State v. DellaCamera

• Decision Date: 02 July 1974
• Citation: 166 Conn. 557,353 A.2d 750
• Parties: STATE of Connecticut v. Louis DELLACAMERA.
• Court: Connecticut Supreme Court

Page 750

353 A.2d 750

166 Conn. 557

STATE of Connecticut v. Louis DELLACAMERA.

Supreme Court of Connecticut.

July 2, 1974.

Anthony J. Lasala, Sp. Public Defender, 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 HOUSE, C.J., and COTTER, LOISELLE, MacDONALD and BOGDANSKI, JJ. LOISELLE, Associate Justice.

The defendant, Louis DellaCamera, was convicted in a jury trial of two counts of indecent assault and one count of conspiracy to commit the crimes of rape, indecent assault, sodomy, robbery with violence and aggravated assault. The defendant's motion to set aside the verdict was denied by the trial court. From the judgment rendered thereon, he has appealed, assigning error in certain rulings on evidence, in the court's refusal to grant a motion for a mistrial and in the court's refusal to allow him to examine exhibits for identification to aid him in his appeal. This was a companion case to State v. Clemente, Conn., 353 A.2d 723, and State v. Esposito, Conn., 353 A.2d 746, both decided this day.

In the late evening of April 12 and the early morning hours of April 13, 1969, two young females and one young male, the complaining witnesses, were subjected to a series of sexual assaults by a group of males belonging to a motorcycle club known as the Slumlords. Reference is made to State v. Clemente, supra, for more detailed facts. Among those who allegedly forced both of the female complaining witnesses to commit indecent assaults upon him and who conspired with others that rape, aggravated assaults and indecent assaults be committed was the defendant, Louis DellaCamera. During the trial both female complaining witnesses identified the defendant as one of the persons who forced them to commit an indecent assault on him and the male complaining witness identified the defendant as having been in the station wagon that evening.

The defendant has assigned as error two rulings made by the court denying discovery motions under § 54-86b of the General Statutes.

On direct examination the two female complaining witnesses described the series of assaults which they were forced to commit on the evening of April 12 and the early morning of April 13, 1969. When the defendant entered the station wagon, one of the girls noticed he had a marred complexion and fairly long, straight hair. The other gave a verbal description of the defendant to the police from what she remembered from the night of April 12, 1969. Each of the two female complaining witnesses had furnished the police with written statements relating to their direct testimony. One gave five statements and the other gave six statements. The defendant requested the statements of the first female complaining witness from the state's attorney as of right under § 54-86b. The court had previously made it abundantly clear that it would not recognize the validity of the statute. It had also previously stated to all counsel that it would examine any statement to determine if there were inconsistencies under the rule of such cases as Hurley v. Connecticut, 118 Conn. 276, 284, 172 A. 86. When counsel for the defendant made the motion to have the statements turned over to him, the court questioned counsel as to whether the statute was the only basis upon which he sought to have the statements handed to him. To the court's inquiry, counsel answered: 'Yes, your Honor. I move the State's Attorney be ordered to produce the statements given by . . . (the witness) on April 13, 17, 18, 21, 23 and 30 in accordance with the provisions of Public Act 680 (General Statutes § 54-86b).' The court denied the motion. When the second female complaining witness had testified, the same motion was made. The court stated: 'I take it that you are also making the request through the Court by motion, Mr. Trotta (counsel for Esposito), strictly and solely under Public Act 680? . . . That is also true in the case of Mr. Kline (counsel for defendant)?' Mr. Kline: 'Yes, your Honor.' The record does not indicate any change of position on the demand nor is any other position claimed in the brief.

In addition to the issues raised in the case of State v. Clemente, supra, as to § 54-86b, this defendant claims that the validity of the statute has been implicitly recognized in at least two cases. In his brief, the defendant refers to State v. Menillo, 159 Conn. 264, 279-280, 268 A.2d 667, and State v. Bowden, 29 Conn.Sup. 86, 272 A.2d 141, which deal with § 54-86b without raising the question of the statute's validity under the state constitution. From this, the defendant concludes without further discussion that the trial court was in error in its rulings on the statute. State v. Moynahan, 164 Conn. 560, 592, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S.Ct. 291, 38 L.Ed.2d 219, may be added to the defendant's list, although in that case the court indicated some question as to whether § 54-86b would be binding on the Superior Court. The short answer to the defendant's argument is that a case or a series of cases which merely mentioned or apply a statute without questioning its validity cannot serve as binding precedent on that issue. See Finn v. Planning & Zoning Commission,156 Conn. 540, 544, 244 A.2d 391. Constitutional issues are not considered unless absolutely necessary to the decision of a case; Crandall v. State, 10 Conn. 339, 366, 16 Am.Jur.2d, Constitutional Law, §§ 111, 113; or unless sufficient public interest warrants such a review. State v. Sul, 146 Conn. 78, 83-84, 147 A.2d 686; Cypher v. Allyn, 142 Conn. 699, 702, 118 A.2d 318. The restricted nature of judicial review in this area serves to emphasize further the general rule that a case stands only for those points explicitly covered in a decision. See State v. Darwin, 161 Conn. 413, 421-422, 288 A.2d 422. The defendant's position that the validity of a statute may be decided implicitly is clearly inconsistent with these principles.

While the defendant has not phrased his argument in terms of acquiescence, his claim cannot be dismissed without acknowledging this principle. It is true that rules of court derive from custom and convention as well as from the formally promulgated sections of the Practice Book. See Adams v. Rubinow, 157 Conn. 150, 156, 251 A.2d 49. In this case, however, the ruling of the trial court on the invalidity of § 54-86b came shortly after the effective date of the act. Subsequent acts of the Superior Court, either in adding provisions to the Practice Book which parallel the statute or in collectively applying the statute, have no effect on this case. It is also ture that long acquiescence in repeated acts of legislation on particular matters is a highly persuasive factor to be considered in examining legislation. Sanger v. Bridgeport, 124 Conn. 183, 190, 198 A. 746; see Snyder v. Newtown, 147 Conn. 374, 386, 161 A.2d 770, appeal dismissed,365 U.S. 299, 81 S.Ct. 692, 5 L.Ed.2d 688. This factor was considered in State v. Clemente, supra, but was insufficient to overcome the other principles discussed in that decision. Review of a statute which might be deemed procedural or otherwise an appropriation of the judicial power is not precluded by the fact that the issue has not been raised over a period of time. 'If the invalidity of the enactment is evidence beyond a reasonable doubt, our duty, delicate as the task may be, is to nullify the statute.' Cahill v. Leopold, 141 Conn. 1, 10, 103 A.2d 818, 823, overruled (on other grounds), Butterworth v. Dempsey, 229 F.Supp. 754, 760 (D.Conn.); State v. Clemente, supra.

The court was not in error in refusing to be bound by § 54-86b and in holding that if counsel requested prior statements of witnesses on the stand, they were to follow recognized procedures. State v. Clemente, supra.

The defendant also claims the court erred in a second set of rulings on § 54-86b. After the testimony of the first female complaining witness that she had made statements to the police, the court denied the defendant's motion for production of the statements under § 54-80b. The defendant then moved that the testimony of the witness be stricken pursuant to § 54-86b. The court denied the motion and an exception was taken. This process repeated itself after the testimony of the other female complaining witness. The second portion of the statute, § 54-86b(b), ¹ provides that where a court orders the production of statements, and the prosecution fails to comply with the order, the testimony of the witness whose statements are not produced shall be stricken. The defendant's claim fails for two reasons: First, since the court did not order production of the statements, the defendant lacked the proper foundation for proceeding under part (b) of the statute. Second, '(w)here two or more parts of a statute are challenged, the test is whether they are so mutually connected and dependent as to indicate a legislative intent that they should stand or fall together.' Amsel v. Brooks, 141 Coon. 288, 300, 106 A.2d 152, 159, appeal dismissed, 348 U.S. 880, 75 S.Ct. 125, 99 L.Ed. 693. Part (a) and part (b) of § 54-86b are so interdependent that they are indivisible. Part (b) of § 54-86b must fall with the decision in State v. Clemente, supra; Walsh v. Jenks, 135 Conn. 210, 217, 62 A.2d 773; see State v. Watson, 165 Conn. 577, 596, 345 A.2d 532.

While the appeal in this case was pending, the defendant filed a motion to the trial court for permission to examine the written statements of witnesses which had been made exhibits for identification whenever the court refused to order production under § 54-86b. The motion was denied and this denial was made an assignment of error. This issue was already presented to this court in a motion for review, but the motion was denied; State v. DellaCamera, 162 Conn. 646, 286 A.2d 622; thereby postponing review...