State v. Holup

• Decision Date: 27 August 1974
• Citation: 167 Conn. 240,355 A.2d 119
• Parties: STATE of Connecticut v. Michael HOLUP.
• Court: Connecticut Supreme Court

Page 119

355 A.2d 119

167 Conn. 240

STATE of Connecticut v. Michael HOLUP.

Supreme Court of Connecticut.

Aug. 27, 1974.

John R. Williams, Special Public Defender, for the appellant (defendant).

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

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

HOUSE, Chief Justice.

The defendant, Michael Holup, was tried to a jury of twelve and convicted of kidnapping, robbery with violence and binding with intent to commit crime in violation of §§ 53-27, 53-14 and 53-19 of the General Statutes, respectively.

The basic facts are relatively simple. On the morning of September 19, 1969, Wilfred J. Paul, the manager of an A & P store in Milford, went to the First New Haven National Bank to pick up the store's weekly change fund consisting of $1500 in one dollar bills and $730 in rolled coins. He was accompanied to the bank by an employee of the store Richard Nylen. ¹ Paul and Nylen, carrying three canvas sacks containing the money, left the bank by a rear door for the short walk to the store. When they were adjacent to the A & P parking lot, they were accosted from behind by a man armed with a revolver who ordered them into a four-door, gray Chrysler sedan which had pulled up. They were told to lie down in the rear of the car which had no seats, and, as the car was driven away, their hands were taped behind their backs. The man with the revolver occupied the rear space of the car with Paul and Nylen. Two other men were in front.

Because of his position, Paul was unable to ascertain the route taken by the driver, but after a time the Chrysler stopped, and Paul and Nylen were told to get out and made to lie on the side of a road facing the bushes. That road was a dead-end side road. Paul and Nylen were unable to undo their bindings, and as they walked back to the main road, the Chrysler sped past them, having turned around. The car turned left at the main road as another car approached the intersection. The driver of this car recognized Paul as the A & P store manager, stopped, picked up Paul and Nylen and took them to Milford police headquarters.

As a result of police radio calls, Milford Detective Sergeants Daniel Sullivan and William Pendleton, plain clothesman on duty in an unmarked police car, drove to several locations in Milford in search of the gray Chrysler and its three occupants. They then parked at the intersection of Old Gate Lane and New Haven Avenue. A gray Chrysler with three persons in it and a license plate bent so as to be unreadable came down New Haven Avenue and stopped at the traffic light. The sergeants got out of their car and approached the Chrysler with drawn revolvers, identified themselves as police officers and asked the three occupants to leave it with their hands up. Sergeant Sullivan also had his shield and badge case in his right hand. The Chrysler accelerated at a high rate of speed, and the police officers fired four shots at it, striking the driver's wing window, the left rear fender and the rear window. The officers then gave chase during which they were fired upon from the Chrysler. Two bags were thrown from the right side of the Chrysler, the second bursting and throwing coinage all over the road. The chase ended at a roadblock set up by the West Haven police, and Howard r. Luban, William L. Gordon and the defendant were removed from the Chrysler. The police found a white money bag on the floor of the front seat.

Holup, Gordon and Luban were all charged with kidnapping, robbery with violence and binding with intent to commit crime. Luban pleaded guilty to robbery with violence as a result of his participation in the incident, and Holup and Gordon were jointly tried and convicted on all three counts. Holup did not testify at the trial; Gordon did testify. Gordon's basic defense was that althogh the crimes were committed as the state claimed, he had participated only because Holup had coerced him at gunpoint and with threats to his life and the lives of his wife and family. His description of the commission of the crimes and Holup's participation in them was substantially the same as that given by the victim Paul, and the police officers who pursued the man and made the arrests.

The defendant, significantly, has not asserted a claim that the guilty verdict rendered by the jury was not supported by the evidence, but has briefed twelve claims of error. We find that a decision on one of these claims is decisive of the merits of this appeal, and that issue, as phrased by the defendant, is: 'Did the action of the State in joining the case of the defendant with that of the co-defendant Gordon, and the court's failure to sever the trials, deny the defendant due process of law?'

Prior to the trial, a motion to sever the trials of Gordon and Holup was made on the ground that the two defendants would assert defenses antagonistic to, and mutually exclusive of, each other so that a joint trial would deny each defendant due process of law. The motion was denied by the court, but the judge then presiding died before filing a memorandum of decision on the motion or making a special finding.

'Whether a separate trial shall be allowed to parties jointly indicted is within the discretion of the court. Ordinarily justice is better subserved where the parties are tried together. But cases arise where the defense of the different parties are antagonistic, or where evidence will be introduced against one which will not be admissible against others. Where from the nature of the case it appears that a joint trial will probably be prejudicial to the rights of one or more of the parties, a separate trial should be granted when properly requested.' State v. Brauneis, 84 Conn. 222, 226, 79 A. 70, 72. 'The discretion of the court is necessarily exercised before the trial begins, and with reference to the situation as it then appears; and the phrase 'prejudicial to the rights of the parties' means something more than that a joint trial will probably be less advantageous to the accused than separate trials. The controlling question is whether it appears that a joint trial will probably result in substantial injustice.' State v. Castelli, 92 Conn. 58, 63, 101 A. 476, 478; see Practice Book § 532; State v. Hunt, 154 Conn. 517, 521, 227 A.2d 69, vacated on other grounds, 392 U.S. 304, 88 S.Ct. 2063, 20 L.Ed.2d 1110; State v. McCarthy, 130 Conn. 101, 104, 31 A.2d 921; State v. Klein, 97 Conn. 321, 323-324, 116 A. 596; note, 54 A.L.R.2d 848.

Because a preliminary motion for separate trials obviously must be decided before the actual trial, the merits of the motion can be determined only on the basis of whether at that time it appears that injustice is likely to result...