State v. Esposito

• Decision Date: 02 July 1974
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Vincent ESPOSITO.

Page 746

353 A.2d 746

166 Conn. 550

STATE of Connecticut v. Vincent ESPOSITO.

Supreme Court of Connecticut.

July 2, 1974.

Jeremy G. Zimmerman, 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, Vincent Esposito, was convicted in a jury trial of one count of indecent assault and of a second 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 and he has appealed from the judgment rendered thereon, assigning error in certain rulings on evidence. This case was a companion case to State v. Clemente, Conn., 353 A.2d 723, and State v. Della Camera, Conn., 353 A.2d 750, 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 one of the female complaining witnesses to commit an indecent assault and conspired with others that rape and aggravated assaults and indecent assaults be committed was the defendant Vincent Esposito. During the trial the complaining witness identified this defendant and the three codefedants as her assailants.

The assignments of error directed to the finding have been reviewed and corrections have been made where necessary. ¹ 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 complaining witness described the series of assaults perpetrated on her on the evening and early morning of April 12 and 13, 1969. She stated that there was sufficient illumination at that time for her to observe her attackers. She identified the defendant as one of the individuals who forced her to commit an indecent assault and described his appearance at that time. The witness had previously furnished the police with five statements relating to her direct testimony. The defendant requested these statements 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 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 requested these statements, the court stated: 'I take it that you are also making the request through the Court by motion, Mr. Trotta, strictly and solely under Public Act 680 (General Statutes § 54-86b).' Counsel answered: 'At this time, yes, your Honor.' The record does not indicate any change of position on the demand nor is any other position claimed in the brief.

Officer William Andrews of the Wallingford police department testified that he observed a gathering of people around a bonfire off Tyler Mill Road at about 2 a.m. on April 13, 1969, and that he later filed a written report of his observations on that morning. Counsel for another defendant moved under § 54-86b that this report be produced for examination. The court denied the motion and counsel for the defendant Esposito joined in the exception to this ruling.

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 the recognized procedures referred to. State v. Clemente, supra.

The defendant claims the court erred in allowing the state to examine Thomas Palmer, its own witness, as a hostile witness. 'Whether a state attorney shall be permitted to cross-examine his own witness, and to what extent, upon the ground of surprise or that the witness is hostile, is ordinarily under our practice a matter resting in the sound discretion of the trial court. The essential question . . . is whether the court abused its discretion in allowing certain questions to be asked.' State v. Gargano, 99 Conn. 103, 113, 121 A. 657. A ruling on evidence must be tested by the finding. Practice Book § 648; Katz v. Brandon, 156 Conn. 521, 538, 245 A.2d 579. The finding discloses that Palmer was a member of the New Haven Slumords and was called by the state as a witness. He testified that he had been at the bonfire until 10:15 or 10:30 p.m. on April 12, 1969, and therafter was in a car drinking beer and smoking marijuana with fellow club members. The record indicates that after preliminary questions on direct examination the witness was equivocal and evasive. On October 23, 1969, in the state's attorney's office, Palmer had given a statement which was written down and subsequently read back to him. He had acknowledged the statement to be true but had declined to sign it. During direct examination, the state's attorney was compelled to refer repeatedly to portions of Palmer's statement about identification of a photograph of the defendant and whether it accurately depicted the defendant's appearance as of April 12, 1969. After he also had established that Palmer and the defendant had known each other since approximately February of 1967, the state's attorney requested and received the court's permission to cross-examine Palmer on the dual basis of prior friendship and prior inconsistent statements. In this situation it was not an abuse of discretion for the trial court to declare Palmer a hostile witness and to allow cross-examination by the state. Fox v. Schaeffer, 131 Conn. 439, 447, 41 A.2d 46; State v. Gargano, supra; 58 Am.Jur., Witnesses, §§ 570, 571; 1 Jones, Evidence (6th Ed.) § 24.12; McCormick, Evidence (2d Ed.) § 6, p.10.

The defendant's final assignment of error is that the court erred in not allowing him to demonstrate before the jury how his right hand was allegedly bandaged on the night of April 12, 1969. The defendant produced several witnesses besides himself who testified that a gauze bandage covered his right hand on or about April 12, 1969. While the descriptions varied in detail, testimony...