State v. Vennard

• Decision Date: 19 May 1970
• Citation: 159 Conn. 385,270 A.2d 837
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Dennis B. VENNARD.

Page 837

270 A.2d 837

159 Conn. 385

STATE of Connecticut v. Dennis B. VENNARD.

Supreme Court of Connecticut.

May 19, 1970.

Wesley C. Gryk, Sp. Public Defender, for appellant (defendant).

George D. Stoughton, Chief Asst. State's Atty., with whom, on the brief, was John D. LaBelle, State's Atty., for appellee (state).

Before ALCORN, HOUSE, THIM, RYAN and SHAPIRO, ^* JJ.

THIM, Associate Justice.

On June 9, 1966, at approximately 6:30 p.m., Primo Amadeo, a member of the Manchester police department, dispatched Officer Richard Rand and James Martin to 184 Hollister Street for the purpose of investigating a report received at police headquarters that a woman had been injured. Rand arrived at the scene first and saw the defendant in the center of the highway. Rand stopped his vehicle and asked the defendant the whereabouts of the injured person. The defendant responded by saying: 'It's my mother on the couch in the house.' Rand and the defendant entered the house, followed by Officer Martin less than a minute later, and found the defendant's mother, Mae M. Vennard, on a couch in the living room. She had a large bruise on the right side of her head and appeared unconscious. She was bleeding from the bruise, and the blood was coagulated on the side of her neck. Rand asked the defendant how his mother got hurt, and the defendant responded: 'I hit her with a hammer'. The defendant was immediately taken to police headquarters. Mrs. Vennard died later that evening.

The defendant was presented in the Circuit Court on June 10, 1966, and charged with murder in the first degree. On June 12, 1966, a Superior Court bench warrant was served on the defendant charging him with murder in the first degree, and the Circuit Court charge was nolled. The defendant was indicted by a grand jury for murder in the first degree on August 11, 1966. He pleaded not guilty and elected a trial by jury, and a verdict of guilty of murder in the second degree was returned. The defendant has appealed from the judgment rendered on the verdict. With this limited background we go first to the claims of error in the proceedings before trial.

I

The defendant moved to quash the bench warrant and appearance of the defendant before the grand jury in the Superior Court on the ground (1) that a motion for disclosure, production, inspection and examination filed by the defendant in the Circuit Court was never ruled upon by the Circuit Court nor complied with by the prosecutor of that court; (2) that the state's attorney failed to respond to a copy of the motion for disclosure when it was filed in the Superior Court; and (3) that the defendant was deprived of his right to have a probable cause hearing in the Circuit Court. The trial court denied the motion to quash. The defendant claims there was error in the ruling of the court. We disagree.

The defendant was not entitled to pursue his motion for discovery under the provisions of §§ 167-172 of the Practice Book in the Superior Court. These sections provide for disclosure, production and inspection of evidence in civil actions and are not adapted to proceedings in criminal cases and do not come within the provisions of § 468 of the Practice Book. Rather than attempting to proceed under civil discovery rules, the defendant should have addressed a motion for production to the discretion of the court, which was the standard procedure in this state, at least until the passage in 1967 of General Statutes § 54-86a. Even if such a motion for discovery had been properly filed in a criminal case and had in fact been denied by the court, such denial or failure to comply with the motion would not be a proper ground for granting a motion to quash.

The defendant's claim that he was denied a hearing in probable cause in violation of § 54-76a of the General Statutes cannot be sustained. There was no violation of that statute. See State v. Stallings, 154 Conn. 272, 276-279, 224 A.2d 718, where we held that a nearly identical procedure had been the practice in this state for a great many years and served the desirable end of expediting the disposition of criminal cases to the mutual benefit of the defendant and the state.

The defendant has also attacked the validity of the grand jury proceedings by which he was indicted for first-degree murder. Recently, we had occasion to examine the grand jury procedure in this state, in State v. Menillo, 159 Conn. 264, 274, 268 A.2d 667. In that case, we reaffirmed that an accused has no right to the presence of counsel during the proceedings. See State v. Stallings, supra, 154 Conn. 282-283, 224 A.2d 718. In view of the limited purpose of the grand jury as described in State v. Menillo, supra, and in view of the requirement of secrecy of its deliberations, we see no reason to permit a defendant to jeopardize that secrecy by recording in writing or otherwise what transpires merely for the purpose of making such an investigation a more effective tool for discovery. It was never designed for such a purpose.

There are also certain errors which the defendant claims were made in the charge to the grand jury. We know of no instance where, in the absence of some clear violation of a defendant's constitutional rights, a successful challenge to the validity of a grand jury charge has been pursued, and the defendant has cited no authority in support of his present contention

II

We shall now proceed to discuss the defendant's claims of error made during the trial. At the start of the trial, after the clerk called the roll, administered the usual jury oath and read the indictment to the jury, he concluded with these words: 'If you find him guilty, you will say so and say no more; if you find him not guilty, you will say so and say no more; please attend to the evidence'. The defendant objected to these words, claiming that the jury should have been told also that they might find the defendant not guilty on the ground of insanity. It is apparent that the defendant was not entitled to such a statement at this stage in the proceedings. No claim had yet been made by him which would overcome the presumption of sanity. Furthermore, during its charge to the jury the court made it quite clear that the charge was to be the sole guide as to the jury's duty and the law. The court gave ample instructions relating to the possible verdict of not guilty on the ground of insanity, and on at last two occasions in the charge listed the five possible verdicts: guilty of murder in the first degree; guilty of murder in the second degree; guilty of manslaughter; not guilty on the ground of insanity; and not guilty. Since we are unable to see how the clerk's statement could have misled the jury, especially in the light of the charge, this assignment of error is without merit.

The defendant has also assigned as error the refusal of the court to find certain material facts which he claimed to have proved. After carefully examining the material which the defendant would have added to the finding, we have concluded that the result which we reach in this appeal would not be affected even if the material were included. Consequently, even if we were to find that the court erred in refusing to make the additions to the finding which the defendant sought to have added, the refusal would have been harmless.

The defendant has addressed many assignments of error to the admission of certain evidence by the court, and to the exclusion of certain other evidence. We shall discuss each claim separately.

Officer Amadeo testified that while acting as dispatcher at police headquarters he received a call at 6:23 p.m., June 9, 1966, as follows: 'This is Dennis Vennard, 184 Hollister Street' and the caller reported striking his mother on the head with a hammer and that he did not know why he had done so. Over objection that the statement was hearsay and that there was no way of proving that the defendant actually was the caller, the court admitted it for the purpose of showing that a complaint was made, and not as an admission of the defendant, and so cautioned the jury during the charge. The court also admitted over objection and for the same purpose a daily log report of the Manchester police department which contained a record of the call. The log and Officer Amadeo's testimony were not barred by the hearsay rule since they were not introduced to prove the truth of the statements contained therein. State v. DeNegris, 153 Conn. 5, 12, 212 A.2d 894; State v. Tolisano, 136 Conn. 210, 214, 70 A.2d 118. Still, we think that they should not have been admitted, because of the hazard that the jury might consider the call as an admission of the defendant despite the caution in the charge, and since the limited probative value of the wording of the call was outweighed by the effect that it would tend to have upon the jury. See Thibodeau v. Connecticut Co., 139 Conn. 9, 14, 89 A.2d 223; 29 Am.Jur.2d, Evidence, § 262. The trial court abused its discretion in admitting the substance of the call, especially since it would have been sufficient for Officer Amadeo merely to testify that a complaint had been received. Nevertheless, even though the rulings were erroneous, it does not necessarily follow that there must be a new trial, since the defendant has the burden of showing that the rulings were probably harmful to him. State v. DeMartin,153 Conn. 708, 710, 216 A.2d 204; Shulman v. Shulman, 150 Conn. 651, 662, 193 A.2d 525; Casalo v. Claro, 147 Conn. 625, 630, 165 A.2d 153. Assuming that the jury did erroneously treat the call as an admission, it would be merely cumulative, and no new trial is required because so many other admissions by the defendant of the same nature were properly admitted during the trial without objection. See State v. Reid, 146 Conn. 227, 232, 149 A.2d 698; West Hartford v. Talcott, 138 Conn. 82, 93, 82 A.2d 351.

The defendant claims that a copy of a death certificate pertaining to Mrs. Vennard, executed by ...