Wojculewicz v. Cummings

• Decision Date: 14 January 1958
• Court: Connecticut Supreme Court
• Parties: Frank WOJCULEWICZ v. George A. CUMMINGS, Warden of Connectlcut State Prison. * Supreme Court of Errors of Connecticut

Page 512

138 A.2d 512

145 Conn. 11

Frank WOJCULEWICZ v. George A. CUMMINGS, Warden of Connectlcut State Prison.

^*

Supreme Court of Errors of Connecticut.

Jan. 14, 1958.

Reinhart L. Gideon, Special Public Defender, Hartford, for appellant (plaintiff).

John D. LaBelle, Asst. State's Atty., Hartford, with whom, on the brief, was Albert S. Bill, State's Atty., Manchester, for appellee (defendant).

Before WYNNE, C. J., and BALDWIN, DALY, KING and MURPHY, JJ.

BALDWIN, Associate Justice.

The plaintiff applied to the Superior Court for a writ of habeas corpus directed to the warden of the state prison. The court issued the writ and the plaintiff was brought before the court. After a hearing on the merits, the court rendered judgment for the defendant and the plaintiff has appealed.

The return alleged in substance that the warden was holding the plaintiff upon a mittimus which recited that he had been indicted on two counts for murder in the first degree, that he had been presented to the Superior Court and placed on trial before a jury, that a verdict of guilty on both counts had been returned and accepted by the court, and that judgment had been rendered imposing the death penalty according to the statutes of this state. A brief history of the facts and the legal proceedings as they appear in the warden's return and of record is necessary for the full presentation of the issues involved on this appeal.

On November 5, 1951, the plaintiff was caught in the act of perpetrating an armed robbery at the office of the A.Y.O. Packing Company in New Britain. He had secured some bags of money and was backing out of the office, still covering its occupants with a revolver, when Sergeant William J. Grabeck of the New Britain police arrived, placed a gun at the plaintiff's back and ordered him to drop his revolver. At this instant William Otipka entered the building and stepped to the side of the sergeant. The plaintiff wheeled about, and a number of shots were fired in rapid succession. Otipka fell, mortally wounded. Grabeck staggered to the street, fell, and died shortly after at the hospital. The plaintiff, also wounded, lay on the floor. Officer Wojtusik, who then entered the building, saw the plaintiff reaching for his gun where it lay on the floor, shot twice at him, handcuffed him and took him into custody. A ballistic examination of the three guns involved indicated that the bullets which had killed Grabeck and Otipka had come from the plaintiff's revolver. At the trial, which began on March 4, 1952, the plaintiff was represented by the public defender. The plaintiff did not take the stand, but the claim was made in his behalf that Otipka had wrested the gun from the plaintiff and in the melee had fired the fatal shots. The plaintiff appealed from the judgment entered on the jury's verdict of guilty. That judgment was sustained on appeal. State v. Wojculewicz, 140 Conn. 487, 101 A.2d 495.

On February, 24, 1954, the plaintiff, through the public defender as his counsel, filed in the Superior Court a petition for a new trial. He alleged that while his appeal was pending he had become insane and had remained so until after the appeal had been argued at the October term in 1953; that his insanity had been discovered by the prison authorities in June, 1953, but was not disclosed to the public defender or to the court; and that because of this condition he had been deprived of his constitutional right to advise and consult with his counsel concerning the appeal. The trial court dismissed his petition, and this judgment was sustained on appeal because the grounds stated for a new trial did not fall within the statute granting one. Wojculewicz v. State, 142 Conn. 676, 117 A.2d 439; General Statutes § 8013. We pointed out in the opinion in that case (142 Conn. at page 678, 117 A.2d at page 440) that the plaintiff's grievance was not that his constitutional rights had been violated by the conduct of the trial but that the argument upon the appeal should have been stayed pending his recovery from insanity. We pointed out also (142 Conn. at page 679, 117 A.2d at page 441) that under the rules of court the time for filing a motion for reargument had passed (Practice Book § 441) and that reargument would be permissible only if the judgment of this court could be voided.

Thereafter, the plaintiff filed in this court a writ labeled 'Petition for Writ of Error Coram Nobis.' We were not called upon to decide whether such a writ could issue, because the state's attorney and the public defender stipulated that the judgment upon appeal might be vacated and the appeal reargued. See State v. Wojculewicz, 143 Conn. 118, 120, 119 A.2d 913. The plaintiff discharged the public defender and reargued his appeal in person. He claimed that (1) he should not have been brought to trial because the drugs given to him by the physicians to alleviate his pain so deranged him that he could not consult intelligently with his counsel; (2) the trial court, during the course of the trial, should have granted to him the continuance he requested from Friday until the following Tuesday, when court was to resume following the weekend adjournment; and (3) he was denied effective representation by counsel as guaranteed by the state and federal constitutions. A wide latitude was accorded to him on his argument. We reconsidered the entire appeal and found no error. State v. Wojculewicz, 143 Conn. 118, 119 A.2d 913.

The plaintiff, a special public defender having been appointed to represent him, then applied for a writ of habeas corpus. The trial court sustained a demurrer to the plaintiff's answer to the warden's return and rendered judgment for the defendant. On appeal, we remanded the case to the trial court for a hearing upon the facts. Wojculewicz v. Cummings, 143 Conn. 624, 633, 124 A.2d 886. The present appeal is from a judgment for the defendant after a full hearing.

The facts found by the trial court may be stated in summary as follows: In the fusilade at the scene of the robbery on November 5, 1951, the plaintiff suffered gunshot wounds, one of which transected his spinal cord and injured his kidneys and spleen. The lower part of his body, below the umbilicus, was paralyzed. He lost control of his bowels and bladder, and his weight dropped below 100 pounds. He sustained no injury to his brain. He had been brought from the scene of the robbery to the New Britain Hospital in shock. After an examination an operation was performed, his spleen was removed, his torn kidney was sutured, and the ruptured intercostal arteries and blood vessels in his chest were tied. A spinal tap was done and, later, bullets were removed from his chest and arm. He remained in the New Britain Hospital until December 27, 1951, when he was taken to the McCook Memorial Hospital in Hartford, where he was kept until his trial ended on March 18, 1952. On January 8, 1952, a physical and neurological examination revealed that he was not suffering from any psychiatric abnormality and that the severing of his spinal cord had not affected his mental capabilities. On February 20, 1952, a second examination, which lasted the most of the forenoon and was made by two psychiatrists, showed the plaintiff to be a man of average intelligence who understood the nature of the charges against him and was not suffering from any mental disorders which affected his responsibility. The plaintiff did not make any complaint of pain or any request that the interview be postponed. He gave a complete and detailed history of his life and activities up to the time of the crime charged. It was determined that he was mentally and physically able to maintain his defense in court. While at the McCook Memorial Hosptial, he was directly under the care of the senior resident in surgery. The plaintiff was allowed to confer with his counsel whenever he requested. All the medication administered to him was recorded in a hospital chart except three one-half-grain codeine pills and three five-grain aspirin tablets which were given to a policeman who accompanied the plaintiff to the courthouse on March 10, 1952. Nothing in the hospital records reveals whether the plaintiff received this medication, and there is no other order in these records reciting the administration of medication to the plaintiff during the trial. The plaintiff expressed a wish, and made an attempt, to commit suicide.

The plaintiff's trial began on the 4th day of March, 1952, and continued until the 18th. Each day he was brought on a stretcher from the hospital to the courtroom in the County Building at Hartford. During court sessions the stretcher, with the plaintiff lying on his back on it, was placed in front of the jury. The plaintiff was well cared for by attendants. His bladder and bowel requirements were served during recesses in a room adjoining the courtroom. On no single day did the amount of drugs given to him exceed three one-half-grain codeine pills and three five-grain aspirin tablets, which are relatively mild dosages. During the trial the plaintiff suffered considerable pain and discomfort, but he made no complaints regarding the care he was receiving. During recesses in the trial and at other times he was visited by friends and relatives, including his wife, his mother and his father-in-law.

In the course of the trial, on Friday, March 14, 1952, at noon, after a recess, the plaintiff's counsel made an oral motion that court be adjourned until the next court day, which was the following Tuesday, claiming that the plaintiff was in such pain that he could not continue with the trial. The physician who had the plaintiff under his care examined the plaintiff and reported his condition to be such that he could continue to stand trial. The motion was denied. Shortly thereafter, the trial was recessed until the following Tuesday. The denial of this motion was considered and disposed of as a ground of appeal in State v....