State v. Timmons, 3078

• Decision Date: 20 May 1986
• Docket Number: No. 3078,3078
• Citation: 509 A.2d 64,7 Conn.App. 457
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Thomas TIMMONS.

Page 64

509 A.2d 64

7 Conn.App. 457

STATE of Connecticut v. Thomas TIMMONS.

No. 3078.

Appellate Court of Connecticut.

Argued Dec. 5, 1985.

Decided May 20, 1986.

Eugene J. Riccio, Public Defender, for appellant (defendant).

Robert A. Lacobelle, Asst. State's Atty., with whom, on brief, was Donald A. Browne, State's Atty., for appellee (State).

Before DUPONT, C.J., and SPALLONE and BIELUCH, JJ.

BIELUCH, Judge.

The defendant was arrested on April 23, 1983, and charged with the murder of Robert L. Smith. Over the objection of the defendant, the state's attorney submitted the matter to a grand jury. On June 30, 1983, the grand jury returned a true bill of indictment against the defendant for murder, a violation of General Statutes § 53a-54a(a). The defendant was tried before a jury of twelve and convicted of the lesser included offense of manslaughter in the first degree, a violation of General Statutes § 53a-55(a)(1). He was sentenced to a term of imprisonment for twenty years. The defendant has appealed from the judgment of conviction, claiming that the trial court erred: (1) in denying him his constitutional right to a probable cause hearing; (2) in its instructions to the jury on the issue of his flight; (3) in its instructions to the jury on certain inculpatory statements made by him while in police custody; and (4) in its instructions to the jury on the issue of self-defense. We find no error.

The following facts are not in dispute. In early morning, April 23, 1983, the defendant entered Jackson's Cafe in Bridgeport. Once inside, he encountered his ex-girlfriend, Vera Robinson, in the company of the victim, Robert L. Smith. Robinson had recently severed her relationship with the defendant. The defendant briefly confronted Smith before drawing a handgun and firing a shot toward him. A few seconds later, the defendant fired a second shot. The victim then fell to the floor. He died several hours later from a single gunshot wound. The defendant left the cafe immediately after the shooting and disposed of the handgun in a river. After hiding out for several days, he surrendered to the police.

The defendant was taken into custody and advised of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The defendant refused to waive these rights. While being transported for arraignment, the defendant began to mumble to himself. One of the attending police officers asked him what he was saying. The defendant responded, "I didn't really mean to shoot him, it was an accident. I'm really sorry." While in the back seat of the police cruiser, the defendant continued to mumble to himself. He paused for a while and then said, "I only remember firing two shots, but the people there said there were four shots or more." At that point, the officer began questioning the defendant about the shooting. ¹

On June 30, 1983, prior to the submission of the matter to the grand jury, the defendant's counsel requested that the defendant be granted a probable cause hearing. This motion was denied and the defendant's exception was noted. On the same day, the grand jury returned a true bill of indictment for murder, a violation of General Statutes § 53a-54a(a).

After the close of the evidence at trial, the defendant submitted a request to charge the jury on the issue of the defendant's flight following the shooting. This request stated that evidence of the defendant's flight "does not raise a presumption of the defendant's guilt and by itself is but scant or weak evidence of his guilt." As to the issue of the defendant's incriminatory statements, the defendant requested that the jury be instructed that such statements alone are insufficient to prove that the defendant committed the crime charged. They must be substantially corroborated by other material and substantial evidence that the crime charged was committed by someone. The defendant also requested that the jury be instructed on the issue of self-defense to the effect that an attempt to draw a gun serves as a sufficient appearance of necessity to justify the use of deadly physical force in self-defense. The requested instruction stated, in part, "one knowing his life to be threatened, and believing himself to be in danger of death or great bodily harm, need not remain at home to avoid assault, but may arm himself sufficiently to repel anticipated attack and pursue his legitimate avocation; and if, without fault, he is compelled to take life to save himself, the homicide is justifiable." The trial court's instructions on these issues did not follow the requested language, but did incorporate some, however not all, of the elements of the defendant's requests to charge.

The trial court charged the jury on the elements of murder and of the lesser included offenses of manslaughter in the first degree, manslaughter in the second degree and criminally negligent homicide. The jury acquitted the defendant of the murder charge but found him guilty of committing manslaughter in the first degree in violation of General Statutes § 53a-55(a)(1).

The defendant's first claim on appeal alleges that he was denied his constitutional right to a probable cause hearing, as guaranteed by the constitution of Connecticut, amendment seventeen, adopted on November 24, 1982. The state concedes that the defendant was denied his constitutional right to a probable cause hearing, but maintains that the trial court's denial of this right was harmless beyond a reasonable doubt because the defendant was acquitted of the murder charge when he was convicted of the lesser included charge of manslaughter in the first degree. We agree.

Article first, § 8, of the constitution of Connecticut was modified by amendment seventeen on November 24, 1982, to provide: "No person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law...." The enabling legislation enacted to implement this constitutional change, General Statutes § 54-46a(a), provides in pertinent part: "No person charged by the state on or after May 26, 1983, shall be put to plea or held to trial for any crime punishable by death or life imprisonment unless the court at a preliminary hearing determines there is probable cause to believe that the offense charged has been committed and that the accused person has committed it." It is apparent from the record here that the trial court denied the defendant's motion for a probable cause hearing because he was "charged" with murder prior to the statutory date, May 26, 1983. The court concluded, therefore, that the defendant had no right to a probable cause hearing under the provisions of General Statutes § 54-46a(a).

Subsequent to the trial court's ruling on the defendant's motion for a probable cause hearing, our Supreme Court struck down as unconstitutional that portion of General Statutes § 54-46a(a) which limited the constitutional right to a probable cause hearing to those persons " 'charged by the state' on or after May 26, 1983." State v. Sanabria, 192 Conn. 671, 699, 474 A.2d 760 (1984). The remainder of the act, however, was held to be valid. Id. The court held that "on May 26, 1983, the effective date of [General Statutes § 54-46a], all persons then being held for crimes punishable by death or life imprisonment, who had not yet been indicted by grand jury became entitled to a probable cause hearing before their cases went to trial, regardless of the dates on which they were arrested or charged by information." (Emphasis in original.) Id.

It is undisputed that on May 26, 1983, the defendant was being held for the grand jury on a charge punishable by life imprisonment. It is equally clear, in light of the holding in State v. Sanabria, supra, that the defendant was denied his recently established constitutional right to a probable cause hearing. Recognition of this acknowledged error, however, does not end our inquiry. The state argues that the error, admittedly of a constitutional nature, was harmless beyond a reasonable doubt. See State v. Cohane, 193 Conn. 474, 484-85, 479 A.2d 763, cert. denied, --- U.S. ----, 105 S.Ct. 397, 83 L.Ed.2d 331 (1984).

In determining whether the deprivation of the defendant's constitutional right to a probable cause hearing was harmless beyond a reasonable doubt, we must weigh the effect of an assumed finding of no probable cause at a properly conducted hearing upon the prosecution and defense in this case. Such a lack of probable cause to charge the defendant with murder would not have precluded the state from proceeding to trial against the defendant on the lesser included offense of manslaughter in the first degree upon information. See General Statutes (Rev. to 1983) § 54-46. Charged only with manslaughter, the defendant would have had no right to a probable cause hearing or any of the rights ancillary thereto. ²

We disagree with the defendant's contention that the lack of a probable cause hearing rendered the subsequent criminal proceedings void ab initio. For a criminal proceeding to be void ab initio, there must be some defect as to the court's jurisdiction over the subject matter or the person charged. See generally Spinella, Connecticut Criminal Procedure, pp. 4-8. It is evident that the trial court lacked jurisdiction over the subject matter of the murder charge because of the constitutional prohibition against trying a person for such a crime without granting him a prior probable cause hearing. It is equally clear, however, that the court had proper jurisdiction over the charge of manslaughter in the first degree. The state was entitled to prosecute the defendant for manslaughter solely on the basis of the original information charging murder filed prior to his arraignment upon his arrest on a warrant that issued after a magisterial finding of probable cause. While the information...