State v. Rivera

• Decision Date: 17 August 1999
• Citation: 250 Conn. 188,736 A.2d 790
• Court: Connecticut Supreme Court
• Parties: (Conn. 1999) STATE OF CONNECTICUT v. MATTHEW RIVERA (SC 15917)

736 A.2d 790 (Conn. 1999)

STATE OF CONNECTICUT v. MATTHEW RIVERA

(SC 15917)

Connecticut Supreme Court

Argued February 16, 1999

August 17, 1999

Carolyn K. Longstreth, senior assistant state's attorney, with whom were James E. Thomas, state's attorney, and, on the brief, Dennis O'Connor, senior assistant state's attorney, for the appellant (state).

Michael A. Georgetti, with whom, on the brief, was Janis C. Jerman, for the appellee (defendant).

Callahan, C. J., and Borden, Berdon, Katz, Palmer, McDonald and Peters, Js.

Palmer, J.

OPINION

In this criminal case, the state appeals, with the permission of the trial court, from that court's judgment dismissing the information, which followed the court's ruling prohibiting the state from introducing, in its case-in-chief, the testimony of the defendant, Matthew Rivera, during his appearance before an investigatory grand jury. Because we conclude that the trial court improperly precluded the state from introducing the defendant's grand jury testimony, we reverse the judgment of the trial court dismissing the information.

The following facts and procedural history are relevant to this appeal. In February, 1993, the chief state's attorney and the state's attorney in Hartford applied to the investigatory grand jury panel pursuant to General Statutes (Rev. to 1993) § 54-47c¹ for the appointment of a grand jury to investigate possible illegal conduct by certain members of the Connecticut state police and the Hartford police department, among others. The grand jury panel approved the application and Judge Aaron Ment, then the chief court administrator, appointed Judge Arthur L. Spada, Judge trial referee, to serve as the grand juror. See General Statutes (Rev. to 1993) § 54-47d.² The investigation began on March 29, 1993, and continued through August 16, 1994. On December 13, 1993, the defendant, in response to a subpoena, appeared before the grand jury and was placed under oath by the grand juror. In the presence of senior assistant state's attorney Paul Murray (state's attorney), the grand juror conveyed the following order of secrecy to the defendant:

"The Court:... [I]n a few minutes... [the state's attorney] will be advising you as he does all the witnesses. I'm also required to advise you, as I do every witness that comes before us, [about] an order of secrecy that I'm going to place you under. It not only covers you, but every individual in this room. So any of the questions that are asked of you, the subject matter and any of the answers that you may give are protected by an order of confidentiality and secrecy. That is, no one in this room can reveal to anybody outside this room who was in this afternoon to talk to us, and no one can tell anybody outside this room what questions were asked of you and what answers you gave. So the answers you give will also be confidentially protected. Conversely, if you go out of this building or anywhere in this building and discuss with anyone the fact that you're here, who was present in the room, what questions were asked of you and what answers you gave, that would violate the order of confidentiality and this order of secrecy, and would expose you to an arrest for criminal contempt. Do you understand that?

"[The Defendant]: Yes, I do Your Honor."

After receiving an advisement of his rights from the state's attorney,³ as required by General Statutes § 54-47f,⁴ the defendant proceeded to testify. Following the completion of the grand jury investigation, the grand juror, in a final report, concluded, inter alia, that probable cause existed to believe that as many as twenty-four persons had committed various crimes.

On October 24, 1994, the defendant was charged in the present case with one count of larceny in the first degree⁵ in violation of General Statutes § 53a-122 (a) (4).⁶ Prior to trial, the defendant moved in limine to preclude the state from using his grand jury testimony as evidence in its case-in-chief against him.⁷ In support of his motion, the defendant maintained that, because our statutes relating to investigatory grand juries; General Statutes § 54-47a et seq.; do not expressly authorize the state to introduce a defendant's grand jury testimony in its case-in-chief, such use is barred under common-law principles of grand jury secrecy.

The trial court, Koletsky, J., filed an extensive memorandum of decision granting the defendant's motion. After discussing the history and the law pertaining to investigatory grand juries in Connecticut, the trial court concluded: "There are, to be sure, numerous policy reasons for preserving grand jury secrecy, and while many of those reasons no longer obtain after the Conclusion of the grand jury proceedings, certainly the thought that witnesses who learned that their testimony was not sacrosanct will be deterred from future uninhibited testimony, as will others not involved in that particular grand jury process. See In re Investigation of the Grand Juror into Cove Manor Convalescent Center, Inc., [4 Conn. App. 544, 495 A.2d 1098 (1985), appeal dismissed, 203 Conn. 1, 522 A.2d 1228 (1987)].

"[The Connecticut] Supreme Court has instructed that where the traditional secrecy of grand jury proceedings is well entrenched in the common law, any change in that law must be strictly construed. State v. Canady, 187 Conn. 281, 287, 445 A.2d 895 (1982). While the legislature has lessened grand jury secrecy in many ways in recent years, it notably has not done so in expressly permitting use by the state of grand jury testimony as evidence. No radical departure from the long standing policy of preserving grand jury secrecy which is well entrenched in the common law is warranted unless the language of the statute unequivocally expresses such an intent. In re Investigation of the Grand Juror into Cove Manor Convalescent Center, Inc., supra, 4 Conn. App. 554. The court concludes that the common law of Connecticut is still in effect.

"That the prosecution has access to testimony from the grand jury proceeding is clear. From that access it is to be presumed that further investigative work should permit the development of evidence from other sources. In [this] case, no request for release of grand jury transcripts for use in the state's case-in-chief has been made [under General Statutes § 54-47g (a)],⁸ nor has there been any attempt to demonstrate a `particularized need.' Whether, in a particular case, that would be availing, this court does not now decide.

"What this court does decide is that in the present case, in which [the] defendant was given both a promise and a warning of confidentiality and secrecy as to his testimony, the state cannot use that testimony in its case-in-chief. Indeed, since the grand juror imposed an order of secrecy on the witness as to his testimony, it may well be that the defendant would be precluded from taking the stand to deny the accuracy of the transcript, unless released from that order.

"This is an issue which the legislature may wish to address, but the decision to change three centuries of this state's common law is one that this court does not believe is its function.

"The motion in limine is granted and the state is precluded from offering any grand jury testimony as direct evidence in the state's case-in-chief...." (Emphasis in original; internal quotation marks omitted.) State v. Rivera, 45 Conn. Sup. 1, 9-11, 697 A.2d 736 (1997).

Thereafter, the trial court granted the state's motions to dismiss the information⁹ and for permission to appeal. The state appealed from the judgment of dismissal to the Appellate Court, and we transferred the appeal to this court pursuant to what is now Practice Book § 65-1, and General Statutes § 51-199 (c).

On appeal, the state challenges the trial court's decision to preclude it from introducing the defendant's grand jury testimony in its case-in-chief. In support of its claim, the state maintains that the use of such testimony is authorized under § 54-47g, which governs the disclosure and use of grand jury testimony. The state also contends that, to the extent that the trial court's decision to grant the defendant's motion in limine is predicated upon the defendant's detrimental reliance on the grand juror's order of secrecy, the defendant never established such reliance and, consequently, the trial court reasonably could not have limited the state's use of the defendant's grand jury testimony on the basis of that order of secrecy. The defendant concedes that the state may introduce his grand jury testimony in its case-in-chief in a prosecution for perjury, and that it may use his testimony to cross-examine him in this case if he testifies at trial. The defendant also acknowledges that the state may use his grand jury testimony to develop information regarding the defendant's alleged larcenous conduct. The defendant claims, however, that the state cannot otherwise use his testimony in its case-in-chief absent a determination by the grand jury panel, pursuant to § 54-47g, that such use is "in the public interest." General Statutes § 54-47g (a); see footnote 8 of this opinion. The defendant further contends that the grand juror's order of secrecy provided the trial court with a sufficient, independent basis upon which to preclude the state from using the defendant's grand jury testimony in the state's case-in-chief. We agree with the state and, accordingly, we reverse the judgment of the trial court.

I.

We first consider whether our statutes governing the conduct of investigatory grand juries prohibit the state from using the defendant's grand jury testimony against him in its case-in-chief. We conclude that they do not.

"[T]he one-man investigatory grand jury is purely a creature of statute...." Connelly v. Doe, 213 Conn. 66, 70, 566 A.2d 426 (1989). Thus, our analysis of whether the defendant's grand jury testimony may be introduced during the state's case-in-chief is guided by well established...