State v. Simms

• Decision Date: 10 February 1976
• Citation: 170 Conn. 206,365 A.2d 821
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Arthur SIMMS.

Page 821

365 A.2d 821

170 Conn. 206

STATE of Connecticut v. Arthur SIMMS.

Supreme Court of Connecticut.

Feb. 10, 1976.

Certiorari Denied April 26, 1976. See 96 S.Ct. 1732.

Edward F. Kunin, Special Public Defender, for appellant (defendant).

Richard F. Jacobson, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Thomas E. Minogue, Jr., Asst. State's Atty., for appellee (state).

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

LOISELLE, Associate Justice.

On a trial to a jury the defendant was found guilty of selling heroin in violation of Public Acts 1972, No. 278, § 24(a). See General Statutes § 19-480(a). He has appealed from the judgment rendered on the verdict.

The state offered evidence to prove that on November 17, 1972, an undercover agent, Richard P. O'Connell, while in Danbury, was introduced to the defendant, Arthur Simms, by Walter Johnson. During their conversation, O'Connell offered to buy heroin from the defendant. The defendant told O'Connell and Johnson to meet him in an alley. Once there, the defendant told O'Connell that the sale would have to be made through Johnson. O'Connell gave fifty dollars to Johnson, and then Johnson and the defendant walked about twenty feet away where Johnson exchanged the money for two glassine bags of heroin.

During the trial, Walter Johnson, who, at the time, was incarcerated in state prison, was called to the stand by the defendant and testified to his name and address. When asked if he knew 'a man called Richard O'Connell,' he refused to testify further and pleaded 'the Fifth.' He was then asked: 'On November 17th of 1972, were you and another male now present involved in a sale of drugs with a man called Richard O'Connell?' The witness answered: 'Again I plead the Fifth.' Thereafter, the witness was allowed to consult with a public defender. After this consultation, the witness told the court that he would stand upon his constitutional right not to testify. The court then allowed Johnson to step down from the witness chair and leave the courtroom. The defendant's assignments of error are restricted to the court's actions relating to Johnson's claim of privilege against self-incrimination.

The first claim of the defendant is that the court erred by ruling that Johnson, who was called by the defendant, had the privilege against self-incrimination by virtue of the fifth amendment to the federal constitution. The defendant asserts that, by this ruling, the court violated his right to confront his accusers and to offer all exculpatory evidence available to him. The right asserted may reasonably be construed to mean the right to compulsory process for obtaining witnesses in the accused's favor. Trial counsel neither objected nor took exception to the court's ruling. This court will not consider claimed errors on the part of the trial court unless it appears that the question was distinctly raised at the trial and was ruled upon and decided by the court adversely to the appellant's claim. Practice Book § 652. See, e.g., Gelinas v. Nelson, 165 Conn. 33, 40, 327 A.2d 565; John Meyer of Norwich, Inc. v. Old Colony Transportation Co., 164 Conn. 633, 635, 325 A.2d 286.

In exceptional circumstances, however, this court will consider newly raised claims. Only two situations may constitute 'exceptional circumstances.' 'The first is . . . where a new constitutional right not readily foreseeable has arisen between the time of trial and appeal. . . . The second 'exceptional circumstance' may arise where the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial.' State v. Evans, 165 Conn. 61, 70, 327 A.2d 576, 581. If the defendant's claim is to be considered, then it must come under the second 'exceptional circumstance.'

The defendant, as claimed by his appellate counsel, does have a constitutional right, under the sixth amendment to the federal constitution and article first, § 8, of the state constitution, to compulsory process to produce witnesses in his behalf. Johnson, however, has a privilege against self-incrimination as provided by the fifth amendment to the federal constitution and by article first, § 8, of the state constitution. 'To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.' ¹ Hoffman v. United States, 341 U.S. 479, 486-87, 71 S.Ct. 814, 818, 95 L.Ed. 1118. The evidence presented by the state unmistakably indicates that Johnson was not only present at the time of the alleged sale but actually participated in its sufficiently to be charged as a principal. 'In this setting it was not 'perfectly clear, from a careful consideration of all circumstances in the case, that the witness is mistaken, and that the answer(s) cannot possibly have such tendency' to incriminate.' Hoffman v. United States, supra, 488, 71 S.Ct. 819.

There exists, then, a conflict between the rights of the accused and the privilege of the witness. In this conflict, the accused's right to compel testimony must give way to the witness' privilege against self-incrimination, just as the power of the state to compel testimony must give way to the privilege. Kastigar v. United States, 406 U.S. 441, 444-45, 92 S.Ct. 1653, 32 L.Ed.2d 212. See Washington v. Texas, 388 U.S. 14, 23 n. 21, 87 S.Ct. 1920, 18 L.Ed.2d 1019. This being the case, the defendant has failed to show that he was deprived of a fundamental constitutional right and, his claim, therefore, does not come within the second 'exceptional circumstance.' Aside from this, the discussion above shows unequivocally that the court was not in error in holding that Johnson had the right to refuse to testify on the grounds of protection against self-incrimination.

The second claim of the defendant is that the court, assuming Johnson could have incriminated himself, should have granted Johnson immunity and compelled him to testify. No one requested immunity in the trial court. This claim is considered, however because of its relationship with the defendant's sixth amendment rights and because the second 'exceptional circumstance,' as stated in State v. Evans, supra, is possibly available to the defendant.

The defendant has failed to cite any case that supports his claim, but he does argue that General Statutes § 54-47a can be construed to require the prosecution to use its authority and grant immunity to the accused's witnesses when...