State v. Williams

• Decision Date: 01 July 1986
• Citation: 511 A.2d 1000,200 Conn. 310
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Stanley WILLIAMS.

Page 1000

511 A.2d 1000

200 Conn. 310

STATE of Connecticut v. Stanley WILLIAMS.

Supreme Court of Connecticut.

Argued March 11, 1986.

Decided July 1, 1986.

Temmy Ann Pieszak, Asst. Public Defender, with whom, on brief, were Joette Katz, Public Defender, and Alan McWhirter, Asst. Public Defender, for appellant (defendant).

Marcia B. Smith, Asst. State's Atty., with whom, on brief, was John A. Connelly, State's Atty., for appellee (State).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, DANNEHY and SANTANIELLO, JJ.

ARTHUR H. HEALEY, Associate Justice.

On November 19, 1980, after a jury trial, the defendant was found guilty of the crimes of robbery in the first degree in violation of General Statutes § 53a-134(a)(4), ¹ conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134, 53a-48, ² and false statement in violation of General Statutes § 53a-157. ³ This appeal followed.

On appeal, the defendant claims that the trial court erred in: (1) overruling the challenge to the jury array from which his trial jury was selected; ⁴ (2) ruling that his coconspirator could invoke his privilege against self-incrimination if called as a witness at trial and that the defendant was not entitled to a continuance until his coconspirator had been sentenced; (3) failing to instruct the jury on the definition of larceny in accordance with General Statutes § 53a-119; and (4) misleading the jury in its instructions on conspiracy.

Certain background facts which the jury could reasonably have found include the following: On March 21, 1980, the Fournier Insurance Agency in the Oakville section of Watertown was robbed by the defendant's coconspirator, Elbert Roberson, who was armed with a handgun. Roberson asked the clerk for the agency's gray cash box, fled down the street with it, and was arrested shortly thereafter. On March 12, 1980, the defendant and his sister had gone to the Fournier agency, purchased some insurance and made a cash payment for it. At that time, the clerk who had dealt with the defendant had placed the cash she received from him in the same cash box that was taken by the robber on March 21, 1980. Approximately five minutes after the robbery, the defendant came into the insurance agency where the same clerk, who had observed him on March 12, 1980, was on duty. She recognized him from that earlier transaction. He inquired of her whether the policy that he had earlier taken out in his sister's name covered towing because his car had been stuck down the street for a couple of hours.

In a statement given to the Watertown police, the defendant stated that on the night before the robbery, Roberson had asked the defendant to give him a ride to Oakville because "he had to throw down on something ['rob the place'] in Oakville for some big money." The next morning the defendant picked Roberson up and drove him to Oakville. Roberson gave him twenty dollars for driving him there so that he could rob "this place he was going to hit." A few minutes after Roberson exited the car in Oakville, he came back to tell the defendant that he was getting ready to commit the robbery and he showed the defendant his gun, flipping the cylinder so that the defendant could see bullets in it. The defendant asked Roberson not to commit the robbery at that time because his car would not start. The latter reiterated that he had to rob the agency and he walked toward the Fournier agency. There was also evidence that the defendant later gave a false statement to Watertown police officers.

The defendant claims error in the trial court's denial of his motion for a continuance in conjunction with its ruling concerning Roberson's claimed fifth amendment privilege against self-incrimination. The background circumstances involved are the following: On August 21, 1980, during the argument on the defendant's motion to sever his case from that of Roberson, the defendant's counsel indicated that he wanted Roberson to be available to testify for the defendant. This was a result of the state's response to the defendant's discovery motion seeking exculpatory information which stated: "The co-accused, Elbert Roberson, claimed not to have had an accomplice during this [r]obbery and claims not to know the Defendant." The defendant's counsel, in seeking a severance, said that he wanted to call Roberson to have him tell the jury that he had acted without an accomplice and had not even known the defendant. The motion to sever the trials was granted on September 16, 1980.

On October 29, 1980, Roberson pleaded guilty to a substituted information charging him with robbery in the first degree in violation of General Statutes § 53a-134(a)(4) and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134, 53a-48. The court ⁵ accepted the pleas and sentencing was scheduled for December 12, 1980.

On October 30, 1980, jury selection began in the defendant's case. Later, on November 5, 1980, during jury selection, the defendant's counsel informed the court that Roberson was "very strongly" a possible witness in the case. At that time, he stated that he had received a letter from Roberson's attorney indicating that Roberson intended, if called, to invoke his fifth amendment privilege against self-incrimination and that this privilege, the attorney had informed defendant's counsel, persisted until he was actually sentenced. Moreover, counsel also said that Roberson's attorney had told him that a motion to quash would be directed to any subpoena issued to Roberson, and, if that failed, Roberson just would not testify. The defendant's counsel said that Roberson, having pleaded guilty, had waived his right to self-incrimination, but pointed out that if the trial court agreed with Roberson's argument, then he asked that the trial not continue any further ("at least not proceed with the evidence") until after Roberson had been sentenced on December 12, 1980. The state opposed the request for a continuance, arguing that it was "hypothetical" at that time whether Roberson would even be called and if he were, whether he would exercise his privilege. It also maintained that Roberson's fifth amendment privilege lasted until he had been sentenced and that although the trial court had accepted Roberson's guilty plea, it might reject the state's recommended sentence. In the latter event, the state argued that then Roberson could be tried and, if he had already testified in the defendant's case, the state could use that evidence against him at his later trial. The state took this position although it acknowledged that Roberson had told the police that he had not had an accomplice and that he had not known the defendant; the state argued "that that [was] not the truth." ⁶ Just prior to the court's ruling, the defendant's counsel said that if it ruled in the state's favor, then the defense would have to seek a mistrial in the event the trial progressed to the point that Roberson would have to be called prior to his sentencing. The trial court denied the defense motion, pointing out that it could not act then as the matter was in the realm of speculation and could only act when the fifth amendment claim was actually made.

On November 12, 1980, Roberson was called as a witness by the defense after the trial court had denied his motion to quash defense counsel's subpoena. He was questioned in the absence of the jury to determine whether he would exercise his fifth amendment privilege although defense counsel persisted in his claim that Roberson had already waived it by pleading guilty. Roberson's refusal to answer a number of questions was sustained by the trial court because of his fifth amendment privilege against self-incrimination. ⁷ The questions involved the crimes to which Roberson had pleaded guilty and certain of the crimes for which the defendant was then on trial. ⁸ Reiterating his earlier claims concerning the importance of Roberson as a witness to his case, as well as his efforts to alert the trial court to that fact, beginning at the pretrial motion stage, defense counsel then moved that all proceedings in the case be stayed until after Roberson's sentencing on December 12, 1980. This motion was denied, as was the defense motion to dismiss all the charges made immediately thereafter. The trial continued and the jury verdict of guilty was returned on November 19, 1980. The defendant was sentenced on December 12, 1980. ⁹

The trial court had, sometime prior to the trial, exercised its discretion in granting the defendant's motion to sever. See United States v. Vigil, 561 F.2d 1316 (9th Cir.1977); 2 Wharton, Criminal Procedure (12th Ed. Torcia) § 303. It did so after the defendant had told the court that the state had disclosed, on a request for exculpatory information, that Roberson had told the police that he had no accomplice in the robbery and that the defendant intended to call Roberson as a witness in his case. The Bruton issue was also raised. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). "There is no duty to sever merely because potentially exculpatory testimony of a codefendant exists. The defendant-movant must desire to use it." Byrd v. Wainwright, 428 F.2d 1017, 1020 (5th Cir.1970). These criteria were met here. More to the point, Roberson's statement to the police that he had no accomplice was "exculpatory in effect"; Byrd v. Wainwright, supra; it meant that the defendant was not involved at all. The state's claim at trial that this testimony of Roberson was not true is not focal because that issue is ultimately for the jury. See Byrd v. Wainwright, supra, 1021. The defendant's need to obtain exculpatory evidence from a codefendant has been found in some cases to be a proper ground for severance. See, e.g., United States v. Shuford, 454 F.2d 772, 776-77 (4th Cir.1971); United States v. Echeles, 352 F.2d 892, 897-99 (7th Cir.1965). In granting the...