State v. Just

• Court: Supreme Court of Connecticut
• Writing for the Court: Before BOGDANSKI; ARTHUR H. HEALEY
• Citation: 185 Conn. 339,441 A.2d 98
• Parties: STATE of Connecticut v. Anthony JUST.
• Decision Date: 18 August 1981

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441 A.2d 98 185 Conn. 339 STATE of Connecticut
v.
Anthony JUST. Supreme Court of Connecticut. Argued June 2, 1981.
Decided Aug. 18, 1981.

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[185 Conn. 340] John R. Williams, New Haven, for appellant (defendant).

Donald A. Browne, State's Atty., for appellee (state).

Before [185 Conn. 339] BOGDANSKI, C. J., and PETERS, HEALEY, PARSKEY and ARMENTANO, JJ.

[185 Conn. 340] ARTHUR H. HEALEY, Associate Justice.

Upon trial to a jury, the defendant was found guilty of three counts of kidnapping in the first degree, each in violation of General Statutes § 53a-92(a)(2)(B). ¹ From the judgment rendered on the verdict, he appeals and asserts six claims of error.

From the evidence presented at trial, the jury could reasonably have found the following facts: In Shelton, on the evening of March 1, 1975, plant no. 4 of the Grand Sheet Metal Product Company, popularly known as the Sponge Rubber Factory, ² was destroyed by an incendiary explosion and fire [185 Conn. 341] of major proportion. ³ Federal and state investigation led to the determination that the plant had been destroyed by a deliberately set fire, initiated by an explosive device with an accelerant and detonating cord used to spread the fire.

The evidence disclosed that during the days immediately preceding March 1, 1975, three individuals named John Shaw, Dennis Tiche and Michael Tiche accumulated a large quantity of gasoline, dynamite and detonating cord which they loaded onto an Avis rental truck in Pennsylvania on February 27. This truck was driven to Shelton, Connecticut by another individual named Donald Connors. John Shaw, Dennis Tiche and Michael Tiche flew from Pittsburgh to New York and then traveled to Connecticut.

On the evening of February 27, in Pennsylvania, the defendant met with Albert Coffey and Ronald Betres; the three proceeded to drive from Pennsylvania to Danbury, Connecticut in Betres' Buick automobile. In Danbury, the three men registered in a Holiday Inn, where they were observed and subsequently identified by numerous hotel employees, and where the fingerprints of the defendant and Ronald Betres were later located in Room 118, where the men stayed on the evening of February 28.

On the morning of Saturday, March 1, 1975, the defendant and Ronald Betres drove to a Howard Johnson's restaurant in Derby where they met John Shaw, Dennis Tiche and Michael Tiche and another individual named David Bubar, who apparently had access to the Sponge Rubber Company plants.

[185 Conn. 342] On that particular occasion, Bubar transported John Shaw, Dennis Tiche and Michael Tiche to plant no. 4, and the defendant and Betres returned to the Holiday Inn in Danbury. In the early evening of the same date the defendant, Ronald Betres and Albert Coffey returned again to the Howard Johnson's in Derby and met again with David Bubar. At that time, Betres had a loaded pistol and three sets of handcuffs in his possession. During the same evening of March 1, John Shaw, Dennis Tiche and Michael Tiche proceeded to distribute gasoline and dynamite throughout the plant and to connect the various items distributed by detonating cord.

Two company security guards, Roy Ranno and Alfred Hanley, and a company boilerman, Robert DeJoy, were working inside the plant that night. At approximately 10 p. m., three masked ⁴ individuals, later identified

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as the defendant, Albert Coffey and Ronald Betres, confronted the security guards, with Betres showing his pistol. At gunpoint, the two men were removed down a flight of stairs to a ladies rest room on the bottom floor of the plant, where their hands were handcuffed and their eyes were covered with tape.

The two guards, after their capture, informed their three abductors that there was another individual working in the boiler room. The defendant and Ronald Betres proceeded to that room where they captured DeJoy at gunpoint and removed him to the ladies rest room where the other two men were being held.

Subsequently, the three plant employees were led out of the plant in single file and placed inside Ranno's automobile. The men were in the car for [185 Conn. 343] approximately forty-five minutes, during which time they were driven to the town of Monroe. In Monroe, the Ranno automobile was driven onto a dirt lane; the employees' handcuffs were removed and their hands were taped. The defendant and his accomplices, Betres, Albert Coffey, John Shaw, Dennis Tiche, and Michael Tiche, left the location in Betres' Buick automobile and, after stopping momentarily to verify that the plant had exploded, the men drove directly to New York City where they eventually separated into two groups and returned to Pennsylvania.

I

We take up first the defendant's claim that the court erroneously allowed the state to prove his guilt "by proving the convictions of alleged co-conspirators." ⁵ During the course of the trial, three of the defendant's accomplices, Albert Coffey, John Shaw and Ronald Betres, testified for the state. All three testified at some length, both on direct and on cross-examination, implicating themselves and the defendant. The present claim of error concerns the admission into evidence of the criminal convictions of these three men in the same criminal activity for which the defendant was tried below. Coffey ⁶ and Shaw ⁷ both

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testified about their [185 Conn. 344] convictions on direct examination without objection, and both were examined at some length about their [185 Conn. 345] convictions on cross-examination. Ronald Betres [185 Conn. 346] testified ⁸ on direct examination without objection about his conviction in

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the federal and state courts of certain crimes in connection with this incident; defense counsel did tender an objection to what [185 Conn. 347] Ronald Betres pleaded in the state court. ⁹ No cautionary instruction was given at the time these witnesses so testified; none was requested.

In State v. Pikul, 150 Conn. 195, 198, 187 A.2d 442 (1962), ¹⁰ we said: "The fact that one or more persons jointly charged with the commission of a [185 Conn. 348] crime pleaded guilty is not admissible on the trial of another person so charged, to establish that the crime was committed. State v. Gargano, 99 Conn. 103, 107, 121 A. 657 (1923); United States v. Toner, 173 F.2d 140, 142 (3d Cir. (1949) ); 2 Wharton, Criminal Evidence (12th Ed.) § 439. This is so because a plea of guilty is, in effect, merely a confession of guilt which, having been made by one of those charged with the crime, can be no more than hearsay as to another who is so charged. State v. Gargano, supra, (99 Conn.) 108 (121 A. 657)." After we decided Pikul, we had occasion to point out that Pikul "stands for the principle that the guilty plea of one or more persons jointly charged with a crime cannot be admitted in the trial of another so charged 'to establish that the crime was committed.' ...." (Citations omitted.) State v. DellaCamera, 166 Conn. 557, 565, 353 A.2d 750 (1974). See, e.g., United States v. Harrell, 436 F.2d 606, 614-16 (5th Cir. 1970), cert. denied, 409 U.S. 846, 93 S.Ct. 49, 34 L.Ed.2d 86 (1972); United States v. Toner, supra, 142. While such evidence may be offered to affect credibility; see State v. Pikul, supra, 150 Conn. 199, 187 A.2d 442; or for some permitted limited purpose, we believe a proper cautionary instruction to the jury should be given, generally upon objection overruled or sua sponte where the court views the potential for prejudice as likely. ¹¹

The lack of a curative instruction, especially in the absence of objection and a request for one, does [185 Conn. 349] not necessarily constitute harmful error. Our focus on review is fairness, and a curative instruction is just one factor in determining whether substantial rights of a defendant have been unfairly prejudiced. See United States v. King, 505 F.2d 602, 607 (5th Cir. 1974); see also United States v. DeLucca, 630 F.2d 294, 298 (5th Cir. 1980), cert. denied, 450 U.S. 983, 101 S.Ct. 1520, 67 L.Ed.2d 819 (1981). We must, therefore, examine the facts and circumstances

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of this case in their proper context. ¹²

Each of the three accomplices testified at length. It was only at the end of their direct testimony and after each had implicated himself and the defendant that testimony was elicited about their convictions concerning the criminal activity involving themselves and the defendant. This evidence, quite apart from that of their guilty pleas, was properly received-its breadth and detail probative of the defendant's guilt. See State v. Riddall, 251 Or. 506, 446 P.2d 517 (1968). The purpose of the witness' testimony "was to give the facts and circumstances of the crime(s). The testimony as to their pleas of guilty gave the circumstances under which they were testifying, and their status with regard to the charge, and went to their credibility as witnesses for the state." State v. Cole, 252 Or. 146, 155, 448 P.2d 523 (1968). Any prejudice resulting from the testimony of the pleas was rendered harmless when the guilt of the accomplices was established by their own testimony which also implicated the defendant. See State v. Riddall, supra.

Another factor militating against finding harmful error in this case is the lack of any claim by the [185 Conn. 350] defendant that the evidence of the witnesses' guilty pleas was ever again brought to the attention of the jury by the state in a prejudicial fashion. There is no claim that the testimony of the pleas was either emphasized by the state, or argued by the state during final argument. See United States v. Rothman, 463 F.2d 488, 490 (2d Cir.), cert. denied, 409 U.S. 956, 93 S.Ct. 291, 34 L.Ed.2d 231 (1972); State v. Cole, supra, 252 Or. 155, 448 P.2d 523; cf. Bisaccia v. Attorney General, 623 F.2d 307, 308-309 (3d Cir.), cert. denied, 449 U.S. 1042, 101 S.Ct. 622, 66 L.Ed.2d 504 (1980).

We also note that although the court did not give a curative instruction, the...