State v. Rivera

• Decision Date: 22 April 1997
• Docket Number: No. CR940464212,CR940464212
• Citation: 697 A.2d 736,45 Conn.Supp. 1
• Court: Connecticut Superior Court
• Parties: STATE of Connecticut v. Matthew RIVERA. -New Britain at Hartford

Page 736

697 A.2d 736

45 Conn.Supp. 1

STATE of Connecticut v. Matthew RIVERA.

No. CR940464212.

Superior Court of Connecticut,

Judicial District of Hartford-New Britain

at Hartford.

April 22, 1997.

Dennis J. O'Conner, Senior Assistant State's Attorney, for the state.

Michael A. Georgetti, Hartford, for defendant.

KOLETSKY, Judge.

The defendant moves in limine to preclude the prosecution in the present case from offering, in its case in chief, grand jury testimony of the defendant given before an investigatory grand jury convened under General Statutes § 54-47a et seq. The defendant cites Connecticut's long history of secrecy of grand jury proceedings, while the state argues that public policy requires the use of such testimony to make the investigative grand jury an effective "crime fighting tool." Both counsel claim, and the court agrees, that this is an issue that has not been addressed by any appellate court in Connecticut. The court has not been able to find any trial court opinions on this issue either.

Preliminarily, the defendant also claims that his statement was involuntary, since he testified before the grand juror under subpoena. Beyond the state and the defendant stipulating that the defendant was under subpoena when he testified, the defendant declined to offer further evidence as to involuntariness. The court finds that there is no factual predicate to support a state or federal constitutional violation on this ground.

The fact that grand jury proceedings are and have been, for a "time whereof the memory of man runneth not to the contrary," ¹ secret, is beyond dispute. That our common law contains "a long-established policy of secrecy ... older than our Nation itself" (citation omitted; internal quotation marks omitted); Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400, 79 S.Ct. 1237, 1241, 3 L.Ed.2d 1323 (1959); is clear. Historically, the only exceptions to this rule of grand jury secrecy have been in a trial for perjury committed by a witness before the grand jury, or impeachment of a witness at trial who has testified differently from his grand jury testimony. State v. Fasset, 16 Conn. 457, 467 (1844). Neither exception is claimed here.

In 1888, in a case where a defendant who was present as a prisoner in the grand jury room while the grand jury was hearing testimony to decide whether the prisoner should be indicted, the use of the prisoner's incriminatory statements was permitted. That decision, however, was in the context of statements which "were not and could not have been properly elicited by the grand jury. [The grand jury] had no right to allow the prisoner to testify, or even to make a statement. His statements were wholly voluntary, and they appear to have been made when the proceedings were at a standstill--probably while waiting for a witness to come in." State v. Coffee, 56 Conn. 399, 413, 16 A. 151 (1888). Our Supreme Court in Coffee permitted grand jurors to testify as to statements of the prisoner, but only because the statements were not themselves part of the grand jury proceedings themselves. Id., at 413, 16 A. 151. Coffee refers to cases from several other jurisdictions where the rule is different from that in Connecticut, and has sometimes been read to criticize State v. Fasset, supra, 16 Conn. 457, but it appears that the court in Coffee notes only that Connecticut law is somewhat inconsistent with the law in other jurisdictions with respect to grand jury secrecy. Id., at 416, 16 A. 151. Coffee concludes that grand jury secrecy has exceptions limited to "prosecutions for perjury, and to contradicting witnesses." Id., at 412, 16 A. 151. Coffee goes on to say that "[w]hether it is wise to go further we will not now undertake to say. It is not probable that many, if any, cases not embraced in one of the two classes named will ever arise." Id.

It is clear to the court that, at common law in Connecticut, the state was unable to use the testimony of an accused given by the accused before the grand jury which indicted him, in its case in chief, except in a trial for perjury of the witness before the grand jury. Of course, use for impeachment purposes of the testimony of a witness who had also testified before a grand jury was not likely to occur in the state's case in chief under common law. See State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986).

Indeed, the principle of grand jury secrecy even led to a defendant being denied the use of grand jury testimony for cross examination in State v. Chesney, 166 Conn. 630, 353 A.2d 783, cert. denied, 419 U.S. 1004, 95 S.Ct. 324, 42 L.Ed.2d 280 (1974). This led to the granting of a federal writ of habeas corpus because of the denial of the right of confrontation. Chesney v. Robinson, 403 F.Supp. 306 (D.Conn.1975), aff'd, 538 F.2d 308 (2d Cir.), cert. denied, 429 U.S. 867, 97 S.Ct. 177, 50 L.Ed.2d 147 (1976).

In 1978, General Statutes § 54-45a was enacted, in apparent response to Chesney v. Robinson, supra. See State v. Douglas, 10 Conn.App. 103, 111, 522 A.2d 302 (1987). Section 54-45a provided for stenographic transcripts of grand jury testimony, and, in what the court finds to be a legislative codification of the common law, the statute further provided, in subsection (b) as follows: "The transcript of such proceedings may not be used as evidence in any proceeding against the accused except for the purpose of impeaching a witness, attacking the credibility of a witness or proving inconsistent statements of a witness. The transcript may also be used as evidence in a prosecution for perjury committed by a witness while giving such testimony."

Of course, § 54-45a applies to grand jury proceedings ordered pursuant to General Statutes § 54-45, which, while still "on the books", has been essentially supplanted by the probable cause hearing established by General Statutes § 54-46a (after the constitutional amendment of 1982 which provided for such a hearing in lieu of grand jury indictment). Thus, by its terms, § 54-45a(b) does not apply to investigatory grand juries appointed in accordance with § 54-47a et seq.

The state makes much of a distinction between an investigatory grand jury and an indicting grand jury. The case law, however, does not support such a distinction. "We have not in the past distinguished between investigating and indicting grand juries in recognizing the need to encourage citizen cooperation which underlies the expectation that grand juries normally operate in secrecy. We decline to do so now." In re Final Grand Jury Report Concerning the Torrington Police Department, 197 Conn. 698, 707, 501 A.2d 377 (1985). Indeed, at common law, Connecticut had both indicting grand juries convened pursuant to the constitutional mandate and a "general, investigatory grand jury known to the common law which could inquire into crimes in general and which had functions substantially the same as our modern so called 'one-man grand jury.' " State v. Menillo, 159 Conn. 264, 273, 268 A.2d 667 (1970). Thus the state's argument that the 1978 legislative enactment of § 54-45a(b) without a similar provision in § 54-47a et seq. is indicative of a legislative intent, is unconvincing.

To the extent that Connecticut has a blanket prohibition against the use of grand jury testimony in the prosecution's case in chief, it is surely in a minority of jurisdictions. As noted in State v. Coffee, supra, 56 Conn. at 410-12, 16 A. 151, most jurisdictions permit disclosure of grand jury testimony whenever it becomes necessary in the course of justice. According to Professor Wigmore, "the admissions of a party made in testifying before the grand jury are admissible against him although he does not take the stand at the trial." (Emphasis in original.) 8 J. Wigmore, Evidence § 2363 pp. 738-39 (McNaughton Rev.1961); State v. Campbell, 73 Kan. 688, 710, 85 P. 784 (1906); see, e.g., People v. Downer, 192 Colo. 264, 270, 557 P.2d 835 (1976) (holding that "where a defendant, with the advice of counsel, volunteers to testify before a grand jury and is thoroughly advised of his rights, his testimony, like other prior statements by him, can be admitted as substantive evidence at his subsequent trial"); Nance v. State, 331 Md. 549, 571, 629 A.2d 633 (1993) (noting that grand jury testimony of defendants could have been considered by the jury as substantive evidence); People v. Rose, 224 A.D.2d 643, 639 N.Y.S.2d 413 (1996) (finding grand jury testimony properly introduced into evidence as an admission).

Indeed, under Rule 6(e) of the Federal Rules of Criminal Procedure, use of grand jury testimony in the prosecution's case in chief appears to be permitted as an admission under Rule 801(d)(2)A of the Federal Rules of Evidence. Metzler v. United States, 64 F.2d 203, 206 (9th Cir.1933).

General Statutes §§ 54-47a through 54-47h govern Connecticut's investigatory grand jury. Although none of these provisions explicitly indicate whether the prosecution can use a defendant's testimony before an investigatory grand jury in its case in chief, §§ 54-47a through 54-47h do, however, provide various disclosure provisions, which exhibit a legislative intent of openness as to the revised investigatory grand jury procedure. ²

General Statutes § 54-47e provides in pertinent part that "[a]ny investigation by the investigatory grand jury shall be conducted in private, provided the panel, by a majority vote, may order the investigation or any portion thereof to be public when such disclosure or order is deemed by the panel to be in the public interest."

General Statutes § 54-47g(a) provides in pertinent part that "[w]ithin sixty days of the conclusion of the investigation, the investigatory grand jury conducting such investigation shall file its finding with the court ... and shall file a copy of its finding with the panel and with the Chief State's Attorney or a state's attorney if such ...