State v. Rogers

• Decision Date: 27 January 1956
• Citation: 143 Conn. 167,120 A.2d 409
• Parties: STATE of Connecticut v. Harold D. ROGERS. Supreme Court of Errors of Connecticut
• Court: Connecticut Supreme Court

Page 409

120 A.2d 409

143 Conn. 167

STATE of Connecticut v. Harold D. ROGERS.

Supreme Court of Errors of Connecticut.

Jan. 27, 1956.

Thomas R. Robinson, Public Defender, New Haven, with whom was Lawrence M. Dooley, Sp. Asst. to Public Defender, Branford, for appellant (defendant).

Abraham S. Ullman, State's Atty., New Haven, with whom, on the brief, was Arthur T. Gorman, Asst. State's Atty., New Haven, for the appellee (state).

Before INGLIS, C. J., and BALDWIN, WYNNE and DALY, JJ.

WYNNE, Associate Justice.

The defendant has appealed, after a trial to a jury, from his conviction on a charge of murder in the first degree. He was charged under § 8350 of the General Statutes with the shooting and killing of Dorothy Kennedy in the perpetration of a robbery of the package store operated by her and her husband, Joseph Kennedy, in West Haven. No recommendation for mercy having been made by the jury, the defendant was sentenced to the punishment of death. He has assigned error in sixteen particulars having to do with his trial. In brief and argument his counsel have grouped them in four categories. As thus presented, the issues concern (1) the court's refusal to grant a motion for change of venue, (2) certain rulings of the court as to the legality of the defendant's restraint on the occasions of his statements to the police and the coroner, the rulings being later reflected in the charge, (3) the charge, which in terms discussed an attempted robbery although the indictment set forth only a charge of murder in perpetrating a robbery, and (4) several rulings pertaining to points of evidence. The defendant also assigns error in the finding of specific facts by the court and the court's conclusions, drawn from facts found, bearing upon the admissibility of statements made by the defendant to the police and to the coroner concerning the crime with which he was charged. These facts and conclusions have ample support in the evidence, and the finding is not subject to correction.

The state claimed to have proved the following facts: Dorothy Kennedy was shot and killed on November 21, 1953, in the West Shore Package Store at 143 Ocean Avenue in West Haven. She and her husband owned and operated the store. She was alone in the store at 7:30 p. m. on the day in question, and within a space of minutes thereafter the tragedy had taken place and the cash register was rifled, about $60 being taken. On January 9, 1954, the New Haven police were seeking to arrest the defendant on charges of attempted robbery, breaking and entering and theft committed that day at the Travelers Hotel in New Haven. That evening, officers located the defendant sitting in his car on Oak Street in New Haven. He had in his possession a .38 caliber Smith and Wesson revolver, which, it later appeared, he had stolen from his nephew before the shooting on November 21, 1953. He was arrested and presented in the City Court of New Haven on January 13, 1954, where he waived examination through private counsel and was bound over to the April session of the Superior Court and lodged in the New Haven County jail under a duly issued mittimus. On January 30, 1954, the revolver which had been taken from him was turned over to the state police for testing, and it was found to have fired the bullets which killed Mrs. Kennedy. Thereafter, the defendant made statements to the police and to the coroner in which he admitted that he had killed Mrs. Kennedy. These statements were free and voluntary. Their truth was not disputed by any witness at the trial.

The defendant claimed to have proved the following: On January 30, 1954, in the evening, while he was still a bound-over prisoner at the jail, he was brought to the state's attorney's office and questioned by the police. His request to see his counsel was denied. When he disclaimed any knowledge of the shooting of Mrs. Kennedy, he was told that unless he confessed his wife would be brought down to police headquarters for questioning and their foster children would be sent to the children's building. He then gave a statement to the police which was offered and received in evidence. The following morning, January 31, the coroner by telephone instructed the sheriff to permit no one to see the defendant. Thereafter, his private counsel sought to see him, but opportunity was denied by the state's attorney. At noon on January 31, the defendant was taken to the coroner's office, was questioned and gave a statement which was later offered and admitted in evidence. The statements made by the defendant were so tainted by lack of due process of law as to be involuntary.

The defendant made two motions for a change of venue. Both were denied. The basis of the motions was the widespread publicity given the killing of Mrs. Kennedy while she was alone in the package store, and, later, the publicity attending the defendant's statements to the police and to the coroner. Section 8794 of the General Statutes provides that the judge holding any term of the Superior Court may, upon motion, order any criminal case pending in that court to be transferred to the Superior Court in any other county. We have had occasion to construe this statute and have held that the court exercise a discretion as to whether the motion should be granted. State v. Luria, 100 Conn. 207, 209, 123 A. 378. The ruling of the court is reviewable to determine whether this discretion has been abused. State v. Rocco, 109 Conn. 571, 572, 145 A. 47. The burden of showing that a fair and impartial trial could not be had in the county of origin is on the defendant. State v. Chapman, 103 Conn. 453, 470, 130 A. 899. To sustain this burden, he must show more than that the crime with which he is charged received considerable publicity. He must demonstrate that the publicity was necessarily prejudicial to him and prevented his being accorded a fair and impartial trial. State v. Rocco, supra; State v. Leopold, 110 Conn. 55, 58, 147 A. 118; State v. Chapman, supra. There is no finding of facts showing that the present defendant did not get a fair and impartial trial because of the publicity concerning the crime with which he was charged and the statements which he gave to the police and to the coroner. The court did not abuse its discretion in denying the motions for change of venue.

The second group of errors concerns the admission of the statements made by the defendant to the police and to the coroner, his so-called confessions, and the court's charge to the jury with respect to their consideration of them. As to the former, the claim is that the methods used in securing the statements were so tainted with the denial of due process of law to the defendant as to render them involuntary and therefore inadmissible. The test of the admissibility of a confession is whether it was voluntary. State v. Palko, 121 Conn. 669, 680, 186 A. 657, and authorities cited. The issue is one of fact for the trial court to decide in the exercise of a legal discretion, and its decision will not be disturbed except for the abuse of that discretion. State v. Lorain, 141 Conn. 694, 699, 109 A.2d 504. The defendant complains that he had been committed to the county jail and that he was brought to the state's attorney's office, where he made a statement to the police, and, later, before the coroner, where he made a second statement, illegally, because the officers had no legal authorization to take him out of the jail. He also protests that he was held incommunicado and denied legal counsel before these statements were made. If we concede that this was all true and that such conduct was unlawful, it does not, standing alone, render the defendant's confessions inadmissible. The question is whether, under these and other circumstances of the case, that conduct induced the defendant to confess falsely that he had committed the crime being investigated. Unless it did, it cannot be said that its illegality vitiated his confessions. State v. Guastamachio, 137 Conn. 179, 183, 75 A.2d 429; State v. Zukauskas, 132 Conn. 450, 459, 45 A.2d 289.

The defendant had been lodged in the county jail on a mittimus issued in the City Court of New Haven when he was bound over to the Superior Court to await charges arising out of his arrest on January 9, 1954, in connection with an attempted robbery at the Travelers Hotel. Proper court authorization should have been secured before the defendant was removed from the jail. There is nothing about his illegal removal, however, to demonstrate that he was thereby forced to make an untrue statement. The same can be said concerning the refusal to admit counsel to see the defendant on the morning of January 31 before he was brought before the coroner. The defendant had not requested that his attorney, Chester T. Corse, be called to the jail, and it does not appear that he knew that Corse had been refused admission to see him. The situation is essentially like that presented in State v. Buteau, 136 Conn. 113, 118-120, 68 A.2d 681, wherein we ruled that the confessions were admissible. The further fact that one of the officers interrogating the defendant pretended, in his presence, to place a telephone call directing that the defendant's wife be brought to police headquarters and their foster children be taken to the children's building did not in and of itself make the defendant's statements to the police involuntary. Here again, the question for the court to decide was whether this conduct induced the defendant to make an involuntary and hence untrue statement. State v. Malm, 142 Conn. 113, 121, 111 A.2d 685. The court did not abuse its discretion in admitting the defendant's statements in evidence for consideration by the jury.

As to the claimed errors in the charge as given and in the refusal to charge as requested, the essential claim is that the court should have specifically charged the jury that the removal of the defendant from the county jail to the state's...