United States ex rel. Annunziato v. Manson

• Decision Date: 23 February 1977
• Docket Number: Civ. No. H-75-387.
• Citation: 425 F. Supp. 1272
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES ex rel. Salvatore ANNUNZIATO v. John R. MANSON, Commissioner.

425 F. Supp. 1272

UNITED STATES ex rel. Salvatore ANNUNZIATO v. John R. MANSON, Commissioner.

Civ. No. H-75-387.

United States District Court, D. Connecticut.

January 20, 1977.

As Corrected February 23, 1977.

COPYRIGHT MATERIAL OMITTED

Howard A. Jacobs, Jean L. Welty, Jacobs, Jacobs & Grudberg, New Haven, Conn., for plaintiff.

Ernest J. Diette, Jr., Asst. State's Atty., New Haven, Conn., for defendant.

MEMORANDUM OF DECISION

BLUMENFELD, District Judge.

The petitioner, Salvatore "Midge" Annunziato, is currently serving a sentence of nine to fourteen years in the Connecticut Correctional Center at Litchfield as a result of his 1971 conviction in New Haven County Superior Court for conspiracy to commit murder. Petitioner brings this writ for habeas corpus contending both that the failure of the state to disclose exculpatory evidence relative to the interest of a key witness and the denial by the trial court to allow cross-examination as to pending criminal charges against two prosecution witnesses deprived him of his right to a fair trial as guaranteed by the fifth, sixth and fourteenth amendments to the Constitution.¹ See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).

Petitioner's original appeal to the Connecticut Supreme Court was denied on September 16, 1975. State v. Annunziato, 169 Conn. 517, 363 A.2d 1011 (1975). Following an order of this court concerning a failure to exhaust state remedies regarding his Brady claim, petitioner applied for a writ of habeas corpus in Litchfield County Superior Court. That writ was dismissed in an unreported opinion on July 7, 1976. Annunziato v. Manson, Docket No. 25,827 (Superior Ct. Litchfield Cnty.). A Petition for Certification for review to the Connecticut Supreme Court was denied on July 15, 1976. It is conceded by the state that petitioner's claims are now properly before this court. Neither party has requested an evidentiary hearing, both sides preferring to rest on the record made in the state courts. The petitioner makes the point, from several different quarters, that he was unconstitutionally prevented from impeaching the state's principal incriminating witness. These arguments will be separately considered.

Facts

Petitioner was convicted of conspiracy to murder one Edward Gould on the night of August 10, 1968. From the evidence introduced at trial the jury could have found that petitioner was at a party at Chip's Lounge in Fair Haven that evening. Gould was drinking at the bar. He observed Annunziato consult in a whisper with Richard Biondi, an associate of Annunziato.² Biondi, who had arrived at the party with a woman named Regina Baker, told Bruce Pino, another guest, "Take Regina home because I have some business to do for Midgie Salvatore Annunziato."³ When Gould left the restaurant, he was met by Biondi and Francesco Annunziato, petitioner's son. They asked Gould to give them a lift to Francesco's car. While Gould was driving he saw a gun in the rearview mirror. He was wounded as he jumped from the moving vehicle.

The next day, Bruce Pino overheard a conversation between petitioner and his son at Mike's Restaurant. According to Pino, Salvatore Annunziato swore and said in an angry tone, "You can't do anything right."⁴

About two years later, in March 1970, the victim Edward Gould had a conversation with petitioner in which he asked "what the reason was that he wanted to kill me." Petitioner responded, "I want to kill you because you killed my brother-in-law."⁵ Sonnie Gondak, Salvatore Annunziato's brother-in-law, had died in a hit-and-run accident in 1963. In addition, there was some testimony from which the jury could have inferred that petitioner and Gould belonged to rival and antagonistic groups of associates.

The Right-to-Confrontation Claim

Petitioner argues he was denied his sixth and fourteenth amendment rights to confront the witnesses against him by the refusal of the trial court to allow him to interrogate two prosecution witnesses regarding charges pending against them in state court to demonstrate their bias, interest, or motive. Bruce Pino, a crucial prosecution witness, had been arrested for possession of narcotics and charged as a second offender in 1968.⁶ In addition, Judith Papero, a rebuttal witness for the state, had been arrested for sale of narcotics prior to petitioner's trial. Although the Connecticut Supreme Court ruled that evidence as to these pending charges was admissible to show the witnesses' bias, see State v. Moynahan, 164 Conn. 560, 601-03, 325 A.2d 199 (1973), it held that the failure to permit such testimony was harmless in petitioner's case. It is unclear whether the Connecticut Supreme Court applied a constitutional standard in rejecting petitioner's claim, or only one of evidentiary procedure.⁷

Clearly, not every evidentiary ruling during a state criminal trial rises to a constitutional dimension so as to require federal relief on habeas corpus. Robinson v. Chesney, 403 F.Supp. 306, 309 (D.Conn. 1975), aff'd, 538 F.2d 308 (2d Cir.), cert. denied, ___ U.S. ___, 97 S.Ct. 177, 50 L.Ed.2d 147 (U.S.1976). However, the right to cross-examine a witness to impeach his credibility or show motive or prejudice is fundamental to a fair trial. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). A defendant has a constitutional right to cross-examine a witness to show a bias arising out of a government offer of leniency or immunity. Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931);⁸Flemmi v. Gunter, 410 F.Supp. 1361, 1371 (D.Mass.1976). Such evidence, which demonstrates a special motive to lie, is peculiarly probative "for if believed it colors every bit of testimony given by the witness whose motives are bared." United States v. Blackwood, 456 F.2d 526, 530 (2d Cir. 1972); United States v. Harvey, 547 F.2d 720 at 722-724, Docket No. 76-1183 (2d Cir. 1976). See also United States v. Rosner, 516 F.2d 269, 273 n.2 (2d Cir. 1975), cert. denied, 427 U.S. 911, 96 S.Ct. 3198, 49 L.Ed.2d 1203 (1976). As Chief Justice Burger reiterated in Davis, 415 U.S. at 318, 94 S.Ct. at 1111 the denial of the "right of effective cross-examination . . . `"would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it." Brookhart v. Janis, 384 U.S. 1, 3, 86 S.Ct. 1245, 1246, 16 L.Ed.2d 314.' Smith v. Illinois, 390 U.S. 129, 131, 88 S.Ct. 748, 750, 19 L.Ed.2d 956 (1968)."

The limits placed on the cross-examination of Bruce Pino were unjustified, cf. United States v. Harvey, supra, Docket No. 76-1183 (2d Cir. 1976), and not harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Pino was a key witness in the prosecution of petitioner. Only Pino's testimony directly connected petitioner to any of the events on the evening of August 10, 1968. Pino's observations plus Annunziato's statement to the victim two years after the shooting comprised the state's major evidence against the accused. The Connecticut Supreme Court pointed out that his "testimony tended toward proof of the crime charged." State v. Annunziato, 169 Conn. at 525, 363 A.2d at 1017. On habeas, Judge Martin conceded that this testimony "if believed by the jury, was damaging to the petitioner and without . . . it a conviction might not have been obtained." Annunziato v. Manson, supra at 1-2. The Connecticut Supreme Court noted, however, that Pino's prior convictions⁹ and extensive drug use were before the jury and that defense counsel was able to cross-examine Pino as to the leniency he had received on federal bank robbery charges. The court concluded that:

"The added evidence that Pino had pleaded not guilty to narcotics charges would have been purely cumulative and of no real significance in view of the evidence showing the facts and circumstances surrounding Pino's decision to testify and the interest he had in testifying against the defendant, as well as the argument of defense counsel of such circumstances and the court's charge."

169 Conn. 517 at 526, 363 A.2d at 1017.¹⁰ The difficulty with that view is that it does not withstand analysis. There is no need here to speculate in order to demonstrate the existence of prejudice. Brookhart v. Janis, supra.

First, while Pino's record of prior convictions and drug use may have borne on his general credibility, these bad acts did not show a continuing ulterior motive or bias for testifying. Davis v. Alaska allows a defendant specially to impeach a witness by revealing "possible biases, prejudices, or ulterior motives . . . as they may relate directly to issues or personalities in the case at hand." 415 U.S. at 316, 94 S.Ct. at 1110. See also United States v. Garrett, 542 F.2d 23, 27 (6th Cir. 1976). The bank robbery plea negotiations at best indicated Pino's motive for cooperating in January 1970. But that charge had been disposed of well before the trial of petitioner in February 1971. On the other hand, the narcotics arrests were formal charges still hanging over Pino's head when he testified. Evidence as to such new and different pending charges against Pino was not really "cumulative." There is a sharp difference between leniency already afforded for convictions in the past and promises of more leniency in the future for additional offenses on which he was still open to conviction. If petitioner had been allowed to inquire with respect to these arrests, he could have demonstrated Pino's present expectation of police and prosecutorial aid and protection in return for his testimony. Petitioner might also have elicited the fact that Pino had made a deal with the prosecution regarding these charges. This is not a case of a trial judge exercising his informed discretion in limiting cross-examination where the jury is already in possession of sufficient information concerning the witness'...