State v. Zeko

• Decision Date: 09 January 1979
• Citation: 407 A.2d 1022,176 Conn. 421
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Lufti ZEKO.

Page 1022

407 A.2d 1022

176 Conn. 421

STATE of Connecticut v. Lufti ZEKO.

Supreme Court of Connecticut.

Argued Nov. 7, 1978.

Decided Jan. 9, 1979.

Alphonse DiBenedetto, Public Defender, for appellant (defendant).

Ernest J. Diette, Jr., Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty., and John T. Redway, Asst. State's Atty., for appellee (state).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and PETERS, JJ.

BOGDANSKI, Associate Justice.

In May of 1976, the defendant was tried and found guilty of the crime of failure to appear, in violation of § 53a-172 of the General Statutes. ¹ He appealed from the judgment rendered, alleging that the trial court erred in denying his pretrial motions, in certain evidentiary rulings, and in its charge to the jury. The defendant also challenges the constitutionality of § 53a-172.

The facts leading up to the above offense may be summarized as follows: In July of 1974, the defendant was charged with the crime of arson in the third degree, a felony and bail was set in the amount of $10,000. A bond was posted and the defendant was released from custody. In May of 1975, the state proceeded to trial in the arson case. After one week of trial during which extensive testimony was taken, lengthy cross-examination was conducted, and an offer of proof as to other fires was made by the state, and before the state had rested its case, the defendant failed to appear in court. The court inquired as to the defendant's whereabouts and was advised by his attorney that neither he nor the defendant's wife knew where he was or the reason for his absence. The court thereupon declared a mistrial over objection by the state.

When the defendant subsequently returned to the area, he phoned his bondsman to tell him that he was back and asked if he would be willing to post bond again if he turned himself in. In that conversation with his bondsman the defendant admitted that he knew he had done wrong by running away but that "things had been building up against him." The defendant thereafter entered a plea of not guilty to the crime of failure to appear and the case was placed on the trial list. When the state indicated that it intended to proceed to trial in the failure to appear case before retrying the arson case, the defendant filed a motion for a sequence of trials, which the court, after a hearing, denied.

The defendant claims that he was prejudiced by the court's action in permitting the failure to appear case to be tried before the arson case. He contends that this sequence of trials enabled the state to use the conviction obtained in the failure to appear case as evidence of consciousness of guilt in the arson case and that this was more detrimental to him than would have been the use for impeachment purposes in the trial of the failure to appear case of a conviction for arson obtained in the retrial of the arson case. The defendant argues that the trial court therefore abused its discretion in denying his motion for a sequence of trials.

The order in which cases are called for trial is within the sound discretion of the court and may be set by the court as the ends of justice and the business before it require. State v. Kelly, 27 N.M. 412, 202 P. 524 (1921); Stenner v. Colorado-Montana Mines Assn., 116 Mont. 261, 149 P.2d 546 (1944). Moreover, the state, in the exercise of its prosecutorial function, has considerable latitude as to how and in what manner it shall proceed against an accused. State v. Villafane, 171 Conn. 644, 664, 372 A.2d 82 (1976). In this case the state indicated to the court that it preferred to proceed first in the failure to appear case because that trial would be less time-consuming, less costly and would require fewer witnesses than the retrial of the arson case. The trial court found those grounds sufficient to constitute good cause for the state's request. On those facts the court was well within its discretion in denying the motion.

The defendant next argues that the court should have suppressed the statements which he made to his bondsman. He claims that the bondsman did not give him his Miranda warnings before talking with him and that the defendant's statements should, therefore, have been excluded. He also claims that his statements to his bondsman should be privileged communications, such as is the case between attorney and client. Neither argument has merit.

At the time that he made the statements the defendant was not in police custody. The person to whom he made the statements was neither a police officer nor a member of the prosecutor's office. Miranda warnings were not, therefore, necessary. In this state, as in most states, communications which are deemed privileged from disclosure are founded upon statutory authority. We find no bondsman-client privilege in the statutes of this state, nor does the defendant point to any authority for such a claimed privilege.

Moreover, the exclusionary rule of Miranda, enforcing adherence to the intendment of the fifth amendment, has long been construed as a restraint only upon the activities of a sovereign authority, and not as a limitation upon other than governmental agencies. Burdeau v. McDowell, 256 U.S 465, 475, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); Cf. United States v. Blum, 329 F.2d 49, 52 (2d Cir. 1964), cert. denied, 377 U.S. 993, 84 S.Ct. 1920, 12 L.Ed.2d 1045 (1964). This court has recently held that incriminating statements made by a defendant are admissible in evidence, whether or not the Miranda warning has been given, when the statements were not made during the course of a "custodial interrogation." State v. Smith, 174 Conn. 118, 120-21, 384 A.2d 347 (1977). This principle has repeatedly been affirmed by decisions of the United States Supreme Court, most recently in Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). Courts in this and other jurisdictions have often held that where statements are made to persons who are not law enforcement officers or their agents, there is no "custodial interrogation" within the meaning of Miranda, and therefore such statements need not be suppressed. See United States v. Antonelli, 434 F.2d 335, 337 (2d Cir. 1970). The trial court therefore did not err in denying the motion to suppress.

The defendant further claims that the conviction should be reversed on the ground that the trial court "lost jurisdiction" because the surety bond, for the violation of which he was charged, was defective in that it did not contain the appropriate certification or acknowledgement. There is no question but that the court had jurisdiction over the person of the defendant. Nor can it be seriously claimed that the court lacked the power to hear felony cases, such as was involved in the prosecution under § 53a-172 of the General Statutes. The defendant's claim, though framed as a jurisdictional issue, is in reality more in the nature of an evidentiary objection and, as such, should have been raised at trial by the defendant.

At trial the defendant objected to the admission into evidence of the appearance bond only on the grounds that it was not admissible as a judicial record. As to that issue, the record reveals that the appearance bond was in the defendant's court file, and was...