State v. Mitchell

• Decision Date: 01 July 1986
• Citation: 200 Conn. 323,512 A.2d 140
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Jerry MITCHELL.

Page 140

512 A.2d 140

200 Conn. 323

STATE of Connecticut v. Jerry MITCHELL.

Supreme Court of Connecticut.

Argued April 2, 1986.

Decided July 1, 1986.

Jon L. Schoenhorn, Special Public Defender, for appellant (defendant).

Donald A. Browne, State's Atty., with whom, on brief, was Jonathan C. Benedict, Asst. State's Atty., for appellee (State).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, DANNEHY and SANTANIELLO, JJ.

PETERS, Chief Justice.

The principal issue on this appeal is whether the trial court's finding of probable cause that the defendant had committed the crime with which he was charged, made at a preliminary hearing mandated by article first, § 8, of the Connecticut constitution as amended, ¹ is reviewable on appeal after the defendant's subsequent conviction. The defendant, Jerry Mitchell, was convicted of felony murder in violation of General Statutes § 53a-54c, ² and sentenced to imprisonment for forty years. He appeals from that judgment.

The jury could reasonably have found the following facts. During the early morning hours of June 24, 1983, the victim, a thirty-four year old male, approached the defendant and three associates as they stood outside of a bar in Bridgeport. He asked them to help him locate a woman who had allegedly stolen his wallet. The four men agreed, but, when the victim went to get his car, they made plans to rob him. Subsequently, they accompanied the victim to another section of Bridgeport, where they beat and stabbed him to death. Following the attack, the four men fled the scene in the victim's car. They later removed the tires from the car, sold them and split the proceeds. Two days afterward, the defendant was arrested and charged with felony murder in connection with this incident. A probable cause hearing was held on August 4, 1983, pursuant to article first, § 8, of the Connecticut constitution as amended and General Statutes § 54-46a. Following a finding by the trial court, Callahan, J., that the state had established probable cause to believe that the defendant had committed the offense of felony murder, the defendant was arraigned and bound over for trial.

On appeal from the judgment against him, the defendant raises two claims of error. ³ He claims that the trial court should have dismissed the charge against him because: (1) the evidence presented at the preliminary hearing was insufficient to support the finding of probable cause; and (2) General Statutes § 54-46a(b), by prohibiting discovery motions at preliminary hearings, deprived him of his constitutional rights to due process and to confront and cross-examine the witnesses against him, and therefore vitiated the finding of probable cause. We find no error.

I

The defendant's first claim requires us to make a threshold determination of whether the trial court's finding of probable cause made at the preliminary hearing is reviewable on appeal after the defendant's conviction. This is a question of first impression, requiring us to interpret the new constitutional right to a probable cause hearing that became part of our state constitution in November, 1982. Only if we decide this initial question in the affirmative need we address the defendant's substantive claim that the evidence presented at the hearing was insufficient to establish probable cause.

A

The state contends that a finding of probable cause at a preliminary hearing should not be reviewable following conviction after trial. It argues that the probable cause hearing created by amendment to article first, § 8, of the state constitution was devised as a substitute for the simultaneously abolished indicting grand jury system. Reasoning by analogy from the well established rule barring review of the adequacy and competency of the evidence submitted to a grand jury to support an indictment, the state maintains that we should similarly foreclose review of the adequacy and competency of the evidence submitted at a probable cause hearing. In order to determine the validity of this syllogism, it is necessary for us to review briefly the genesis of the newly established probable cause hearing system and the purpose behind its creation.

Prior to November, 1982, the Connecticut constitution required a grand jury indictment as a prerequisite to the prosecution of anyone charged with a crime punishable by death or life imprisonment. This right to a grand jury determination of probable cause had its origin in our early statutory and common law and became part of our constitutional rights when the first state constitution was adopted in 1818. See State v. Sanabria, 192 Conn. 671, 674, 474 A.2d 760 (1984); Nahum & Schatz, "The Grand Jury in Connecticut," 5 Conn. B.J. 111, 111-21 (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.Crim.Proc. (1985) pp. 272-73; Berdon, "Connecticut Grand Juries: The Case for Reform," 54 Conn. B.J. 8, 9-16 (1980); Goldstein, "The State and the Accused: Balance of Advantage in Criminal Procedure," 69 Yale L.J. 1165, 1171 (1960). In Connecticut, an accused was generally permitted to attend the grand jury session and to question witnesses, but he was not permitted to have his attorney present or to present evidence in his own behalf. State v. Couture, 194 Conn. 530, 552-57, 482 A.2d 300 (1984), cert. denied, 469 U.S. ----, 105 S.Ct. 967, 83 L.Ed.2d 971 (1985); State v. Avcollie, 188 Conn. 626, 631-33, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S.Ct. 2088, 77 L.Ed.2d 299 (1983); State v. Menillo, supra, 159 Conn. 274, 268 A.2d 667. In addition, in order to preserve the traditional secrecy of grand jury proceedings, the use of the transcript of the session itself was carefully limited by statute; ⁴ State v. Couture, supra, 194 Conn. 554-55, 482 A.2d 300; State v. Canady, 187 Conn. 281, 286-87, 445 A.2d 895 (1982); and this legislative proscription was strictly construed by this court. In re Final Grand Jury Report Concerning the Torrington Police Department, 197 Conn. 698, 708-709, 501 A.2d 377 (1985); State v. Canady, supra, 187 Conn. 287, 445 A.2d 895. The statutory interdiction of access to the grand jury transcript meant that a person against whom an indictment had been returned was effectively precluded from obtaining a judicial review of the evidentiary basis for his indictment. State v. Vinal, 198 Conn. 644, 656, 504 A.2d 1364 (1986); State v. Morrill, 197 Conn. 507, 519, 498 A.2d 76 (1985); State v. Couture, supra, 194 Conn. 555, 482 A.2d 300; State v. Canady, supra, 187 Conn. 287, 445 A.2d 895.

In an attempt to correct these perceived inequities of the grand jury system and to provide expanded protections to an accused charged with a serious crime; see 24 H.R. Proc., Pt. 10, 1981 Sess., pp. 3148-50, remarks of Rep. Alfred J. Onorato; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 1981 Sess., pp. 369-70, remarks of Rep. Richard D. Tulisano; ⁵ the legislature in 1981 proposed a constitutional amendment to abolish the grand jury indictment system in Connecticut and to replace it with an open and adversarial probable cause hearing. See Substitute House Joint Resolution No. 36 (1981). This proposed amendment was approved by the electorate on November 2, 1982, and certified by the secretary of state on November 24, 1982, as amendment seventeen to the Connecticut constitution. State v. Sanabria, supra, 192 Conn. 676-77, 474 A.2d 760.

Amendment seventeen to article first, § 8, coupled with implementing legislation effective May 26, 1983; see General Statutes § 54-46a; ⁶ has created expansive new rights for an accused charged with a serious crime. ⁷ In order to provide such an individual with greater protections than he was afforded under the former grand jury system; see 26 S.Proc., Pt. 4, 1983 Sess., pp. 1413-14, remarks of Sen. Howard T. Owens; 26 H.R. Proc., Pt. 8, 1983 Sess., pp. 2945-46, remarks of Rep. Alfred J. Onorato; 26 H.R.Proc., Pt. 10, 1983 Sess., p. 3783, remarks of Rep. Alfred J. Onorato; ⁸ this new provision guarantees that no one will be forced to stand trial for a serious crime unless a court has first made a finding of probable cause at an open hearing in which the accused is provided with a full panoply of adversarial rights. A judicial determination of probable cause has thus been made a constitutional prerequisite to the court's subsequent jurisdiction to hear the trial.

The defendant claims that, in order to give meaning to this new constitutional safeguard, he must be afforded an opportunity to challenge on appeal the jurisdictional underpinnings of his conviction. Without such an opportunity for appellate review, he argues, the expanded protection envisioned by the adoption of amendment seventeen is but a hollow shell. We agree.

Appellate review of the adequacy of a constitutionally mandated determination of probable cause is required to give effect to the legislative history of amendment seventeen to article first, § 8. That history unequivocally manifests the intent of the legislature to adopt the preliminary probable cause hearing system as a constitutional safeguard to afford greater protection of an accused's rights than the grand jury system had provided. Displacement of the indicting grand jury displaces the rationale behind our historical refusal to review grand jury proceedings. There is no further need to preserve the secrecy of the indictment process when a probable cause hearing is now conducted in public. ⁹ We believe that appellate review of the determination of probable cause is essential to fulfilling the purpose of amendment seventeen.

The state argues, however, that such a reading of article first, § 8, as amended is in direct conflict with our recent holding in State v. Fleming, 198 Conn. 255, 502 A.2d...