State v. Moynahan

• Decision Date: 05 April 1973
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Paul MOYNAHAN.

Page 199

325 A.2d 199

164 Conn. 560

STATE of Connecticut v. Paul MOYNAHAN.

Supreme Court of Connecticut.

April 5, 1973.

Certiorari Denied Oct. 23, 1973. See 94 S.Ct. 291.

Edward F. Hennessey, III, Hartford, with whom was James A. Wade, Hartford, for appellant (defendant).

Dennis F. Gaffney, Sp. Asst. State's Atty., for appellee (state).

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

LOISELLE, Associate Justice.

The defendant, the deputy superintendent of the Waterbury police department, was found guilty by a jury of the crime of receiving stolen goods in violation of General Statutes § 53-65. He has appealed from the judgment rendered on the verdict, assigning thirty-two errors. All of the claimed errors have been considered but no sueful purpose would be served by a lengthy discussion of each assignment of error. Many of the issues raised by the defendant have been previously determined by this court and are well established by precedent in our law. Only those issues, therefore, which merit comment are discussed.

The defendant in his assignment of errors attacks the court's (Barber, J.) denial of his motion to quash, his motion for change of venue and his motion to dismiss on the ground that the state's attorney is appointed by the judges of the Superior Court and, hence, unconstitutionally appointed. The defendant further claims that the inquiry under General Statutes § 54-47 was unconstitutional; that the warrant was issued without probable cause, and that the court erred in its denial of the defendant's motion to dismiss based on a claim that the state's attorney did not provide exculpatory information as ordered by the court. All of these motions were made before trial.

I

The motion to quash alleged that Wayne Bishop, a captain in the state police, was present at an investigatory inquiry held under § 54-47 ¹ on May 6, 1969, and the finding and both appendices reveal that Captain Bishop was in fact present. The motion alleged that Captain Bishop's presence was illegal and that he 'further participated illegally in said hearings as he acted as an attorney propounding questions to the witnesses.' There is nothing in the record or the appendices to substance this latter claim. In fact, Captain Bishop's testimony narrated in the state's appendix to its brief is to the contrary.

While the record is devoid of an order for an inquiry under § 54-47, it is evident that an inquiry was in fact conducted by former Chief Justice O'Sullivan, a state referee, and that evidence taken at that inquiry was used against the accused by the state through the testimony of Captain Bishop. The defendant limits his argument in his brief to the claim that the presence of Captain Bishop at the investigatory inquiry was a violation of § 54-47.

General Statutes § 54-47, enacted in 1941, provides for a one-man investigation significantly different from the constitutional grand jury empowered to indict under General Statutes § 54-45. Since Lung's Case, 1 Conn. 428, the proceedings under § 54-45 have been uniform by rule of court. It is clear that § 54-47 affords a greater informality and a more broadly based scope of inquiry than that of a constitutional grand jury with power of indictment. The investigatory inquiry can be private or public, witnesses may be questioned by the judge, the referee, the state's attorney, the assistant state's attorney or any other attorney appointed for that purpose and the report made to the Superior Court by the judge or the referee may be made public. Anyone accused of a crime as a result of such inquiry is guaranteed access to the transcript of his own testimony. Furthermore, there is no restriction placed by statute on the presence of any person at the inquiry. The modern investigatory inquiry authorized by § 54-47 in 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 investigatory grand jury. Under § 54-47 the judge or referee who conducts the inquiry has no power or authority to issue an indictment. His sole function is to investigate and report his findings to the court. The court has the option of making the information garnered by the inquiry available to the state's attorney but this decision under § 54-47 rests with the court, not the investigating officer. The latitude afforded the judge or referee under the statute is designed to ensure that the proceeding is conducted in an orderly and expeditious manner. To that end, it was proper for the referee conducting the investigation to utilize whatever assistance he deemed necessary, including the presence of the officer who originally was charged with the investigation prior to a court-ordered inquiry.

The final motion to dismiss submitted prior to trial is divided into three parts, of which only two are briefed. Our discussion is limited to those portions of the motion which were briefed. The motion to dismiss attacks § 54-47 as unconstitutional on its face because of a lack of minimum standards of due process. The defendant's principal claims are that the report can be made public, that counsel are precluded from attendance, and the right of confrontation and of cross-examination is denied a witness. The defendant relies principally on Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404. That case, however, is inapposite to the present matter. The Supreme Court in Jenkins v. McKeithen, supra, 431, 89 S.Ct. 1853, found that the function of the commission under attack was 'to make specific findings of guilt, not merely to investigate and recommend.' It specially held that 'the Commission exercise(d) a function very much akin to making an official adjudication of criminal culpability.' The Supreme Court in the Jenkins case reaffirmed Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1037. The Hannah case, supra, 441-442, 80 S.Ct. 1502, 4 L.Ed.2d 1307, had held that in a purely investigatory inquiry by a body appointed or created for that purpose alone the rights of apprisal, confrontation, or cross-examination of witnesses were not constitutionally required by the due process clause. The inquiry under § 54-47 is made by an independent judicial officer and is investigatory and nonadjudicative. An inquiry is conducted and a report is made to the court. The inquiry has no other purpose or function and therefore does not violate the defendant's due process rights. Salvaggio v. Cotter, 324 F.Supp. 681 (D.Conn.), affirmed, 2 Cir., 447 F.2d 1406; see also Puglia v. Cotter, 333 F.Supp. 940 (D.Conn.), cert. denied, 405 U.S. 1073, 92 S.Ct. 1492, 31 L.Ed.2d 806, affirmed, 2 Cir., 450 F.2d 1362. The further claim that the inquiry is a critical stage of a proceeding requiring the presence of counsel under the Miranda rule is without merit. The inquiry is investigatory and cannot be described as custodial where 'a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.' Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694.

The investigation in this case was conducted in private. The defendant's claims of prejudicial disclosure are merely conjectural; see Jenkins v. McKeithen, supra, 395 U.S. 427, 89 S.Ct. 1843, 23 L.Ed.2d 404; and adequate remedies were available to provide timely safeguards against publication of the findings. Kennedy v. Justice of District Court, 356 Mass. 367, 252 N.E.2d 201. Furthermore, it is clear that this investigation was not an accusatorial or adjudicative process but was simply investigatory in design and operation. Section 54-47 did not deny the defendant due process guarantees and is not an unconstitutional exercise of legislative authority. Diligent inquiry to ferret out crime will not be frustrated or denied so lone as due process safeguards are available to protect the rights of the parties affected.

The remaining part of the motion to dismiss attacks the appointment of the state's attorney by the Superior Court judges as a denial of due process guaranteed by both the federal and state constitutions. The basis of the defendant's argument is that the state's attorney exercises an executive function in prosecuting crimes and cannot constitutionally be appointed by the judicial department. Alternatively, the defendant contends that the exercise of this appointment power, if constitutionally valid, nevertheless violates principles of due process by interjecting the judiciary unnecessarily into the accusatorial system.

General Statutes § 51-175 directs that the appointment of the state's attorney be made by the judges of the Superior Court.

Under the constitution of the state of Connecticut, appointments, other than those whose mode is prescribed, are governed by the division of governmental powers. State v. Stoddard, 126 Conn. 623, 627, 13 A.2d 586; Norwalk Street Ry. Co.'s Appeal, 69 Conn. 576, 586, 37 A. 1080. 'Our own constitution, like most constitutions, provides for certain elective and legislative appointments; but, except in the cases specified, appointment to office is an exercise of executive power, unless used as a means appropriate to the exercise of powers granted to another department, and, when so used, it is not the exercise of executive power, within the meaning of the constitution.' Norwalk Street Ry. Co.'s Appeal, supra, 595, 37 A. 1086.

In determining whether the appointment of a state's attorney by the judges of the Superior Court is a means appropriate to the exercise of the judicial power, a controlling consideration is the functional consistency of such an appointment with the duties and powers of the judicial department as distinct from those of the executive department.

The functions of a state's attorney are not purely those of an...