State v. Orsini

• Decision Date: 01 June 1982
• Citation: 187 Conn. 264,445 A.2d 887
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Chester ORSINI.

Page 887

445 A.2d 887

187 Conn. 264

STATE of Connecticut v. Chester ORSINI.

Supreme Court of Connecticut.

Argued March 4, 1982.

Decided June 1, 1982.

John R. Williams, New Haven, for appellant (defendant).

Robert E. Beach, Jr., Sp. Asst. State's Atty., for appellee (State).

Before PETERS, HEALEY, PARSKEY, SHEA and HENNESSY, JJ.

SHEA, Associate Justice.

The defendant was convicted of larceny in the second degree in violation of General Statutes § 53a-123(a)(2) and also of conspiracy to commit larceny in the second degree in violation of General Statutes § 53a-48 after a jury trial. In a later proceeding he was also found guilty of being a persistent felony offender in violation of General Statutes § 53a-40(b). In his appeal from the judgment the defendant claims (1) that his right of cross-examination was unconstitutionally infringed by rulings which sustained objections to his questions concerning the prior misconduct of two witnesses for the state; (2) that his convictions are invalid because of improper venue; (3) that his conviction of conspiracy is a nullity because of a defect in the wording of that count of the information; (4) that two comments made by the trial judge in the course of the charge to the jury were improper and prejudicial; (5) that his conviction as a persistent felony offender under the second part of the information, in accordance with the procedure set forth in Practice Book § 619, is vitiated by the fact that the previous felony relied upon was a violation of General Statutes § 53-29, which prohibits anyone from assisting in procuring an abortion and, the defendant maintains, was implicitly declared unconstitutional in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). See Abele v. Markle, 369 F.Supp. 807 (D.Conn.1973); State v. Menillo, 168 Conn. 266, 362 A.2d 962, vacated, 423 U.S. 9, 96 S.Ct. 170, 46 L.Ed.2d 152 (1975), on remand, 171 Conn. 141, 368 A.2d 136 (1976); and (6) that his trial attorney ¹ was so inept that the defendant was deprived of the effective assistance of counsel. We find no error sufficient to warrant a new trial and we affirm the judgment.

Although no claim that the evidence was insufficient to support the findings of guilty has been raised, a brief summary of the facts which might reasonably have been found in support of the verdicts furnishes a useful background for evaluation of the defendant's claims. In late December one Morris Ashcroft and two companions broke into a home in Westbrook and removed several antique guns from a chest in the basement. Through an intermediary, Ashcroft met the defendant at a gas station in Westbrook and sold him the guns for $300, informing him that they were stolen and narrating the circumstances of the burglary.

Several days afterward Ashcroft reentered the same house in Westbrook and took some more guns. He telephoned the defendant and arranged to meet him at a store in Westbrook, telling him he had stolen some other guns from the same place. When they met, the defendant purchased these guns for $500.

A week or two later Ashcroft, this time with one companion, stole some rifles ² as well as other items from the Westbrook residence. The defendant met Ashcroft at a restaurant in Meriden as a result of a telephone conversation and he bought the rifles for $800. At this meeting Ashcroft signed a receipt indicating a price of $2500 for the rifles. There was testimony that all of the stolen guns, which were admitted in evidence at the trial, had a value of $13,925.

I

During oral argument the defendant focused mainly upon the rulings of the court made during the cross-examination of two witnesses for the prosecution who had participated with Ashcroft in burglarizing the house in Westbrook. Each of them was asked whether he had broken into any other houses in the Westbrook area with Ashcroft and objections by the state were sustained. No exceptions to the rulings were taken as required by Practice Book § 288. Faced with this obstacle to review of the rulings, the defendant argues that precluding him from this inquiry into the prior misconduct of these witnesses was an error of constitutional dimension falling within the exception created by State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), for such situations.

The defendant relies upon the holding of Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), that undue restriction upon cross-examination of prosecution witnesses for bias or interest, particularly with respect to bargains made concerning the disposition of criminal charges against those witnesses, violates the constitutional right of confrontation. See State v. Annunziato, 174 Conn. 376, 379, 387 A.2d 566 (1978). That principle is wholly inapplicable to the questions which are the subject of the rulings challenged here. Not only do these inquiries make no reference to pending criminal charges against the witnesses, whether formally presented or at some preliminary stage, but no claim of such a purpose was made at trial. Facially the questions appeared to be designed to attack the character of the witnesses by proof of prior specific acts of misconduct other than felony convictions in violation of the general prohibition against such evidence. State v. Zdanis, 173 Conn. 189, 191, 377 A.2d 275 (1977); State v. Martin, 170 Conn. 161, 167, 365 A.2d 104 (1976); Richmond v. Norwich, 96 Conn. 582, 597, 115 A. 11 (1921); Verdi v. Donahue, 91 Conn. 448, 454, 99 A. 1041 (1917). The exception, which allows, in the discretion of the trial court, proof of particular acts having a special significance upon the issue of veracity, cannot be said to require the admission of evidence that a witness has engaged in an unrelated burglary at some time in the past. Vogel v. Sylvester, 148 Conn. 666, 675, 174 A.2d 122 (1961); Shailer v. Bullock, 78 Conn. 65, 69, 61 A. 65 (1905). The exclusion of such evidence, therefore, does not deprive the defendant of any constitutional right and the ruling is not further reviewable because of the absence of any exceptions. Practice Book § 288. The defendant was not inhibited by these rulings from exploring the motivations of the witnesses for testifying in relation to the disposition of any pending criminal charges, inquiries which were in fact vigorously pursued at trial without restriction.

II

The claim of improper venue has also been raised for the first time in this appeal rather than in the trial court. ³ Venue requirements are created for the convenience of the litigants and may be waived by failure to assert the statutory privilege in timely fashion. 77 Am.Jur.2d, Venue § 45. Subject matter jurisdiction, which cannot be conferred upon the court by the parties, must be distinguished from venue. Ibid.; Fine v. Wencke, 117 Conn. 683, 684, 169 A. 58 (1933); Mower v. State Department of Health, 108 Conn. 74, 77, 142 A. 473 (1928). Practice Book §§ 809 and 810 provide that a request for transfer of prosecution must be made before trial or shall otherwise be deemed to be waived. General Statutes § 54-1d expressly provides that "[a] criminal cause shall not fail on the ground that it has been submitted to a session of improper venue."

Recognizing the necessity of converting his statutory venue privilege into a constitutional right for the purpose of obtaining appellate review of the venue error claimed, the defendant, during oral argument, though not in his brief, advanced the proposition that venue in a criminal case invokes the fundamental right of trial by jury which is not waivable except at the express election of the defendant personally in open court. See Roseman v. United States, 364 F.2d 18, 27 (9th Cir. 1966), cert. denied, 386 U.S. 918, 87 S.Ct. 880, 17 L.Ed.2d 789 (1967); Hawkins v. United States, 385 A.2d 744, 747 (D.C.App.1978); Russell v. State, 342 So.2d 96, 97 (Fla.App.1977). The basis for this position is that at common law a jury must generally have come from the vicinage or neighborhood where the crime occurred, a rule emanating from the character of the ancient jury as a body of people from the immediate area of the crime having some acquaintance with the persons and events involved who could rely upon their previous knowledge in reaching a verdict. 47 Am.Jur.2d, Jury § 25. This conception of jurors as being informed about a case prior to trial is, of course, at variance with our present view that a verdict must be based solely upon the evidence presented at trial. United States v. Howard, 506 F.2d 865, 867 (5th Cir. 1975); State v. McCall, 187 Conn. 73, 444 A.2d 896 (1982). Even if the defendant were entitled to a jury composed of jurors from New Haven County rather than from Middlesex County, as he contends, we are not convinced that this privilege, which is wholly statutory in origin, is so fundamental that it may not be waived without the full panoply of safeguards applicable to a plea of guilty or an election of a trial without a jury. ⁴ We are not aware of any authority supporting this claim of the defendant and we are not inclined to begin a parade of precedent in that direction. We conclude that the failure to request a change of venue before trial precludes any review of the defendant's claim of improper venue on its merits.

III

The defect in the wording of the information which is claimed to nullify his conviction of conspiracy was raised in the trial court by the defendant during his argument of a motion for acquittal ⁵ at the close of the evidence presented by the state. The sixth count of the information, charging the crime of conspiracy upon which a guilty verdict was rendered, alleged that the defendant "did combine, conspire, confederate and agree with [others] to commit the crime of conspiracy to Commit Larceny in the Second Degree ... in violation of Sections 53a-48(a) and 53a-123(a)(2) of the Penal Code." As the defendant maintains, there is no such crime as a conspiracy to conspire to commit some offense....