State v. Higgins

• Decision Date: 02 December 1986
• Citation: 518 A.2d 631,201 Conn. 462
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Norman P. HIGGINS.

Page 631

518 A.2d 631

201 Conn. 462

STATE of Connecticut v. Norman P. HIGGINS.

Supreme Court of Connecticut.

Argued Oct. 8, 1986.

Decided Dec. 2, 1986.

Robert F. McWeeny, Hartford, with whom was Louis S. Avitabile, Waterbury, for the appellant (defendant).

Walter H. Scanlon, Chief Asst. State's Atty., with whom were Stephen M. Morelli, Certified Legal Intern, and, on the brief, John A. Connelly, State's Atty., for the appellee (state).

Before PETERS, C.J., and SHEA, DANNEHY, CALLAHAN and HENNESSEY, JJ.

SHEA, Associate Justice.

After a jury trial the defendant was convicted of felony murder in violation of General Statutes § 53a-54c. ¹ On appeal he claims the trial court erred: (1) in denying his motion to separate his grand jury proceeding from that of his codefendant; (2) in excluding evidence of the circumstances of a crime committed by the codefendant, who testified for the prosecution, claimed to have been similar to the offense charged; (3) in excluding evidence that another witness for the state had been offered money to kill an unidentified person about the time the victim was murdered; (4) in permitting the codefendant to be recalled during the state's case in chief for the purpose of correcting his previous testimony; (5) in the manner in which it instructed the jury upon the inference that could be drawn from the possession of recently stolen property that the possessor had participated in the theft; and (6) in charging upon the interest of the accused in the outcome of the trial in relation to the credibility of his testimony. We find no error.

The briefs indicate no dispute concerning the facts the jury could reasonably have found from the evidence supporting the verdict. According to the testimony of an accomplice, David Odom, he and the defendant planned to rob any homosexual person whom they might encounter. On the evening of December 28, 1980, Odom and the defendant, in accordance with their plan, went to a location in downtown Waterbury where they remained until the murder victim drove up in a Volkswagen. After a conversation relating to homosexual acts, Odom and the defendant entered the car, and the victim drove them to his apartment.

At the apartment the three men had something to eat. The victim then proceeded to cut Odom's hair. Some time thereafter Odom seized the victim and held him, while the defendant struck him several times with a hatchet he carried under his coat. The victim was also stabbed with a knife. The wounds from both weapons caused his death.

Odom and the defendant took from the victim's apartment some cash and several items of personal property, which they loaded into his car. They returned to the YMCA where they had been residing, packed their bags, and departed that night for Florida in the victim's car.

At trial the defendant admitted that on the night of the murder he had left Waterbury and had traveled to Florida with Odom, who informed him of the murder. He also admitted possessing and selling some personal property of the victim, claiming to have received it from Odom. The defendant denied, however, that he had been involved in killing the victim.

I

The grand jury in one proceeding returned a single indictment charging both Odom and the defendant with felony murder occurring during a robbery in violation of § 53a-54c. The defendant claims that the denial of his motion for a separate grand jury proceeding violated his constitutional right of confrontation because the evidence submitted to the grand jury included Odom's confession to the police implicating the defendant in the crime. His inability to question Odom, who did not testify at the grand jury proceeding, made it impossible for the defendant to contest the credibility of the confession, which he claims was the only evidence before the grand jury that implicated him in the murder.

The defendant attempts to analogize his predicament to that of the defendant in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), where it was held that the admission of the confession of a codefendant at a joint trial violated the right of confrontation established by the sixth amendment to our federal constitution. See State v. McLucas, 172 Conn. 542, 560, 375 A.2d 1014, cert. denied, 434 U.S. 855, 98 S.Ct. 174, 54 L.Ed.2d 126 (1977). There is, however, no such right of confrontation at a grand jury proceeding under our federal constitution. In Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956), it was held that a grand jury indictment should not be quashed simply because all of the evidence at the proceeding was in the nature of hearsay. The grand jury procedure used in the federal courts does not allow a defendant to be present during the proceeding unless called to testify, and thus provides no opportunity for him to confront the witnesses against him. Fed.R.Crim.Proc. r. 6(d); 1 C. Wright, Federal Practice and Procedure, § 105. "Thus, an indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence...." United States v. Calandra, 414 U.S. 338, 345, 94 S.Ct. 613, 618, 38 L.Ed.2d 561 (1974).

The defendant urges that we adopt a different rule with respect to the right of confrontation before a grand jury in view of our customary practice of permitting a defendant to attend the grand jury proceeding and to question witnesses offered by the state. State v. Hamlin, 47 Conn. 95, 104-105 (1879). Although this practice has been imprecisely referred to as a "right" of a defendant; State v. Stallings, 154 Conn. 272, 282, 224 A.2d 718 (1966); it is simply a procedure, ordinarily salutary, "grounded upon sound judicial discretion which could be exercised to exclude the defendant for good cause." State v. Avcollie, 188 Conn. 626, 632-33, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S.Ct. 2088, 77 L.Ed.2d 299 (1983); State v. Menillo, 159 Conn. 264, 278, 268 A.2d 667 (1970).

Even where we have found an abuse of discretion in excluding a defendant from the grand jury proceeding, we have refused to overturn a conviction in the absence of a showing of harm. State v. Avcollie, supra, 188 Conn. at 633, 453 A.2d 418. This defendant cannot demonstrate any harm from the joint grand jury proceeding because the confession of Odom, the accomplice, would have been available even to a separate grand jury summoned, in accordance with his motion, to consider only the charge against the defendant. At such a separate proceeding he could not have objected to the presentation of Odom's confession, nor is it likely that he would have had an opportunity to question Odom, who never became a witness at the joint grand jury proceeding. The fact that Odom's confession would not have been admissible at a trial does not preclude its use by the grand jury in ascertaining probable cause. Courts have frequently sanctioned such findings when based upon hearsay deemed to be reliable. Jones v. United States, 362 U.S. 257, 269, 80 S.Ct. 725, 735, 4 L.Ed.2d 697 (1960); State v. Daley, 189 Conn. 717, 725, 458 A.2d 1147 (1983); 1 W. LaFave, Search and Seizure § 3.2(d).

In any event, the defendant's claim that hearsay evidence was used against him in the indicting process does not implicate a violation of any of his rights so as to warrant remanding the case to redetermine whether there is probable cause to prosecute him, when his guilt has already been found by a petit jury beyond a reasonable doubt. United States v. Mechanik, --- U.S. ----, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986); State v. McGann, 199 Conn. 163, 169, 506 A.2d 109 (1986).

II

The defendant claims error in three rulings on evidence. We find none of the rulings to have been erroneous and, therefore, need not consider their effect on the outcome of the trial. ²

A

Before beginning his cross-examination of Odom, the defendant sought a ruling by the court as to whether he might inquire into the underlying circumstances of a 1977 incident in which Odom had been arrested for robbery in the first degree. Odom had pleaded gailty and had been convicted of two offenses resulting from this arrest, larceny in the second degree by theft of a motor vehicle in violation of General Statutes § 53a-123(a)(1), ³ a felony, and physically threatening another person with imminent serious physical injury in violation of General Statutes § 53a-62(a)(1), ⁴ a class A misdemeanor. The defendant claimed that in the occurrence upon which these convictions were based Odom had drawn a knife upon the driver of a car from whom he had hitchhiked a ride and thus had stolen the car. The court ruled against the offer of evidence concerning the facts underlying the convictions, but did authorize use of the larceny conviction itself, a felony, for the purpose of impeachment. See Heating Acceptance Corporation v. Patterson, 152 Conn. 467, 471-72, 208 A.2d 341 (1965). The defendant excepted to the ruling.

The primary focus of the defendant's argument at trial for the admissibility of the circumstances of the 1977 stolen car incident related to Odom's credibility as a witness. This claim, that inquiry into the facts underlying a conviction beyond the bare facts contained in the judgment of conviction should be permitted for impeachment purposes, has not been briefed on appeal and must be deemed abandoned. McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn. 558, 559-60, 473 A.2d 1185 (1984). See C. Tait & J. LaPlante, Connecticut Evidence § 7.21(d), p. 113. The defendant also mentioned, however, that the evidence was admissible as similar misconduct tending to prove that Odom had murdered the victim of the 1980 crime without assistance. It is this ground for admissibility that the defendant urges on appeal.

"Evidence is relevant if it has any tendency in reason to prove or disprove any disputed fact that is of consequence to a determination of the matter in issue." State v....