State v. Vega

• Decision Date: 26 June 1972
• Citation: State v. Vega, 163 Conn. 304, 306 A.2d 855 (Conn. 1972)
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Wilfredo S. VEGA.

Page 855

306 A.2d 855

163 Conn. 304

STATE of Connecticut v. Wilfredo S. VEGA.

Supreme Court of Connecticut.

June 26, 1972.

Edmund J. Ramos, Milford, and Theodore Krieger, New York City, of the New York bar, for appellant (defendant).

Donald A. Browne, Asst. State's Atty., with whom, on the brief, was Joseph T. Gormley, Jr., State's Atty., for the appellee (state).

Before HOUSE, C.J., and RYAN, SHAPIRO, LOISELLE and MacDONALD, JJ.

SHAPIRO, Associate Justice.

The defendant was convicted by a jury of the crime of manslaughter in violation of § 53-13 of the General Statutes. In this appeal from the judgment rendered on that verdict, he pursues two assignments of error. See Maltbie, Conn.App.Proc. § 327.

In this first assignment of error, the defendant relies on Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, in support of his claim that the trial court erred in allowing testimony given by the defendant at a pretrial hearing on a motion to suppress evidence on constitutional grounds to be utilized to impeach his testimony at the trial. During its cross-examination of the defendant, the state had endeavored to impeach his credibility by establishing inconsistencies between his direct testimony at the trial and that which he had given pursuant to his unsuccessful motion to suppress.

In the Simmons decision, the codefendant Garrett had filed a pretrial motion to suppress as evidence a particular suitcase and its contents which were in the possession of the state, and in support thereof he offered testimony at the suppression hearing admitting ownership of the suitcase in order to establish his standing. That testimony was thereafter presented at his trial by the state as part of its case on the issue of guilt. The United States Supreme Court observed that Garrett thus was obligated either to give up what he believed to be a valid fourth amendment claim or, in legal effect, to waive his fifth amendment privilege against self-incrimination. 'In these circumstances, we find it intolerable that one constitutional right should have to be surrendered in order to assert another. We therefore hold that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt (emphasis added) unless he makes no objection.' The Simmons case, page 394, 88 S.Ct. at page 976.

The language of the United States Supreme Court in Simmons clearly limits the holding to that factual situation where the earlier motion testimony is offered as substantive evidence to convict. Quite clearly the evidence in the case at bar was admitted not on the issue of guilt but merely as prior inconsistent statements for the limited purpose of impeaching the credibility of the defendant as a witness. ¹

It is elementary that a defendant who elects to testify in his own behalf is subject to cross-examination and impeachment just as is any witness. McGautha v. California, 402 U.S. 183, 215, 91 S.Ct. 1454, 28 L.Ed.2d 711; Grunewald v. United States, 353 U.S. 391, 420, 77 S.Ct. 963, 1 L.Ed.2d 931; Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054; Sharp v. United States, 410 F.2d 969, 970 (5th Cir.); State v. Keating, 151 Conn. 592, 597, 200 A.2d 724, 727, cert. denied, sub nom. Joseph v. Connecticut, 379 U.S. 963, 85 S.Ct. 654, 13 L.Ed.2d 557; State v. Reid, 146 Conn. 227, 232, 149 A.2d 698; State v. Walters, 145 Conn. 60, 66, 138 A.2d 786, cert. denied, 358 U.S. 46, 79 S.Ct. 70, 3 L.Ed.2d 45. '(I)t is proper to attack a witness' credibility by evidence of his materially inconsistent statements. State v. Walters, 145 Conn. 60, 66, 138 A.2d 786.' State v. Keating, supra.

Testimony under oath voluntarily given by an accused at a hearing to suppress evidence may be used to impeach later contrary statements. Sharp v. United States, supra, 410 F.2d 971; Bailey v. United States, 125 U.S.App.D.C. 354, 389 F.2d 305, 311; Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936, 941 (Burger, Circuit Judge); Woody v. United States, 126 U.S.App.D.C. 353, 379 F.2d 130, 132, cert. denied, 389 U.S. 961, 88 S.Ct. 342, 19 L.Ed.2d 371 (Burger, Circuit Judge); Humphrey v. United States, 236 A.2d 438, 439 (D.C.App.); see also United States v. Budzanoski, 331 F.Supp. 1201, 1205 (W.D.Penn.). 'Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. . . . Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did not more than to utilize the traditional truthtesting devices of the adversary process.' Harris v. New York, 401 U.S. 222, 225, 91 .s.Ct. 643, 645, 28 L.Ed.2d 1; see also Walder v. United States, 347 U.S. 62, 65, 74 S.Ct. 354, 98 L.Ed. 503. The shield provided by the Simmons rule cannot be perverted into a license to use perjury by way of a defense, free from all risk of confrontation with prior inconsistent utterances. The plaintiff's credibility was appropriately impeached by use of his earlier conflicting statements.

The defendant's other assignment of error relates to some remarks which the defendant asserts the assistant state's attorney made in his summation to the jury. The arguments were not transcribed. We can decide the merits of an appeal only on the record presented. Wooster v. Wm. C. A. Fischer Plumbing & Heating Co., 153 Conn. 700, 703, 220 A.2d 449. We cannot pass on the court's...