Petition — Robinson v. Chesney

+, Bupreme @ourt, U. &

i EILED

‘MAY & 1976

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

BO cvees 75-1616

CARL ROBINSON, Warden,

Connecticut Correctional Institution, Somers,

Petitioner,

v.

ARCHIE CHESNEY,

Respondent.

PETIT'ON FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

Ricuarp F. Jacosson,

Assistant State’s Attorney

for Fairfield County

Attorney for Petitioner,

County Court House,

Bridgeport, Connecticut 06604

MICHAFL ROOAK ID we

enn =

i ee

TABLE OF CONTENTS

PAGE

SR EY 5 Sui bcacdeassussceseanceneneess 1

SED icc eundanedédecescsvedssceusauseuneas 2

I ss Cav us ce eucheuesdnauae tens’ 2

Constitutional Amendments Involved .............. 3

EE conn dccucsuennceeussneeevaunaaeseemeens 3

Reasons for Granting the Writ .................... 5

EN s.44 bs Coed ehineeeeneadesauancunemceiade 8

Appendix:

A. Judgment of the District Court ............ la

B. Memorandum of Decision of the District Court 3a

C. Judgment of the Court of Appeals ........ l4a

CITATIONS

Cases:

Chambers v. Mississippi, 410 U.S. 284 .............. 5, 7,8

Cobbs v. Robinson, Warden, Civil No. 75-2089, 2nd

ee Se Ts OD, occ ccccccauceecauceuas 6

alae 6... Ae, GR Gas TD 6a occas ccccccesvses’ 5, 7,8

Grunewald v. United States, 353 U.S. 391 .......... 7,8

MO GT, BE Ge 6-0 0 6 06 bn 0b 0 vk ekecindendin 6

State v. Clemente, 166 Conn. 501, ——- A.2d ——.... 7

State v. Delgado, 161 Conn. 536, 290 A.2d 338 ...... 5, 6

li TABLE OF CONTENTS

State v. Guay, 25 Conn. Sup. 61, 196 A.2d 599 ......

United States v. Anderson, 498 F.2d 1038 (D.C. Cir.

Ee en ane meee LO,

United States v. Ayres, 426 F.2d 524 (2nd Cir. 1970),

certiorari denied, 400 U.S. 842 ................

United States v. Biondo, 483 F.2d 635 (8th Cir. 1973)

United States v. Cramer, 447 F.2d 210 (2nd Cir. 1971)

United States vy. Franklin, 429 F.2d 274 (Sth Cir.

1970), certiorari denied, 400 U.S. 967 ..........

Vnited States v. White, 417 F.2d 89 (2nd Cir. 1969),

certiorari denied, 397 U.S. 912 ................

United States v. Youngblood, 379 F.2d 365 (2nd Cir.

DE bed beeen e5h 06a eeeeNeees Shue eee eee eas

Statutes:

Connecticut General Statutes:

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SEED x otnécneesssaveneusecesscacnsenes

I SUED o.pdnddeddneanesceccncvnsensees

Practica Book, $4 SSSP, SESS .... wc cc cc cccccccsese

Connecticut Constitution:

SD es. TD & iv kccccdnvcectececessen

Jencks Act, 18 U.S.C. § 3500 (e)(3) ............60.-

Other Authorities:

8 Moore’s Federal Praciice. The Grand Jury § 6.02n

1 Wright, Federal Practice and Procedure Indictment

I, SOD on dnc ccuepenedoscesncees

6

JI ) -_» OI

ip

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

+

Cart Ropinson, Warden,

Connecticut Correctional Institution, Somers,

Petitioner,

v.

ARCHIE CHESNEY,

Respondent.

s

bd

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

Petitioner, Carl Robinson, Warden of the Connecticut

Correctional Institution at Somers, respectfully prays that

a writ of certiorari issue to the United States Court of

Appeals for the Second Circuit, to review the judgment of

that Court entered on March 24, 1976, denying a petition

for rehearing, and thus upholding a judgment of that

Court dated February 6, 1976, affirming the order of the

District Court for the District of Connecticut granting a

petition for a writ of habeas corpus.

Opinions Below

The Court of Appeals for the Second Cireuit did not

issue any written opinion. The opinion granting the Re-

spondent’s Petition for a Writ of Habeas Corpus by the

United States District Court for the District of Connecti-

2

cut is unreported and is attached hereto as Appendix B.

The opinion of the Supreme Court of Connecticut sustain-

ing the original conviction of Archie Chesney is found in

166 Conn. 630, A.2d ——. Respondent’s petition for

writ of certiorari was denied in 419 U.S. 1004, 95 S.Ct.

324, 42 L.Ed.2d 280.

Statement of Jurisdiction

The judgment of the United States Court of Appeals for

the Second Circuit was entered on March 24, 1976. The

statutory provision conferring on this Court jurisdiction

to review that judgment by writ of certiorari is 28 U.S.C.

§ 1254(1).

Question Presented

The respondent’s application for writ of habeas corpus

presented essentially one limited issue for determination,

and that was whether the trial judge’s ruling precluding

defense counsel on cross-examination from questioning a

key witness as to whether he told the grand jury, which

indicted the respondent, the same statement of the victim

as he told the petit jury violated the Sixth Amendment

rights of the respondent. Throughout the present phase

of the case there has been no factual dispute, only a dif-

ference in regards to the legal effect o- the trial court’s

exclusion of this line of cross-examination.

Simply stated the qu «tion presented for review in the

terms and circumstances «* the case is as follows:

After the eyewitness :» ‘he homicide testified on direct

examination that the victim told him at the scene that

the respondent committed the act was it constitutional

error to exclude on cross-examination a question ask-

ing the witness whether or not he related this state-

ment to the indicting grand jury when he testified

before it?

Constitutional Amendments Involved

The Respondent has sought and obtained relief under

the confrontation clause of the Sixth Amendment as made

applicable to the individual states by the Fourteenth

Amendment.

Statement

On February 9, 1971, at approximately 11:30 a.m. Robert

Lubas and his friend, James Lindsey, went to Apartment

703 of the housing complex known as the Beardsley Ter-

race Apartments in the City of Bridgeport in Connecticut.

Present in the apartment when they arrived were Archie

Chesney, his brother, Clarence Chesney, Alfred Peterson,

and Richard Bush. Archie Chesney had in his possession

a portion of a rifle which was inside a folded umbrella.

An argument ensued between Lubas and Chesney during

which the latter claimed Lubas owed him some money.

Chesney told Lubas that he wanted to talk to him and they

went down a hallway to the area of a bedroom. According

to Richard Bush, he and Clarence Chesney attempted to

break up the argument between the two and while he was

facing Lubas he heard a popping sound and immediately

turned around and grabbed a gun from Archie Chesney.

Alfred Peterson observed Lubas go to the rear bedroom

area with Chesney, heard an argument and a shot, and

then saw Lubas as he was taken away by another person.

After the shot was fired Lubas staggered up the hallway

where he told Lindsey that Archie Chesney had shot him.

Lindsey then transported Lubas to the hospital where he

expired.

The rifle was turned over to the police and a comparison

examination revealed that the bullet which was extracted

from Lubas’ body was fired from it. Paraffin casts were

obtained from both hands of Chesney for the purpose of

determining whether there was any gunpowder residue or

4

nitrates on them. The umbrella was similarly teste

These tests proved positive for the presence of gunpowder

residue and nitrates indicating that Chesney had fired a

gun through the umbrella. Tests on Lindsey’s hands were

negative.

On the evening of the murder when he was questioned

at his apartment by the police Chesney initially identified

himself as ‘‘Wade Harrington.’’ After being fully advised

of his constitutional rights Chesney related that he had

not been involved in the shooting but in fact had been at

a poolroom from 10:00 A.M. to 1:00 P.M. and then visited

with his girlfriend, went to a barbershop and then back

with his girlfriend until the police arrived. In addition

Chesney denied owning a gun.

At the trial Chesney presented no evidence in his own

behalf. It was during the cross-examination of James

Lindsey that the claimed violation of the confrontation

clause of the Sixth Amendment occurred. Lindsey had

testified on direct examination by the state’s attorney that

immediately after the shooting Lubas told him that the

respondent had shot him. Since Chesney was charged with

murder it was necessary to indict him before a grand jury

prior to formally lodging a murder charge against him.

Connecticut General Statutes, § 54-45; Article First, Section

8 of the Connecticut Constitution. Chesney’s counsel on

cross-examination of Lindsey inquired whether he had told

the grand jury that Lubas had told him that Chesney had

shot him. This question was excluded by the trial judge.

Chesney’s defense counsel argued that this was proper

cross-examination since it could lead to the impeachment

of the witness on the basis that his testimony before the

grand jurors was a prior inconsistent statement.

After Chesney’s indictment by the grand jury he was

put to trial before the petit jury on the charge of murder

in the first degree in violation of then Section 53-9 of the

Connecticut General Statutes. The indictment and subse-

4)

quent trial occurred in the Superior Court for Fairfield

County at Bridgeport, Connecticut. On May 28, 1971, after

a full trial before the jury Chesney was found guilty of

second degree murder in violation of then Section 53-9 of

then Connecticut General Statutes. Pursuant to said judg-

ment Chesney on June 4, 1971 was sentenced to a term of

life imprisonment at the Connecticut Correctional Institu-

tion at Somers. The Petitioner Carl Robinson is the war-

den of that institution.

Reasons for Granting the Writ

The United States District Court for the District of Con-

necticut in granting Chésney’s writ of habeas corpus relied

heavily on Davis v. Alaska, 415 U.S. 308, and Chambers v.

Mississippi, 410 U.S. 284. It found that the truncating of

the cross-examination of Lindsey on the point of whether

or not he told the indicting grand jury what the victim told

him was a violation of Chesney’s Sixth Amendment rights

as nade applicable to the individual states by the Four-

teenth Amendment. Specifically the court held that there

was not adequate cross-examination.

Chesney claims that his trial counsel should have been

permitted to ask Lindsey on cross-examination whether or

not he told the grand jury that Lubas had told him that

Chesney shot him. Apparently the answer to this question

was desired in an effort to impeach the testimony of Lubas.

Of cardinal significance is the fact that no stenographic

transcript is made of proceedings before the grand jury.

As the Connecticut Supreme Court has recently stated:

It is the general practice in most states not to re-

quire a stenographic record of the grand jury proceed-

ings; 38 C.J.S., Grand Juries, §44; and it is not

required under the Federal Rules of Criminal Pro-

cedure. United States v. Caruso, 358 F.2d 184 (2d Cir.

1966), cert. denied, 385 U.S. 862, 87 S.Ct. 116, 17

6

L.Ed.2d 88. In State v. Vennard, supra, we noted that,

in view of the very limited purpose of the grand jury

and the requirement of secrecy as to its deliberations,

“We see no reason to permit a defendant to jeopardize

that secrecy by recording in writing or otherwise what

transpires merely for the purpose of making such an

investigation a more effective tool for discovery.”

There is no constitutional or statutory right to have a

stenographer present in the grand jury room and we

find no error in the refusal of the trial court to permit

it in this ease. State v. Delago, 161 Conn. 536, 539-540,

290 A.2d 338.

The secrecy of grand jury hearings and the non-

transcribing of testimony before that body have been a

part of our law for the past 170 years. Lung’s Case, 1 Conn.

428. Furthermore the informality and limited purpose of

a grand jury as the accusatory body in capital cases has

been recognized. State v. Guay, 25 Conn. Sup. 61, 64, 196

A.2d 599.

There exists no constitutional or statutory requirement

that grand jury testimony be recorded. Cobbs v. Robinson,

Warden, Civil No. 75-2089, 2nd Cir., Dee. 17, 1975; United

States v. Biondo, 483 F.2d 635, 641 (Sth Cir. 1973), cert.

denied, U.S. ——, 94 S.Ct. 1468, —— L.Ed.2d ——;

United States v. Franklin, 429 F.2d 274, 276 (8th Cir. 1970),

cert. denied, 400 U.S. 967, 91 S.Ct. 380, 27 L.Ed.2d 387;

S Moore’s Federal Practice. The Grand Jury 4§6.02n;

1 Wright, Federal Practice and Procedure Indictment and

Information, § 103. See also United States v. Youngblood,

379 .2d 365 (2nd Cir. 1967); United States v. White, 417

F.2d 89 (2nd Cir. 1969), cert. denied, 397 U.S. 912, 90 S.Ct.

910, 25 L.Ed.2d 92; United States v. Ayres, 426 F.2d 524

(2nd Cir. 1970), cert. denied, 400 U.S. 842, 91 S.Ct. 85, 27

L.Ed.2d 78; and United States v. Cramer, 447 F.2d 210 (2nd

Cir. 1971). If the grand jury testimony of Lindsey had

been transcribed, trial counsel would have been permitted

7

a copy under the provisions of Section 54-86b of the Con-

necticut General Statutes. This statute was later ruled

unconstitutional in State v. Clemente, 166 Conn. 501,

A.2d ——, but has been superseded by rule of court.

Practice Book, § 533P and 533S. Grand Jury testimony

since 1970 has been the subject of discovery in the federal

courts due to the Jencks Act. 18 U.S.C. § 3500 (e) (3). Thus

the lack of a transcript did not violate any of Chesney’s

constitutional rights.

The lower court presumably relied heavily on Davis v.

Alaska, supra, and Chambers v. Mississippi, supra, in its

determination that Chesney’s right to cross-examination

was unconstitutionally truncated. In Davis it was the use

of a protective order which shielded the juvenile record

of a key witness for the prosecution which this Court

found anathema to constitutional principles. In Chambers

a combination of the state’s hearsay rule and voucher rule

were used effectively to deny the petitioner’s constitutional

rights to subject to cross-examination a witness who had

admitted to the crime on four occasions. Common to each

ease is the fact that evidence which the defense desired to

place before the jury was virtually sitting in the lap of

defense counsel. The prior record and the statements of

McDonald were virtually common knowledge to all. With

no transcript available in Chesney neither the state nor

defense counsel knew what, if anything, Lubas told the

grand jury. Thus the state in Chesney did not utilize a

protective order or an anachronistic rule of evidence to

thwart a fruitful cross-examination. The Chesney case

just does not fall within the ambit of Davis and Chambers.

It is more properly a situation where the trial judge was

utilizing his discretion to limit cross-examination to rele-

vant probative matters. Unlike the other cases this was a

simple ruling on evidence without constitutional overtones.

Whether a prior statement is sufficiently inconsistent to

be allowed to go to the jury on the question of credibility

is usually within the discretion of the trial court. Grune-

8

wald v. United States, 353 U.S. 391, 423-424; United States

v. Anderson, 498 F.2d 1038, 1043 (D.C. Cir. 1974). The

trial court in Chesney was faced with a dilemma. Absent

an admission that he had testified differently before the

grand jury the only way Lindsey’s credibility could have

been impeached would have been to have Chesney take the

stand or to call in all eighteen members of the grand

jury and test their individual recollections. Assuming

it was necessary for one or both of the parties to call all

of the grand jurors the possibility exists that there would

be eighteen disparate memories. What then would have

been the probative value of such a line of inquiry? The

trial would have gone far afield of its intended goal. The

purpose would have been lost in the confusion, ambiguity,

anc parade of witnesses. In view of the difficulties pre-

sented the trial court rightly exercised its discretion in

limiting the cross-examination. The decision in the instant

case is an illogical extension of Davis and Chambers.

Conclusion

It is respectfully submitted that the decision of the

United States Court of Appeals for the Second Circuit is

in conflict with the meaning of Davis v. Alaska and

Chambers vy. Mississippi, and for this reason and the

reasons previously set forth above, it is respectfully sub-

mitted that the petition for writ of certiorari should be

granted.

Respectfully submitted,

Ricuarp F.. Jacopson

Assistant State’s Attorney

for Fairfield County

Attorney for Petitioner

la

APPENDIX A

Judgment of the District Court.

UNITED STATES DISTRICT COURT

District or CoNNECTICUT

Civ. Action No. H-75-181

a

we

ARCHIE CHESNEY

Vv.

Cart Rosrnson, Warden, Connecticut Correctional

Institution, Somers

JUDGMENT

The above-entitled action came on for consideration by

the Court by the Honorable M. Joseph Blumenfeld, United

States District Judge;

And the Court, after a hearing on the Petitioner’s Peti-

tion for a Writ of Habeas Corpus, having filed its Memo-

randum of Decision on November 13, 1975, finding that the

Petitioner, in his trial, was denied a right guaranteed him

by the Sixth and Fourteenth Amendments of the Constitu-

tion of the United States, and ordering a Writ of Habeas

Corpus to issue out of this Court within twenty (20) days

unless the State of Connecticut vacates the judgment of

conviction of the Petitioner and schedules an early retrial;

It is accordingly Orperep and Apsupcep that the Peti-

tioner’s Petition for a Writ of Habeas Corpus issue out

of this Court within twenty (20) days of the filing of

said Memorandum of Decision unless the State of Con-

2a

Judgment of the District Court.

necticut vacates the judgment of conviction of the Petitioner

and schedules an early retrial.

Dated at Hartford, Connecticut, this 21st day of No-

vember, 1975.

SYLVESTER MaRKOWSKI

Clerk, United States District Court

By: (ILLEGIBLE)

Deputy-in-Charge

3a

APPENDIX B

Memorandum of Decision of the District Court.

UNITED STATES DISTRICT COURT

District or ConNNECTICUT

Civit No. H-75-181

ARCHIE CHESNEY

V.

Cart Rosinson, Warden, Connecticut Correctional

Institution, Somers

a

4

MEMORANDUM OF DECISION

Archie Chesney, presently an inmate at the Connecticut

Correctional Institution, Somers, Connecticut, brings this

petition for a writ of habeas corpus to challenge the valid-

ity of his conviction for second degree murder. This

court has jurisdiction pursuant to 28 U.S.C. §§ 2241 and

2254. Petitioner alleges that he was denied his sixth

amendment right to confront one of the witnesses who tes-

tified against him and that as a result he was denied the

due process guaranteed by the fourteenth amendment.

I. The History of this Case

Petitioner was indicted by a grand jury for the crime

of murder in the first degree on March 8, 1971. A jury in

Fairfield County Superior Court returned a verdict of

4a

Memorandum of Decision of the District Court.

murder in the second degree on May 28, 1971. On June

4, 1971, petitioner was sentenced to a term of life imprison-

ment. Appeal was taken to the Connecticut Supreme

Court, which affirmed the conviction. State v. Chesney,

—— Conn. . A.2d ——, 36 Conn. L.J. No. 4, at

21 (July 23, 1974). The United States Supreme Court

denied certiorari. 419 U.S. 1004 (1974).

At the trial the State presented evidence to show that

the deeedent, Robert Lubas, and a companion, James

Lindsey, went to an apartment where they met with sev-

eral other persons, including the petitioner. Lindsey, tes-

tifying as a witness for the prosecution, stated that Ches-

ney and Lubas went down the hallway into the kitchen

where some other persons were present. He testified that

he heard an argument and a popping noise, and then saw

Lubas walking down the hall holding his chest. Lindsey

then testified as follows:

“(). What, if anything, was he doing as he walked

down the hall?

“A. He was holding his chest.

“Q. Did you have an opportunity to observe his

face at all?

“A. Yes, I did.

“Q. How did his face appear to you?

“A. Just like a little worried look on his face.

“(. How was he manipulating, was he able to walk

all right?

“A. Yes, he was like just leaning on the wall, you

know, walking out.

“The Court: Did you say leaning on the wall?

‘The Witness: You know, like brushing against

the wall.

‘The Court: Please keep your voice up. The jury

must hear you.

oa

Memorandum of Decision of the District Court.

“Q. Did you have some conversation with Robert

Lubas?

“A. Yes, I did.

“Q. Using the exact words that were spoken between

you, Mr. Lindsey, would you tell the ladies and gentle-

men of the jury what was said at that time?

‘A. Well, he said, ‘Let’s get the fuck out of here,’

and then I says to him, ‘What happened?’ He said,

‘The bastard shot me.’ I said, ‘Who?’ And he said,

‘Archie.’ ”

Tr. 30-31.

On cross-examination, petitioner’s attorney attempted to

question Lindsey about an inconsistency between his testi-

mony at trial and his earlier testimony before the grand

jury. It was Chesney’s contention at that time, and he so

testified at the evidentiary hearing on this petition, that in

his grand jury testimony, Lindsey had not quoted the de-

cedent as identifying Chesney as his assailant. Since

Lindsey admitted having given a prior inconsistent state-

ment to the police at the start of their investigation, and

since Lindsey himself had been a suspect in the slaying,

petitioner contended that the additional factor of an in-

consistent statement to the grand jury would have greatly

assisted him in convincing the jury that Lindsey had fab-

ricated the purported identification. This, in turn, would

have greatly weakened the prosecution’s case since there

was no other witness, either to the shooting or to the in-

criminating statement.

The prosecutor objected to the attempt to show the

inconsistent testimony before the grand jury on the

grounds that a failure to testify could not be inconsistent

with a later statement. Tr. 39. The trial court sustained

the objection on the joint grounds that a prior omission

would not be inconsistent and that an attempt to question

6a

Memorandum of Decision of the District Court.

a witness concerning his prior testimony before a grand

jury would violate the Connecticut rule of secrecy of grand

jury proceedings. Tr. 40-41.

Petitioner contends that this ruling deprived him of

the constitutionally guaranteed right to cross-examine the

adverse witnesses presented against him in a criminal pro-

ceeding.

Il. Exhaustion

In its amended return to the petition, the State argues

that the constitutional claim raised in this court was not

directly passed on by the Supreme Court of Connecticut in

the appeal from the petitioner’s conviction. The State

argues that he is still free to raise the issue either in a

motion for a new trial, Conn. Gen. Stat. Ann. § 52-270, or

in a state habeas proceeding, Conn. Gen. Stat. Ann. § 52-

466; and therefore the petition should be dismissed for

failure to exhaust state remedies. 28 U.S.C. § 2254.

The question, however, is not whether the State Supreme

Court passed on the constitutional issue, but rather

whether the “substance” of the claim was properly

presented to them. Picard vy. Connor, 404 U.S. 270, 278

(1971). Petitioners cannot be deprived of their timely

access to a federal court by the failure of a state court

to decide a properly presented constitutional issue. Cf.

Chambers v. Mississippi, 410 U.S. 284 (1973).

In this case the constitutional issue was before both of

the state courts which passed on the question. In the State

Supreme Court, petitioner framed the issue raised as:

“2. Did the court err in refusing cross examination of a

witness as to his testimony before the grand jury?” At

the trial level the record shows that that court also was

* Brief of Defendant at 1, State v. Chesney.

7a

Memorandum of Decision of the District Court.

aware of the constitutional dimensions of the petitioner’s

position.”

In his brief on appeal, petitioner relied heavily on

Chambers v. Mississippi and Williams v. Florida, 399 U.S.

78 (1970). In his motion for reargument, petitioner again

relied explicitly on Chambers.*| Though the Connecticut

Supreme Court did not address the issue in its decision,

and denied the motion to reargue, the substance of the

claim was presented to that court for its consideration.

Petitioner has fulfilled his duty to exhaust his state

remedies, and the merits of his petition are thus properly

before this court.

Ill. The Constitutional Issue

Evidentiary errors committed during the course of a

state criminal trial are not subject to review in a federal

habeas corpus proceeding unless such errors rise to con-

stitutional dimension. Jones v. Swenson, 469 F.2d 535, 538

(Sth Cir. 1972); United States ex rel. Castillo v. Fay, 350

F.2d 400, 401 (2d Cir. 1965); Ferraro v. Connecticut, No.

Me nasi argument outside the presence of the jury the court

stated :

“Now, if you can show me some Connecticut case or some

United States Supreme Court decision which upholds your

position, Mr. Galluzzo, I shall certainly consider it.”

Tr. 41.

° Brief of Defendant, supra note 1, at 5-7.

*“For the State to deny transcription on the one hand,

then deny cross examination because there is no transcript, is

to bootstrap procedure into injustice. If Lindsey should have

told the Grand Jury about the decedent’s statement and did

not, that is important evidence. To permit evidence to be

lost to a defendant does not comport with modern standards

of justice and fairness. Chambers v. Mississippi, 35 L. ed.

2d 297 (1973).”

Defendant’s Motion to Reargue, at 4-5.

8a

Memorandum of Decision of the District Court.

B-74-288 (D. Conn., Sept. 8, 1975). However, the sub-

stantial denial of the right of cross-examination is

markedly distinguishable from the erroneous exclusion of

evidence.

In this case the petitioner claims that the decision of the

trial court denied him the right to an effective cross-ex-

amination, which the Supreme Court has described as

“constitutional error of the first magnitude” which ‘‘no

amount of showing of want of prejudice would cure.”

Smith v. Illinois, 390 U.S. 129, 131 (1968). Consequently

this court is free to review the state court determination.

The determination of the Connecticut Supreme Court

does not purport to be based solely on the Connecticut

provisions for secrecy of grand jury proceedings. The

relevant part of the opinion states:

“The proceedings of a grand jury are informal and

untranscribed. Moreover, they are conducted in

secret. State v. Menillo, 159 Conn. 264, 274, 268 A.2d

667. Thus, the form and manner in which the inquest

was conducted relative to this witness, whether the

witness had been asked to relate all the relevant facts

or whether he had been asked questions which would

have elicited the omitted facts, is unknown. It cannot

be stated with any certainty that an omission in testi-

mony before the grand jury constituted an inconsist-

ency by which to impeach the witness’ present testi-

mony. See State v. Mosca, 90 Conn. 381, 391, 97 A.

340. Under these circumstances, the secrecy of the

grand jury proceedings could not be invaded. See

State v. Coffee, 56 Conn. 399, 410, 16 A. 151; State v.

Fasset, 16 Conn. 457, 467.”

36 Conn. L.J. No. 4, at 22.°

* The cases upon which the court relies, while they do deal with

grand jury secrecy, do not support the court’s position. In State

(footnote continued on following page)

9a

Memorandum of Decision of the District Court.

Nor does the court deny that a failure to testify to a fact

which would naturally have been mentioned is legally as

inconsistent as a specific prior statement to the opposite

effect. Instead, the reasoning of the court appears to be

that, since the grand jurors are sworn to secrecy,’ and since

there is no transcript of the grand jury proceedings,* there

is no way in which the trial judge could properly deter-

mine the preliminary issue of whether a statement or omis-

sion before the grand jury was sufficiently inconsistent to

justify its introduction for impeachment purposes.’

(footnote continued from preceding page)

v. Fasset, 16 Conn. 457, 466-67 (1844), the court states:

‘*And it was early decided, that a grand-juror should not be

allowed to swear what was give in evidence [sic] before the

grand-jury, because he is sworn not to reveal the secrets of his

companions. . . . An exception to this may be found when a

witness testifies differently on the trial before the petit jury,

from what he did before the grand-jury: then the grand-jury

may be called to contradict him on that trial... .”’

In State v. Coffee, 56 Conn. 399, 410, 16 A. 151, 152 (1888),

the court cites Fasset, supra, with approval, and states:

“Perhaps it would be proper to say that the oath has this

implied qualification, that the testimony is to become secret

unless a disclosure is required in some legal proceeding. It

does not seem that the policy of the law should require it to be

kept secret at the expense of justice.”

Regardless of whether the Connecticut Supreme Court intended

to effect a change in its law, or simply overlooked the critical

exceptions to the rule of secrecy set out in these earlier decisions,

the effect on petitioner's constitutional rights is the same.

® See Schurgast v. Schumann, 156 Conn. 471, 482, 242 A.2d

695, 701 (1968); MeCormick, Evidence § 34 (2d ed. 1973).

*Conn. Gen. Stat. Ann. § 1-25.

® State v. Delgado, 161 Conn. 536, 539-40, 290 A.2d 338, 340

(1971). The failure to provide a transcript has been consistently

upheld against constitutional challenge. See, e.g., United States

v. Ayers, 426 F.2d 524 (2d Cir.), cert. denied, 400 U.S. 842 (1970).

* This appears to ignore two possible ways other than by use

of a transcript in which the inconsistency could both have been

(footnote continued on following page)

10a

Memorandum of Decision of the District Court.

This ruling, as affirmed by the Connecticut Supreme

Court, deprived the petitioner of his opportunity to fully

present to the jury his theory that the chief prosecution

witness had fabricated a significant portion of his testi-

mony, and, particular, the damaging accusation by the

decedent.

It is true that the petitioner was able to demonstrate a

motive for fabrication, both from the fact that Lindsey and

the decedent were friends and from the fact that Lindsey

himself had been considered a suspect in the killing. The

petitioner also demonstrated that Lindsey had given a com-

pletely inconsistent account of the shooting in his state-

ment to police. However, it is clear that the identification

by the decedent was especially critical. The jury asked

that it be reread to them (Tr. 270-71), and the Connecticut

Supreme Court quoted it verbatim in its summary of the

facts which the jury could have found. State v. Chesney,

36 Conn. L.J. No. 4, at 21. Lindsey was the only witness

who testified to the identification. Had the petitioner been

able to convince the jury that Lindsey had invented his

testimony, the State’s case would have been greatly weak-

ened. Restricting questioning concerning such critical

testiinony involves more than what the Connecticut Su-

(footnote continued from preceding page)

shown as a preliminary matter and proved if necessary, if the

witness were to have denied his earlier inconsistent omission.

The first would have been to eall the grand jurors themselves.

This possibility seems implied in the Connecticut cases cited in

note 5, supra. The second would have been for the defendant

himself to testify to the inconsistency if he so chose. Under the

Connecticut practice, the defendant is normally present during

testimony before the grand jury. This allows the accused the

opportunity to question the witnesses before the grand jury in an

attempt to demonstrate the weaknesses in the State’s case. State

v. Menillo, 159 Conn. 264, 268 A.2d 667 (1970); State v. Hamlin,

47 Conn. 95 (1879). The accused is not sworn to secrecy. Conn.

Gen. Stat. Ann. § 1-25.

lla

Memorandum of Decision of the District Court.

preme Court characterized as a permissible exercise of a

trial judge’s discretion concerning the proper scope of

cross-examination.

This court is not required to find that the trial would

have had a different result had the petitioner been allowed

to carry out his line of impeachment. As Chief Justice Bur-

ger stated in Davis v. Alaska, 415 U.S. 308, 317 (1974) :

“We cannot speculate as to whether the jury, as

sole judge of the credibility of a witness, would have

accepted this line of reasoning had counsel been per-

mitted to fully present it. But we do conclude that the

jurors were entitled to have the benefit of the defense

theory before them so that they could make an in-

formed judgment as to the weight to place on [the

witness’] testimony which provided ‘a crucial link in

the proof . . . of petitioner’s act.’ Douglas v. Alabama,

380 U.S. [415], at 419 [1965].”

See, also, United States ex rel. Washington v. Vincent, No.

75-2100 (2d Cir. Nov. 5, 1975) at 384-85.

The interest which Connecticut asserts in the secrecy of

grand jury proceedings cannot outweigh the importance of

the petitioner’s right to cross-examine adverse witnesses.

In Chambers v. Mississippi, 410 U.S. at 295, the Supreme

Court stated:

“The right of cross-examination is more than a de-

sirable rule of trial procedure. It is implicit in the

constitutional right of confrontation, and helps assure

the ‘accuracy of the truth determining process.’ Dut-

ton v. Evans, 400 U.S. 74, 89 (1970); Bruton v. United

States, 391 U.S. 123, 135-37 (1968). It is, indeed, an

essential and fundamental requirement for the kind of

a fair trial which is this country’s constitutional goal.’

Pointer v. Texas, 380 U.S. 400, 405 (1965). Of course,

12a

Memorandum of Decision of the District Court.

the right to confront and to cross-examine is not abso-

lute and may, in appropriate cases, bow to accommo-

date other legitimate interests in the criminal trial

process. E.g. Mancusi v. Stubbs, 408 U.S. 204 (1972).

But its denial or significant diminution calls into ques-

tion the ultimate ‘“integrity of the fact-finding

process”’ and requires that the competing interest be

closely examined. Berger v. California, 393 U.S. 314,

315 (1969).”

In Davis v. Alaska,” the right to cross-examine was held

to outweigh the State’s interest in mainiaining the secrecy

of juvenile court proceedings, an interest which had been

more consistently asserted than the interest in question

here, which apparently has been interpreted in the present

case to prohibit a practice which had previously been ap-

proved."

In the analogous situation the Supreme Court has held,

as a matter of supervision over the lower federal courts,

without reaching the constitutional issue, that in federal

criminal proceedings the interest in secrecy of grand jury

proceedings must yield to the interest in searching cross-

examination in circumstances similar to those presented

here. Dennis vy. United States, 384 U.S. 855 (1966). See also

MeCormick, Evidence § 113 (2d ed. 1973).

It is the conelusion of this court that the petitioner,

in his trial, was denied the right to an adequate cross-

examination, guaranteed to him by the sixth and four-

% Although Davis was decided after the Connecticut Supreme

Court rejected the petitioner’s appeal, the decision did not estab-

lish a new rule of constitutional law, but rather applied a settled

rule of law to a new set of facts. Cf. Williams v. United States,

401 U.S. 646, and Mackey v. United States, 401 U.S. 667, 675

(1971) (Harlan, J. dissenting).

12 See note 5, supra.

13a

Memorandum of Decision of the District Court.

teenth amendments, and that as a result his conviction

cannot stand. Petitioner is therefore presently in custody

in violation of the Constitution of the United States. 28

U.S.C. § 2254.

It is Ordered that a writ of habeas corpus should issue

out of this court discharging the petitioner, Archie Chesney,

from custody unless within twenty (20) days the State of

Connecticut vacates the judgment of conviction and sched-

ules an early retrial.

Dated at Hartford, Connecticut, this 13th day of No-

vember, 1975.

M. JosepH BLUMENFELD

United States District Judge

l4a

APPENDIX C

Judgment of the Court of Appeals.

UNITED STATES COURT OF APPEALS

For THE Seconp Circuit

At a stated Term of the United States Court of Appeals

for the Second Circuit, held at the United States Court-

house in the City of New York, on the 6th day of Feb

ruary one thousand nine hundred and 76.

Present: Hox. Paut R. Hays,

How. Wriuiam H. Mvtuicay,

Hon. Murray I. Gurrerny,

Cireuit Judges.

Dkt. 75-2147

,*

Ww

ARCHIE CHESNEY,

Petitioner-Appellee,

—against—

Cart Rosrnson, Warden, Connecticut Correctional

Institution, Somers,

Respondent-Appellant.

+

4

Appeal from the United States District Court for the

District of Connecticut.

This cause came on to be heard on the transcript of

record from the United States District Court for the

District of Connecticut, and was argued by counsel.

lda

Judgment of the Court of Appeals.

On ConsmeraTiION WHEREOF, it is now hereby ordered,

adjudged, and decreed that the judgment of said District

Court be and it hereby is affirmed on the Memorandum of

Decision filed below by Hon. M. Joseph Blumenfeld.

Paut R. Hays

Wiiuiam H. Mutuican

Wiiuiam H. MvutuicGan

Murray I. GurFern

Murray I. Gurrern