State v. Rado

• Decision Date: 03 May 1988
• Docket Number: No. 5387,5387
• Citation: 541 A.2d 124,14 Conn.App. 322
• Parties: STATE of Connecticut v. William RADO, Sr.
• Court: Connecticut Court of Appeals

Page 124

541 A.2d 124

14 Conn.App. 322

STATE of Connecticut v. William RADO, Sr.

No. 5387.

Appellate Court of Connecticut.

Argued Dec. 9, 1987.

Decided May 3, 1988.

Timothy C. Moynahan, Waterbury, with whom, on the brief, was Theresa M. Dalton, Naugatuck, for appellant (defendant).

Christopher Malany, Deputy Asst. State's Atty., with whom, on the brief, was Domenick Galluzzo, Asst. State's Atty., for appellee (state).

Before DALY, BIELUCH and FOTI, JJ.

DALY, Judge.

The defendant appeals from the judgment of conviction, after a jury trial, of three counts of bribe receiving in violation of General Statutes § 53a-148(a). ¹ The defendant challenges the constitutionality of the investigating grand juror and argues that the trial court erred in denying his motion to dismiss filed on the basis of insufficient evidence and in denying him access to the grand juror transcripts.

The jury could reasonably have found the following facts. The defendant, a former mayor of Naugatuck, on three occasions manipulated the process by which municipal construction contracts were awarded. Twice the defendant altered the process under which public contracts were awarded by providing Ronald Albaitis, one of the three partners in the family owned Albaitis Brothers Construction Company, with the necessary information for obtaining the contract; the defendant supplied Albaitis with the dollar figure of the lowest bid and allowed Albaitis to resubmit an altered bid after the bidding was supposedly closed. ² On a third occasion, the defendant awarded Albaitis' company a $5000 brook blasting contract without requiring bidding despite the borough charter provision that advertising for bids was required for all contracts over $1000. ³ On each of the three occasions, the defendant demanded and received a $1000 bribe for altering the process in favor of Albaitis Construction.

On November 18, 1983, the chief state's attorney made an application to the chief court administrator pursuant to General Statutes (Rev. to 1985) § 54-47 ⁴ requesting that an inquiry be made concerning certain irregularities in the conduct of public officials in the borough of Naugatuck. The grand juror, Stoughton, J., heard testimony from Albaitis and William Gogin, the town comptroller. Upon the completion of the investigation, the grand juror compiled a report. On April 10, 1985, the defendant was arrested as a result of this report. Eventually, the defendant was tried and found guilty, by a jury, of three counts of bribe receiving.

The defendant's first claim of error is that it is unconstitutional for a judge to act as grand juror. Specifically, the defendant argues that having a judge perform the functions of a grand juror violates the separation of powers doctrine. We find that the claim is without merit.

As a preliminary matter, we must first decide whether the defendant has standing to raise this claim. " 'Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented. See, e.g., Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691 , 7 L.Ed.2d 663 (1962); Stern v. Stern, 165 Conn. 190, 192, 332 A.2d 78 (1973). These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity.' Maloney v. Pac, 183 Conn. 313, 320-21, 439 A.2d 349 (1981). The question of standing does not involve an inquiry into the merits of the case. It merely requires the plaintiff to make allegations of a colorable claim of injury to an interest which is arguably protected or regulated by the statute or constitutional guarantee in question. Data Processing Service v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827 , 25 L.Ed.2d 184 (1969); Ducharme v. Putnam, 161 Conn. 135, 139, 285 A.2d 318 (1971)." Reitzer v. Board of Trustees of State Colleges, 2 Conn.App. 196, 199-200, 477 A.2d 129 (1984).

In the present case, the defendant cannot claim that he has any cognizable legal interest in the validity of the inquiry, even when it might lead to his arrest. Unlike a search warrant, which authorizes governmental invasion of a person's privacy interest, the one-man grand juror conducts a general investigation into the commission of a crime. The existence of a general investigation violates no one's rights. Absent proof of a violation of a right personal to the defendant, such as his privilege against self-incrimination, the defendant lacks standing.

Even if we assume that the defendant's claims are reviewable, he has failed to prove that the statute was unconstitutional. In reviewing the claim, we must follow the rule set forth in State v. Olds, 171 Conn. 395, 370 A.2d 969 (1976). " 'We approach the question with great caution, examine it with infinite care, make every presumption and intendment in favor of validity, and sustain the act unless its invalidity is, in our judgment, beyond a reasonable doubt.' " State v. Olds, supra, 411, 370 A.2d 969, quoting Edwards v. Hartford, 145 Conn. 141, 145, 139 A.2d 599 (1958). The party challenging the constitutionality of a statute bears a "heavy burden" of proving unconstitutionality beyond a reasonable doubt. State v. Hernandez, 204 Conn. 377, 385, 528 A.2d 794 (1987). The defendant has failed to meet this burden.

We begin this analysis by stating that investigating inquiries by a judge have been held, in part, constitutional. State v Moynahan, 164 Conn. 560, 565-67, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S.Ct. 291, 38 L.Ed.2d 219 (1973); McCarthy v. Clancy, 110 Conn. 482, 495-97, 148 A. 551 (1930). The defendant's argument simply stated is that the former General Statutes (Rev. to 1985) § 54-47 offends the separation of powers doctrine. He asserts that the relationship between the judge and prosecutor "is an intercourse which is foul, unhealthy, abnormal and unnatural," because it confers to the judge the powers of the prosecutor. The defendant's argument clearly ignores the weight of authority.

"It is rudimentary that the three branches of government do not exist in discrete, airtight compartments, and that the rule of separation of governmental powers cannot always be rigidly applied." State v. Darden, Conn. 677, 679, 372 A.2d 99 (1976). Moreover, it is clear that " '[the] great functions of government are not divided in any such way that all the acts of the nature of the functions of one department can never be exercised by another....' " State v. Clemente, 166 Conn. 501, 510, 353 A.2d 723 (1974), quoting In re Application of Clark, 65 Conn. 17, 38, 31 A. 522 (1894). The test or standard used is whether the function exercised by the judge is " ' "reasonably incidental to the performance of judicial duties." ' " Adams v. Rubinow, 157 Conn. 150, 160, 251 A.2d 49 (1968). The sole purpose of the one-man grand jury was to determine if there was probable cause to believe that crimes had been committed. Such a determination of probable cause has traditionally been a judicial function. See State v. Heinz, 193 Conn. 612, 616-17, 480 A.2d 452 (1984). Moreover, grand jury proceedings have, by our Supreme Court, been considered "an appendage of the court." State v. Curcio, 191 Conn. 27, 32, 463 A.2d 566 (1983). Finally, in McCarthy v. Clancy, supra, 110 Conn. at 499, 148 A. 551, our Supreme Court acknowledged the fact that the investigatory inquiry has been recognized as an appropriate judicial function by holding: "No question has heretofore been raised, so far as we are aware, as to the right of the General Assembly to cast upon justice the power to investigate crimes; nor do we think it is open to question. In an administrative capacity, they may pursue the investigation authorized by the statute in question...."

The defendant has, additionally, asserted that the judicial inquiry creates a pervasive judicial bias which infects the cases which have begun with the one-man grand jury. the claim is that the trial court is improperly influenced by the investigatory reporting because they all belong to the same "judicial club." Once again, the defendant's claim is off base.

"Under Canon 3(c)(1) of the code of Judicial Conduct '[a] judge should disqualify himself [or herself] in a proceeding in which his [or her] impartiality might reasonably be questioned....' " Papa v. New Haven Federation of Teachers, 186 Conn. 725, 744-45, 444 A.2d 196 (1982). Our Supreme Court has held that recusal is mandated where a reasonable person, with knowledge of the facts would be led to conclude that a judge's " 'impartiality might reasonably be questioned.' " Id., 746, 444 A.2d 196. In this case, such a conclusion is not warranted. The finding of probable cause by another judge is not deemed conduct which would lead a reasonable person to the conclusion that the judge's impartiality might be questioned.

In his second claim of error, the defendant argues that the trial court erred in denying the defendant's motion to dismiss. The defendant puts forth two arguments in support of this claim. The first argument is that the court should have granted a judgment of acquittal because his conduct was not a "decision, opinion, recommendation or vote" within the meaning of the bribe receiving statute. ⁵ The second argument is a claim that the prosecution was improper. He claims that prosecution for a bribe resulting from the disclosure of information is preempted by the disclosure of bid or proposal statute, General Statutes § 53a-161b. ⁶ Both arguments are without merit.

It is axiomatic that courts are required to read a statute in light of its purpose. In State v. Carr, 172 Conn. 458, 468, 374 A.2d...