State v. Gionfriddo

• Decision Date: 12 July 1966
• Citation: 154 Conn. 90,221 A.2d 851
• Parties: STATE of Connecticut v. Christopher GIONFRIDDO.
• Court: Connecticut Supreme Court

Page 851

221 A.2d 851

154 Conn. 90

STATE of Connecticut v. Christopher GIONFRIDDO.

Supreme Court of Connecticut.

July 12, 1966.

Charles G. Albom, Special Public Defender, for appellant (defendant).

Peter W. Gillies, Special Asst. State's Atty., for appellee (state).

Before KING, C.J., and MURPHY, ALCORN, SHANNON and HOUSE, JJ.

MURPHY, Associate Justice.

In an undated information to the February, 1964, session of the Superior Court, the state's attorney for Middlesex County charged the defendant, in seven counts, with the crimes of rape, indecent assault and risking impairment of the morals of a minor. Attached to the information was an application for a bench warrant dated February 28, 1964, and a bench warrant dated the same day. The defendant, upon trial by the court, was found guilty on April 23, 1964, of four counts of the information and not guilty of the other three counts. He appealed to this court and, after the record had been printed, filed a motion in the Superior Court on December 8, 1965, to vacate and erase the judgment on the ground that his constitutional rights had been violated because the bench warrant had been issued without supporting oath or affirmation and was therefore invalid so that his arrest and trial were illegal. The motion was denied. The defendant has amended his assignments of error on the appeal to include that action. Before considering the appeal on its merits, it is necessary to dispose of this assignment of error. If the motion to vacate and erase is sound, the judgment would have to be set aside and the entire proceedings nullified.

On November 30, 1965, the opinion in State v. Licari, 153 Conn. 127, 214 A.2d 900, was announced. The instant motion followed shortly thereafter and is predicated on the holding in that case. The cases, however, are distinguishable. In the Licari case, a motion to dismiss on the ground of the invalidity of the arrest under the bench warrant was filed two days after the plea of not guilty had been entered but more than a month before the actual commencement of the trial. Id., 130, 214 A.2d 900. In the present case, the defendant pleaded to the information on April 7, 1964, and was found guilty on April 23, 1964, and about twenty months elapsed before the instant motion was filed. We cannot say that the court, in denying the motion, could not have found that the grounds for the motion were reasonably ascertainable by the defendant before he was put to plea. Indeed, in the Licari case, the claim of lack of jurisdiction of the person was necessarily raised long before the opinion in that case had been written. Although it was not embraced, the same opportunity to raise the question before trial existed here. The court did not commit reversible error in denying the motion to vacate and erase the judgment.

The defendant elected a trial to the court. After a lengthy trial, he was found guilty of two counts of rape and of two counts of indecent assault and not guilty of one count of indecent assault and of two counts of risking impairment of the morals of a minor. The offenses involved four different girls ranging in age from fourteen years and eight months to sixteen years and ten months. All of the girls were residents of the Children's Home of the Evangelical Covenant Church in Cromwell and acted a baby-sitters for the children, by a previous marriage, of the defendant's wife. In his appeal, the defendant maintains that the evidence on which he was convicted is so improbable that reasonable doubt exists as a matter of law; that there was undue interference by the court in the cross-examination of the state's witnesses; that the court erred in denying two motions for mistrial; that there was error in rulings on evidence; and that the exclusion of the general public from the courtroom during the testimony of one of the complainants constituted a denial of the defendant's constitutional right to a public trial. Under the circumstances in this case, the temporary exclusion of the public during the testimony of one witness was permissible. State v. Schmit, 273 Minn. 78, 139 N.W.2d 800, 804 (citing State ex rel. Baker v. Utecht, 221 Minn. 145, 149, 21 N.W.2d 328).

Neither the counts in the information nor the order of proof at the trial followed the chronological sequence of the alleged offenses. The four girls had a very close and intimate relationship at the home and at school. They were constantly in each other's company and were so closely associated that it would be natural for them to disclose to each other any claimed improprieties on the part of the defendant while they were baby-sitting at his house. Sarah Zellers was the first to baby-sit, originally for Lucy Lombardo before Mrs. Lombardo married the defendant on November 20, 1963. On July 10, 1963, Sarah was fifteen years and eleven months old. She claimed to have been forcibly violated in the early morning hours when the defendant came to Mrs. Lombardo's house while Mrs. Lombardo was a patient in a hospital. Sarah did not disclose the incident to anyone until seven months later, during which period she continued to sit regularly for Mrs. Lombardo, later Mrs. Gionfriddo, and she enlisted the services of the other three girls to substitute for her on occasion without telling them of her experience. Despite the claimed force and brutality of the ravishment, Sarah bore no marks on her limbs or other parts of her body and her clothing was not torn. In addition, Sarah testified that she was menstruating at the time but did not tell the defendant until he had penetrated her person. After the attack he left the house, and she slept soundly until awakened by a woman friend of Mrs. Lombardo who came in to look after the children. Later that summer, the defendant drove Sarah to Massachusetts to visit her uncle for her vacation and upon her return to the home she continued to baby-sit and was on very friendly terms with ...