Taborsky v. State

• Decision Date: 29 July 1955
• Citation: Taborsky v. State, 142 Conn. 619, 116 A.2d 433, 49 A.L.R.2d 1238 (Conn. 1955)
• Court: Connecticut Supreme Court
• Parties: , 49 A.L.R.2d 1238 Joseph L. TABORSKY v. STATE of Connecticut. Supreme Court of Errors of Connecticut

Page 433

116 A.2d 433

142 Conn. 619, 49 A.L.R.2d 1238

Joseph L. TABORSKY v.STATE of Connecticut.

Supreme Court of Errors of Connecticut.

July 29, 1955.

Nathaniel Bergman, Sp. Public Defender, Hartford, with whom was John W. Joy, Asst. Sp. Public Defender, Hartford, for appellant(plaintiff).

Albert S. Bill, State's Atty., with whom, on the brief, was Douglass B. Wright, Asst. State's Atty., Hartford, for appellee(state).

Before BALDWIN, O'SULLIVAN and WYNNE, JJ., PHILLIPS and DEVLIN, Superior Court Judges.

PHILLIPS, Superior Court Judge.

On March 23, 1950, Louis L. Wolfson was employed at Cooper's Package Store in West Hartford.About 9 p. m. on that day he was found lying in a pool of blood on the floor of the store.He had been shot in the face.He died March 26, 1950.Many months later Joseph Taborsky was indicted for the crime.On June 7, 1951, after a trial to the jury, he was found guilty of murder in the first degree.On appeal this court upheld the judgment, two judges dissenting.State v. Taborsky, 139 Conn. 475, 95 A.2d 59.Subsequently, Taborsky filed with the Superior Court a petition for a new trial on the ground of newly discovered evidence.After a hearing on the merits, the court dismissed the petition.The present appeal is taken by Taborsky from that judgment.

At the trial to the jury on the indictment, the principal witness for the state was Albert Taborsky, a younger brother of the accused.The brothers will be referred to hereinafter as Albert and Joseph.Albert testified that at about 7:15 p. m. on March 23, 1950, he picked up Joseph in his automobile at the home of Jennie Pedemonti on Belden Street in Hartford; that they drove around Hartford discussing what place they could rob; that about 9 o'clock, with Albert driving, they stopped near Cooper's Package Store; that Joseph put on a black trench coat which Albert had been wearing, took a .22 caliber revolver which Albert had bought some time previously, went into the package store, and after a few minutes returned and got into the car; and that they then drove off rapidly to a parking lot on Charter Oak Terrace, where Joseph told Albert that while he was in the package store the man had 'jumped' him and the revolver had gone off accidentally.Albert related many other circumstances about the evening in question which it is not necessary to detail.Albert's testimony was corroborated in some respects by another witness, George Forler, who was walking on the opposite side of the street from the parked car.He identified Albert as the man seated in the driver's seat.He also saw the head of another man, about six feet tall with light brown hair, 'pop up' on the other side of the automobile.At no time did he identify Joseph as that other man.Joseph's defense was that he was at the home of Jennie Pedemonti from 7 p. m. to 10 p. m. on March 23, 1950, which was his birthday, and that Albert had not been there at all.This alibi was supported by Mrs. Pedemonti.On the night of the crime and the following morning, while Wolfson was in a critical condition, he described his assailant as a young fellow, a teen-ager, with blond or light hair, five feet eight or ten inches tall, and baby-faced.Joseph is over six feet tall and has black hair, a long face and a long chin.He was then twenty-six years old.

The only evidence linking Joseph with the crime was the testimony of his brother Albert.Unless the jury believed that testimony, it would have been legally impossible for them to return a verdict of guilty.It is with this background in mind that we must approach this petition for a new trial, since the petition brings into question Albert's sanity at the time of the trial on the indictment.

In the determination whether a new trial will be granted on the ground of newly discovered evidence, the primary test is whether an injustice was done and whether it is probable that on a new trial a different result would be reached.Smith v. State, 141 Conn. 202, 208, 104 A.2d 761;Dortch v. State, 142 Conn. 18, 21, 110 A.2d 471.The burden of proving the probability of a different result is upon the plaintiff, and in determining that issue the trial court exercises a discretion which cannot be reviewed unless its discretionary power has been abused.State v. Goldberger, 118 Conn. 444, 457, 173 A. 216.It must also be made to appear that the new evidence could not have been discovered and produced on the former trial by the exercise of due diligence, and the new evidence must not be cumulative.Hamlin v. State, 48 Conn. 92, 93.All of the above rules are qualified in their application to a capital case in the light of the principle laid down in Andersen v. State, 43 Conn. 514, 517, that 'in a case where human life is at stake, justice, as well as humanity, requires us to pause and consider before we apply those rules in all their rigor.'

When we speak of a new trial we must keep in mind the unusual situation presented by this case.From the evidence, it appears that Albert was insane at the time of the hearing on this petition and may never regain his sanity.In applying the test whether it is probable that on a new trial a different result would be reached, we must assume the possibility that Albert will be sufficiently recovered to qualify as a witness or, if not, we must assume, without deciding, that the transcript of his testimony at the previous trial would be admissible at the new trial.By so assuming, we can adequately apply this fundamental test.

The chronology of events relevant to this petition is as follows: The crime was committed March 23, 1950.Albert was incarcerated in the Hartford County jail on January 26, 1951.He testified as a state's witness at the trial on the indictment of Joseph on May 23 and 24, 1951.Albert pleaded guilty to second degree murder and was sentenced to state prison for life on June 19, 1951.He was admitted to the prison hospital August 7, 1951, and was transferred to Norwich State HospitalSeptember 19, 1951, suffering from dementia praecox (schizophrenia), paranoid type.

The evidence offered on the trial of this petition may be briefly summarized as follows: Mrs. Effie Phelps, who was in contact with Albert from October, 1949, to February, 1950, and John F. Narducci, who employed him to do chores from April, 1950, to October, 1950, testified to actions which led them to believe that he was mentally subnormal.William T. Meikle, a guard at the jail, observed Albert from January 26 to June 19, 1951.Albert's eyes were glassy he looked off into the distance, heard voices talking and bells ringing on several occasions, tried to go through a door that was not there, had crying spells, thought people were trying to kill him and that his food was prisoned, and masturbated in the open.Meikle concluded that there was something radically wrong with Albert mentally.Howard H. Conger, night guard at the jail, testified along the same lines.Dr. John A. Kardys, attending doctor at the jail, observed and treated Albert from January 26 to June 19, 1951.He was of the opinion that Albert had a 'schizophrenic personality' and recommended to the jailer that he be examined by a psychiatrist and be committed to an institution.

Dr. Foster E. Priddy, physician at the state prison, examined Albert on June 21, 1951, shortly after he arrived there.Albert did not appear to Dr. Priddy to be psychotic then, but about six weeks later the doctor reached a contrary conclusion and ordered Albert to the prison hospital.George La Flamme, guard and supervisor of mental patients at the prison, observed Albert from August 7 to September 19, 1951.Albert thought La Flamme was Wolfson and always called him by that name.Albert had crying spells, thought his food was prisoned and wanted to kill himself.La Flamme considered Albert a mental case.Dr. Thomas E. Carey, consulting psychiatrist at the prison, observed Albert from August 18 to September 4, 1951.Albert was having auditory, olfactory, and gustatory hallucinations.It was Dr. Carey's opinion that Albert was experiencing an early schizophrenia, that from January to June, 1951, he was probably in a formative stage of psychosis (insanity), and that while what he said could have been true, he, Dr. Carey, would be reluctant to accept what anyone in that condition said as final, absolute proof.

Dr. Hubert A. Carbone, psychiatrist and clinical director at Norwich State Hospital, observed and treated Albert in October, 1951, and thereafter.When Albert entered the hospital, he was suffering from schizophrenia, paranoid type.In answer to a hypothetical question, Dr. Carbone, stated his opinion that Albert had schizophrenia from January, 1951, to June, 1951.He had hallucinations and delusions and bizarre ideas.He gave an accurate account of certain things, and there was no evidence that his memory was grossly impaired.Memory is not involved in the schizophrenic process, but the patient is prone to misinterpret situations, facts and ideas to suit his own needs.

We mention only the highlights in the lengthy testimony of the other four psychiatrists who were called.The first was Dr. Carl Vernlund.He examined Albert a Norwich State Hospital on January 6, 1952.His opinion based on his examination and the history of the patient, was that Albert was mentally ill at the time of the crime, during his incarceration at jail, during the trial, and at the time he was sentenced to prison and that he will never recover.In answer to a hypothetical question, Dr. Vernlund gave the further opinion that at the time Albert testified in courthe was suffering from delusions and hallucinations and was under great emotional stress and that it would not have been possible for him to comprehend the nature of an oath or the charges against him.He could have had a compulsive force that would tell him what to say and he would not know whether it was true or not.Albert's father had a...