State v. Masse

• Decision Date: 11 September 1962
• Docket Number: No. MV,MV
• Citation: State v. Masse, 186 A.2d 553, 24 Conn.Supp. 45 (Conn. Cir. App. Div. 1962)
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Parties: , 24 Conn.Supp. 45 STATE of Connecticut v. Newman J. MASSE. 16-2640.

Page 553

186 A.2d 553

1 Conn.Cir.Ct. 381, 24 Conn.Supp. 45

STATE of Connecticut v.Newman J. MASSE.

No. MV 16-2640.

Circuit Court of Connecticut, Appellate Division.

Argued June 1, 1962.

Decided Sept. 11, 1962.

Bernard E. Francis, Elmwood, for appellant(defendant).

Henry J. Goldberg, Asst. Pros.Atty., for appellee(state).

KOSICKI, Judge.

The defendant was found guilty, after trial to a jury, of operating a motor vehicle while under the influence of intoxicating liquor in violation of § 14-227 of the General Statutes.In his appeal the defendant did not request a finding, nor was a finding necessary.The appeal is confined to certain questioned rulings on motions and evidence.The defendant has assigned error in the action of the court(1) in granting the state's motion for a mistrial and discharge of the jury because one of the witnesses for the prosecution was unavailable owing to physical injury; (2) in making the defendant plead not guilty twice to the same offense (double jeopardy); (3) in admitting in evidence a medical report of a deceased physician as a business entry of the Farmington police department; (4) in ordering defendant's counsel, while cross-examining a witness for the state, to make a full exhibit of notes from which the witness had been testifying, when the defense attorney had offered to make these notes an exhibit for identification only, and in refusing to allow the defense attorney to continue cross-examining the witness about the notes unless they were entered as a full exhibit.

The nature of this appeal makes unnecessary an examination of the transcript of evidence which has been filed, except as it may be needed for the purpose of establishing the facts bearing upon the claimed errors.

On January 18, 1962, the defendant pleaded not guilty, a jury was selected, th oath administered, and the information read to the jury by the clerk.The jury was then excused by the presiding judge until January 23, 1962, the next day of the session assigned for jury trials.It was stipulated by counsel that, because of the five-day interval, if the presiding judge, the assistant prosecuting attorney or the defense counsel could not then be present, others, could be substituted for them, and that if any members of the jury of twelve were absent, the case would proceed so long as a minimum of six jurors were present.On January 23(Tuesday), the defendant appeared ready for trial.The prosecution informed the court that a police sergeant, a vital witness for the state, was presently unavailable because of a physicial injury received the preceding Sunday.For this reason the state moved for a discharge of the jury and for a continuance of the matter to January 30.The court was informed that the witness would not be available for at least one week.

This motion, which in effect was one for mistrial, was opposed by the defendant on the following grounds: The case had been marked ready for trial notwithstanding the happening of certain contingencies which were stipulated; there was no basis for a mistrial; no other case could take precedence until the defendant's case was finally disposed of; adjournment of the case for one week would be unreasonable; the defendant was entitled to be tried by the jury already selected; the defendant was entitled to a speedy trial; and if a mistrial were directed, any further proceedings against the defendant would constitute double jeopardy.The court declared a mistrial and discharged the jury.

On January 30, the defendant was again put to pleas upon the same information.He declined to stand on the pleas already entered and, upon being arraigned anew, pleaded not guilty and elected to be tried by a jury of twelve.A new jury was selected and the defendant tried.In the course of the trial the defendant objection to certain rulings of the court which were assigned as error under claims (3) and (4) noted above.

In granting or denying a motion for a mistrial, the court is vested with a wide discretion, and its action will not be disturbed unless the discretion was clearly abused.Ferino v. Palmer, 133 Conn. 463, 466, 52 A.2d 433.It is generally recognized that the jury may be discharged after they have been impaneled and sworn--but before testimony is introduced--if there is reasonable cause for such action; and this may be done without defendant's consent.15 Am.Jur. 75, § 406.The reasons assignable for such action are as numerous as the exigencies and hazards that are imminent in all human activity, and a recital of the various occurrences which have been held to constitute cause for mistrial would serve no enlightening purpose.Many of such cases have been set out in State v. Allen, 46 Conn. 531, 543, andState v. Lee, 65 Conn. 265, 273, 30 A. 1110, 27 L.R.A. 498.An early review of the law on this question is contained in State v. Woodruff, 2 Day 504, wherein the decision of Judge Kent in People v. Olcott, 2 Johns.Cas. 301(N.Y.), appears (2 Day p. 507) in a footnote.Judge Kent cited precedent (p. 512) that 'that question was not capable of being determined by any general rule, for that none could govern the discretion of the court in all possible cases and circumstances.'

The underlying principle by which courts are authorized and empowered to discharge juries from further consideration of a case, without infringing on the rights of an accused, had early been stated by Mr. Justice Story in United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165, and it appears to be as valid today as it was in 1824: 'We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere.To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favour of the prisoner.But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office.We are aware that there is some diversity of opinion and practice on this subject, in the American Courts; but, after weighing the question with due deliberation, we are of opinion, that such a discharge constitutes no bar to further proceedings, and gives no right of exemption to the prisoner from being again put upon trial.'See also note at 6 L.Ed. 165.

In the case before us, the defendant had no right to have the trial go forward when it became known that the absence of a material witness might defeat the state's case.This circumstance was not due to any failure, neglect, or lack of preparation on the part of the prosecution.Due process of law does not mean that the rights of the public must be disregarded by pursuing a course manifestly unjust and fatuous.The court was faced with the choice of discharging the jury or continuing the case.If it had granted a continuance, as suggested by the defendant, its action would have been correct.State v. Chin Lung, 106 Conn. 701, 722, 139 A. 91.It was not bound to do so, however, if in its discretion declaring a mistrial was the proper decision to make.This action of the court is beyond criticism and appears to us to have been practical and wise.It thereby released for duty in other pending cases a significant number of veniremen who would otherwise have been immobilized from service for an indefinite period.This assignment of error avails the defendant nothing.

The defendant also claims error in that the trial in this case exposed him to double jeopardy.What we have said above makes unnecessary any extensive consideration of this claim.The rule in our state as to what constitutes double jeopardy is stated in the leading case of State v. Lee, 65 Conn. 265, 273, 30 A. 1110, 1111, 27 L.R.A. 498: 'And so the 'putting in jeopardy' means a jeopardy which is real, and has continued through every stage of one prosecution, as fixed by existing laws relating to procedure.While such prosecution remains undetermined, the one jeopardy has not been exhausted.The jeopardy is not exhausted by an indictment followed by a nolle; nor in this State by a nolle after the trial has commenced, when the prisoner does not claim a verdict.* * * Nor by the discharge of a jury * * *.'(citing many cases where juries had been discharged for various reasons).See alsoState v. Donnelly, 124 Conn. 661, 663, 2 A.2d 214;State v. Palko, 122 Conn. 529, 539, 191 A. 320, 113 A.L.R. 628;State v. Muolo, 118 Conn. 373, 381, 172 A. 875;State v. Garvey, 42 Conn. 232, 233;State v. Benham, 7 Conn. 414, 418.The trial of the accused was not a new case but a continuation of the same original cause.There was only one prosecution, and but one placing of the defendant in jeopardy.No further arraignment was required, since the original plea of not guilty stood until the case was disposed of by judgment.The action of the defendant in objecting to a trial on the original plea and involuntarily submitting to a repetition of the arraignment does not alter the nature of the proceedings or their effect.The ruling of the court was correct.

In the course of the trial, Sergeant Caleskie of the Farmington police department was presented as a witness for the state.He testified as to his own personal observations of the condition of the accused at the time of the arrest and also as to the results of an...