Supreme Court of Connecticut.

Nov. 23, 1971.

James D. Cosgrove, Public Defender, for appellant (defendant).

John D. LaBelle, State's Atty., with whom, on the brief, was George D. Stoughton, Chief Asst. State's Atty., for appellee (state).

Before HOUSE, C.J., and THIM, RYAN, FITZ GERALD ^* and KLAU, ^** JJ.

HOUSE, Chief Justice.

Roberto Delgado was found guilty, by a statutory three-judge court, of murder in the first degree in the killing of a Hartford police officer, Harvey R. Young, who was taking him to the police station after arresting him. The court imposed the death penalty. That the defendant shot and killed Officer Young was established by a veritable parade of eyewitnesses, as the homicide was observed by several passengers of a Connecticut Company bus which happened to be passing the scene of the slaying. On his appeal, however, the defendant has raised several technical and substantive issues and asserted the claim that the state failed to prove beyond a reasonable doubt that he was guilty of murder in the first degree.

Two of the reasons for appeal require but little comment and we note these first.

After the indictment by the grand jury and before the trial the defendant moved to quash or dismiss the indictment on the grounds that he was not permitted to have counsel present with him at the hearing before the grand jury and was not permitted to have a stenographer present to record the grand jury proceedings. There was no error in the ruling of the trial court denying the motion. We have reiterated in several recent cases that a defendant has no right to have counsel present in the grand jury room. State v. Vennard, 15. Conn. 385, 390, 270 A.2d 837, cert. denied, 400 U.S. 1011, 91 S.Ct. 576, 27 L.Ed.2d 625; State v. LaBreck, 159 Conn. 346, 347, 269 A.2d 74; State v. Stallings, 154 Conn. 272, 282, 224 A.2d 718. Because of a recent ruling on the subject by a judge of the Superior Court and to provide, so far as possible, uniformity in the administration of justice in the state, we take this occasion expressly to reaffirm the law on this point as stated in the opinions in the above-cited cases. It is the general practice in most states not to require a stenographic record of the grand jury proceedings; 38 C.J.S. Grand Juries § 44; and it is not required under the Federal Rules of Criminal Procedure. United States v. Caruso, 358 F.2d 184 (2d Cir. 1966), cert. denied, 385 U.S. 862, 87 S.Ct. 116, 17 L.Ed.2d 88. In State v. Vennard, supra, we noted that, in view of the very limited purpose of the grand jury and the requirement of secrecy as to its deliberations, 'we see no reason to permit a defendant to jeopardize that secrecy by recording in writing or otherwise what transpires merely for the purpose of making such an investigation a more effective tool for discovery.' There is no constitutional or statutory right to have a stenographer present in the grand jury room and we find no error in the refusal of the trial court to permit it in this case.

The defendant testified as a witness in his own defense and on cross-examination the state's attorney, for the purpose of attacking his credibility, introduced evidence that the defendant had previously been convicted of several felonies. The evidence was admitted over the objection of the defendant that to admit the evidence was tantamount to requiring the defendant to incriminate himself. It was clearly admissible under the specific provisions of General Statutes § 52-145. In State v. Marquez, 160 Conn. 47, 273 A.2d 689, we recently discussed this statute and the authorities on this issue and there is no need to repeat what we said there. There was no error in this ruling of the trial court.

We turn now to the claim of the defendant that the state failed to prove beyond a reasonable doubt that the defendant was guilty of murder in the first degree. In testing this claim we examine such exhibits as are made a part of the record and the evidence which has been printed in full in a joint appendix filed by the state and the defendant. State v. Hassett, 155 Conn. 225, 232, 230 A.2d 553; State v. Hodge, 153 Conn. 564, 572, 219 A.2d 367; State v. Davis, 153 Conn. 228, 229, 215 A.2d 414. We are also aided by the unattacked finding which the court filed to show the conclusions of the court as to the facts found. It is unnecessary to summarize all of the evidence but the facts relevant to the ultimate conclusions of the court are material and these we note: On the afternoon of August 25, 1967, Delgado went to the home of Elena Dieppa, at 184 Newfield Avenue in Hartford. Mrs. Dieppa asked one of her sons to call the police when Delgado came to her home and she left the house when he came there. As a result of the call Officer Young was dispatched by radio to go to the Dieppa home in his police cruiser. He was in uniform as a member of the Hartford police department. When Officer Young went to the front door of 184 Newfield Avenue Delgado ran out the back door. Officer Young called to him and Delgado came back and both men then sat in the front seat of the police cruiser. It was raining hard at the time. Officer Young asked Delgado his name; Delgado said his name was Johnny. A young son of Mrs. Dieppa was standing near the cruiser and told Officer Young that the defendant's name was Roberto Delgado and that there was a warrant out for his arrest. Officer Young then called the Hartford police department by radio to inquire if there was a warrant outstanding for the arrest of Delgado. The dispatcher at police headquarters notified Officer Young by radio that there was a warrant outstanding for the arrest of Delgado for breach of the peace, that in fact there was an unexecuted warrant in the active warrant file at the Hartford police station which subsequently was served and executed on September 8, 1967, when the defendant was taken from the Hartford Hospital. When Officer Young learned of the outstanding warrant he placed Delgado under arrest and the Dieppa boy told Delgado in Spanish that the policeman said he was under arrest. Officer Young then drove away from Newfield Avenue with Delgado in the front seat of the cruiser with him. He was headed for police headquarters with Delgado and so notified the dispatcher. While the officer was driving, Delgado grabbed the steering wheel and Officer Young stopped the cruiser on Overlook Terrace, across the street from the Charter Oak Terrace community center building. A Connecticut Company bus drove past the police cruiser just after it stopped and the passengers observed Officer Young and Delgado struggling in the cruiser. The struggle continued outside the cruiser and in the street, with the officer trying to get Delgado back into the cruiser. As the struggle continued, Officer Young used his blackjack on Delgado and Delgado obtained possession of the officer's nightstick and was swinging it at the officer, hitting him with it. The struggle continued in the street with both men wrestling each other on the ground. Officer Young fell on his back in the middle of the road with Delgado on top of him. Officer Young seemed to be in a helpless position and called for assistance. He tried to draw his gun, both men struggled for it and one shot was fired, hitting Delgado in the chest. Delgado then struck Officer Young several times on the head with the nightstick and took his gun. Officer Young then rolled over onto his stomach and crawled from the position where he had been on his back in the middle of the road to the curb, a distance of at least eighteen feet, where he collapsed. He wa lying still, face down with his feet over the curb, when Delgado stood at his feet, bent forward and fired at Officer Young's head with the revolver, the weapon being no more than one foot from the officer's body. Delgado shot Officer Young in the back and head four times and continued to fire the gun until it clicked but did not fire. Delgado then ran across the street to the police car, threw in the gun and tried to drive off. When the cruiser stalled Delgado jumped out of the car and ran behind some buildings and into an apartment wher he was subsequently apprehended.

On the issue of the guilt of the defendant no evidence whatsoever was introduced that he was not a person of sound reason and judgment and no defense of insanity was raised. The court concluded that the defendant had been placed under arrest by Officer Young; the defendant was in the custody of the officer at the time the struggle between them commenced; that he had been arrested on a valid warrant and knew that he was under arrest; that the struggle between the defendant and Officer Young had ended in the middle of the road; that Officer Young had crawled to the curb where he collapsed on his stomach after which Delgado, at close range, fired the shots which killed him; and that the killing of Officer Young by Delgado was wilful, deliberate, premeditated and with malice aforethought.

The defendant has advanced the claim that because Officer Young did not have the arrest warrant in his hand to read to Delgado his arrest was not legal and Delgado had the right to take all reasonable steps to remove himself from custody. So far as the arrest is concerned, we find no error in the conclusion of the court that the arrest was legal. It was made pursuant to a valid arrest warrant on file at police headquarters and before placing Delgadounder arrest, Officer Young verified the existence of the warrant and the identity of Delgado as the person named in it. There is substantial authority for the rule that an officer making an arrest pursuant to a warrant must actually have the warrant in his possession at the time of the arrest. See 6 C.J.S. Arrest § 4(c). This rule appears to have evolved in the nineteenth century, when communication was only possible in person or by letter, so there was good...