State v. Fullwood

• Decision Date: 13 November 1984
• Citation: 484 A.2d 435,194 Conn. 573
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Gerald FULLWOOD.

Page 435

484 A.2d 435

194 Conn. 573

STATE of Connecticut v. Gerald FULLWOOD.

Supreme Court of Connecticut.

Argued Oct. 2, 1984.

Decided Nov. 13, 1984.

Gilbert Shasha, New London, with whom, on the brief, was Barry J. Ward, New London, for appellant (defendant).

C. Robert Satti, State's Atty., with whom, on the brief, was Michael L. Regan, New London, for appellee (state).

Before PETERS, HEALEY, PARSKEY, SHEA and DANNEHY, JJ.

PETERS, Associate Justice.

This is an appeal by the defendant Gerald Fullwood from his conviction, after a jury trial, on the charge of being a persistent dangerous felony offender under General Statutes § 53a-40(a). ¹ He raises a multitude of claims including various charges of prosecutorial misconduct and judicial bias. We find no error.

The underlying facts are as follows. The defendant was arrested in New London on December 16, 1978, on a charge of robbery in the first degree. He told the police that his name was John Williams. In that name, he was, on January 2, 1979, put to plea on an information charging him with the crime for which he had been arrested. He pleaded not guilty and elected a jury trial. At some time thereafter, the police learned that his true name was Gerald Fullwood and that he had been convicted of rape in New Haven County in 1970, and had been sentenced to a term of eight to fifteen years for that crime. The state's attorney then procured the indictment which is presently before us, charging the defendant as John Williams, aka Gerald Fullwood, in part I with the substantive offense of robbery in the first degree and in part II with being a persistent dangerous felony offender. Because the defendant, having been given notice of both parts of this indictment, elected to plead guilty to the first part, his appeal is limited to claims of error relating to his conviction, under the second part, of being a persistent dangerous felon.

The defendant, in his numerous assignments of error, has put into issue the trial court's denial of: (1) his motion for dismissal of the charge against him; (2) his motion for discovery; (3) his motion for recusal of the trial judge; (4) his motion for mistrial; and (5) his motions for acquittal and toset aside the verdict. ² We find none of these claims persuasive.

I

In the trial court, the defendant moved for dismissal of the charge against him on three grounds that he continues to press on his appeal: (1) the state's failure to comply with the requirements of Practice Book § 648 concerning the warning to be given a person accused of being a persistent dangerous felon; (2) the state's attorney's abuse of his prosecutorial discretion in selectively and discriminatorily prosecuting the defendant; and (3) the state's attorney's abuse of his prosecutorial discretion in vindictively prosecuting the defendant. We agree with the trial court that dismissal of the charge was not warranted.

The defendant maintains that he was not properly charged as a persistent dangerous felony offender, on part II of the indictment against him, because of the state's noncompliance with the procedural requirements of Practice Book § 648. In 1979, when the defendant was charged, § 648 specified that, before being put to plea on a two-part indictment, a defendant was to be notified by the clerk "in the absence of the judicial authority, of the contents of the second part" of the indictment, and the clerk was to "enter on the docket the time and place of the giving of such notification ...." ³ The defendant now acknowledges that the clerk in fact gave him the required notification, but the state acknowledges that the clerk failed to docket the required entries. The question thus posed is whether the clerk's technical failure to comply with the docketing requirement of § 648 compelled dismissal of part II of the indictment. That question is answered in the negative by State v. Couture, 151 Conn. 213, 218, 196 A.2d 113 (1963), where we held that, if a defendant was properly warned, "[t]he failure to make proper entries on the docket and in the judgment file did not vitiate the conviction of the defendant under the second part of the information."

In his appeal from the denial of his motion for dismissal the defendant also claims that he was the victim of selective prosecution and, as an ancillary claim, that he was entitled, in his motion for discovery, to obtain the records of other felons who might have been charged with being persistent dangerous felony offenders. With respect to the discovery motion, the defendant concedes that this motion was denied without prejudice to its renewal at a later time, and was never renewed. In the absence of a final denial of the discovery motion, the propriety of the trial court's order is not reviewable. The defendant has cited no probative evidence in the record which would otherwise support his claim of discriminatory exercise of prosecutorial discretion. See Oyler v. Boles, 368 U.S. 448, 454-57, 82 S.Ct. 501, 504-06, 7 L.Ed.2d 446 (1962); State v. Tedesco, 175 Conn. 279, 289, 397 A.2d 1352 (1978); State v. Daley, 147 Conn. 506, 508-509, 163 A.2d 112, cert. denied, 364 U.S. 887, 81 S.Ct. 178, 5 L.Ed.2d 107 (1960). This claim of error has therefore not been established.

The defendant claims finally that the motion to dismiss was erroneously denied because he was the victim of prosecutorial vindictiveness. The defendant alleges that the state's attorney sought to indict the defendant as a persistent dangerous felon to punish the defendant for his election to seek a jury trial on the information charging him with robbery. We agree with the defendant that the exercise of his constitutional right to a jury trial may not be impaired by his reasonable apprehension "that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration." Blackledge v. Perry, 417 U.S. 21, 28, 94 S.Ct. 2098, 2102, 40 L.Ed.2d 628 (1974); North Carolina v. Pearce, 395 U.S. 711, 724-25, 89 S.Ct. 2072, 2080, 23 L.Ed.2d 656 (1969). We disagree, however, that the defendant has factually established prosecutorial vindictiveness in this case. The state could not have charged the defendant with being a persistent dangerous felon at the time of his original arrest, because his true identity, and his prior conviction, were not then known. The defendant does not allege that the state unreasonably or coercively delayed in procuring the indictment, once the relevant information became available. Consequently, the only basis for the defendant's claim is that the state lodged the more serious charge subsequent to the defendant's exercise of his constitutional rights with regard to the lesser charge on the information. This temporal sequence in and of itself is insufficient to establish either the fact or the reasonable apprehension of a causal connection. See United States v. Goodwin, 457 U.S. 368, 378-82, 102 S.Ct. 2485, 2491-92, 73 L.Ed.2d 74 (1982). The claim of prosecutorial vindictiveness was therefore not proven, and the trial court did not err in denying the defendant's motion to dismiss the indictment on this ground.

II

The defendant maintains that the trial judge erred in denying the defendant's motion for recusal. The defendant alleges that the trial judge, prior to the trial, made suggestions for a proposed disposition of the case and participated in pretrial discussions and negotiations. Such conduct, the defendant charges, implicates Canon 3.C. (1) of the Code of Judicial Conduct, which states that: "[a] judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned ...."

The defendant cannot prevail on this claim of error because he has provided a record which fails to reveal the contents of the allegedly prejudicial negotiations in which the trial judge took part. In the trial court, defense counsel stated that he had "shared" with the defendant "some suggestions and recommendations which came from your Honor in connection with the proposed disposition of this case. I have the sense that having participated in this pretrial discussion and negotiation, that it is probably improper for the court to remain in this case, and I respectfully call to the Court's attention, the fact that we have previewed this matter between Your Honor and myself, prior to going to Somers to discuss it with [the defendant] ...." It is not claimed that the state's attorney either participated in, or had knowledge of, what had transpired. The court responded to the motion for recusal by stating, "[C]ertainly, Mr. Shasha [defense counsel], you know the purpose of that prior discussion was to try to settle this matter and to resolve it. This is a Jury trial, and if judges are not to be allowed to enter into negotiations in an attempt to settle cases or dispose of cases, then I'm afraid we're in a lot of trouble. So, if you are objecting to that and asking me to disqualify myself, that Motion is denied."

Although this record raises the possibility of judicial misconduct, it does not establish with sufficient certainty what took place in chambers to require us to conclude that disqualification was clearly required. Evidently the trial judge improperly engaged in "ex parte ... communications concerning a pending or impending proceeding" in violation of Canon 3.A. (4) ⁴ of the Code of Judicial Conduct, when he conferred with defense counsel in the absence of the state's attorney. That conduct has, however, not been cited by the defendant in his motion for recusal, nor is it apparent that he would have had standing to do so. The more serious question is whether the trial court undertook an impermissible role when it tried "to settle this matter." If this statement indicates that the court actively participated in the negotiation of a plea bargain, disqualification would have been required. State v. Gradzik, 193 Conn....