State v. Lubesky
| Decision Date | 19 March 1985 |
| Citation | 195 Conn. 475,488 A.2d 1239 |
| Parties | STATE of Connecticut v. Roger LUBESKY. |
| Court | Connecticut Supreme Court |
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 PETERS, C.J., and ARTHUR H. HEALEY, SHEA, DANNEHY and COVELLO, JJ.
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 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 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.
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 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 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.
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 obtain witnesses in his behalf." Its federal counterpart provides that "the accused shall enjoy the right ... to have compulsory process for obtaining witnesses in his favor." U.S. Const., amend. VI.
There is nothing in the record to indicate that the defendant's right to compulsory process, either under the state or federal constitution, has been violated. Radke testified as a witness for the state. His cross-examination by defense counsel was gruelling. At the conclusion of his testimony, he was excused and neither party indicated that he would be called again as a witness. As the trial court pointed out when it granted the defendant's motion to disclose the whereabouts of Radke on July 3, 1980, Radke would have had no reason, based on what happened in the courtroom, to think that he might be called as a witness again. At that time, the state indicated that it would produce Radke if it could find him. The record does not disclose what further efforts, if any, were made by either the defendant or the state.
The defendant claims that new information acquired subsequent to Radke's testimony but prior to the end of the trial, necessitated Radke's recall as a witness on the defendant's behalf. Yet the defendant at no time either requested a continuance or moved for a mistrial. Under these circumstances, we find the defendant's first contention to be without merit. Accordingly, the claim that the defendant's right to compulsory process was violated is rejected.
The defendant also raises a due process claim. We are in agreement with the rule enunciated in federal cases that the deliberate concealment of an eyewitness in order to prevent his testifying at trial constitutes a prima facie deprivation of due process. See Ashley v. Wainwright, 639 F.2d 258 (5th Cir.1981); Clark v. Blackburn, 632 F.2d 531 (5th Cir.1980); Lockett v. Blackburn, 571 F.2d 309 (5th Cir.1978), cert. denied, 439 U.S. 873, 99 S.Ct. 207, 58 L.Ed.2d 186 (1978); Curtis v. Rives, 123 F.2d 936 (D.C.Cir.1941). The parties are clearly at odds over whether the state deliberately concealed the whereabouts of Radke from the defendant. Absent an evidentiary hearing on this issue, the claim is extremely difficult to review. The defendant has failed to show on this record that the state knew anything more than he did as to Radke's whereabouts. 1 We, therefore, find no error.
The defendant next argues that the trial court erred in limiting his cross-examination of Radke in violation of his constitutional right of confrontation under the sixth amendment to the United States Constitution. We do not agree.
Radke admitted on direct examination that he had pleaded guilty to thirteen counts of forgery in the first degree and thirteen counts of larceny in the third degree on March 12, 1980, and that he was awaiting sentencing on these charges at the time he testified. He further testified that no promises had been made to him in regard to these charges in return for his testimony but that nevertheless he held onto some hope of leniency in the disposition of the charges.
Radke was cross-examined by the defendant at...
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