State v. Grasso

• Decision Date: 01 February 1977
• Citation: 374 A.2d 239,172 Conn. 298
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Frank M. GRASSO. STATE of Connecticut v. Frank J. PASTORE.

Page 239

374 A.2d 239

172 Conn. 298

STATE of Connecticut v. Frank M. GRASSO.

STATE of Connecticut v. Frank J. PASTORE.

Supreme Court of Connecticut.

Argued June 3, 1976.

Decided Feb. 1, 1977.

Ira B. Grudberg, New Haven, for appellant (defendant Grasso).

Anthony V. DeMayo, Public Defender, with whom, on the brief, was Nancy Lukingbeal, West Hartford, for appellant (defendant Pastore).

Ernest J. Diette, Jr., Asst. State's Atty., with whom, on the brief, was Arnold Markle, State's Atty., for appellee (state).

Before HOUSE, C. J., and COTTER, LOISELLE, BOGDANSKI and BARBER, JJ.

LOISELLE, Associate Justice.

The defendants, Frank M. Grasso and Frank J. Pastore, were found guilty, on a trial to a jury, of arson in violation of former § 53-82 of the General Statutes ¹ in connection with a fire on November 16, 1968, in an unoccupied two-family house located at 75 Shepard Street in New Haven, Connecticut. Both defendants have appealed from the judgments rendered on the verdicts, and their appeals were consolidated by leave of court.

After argument on the appeal, the defendant Pastore died. The appeal is therefore moot as to him. State v. Granata, 162 Conn. 653, 289 A.2d 385; State v. Raffone, 161 Conn. 117, 120, 285 A.2d 323. The assignments of error pressed and briefed on appeal by the defendant Grasso will be considered. These concern (1) the denial of motions for the production of all information of prior "criminal involvement" of certain of the state's witnesses and for a mistrial and (2) the court's rulings on evidence.

At the trial, evidence was introduced tending to show that the fire was not accidental. Murray Hershman, president of the Haven Realty Company, which owned the property at 75 Shepard Street, testified that he had contacted one Marshall Fazzone with a view to getting someone to burn down the property in order to collect the insurance, and that he and Fazzone had conspired with Grasso and Pastore, who agreed to set the fire and were paid for setting it. Fazzone corroborated this testimony, which was denied by both defendants.

On appeal, the defendant Grasso makes numerous claims of error, but only those which were briefed are determined. Fox v. Fox, 168 Conn. 592, 593, 362 A.2d 854. Before the trial, his counsel filed a motion for disclosure of all exculpatory material, to which the state replied that it had none. At the trial, counsel renewed the motion, expanding it to seek all prior "criminal involvement" of the state's witnesses, claiming that Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, gave this right. The court denied the motion, and exception was taken. The court did, however, order the state to disclose felony convictions of its witnesses.

In Brady v. Maryland, supra, a case involving the discovery, after trial, of information which had been known to the prosecution but unknown to the defendant, the United States Supreme Court held that the prosecution's suppression of exculpatory evidence material to guilt or punishment requested by the defense violated due process. It did not afford a defendant a general right of discovery. Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82; see annot., 7 A.L.R.3d 8, 22 § 3. A recent decision, United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342, states that the rule of Brady v. Maryland, supra, arguably applies in three quite different situations. Firstly, error in a constitutional sense is committed when the prosecution puts on testimony which it knew or should have known was perjured, and the materiality of such testimony is strictly construed in favor of the defendant. Secondly, when a pretrial request for specific evidence is submitted by the defense and a substantial basis for claiming materiality exists, the prosecution's failure to respond is seldom, if ever, excused. Lastly, when no request, or a broad request, for "exculpatory" or "Brady" material is submitted, the prosecution is required to disclose material which creates a reasonable doubt of guilt which would not otherwise exist. In a footnote, the court 96 S.Ct. 2401 n. 20 expressly rejected the view that the standard of materiality "should focus on the impact of the undisclosed evidence on the defendant's ability to prepare for trial."

It must be emphasized that the present case is not an exact Brady situation where there is discovery, after trial, of specific information not revealed, but a direct appeal where the claim is made that unknown information, and known information, was suppressed by the prosecution. Necessarily, in this appeal, to make a determination of the issue presented, we are confined to the facts and information revealed in the appeal.

Applying the test of United States v. Agurs, supra, the facts of the present case present a problem within the last category, since there is no claim of known perjured testimony, and the request made by counsel was not specific. The term "criminal involvement" is not well defined, and is not limited to information which would create a reasonable doubt of guilt, but could include reports that a witness had been merely questioned regarding a crime, had been observed in unsavory company or had been observed in suspicious circumstances. The motion was impermissibly broad and, hence, properly denied by the trial court. The state's assurance to the court that "it has in its possession no undisclosed evidence that would tend to exculpate (a) defendant justifies the denial of a motion for inspection that does not make some particularized showing of materiality and usefulness." United States v. Evanchik, 413 F.2d 950, 953 (2d Cir.).

United States v. Agurs, supra, does impose a duty upon the prosecution to disclose information sufficient to create a reasonable doubt of guilt independent of any motion by the defense for disclosure. When a conviction depends entirely upon the testimony of certain witnesses, as it did in the present case, information affecting their credibility is material in the constitutional sense since if they are not believed a reasonable doubt of guilt would be created. Felony convictions can be used to impeach, and the trial court ordered those disclosed. Information that a witness has been arrested, is being prosecuted, or has confessed to a crime, tends to show that the state has power over a witness which may induce him to give testimony which will win favor with the state and, when the witness is an essential link in the state's case, must be disclosed. See State v. Annunziato, 169 Conn. 517, 524, 363 A.2d 1011. The prosecution's failure to disclose, however, in advance of the trial, Hershman's confession that he had set a second fire at Haven Street, Fazzone's arrest in a stolen carpeting case, and the promise of immunity given to Fazzone in the present case, did not deprive the defendant of a fair trial, since all that information came out at the trial. A finding of error cannot be based on the unsupported speculation of the defense that there were other constitutionally material matters in the state's file which were not turned over to the defense. State v. Moynahan, 164 Conn. 560, 593, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S.Ct. 291, 38 L.Ed.2d 219. The court was not in error in denying the defendant's motion for disclosure of all prior "criminal involvement" of the state's witnesses, nor has it been shown that the state has failed to disclose any information that might create a reasonable doubt of guilt which would not otherwise exist.

The defendant assigns as error the court's restriction of the cross-examination of Hershman, which was apparently directed toward showing that Fazzone had claimed Hershman was threatening him, but that no arrest of Hershman for obstructing...