State v. McGann

• Decision Date: 18 March 1986
• Docket Number: No. 12065,12065
• Citation: 199 Conn. 163,506 A.2d 109
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. John J. McGANN.

Page 109

506 A.2d 109

199 Conn. 163

STATE of Connecticut v. John J. McGANN.

No. 12065.

Supreme Court of Connecticut.

Argued Dec. 3, 1985.

Decided March 18, 1986.

Todd D. Fernow, with whom were Michael R. Sheldon and, on the brief, Diane L. Welch, Certified Legal Intern, Hartford, for appellant (defendant).

C. Robert Satti, Sr., State's Atty., with whom were Michael L. Regan, Asst. State's Atty., and James T. Scully, legal intern, for appellee (State).

Before ARTHUR H. HEALEY, SHEA, DANNEHY, CALLAHAN and GLASS, JJ.

SHEA, Associate Justice.

The defendant was found guilty of capital felony murder in violation of General Statutes § 53a-54b(2) ¹ after a trial to a court composed of three judges pursuant to General Statutes § 53a-45(b). The court found no mitigating factor set forth in subsection (f) of General Statutes § 53a-46a ² that would bar imposition of the death penalty, nor any aggravating factor set forth in subsection (g) thereof that must be present in order to impose the death penalty. Accordingly, the court sentenced the defendant to life imprisonment in accordance with subsection (e) thereof. On appeal the defendant has raised two claims of error: (1) that the court erred in permitting the alternate grand jurors to remain in the grand jury room during the deliberation phase of the grand jury proceeding and (2) that there was insufficient evidence to support the finding that he was "hired to commit [the murder] for pecuniary gain," as required to constitute the offense of capital felony murder as charged in the indictment. We find error only in the finding that the defendant was guilty of capital felony murder and modify the judgment to a conviction of the lesser included offense of intentional murder in violation of General Statutes § 53a-54a.

I

The defendant claims that his conviction should be set aside because two alternate grand jurors were permitted by the court, Spallone, J., to remain in the grand jury room during the deliberative phase of the proceeding in which he was indicted after the presentation of evidence had been completed. The court did advise, however, that the alternates were not "to confer or participate with the other members." The defendant excepted to this instruction, referring specifically to the prohibition in Practice Book § 609 against the presence of anyone but the grand jurors during deliberations, but the court refused to correct it, construing General Statutes § 54-45 to allow the procedure. We agree with the defendant that the alternate grand jurors should have been excluded during deliberations. We conclude, however, that such a deficiency in the ascertainment of probable cause, absent a showing of prejudice resulting therefrom, does not warrant overturning the conviction of one who has been found guilty of a crime after a fair trial on the merits.

General Statutes § 54-45 requires alternate grand jurors to be sworn separately and directs that they "not counsel or confer with members of the regular panel as to any matters before the grand jury unless they become a part of the regular panel.... They shall attend the sessions of the grand jury and shall be seated with or near the members of the regular panel, with equal opportunity to see and hear all matters adduced in the proceedings...." The statute makes no express provision for dismissal of alternate grand jurors at the time of deliberations, as General Statutes § 54-82h(c) does for alternates serving on a petit jury. Practice Book § 609, ³ however, provides that "[n]o persons other than the jurors may be present while the grand jury is deliberating or voting." We reject the contention of the state that the word "jurors" in this rule was intended to include alternate grand jurors as well as regular members of the panel. The purpose of the rule, to ensure against outside influences upon those actually charged with the responsibility of voting upon an indictment, can best be implemented by excluding alternates as well as all other persons from being present during the deliberative phase of the grand jury proceeding.

The defendant relies upon the first opinion published in the case of State v. Washington, 42 Conn.L.J. No. 1, p. 10A (1980), where the court originally set aside a conviction because the presence of alternates on a petit jury, which the trial court had permitted to discuss the evidence during the course of the trial, might have resulted in the participation of the alternates in such discussions. We need not consider the soundness of the reasoning of this opinion, which was later superseded by the official opinion in State v. Washington, 182 Conn. 419, 438 A.2d 1144 (1980), because of the substantial distinction in the function of a grand jury as compared to a petit jury. An indictment by a grand jury follows upon a finding of probable cause to believe a defendant has committed the offense. A conviction after a trial to a petit jury or to a court requires a finding of guilt beyond a reasonable doubt. This difference in function has led to the frequent refusal of appellate courts to set aside convictions for deviations from proper procedure in grand jury proceedings that would require reversal if they had occurred in a trial on the merits. Thus, an indictment may not be challenged because of the inadequacy or incompetency of the evidence adduced at the grand jury hearing. Costello v. United States, 350 U.S. 359, 364, 76 S.Ct. 406, 409, 100 L.Ed. 397 (1956). Even where an indictment is based on evidence obtained in violation of a constitutional right it may stand. United States v. Blue, 384 U.S. 251, 255, 86 S.Ct. 1416, 1419, 16 L.Ed.2d 510 (1966). An erroneous instruction relating to the presumption of innocence given to a grand jury does not invalidate the indictment, though the same instruction to a petit jury might well require a new trial. State v. Stepney, 181 Conn. 268, 283-84, 435 A.2d 701 (1980), cert. denied, 449 U.S. 1077, 101 S.Ct. 856, 66 L.Ed.2d 799 (1981); see State v. Stankowski, 184 Conn. 121, 153-54, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S.Ct. 596, 70 L.Ed.2d 588 (1981). Even where the exclusion of a defendant from the grand jury proceeding because of his status as an attorney is characterized as an abuse of discretion, it is of no avail to a defendant who has been convicted unless it is shown that harm has resulted. State v. Avcollie, 188 Conn. 626, 633, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S.Ct. 2088, 77 L.Ed.2d 299 (1983).

The defendant cites numerous cases in which Rule 6(d) of the federal rules, which is similar to Practice Book § 609 in prohibiting the presence of anyone but the grand jurors during deliberations and voting, has been applied to require a dismissal of the indictment, where the rule is breached, without the necessity of showing prejudice. United States v. Computer Sciences Corporation, 511 F.Supp. 1125, 1144 (E.D.Va.1981); United States v. Furman, 507 F.Supp. 848, 854 (D.Md.1981); United States v. Treadway, 445 F.Supp. 959, 962 (N.D.Tex.1978); United States v. Bowdach, 324 F.Supp. 123, 124 (S.D.Fla.1971). Most of the dismissals have occurred, however, in the trial court prior to a judgment of conviction following a trial on the merits. United States v. Lill, 511 F.Supp. 50, 61 (S.D.W.Va.1980). The majority of state courts that have considered the question hold that the presence of an unauthorized person during the grand jury proceeding is not a sufficient basis for dismissing an indictment in the absence of prejudice to the accused. Annot., 23 A.L.R. 4th 397, 404-408.

It is only a violation of the most sacrosanct of constitutional rights in the indicting process, such as racial discrimination in the composition of the grand jury, that can justify the illogic of remanding a case to redetermine whether there is probable cause to prosecute a defendant whose guilt after a fair trial has been found beyond a reasonable doubt. See Vasquez v. Hillery, --- U.S. ---, ---, 106 S.Ct. 617, 621-23, 88 L.Ed.2d 598 (1986); ROSE V. MITCHELL, 443 u.s. 545, 551-59, 99 s.ct. 2993, 2997-3001, 61 L.Ed.2d 739 (1979). Even in this limited context the practice has been questioned. Vasquez v. Hillery, supra, --- U.S. ---, 106 S.Ct. 624-34 (Powell, J., dissenting); Rose v. Mitchell, supra, 493 U.S. 574-89, 99 S.Ct. 3009-17 (Stewart and Powell, Js., concurring); Cassell v. Texas, 339 U.S. 282, 302, 70 S.Ct. 629, 639, 94 L.Ed. 839 (1950) (Jackson, J., dissenting). We can perceive no violation of any constitutional right in the presence of two superfluous grand jurors during the deliberations of the regular panel. We have no reason to presume that the two alternate grand jurors violated the court's instruction not "to confer or participate with the regular members." The rule of practice limiting attendance to regular grand jurors at that stage of the proceeding does not create a constitutional right. Accordingly, despite the failure of the court to follow the rule, the conviction of the defendant should not be set aside because of this impropriety in the absence of a demonstration of prejudice.

II

The indictment charged that Geraldine Burke hired the defendant "for his pecuniary gain, for the purpose of causing the death of her husband, Donald C. Burke," and that Donald C. Burke was murdered in Waterford on or about August 9, 1981, "by a person or persons, including [the defendant], which person or persons with intent to cause the death of Donald C. Burke, caused the death of said Donald C. Burke." From the evidence presented in support of this charge the trial court could reasonably have found the following facts:

Geraldine Burke wanted to have her second husband, Donald Burke, to whom she had been married for two years, killed because of his claimed maltreatment of her. They continued to live in the same house, however, with their respective children from prior marriages. Geraldine enlisted the aid of her daughter, Tammy Pate, to find...