State v. Olds
| Decision Date | 10 August 1976 |
| Citation | 370 A.2d 969,171 Conn. 395 |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. Mark Carvin OLDS. |
John R. Williams, Sp. Public Defender, for appellant (defendant).
Ernest J. Diette, Jr., Asst. State's Atty., with whom, on the brief, was Arnold Markle, State's Atty., for appellee (State).
Before HOUSE, C.J., and LOISELLE, BOGDANSKI, LONGO and BARBER, JJ.
The defendant was tried to a jury of six on a three-count information charging him with robbery in the first degree, in violation of § 54a-134(a)(2) of the General Statutes, unlawful restraint in the first degree, in violation of § 53a-95, and assault in the second degree, in violation of § 53a-60(a)(2). He was found guilty of the lesser included offenses of robbery in the second degree, unlawful restraint in the second degree, and assault in the third degree. On appeal, he has raised seven issues, claiming that the court erred (1) in denying a motion, based upon an alleged withholding of exculpatory evidence by the state, for a mistrial or continuance; (2) in its charge to the jury on the failure of a party to call a witness; (3) in denying a motion to dismiss based upon a claim that the defendant had been illegally incarcerated before trial; (4) in denying the defendant his alleged right to be present during certain stages of the proceedings; (5) in denying a motion to dismiss based upon an allegation that the defendant's mail had been illegally opened while he was in jail pending trial; (6) in denying a motion to dismiss the jury panel based upon a claim that the Connecticut jury selection statutes are unconstitutional; and (7) in denying the defendant his alleged right to trial by a jury of twelve.
A brief discussion of the evidence presented at trial will serve to place in context the defendant's claim that the state withheld exculpatory evidence. 1 The state offered evidence to prove that on August 24, 1973, the defendant and an unidentified companion, armed with shotguns, entered the New Haven apartment of Harry Coe, bound and gagged Coe, took $471 in cash as well as assorted jewelry, and then beat Coe into a state of unconsciousness. The state's case rested primarily upon the testimony of Coe, who testified that on the night of August 24, 1973, he was speaking to a girl friend on the telephone when he heard a knock at his door. He opened the door and two men armed with shotguns forced their way into his apartment. Coe testified that he did not know either of the two men, although he recognized one of them, the defendant, as a man he had seen before. Coe identified the defendant in the courtroom and then described the robbery and beating. He further testified that upon regaining consciousness he returned to the telephone and his girl friend was still on the line.
The defendant did not dispute Coe's testimony that he had been beaten and robbed but did claim that Coe's identification was incorrect. The defendant attempted to prove that Coe was a professional gambler and that his assailants were either Coe's business associates or his friends. Coe's credibility was thus a critical issue at trial.
Before trial, the defendant had moved for disclosure by the state of '(t)he felony record of the victim or any witness or any other information that may be used in a court of law to throw doubt upon the credibility of any victim or witness.' The state responded to this motion by stating that the felony record of any witness would be made available after the witness had testified. During trial, after the state had rested, the defendant moved for production by the state of any statement in its file made by a witness who had not been called to testify. The defendant commented that any such statement would presumably be exculpatory. The trial court examined the state's file in camera and then, saying it was 'bending over backwards,' requested the state to give the defendant a copy of a statement given by Sandra Adams, Coe's girl friend, who had been on the telephone during the robbery.
The statement by Miss Adams is in the form of an affidavit and consists of a transcript of questions asked her by a detective and her responses. The statement indicates that on August 24, 1973, Miss Adams was talking on the telephone with Coe when Coe said he had to answer a knock at the door. She remained waiting on the telephone for about fifteen minutes until Coe returned and informed her that he had been robbed. During the fifteen-minute interval, she heard movements but no sounds of a struggle. When asked if Coe sounded as if he knew the individuals who came into the apartment, she replied, 'I would say yes.' The defendant argued that the statement was exculpatory in that Miss Adams' statement that Coe sounded as if he knew the men who came into the apartment contradicted Coe's testimony that the two men were strangers to him. The defendant, therefore, moved for a continuance which would enable him to subpoena Miss Adams, who was in the service in California, or in the alternative, for a mistrial based upon the state's failure to produce the statement in response to the motion for disclosure of The court ruled that neither a continuance nor a mistrial would be appropriate and the defendant took an exception.
On appeal, the defendant has vociferously pursued his contention that the nondisclosure by the state of Miss Adams' statement constituted a suppression of material evidence favorable to the accused. He further argues that the nondisclosure resulted from 'bad faith' on the part of the state's attorney. His argument rests in large part on the holding in Brady v. Maryland, 373 U.S. 83, 86, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215, that 'the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.' We are not persuaded, however, that the Brady principle is applicable to the present case. Moore v. Illinois, 408 U.S. 786, 794-95, 92 S.Ct. 2562, 2568, 33 L.Ed.2d 706; see State v. Moynahan, 164 Conn. 560, 592, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S.Ct. 291, 38 L.Ed.2d 219. The statement was not 'suppressed,' as that term in used in Brady, since it was in fact made available to the defendant during the course of trial. Nor may the statement be fairly characterized as 'favorable' to the defendant; the limited information it contains is, for the most part, consistent with and supportive of Coe's testimony. The one major inconsistency, Miss Adams' remark that she 'would say' it sounded as if Coe knew the persons who entered the apartment, was, as the trial court observed, of doubtful admissibility. Finally, the defendant does not claim that the statement itself is either exculpatory or material, but argues that if the statement had been disclosed, he would have been able to contact Miss Adams, bring her back from California, and, by her testimony, have been able to damage Coe's credibility. The trial court, having deliberately assessed the potential impact of Miss Adams' statement, determined that no sanction, other than disclosure of the information to the defendant, was necessary. See ABA Standards of Discovery and Procedure Before Trial § 4.7 (approved draft, 1970).
Under the circumstances, the court did not abuse its discretion in denying the defendant's motion for a mistrial or a continuance to enable Sandra Adams to be returned to Connecticut. The denial of a motion for a mistrial is a matter within the sound discretion of the trial court. State v. Grayton,163 Conn. 104, 112, 302 A.2d 246, cert. denied, 409 U.S. 1045, 93 S.Ct. 542, 34 L.Ed.2d 495. 'The general principle is that a mistrial should be granted only as a result of some occurrence on the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial.' State v. Bausman, 162 Conn. 308, 312, 294 A.2d 312, 314. Even after a trial has concluded, a new trial is not automatically required whenever 'a combing of the prosecutors' files . . . has disclosed evidence possibly useful to the defense but not likely to have changed the verdict.' United States v. Keogh, 391 F.2d 138, 148 (2d Cir.). A new trial is required only when there is a reasonable likelihood that the material or information would have affected the verdict. Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104. In this case, there was no omission which deprived the defendant of a fair trial. United States v. Agurs, 427 U.S. 97, 114, 96 S.Ct. 2392, 49 L.Ed.2d 342.
Nor did the court abuse its discretion in denying the motion for a continuance for a period of weeks. The matter of a continuance, like a motion for a mistrial, is also a matter traditionally within the discretion of the trial judge. State v. Bethea, 167 Conn. 80, 86-87, 355 A.2d 6. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 850, 11 L.Ed.2d 921.
In its charge, the court instructed the jury that an adverse inference could be drawn from the failure of the state to call Sandra Adams as a witness,...
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