State v. Rado

• Citation: 372 A.2d 159,172 Conn. 74
• Court: Supreme Court of Connecticut
• Decision Date: 07 March 1977
• Parties: STATE of Connecticut v. Donald A. RADO.

Page 159

372 A.2d 159

172 Conn. 74

STATE of Connecticut v. Donald A. RADO.

Supreme Court of Connecticut.

Argued Oct. 6, 1976.

Decided Dec. 14, 1976.

Certiorari Denied March 7, 1977. see 97 S.Ct. 1335.

Richard D. Casella, Waterbury, for appellant (defendant).

Walter H. Scanlon, Asst. State's Atty., with whom was Francis M. McDonald, Jr., State's Atty., for appellee (state).

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

MacDONALD, Associate Justice.

On a trial to a jury, the defendant was found guilty of one count of robbery in the first degree in violation of § 53a-134 of the General Statutes, one count of burglary in the first degree in violation of § 53a-101 and one count of conspiracy in violation of § 53a-48. On his appeal to this court, the defendant raises six issues, assigning error to several rulings on evidence made during the trial, the denial of his motion for a mistrial with respect to the testimony of one of the state's witnesses and the denial of his motion to set aside the verdict and order a new trial because of a claimed improper remark by the state's attorney during his summation. In order adequately to review the claimed errors, it is necessary to consider only the following facts as to which the state produced evidence and as set forth in the statements of facts printed in the briefs.

On the evening of July 2, 1972, Sean T. Donnelly, Wayne J. Epprecht and Fred J. Hall went to the home of the defendant, Donald A. Rado, and discussed a proposed robbery of a jeweler's widow, Theresa A. Hyman, whose home was directly opposite and clearly visible from the back porch of the Rado home. Rado pointed out the Hyman house and stated that it could contain money and jewelry. The next day, July 3, Hall, Donnelly and Epprecht drove in Hall's car to Rado's home. Late in the afternoon, Donnelly went to the nearby home of Rado's neighbor, John Spinella, to help with some carpentry. After Donnelly's return, the four men met in the basement of Rado's home, where Rado gave Epprecht a .32 caliber pistol and Hall gave Donnelly a .38 caliber pistol. Rado instructed Dnnelly and Epprecht that they were to use the pistols to rob the Hyman home, gave Donnelly a walkie-talkie portable transceiver to carry with him during the robbery and agreed to remain at his home during the robbery 'in the event anything happened.'

Hall drove Donnelly and Epprecht to the Hyman home and remained in his car while Donnelly and Epprecht forced their way into the house, struck and bound Theresa Hyman and ransacked the house, taking a number of items of jewelry. When surprised by a neighbor, Donnelly and Epprecht fled, dropping Rado's walkie-talkie in their haste, were picked up by Hall in his car, and returned to Rado's home, where they changed their clothes and gave the pistols back to Rado. The ownership of the walkie-talkie dropped by Donnelly was traced to Rado and, during a search authorized by a warrant, the pistol used by Epprecht during the robbery was found in the Rado home.

Three of the errors claimed by the defendant pertain to rulings made by the court with respect to the testimony of Hall who, after pleading guilty to the crime of conspiracy to commit the robbery involved here, was called as a state's witness, the remaining charges against him of burglary and robbery having been nolled. Claiming error in the court's permitting the state even to produce Hall as a witness when the state 'knew or should have known that he would refuse to testify,' the defendant cites State v. Moynahan, 164 Conn. 560, 586, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S.Ct. 291, 38 L.Ed.2d 219 where we state: 'A prosecutor or state's attorney, in a criminal case, may not call anyone who, in any capacity, has become so involved in the defendant's criminal activities as to be liable to prosecution for the same offense or for another offense growing out of the transaction from which the defendant's alleged offenses arise, with a design or purpose of extracting a claim of privilege against self-incrimination.' (Emphasis added.) The inapplicability of this language to the defendant's claim is clearly indicated by the emphasized words. Hall, an accomplice of the defendant, already had pleaded guilty to his participation in the transaction from which the defendant's offenses arose and, accordingly, unlike the witness in Moynahan no longer had the privilege against self-incrimination since he no longer could be incriminated by his testimony concerning the crime under consideration. 'It is well established that once a witness has been convicted for the transactions in question, he is no longer able to claim the privilege of the Fifth Amendment and may be compelled to testify.' United States v. Romero, 249 F.2d 371, 375 (2d Cir.); Reina v. United States, 364 U.S. 507, 513, 81 S.Ct. 260, 5 L.Ed.2d 249; Brown v. Walker, 161 U.S. 591, 597-600, 16 S.Ct. 644, 40 L.Ed. 819.

Returning to the words emphasized in the above quotation from our opinion in Moynahan, there was no showing or suggestion here that the state knew or should have known in advance of the trial that Hall would attempt to invoke the privilege. See Namet v. United States, 373 U.S. 179, 83 S.Ct. 1151, 10 L.Ed.2d 278, which held that the trial court's permitting the prosecution to ask witnesses incriminating questions concerning their relationship with the defendant with the knowledge that the witnesses would invoke the privilege against self-incrimination did not constitute reversible error, the court stating (p. 189, 83 S.Ct. p. 1156): 'We cannot find that these few lapses, when viewed in the context of the entire trial, amounted to planned or deliberate attempts by the Government to make capital out of witnesses' refusals to testify.' As a matter of fact, the state might well have been in derogation of its duties if it had not called Hall as a witness for, as stated by the court in United States v. Romero, supra, 375, '(i)n view of the fact that. . . (Hall) had intimate knowledge of the transactions upon which the prosecution was based, the government ran the risk of argument to the jury by defense counsel that the government's failure to call an available witness raised the inference that his testimony would be unfavorable to the government's case.' Clearly, it was not error, under the circumstances, for the court to permit the state's attorney to produce Hall as its witness nor, for the reasons given and under the authorities cited above, was it error, as claimed by the defendant, for the court to order Hall to testify despite his repeated invocation of the fifth amendment.

The defendant also claims that the court erred in permitting the state's attorney to interrogate the witness Hall 'from a document not in evidence and which was clearly hearsay, under the guise of refreshing his recollection.' The document in question was the stenographic transcript of statements made in open court by Hall a few weeks prior to the trial in the course of his pleading guilty to the offense of conspiracy to commit the robbery and burglary in question. His determination not to testify as to events immediately preceding the commission of this crime was made apparent by his repeated statements that he could not remember them. The use of a transcript of his prior statements to refresh his recollection was entirely proper, as were the questions asked by the state's attorney is cross-examination of a witness who specifically had been found by the court to be hostile. 'Any memorandum which can in fact stimulate the present recollection may be used, whether made by the witness or not, whether it be the original or a copy, or whether made at the time of the events testified to or not. In the case of the past recollection the memorandum may be laid in evidence as a part of the direct examination while in the case of the present recollection it may not, since it is the recollection, not the memorandum, which is the evidence.' Neff v. Neff, 96 Conn. 273, 278-79, 114 A. 126, 127.

The defendant claims support for his position in Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934, where the court held that it was a violation of the defendant's constitutional right to permit the state's attorney to use a confession signed by an accomplice to refresh the accomplice's recollection when he was called as a state's witness and relied on his privilege to refuse to answer. In pointing out that effective confrontation by cross-examination of the witness was made impossible by his refusal to answer, the court in Douglas, quoting Namet, stated (p. 420, 85 S.Ct. p. 1077): 'The circumstances are therefore such that 'inferences from a witness' refusal to answer added critical weight to the prosecution's case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant." Here, confrontation of Hall was made possible by his affirmation of the questions propounded to him by the state's attorney, specifically affirming that the prior statements he had made in open court, as recorded in the transcript, were his and were true and concerning which the defendant could and, in fact, did cross-examine him at length. The court did not err in permitting the state's attorney to cross-examine Hall from the transcript of his statements made in open court at a prior hearing.

The defendant, in his statement of issues and argument to this court, claims error in allowing testimony from Epprecht and Hall 'concerning evidence of another crime, said evidence being irrelevant and hearsay.' The entire thrust of his argument on that issue before this court is addressed to the prejudicial nature of evidence of other crimes involving the accused, but the record discloses that this argument was not made to the trial court. The only exception taken during the introduction of the testimony under consideration was to the court's overruling an objection that evidence as to a...