State v. Menillo

Decision Date11 March 1970
Citation159 Conn. 264,268 A.2d 667
PartiesSTATE of Connecticut v. Patrick MENILLO.
CourtConnecticut Supreme Court

Theodore I. Koskoff, Bridgeport, with whom was Michael P. Koskoff, Bridgeport, for defendant.

Francis M. McDonald, Jr., State's Atty., with whom was Jeremiah M. Keefe, Asst. State's Atty., for the State.

Before KING, C.J., and ALCORN, HOUSE, THIM and RYAN, JJ.

KING, Chief Justice.

On July 24, 1969, the defendant was indicted by a grand jury for the crime of the murder, in the first degree, of Carol T. DelGobbo, by means of poison (apparently applied to her body in the course of committing an abortion upon her) in violation of § 53-9 of the General Statutes (Rev. to 1968).

Under § 53-10, if the accused is found guilty of murder in the first degree, a further hearing is held before the trier, whether court or jury, on the issue of penalty, that is, whether, in the discretion of the trier, after hearing evidence as outlined in the statute, the penalty should be death or life imprisonment. But since the penalty for murder in the first degree could be death, a first-degree murder indictment constitutes an indictment for an offense punishable by death, that is, a capital offense.

Under § 8 of article first of the constitution of Connecticut (1965), it is provided that '(n)o person shall be held to answer for any crime, punishable by death or life imprisonment, unless on a presentment or an indictment of a grand jury'. This provision is implemented by § 54-45 of the General Statutes (Rev. to 1968). See also § 54-46. Thus, the defendant here was required to be, as he was, indicted by a grand jury before he could be held to answer on a trial for the crime of murder in the first degree.

After the grand jury had returned the first-degree murder indictment, the defendant made an application to be admitted to bail, which, after hearing before the Superior Court, was denied. The defendant made an application to the Supreme Court for a review of the order denying bail under Practice Book § 694, which authorizes the Supreme Court, 'on written motion for review stating the grounds for the relief sought, * * * (to) modify or vacate any order denying or fixing the amount of bail'. See also General Statutes (Rev. to 1968) § 54-63g.

At the hearing in the Superior Court, the state claimed that, since the grand jury had indicted the defendant for first- degree murder, which is a crime for which the punishment could be death, he was not entitled to bail by virtue of § 54-53 of the General Statutes (Rev. to 1968), which provides that '(e)ach person detained in jail for arraignment, sentencing or trial for an offense not punishable by death shall be entitled to bail and shall be released from jail upon entering into a recognizance, with sufficient surety, * * * for his appearance before the court having cognizance of the offense'. This statute, which appears in substantially the same form as § 97 on page 171 of the Revision of 1821, makes it clear that for a century and a half, in all noncapital cases, an accused has been entitled to preconviction release on bail in a reasonable amount.

The defendant claimed (1) that § 54-53 did not deny bail in all capital cases if properly construed in the light of the provision in § 8 of article first of the constitution of Connecticut (1965) providing that '(i)n all criminal prosecutions, the accused shall have a right * * * to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great' and (2) that, if 54-53 could be properly construed as denying bail in capital cases other than those in which 'the proof is evident or the presumption great', it was, to the extent of that denial, unconstitutional as contrary to the above-quoted bail provision of § 8 of article first of the Connecticut constitution.

The court overruled both contentions of the defendant, in effect holding that bail was not permissible in a capital case. In so holding, the court followed the traditional practice in Connecticut, but one which we are now constrained to hold is erroneous. Parenthetically, it may be noted that this is the first time that a claim for bail in a capital case has been made, to our knowledge, in a Connecticut court.

On the bail hearing in the Superior Court, the state steadfastly refused to produce, and did not produce, any evidence tending to show either that 'the proof * * * (was) evident' of the defendant's guilt of first-degree murder or that 'the presumption (was) great'. A claim of the defendant that the state had the burden of proving that he was within the constitutional exception disentitling him to bail was also overruled.

Although the defendant was permitted to offer informal evidence, such as letters as to his good character, it is clear that the court held that as matter of law the defendant, having been indicted for first-degree murder, was not entitled to bail.

The order of the Superior Court denying bail on that ground, under the circumstances of this case as hereinafter discussed, was erroneous, and the application for bail must be remanded in order that there be a new hearing to determine whether the defendant in this case falls within the constitutional exception denying bail in a capital case 'where the proof is evident or the presumption great'.

While in a technical sense this is dispositive of the matter, in fairness to the trial court, the state and the defendant, we think it practically necessary that consideration be given to two more matters certain to arise on the rehearing. One of these matters is the amount of evidence required to bring an accused within the exception disentitling him to bail, and the other is the question of the burden of adducing such evidence and the risk of nonpersuasion on the issue of a right to bill in this capital case.


The constitution is so worded as to create an exception which itself is in the disjunctive, that is, the accused, even though under indictment for first-degree murder, is entitled to bail except when '(1) the proof is evident or (2) the presumption great'.

The fundamental purpose of bail is to ensure the presence of an accused throughout all proceedings, including final judgment. If an accused were kept locked up in jail from the time of his arrest, there would be no question as to his availability at all times. But the bail provision of § 8 of article first of our constitution makes clear that it was intended that in all cases, even capital case not falling within the exception, bail in a reasonable amount should be ordered. This is reinforced by a further provision in the same section of our constitution prohibiting a requirement of 'excessive bail', which thus prevents a court from fixing bail in an unreasonably high amount so as to accomplish indirectly what it could not accomplish directly, that is, denying the right to bail. But a reasonable amount is not necessarily an amount within the power of an accused to raise. It is an amount which is reasonable under all the circumstances relevant to the likelihood that the accused will flee the jurisdiction or otherwise avoid being present for trial. See 2 Swift, Digest, p. 395.

It must not be overlooked that we are concerned here only with preconviction bail. We are not at all concerned with postconviction bail and a stay of execution of sentence during the pendency of an appeal. Such bail is entirely disassociated from the preconviction presumption of innocence, is not authorized by any constitutional requirement but only under § 54-63f of the General Statutes (Rev. to 1968), and should be granted with great caution, as pointed out in cased such as State v. Vaughan, 71 Conn. 457, 460, 42 A. 640.

It is difficult to state the proper rule or test as to when 'the proof is evident or the presumption great', but we think it has probably been as well expressed as anywhere in State v. Konigsberg, 33 N.J. 367, 377, 164 A.2d 740, where it was said that 'bail should be denied (in a capital case) when the circumstances disclosed indicate a fair likelihood that the defendant is in danger of a jury verdict of first degree murder.' This rule was reaffirmed in State v. Obstein, 52 N.J. 516, 522, 247 A.2d 5. Of course the foregoing rule, like any other objective rule, is open to criticism in that the actual likelihood that the defendant will abscond, which is the material question on any bail hearing, depends on his subjective opinion as to his likelihood of conviction rather than on any objective test of his actual danger of conviction. The phraseology of the constitution, however, seems to call for an objective test, and, unless and until some better test can be evolved, we think the above-quoted test should be followed.


The most difficult question remains. And that is, in a postindictment, preconviction application for bail in a capital case, where does the burden of proof lie to bring the accused within the constitutional exception to the right to bail, that is, to prove that 'the proof (of guilt of murder in the first degree) is evident or the presumption great'. We have already held that the court below was, in this case, in error in deciding, in accordance with the claims of the state, that the grand jury's first-degree murder indictment was conclusive proof that the defendant was within the constitutional exception disentitling him to bail and in its further holding, also in accord with a claim of the state, that as matter of law bail was not permissible in any capital case.

In another unrelated application for bail in the capital case of State v. Carter, Conn., 268 A.2d 677, argued in this court on the same day and decided this day in a separate opinion, the state made a secondary or alternative claim that, if bail was permissible after a first-degree murder indictment, the indictment itself is sufficient to make out a prima facie case that the proof is evident or the...

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54 cases
  • State v. Mitchell
    • United States
    • Connecticut Supreme Court
    • July 1, 1986
    ...(1931). Although originally conceived as a shielding device to protect individuals from unfounded prosecutions; State v. Menillo, 159 Conn. 264, 275, 268 A.2d 667 (1970); the grand jury system came to be widely criticized for its secret operation and its ex parte nature. See Spinella, Conn.......
  • State v. Stepney
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    ...§ 54-45; Cobbs v. Robinson, 528 F.2d 1331, 1338 (2d Cir.), cert. denied, 424 U.S. 947, 96 S.Ct. 1419, 47 L.Ed.2d 354; State v. Menillo, 159 Conn. 264, 275, 268 A.2d 667. Unlike a petit jury, a grand jury does not determine the truth of the charges contained in the indictment. The role of th......
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    ...its functions is similar to the general investigatory grand jury known to common law which could inquire into crimes. State v. Menillo, 159 Conn. 264, 273, 268 A.2d 667. There remains however, one essential difference which distinguishes the investigatory inquiry from the common-law investi......
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    ...428, 428 (1815). Typically, the state's attorney submits to the grand jury a list, suggesting possible witnesses. State v. Menillo, 159 Conn. 264, 273-74, 268 A.2d 667 (1970); 2 Swift's Digest, 394. Witnesses who do not voluntarily come before the grand jury must be subpoenaed. Throughout o......
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