State v. Nash

• Court: Supreme Court of Connecticut
• Writing for the Court: KING
• Citation: 183 A.2d 275,149 Conn. 655
• Parties: STATE of Connecticut v. LeRoy NASH. Supreme Court of Errors of Connecticut
• Decision Date: 19 July 1962

Page 275

183 A.2d 275 149 Conn. 655 STATE of Connecticut
v.
LeRoy NASH. Supreme Court of Errors of Connecticut. July 19, 1962.

[149 Conn. 656]

Page 276

LeRoy Nash, pro se, the appellant (defendant).

John F. McGowan, Assistant State's Attorney, with whom, on the brief, was Otto J. Saur, State's Attorney, for the appellee (state).

Before [149 Conn. 655] KING, MURPHY and SHEA, JJ., and PASTORE and LEIPNER, Superior Court Judges.

[149 Conn. 656] KING, Associate Justice.

On July 9, 1947, LeRoy Nash, the defendant, was sentenced to prison for a term of not more than thirty years nor less than twenty-five years, after a trial to the jury and a verdict of guilty on an information charging him with assault with intent to murder Eugene Melvin, a captain in the Danbury police department, on May 26, 1947. See General Statutes § 53-12. No appeal was taken, and the defendant began the service of his sentence at the Connecticut State Prison, at Wethersfield.

I

On November 29, 1958, a little over eleven years after the rendition of judgment against him, the defendant filed what purported to be an appeal to this court. In it, he sought a reversal of the 1947 judgment of conviction and a new trial. The grounds of appeal alleged were a denial of the right to be heard and a denial of the right to obtain or contact counsel of his choice. The papers in the so-called appeal were returned to the defendant by the clerk [149 Conn. 657] of this court, who suggested that they be sent to the Superior Court in Fairfield County, where the defendant was originally convicted. The defendant did so send them, but what, if any, action the Superior Court took on them does not appear in the present record.

After subsequent maneuvers in the state and federal courts, Nash instituted in the United States District Court for the district of Connecticut an action of habeas corpus against Mark S. Richmond as warden of the Connecticut State Prison, in which Nash was serving not only his sentence under the 1947 conviction but two subsequent sentences imposed after he pleaded guilty to charges of attempted escapes. United States ex rel. Nash v. Richmond, Civil No. 7718, D.Conn., Sept. 12, 1959. The District Court found as a fact, on the basis of testimony by Nash, that he had attempted to send a letter to the Connecticut Supreme Court of Errors, as a notice of appeal (Practice Book, §§ 378, 414), within one week of his 1947 conviction; that the mail clerk at the prison returned the letter to him; and that Nash then wrote to a

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Bridgeport attorney, asking for assistance on the appeal, but the letter was received too late for an appeal to be taken. The court further found that Nash had become a pauper, unable to pay appellate fees, costs and expenses, and that an application for a writ of habeas corpus which he made to the Superior Court in Hartford County on December 23, 1958, on the ground that he was illegally denied a right to appeal the 1947 conviction, was returned to him by the Superior Court for lack of an entry fee, and consequently was not determined.

On the basis of these findings, the District Court concluded that (1) Nash had been illegally deprived [149 Conn. 658] of the right of appeal in 1947 by the action of the mail clerk at the prison; (2) the failure to grant him an appeal was a denial of due process; (3) it would also be a violation of due process for the state to require filing fees, costs and bonds as a prerequisite to an appeal by Nash since he was, at least at that time, a pauper; and (4) Nash had exhausted his state remedies. Judgment was accordingly rendered, on September 12, 1959, 'discharging Nash from custody unless within a reasonable time the filing of appeal by him to the Supreme Court of Errors from the 1947 conviction is permitted, and reasonable opportunity given thereafter for presenting the case on appeal.' The present appeal from the 1947 conviction was afforded Nash pursuant to that mandate.

The record in this case was prepared in accordance with the wishes of the defendant, as set forth in a motion filed by him on January 8, 1962. His original brief and his reply brief were printed as he wrote them. Neither the record nor the briefs in any way support the defendant's claims of error in the 1947 trial. Indeed, the record and his original brief deal solely with matters concerning the prosecution of this appeal and in no way concern the 1947 trial, and the defendant himself so claims at one point in his reply brief. At another point in that brief, however, he claims that (a) at the 1947 trial the public defender was forced on him as counsel, over his protests to the presiding judge that he wished to hire private counsel at his own expense, and (b) he was not visited or interviewed by the public defender until just before the trial and therefore was inadequately represented by the public defender at that trial.

The defendant's mere assertion of these claims [149 Conn. 659] in no way establishes their validity. A defendant cannot make a claim of fact and then call on the state affirmatively to disprove it. If the record fails to indicate that any such thing ever occurred, there would be nothing which the state could point to which would affirmatively show that it did not occur. There is no presumption of error in the trial of a case. An appellant, to substantiate the claims he makes, must bring before this court something more than his mere uncorroborated statement. See United States v. Morgan, 346 U.S. 502, 512, 74 S.Ct. 247, 98 L.Ed. 248. The defendant made no effort to obtain a finding from the trial judge as to the true facts with respect to the matters in the 1947 trial claimed as error. An inspection of the voluminous file in this case discloses that the making of any finding was opposed by the defendant in a paper filed by him...