State v. Hackett

• Decision Date: 16 December 1980
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Thomas HACKETT.

Page 726

438 A.2d 726

182 Conn. 511

STATE of Connecticut v. Thomas HACKETT.

Supreme Court of Connecticut.

Argued Oct. 17, 1980.

Decided Dec. 16, 1980.

Harry T. Alexander, of the bar of Washington, D. C., and Igor I. Sikorsky, Jr., Hartford, for appellant (defendant).

Paul E. Murray, Asst. State's Atty., with whom, on the brief, was Francis M. McDonald, State's Atty., for appellee (state).

Before COTTER, C. J., and BOGDANSKI, PETERS, SHEA and WRIGHT, JJ.

PETERS, Associate Justice.

This is an appeal from a conviction of murder and robbery in the first degree. The defendant, Thomas Hackett, was charged in one count, by indictment, with murder in violation of General Statutes § 53a-54(a)(2) ¹ and in a second count, by information, with robbery in the first degree in violation of General Statutes § 53a-134. ² The jury returned a verdict of guilty on each count. Having denied, after a hearing, the defendant's motion to set aside the verdict, the trial court, McGrath, J., rendered judgment against the defendant, and this appeal ensued.

At the trial, there was evidence from which the jury could have found that Oliver Gomes, Jr., the owner of Dene's Restaurant in Waterbury, had been shot to death while he was sitting in the driver's seat of his automobile. The murder occurred in the early hours of March 27, 1973. Witnesses testified that the defendant had been threatening Gomes shortly before the murder and that the defendant and one Philip Parker were at the scene of the crime. The murder gun had been sold to the defendant prior to the murder and had never been reported stolen or missing. These facts are not seriously disputed on this appeal. Rather, the defendant argues that it was Parker, who was concededly with the defendant and Gomes in the car when Gomes was shot, who was the murderer.

On this appeal, the defendant raises sixteen specific claims of error. Two claims charge ineffective assistance of counsel, nine claims contest certain evidentiary rulings by the trial court, one claim alleges judicial misconduct in connection with a conference with a juror, three claims challenge portions of the instructions to the jury, and the last claim challenges the sufficiency of the evidence for conviction.

I

The defendant claims that he was rendered ineffective assistance of counsel with regard to counsel's pretrial preparations, conduct of the trial, and post-trial pursuit of relief from conviction. In support of these allegations, the defendant alleges that he offered his counsel his own sworn testimony, and that of other unidentified witnesses, to contradict the state's version of what transpired on the morning of the murder, but that this evidence was neither used nor investigated. These unsupported allegations fall far short of demonstrating that defense counsel's performance was not "reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law." State v. Clark, 170 Conn. 273, 283, 365 A.2d 1167, cert. denied, 425 U.S. 962, 96 S.Ct. 1748, 48 L.Ed.2d 208 (1976), quoting Gentry v. Warden, 167 Conn. 639, 646, 356 A.2d 902 (1975); State v. Barber, 173 Conn. 153, 155, 376 A.2d 1108 (1977); State v. McClain, 171 Conn. 293, 301, 370 A.2d 928 (1976). These and similar allegations have, moreover, been made and found wanting on three previous occasions; they were presented in habeas corpus petitions to the Superior Court, Parskey, J., and Cramer, J., and to the United States District Court for the District of Connecticut, Newman, J. We conclude, as did each of these courts, that the defendant has failed to meet his burden of proving inadequate assistance of counsel before or during his trial.

The defendant's second claim of inadequate assistance of counsel is based on the inordinate amount of time which has elapsed since the defendant's filing of his notice of appeal on April 4, 1974. We agree that so protracted a delay of appellate proceedings, even at the behest of the defendant, is indeed unfortunate and to be avoided. It is difficult, however, to place responsibility for this delay upon trial counsel, who did not purport to represent the defendant on this appeal. The defendant was in fact represented by a succession of other attorneys, some of whom encountered health problems and others of whom pursued collateral matters, rather than the main appeal, for the defendant. The defendant himself requested several postponements to procure out-of-state counsel and to permit that counsel to familiarize himself with the case. The defendant's right to appeal has not been substantively abridged by the delay. The appeal is now fully before us and its resolution has in no way been altered by the delay in its prosecution. Under these circumstances the defendant's claim of inadequate assistance of counsel cannot be sustained.

II

The defendant's evidentiary claims contest the trial court's decisions to admit certain exhibits into evidence and to permit certain testimony to stand. In addition, the defendant claims error with regard to limits imposed upon his cross-examination of some of the state's witnesses.

The evidentiary claims concerning exhibits admitted into evidence by the trial court fail to show the commission of reversible error. A photograph taken of the defendant at the time of his arrest was properly admitted, despite the fact that the defendant had not then been advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), because a photograph is not a confession or other evidence of a testimonial nature. Gilbert v. California, 388 U.S. 263, 266-67, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 (1967); Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908 (1966); State v. Chesney, 166 Conn. 630, 640, 353 A.2d 783, cert. denied, 419 U.S. 1004, 95 S.Ct. 324, 42 L.Ed.2d 280 (1974). A coat claimed to have been worn by the victim on the night of the shooting was sufficiently identified by a witness so that its admissibility was within the sound discretion of the trial court. State v. Piskorski, 177 Conn. 677, 695-98, 419 A.2d 866 (1979); State v. Schaffer, 168 Conn. 309, 317-18, 362 A.2d 893 (1975). The murder weapon, shell casings and bullets were properly admitted upon the testimony of Lieutenant Mullaly, the police officer who found these items of evidence. The fact that the officer was led to this evidence by Parker does not make inadmissible, as hearsay, the statement of what the officer himself saw and did. State v. Saia, 172 Conn. 37, 48, 372 A.2d 144 (1976); McCormick, Evidence (2d Ed.) § 246.

The defendant maintains that the testimony of Mullaly should have been excluded, apart from the evidentiary exhibits for which it provided a foundation. The defendant raises two objections to this testimony. The objection that Mullaly's own actions and observations are hearsay has already been addressed and rejected. The other objection alleges that Mullaly violated a sequestration order of the court, an order that the witnesses not talk to future witnesses subsequent to their own testimony. Mullaly testified, on cross-examination, that he had read a report of Sergeant McKay. McKay was never called as a witness, and there was no other claim of improper conversation between Mullaly and any other witness. There is therefore no evidence that the terms of the court's sequestration order were not honored by Mullaly.

The defendant assigns error to conduct of the trial court that is alleged to have interfered with the right of the defendant to cross-examine witnesses for the state. There can be no doubt that the defendant is entitled fairly and fully to confront and to cross-examine the witnesses against him. U.S.Const., amends. VI, XIV; Conn.Const. art. I § 8. Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974); Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973); Pointer v. Texas, 380 U.S. 400, 403-404, 85 S.Ct. 1065, 1067-1068, 13 L.Ed.2d 923 (1965); State v. Jones, 167 Conn. 228, 232, 355 A.2d 95 (1974); State v. Luzzi, 147 Conn. 40, 46, 156 A.2d 505 (1959). What is at stake on the present appeal is not the principle itself but rather its application to the proceedings in the trial court in this case.

The claim with respect to the witness Henry Porter arose when Porter was repeatedly asked whether he had ever been known as, or been called, Henry Campbell. After Porter had answered four such questions in the negative, defense counsel sought to examine Porter on an encounter with a Mrs. Cosgrove, to which the state objected. Without making an offer of proof, the defendant argued that the question was a legitimate test of the veracity of the witness. The court, however, sustained the objection to the question on the ground of irrelevance. This ruling was well within the trial court's discretionary power to exclude inquiry into matters to remote from the central issues in the case. State v. Mastropetre, 175 Conn. 512, 521, 400 A.2d 276 (1978); State v. Reed, 174 Conn. 287, 299-300, 386 A.2d 243 (1978).

The claim with respect to the witness Parker arose toward the end of a searching cross-examination designed to bring out motivation, intent, and bias on the part of the witness. Parker was the state's chief witness against the defendant. He was an accomplice who had turned state's evidence. During the cross-examination, which took two court days, he was examined at length about his confession to the police in which he implicated the defendant. He was asked about, and testified to, the circumstances leading to the confession, and about his fear of the police and of a possible charge of murder against him. He was interrogated about his unsuccessful effort to have his confession suppressed as involuntary. He was questioned in detail about an agreement between him and the state, entered before the trial court, concerning his own...