State v. Hunt

• Decision Date: 21 February 1967
• Parties: STATE of Connecticut v. Donald E. HUNT.
• Court: Connecticut Supreme Court

Page 69

227 A.2d 69

154 Conn. 517

STATE of Connecticut v. Donald E. HUNT.

Supreme Court of Connecticut.

Feb. 21, 1967.

James W. Marshall, New Haven, for appellant (defendant).

David B. Salzman, Asst. State's Atty., with whom, on the brief, was George R. Tiernan, State's Atty., for appellee (State).

Before KING, C.J., and ALCORN, HOUSE, COTTER and RYAN, JJ.

KING, Chief Justice.

The defendant, Donald E. Hunt, was charged with having committed the crime of rape on July 4, 1964, in North Haven, in violation of General Statutes § 53-238. He was represented by the public defender, pleaded not guilty and elected a trial by jury.

There appears to be no real dispute that between 10:30 and 11:30 of the night of July 4, 1964, Stephen D. Smith, of the North Haven police, came upon a Chrysler car parked along the side of a road in North Haven; that as Smith got out to check the Chrysler, a naked woman ran out of the woods screaming that she had been raped; that Smith radioed for assistance and in a few minutes was joined by another police officer, Hayes Gibson, Jr., who observed Hunt, naked, about 700 feet from the parked Chrysler; that shortly after 11 p.m. Ernest W. Barone, a police officer, was assigned to assist in a search for Cecil N. Doten, the brother-in-law of the complainant and one of two men who she claimed had tried to rape her; that Doten was found clothed only in a pair of trousers, admitted his identity, and was then placed under arrest. Some time later that night Doten gave a signed statement to the police regarding the incident with the complainant.

Although the record discloses only an information against Hunt, alone, it seems to be conceded that Doten was also separately informed against for rape, was represented by the same public defender, pleaded not guilty and elected trial by jury and that Hunt and Doten were jointly tried before the same jury. No question was raised at any time as to either the joint trial, or the joint representation by the public defender, of both Doten and Hunt.

In the course of the trial, Doten's statement was offered in evidence against Doten only. This statement was made and signed by him while he was in custody in the police station. At the trial, Doten claimed that his statement was inadmissible because (1) he made certain incriminatory statements in response to questions asked him prior to his being warned of his right to remain silent and to have counsel and (2) he was too intoxicated at the time to be able to give reliable or voluntary answers to any questions. On the trial, he denied the accuracy of the statement and testified in substantial accord with Hunt, each having chosen to take the stand.

The public defender necessarily was required to, and did, do everything possible to prevent the admission of the Doten statement and, in the course of his endeavors deavors toward that end, subjected Barclay Bumsted, the detective who took the statement from Doten, to a searching and rigorous cross-examination. Doten himself testified in full support of his claims as to the inadmissibility of the statement. After a full hearing in the absence of the jury, the court found that the state had sustained its burden of proving the facts prerequisite to the admissibility of the statement. Thereupon, the court admitted the statement against Doten, only, and carefully, and repeatedly, instructed the jury to disregard it completely as against Hunt. The trial thereupon continued uneventfully Hunt was convicted of the crime charged, and Doten was convicted of the lesser, but included, crime of assault with intent to commit rape in violation of General Statutes § 53-239. The present appeal involves Hunt alone.

The basic claims in this appeal, which was taken by new counsel procured by Hunt himself, are twofold. They are that, as soon as the court admitted the Doten statement against Doten only, it should, suo motu, and without request or suggestion from anyone, forthwith have accorded Hunt (1) a separate trial or (2) representation by separate counsel. Either action would necessarily have required a mistrial as to Hunt and a new trial as to him before a new jury.

Ordinarily, persons separately informed against should be tried separately, because they ordinarily have no connection with one another. And where the state claims that they should be tried together, it has the burden of justifying that procedure if seasonably called in question by counsel for an accused. Practice Book §§ 529, 530; State v. McCarthy, 130 Conn. 101, 104, 31 A.2d 921; State v. Licari, 153 Conn. 127, 130, 214 A.2d 900.

Under our law 'joint indictments and separate indictments which can be consolidated should be treated alike'. State v. McCarthy, supra, 103, 31 A.2d 923. In other words, the accused is entitled to a fair trial, and this right cannot be curtailed or circumscribed whether the state's attorney uses a separate information or a joint information. The basic test of the propriety of an order for a joint trial is whether it probably will be prejudicial to the rights of one or more of the parties, that is, 'will probably result in substantial injustice'. State v. Castelli, 92 Conn. 58, 63, 101 A. 476, 478; State v. McCarthy, supra; 5 Wharton, Criminal Law and Procedure § 1946. The matter lies in the sound discretion of the court, and, of course, the facts material to a proper exercise of discretion should be called to the attention of the court well in advance of actual assignment for trial. State v. McCarthy, supra, 103 Conn. 105, 31 A.2d 921; note, 59 A.L.R.2d 841, 847, subdivision II.

Each of these two accused, although separately informed against, was charged with the crime of rape of the same complainant, at about the same time and place. Both had been in her company during several hours immediately preceding the alleged crime. Under these circumstances, it was proper for them to be tried together unless there was good reason why a joint trial would be likely to be prejudicial to one or the other or both accused. State v. Brauneis, 84 Conn. 222, 226, 79 A. 70, 72; see Practice Book § 532. 'Whether a separate trial shall be allowed * * * is within the discretion of the court. Ordinarily justice is better subserved where the parties are tried together. But cases arise where the defenses 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, supra. As pointed out in State v. Castelli, 92 Conn. 58, 59, 63, 101 A. 476, 478, '(t) he discretion of the court is necessarily exercised before the trial begins (if a proper motion for separate trials is made), and with reference to the situation as it then appears * * *. The controlling question is whether it appears that a joint trial will probably result in substantial injustice'. This appears to be the general rule. Note, 54 A.L.R.2d 830, 833 § 3.

In the instant case, no motion was made at any time either for a separate trial or for separate counsel. As far as appears the court's attention was never directed to either matter, and it was never at any time called upon to exercise its discretion in either respect.

Hunt claims that the mere fact that Doten's confession was admitted against Doten, and to some extent implicate Hunt, automatically called for a mistrial as to Hunt and the continuation of the trial against Doten alone. The rule as to separate trials is not a mechanical rule of thumb as Hunt seems to claim. Frequently, evidence admitted for one purpose is inadmissible for another purpose and, if it is misused by a jury, in violation of a proper instruction from the court, could have a prejudicial effect. This may occur whether or not a joint trial is involved. Yet, it could hardly be claimed that such evidence could not be admitted at all because of its possible misuse by the jury in violation of a proper instruction. See, for instance, cases such as State v. Hoyeson, 154 Conn. 302, 308, 224 A.2d 735, and cases cited. Indeed, it is essential to any orderly trial that the july be presumed, in the absence of a clear indication to the contrary, to have followed the instructions of the court as to the law, including any limitations on the use of evidence which has been properly admitted for a limited purpose. Hunt's claim would, if carried to its logical conclusion, make impossible a jury trial of many, if not most, cases, whether civil or criminal and whether involving single or multiple adverse parties. See State v. Hoyeson, supra.

There is strong authority for the proposition that where, she here, there is no motion for separate trials, and nothing is said to the court prior to trial on which it could exercise its discretion, there could not be error in a joint trial since the court would have made no reling. See cases such as State v. McCarthy, 130 Conn. 101, 105, 31 A.2d 921. We have no occasion in this case, however, to decide that exceptional cases could never arise where, even without a motion for a separate trial, the accused would have been denied a constitutionally fair trial by his being jointly tried with a codefendant, because, in this particular case, it is apparent that the failure of the public defender to ask for a separate trial or separate representation was a considered and sound exercise of trial strategy claculated to be in the best interests of each accused.

The public defender was a lawyer of competence and experience in the defense of criminal cases. The only proper assumption is that he was fully familiar with our law, as already outlined, regarding the right of an accused to request a separate trial and that the granting of such a request lay in the court's discretion in the light of the situation presented...