State v. Giraud, (SC 16016)

• Decision Date: 27 November 2001
• Docket Number: (SC 16016)
• Citation: 783 A.2d 1019,258 Conn. 631
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT v. RASHEEN GIRAUD

258 Conn. 631

783 A.2d 1019

STATE OF CONNECTICUT v. RASHEEN GIRAUD

(SC 16016)

Supreme Court of Connecticut.

Argued January 11, 2001.

Officially released November 27, 2001.

McDonald, C. J., and Borden, Norcott, Sullivan and Vertefeuille, Js.¹ Tracey M. Lane, for the appellant (defendant).

Christopher T. Godialis, assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Dennis O'Connor, senior assistant state's attorney, for the appellee (state).

Opinion

MCDONALD, C. J.

The defendant appeals from a judgment of conviction, rendered after a jury verdict of guilty, of the crimes of murder, felony murder, robbery in the first degree, larceny in the second degree, and kidnapping in the first degree. The defendant claims that the trial court improperly failed to grant a defense witness immunity from prosecution, and that the trial court improperly found that that defense witness properly had invoked his fifth amendment right to remain silent. We disagree and affirm the judgment of the trial court. The jury reasonably could have found the following facts. At about 2 a.m. on November 26, 1995, the defendant, Rasheen Giraud, observed the victim, Corey Gamble, pull up in a car to use the telephone at a telephone booth at a Hartford gas station. The defendant approached the victim, asking for a ride to Charter Oak Terrace. Subsequently, the defendant called his companion, Cleve Ward, over to the telephone booth and told Ward that they had a ride. The defendant and Ward entered the car, the defendant in the front passenger seat and Ward in the backseat on the passenger side. The defendant then directed the victim to the boarded-up Rice Heights housing complex. There, the defendant pulled out a gun, put it to the victim's head and ordered him out of the car. The defendant took the victim to the back of the car and ordered him to remove his clothes. After the victim had removed his clothes, the defendant ordered him to a grassy area and forced him to his knees. The defendant then fired two gunshots at the victim, killing him. The defendant gathered the victim's clothing and placed it in the backseat of the car. Then the defendant drove the car from Rice Heights to Edwards Street, where he lived.

Later in the morning of November 26, 1995, Hartford police officers were directed to the parking lot at the rear of a building where they discovered the body of the victim, who was wearing only socks. Thereafter, the police interviewed the victim's mother, who told the police that in the early morning hours of November 26, she had asked her son to move a car that she had rented, a blue 1995 Pontiac Grand Am, from the front of her apartment building. She told police that this was the last time she had seen the victim.

The police then began searching for the car that the victim's mother had rented. At approximately 9:58 p.m. on November 27, 1995, Hartford police observed the car at a gas station in Hartford. The police pulled the car over a short time later. The defendant was driving the car and was wearing boots and a leather coat that had belonged to the victim. In the pocket of the coat was the victim's electronic organizer. The police then obtained a search warrant for the defendant's apartment, and there recovered more of the victim's belongings: a pair of pants, a black leather belt that went with the coat and a set of keys.

The defendant was charged with murder, felony murder, robbery in the first degree, larceny in the second degree, robbery involving an occupied motor vehicle and kidnapping in the first degree. After a jury trial, in June, 1998, the defendant was found guilty on all counts. The trial court, Barry, J., sua sponte, vacated the verdict with respect to the charge of robbery involving an occupied motor vehicle and rendered judgment of guilty on the remaining charges, sentencing the defendant to eighty-five years imprisonment, ten of which are nonsuspendable and nonreduceable. The defendant appealed to the Appellate Court and, pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c), we transferred the appeal to this court.

I

The defendant claims that the trial court improperly failed to grant a defense witness immunity from prosecution. We disagree.

At the trial, the defendant called Dennis Connolly as a defense witness. Before Connolly was sworn, the defendant moved that the state be compelled to grant Connolly immunity "relative to the testimony of Mr. Connolly with the exception [of] any perjury committed by him...." The request did not distinguish between perjury committed before Connolly was granted immunity and perjury committed by him when testifying after such a grant of immunity. Immunity, of course, may not be "`a license to lie'" while giving immunized testimony. United States v. Apfelbaum, 445 U.S. 115, 124, 100 S. Ct. 948, 63 L. Ed.2d 250 (1980).

In order to consider this claim, we examine the record before the trial court. The defendant told the court that Connolly had testified at the probable cause hearing² as a state's witness and had been given immunity by the state.³ The defendant contended that, because "nothing ha[d] changed," the state should be required to grant Connolly "the same immunity" as a witness for the defense as it had granted to him as a witness for the state. Defense counsel stated he did not "have any case law to present," was "not sure if even any case law exists," but because of the circumstances the same immunity should be granted at the trial.

The state responded that Connolly had been given immunity at the probable cause hearing for making a false statement, a class A misdemeanor as to which the statute of limitations had, at the time of the trial, expired.⁴ Defense counsel did not dispute this claim.⁵ The court thereupon denied the defendant's request.

The defendant now argues in this court that we should empower trial courts to compel the state to grant immunity to defense witnesses in certain circumstances. The defendant acknowledges that no such rule now exists in Connecticut. State v. McIver, 201 Conn. 559, 566-67, 518 A.2d 1368 (1986); State v. McLucas, 172 Conn. 542, 561, 375 A.2d 1014, cert. denied, 434 U.S. 855, 98 S. Ct. 174, 54 L. Ed.2d 126 (1977); State v. Simms, 170 Conn. 206, 211, 365 A.2d 821, cert. denied, 425 U.S. 954, 96 S. Ct. 1732, 48 L. Ed.2d 199 (1976); State v. Reis, 33 Conn. App. 521, 526-27, 636 A.2d 872, cert. denied, 229 Conn. 901, 640 A.2d 118 (1994). The defendant argues, however, that this court should adopt a rule similar to that adopted by the United States Court of Appeals for the Second Circuit in United States v. Burns, 684 F.2d 1066 (2d Cir. 1982), cert. denied, 459 U.S. 1174, 103 S. Ct. 823, 74 L. Ed.2d 1019 (1983). See United States v. Diaz, 176 F.3d 52, 115 (2d Cir. 1999). We recently recognized that some courts, such as the Second Circuit in Burns, have held that under certain circumstances the federal constitution might require the immunization of a defense witness. We previously declined, however, to decide the merits of the theories of those cases in the absence of circumstances that would give rise to their application. See State v. Holmes, 257 Conn. 248, 254-55, 777 A.2d 627 (2001). We do so again in the present case.

The defendant did not bring Burns to the attention of the trial court, nor did he set forth before the trial court any circumstances required to invoke Burns. Under Burns, "[t]o sustain a requirement that use immunity be granted, a court must find that: (1) the government has engaged in discriminatory use of immunity to gain a tactical advantage or, through its own overreaching, has forced the witness to invoke the Fifth Amendment; and (2) the witness' testimony will be material, exculpatory and not cumulative and [3] is not obtainable from any other source." United States v. Burns, supra, 684 F.2d 1077. The requirements of Burns present a very difficult burden for a defendant to meet. "[A]though our test for requiring the government to grant use immunity has been in place for at least eight years, we have yet to be presented with a case in which the defendant gets over the first hurdle, let alone succeeds entirely." United States v. Bahadar, 954 F.2d 821, 826 (2d Cir. 1992).

The defendant's perfunctory statement that "nothing ha[d] changed" did not meet the Burns requirements.⁶ The defendant did not establish any discriminatory use of immunity by the state. Connolly's "invocation of the fifth amendment was not the result of a discriminatory use of immunity by the [state], nor of any other prosecutorial overreaching. In fact, it seemed to be solely the result of [the witness'] own willingness to change his story." Id. We conclude, therefore, again in the words of the Second Circuit, that the defendant "cannot vault the first hurdle of the Burns ... test...." Id. Accordingly, we decline, as we did in Holmes, to consider the claim for defense witness immunity in the absence of the circumstances that might give rise to such a claim.

Moreover, the defendant asked that the trial court accord Connolly "the same immunity" as a defense witness that he had received as a state's witness. The immunity provided at the probable cause hearing was for making a false statement, an offense for which the statute of limitations barred prosecution at the time of trial. It therefore would have been meaningless to grant the request.

II

The defendant also claims that the trial court improperly found that Connolly's invocation of his fifth amendment right against self-incrimination was valid. The defendant contends that there was no possibility that Connolly's answers could have subjected him to prosecution and that the immunity granted at the probable cause hearing continued at trial. We disagree.

We again review the record before the trial court. After the trial court denied the request for immunity, the defendant called Connolly to the witness stand....