State v. Mortoro

• Decision Date: 08 January 1969
• Citation: 157 Conn. 392,254 A.2d 574
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Ort MORTORO.

Page 574

254 A.2d 574

157 Conn. 392

STATE of Connecticut v. Ort MORTORO.

Supreme Court of Connecticut.

Jan. 8, 1969.

Joseph E. Moukawsher, New London, for appellant (defendant).

C. Robert Satti, Asst. State's Atty., with whom, on the brief, was Edmund W. O'Brien, State's Atty., for appellee (state).

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

HOUSE, Associate Justice.

The defendant was tried by a jury on a substituted information which charged him with attempting to hinder and prevent a state witness in violation of § 53-148 of the General Statutes. The jury returned a verdict of guilty. The court denied the defendant's motion to set aside the verdict as contrary to law and against the evidence, and from the judgment rendered on the verdict the defendant has appealed, assigning error in the court's denial of the motion as well as certain other errors claimed to thave occurred in the course of the trial. Several of the latter claims were raised for the first time on the appeal, and these we do not consider. Practice Book § 652; State v. Smith, 156 Conn. 378, 386, 242 A.2d 763; Gulia v. Ortowski, 156 Conn. 40, 44, 238 A.2d 396; State v. Costa, 155 Conn. 304, 306, 232 A.2d 913.

The portion of § 53-148 under which the defendant was charged makes it a criminal offense to attempt to hinder or prevent any person summoned or who may be used as a witness in any civil or criminal proceeding from appearing as a witness or from giving his testimony in any such proceeding. The denial of the defendant's motion to set aside the verdict is tested in the light of the evidence printed in the appendices to the briefs. State v. Gyuro, 156 Conn. 391, 397, 242 A.2d 734, application for stay or bail denied, 391 U.S. 963, 88 S.Ct. 2029, 20 L.Ed.2d 875; State v. Schindler, 155 Conn. 297, 301, 231 A.2d 652.

The appendices properly disclose in detail the evidence which the jury had for consideration. Practice Book §§ 716-722. On September 13, 1966, Robert S. Daly, an inmate of the state jail, was taken by a guard to the courtroom for the Circuit Court in the tenth circuit in Norwich, pursuant to a writ of habeas corpus ad testificandum, to testify as a witness for the state in bind-over hearings in connection with prosecutions against the defendant and Alexander Desimone. The hearing in the case against the defendant was continued for one week for him to obtain counsel, but the hearing in the case against Desimone was presented, and Daly took the witness stand and testified. The substance of his testimony in the present case was that he knew the defendant and Desimone, that the defendant operated jukeboxes at his place of business, that Desimone told Daly that the defendant wanted Desimone to mess up the jukeboxes with glue, that in Daly's presence the defendant gave Desimone some money and told him to do a good job, that thereafter Daly was present when Desimone poured a glue compound over the keyboard of the competitor's jukebox, after which Desimone telephoned the defendant at the latter's place of business and, the defendant being absent, told the party who answered to tell the defendant that he (Desimone) had done a good job. After testifying in the hearing against Desimone, Daly was taken to the jury room at the rear of the courtroom to await transportation back to the jail. The guard stood near the doorway of the jury room. He was wearing a jacket and does not recall whether his badge was visible. The most direct route out of the courtroom from where the defendant had been sitting with Mrs. Desimone was by the aisle against the wall next to the exit. When court adjourned, the defendant walked up the center aisle and turned to his right. He stepped toward the jury room about three or four feet from where the guard was standing, pointed his finger at Daly, who was about three feet behind the guard and inside the jury room, and in a very stern, serious voice said to Daly: 'I don't forget, remember that.' The guard testified that Daly 'became very nervous and appeared to be afraid, shaking.' The guard summoned a state police officer who was entering the courtroom as the defendant was walking out; that officer conferred with the prosecuting attorney and then arrested the defendant.

On this evidence the jury could reasonably and logically find that the incident was not 'only an emotional outburst' on the part of the defendant, as he claims, but that he was guilty, as charged, of the crime of attempting to hinder or prevent Daly from appearing as a witness or from giving his testimony in the cases against the defendant and Desimone. There was, accordingly, no error in the court's denial of the motion to set aside the verdict as contrary to the law and evidence.

The defendant's second assignment of error is that the court erred in finding without evidence that Daly had gone to California in January of 1966 because his life had been threatened. Since this trial was to the jury, the court itself made no finding of facts but, as...