State v. Ferrara

• Decision Date: 23 January 1979
• Citation: 176 Conn. 508,408 A.2d 265
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Francis FERRARA.

Page 265

408 A.2d 265

176 Conn. 508

STATE of Connecticut v. Francis FERRARA.

Supreme Court of Connecticut.

Argued Nov. 15, 1978.

Decided Jan. 23, 1979.

Gerald E. Farrell, Sp. Public Defender, Wallingford, for appellant (defendant).

Ernest J. Diette, Jr., Asst. State's Atty., with whom, on brief, were Arnold Markle, State's Atty., and Richard P. Sperandeo, Chief Asst. State's Atty., for appellee (state).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and PETERS, JJ.

LONGO, Associate Justice.

The defendant, Francis Ferrara, was indicted by a grand jury and charged with murder, in violation of § 53a-54a of the General Statutes, to which offense he pleaded not guilty. His jury trial in the Superior Court resulted in a conviction of manslaughter in the first degree, based on the defendant's part in the knife slaying of Martin R. Blizzard on the night of December 31, 1973. The trial court denied the defendant's motion to set aside the verdict, rendered judgment of guilty, and sentenced the defendant to serve a term of not less than eight nor more than twenty years in prison. The defendant has appealed to this court from the judgment rendered, and in his preliminary statement of issues has assigned as error the following: the court's charge to the jury relating to the testimony of an alleged accomplice; the denial of the defendant's motion for a mistrial; the court's charge to the jury relating to flight; and the denial of the defendant's motion to suppress statements to the police while being transported.

From the evidence presented the jury could have found the following: On December 31, 1973, the deceased, Martin R. Blizzard, was stabbed to death while fleeing from a party at an apartment following a fight between himself and Michael Pollatto, who was stabbed several times by Blizzard. After Blizzard was forcibly ejected from the apartment, James Pollatto, the brother of Michael Pollatto, stated that he was going to kill Blizzard and then ran out the door. James Pollatto was followed out the door by the defendant Ferrara. Initially, Pollatto caught up with the deceased and began to struggle with him. The defendant then arrived, joined the fray and stabbed the deceased in the chest. Immediately following the stabbing, the defendant Ferrara had a conversation with Michael Pollatto in a bar, in which he stated that he (the defendant) had "stabbed him (the deceased) fourteen to twenty times."

At the time of the defendant's trial, Pollatto had been charged with manslaughter in connection with Blizzard's death, but had not been charged as an accomplice of the defendant. There was evidence of a possible agreement between Pollatto and the defendant to cover up the crime. The defendant Ferrara left Connecticut in April, 1975, shortly before his indictment for the murder of Martin Blizzard, and voluntarily returned to Connecticut and surrendered to the Federal Bureau of Investigation (hereinafter the F.B.I.) on January 1, 1977.

I

The defendant first claims that the court erred in granting, over his objection, the state's motion to charge the jury on the law pertaining to accomplices. ¹ He argues that the case had been tried on the basis that either he Or James Pollatto inflicted the knife wounds upon the victim causing his death; that the simple mention of Pollatto as an accomplice prejudiced the defendant in his ability to defend against the charges; and that where there is only one defendant charged in the indictment, as here, it is error to give the accomplice charge over his objection. We do not agree.

The defendant's argument is in direct conflict with our recent statement that, where warranted by the evidence, it is the court's Duty to caution the jury as to the testimony of an accomplice in its charge. In State v. Carey, 76 Conn. 342, 349, 56 A. 632, 635 (1904), we stated: "The conditions of character and interest most inconsistent with a credible witness, very frequently, but not always, attend an accomplice when he testifies. When those conditions exist, it is the Duty of the judge to specially caution the jury." (Emphasis added.) State v. Colton, 174 Conn. 135, 140, 384 A.2d 343 (1977); see Bruton v. United States, 391 U.S. 123, 136, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); United States v. Leonard, 161 U.S.App.D.C. 36, 40-41, 494 F.2d 955, 959-60 (1974). The relevant "conditions of character and interest" in the present case were the fact that James Pollatto was a witness charged with the same offense as the defendant and his possible interest in receiving favorable consideration and treatment for his testimony tending to incriminate the defendant. See State v. Colton, supra, 174 Conn. 140-41, 384 A.2d 343. Moreover, as we stated in State v. Bennett, 172 Conn. 324, 335, 374 A.2d 247, 253 (1977): "It is well settled law that '(t)he fact that the witness is a defendant in a criminal prosecution, or is a participant in the offense or in a related offense, creates an interest which affects his credibility.' " 81 Am.Jur.2d, Witnesses, § 667; see Wilson v. United States, 162 U.S. 613, 16 S.Ct. 895, 40 L.Ed. 1090 (1896); Valdez v. United States, 244 U.S. 432, 37 S.Ct. 725, 61 L.Ed. 1242 (1917); People v. Northcott, 209 Cal. 639, 289 P. 634 (1930).

Although we agree with the defendant that customarily it is the accused who has an interest in seeing that the testimony of an accomplice is given special scrutiny, we reiterate that, where it is warranted by the evidence, it is the Court's duty to caution the jury to scrutinize carefully the testimony if the jury find that the witness intentionally assisted in the commission, or if he assisted or aided or abetted in the commission, of the offense with which the defendant is charged. We are satisfied that, from the following evidence adduced at the defendant's trial, the jury could reasonably have found that Pollatto was an accomplice or aided and abetted the defendant in committing the offense of manslaughter. There was testimony that Pollatto's brother was stabbed by Blizzard, the deceased, in the fight at the party and, therefore, Pollatto had a reason for attacking Blizzard; that Blizzard, the defendant and Pollatto were at the scene of the crime together; that Pollatto had the victim's blood on his clothing; that Pollatto had threatened to kill Blizzard, and that he was seen running away from the scene of the crime. Under such circumstances, we conclude that the court did not err in charging the jury on the law in the manner complained of even though Pollatto was not charged with aiding or abetting and did not admit that he committed the offense with which he was charged in his own information. ² See State v. Ives, 172 Conn. 322, 323, 374 A.2d 244 (1977); State v. Rosa, 170 Conn. 417, 434, 365 A.2d 1135 (1976); State v. Raffone, 161 Conn. 117, 285 A.2d 323 (1971).

II

The defendant Ferrara next claims that the court erred in denying his motion for a mistrial for the failure of the state to disclose an understanding with its main witness, James Pollatto, concerning his future prosecution for the same crime. The facts pertinent to this claim are as follows: The record discloses that after the close of evidence, defense counsel learned that a hearing had been held in a prosecution by the state of James Pollatto in which the state had indicated that its then intention was not to proceed against Pollatto on manslaughter charges for his part in the knifing of Martin Blizzard because of a lack of evidence. The defendant asserts that the state's intention not to prosecute was, in effect, a "deal" arranged with Pollatto whereby he would testify against the defendant in exchange for the state's promise not to prosecute, and that this "deal" should have been disclosed to the defendant under the principles enunciated in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). ³ Absence of disclosure, asserts the defendant, not only precluded effective cross-examination of Pollatto at trial, but violated the defendant's right to a fair trial guaranteed by the state and federal constitutions. We have reviewed the record in this case and have concluded that neither Brady nor Napue control; neither do we find that the evidence in the record discloses the existence of any "promise" or "deal" between Pollatto and the state relative to Pollatto's testimony against the defendant.

At the defendant's trial, both Pollatto and the state emphatically denied that any understanding had been arranged relative to Pollatto's testimony. ⁴ The record before us supports this testimony. At best, the record indicates that the state, prior to Ferrara's trial, merely disclosed an intention not to prosecute Pollatto at that time, and that Pollatto and his defense counsel were aware of this intention. We reject the defendant's argument that, on the facts of this case, the state's "intention" not to prosecute falls within the ambit of the Brady principle that evidence favorable to an accused must be disclosed. Neither is there any indication that Pollatto's testimony that he received "no promises" from the state was false. Pollatto's attorney was merely told that the state had insufficient evidence to prosecute within the time period required by the rules concerning speedy trials. Under these circumstances, Napue is inapposite.

One further point remains. The record does not disclose that the defendant ever made a written motion for exculpatory information or material, as required by Practice Book § 2152(1). Notwithstanding this, the defendant did learn of the purported "understanding" between Pollatto and the state at the trial after the close of evidence, but rejected the prosecution's offer to inform the jury again that the state did not intend proceeding with the manslaughter charge against Pollatto, to read portions of the transcript to the jury to clear up any possible...