State v. Saia

• Decision Date: 07 December 1976
• Citation: 372 A.2d 144,172 Conn. 37
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Anthony SAIA.

Page 144

372 A.2d 144

172 Conn. 37

STATE of Connecticut v. Anthony SAIA.

Supreme Court of Connecticut.

Dec. 7, 1976.

Rudra Tamm, Sp. Public Defender, for appelland (defendant).

Arlen D. Nickowitz, Asst. State's Atty., with whom, on the brief, was Donald A. Browne, State's Atty., for appellee (state).

Before HOUSE, C.J., and COTTER, BOGDANSKI, LONGO and BARBER, JJ.

BARBER, Associate Justice.

The defendant, Anthony Saia, was indicted by a grand jury for the crime of murder in the first degree, alleging that on December 9, 1970, at Fairfield, he did wilfully, deliberately, with premeditation and malice aforethought, shoot and kill Francisco Martinez, in violation of § 53-9 of the General Statutes. The defendant pleaded not guilty and elected to be tried by a jury of twelve. The case was tried and the jury returned a verdict of guilty of murder in the first degree as charged. The defendant was sentenced by the court to life imprisonment and it is from that judgment that he has taken this appeal.

On the appeal, the defendant has pursued five claims of error. The defendant claims (1) that there was 'insufficient probable couse' to issue an arrest warrant, (2) that the court erred in refusing to allow evidence regarding a polygraph test, (3) that the court erred in refusing to strike testimony of the defendant's wife on the ground of confidential communication, (4) that the court erred in excluding certain evidence adduced at a previous trial, and (5) that the verdict was contrary to law and the evidence. ¹

From a review of the evidence, the jury could have reasonably found the following facts: On the evening of December 9, 1970, the defendant met Ernest L. Stewart at Lavery's Bar and Grill in Bridgeport and indicated to Stewart that he wanted to go out and make some money. The two then went to the Clover Club on State Street. After acquiring a revolver, the defendant indicated to Stewart that he had a plan by which he was going to get money from a 'faggot.' The defendant then placed a telephone call and, soon thereafter, Francisco Martinez drove to the Clover Club in a dark green, four-door Cadillac automobile. The defendant talked Martinez into driving to an area on Morehouse Highway near Congress Street in Fairfield. The defendant got Martinez out of the car by asking him to remove some tires from the trunk of the vehicle. As Martinez was about to remove the second tire from the trunk, the defendant fired one shot into the right side of Martinez's head. The shot killed Martinez and his body was pushed into the trunk. The defendant had told Stewart that he was going to kill Martinez to get his money. The defendant and Stewart drove in Martinez's Cadillac to a dump area in Milford where the defendant removed the body of Francisco Martinez from the trunk of the car and rolled it down a hill, thereafter covering the body with tires and newspapers. The defendant took Martinez's wallet and credit cards and a bank book from the glove compartment of the car. Thereafter, the defendant removed a number of items from Martinez's house and withdrew funds from a savings account in Martinez's name. On December 11, 1970, the defendant picked up his wife in Martinez's Cadillac and, with a number of other people, drove to New York and went on a shopping spree. He purchased a number of items in many different stores and paid for them with credit cards belonging to Martinez, and, in so doing, identified himself as Francisco Martinez. He also attempted to cash two checks allegedly drawn by Martinez, and at other times represented himself to be Martinez. The defendant told both his brother-in-law, Badgie Chapman, and his wife that he had killed Francisco Martinez. Although there are many other factual details which the jury could have reasonably found, it would serve no useful purpose to include them in this summary.

We now consider the five claims fo error raised by the defendant in the order enumerated in the parties' briefs.

I

The defendant has first claimed that there was no probable cause to issue an arrest warrant because the affidavit of Captain Anthony P. Fabrizi, of the Bridgeport police department, attached to the application for a bench warrant neither named the informer nor stated his previous use or reliability. The record does not show that this issue was ever raised or decided by the trial court. It does appear that the defendant pleaded to the indictment and that at no time prior to judgment did he attack the validity of the bench warrant. Under these circumstances, any defect in the supporting affidavit was waived. Reed v. Reincke, 155 Conn. 591, 599, 236 A.2d 909. Had the issue been raised, the court could have found that there was substantial basis for crediting the hearsay. The affidavit purported to relate the personal and recent observations of the informant and contained some of the underlying circumstances from which the officer could conclude that the informant, whose identity need not be disclosed, was credible or his information reliable. See United States v. Harris, 403 U.S. 573, 581, 91 S.Ct. 2075, 29 L.Ed.2d 723; Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 .l.Ed.2d 723; State v. Williams, 169 Conn. 322, 329, 363 A.2d 72; State v. Jackson, 162 Conn. 440, 450, 294 A.2d 517, cert. denied, 409 U.S. 870, 93 S.Ct. 198, 34 L.Ed.2d 121.

II

In his brief, the defendant claims that the court erred in refusing to allow any evidence regarding a polygraph (lie detector) test taken by the defendant or regarding a stipulation as to the admissibility of its results. Although the brief asserts a stipulation between the defendant and the state's attorney regarding the admissibility of the polygraph test, the defendant's counsel admitted in oral argument that the claim of a proper stipulation is not supported by the record. It follows that much of the defendant's argument regarding the admissibility of the polygraph test has no application to this case. See annot., 53 A.l.r.3d 1005 (tests taken upon stipulation that the results will be admissible in evidence). The record shows only that the court excluded evidence of a polygraph test claimed to have been taken by the defendant. In ruling as it did, the trial court was following the rule in this jurisdiction that polygraph evidence is inadmissible. State v. Carnegie, 158 Conn. 264, 272, 259 A.2d 628, cert. denied, 369 U.S. 992, 90 S.Ct. 488, 24 L.Ed.2d 455; Molino v. Board of Public Safety, 154 Conn. 368, 376, 225 A.2d 805. The courts of other jurisdictions also have generally rejected the results of polygraph tests either as substantive evidence or as relating to the credibility of a witness for the reason that such tests have not been accepted as a reliable and accurate means of ascertaining the truth. 29 Am.Jur.2d, Evidence, §§ 296, 831; McCormick, Evidence (2d Ed.) § 207. We are not convinced, from the facts of this case, that our rule pertaining to the inadmissibility of those tests should be altered at this time. The trial court committed no error in excluding the evidence.

III

The defendant's third claim is that the court erred in refusing to strike testimony of Teretha Saia, the defendant's wife, on the ground that it disclosed a confidential communication with her spouse. The cases cited by the defendant in support of this allegation indicate that he may have confused three distinct issues: (1) a spouse's disqualification as a competent witness, (2) a defendant spouse's privilege against adverse marital testimony, and (3) the privilege of confidential communication between spouses. See 8 Wigmore (McNaughton Rev.), Evidence § 2334. At early common law, the husband or wife of a party was disqualified as a witness and prevented from testifying either for or against the party in any case, either civil or criminal. See 81 Am.Jur.2d, Witnesses, § 148; McCormick, op.cit. § 66. Connecticut, however, has provided by statute that '(a)ny person on trial for crime shall be a competent witness . . .. If such person has a husband or wife, he or she shall be a competent witness but may elect or refuse to testify for or against the accused.' General Statutes $ 54-84. Mrs. Saia was clearly a competent witness within the unambiguous wording of the statute. State v. Volpe, 113 Conn. 288, 292, 155 A. 233. Moreover, § 54-84 gives the witness spouse the option of testifying against an accused spouse. As this court said of the substantilly similar predecessor to this section, § 8800 of the 1949 Revision: '(O)ur statute does not render the wife an incompetent witness against her husband but permits her to testify or to refuse at her option.' State v. Volpe, supra; State v. Walters, 145 Conn. 60, 66, 138 A.2d 786, cert. denied, 358 U.S. 46, 79 S.Ct. 70, 31 L.Ed.2d 45. The common-law restriction against adverse marital testimony was founded on the legal unity of the spouses and the policy of preventing discord between them. Spitz's Appeal, 56 Conn. 184, 186, 14 A. 776. The jurisdictions which, like Connecticut, have statutorily limited this restriction on adverse spousal testimony by allowing only the witness spouse to invoke a privilege to refuse to render such testimony have done so apparently on the theory that the witness spouse should be permitted to determine whether the marriage can or should be saved by a refusal to testify. See comment, 'Marital Privileges and the Right to Testify,' 34 U.Chi.L.Rev. 196, 199. In the present case, Mrs. Saia was informed of her right to refuse to testify against her accused husband, after which she specifically stated that she understood and waived this right, and wished to testify. As for the defendant's allegation that Mrs. Saia's testimony regarding her husband's confession violated a confidential communications privilege, any such claim was waived by the accused and cannot be asserted now. The defendant, without objection, consented to repeated testimony by Mrs. Saia concerning conversations with her husband in...