State v. Nardini

• Decision Date: 13 July 1982
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Dante NARDINI.

Page 396

447 A.2d 396

187 Conn. 513

STATE of Connecticut v. Dante NARDINI.

Supreme Court of Connecticut.

Argued March 31, 1982.

Decided July 13, 1982.

Suzanne Zitser, Asst. Public Defender, with whom, on the brief, were Jerrold H. Barnett, Public Defender, and Richard Emanuel and Joette Katz, Asst. Public Defenders, for appellant (defendant).

Mary M. Galvin, Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty., and Linda K. Lager, Asst. State's Atty., for appellee (State).

Before SPEZIALE, C. J., and PETERS, PARSKEY, SHEA and COVELLO, JJ.

SHEA, Associate Justice.

The defendant was found guilty by a jury of conspiracy to commit arson in the first degree in violation of General Statutes §§ 53a-111(a) and 53a-48 and also of the crime of arson in the first degree in violation of General Statutes § 53a-111(a). He was found not guilty on a third count charging larceny in the second degree. In his appeal from the judgment on the two counts of which he was convicted the defendant has raised five claims of error: (1) that he was denied his statutory right to have counsel present before the judge who conducted an investigation pursuant to General Statutes § 54-47 which preceded the institution of the criminal charges upon which he was tried; (2) that the admission of so much evidence of other misconduct on his part, both prior and subsequent to the offenses charged, deprived him of due process of law; (3) that the use of two prior felony convictions for the purpose of impeaching him was improper because of their irrelevance to credibility and their remoteness in time; (4) that the court charged that the defendant could be found guilty of arson without actually having the requisite intent; and (5) that a reference in the charge to one of the state's witnesses as an accomplice was erroneous. We find no error.

I

On October 16, 1975, more than a year before the institution of the present criminal proceeding against him, the defendant was summoned before a judge appointed as a so-called "one-man grand jury" pursuant to General Statutes § 54-47 to investigate several suspicious fires in New Haven, including a fire which destroyed a garage at the rear of 778-780 George Street on November 14, 1974. A corporation owned by the defendant and his wife held title to this property. As an officer of the corporation the defendant was subpoenaed and directed to bring certain records of the corporation to the investigation. After these documents were submitted, the state's attorney stated that he intended to question the defendant. The defendant was informed by the judge of his right to have counsel with him during the inquiry as provided by § 54-47(f) and also of his constitutional right against self-incrimination. The defendant said that he had a lawyer who was not available that day. The judge offered to postpone the defendant's interrogation until his lawyer could be with him. The defendant said he did not want to come back on some other day and lose additional time from his business. The state's attorney warned the defendant that he was a target of the investigation and that he was being given an opportunity to have counsel with him. The defendant said he understood, but when asked by the state's attorney whether he waived "those rights" the defendant replied that he was "not willing to waive any rights." The judge then interjected that "[a]ll he is willing to waive is his right to have an attorney; that's all." The defendant repeated that he was not willing to waive any rights, but added "I want to get through with this thing now." The judge commented that the question of the state's attorney had been overbroad, that only the waiver of the right to counsel was being discussed, and that no other waivers would be permitted.

At the conclusion of this colloquy the state's attorney began to question the defendant. Some of this testimony was used at the trial of the present case for the purpose of impeaching the credibility of the defendant after he had taken the stand in his own defense. Although no objection was raised nor exception taken to such use of this testimony at the trial, as required to preserve a claim of error in the admission of evidence; Practice Book §§ 288, 3063; the defendant seeks review of this claimed violation of his right to counsel under the exception we have established for a deprivation of a fundamental constitutional right; State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973); and also under our discretionary power to notice "plain error." Practice Book § 3063.

We see no good reason in this case to exercise our authority to review the defendant's claim as "plain error." The situation is not distinguishable from many other cases where we have refused to consider issues first raised on appeal. See, e.g., State v. Miller, 186 Conn. 654, 672, 443 A.2d 906 (1982); State v. Kurvin, 186 Conn. 555, 564, 442 A.2d 1327 (1982); cf. Batick v. Seymour, 186 Conn. 632, 641, 443 A.2d 471 (1982). We are not convinced that the inference drawn by the judge from what transpired before him that the defendant wished to proceed without counsel rather than be required to return some other day was so unwarranted that we should "in the interest of justice" overlook the failure of the defendant to preserve this claim of error properly at trial.

We also conclude that the claimed error does not fall within the narrow Evans by-pass. See State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982). First, we are not dealing with the constitutional right to counsel established by the sixth amendment to the federal constitution and article first, § 8 of the Connecticut constitution, but with a privilege created by statute. Where a grand jury proceeding is accusatory, a defendant is not entitled to the assistance of counsel. State v. Cosgrove, 186 Conn. 476, 479, 442 A.2d 1320 (1982). It has also been held that there is no such constitutional right before an investigative grand jury. United States v. Mandujano, 425 U.S. 564, 581, 96 S.Ct. 1768, 1778, 48 L.Ed.2d 212 (1976); In re Groban, 352 U.S. 330, 333, 77 S.Ct. 510, 513, 1 L.Ed.2d 376 (1957); In re Taylor, 567 F.2d 1183, 1186n (2d Cir. 1977); United States v. Capaldo, 402 F.2d 821, 824 (2d Cir. 1968), cert. denied, 394 U.S. 989, 89 S.Ct. 1476, 22 L.Ed.2d 764 (1969); State v. Moynahan, 164 Conn. 560, 564-67, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S.Ct. 291, 38 L.Ed.2d 219 (1973); State v. Cobbs, 164 Conn. 402, 412, 324 A.2d 234, cert. denied, 414 U.S. 861, 94 S.Ct. 77, 38 L.Ed.2d 112 (1973).

Second, it appears that the only use made of the testimony of the defendant in the absence of his counsel at the investigative hearing was for the purpose of impeachment. Statements of a defendant which have been obtained after a failure to comply with the requirements for an effective waiver of the right to counsel or the privilege against self-incrimination may be used in cross-examining him after he has taken the witness stand at the trial. United States v. Havens, 446 U.S. 620, 100 S.Ct. 1912, 64 L.Ed.2d 559 (1980); Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). Essentially the deficiency claimed is the insufficiency of the record to demonstrate a knowledgeable waiver by the defendant of his right to counsel. Since a resolution of that question favorable to him would not have barred the use of the resulting testimony for the limited purpose for which it was used, no infringement of a constitutional right could be found in any event. We have no need, therefore, to consider the issue further.

II

With respect to the evidence of other misconduct introduced at the trial, the defendant claims error on several grounds.

The evidence of other misconduct to which the defendant objected at the trial consisted of the testimony of several witnesses that he had solicited them at different times to set fire to certain properties which he owned, including 778-780 George Street, the subject of the arson charged against him, and that he suggested a method of starting a fire similar to the one claimed to have been used to burn that property. The trial court admitted this evidence as having sufficient probative value in showing intent, motive and a system of criminal activity on the part of the defendant to outweigh its prejudicial tendency. State v. Brown, 169 Conn. 692, 701, 364 A.2d 186 (1975); State v. Holliday, 159 Conn. 169, 173, 268 A.2d 368 (1970). The defendant appears to recognize that the testimony of his attempts to induce others to start fires at the George Street property prior to the date when it actually burned and gave rise to this prosecution was admissible to show intent and motivation. The principal focus of his claim of error is upon the testimony of his attempts to start fires, both before and after the date of the crime for which he has been convicted, in other buildings which he owned. We agree with the trial court that this evidence was relevant to show a common scheme on the part of the defendant to have his properties destroyed by fire in a manner similar to that used for the George Street building. See State v. Falby, 187 Conn. 6, 23, 444 A.2d 213 (1982); State v. Barlow, 177 Conn. 391, 394, 418 A.2d 46 (1979); State v. Hauck, 172 Conn. 140, 146, 374 A.2d 150 (1976). The testimony was that the defendant suggested that the fires be ignited by using a book of matches with a lighted cigarette as a slow burning fuse. Such evidence showed a modus operandi sufficiently distinctive to have substantial probative value in indicating that the defendant suggested such a method for the George Street building, thus supporting another witness for the state who so testified. Cf. State v. Ibraimov, 187 Conn. 348, 446 A.2d 382 (1982). Where evidence is relevant to show a common plan or an unusual technique used to commit a crime, we see no reason to exclude it simply because the acts of the defendant involved occurred subsequent to the...