State v. Schafer

• Decision Date: 13 June 1969
• Docket Number: No. CR,CR
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Parties: STATE of Connecticut v. Jacob SCHAFER. 17-5828.

Page 623

260 A.2d 623

5 Conn.Cir.Ct. 669

STATE of Connecticut v. Jacob SCHAFER.

No. CR 17-5828.

Circuit Court of Connecticut, Appellate Division.

Argued March 24, 1969.

Decided June 13, 1969.

John P. McKeon, Hartford, for appellant (defendant).

Dennis F. Gaffney, Asst. Chief Prosecuting Atty., for appellee (state).

DiCENZO, Judge.

The information charged the defendant with violation of General Statutes § 53-295, entitled 'Pool Selling.' No bill of particulars was sought, and no objection was made to going forward with the trial without further specification of the particular part or section of the statute relied on by the state. After a trial to the jury, the defendant was found guilty and has appealed from the judgment.

Under the provisions of § 53-295, it is unlawful inter alia, to maintain or occupy any place with apparatus, books or any device for the purpose of registering bets or wagers on the result of any trial or contest of skill, game, race or endurance of man, beast, bird or machine. This includes horse races and ball games. State v. Rich, 129 Conn. 537, 540, 29 A.2d 771.

On December 22, 1966, pursuant to § 54-33f of the General Statutes, the defendant filed a motion to suppress evidence allegedly obtained illegally and for the return of property so obtained on the ground that (1) the property was seized by a search warrant which was insufficient on its face; (2) there was not probable cause for believing the existence of the grounds on which the warrant was issued; (3) the warrant was illegally executed and/or issued; and (4) the search and the seizure of the property were accomplished by an invalid search warrant and in violation of the defendant's rights under the fourth amendment to the federal constitution and under article first, § 7, of the Connecticut constitution. See General Statutes § 54-33a.

The motion to suppress was denied. (Ciano, J.). The defendant attacks the denial of the motion to suppress. The search and seizure warrant was issued for the search of the defendant, his residence and two automobiles used by him but registered in the name of Beverly Schafter. The affidavit contained allegations that the defendant was violating § 53-295 of the General Statutes; that the police officers had confidential information from a reliable informant; and that the usual pattern of pool-selling activity was observed. A trooper stated in the affidavit that the informant observed the defendant pick up horse race bets from a convicted gambler. The informant was present when telephone calls were placed with the defendant's telephone number and horse race bets were placed. The conduct of the defendant during the usual time for placing wagers was described, together with his associations during that time. The affidavit in the instant case is clearly distinguishable from the affidavit discussed in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, in that it sets forth several of the underlying circumstances, reasons for the reliability of the informants, actual betting transactions by known convicted gamblers, both by telephone and in person, and personal observations of the conduct of the defendant by the affiants at the places and times supplied by the informants. The affidavit also sets forth that the defendant was a multiconvicted bookmaker and was observed by the affiants, in a surveillance spreading over four days, to be always at home during the so-called betting hours. In Spinelli, supra, the affidavit was found to be insufficient for several reasons: (1) There was no support for the affiant's conclusions that the informant was reliable; (2) the informant did not provide a sufficient statement of the underlying circumstance; (3) there were no allegations that the informant personally observed the defendant in any betting action or ever placed a bet with him. In the instant case, the affidavit did disclose that there was probable cause to believe that the defendant was in the business of pool selling and clearly justified the issuance of the search warrant. See Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723; Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134; Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436; Dumbra v. United States, 268 U.S. 435, 441, 45 S.Ct. 546, 69 L.Ed. 1032; State v. Wilson, 153 Conn. 39, 212 A.2d 75. This assignment of error is without merit.

As to the court's refusal to quash the information on the ground that the pool-selling statute is unconstitutional, we do not consider this assignment, since during oral argument the defendant stated that he would not pursue this claim.

There are twenty-two assignments of error, and for purposes of clarity we will discuss them as nearly as possible in the order in which they are claimed to have occurred at the trial and not in the numerical order in which they appear in the defendant's assignment of errors.

As soon as the court stated that it was ready to proceed with the trial, the defendant moved that the courtroom be cleared and that the presiding judge disqualify himself. The defendant offered as a basis for his motion that some fifteen years prior the presiding judge was a member of the United States parole board and as such had then ruled adversely to the defendant's request for parole. The defendant further asserted, in support of one motion, that he had expressed himself as the result of the United States parole board ruling and that some of his words may well have reached the ears of the trial court, developing animosity. The court denied the motion, stating that there was 'no memory in my mind that could, in any way, make me act illegally or improperly in this case.' Farlier, the court had pointed out that this was a jury case. Exception was noted by the defendant, and he assigns error in the court's denial of the motion.

Section 51-39 of the General Statutes sets forth the statutory reasons for a judge's disqualification. The defendant does not claim that there were statutory disabilities in this case, and there do not appear to have been any. A very similar situation was disposed of in State v. Kohlfuss, 152 Conn. 625, 211 A.2d 143. In that case, the sentence review division had heard the defendant's application for review of his sentence. After the hearing, the review division increased the sentence from two to three years. After being arrested for a subsequent crime while on parole, the defendant was finally presented for trial before a judge who had been one of the three members of the review division when the defendant's sentence was increased. Even though, in Kohlfuss, no timely claim was made that the trial judge should disqualify himself, the Supreme Court pointed out (p. 629, 211 A.2d p. 145): 'In the first place, in a consideration of this claim of disqualification, it should be noted that the sentence review division has nothing to do with the ascertainment of guilt or innocence. Its powers are limited to a review of the sentence imposed.' The common-law rule is that no judge should preside in a case in which he is not wholly free, disinterested, impartial, and independent, and in general the rule of disqualification should not have a narrow or technical construction but rather should be broadly applied in all cases where a judge is called to act judicially or to decide between conflicting rights; and no judge should try a case in which there is any substantial ground on which to base a claim of disqualification. 48 C.J.S. Judges § 72. In the instant case, there was no statutory nor any other substantial ground for disqualification of the trial judge.

The defendant's attacks on the conduct of the trial judge throughout the trial are set forth in assignments of error. Prejudice and unfairness are the keynotes of the attacks on the trial judge. 'An assignment of this nature is one not lightly to be made or summarily to be disposed of. Because of the gravity of the accusation, which strikes at the very core of judicial integrity and tends to undermine public confidence in the established judiciary, we have examined the record with infinite care, in fairness and justice both to a litigant in the case at bar and to a member of the bench of this state.' Felix v. Hall-Brooke Sanitarium, 140 Conn. 496, 501, 101 A.2d 500, 502-503. We have done no less in the instant case.

We view part III of the defendant's brief as an unwarranted attack on a judge of this state. ¹ There is ample authority for striking the defendant's brief in its entirety and on the court's own motion. Note, 111 A.L.R. 879, 882-84. In the interests of justice and dispatch, however, we order part III only of the defendant's brief stricken from the files of this case.

Returning to the assignments of error attacking the conduct of the court at the trial, we examine them individually. The defendant claims that the comment of the trial court, 'You can mark me for identification for that matter. You can mark anybody for identification,' was a 'flippant rejoinder.' We are of the opinion that this was the court's manner of stating the rule that there is no discretion in the court in marking exhibits for identification. In Duncan v. McTiernan, 151 Conn. 469, 470, 199 A.2d 332, 333, our Supreme Court said: 'It was manifest error for the court to refuse to permit the documents to be marked as exhibits for identification. The court had no discretion to refuse such a request, because to allow such discretion would permit a trial judge to deprive an aggrieved party of a proper record for an appeal.'

The defendant attacks the following admonition of the court to both counsel: 'I think the time has come when I must state my position. If I detect-I'm referring to both sides. If I detect any effort to create a situation where there will be a mistrial, I'm going to indulge in examining the conduct of the lawyers and if it's within the lawyer's realm to know that he...