State v. Lubesky

• Court: Supreme Court of Connecticut
• Writing for the Court: Before PETERS; DANNEHY
• Citation: 195 Conn. 475,488 A.2d 1239
• Decision Date: 19 March 1985
• Parties: STATE of Connecticut v. Roger LUBESKY.

Page 1239

488 A.2d 1239 195 Conn. 475 STATE of Connecticut
v.
Roger LUBESKY. Supreme Court of Connecticut. Argued Dec. 5, 1984.
Decided March 19, 1985.

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[195 Conn. 476] Kenneth Rosenthal, Asst. Public Defender, with whom, on the brief, was Joette Katz, New Haven, for appellant (defendant).

Walter H. Scanlon, Chief Asst. State's Atty., with whom, on the brief, was John A. Connelly, State's Atty., for appellee (state).

Before [195 Conn. 475] PETERS, C.J., and ARTHUR H. HEALEY, SHEA, DANNEHY and COVELLO, JJ.

[195 Conn. 476] DANNEHY, Associate Justice.

In part one of the indictment against him the defendant was charged with murder in violation of General Statutes § 53a-54a and assault in the first degree in violation of General Statutes § 53a-59(a)(1). He was found guilty by the jury. In another trial by jury on part two of the indictment, the defendant was found to be a persistent dangerous felony offender in violation of General Statutes § 53a-40(a) and sentenced accordingly. The issues raised on appeal are (1) whether his right to compulsory process under the state and federal constitutions was violated; (2) whether his right to confrontation was violated; (3) whether his trial was tainted by prosecutorial misconduct; and (4) whether he was deprived of effective assistance of counsel. We find no error.

The defendant was convicted primarily on the testimony of Thomas Radke. Radke testified that in the early morning hours of September 1, 1979, he and Patricia Reagan were together in the bedroom of the basement apartment they shared in Waterbury. Reagan was up watching television. Radke was in bed, sleeping with a pillow wrapped around his head to drown out the noise of the program Reagan was watching. He was awakened by the sound of the defendant's voice. The defendant was well known to Radke. As a matter of fact, the defendant had stayed in the apartment with Reagan and Radke for some time after he had been released from incarceration. Radke heard the defendant say, "Turn down the t.v.," and then, "Somebody told about the Mancione score." Almost simultaneously[195 Conn. 477] he heard three shots fired from a gun. As he started to get up he lost consciousness. When he revived, the pillow was stuck to the left side of his head. He saw Reagan on the floor, got up and grabbed her shoulder. She did not move. He dressed and walked to a nearby cafe. The police and an emergency vehicle were summoned to the apartment where Reagan was found dead. Radke was taken

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to a hospital where he was surgically treated for five bullet wounds to the head and neck. A forensic expert determined that the bullets removed from Reagan and Radke were fired from the same gun. The gun was never located. The defendant was convicted of the murder of Reagan and for an assault in the first degree upon Radke.

On September 5, 1979, Radke gave a signed statement to the police implicating the defendant in the shootings. He made conflicting statements on at least two occasions, however, once to the defendant's attorney and again when he testified before the grand jury, that he did not think it was the defendant who shot him and Reagan. At the defendant's trial, Radke admitted that he had lied to the defendant's attorney and the grand jury but explained that he did so in the hope that the charges against the defendant would be dropped so that Radke might wreak his own revenge.

I

The defendant's first contention is that the state's alleged concealment of the whereabouts of Thomas Radke violated the defendant's rights under the compulsory process and due process clauses of the Connecticut and United States constitutions.

Radke, the state's primary witness linking the defendant to the crimes, testified on direct examination for the state and identified the defendant as the perpetrator. He was cross-examined relentlessly for the better part of two days. His testimony concluded on [195 Conn. 478] June 27, 1980. At that time, defense counsel did not indicate to the trial court that Radke would be required to testify again. Neither was there a request that the trial court order him back at any specific time.

On July 2, 1980, the defense began to present its case. On July 3, 1980, the defendant moved that the judge order the state to disclose the whereabouts of Radke, if the state knew where he was. The state indicated that it did not know where he was, that Radke was not under protective custody, and that he would be produced in court, if he could be located. Defense counsel affirmatively accepted the state's representation. The trial court granted the motion. The defendant was also actively trying to locate Radke.

On August 15, 1980, at the sentencing hearing, the defendant was heard on a motion to dismiss. He claimed that on August 11, 1980, after acceptance of the verdict and discharge of the jury, he learned that Radke had entered the federal witness protection program. It was the defendant's position that the state not only knew of Radke's whereabouts when it disclaimed such knowledge on July 3, 1980, but that the state had even assisted Radke's entrance into the program. The defendant claimed that, sequent to his cross-examination of Radke, he uncovered new information with respect to a statement Radke gave to the police concerning forgery and larceny charges pending against Radke. He argued that because the state had "sequestered" Radke, the defendant lost his right to "confront Mr. Radke with respect to his statements on the witness stand with respect to contradicting his earlier testimony...."

"The state vigorously denied that it had hid Radke or misrepresented his whereabouts. According to the state, it notified the United States Attorney's Office before trial of Radke's desire to enter the federal witness[195 Conn. 479] protection program. The state was then told that Radke would be interviewed by the appropriate federal agency and that the state would have nothing else to do with the matter. On July 27, 1980, when Radke concluded his testimony, he had not been approved to enter the program. He had not entered the program on July 3, 1980, when the defendant made his motion that the whereabouts of Radke be disclosed or even on July 9, 1980, when the trial ended. Radke was approved to enter the program on July 11, 1980, and at a later time the state learned of this approval. Radke left the federal protection program on July 24, 1980.

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The trial court denied the defendant's motion stating that although Radke "may have been in 'some Federal program,' " the court did not know when he went into the program or when the state became aware of it. The court also noted that Radke had undergone extensive cross-examination and that there had been no request for a continuance. The defendant took an exception to the trial court's ruling.

Article first, § 8 of the Connecticut constitution entitles a defendant in a criminal prosecution "to have compulsory process to...