State v. Taylor

• Decision Date: 07 October 1965
• Citation: 153 Conn. 72,214 A.2d 362
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Samuel TAYLOR. Supreme Court of Errors of Connecticut

Page 362

214 A.2d 362

153 Conn. 72

STATE of Connecticut v. Samuel TAYLOR.

Supreme Court of Errors of Connecticut.

Oct. 7, 1965.

Jacob D. Zeldes, Special Public Defender, with whom was Elaine S. Amendola, Bridgeport, for appellant (defendant).

Joseph T. Gormley, Jr., Asst. State's Atty., with whom, on the brief, were Otto J Saur, State's Atty., and John F. McGowan, Asst. State's Atty., for appellee (state).

Before KING, C. J., and MURPHY, SHANNON, HOUSE, and COTTER, JJ.

COTTER, Associate Justice.

On January 30, 1958, Samuel Taylor was arrested and charged with aiding and abetting Joseph Gauze, a codefendant, in furnishing drugs to a minor. Gauze was charged with furnishing drugs to a minor. Cum.Sup.1955, § 2105d (General Statutes § 19-267). They were tried simultaneously, Taylor to the court and Gauze to the jury. Both were found guilty. At the trial each was represented by private counsel. After sentence was passed, Taylor retained new private counsel for the purpose of taking an appeal to this court. His appeal was filed June 7, 1958. The appeal was withdrawn by the attorney on October 4, 1958, after consultation with Taylor, because Taylor was unable to pay the fee which had been agreed upon. Subsequently, in October, 1962, Taylor initiated a habeas corpus proceeding in the Superior Court, claiming that he had been denied the right to an appeal and that he had been denied the right to have assistance of counsel in the preparation of an appeal. The Superior Court, having taken the testimony of all parties involved, found that Taylor had consented to the withdrawal of the appeal by counsel and had thereby waived his right to an appeal. We refused to review that determination. See General Statutes § 52-470. Taylor's petition to the United States Supreme Court for a writ of certiorari was denied on October 14, 1963. Taylor v. Connecticut, 375 U.S. 840, 84 S.Ct. 86, 11 L.Ed.2d 68.

Nine days later, on October 23, 1963, Taylor began a habeas corpus action in the federal District Court for the district of Connecticut. That court, exercising its plenary power to review constitutional issues arising out of state court convictions, as established in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, and Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770, determined that Taylor had not waived his right to appeal and ordered that Taylor be discharged unless, within a reasonable time, an appeal of the 1958 conviction was granted. United States ex rel. Taylor v. Reincke, 225 F.Supp. 985 (D.Conn.). Pursuant to this order of the District Court, this appeal was granted and counsel appointed.

Before proceeding to the basic claims of the defendant, it is necessary to consider a preliminary matter. The defendant makes some claim that this court should 'find', because of the lapse of five and one-half years, that the finding of the trial judge is not reasonably supported by his memory and that we should therefore order a new trial. This claim was first made in a motion to the trial judge, which he denied. The trial judge's denial of the motion can be construed only as a determination that he could make a finding reasonably supported by memory. As pointed out by the District Court: 'It must be left to the judge * * * to test his own memory.' United States ex rel. Taylor v. Reincke, supra, 991. The question whether the time lapse between trial and appeal is of sufficient duration to prevent the making of a finding is one which the trial judge is in a unique position to decide, and we find no reason for disturbing that determination in this case. The entire transcript of the trial containing the testimony of all the witnesses was filed with the court and was available to the trial judge before he made his finding. This transcript contained all the evidence relevant and material to the issues raised on appeal. Practice Book, 1951, § 404, (as amended, Practice Book, 1963, § 641). It would be absurd to believe a trial judge of many years experience could not refresh his memory from a full transcript of the trial while witnesses are permitted under our rules of jurisprudence to refresh their memories in innumerable ways and from all sorts of writings of ancient vintage. 3 Wigmore, Evidence (3d Ed.) §§ 758-764; 58 Am.Jur. 323-338 Witnesses, §§ 578-608. We therefore pass to the merits of the appeal.

The defendant in his brief raises several claims. For convenience we first consider the claims arising from rulings on evidence. The court admitted into evidence, over the objection of the defendant, a magnetized metal box found near the place where the sale of narcotics took place. This metal box contained three glassine packets of heroin. The defendant objected to its admission on the ground that the state had shown no connection between the box and either the defendants or the crime charged. The court admitted the box into evidence when the state said that it would later show that the glassine packets in the box were of the same type as the one which was the subject of the sale to the minor Edmund Arsenault. The defendant claims that the statute failed to fulfil this promise to connect. We cannot agree. The necessary link in the chain of circumstances was drawn when the individual packet of heroin, the subject of the sale to Arsenault, became a full exhibit. The trier was then in a position to compare this packet with the packets in the metal box to justify the inference that they had a common origin. State v. Belanger, 148 Conn. 57, 59, 167 A.2d 245. There was adequate corroborative evidence to support this inference. After this offer of proof to connect, substantial evidence was introduced. The state's expert witness, Dr. Abraham Stolman, testified that the packets in the box, as well as the individual packet in the prime transaction, contained heroin. There was testimony by several police officers who observed the activities that the defendant and Gauze entered the alley where the box was subsequently found and emerged only moments later, at which time the individual packet was passed from Gauze to Arsenault. In addition, photographs were marked as full exhibits to show that locus of the activities of the defendant and Gauze. Using these photographs, witnesses testified to the circumstances in detail, and the trial judge, if he believed the testimony, could find that the defendant and Gauze went into the alley, secured a packet of heroin from the cache, and proceeded to walk to Arsenault and give it to him. On the basis of later evidence, therefore, the promise to connect the metal box to the main case was fulfilled by the state, and the box was properly before the court as part of the overall case. Steiber v. City of Bridgeport, 145 Conn. 363, 366, 143 A.2d 434. These facts are in a train of events in evidence which the court could consider. It is fundamental that 'circumstantial evidence may be as cogent and convincing as direct evidence and may properly be found to outweigh conflicting direct evidence.' The Rocona v. Guy F. Atkinson Co., 173 F.2d 661, 665 (9th Cir.) (citing 32A C.J.S. Evidence § 1039). '[D]irect evidence of a fact is not required. Circumstantial evidence is not only sufficient, but also may be more certain, satisfying and persuasive than direct evidence.' Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330, 81 S.Ct. 6, 11, 5 L.Ed.2d 20; Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 508 n. 17, 77 S.Ct. 443, 1 L.Ed.2d 493, rehearing denied, 353 U.S. 943, 77 S.Ct. 808, 1 L.Ed.2d 764. 'Courts must necessarily rely upon circumstantial evidence and are entitled to draw reasonable and logical inferences from all the facts.' Hudick v. Tycz, 142 Conn. 715, 717, 118 A.2d 306, 307.

The court also admitted into evidence a birth certificate, purportedly that of Arsenault, who testified for the state. The defendant claims that there was no adequate foundation to show that Arsenault was the person named in the birth certificate and therefore that it was improperly admitted. The only purpose for which the birth certificate was offered was to show that Arsenault was under twenty-one years of age at the date of the events described in the information. Arsenault testified without objection that he was born on January 17, 1938. Thus, his birth date was established without reference to the birth certificate by competent and adequate evidence of his age. Creer v. Active Auto Exchange, Inc., 99 Conn. 266, 276, 121 A. 888. The birth certificate was merely corroborative of Arsenault's age, which, although his minority was an essential element of the state's case, was not actively contested by the defendant.

Another contention of the defendant is that, under the total circumstances of the case, a conviction based on the testimony of Arsenault deprived him of a fair trial, as guaranteed by the fourteenth amendment to the United States constitution and article first, § 9, of the Connecticut constitution. This argument is predicated upon the fact that Arsenault, at the time of his testimony, was awaiting sentencing in another case on a charge of unauthorized possession of narcotics, to which he had entered a guilty plea some two months prior to the Taylor-Gauze trial. It is the defendant's claim that these circumstances created an inherently coercive situation and that the office of the state's attorney, recognizing this, illegally delayed imposition of sentence upon Arsenault, through control over the criminal calendar, until after the trial of Taylor and Gauze had been completed. The control of the sentencing was in the court. Arsenault was properly represented by counsel, who was available for his protection. No one complained. Even if it is assumed that Arsenault did have a constitutional argument relating to speedy sentencing, the defendant cannot now lay claim to that argument as part of his own case. Tileston v. Ullman, 318 U.S. 44, 46, 63 S.Ct. 493, 87 L.Ed. 603. From the sentence Arsenault...