State v. Gunning

• Decision Date: 10 March 1981
• Citation: 183 Conn. 299,439 A.2d 339
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Robert A. GUNNING.

Page 339

439 A.2d 339

183 Conn. 299

STATE of Connecticut v. Robert A. GUNNING.

Supreme Court of Connecticut.

Argued Jan. 6, 1981.

Decided March 10, 1981.

Charles D. Gill, Public Defender, with whom was John L. Carbonneau, Jr., Lakeville, for appellant (defendant).

Richard L. Shiffrin, Asst. State's Atty., with whom, on the brief, was Dennis A. Santore, State's Atty., for appellee (state).

Before BOGDANSKI, PETERS, HEALEY, ARMENTANO and WRIGHT, JJ.

WRIGHT, Associate Justice.

The defendant was charged by indictment with causing the death of another in furtherance of the commission of a robbery on October 11, 1975. After a jury trial, the defendant was convicted of felony murder. ¹ On appeal, he claims that the trial court erred in admitting evidence of his parolee status and failed to instruct properly both the grand jury and the trial jury. In addition he maintains that he was denied a fair trial because the state did not divulge the identity of one of its witnesses until the eve of trial and that the evidence was insufficient to support the verdict. We discuss each of these five claims in turn.

The defendant's first claim of error relates to the testimony of Detective Sergeant Alfred Columbia, who, during cross-examination by defense counsel, mentioned the fact that the defendant was arrested as a parole violator. ² The defendant maintains that the court committed error by allowing the reference to the defendant's parolee status because he had neither testified in the case in chief nor put his character or credibility in issue. Although a motion for a mistrial based on Columbia's response was made, ³ the record before us does not indicate that the defendant sought to have the testimony stricken. ⁴ Consequently this claim must be considered, if at all, under the "exceptional circumstances" doctrine of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). The record does not support the defendant's claim that he was denied a fundamental constitutional right and a fair trial. See State v. Evans, supra. The rule against admitting evidence of prior crimes where such crimes are neither relevant to the state's case in chief nor appropriate for impeaching the defendant's credibility is a rule of evidence. State v. Marshall, 166 Conn. 593, 600, 353 A.2d 756 (1974). The defendant does not point to any constitutional provision or judicial opinion which would indicate that this rule of evidence is a manifestation of a fundamental constitutional right. Our review of this claim need not go further. Practice Book § 3063.

The defendant next seeks a reversal on the basis of allegedly defective instructions ⁵ given to the grand jury that indicted him. We need not review this claim because it was never raised during the proceedings below. See Practice Book § 3063. Practice Book § 815(1) requires "(d)efenses or objections based on defects in the institution of the prosecution including any grand jury proceedings" to be raised by a motion to dismiss the indictment. See also Practice Book §§ 808 and 810. Moreover, we are not persuaded that the claim involves a fundamental constitutional right. See State v. Evans, supra, 70-71, 327 A.2d 576. Our resolution of this issue rests on an important distinction between the nature of the interest sought to be protected by grand jury proceedings on the one hand, and the nature of the deprivation claimed by the defendant on the other. "The purpose underlying the constitutional requirement of an indictment is 'to prevent the harassment and suffering of an innocent person by compelling him to appear in court to respond to malicious or unfounded charges.' Kennedy v. Walker, 135 Conn. 262, 270, 63 A.2d 589 (1948), aff'd, 337 U.S. 901, 69 S.Ct. 1046, 93 L.Ed. 1715 (1949). The purpose is achieved by interposing, between the state and the accused, a body of eighteen disinterested persons, although the agreement of only twelve of them is needed to return a true bill. General Statutes § 54-45; Cobbs v. Robinson, 528 F.2d 1331, 1338 (2d Cir.), cert. denied, 424 U.S. 947, 96 S.Ct. 1419, 47 L.Ed.2d 354; State v. Menillo, 159 Conn. 264, 275, 268 A.2d 667." State v. Stepney, 181 Conn. 268, 271-74, 435 A.2d 701 (1980), cert. denied, 449 U.S. 1077, 101 S.Ct. 856, 66 L.Ed.2d 799 (1981). Because the instructions complained of, see footnote 4, supra, did not operate to impinge upon the defendant's right to be free of unfounded, malicious or harassing charges, the defendant has not demonstrated that he was deprived of a fundamental right. Thus we need not review further the effect of the instructions given to the grand jury. Practice Book § 3063.

The defendant also maintains that the instructions given by the trial court to the petit jury that rendered the verdict of guilty in this case offend the doctrine announced in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Although not raised at trial; see Practice Book §§ 854 and 3063; this claim is presently reviewable because it falls within the "exceptional circumstances" rule in State v. Evans, supra. State v. Vasquez, --- Conn. ---, ---, 438 A.2d 424 (1980). Upon review we find the court's instructions on intent ⁶ to be entirely free of Sandstrom error. See State v. Brokaw, --- Conn. ---, ---, 438 A.2d 815 (1981); State v. Arroyo, 180 Conn. 171, 178-79, 429 A.2d 457 (1980).

The defendant next maintains that the withholding by the state of the identity of one of its witnesses along with its failure to correct inaccurate testimony by that witness deprived the defendant of a fair trial. From the briefs, it appears that the state did not disclose the identity of one of its witnesses, Enoch Durham, until March 1, 1977, a day and a half before the first witness testified in the case. Durham had given a statement to the Torrington police on October 12, 1975, the morning after the homicide. He eventually testified that while he was hitchhiking the defendant gave him a ride, that they talked about ways to make money because both were broke, that he and the defendant met later that afternoon at a bar where the victim was displaying a gun, that he and the defendant then discussed ways to get from the victim money which was kept at the victim's house, and that the defendant indicated that he had taken the victim's gun while all three were at the bar. Durham's testimony supported the state's case in that it indicated intent and motivation to commit larceny.

The defendant claims that the failure of the state to disclose Durham's identity deprived him of a fair trial. The defense sought, by way of a discovery motion filed May 26, 1976, "(t)he names of any persons whom the State intends to call as witnesses in the trial of the defendant." The state responded on July 2, 1976, that these names "will be supplied prior to trial." At some point before trial a list of witnesses was supplied, but Durham's name was not on it. The defense did not learn that Durham was to testify in the case until March 1, 1977. The reason given by the state for the eleventh hour disclosure, which actually occurred during jury selection, was that the state's attorney's office had only recently learned of Durham's existence. We find this explanation totally unsatisfactory.

A subpoena dated February 24, 1977, and signed by the attorney who tried the case for the state, was issued to Durham. Thus the state knew of Durham's existence, at the latest, on Thursday, February 24, 1977. The state attempts to justify the ensuing five-day delay in notifying the defense by pointing out that in 1977 our courts operated on a Tuesday-Wednesday-Thursday schedule. Since Durham's identity presumably came to the attention of the prosecution on a Thursday, the state argues that notice given the following Tuesday, the next court day, was sufficient. We cannot agree. Practice Book § 734 ⁷ imposes on parties to a criminal proceeding a continuing duty to disclose material previously requested. After such material comes to light, the party to whose attention it came must "promptly notify the other party and the judicial authority of its existence." Practice Book § 734. Section 734 requires notification as soon as practicable under the prevailing circumstances. In the present case, where jury selection was nearly complete and testimony was about to be taken on a charge of felony murder, a five-day delay is not justified.

Moreover, we cannot hold the state entirely blameless for the delay which occurred before the state's attorney learned of Durham's existence from the Torrington police department. Assuming that the state's attorney did not know about Durham until February 24, 1977, this period amounted to sixteen months. Such ineffective communication cannot aid the defendant, the state or the administration of justice. Further, if the information withheld was either exculpatory or germane to the impeachment of a material witness; see Giglio v. United States, 405 U.S. 150, 153-54, 92 S.Ct. 763, 765-766, 31 L.Ed.2d 104 (1972); Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963); Calley v. Callaway, 519 F.2d 184, 221 (5th Cir. 1975); we would not hesitate to impute the knowledge of the local police to the prosecution. See Barbee v. Warden, 331 F.2d 842, 846 (4th Cir. 1964); 2 Wharton's Criminal Procedure (12th Ed.) § 386.

In spite of the foregoing, however, we cannot conclude that the failure to disclose Durham's identity earlier requires a reversal of the defendant's conviction. As was the case with the three previous issues discussed, this claim was not raised during the proceedings below. If the matter had been timely raised, the trial court could have imposed one or more of the sanctions provided by Practice Book § 747. ⁸ By raising this issue for the first time on appeal, the defendant seeks a most drastic sanction: reversal. Such a radical sanction is unwarranted because the record before us does not support a claim that the defendant was...