State v. Roma

CourtSupreme Court of Connecticut
Citation199 Conn. 110,505 A.2d 717
Decision Date11 March 1986
PartiesSTATE of Connecticut v. Paul ROMA.

Lauren M. Weisfeld, Sp. Public Defender, for appellant (defendant).

Donald A. Browne, State's Atty., with whom, on brief, was Frank S. Maco, Asst. State's Atty., for appellee (state).


DANNEHY, Associate Justice.

A jury found the defendant guilty of felony murder in violation of General Statutes § 53a-54c. He claims on appeal that the trial court erred (1) in allowing the state's key witness, during cross-examination, to invoke his testimonial privilege against self-incrimination, and (2) in failing to give a missing witness instruction. The defendant also claims that he was denied the effective assistance of counsel at trial. We find no error.

The facts of this case may be briefly summarized. The victims, Nicholas and Clotilde Bychowski, owned and operated a coin and gift shop in Bridgeport. On December 18, 1980, they closed their shop at approximately 6 p.m. and drove to their home in Fairfield. When they arrived the Bychowskis were accosted by three men who were armed and masked. The men shot both Nicholas and Clotilde, and stole Clotilde's pocketbook. Clotilde died of her wounds. Nicholas, who wore a bullet proof vest and carried a handgun, was wounded only slightly and, after briefly feigning death, returned fire at the three assailants as they fled from the scene.

The state's principal witness was Paul DiBartolomeo, an accessory and immunized co-conspirator in the crime. DiBartolomeo testified that he, the defendant, Tevic Sevri and Michael Fiore had planned the Bychowski robbery in DiBartolomeo's apartment earlier that afternoon. In preparation for the robbery, Sevri had armed himself with a Remington .12 gauge shotgun, and the defendant, a .357 Magnum revolver. As Fiore did not have a weapon of his own, DiBartolomeo contacted a friend, Raul Bourgeois, from whom he borrowed a .22 calibre pistol. He lent this pistol to Fiore for use in the robbery. DiBartolomeo also provided ski masks to Fiore and Sevri. Geraldine Savino, who shared the apartment with DiBartolomeo, gave the defendant a stocking with which to cover his face during the robbery.

DiBartolomeo, Savino, the defendant, Sevri and Fiore then drove in DiBartolomeo's automobile to the Bychowski residence, arriving shortly before the Bychowskis returned home from work. The defendant, Sevri and Fiore got out of the car, taking their weapons and masks with them, after which DiBartolomeo drove to a nearby pre-arranged location where he parked and awaited their return. After approximately ten minutes DiBartolomeo heard a volley of shots being fired from different calibre weapons. Soon thereafter, the defendant, Sevri and Fiore came running back to the car, and related to DiBartolomeo and Savino how they had shot and robbed the Bychowskis. The group returned to DiBartolomeo's apartment where the men sorted through the contents of Clotilde Bychowski's pocketbook. DiBartolomeo later returned to Bourgeois the .22 calibre pistol used by Fiore, and he placed the shotgun used by Sevri and the .357 Magnum used by the defendant into a cardboard box which he sealed and hid.

Approximately nine days later, on December 27, 1980, DiBartolomeo was arrested on unrelated charges, and for personal consideration, discussed more fully below, he agreed to cooperate with the state. DiBartolomeo led police to the cardboard box with the shotgun and the .357 Magnum. With information supplied by DiBartolomeo, the police obtained a search warrant for Bourgeois' home, where they seized the .22 calibre pistol used by Fiore. Subsequent ballistics examinations confirmed that the bullet portions removed from the deceased victim's body had been fired from the .357 Magnum revolver used by the defendant, that two shotgun shells found at the Bychowski residence had been fired from the shotgun used by Sevri, that two flattened buckshot pellets removed from the victim's body were consistent with the type of buckshot fired from the recovered shotgun shells, and that the .22 calibre bullets recovered from the person of Nicholas Bychowski were fired from the pistol used by Fiore.


We first address the defendant's claim that he was denied his sixth amendment right of confrontation when the trial court, on two separate instances during cross-examination allowed DiBartolomeo to assert his fifth amendment privilege against self-incrimination. Although trial counsel did not properly object and take exception to these rulings, we will consider the defendant's claim under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), because they involve the colorable deprivation of a fundamental constitutional right. State v. Lubesky, 195 Conn. 475, 481, 488 A.2d 1239 (1985); State v. Wilson, 188 Conn. 715, 720, 453 A.2d 765 (1982).

DiBartolomeo testified extensively about the events of December 18, 1980, and in exchange for this testimony DiBartolomeo was granted immunity from prosecution for all crimes stemming from his participation in the Bychowski robbery and murder. As part of the agreement, DiBartolomeo was promised a reduced sentence of thirteen and one-half years to life on an unrelated murder conviction. DiBartolomeo's murder conviction, along with several other felony convictions, was admitted into evidence before the jury. It was also brought out on cross-examination that DiBartolomeo had testified for the state in the separate trials of Sevri and Fiore.

The trial court, expressly acknowledging the importance of DiBartolomeo's direct testimony, allowed an extremely wide latitude on cross-examination, and defense counsel took full advantage of it. Defense counsel had at his disposal various statements given by DiBartolomeo to both Bridgeport and Fairfield police, including a tape-recorded interrogation session, as well as transcripts of prior testimony given by DiBartolomeo at the trials of Sevri and Fiore. Throughout his lengthy and comprehensive cross-examination, defense counsel used these materials to expose numerous omissions and inconsistencies of varying significance in DiBartolomeo's testimony given at the defendant's trial. Defense counsel was allowed to use a tape recorder during cross-examination, and DiBartolomeo frequently was asked to refresh his recollection by listening to his prior recorded statements with regard to matters about which he testified.

As may be expected, some of DiBartolomeo's prior statements to police did not directly relate to the Bychowski incident. Defense counsel nonetheless had access to these statements, and generally was allowed to cross-examine DiBartolomeo about them, even where the inquiry concerned matters of arguable relevance. One such inquiry concerned DiBartolomeo's former "street business" and his possible association with Frank Piccolo, a reputed underworld figure in the Bridgeport area. This matter was pursued briefly in the presence of the jury. When defense counsel asked DiBartolomeo to explain what his "street business" was, DiBartolomeo asserted his fifth amendment privilege against self-incrimination, and the trial court sustained the privilege. The issue which we must decide is whether the defendant was denied his sixth amendment right of confrontation when the trial court sustained DiBartolomeo's refusal to state the nature of his "street business."

"The primary interest secured by the confrontation clause of the sixth amendment is the right to cross-examination. Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965); State v. Randolph, 190 Conn. 576, 591, 462 A.2d 1011 (1983); State v. Wilson, 188 Conn. 715, 720, 453 A.2d 765 (1982)." State v. Milum, 197 Conn. 602, 608, 500 A.2d 555 (1985). The sixth amendment right of a criminal defendant to confront the witnesses against him may at times conflict with the competing fifth amendment right of a witness not to incriminate himself by his answers to questions posed on cross-examination. Where the witness, without asserting the privilege, has already testified, on direct examination, to the incriminating matters sought to be explored on cross, he may be found to have waived his right not to disclose further the relevant details necessary to test the truth or accuracy of what he has already revealed. Klein v. Harris, 667 F.2d 274, 287-88 (2d Cir.1981); State v. Altrui, 188 Conn. 161, 172, 448 A.2d 837 (1982); see Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344, reh. denied, 341 U.S. 912, 71 S.Ct. 619, 95 L.Ed. 1348 (1951); McCormick, Evidence (3d Ed.1984) § 140. A witness likewise may not rightfully refuse to answer questions when he is "protected at least against the use of his compelled answers and any evidence derived therefrom in any subsequent criminal case in which he is a defendant." Garner v. United States, 424 U.S. 648, 653, 96 S.Ct. 1178, 1182, 47 L.Ed.2d 370 (1976); Kastigar v. United States, 406 U.S. 441, 444, 92 S.Ct. 1653, 1656, 32 L.Ed.2d 212, reh. denied, 408 U.S. 931, 92 S.Ct. 2478, 33 L.Ed.2d 345 (1972); State v. Biller, 190 Conn. 594, 600-605, 462 A.2d 987 (1983).

In the present case it cannot seriously be maintained that DiBartolomeo waived the privilege with respect to his possible association with Frank Piccolo, or his "street business," when he testified on direct examination as to the events surrounding the Bychowski crimes. As we have stated, cross-examination into the subject matter of DiBartolomeo's direct testimony was extensive and complete. The matter of DiBartolomeo's "street business" was initiated by defense counsel as he cross-examined DiBartolomeo on the details of his earlier statements given to police. Since DiBartolomeo's grant of immunity extended only to crimes arising from the Bychowski incident, the trial court properly sustained DiBartolomeo's refusal to testify...

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  • State v. Tilus, AC 35567
    • United States
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    • May 26, 2015
    ...v. Torres, 60 Conn. App. 562, 569-70, 761 A.2d 766 (2000), cert. denied, 255 Conn. 925, 767 A.2d 100 (2001); see also State v. Roma, 199 Conn. 110, 114-15, 505 A.2d 717 (1986). Accordingly, it is within the court's discretion to warn a witness about the possibility of incriminating himself.......
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