State v. Falcone

• Decision Date: 09 August 1983
• Citation: 191 Conn. 12,463 A.2d 558
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Anthony C. FALCONE

Page 558

463 A.2d 558

191 Conn. 12

STATE of Connecticut v. Anthony C. FALCONE

Supreme Court of Connecticut.

Argued June 2, 1983.

Decided Aug. 9, 1983.

Bruce A. Sturman, Asst. Public Defender, and Dennis F. Gaffney, Meriden, with whom, on the brief, was Jerrold H. Barnett, Public Defender, for the appellant (defendant).

Lawrence J. Tytla, Deputy Asst. State's Atty., with whom were Patrick Clifford, Asst. State's Atty., and, on the brief, Arnold Markle, State's Atty., for appellee (state).

Before PETERS, PARSKEY, SHEA, GRILLO and SPADA, JJ.

SHEA, Associate Justice.

A jury found the defendant guilty of assault in the first degree in violation of General Statutes § 53a-59(a)(3). ¹ On appeal he raises three issues, claiming that the court erred in (1) denying a supplemental motion for a new trial based upon the prosecution's alleged withholding of exculpatory material; (2) failing to charge the jury adequately concerning improper remarks made by the prosecutor during closing argument; and (3) failing to incorporate completely the defendant's requested charge to the jury concerning the issue of identification. We find no error.

The jury could have reasonably found the following facts in support of their verdict: On July 6, 1978, Audrey Tamaro resided with her two children in an apartment in New Haven on the first floor of a four family duplex. Thomas Gaetano and Sandy Cicarilli lived in the apartment above Tamaro.

In the early evening at approximately 8 p.m., Tamaro heard a disturbance outside the apartment building. Upon looking out her bedroom window, she observed an automobile pass in front of the duplex. She identified the driver as Anna Fariola, whom she had seen earlier that day. As the car slowly passed the duplex, Fariola yelled, "Tom, you son of a bitch." A male voice then added "Tom, we are going to kill you." Gaetano responded, "Falcone I can't come down, you come up here. I am baby sitting."

The automobile went past the apartment building, turned around in a parking lot, and then came back toward the building. It came to a halt in front of Tamaro's apartment. Tamaro observed a man with dark hair and a beard sitting in the passenger seat. He thrust both arms out the window, pointed a pistol in her direction, and fired the weapon. The bullet struck her in the thigh, fracturing her femur, and causing other severe internal injuries.

Relying on information supplied by Gaetano, the police arrested the defendant. Fariola's car was impounded, and later a fingerprint of the defendant was found on the rear view mirror.

On July 11, 1978, while recuperating in the hospital, the victim was shown a photo array of six men, all with beards and long dark hair. Tamaro picked out the defendant's picture and identified him as the man who shot her.

I

The first issue raised by the defendant is whether the court properly denied a post verdict motion for a new trial based upon the alleged failure of the prosecution to supply defense counsel with requested exculpatory or "Brady" material. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Prior to trial, the defendant made a general "Brady" request, demanding "all exculpatory information and material." United States v. Agurs, supra; State v. Packard, 184 Conn. 258, 439 A.2d 983 (1981); General Statutes § 54-86c; ² Practice Book § 741. ³ The prosecution responded to the motion, declaring that the only exculpatory material known to the prosecution was Gaetano's oral retraction of a statement given to the New Haven police department that was already known to defense counsel.

After the trial had concluded, the New Haven Register printed a story on April 6, 1980, detailing the personal trauma the victim had suffered as a result of the incident. In the article, Tamaro stated she had been unconscious for four days after the shooting. She also described her mental condition during the recuperative period as "paranoid." ⁴

On May 2, 1980, during the sentencing hearing, the prosecutor remarked that the victim was "a woman who is totally paranoid ...." ⁵ Relying on this choice of words and the newspaper report, the defendant argued that the prosecutor knew of the victim's physical and mental condition at the time of her photo identification of the defendant, as well as at trial, and that the failure to divulge this information has denied him a fair trial.

In order to establish a violation of Brady and its progeny, the defendant must demonstrate the prosecution had possession of material ⁶ information favorable to the accused that was not disclosed upon request. State v. Bember, 183 Conn. 394, 404-405, 439 A.2d 387 (1981); State v. Ferrara, 176 Conn. 508, 513-15, 408 A.2d 265 (1979). The defendant has failed to present to this court any reliable evidence that the prosecution knew the victim was unconscious for four days prior to the photo identification of the defendant, or that the prosecution knew the victim was suffering from paranoid delusion.

At oral argument the defendant candidly admitted he was not aware of what information the prosecution had concerning the victim's physical or mental condition subsequent to the shooting. Instead, the defendant would have this court rely on a newspaper article as support for the proposition that the prosecution did, in fact, have such knowledge before or during trial. Apart from its general inadmissibility as a basis for a finding of fact, ⁷ the newspaper article does not even suggest that the prosecution was aware of the state of Tamaro's mental or physical condition. ⁸ The defendant contends, however, that the prosecutor's remarks at the sentencing hearing corroborate his assertion that the prosecutor knew of the victim's condition. We disagree.

It appears that the prosecutor used the term "paranoid" in a hyperbolic fashion while arguing for the imposition of the sentence recommended by the state. Certainly he was not qualified to make a diagnosis of the victim's mental condition. Nor are we convinced that merely because he employed the same term as used by the newspaper, he must therefore be charged with knowledge prior to publication of all the information contained therein. At most, the prosecutor expressed a personal opinion, ⁹ unsupported by medical evidence based possibly on his reading of the newspaper article or upon his discussions with the victim. The Brady rule simply does not encompass the prosecutor's personal opinions concerning every facet of a case, especially when those opinions may be based upon information the prosecutor received after trial from a source also available to the defendant. Accord United States v. Agurs, supra, 427 U.S. 109, 96 S.Ct. 2400; Moore v. Illinois, 408 U.S. 786, 795, 92 S.Ct. 2562, 2568, 33 L.Ed.2d 706, reh. denied, 409 U.S. 897, 93 S.Ct. 87, 34 L.Ed.2d 155 (1972); State v. Packard, supra, 184 Conn. 278, 439 A.2d 983.

In sum, the defendant has done no more than speculate on the contents of the prosecution's files. This court has held that "[a] finding of error cannot be based on the unsupported speculation of the defense that there were other constitutionally material matters in the state's file which were not turned over to the defense." State v. Grasso, 172 Conn. 298, 303, 374 A.2d 239 (1977), citing State v. Moynahan, 164 Conn. 560, 593, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S.Ct. 291, 38 L.Ed.2d 219 (1973). Accordingly, we hold that the trial court properly denied the defendant's motion for a new trial.

II

The defendant's next claim of error concerns a statement made by the prosecutor during the state's closing argument, and the trial judge's charge to the jury with respect to that statement. ¹⁰ Specifically, he asserts (1) that the prosecutor improperly addressed the jury during closing argument by commenting on an objection made by the defendant; and (2) that the charge to the jury failed to cure the resulting prejudice. We first set out the factual background in which the issue arose.

On the evening of July 6, 1978, Sergeant Michael Sweeney, of the New Haven police department, taped a statement given by Gaetano. On July 12, when the statement had been transcribed, Gaetano refused to sign it, stating he had been mistaken and now wished to give a new statement. Sweeney refused to record Gaetano's retraction, believing Gaetano was lying. Subsequently, on July 19, Gaetano appeared at defense counsel's office where he signed a statement repudiating his prior conversations with Sweeney. ¹¹ In the summer of 1979 Gaetano drowned.

At trial, the defendant introduced the statement of July 19 into evidence without objection. When the state attempted to introduce the statement of July 12, the defendant's objection was sustained and the document was excluded. Relying on the admitted document and other evidence, the defendant attempted to demonstrate that the police investigation was performed in a manner that would "cover-up" the allegedly mistaken arrest of the defendant.

During his summation, the prosecutor tried to discredit the defendant's cover-up theory. While discussing the July 19 statement he stated: "Eventually, he [defense counsel] offers his own statement that he took on July 19th, 1978. As you recall after coming out, after argument, the State had no objection to that statement going in. The State is not just interested in convicting people, but looking for the truth. You can read it and make your own opinion as to what Thomas Gaetano was saying. On redirect, let's let it all hang out and let's have the statement that he gave to Sgt. Sweeney, the statement that he gave at the scene. No, you don't have those. All I am saying is, who might be hiding something in this case? All you have now is one statement of Thomas Gaetano, some retraction on July 19th, 1978." The defendant did not immediately object, but waited until after the court's charge to the jury...