State v. Grady

Citation211 A.2d 674,153 Conn. 26
CourtSupreme Court of Connecticut
Decision Date28 June 1965
PartiesSTATE of Connecticut v. William John GRADY. Supreme Court of Errors of Connecticut

George Gilman, Public Defender, with whom, on the brief, was Wayne G. Tillinghast, Norwich, for appellant (defendant).

Edmund W. O'Brien, State's Atty., with whom, on the brief, was Joseph T. Sweeney, Special Asst. State's Atty., for appellee (state).

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

KING, Chief Justice.

The defendant, at the time of the institution of this prosecution, was serving a prison sentence imposed upon his conviction of crimes committed in Hartford County. Apparently under General Statutes § 54-139, construed and explained in State v. Springer, 149 Conn. 244, 178 A.2d 525, he had applied for a trial of the New London County charges alleged in the first part of the information. In any event, the state was required to, and did, obtain a writ of habeas corpus ad respondendum in order to have Grady taken from the state prison and brought before the Superior Court for plea, election and trial under the New London County information. This was done, the trial took place, and Grady was convicted and sentenced.

At some time, not precisely disclosed in the record but apparently after conviction under the first part of the information, Grady, through counsel, first raised the claim that on the bench warrant calling for his arrest the officer's return did not show that he had in fact been arrested. Whether he had actually been arrested, so that the irregularity was in the return only, does not appear from the record. He was, however, fully informed in the information of the charges against him. Indeed, the information was made more specific, apparently at his request. He was already in custodia legis as a convict in the state prison. He was brought into the court under the writ of habeas corpus ad respondendum and thus remained in custodia legis. He was not free to go at large, whether he was, or was not, arrested under the bench warrant. He was represented throughout by competent counsel, and no prejudice of any kind could have, or is shown to have, resulted to him, whether he was or was not, actually arrested under the bench warrant. If the error was in the officer's return only, Grady cannot now derive any advantage from such a wholly technical procedural defect. If in fact he had not been arrested, and this claim he does not clearly make, he certainly knew of the omission prior to his plea, and his failure to make any claim concerning it at that time would be, under the circumstances, a waiver of a purely technical irregularity. State v Wolcott, 21 Conn. 272, 280; State v. DeGennaro, 147 Conn. 296, 304, 160 A.2d 480. This claim of error is without merit.

A second basic claim of error arises from the fact that Grady was convicted under an information in two parts. The first part embraced several counts of breaking and entering and related crimes. The second part charged him with being an 'habitual criminal' under § 54-121 of the General Statutes, the material portion of which is quoted in the footnote. 1 The procedure to be followed in such a two-part information is given in Practice Book § 487, also quoted in the footnote. 2 See also State v. Kohlfuss, 152 Conn. 625, 632, 211 A.2d 143.

Grady, having elected a trial to the jury on the first part of the information, chose to, and did, take the stand in his own behalf. During the course of his cross-examination he was asked whether he was the William John Grady who was convicted of the crime of grand theft in California in June, 1951. Grady refused to answer on the ground that his answer might incriminate him. His counsel then informed the court that Grady's conviction in California would be a controverted issue in any proceedings under the second part of the information and that for this reason his claim of privilege against self-incrimination would be valid. The state claimed the question on the ground that the conviction was admissible under § 52-145 of the General Statutes to affect Grady's credibility as a witness. This appears to have been the only ground on which the question could have been admissible under the first part of the information. State v. Gilligan, 92 Conn. 526, 530, 103 A. 649. The court then stated that the admissibility of the evidence under the second part of the information was 'not before us at the present time' and ordered Grady to answer the question, which he did, admitting the California conviction.

The question was properly asked of Grady in his capacity as a witness, aside from any question of privilege against compulsory self-incrimination. Heating Acceptance Corporation v. Patterson, 152 Conn. 467, 469, 208 A.2d 341 (quoting the relevant portion of General Statutes § 52-145); 8 Wigmore, Evidence § 2277, p. 475 (McNaughton Rev. 1961). But Grady's right to refuse to answer such a question on the ground that it violated his constitutional privilege against compulsory self-incrimination, under the facts of this case, is quite another matter. 8 Wigmore, op. cit. § 2277, p. 477. The privilege, although first raised in the trial of the first part of the information, was based on the use of the answer under the second part. Consequently, we need consider the claim of privilege only in connection with the trial under the second part. It should not be overlooked, however, that the claim of privilege was raised in clear and timely manner, and that the court was alerted both to the claim and to the problem presented, well in advance of the trial under the second part. Clearly, Grady did not answer the question voluntarily as an unrestricted admission.

Subsequently, after adjudication of guilt under the first part of the information, Grady was put to plea under the second part of the information, which charged him with being an 'habitual criminal' under General Statutes § 54-121. In the second part of the information, the state, as required by Practice Book § 487, had alleged the essential elements of guilt under the 'habitual-criminal' statute, including Grady's imprisonment in the California state prison under a sentence of not less than one nor more than ten years upon his conviction in 1951 of the crime of grand theft and his imprisonment in the Connecticut state prison under a sentence of not less than three nor more than eleven years upon his conviction in 1955 of several counts of breaking and entering.

Grady pleaded not guilty to the second part of the information and elected a trial by jury. This trial actually took place before a new jury. Grady, as was his right, chose not to take the stand in the trial under the second part. In order to prove the California conviction and inprisonment, a certified copy of the California judgment of conviction was offered by the state and admitted without objection. Thereafter, the official court stenographer who had served at the trial under the first part of the information, over the objection and exception of counsel that Grady's constitutional privilege against compulsory self-incrimination was being violated, was allowed to read the portion of the testimony given by Grady on cross-examination in the trial under the first part of the information in which he had answered, under the compulsion of the court order, that he was the Grady convicted and imprisoned in California for grand theft in 1951.

Cases involving methods of proving identity in order to bring a convicted person within the provisions of statutes, such as our § 54-121 (and § 54-118), providing for an enhanced punishment in case of one or more prior convictions, are collected in an annotation in 11 A.L.R.2d 870, and in 1 Later Case Service, p. 1148; see also State v. Couture, 151 Conn. 213, 218, 196 A.2d 113.

Since Grady had pleaded not guilty, proof of his identity with the Grady named in the California criminal judgment was an essential element of the state's case under the second part of the information. It is true that the second part did not charge a complete crime separate and distinct from the crimes charged in the first part of the information. Rather, proof of the allegations under the second part would affect only the punishment to be imposed under the first part. Graham v. West Virginia, 224 U.S. 616, 623, 32 S.Ct. 583, 56 L.Ed. 917; State v. Cullum, 149 Conn. 728, 176 A.2d 587.

Under our particular procedure, however, in a two-part information such as this, there are really two separate proceedings. 5 Wharton, Criminal Law and Procedure § 2221. This is clear for a number of reasons. The trial on the second part of the information is subsequent to that on the...

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  • Webb v. State
    • United States
    • Alabama Court of Criminal Appeals
    • April 28, 1987
    ... ... 8 Wigmore, Evidence § 2276(2) at 461 (McNaughton rev. 1961). "His voluntary offer of testimony upon any fact is a waiver as to all other relevant facts because of the necessary connection between all." 8 Wigmore, § 2276(2) at 459 (emphasis in original). See State v. Grady, 153 Conn. 26, 211 A.2d 674 (1965); Smith v. Commonwealth, 182 Va. 585, 30 S.E.2d 26 (1944). Compare Fed.R.Evid. 608(b) ("The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of his privilege against self-incrimination when examined with respect to ... ...
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