Petition — Carbone v. Connecticut

Supreme Court brief1977

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ä—— ——

Supreme Court, U. 8.

— F IL F. D

| APR 18 1977

| MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

Ocroser TERM, 1976

JAMES CARBONE,

Petitioner,

—v.—

Srark oF CoNNECTICUT,

Respondent.

—

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE

STATE OF CONNECTICUT

Z xls, Neepte & Cooper, P. C.

333 State Street, P.O. Box 1740

Bridgeport, Connecticut 06601

Attorneys for Petitioner

Jacosp D. ZeLpEs

ELAINE S. AMENDOLA

Of Counsel

— — — —

TABLE OF CONTENTS

PAGE

r iain 1

. 2

, STE AE nD 5

Constitutional and Statutory Provisions Involved — 3

r rc 3

The Facts Material to the Federal Questions 3

The Manner of Raising the Federal Questions ... 7

Reasons for Granting the Writtt 10

r ̃ ...... . 23

TABLE OF AUTHORITIES

Cases:

Abney, et al. v. United States, —— U.S. ——, 44 USS.

L. W. 3719 (June 14, 1976) (No. 75-6521) 14

Aguilar v. Texas, 378 U.S. 108 (1964) — 17

Bins v. United States, 331 F.2d 390 (5 Cir. 1964) ....10, 15

Bumper v. North Carolina, 391 U.S. 543 (1968) 18, 19

The Confiscation Cases, 87 U.S. (20 Wall.) 92 (1873) . 13

Davis v. Alaska, 415 U.S. 308 (1974) 22

PAGE

Ellis v. United States, 416 F.2d 791 (D.C. Cir. 1969) .. 22

Garner v. United States, —— U.S. ——, 47 L.Ed.2d

366 (1976) .......... Ce 7 = |

Grunewald v. United States, 353 U.S. 391 (1957) ... 21

Hagner v. United States, 285 U.S. 427 (1932) 13

Marchetti v. United States, 390 U.S. 39 (1968) 21

Rogers v. United States, 340 U.S. 367 (1950) -.......... 22

Russell v. United States, 369 U.S. 749 (1962) ..12, 13, 15-16

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ........ 18, 19

Sgro v. United States, 278 U.S. 206 (1932) 18

State v. Huot, 170 Conn. 463 (1976) 11,12

State v. Palkimas, 153 Conn. 555 (1966) 12

Thompson v. Louisville, 362 U.S. 199 (1960) 11

United States v. Bachman, 164 F. Supp. 898 (D.C.

1 ⁵Üv—— ²—ͤ ͤ ————— .

United States v. Droms, —— F.2d ——, slip op. 2035

(2 Cir. Feb. 25, 1977) No. 761222. 15

United States v. Goodman, 285 F.2d 378 (5 Cir. 1960) 15

United States v. Hicks, 529 F.2d 841 (5 Cir. 1976) — 15

United States v. Kodel, 397 U.S. 1 (1970) 21

United States v. Leggett, 312 F.2d 566 (4 Cir. 1962) — 15

United States v. Starks, et al., 515 F.2d 112 (5 Cir.

1 14

PAGE

Constitutional Provisions:

U.S. Constitution:

F !(. e 9, 77a

% r 9, 10, 14, 20, 77a

r 9, 10, 11, 22, 77a

r 22, 78a

Statutes:

r x 14

1 U—I — 2

§53-53a Conn. Gen. Stat. (1958 Rev.) 7

§53-63a Conn. Gen. Stat. (1958 Rev. 11, 79a

653-65 Conn. Gen. Stat. (1958 RevAY 7. 11, 79a

Other Authority:

1 C. Wright Federal Practice and Procedure 5142 at

c 12

In THE

Supreme Court of the United States

Ocroper Term, 1976

——

JaMEs CARBONE,

Petitioner,

—.—

State or ConNECTICUT,

Respondent.

—

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE

STATE OF CONNECTICUT

Petitioner James Carbone prays that a writ of certiorari

issue to review the final judgment of the Supreme Court

of Connecticut announced January 18, 1977.

Opinions Below

The opinions of the Supreme Court of Connecticut, re-

produced in the appendix to this petition (28a, 5la),’ are

reported at Vols. XXXVI, No. 37 Conn. L.J. 5 (1975) and

XXXVIII, No. 29 Conn. L.. 8 (1977).

References to the numbered pages of the appendix to this peti-

tion are indicated ( a).

Jurisdiction

The Judgment of the Supreme Court of Connecticut was

entered on January 18, 1977. A timely motion for reargu-

ment was denied on February 3, 1977, the effective date

of judgment. The jurisdiction of this Court is invoked un-

der 28 U.S.C. 51257 (3).

Questions Presented

This case involves a conviction for four separate alleged

violations of larceny and raises these questions:

1. Does the conviction of petitioner on an information

which is duplicitous in that each of the four counts dis-

junctively charges petitioner with the mutually exclusive

offenses of theft and of receiving stolen goods, violate

petitioner’s right to be informed of the nature and cause

of the accusation against him and deny him due process of

law as guaranteed by the Sixth and Fourteenth Amend-

ments to the Constitution of the United States?

2. Did petitioner freely and voluntarily waive his rights

under the Fourth and Fourteenth Amendments to the Con-

stitution of the United States during a search by a large

search party of civilians and police pursuant to a hope-

lessly stale warrant which did not authorize a search for

the item seized?

3. Was petitioner’s Sixth Amendment right to confront

the witnesses against him erroneously sacrificed in defer-

ence to the Fifth Amendment privilege against self-incrimi-

nation when the trial court barred petitioner’s attempt to

show the bias and interest of the State’s principal wit-

nesses through cross-examination of them concerning their

invocation of the privilege in prior civil proceedings?

Constitutional and Statutory Provisions Involved

U.S. Constitution, Amend. IV, V, VI and XIV.

§53-63a Conn. Gen. Stat. (1958 Rev.).

§53-65 Conn. Gen. Stat. (1958 Rev.)

Statement

The Facts Material to the Federal Questions

Petitioner James Carbone, and his brother Peter Car-

bone' were tried and convicted upon substituted informa-

tions charging each of them with four counts of larceny

committed on distinct dates in January and February,

1971 (28a, 5la).

In May of 1971, management at the Carpenter Tech-

nology Corporation became aware of a large inventory

shortage in metals used at its plant in Bridgeport, Con-

necticut. On July 14, 1971, Albert Edwards and Russell

Scofield, both employees of Carpenter, were apprehended

while stealing pure nickel from the Carpenter plant (44a).

A short time after their arrests, both Edwards and

Scofield began “cooperating” with the Bridgeport police

and with persons connected with Carpenter and its insur-

ance carrier. In early August, 1971, each of the thieves

* Reproduced in the appendix (77-79a).

The Court below erroneously refers to Peter Carbone as

James son (31a, 53a).

gave statements to Detective Cafferty of the Bridgeport

Police Department claiming that on four different dates

in January and February of 1971, they had stolen from

Carpenter quantities of nickel, iron and copper and had

sold and delivered the metals to petitioner and his brother

at Fairfield Scrap Iron and Metal Company owned by

petitioner. The State’s case rested almost entirely on the

testimony of the two thieves. One of the items offered in

evidence, however, which the State claimed corroborated

their testimony was a phony receipt slip which Scofield

claimed he had signed in an assumed name, “John Parks,”

when making a delivery to Fairfield Scrap (29a, 52a).

On September 2, 1971, approximately seven month after

the alleged thefts, Detective Cafferty and Robert Magee,

an employee of Carpenter, obtained a state search and

seizure warrant authorizing a search of Fairfield Scrap

for the alleged stolen metals and two chains and a tar-

paulin used in handling the metals, none of which items

were found on the premises (7a, 32a, 54a). No authority to

search for or seize books and records was sought or ob-

tained.

Detectives Cafferty and Magee then returned to Car-

penter where they began to amass a large search party.

In addition to Magee, Henry Popowski, Foreman of the

Melt Shop at Carpenter was invited to help identify ques-

tioned items. Alfred Constantino, a special investigator for

Carpenter’s insurance carrier was brought along for no

apparent reason. Another Bridgeport policeman, two Fair-

field officers and an F. B. I. agent rounded out the party. It

was that formidable group which descended en masse, in

four vehicles, on Fairfield Scrap about 2:00 P.M. on Sep-

tember 2, 1971 (30a, 52a-54a).

All of the persons in the search party, both police officers

and civilians were dressed in civilian clothes (30a, 53a).

When the search party arrived at Fairfield Scrap, Sargeant

Targowski, the senior Fairfield Police Officer, sought out

petitioner or Peter Carbone, but petitioner was not present

(3la, 53a). Targowski displayed the warrant to Peter

Carbone and advised him of his purpose on the premises

(3la-53a). All eight of the search party, including the

civilians, fanned out around the premises for purposes of

the search (32a, 54a). The officers in charge, Cafferty and

Targowski, were both aware of the fact that the warrant

did not authorize a search for any books and papers of

Fairfield Scrap (33a, 55a). On the way to the premises

before the search, Detective Cafferty had a conversation

with the insurance investigator, Constantino, concerning a

search for slips and records with the thieves’ names on

them, and Cafferty told him not to search for anything,

but if they happen to see anything with those names on it,

to let him know (30a, 53a).

Shortly after the search began, petitioner arrived, as

did his son and employee, Frank Carbone. After the

search party had been on the premises for an hour or so,

Constantino asked Frank, in petitioner’s presence, if it

would be alright to search through their sales receipts

(32a, 54a). Before that time Detective Cafferty had given

both petitioner and Peter Carbone their “Miranda” warn-

ings, but at no time did he warn them that they need not

allow any search for items not named in the warrant, nor

did he specifically tell anyone just what was in the war-

rant (3la-33a, 54a-55a). Petitioner never took the warrant

and read it, and there was no indication that anyone read

any portion of the warrant to him (3la, 53a). Although

Detective Cafferty took ao part in the Constantino-Carbone

conversation, he was present and within earshot when the

request was made of Frank Carbone (32a, 54a). Detec-

tive Cafferty remained silent even though he knew a very

possible result of Constantino’s question was that a search

would take place; Detective Cafferty did not tell any of

the Carbones who Constantino was prior to the request

for sales receipts and records (32a, 54a).

Frank Carbone got the receipts in response to Constan-

tino’s request; the two civilians, Constantino and Popowski,

looked through them, and Popowski found the “John

Parks“ slip (32a-33a, 54a). Petitioner made no objection

to Frank getting the sales receipts (32a, 54a). Prior to

that search, neither Popowski nor Constantino had had any

conversation with the Carbones nor had they informed

them that they were civilians and not any “official” part

of the search party. Neither Constantino nor Popowski

had ever asked any permission to come on the premises

(32a, 54a). The Carbones were not asked to sign a consent

to search form, although the Bridgeport police have such

forms, nor were they ever advised by anyone that the

seizure of the slip was beyond the scope of the warrant

(33a, 55a). When they left three and a half hours later,

the search party had found nothing named in the warrant,

but had taken the “John Parks” receipt which was later

admitted at trial (34a).

Petitioner and co-defendant Peter Carbone each main-

tained his innoc nee and both testified to that effect at

the trial, which involved deeply disputed issues of fact.

As noted by the court below, the State’s case “hinged in

the main part upon the credibility of the witnesses Scofield

and Edwards” (34a).

During the trial, a number of significant evidentiary

issues arose. During the cross-examination of the two

principal State’s witnesses, Albert Edwards and Russell

Scofield, petitioner and the co-defendant sought to show

that each of them had, in earlier depositions in a civil

action arising out of the same alleged facts, pleaded a

Fifth Amendment privilege to avoid giving any informa-

tion or testimony to the defendants in the criminal action

(10a). Both Scofield and Edwards, long prior to the time

of those depositions, had given to the police lengthy sworn

statements which had hopelessly incriminated them (10a-

lla). Seofield, in fact, had already pleaded guilty and was

waiting sentence on charges arising out of the subject

matter of his proposed deposition testimony (lla). The

testimony was offered on the issue of the credibility of

the two thieves, to show interest in the prosecution and

bias against the defendants (12a). The trial court sus-

tained the prosecution objection to such offers, and both

defendants excepted (12a).

The jury returned a verdict of “guilty as charged” on

each of the four counts (29a) and petitioner was sentenced

to a term of incarceration of not less than three years

and not more than nine years in the State’s prison.

The Manner of Raising the Federal Questions

Petitioner was charged in a substituted information with

four separate counts of larceny in violation of §53-63a of

the Connecticut General Statutes (1958 Rev.)“ (Sa). In

his Motion for a Bill of Particulars he asked the State

to specify, inter alia, whether he was charged as a princi-

pal thief or as a receiver of stolen goods under 453-65,

* Repealed October 1, 1971.

not specifically cited in the information, which motion was

denied (8a).

At the end of the State’s case, petitioner moved to dis-

miss the information on the ground that each count was

defective as duplicitous in that each count charged two

separate crimes, which motion was denied (12a). Also, at

the end of the State’s case, petitioner filed a motion to

require the State to elect a single theory of guilt with

respect to each count: either as a principal or accessory

to the thefts or as a receiver of stolen goods, which mo-

tion was denied (13a).

Finally, petitioner requested the trial judge to charge

the jury on a theory of one or the other, claiming that

it would be improper to put both theories to the jury on

each count (14a). Nevertheless, the judge submitted the

case to the jury with three theories of guilt on each count:

theft, accessory to theft or receiving stolen property (15a-

26a). In his charge, to which exception was taken (27a),

the trial court stated:

“You may find the defendant guilty of either larceny or

the offense of receiving and concealing stolen goods, but

not of both offenses as to any one count.” (Emphasis

added.) (15a).

As to petitioner’s claim that he was entitled to know

whether on each count he was being tried as a principal

thief or as a receiver of stolen goods, the court below held

that it was error to deny petitioner’s request for a bill of

particulars, but that it was harmless because

“experienced counsel for James Carbone was aware

that §53-63a was violated either by larceny or by re-

ceipt of stolen property; otherwise he would not have

— — 2 — —

asked the prosecution to elect between the two theories.

He undoubtedly understood the State’s refusal to elect

as an implicit statement that it was charging both

and would endeavor to prove either.” (Emphasis

added.) (66a).

The Fourth Amendmert issues regarding the search and

seizure were raised by petitioner’s motion to suppress and

for return of property which was denied in the trial court

(9a). On the first appeal in this proceeding, the Supreme

Court of Connecticut reversed on the search issue holding,

inter alia, that “[t]here clearly was merit to the claim that

the warrant was stale” and that the illegality of entry due

to the staleness of the warrant was a factor to be con-

sidered on the question of voluntariness (40a).

On remand, the trial court again denied the motion to

suppress and the former judgment of conviction was re-

instated without a new trial (51a). On the second appeal,

the Supreme Court of Connecticut upheld the search as

consensual, and reached the other issues which it had not

decided on the first appeal (60a).

With respect to petitioner’s Sixth Amendment right

to cross-examine the State’s witnesses about their prior

invocation of their Fifth Amendment privilege against

self-incrimination, the court below held that “[t]he prior

invocation of a constitutional privilege can be motivated

by so many factors other than bias that the court was

within its discretion in excluding cross-examination on this

matter as irrelevant” (68a).

Reasons for Granting the Writ

Review of the decision below by this Court is called for

(1) because this Court has never proclaimed that a con-

viction on a duplicitous count cannot withstand constitu-

tional scrutiny and the ruling of the court below stands in

blatant defiance of this Court’s pronouncements regarding

fundamental fairness and an accused’s right to know the

nature of the accusation against him; (2) because the court

below failed to apply the established principles of this

Court in ruling on the staleness of the warrant and the

voluntariness of the consent to search; and clarification

of the constitutional safeguards is called for in light of

recent developments in the law of search and seizure; and

(3) because this Court has not previously determined

whether an accused’s Sixth Amendment right to cross-

examine the witnesses against him must give way to a

prosecution witness’ Fifth Amendment privilege against

self-incrimination, and this issue—significant to our ad-

versary procedure—was decided by the court below in

contravention of the applicable principles set forth by this

Court.

To this very day, neither petitioner nor anyone else,

except perhaps the jury, knows whet' er the verdict of

“guilty as charged” (29a) convicted him of the crime of

theft or of the crime of receiving stolen property. Nor

does anyone know whether petitioner was adjudged a thief

with respect to some counts and a receiver of stolen prop-

erty with respect to other counts, a thief on all counts or a

receiver on all counts. See Bins v. United States, 331 F.2d

390, 393 (5 Cir. 1964).

— Ate were

—— — —————— ̃ —

Whereas review of criminal convictions in the past few

decades has largely been concerned with the refinement of

legal concepts defining the parameters of individual liber-

ties under the Bill of Rights, petitioner asks this Court to

reaffirm one of the most elementary principles of criminal

justice- his right “to be informed of the nature and cause

of the accusation” against him, as guaranteed by the Sixth

Amendment.

Petitioner’s request for certiorari is based on reasons

similar to those which gave rise to the landmark case of

Thompson v. Louisville, 362 U.S. 199 (1960), in which this

Court reversed a police court conviction with a reaffirma-

tion of the basic principle that it is a violation of due

process to convict a man without evidence of his guilt.

Petitioner seeks review of the decision of the court below

—which conveniently categorized the fundamental flaw of

duplicity in the charge as harmless error—in order to

reaffirm the fundamental principle that it is a violation of

due process and the Sixth Amendment to convict a man

without. ever telling him the offense with which he is

charged and upon which he stands convicted.

As the court below noted, under Connecticut’s larceny

statute §53-63a, one can be charged either as a principal in

the theft or as a receiver of stolen property under an ac-

cessory statute, 553-65. But, as the Supreme Court of

Connecticut recently held, “the essential elements of re-

ceiving stolen goods are materially different from those of

the crime of theft.” State v. Huot, 170 Conn. 463, 468

(1976).° Receiving stolen property, moreover, is not a

„The essential elements of the crime of receiving stolen goods

are: (1) The property must have been stolen. (2) It must

lesser included offense within larceny. Id. The two of-

fenses, theft and receiving stolen property under Con-

necticut law are mutually exclusive in that one cannot be

both a principal thief and a receiver of the same goods.

State v. Palkimas, 153 Conn. 555, 561 (1966). Yet, peti-

tioner, as noted, was charged with both offenses in each

count and the jury was told that he could be convicted of

one or the other under each count (15a).

Duplicity, the joining in a single count of two or more

distinct and separate offenses, 1 C. Wright repERAL PRac-

TICE AND PROCEDURE 5142 at 306 (1969), has several inherent

vices, of which the most obvious is the violation of the

basic principle that the accused must be apprised by the

indictment or information with reasonable certainty of the

nature of the accusation against him. Russell v. United

States, 369 U.S. 749, 766 (1962).

As this Court observed long ago:

“It may be conceded that an indictment or a criminal

information which charges the person accused, in the

disjunctive, with being guilty of one or another of

several offenses, would be destitute of the necessary

certainty, and would be wholly insufficient. It would

be so for two reasons. It would not give the accused

definite notice of the offense charged, and thus enable

have been received by the accused with the knowledge that it

was stolen. (3) It must have been concealed within the mean-

ing of the law. (4) It must have been received and con-

cealed by the accused with a felonious intent. The ele-

ments of larceny, on the other hand, are: ‘(1) the wrong-

ful taking or carrying away of the personal property of

another; (2) the existence of a felonious intent in the taker

to deprive the owner of it permanently; and (3) the lack

of the consent of the owner.’” State v. Huot, supra, 170

Conn. at 467-468.

him to defend himself, and neither a conviction nor an

acquittal could be pleaded in bar to a subsequent

prosecution.” The Confiscation Cases, 87 U.S. (20

Wall.) 92, 104 (1873).

More recently this Court has decreed the test for deter-

mining the sufficiency of the charging document to be

whether it contains the elements of the offense intended

to be charged; whether it sufficiently apprises the defendant

of what he must be prepared to meet; and, in case any

other proceedings are taken against him for a similar

offense, whether the record shows with accuracy to what

extent he may plead a former acquittal or conviction.

Hagner v. United States, 285 U.S. 427, 431 (1932); Russell

v. United States, supra, 369 U.S. at 763.

Furthermore, prosecution of petitioner on the same

count for two mutually exclusive offenses with materially

different elements renders it impossible for any court to

determine whether petitioner was afforded the requisite

protection of the Due Process Clause “against conviction

except upon proof beyond a reasonable doubt of every fact

necessary to constitute the crime with which he is charged.”

In re Winship, 397 U.S. 358, 364 (1970).

What the court said of the uncertainty and unfairness”

of the indictment in Russell seems equally applicable to

the duplicitous information here in that it

“requires the defendant to go to trial with the chief issue

undefined. It enables his conviction to rest on one

point and the affirmance of the conviction to rest on

another. It gives the prosecution free hand on appeal

to fill in the gaps of proof by surmise or conjecture.”

Russell v. United States, supra, 369 U.S. at 766.

Reversing a conviction founded on a duplicitous indict-

ment under the Hobbs Act,“ the Third Circuit recently ex-

plained the vices inherent in duplicity:

„. .. One vice of duplicity is that a general verdict for a

defendant on that count does not reveal whether the

jury found him not guilty of one crime or not guilty of

both. Conceivably this could prejudice the defendant

in protecting himself against double jeopardy. Another

vice of duplicity is that a general verdict of guilty does

not disclose whether the jury found the defendant

guilty of one crime or of both. Conceivably, this could

prejudice the defendant in sentencing and in obtaining

appellate review. A third vice of duplicity is that it

may prejudice the defandant with respect to eviden-

tiary rulings during the trial, since evidence admissible

on one offense might be inadmissible on the other

Finally, there is no way of knowing with a general

verdict on two separate offenses joined in a single count

whether the jury was unanimous with respect to either.”

United States v. Starks, et al., 515 F.2d 112, 116-117

(5 Cir. 1975).’

In Starks, prejudicial error was found even though the

trial court had conscientiously sought to charge the jury

so as to eliminate the problems associated with the duplic-

itous indictment, by instructing the jury that in order to

find any defendant guilty, it must find that the essential

elements of both offenses had been proved. In the pending

*18 U.S.C. §1951, which proseribes a number of separate offenses

as does the Connecticut larceny statute under which petitioner

was charged.

On remand, the defendants in the Starks case, moved to dis-

miss on the ground that the Fifth Amendment’s double jeopardy

clause bars retrial of defendants convicted by a jury whose general

verdict of guilty on the duplicitous indictment failed to disclose

whether the jury found each defendant guilty of one crime or

both. On that issue, this Court has granted certiorari sub nom.

Abney, et al. v. United States, —— U.S. ——, 44 U.S.L.W. 3719

(June 14, 1976) (No. 75-6521).

case, where the tr judge gave instructions reinforcing the

disjunctive and, therefore, duplicitous counts, a fortiori

the error is prejudicial.

Duplicity need not be fatal, however, and lower federal

courts have found that the harm caused by duplicity can

be cured by a motion to dismiss or by requiring the prosecu-

tion to make an election prior to the submission of the

case to the jury. United States v. Hicks, 529 F.2d 841, 843

(5 Cir. 1976); Bins v. United States, 331 F.2d 390, 393 (5

Cir. 1964); United States v. Goodman, 285 F.2d 378, 380

(5 Cir. 1960); United States v. Droms, F.2d ——, slip

op. 2035 (2 Cir. Feb. 25, 1977), No. 76-1232; United States

v. Bachman, 164 F.Supp. 898 (D.C. 1958). Where an elec-

tion is not made, the error is incurable and harmful per se.

United States v. Leggett, 312 F.2d 566, 568 (4 Cir. 1962).

The conscientious and repeated efforts of petitioner’s

counsel to invoke such remedies not only were denied by the

trial court but, indeed, were used by the court below to

justify its rationale that the error was not prejudicial

since counsel’s attempts to cure this defective prosecution

indicated his awareness that he should have been prepared

to defend against both offenses on each count.

„A] salutary development in the criminal law“, Russell

v. United States, supra, 369 U.S. at 763, is how this Court

has characterized the trend that convictions are no longer

reversed because of minor and technical deficiencies in the

charging papers which do not prejudice the accused. “But,”

this Court has admonished, “the substantial safeguards to

those charged with serious crimes cannot be eradicated

under the guise of technical departures from the rules.”

Ibid. To permit petitioner’s conviction to stand on this

duplicitous and fatally defective information would flout

the proclamation that “the basic principles of fundamental

fairness retain their full vitality under modern concepts of

pleading.” Id. at 765-766.

II.

“There clearly was merit to the claim that the warrant

was stale and the court erred in failing to consider this

circumstance in determining the issue of consent.”

(40a).

With that ruling in its original opinion, the court below

found error in the denial of petitioner’s motion to suppress

and remanded the case to the trial court (42a). In support

of its ruling on staleness, the court below had stated:

“Thus the unsupported observation by Detective Caf-

ferty that the items are ‘reported to be on [sic] the

current custody and care of the premises’ is insufficient

to establish continuity, and, thus, we are unable to find

that there is a substantial basis for the issuing judge’s

conclusion that probable cause presently existed.” .

(Emphasis added). (39a).

On remand, the same trial judge again upheld the search

(50a). But, when the case came up on appeal the second

time, the court below reviewing the very same affidavit in

support of the warrant (la), found the warrant valid,

affirming the trial court’s conclusion that “the apparatus

[two chains and tarpaulin for handling metals] probably

would have remained on the premises and the warrant was

therefore not stale” (58a).“

. ® Petitioner submits that the holding by the court below on the

first appeal that the warrant was stale is the law of the case and

it was error to overrule its prior holding on the mere conjecture

of the trial judge on remand.

Petitioner submits that the finding of probable cause to

believe that the chains and tarpaulin would still be on the

premises some six to seven months after the alleged thefts

cannot withstand constitutional scrutiny.

It is axiomatic that probable cause for the issuance of a

search warrant must be tested solely by the facts and cir-

cumstances set forth in the affidavit supporting the warrant.

Aguilar v. Texas, 378 U.S. 108, 112 (1964). This axiom

seems to have been completely ignored by those who re-

viewed the affidavit including the judge who issued the

warrant, the trial judge and the court below. Judicial re-

view of this search warrant is a classic example of “mere

affirmance of belief or suspicion” which this Court has held

is “not enough.” Ibid.

There is not a single fact or circumstance in this affidavit

to support the inferences of the trial court that the chains

and tarpaulin had ever been removed from the alleged

stolen metals, that such items would have been useful to the

Carbones in their business or were not ordinarily bought

and sold in that business, or that the items had any par-

ticular value. In fact, the only claim in the affidavit con-

cerning the chains and tarpaulin was that they were alleged

to have been delivered to Fairfield Scrap along with the

stolen metals in January and February, 1971 (3a). Fur-

thermore, nothing set forth in the affidavit remotely con-

nects the attempted thefts from Carpenter in July, 1971

with the Carbones or Fairfield Scrap and Metal. An equally

plausible inference is that the thieves had found another

source for their stolen metals.

The finding of probable cause by the court below—based

as it was on nothing remotely set forth in the affidavit, but

on the pure speculation of the trial judge—blatantly con-

flicts with this Court’s pronouncement that the determina-

tion of whether there is probable cause to believe that the

items to be seized presently exist on the premises to be

searched “cannot be left to mere inference or conjecture”.

Sgro v. United States, 278 U.S. 206, 211 (1932).

Even assuming arguendo, however, that the warrant was

not stale and the search party was legally on the premises,

since the warrant itself did not authorize a search for

business papers and records, the burden was on the state

to justify the warrantless seizure of the “John Parks”

receipt. Bumper v. North Carolina, 391 U.S. 543, 548

(1968); Schneckloth v. Bustamonte, 412 U.S. 218, 221

(1973).

In finding that petitioner freely and voluntarily con-

sented to the search for the sales receipts, the court below

virtually ignored the facts and misapplied the law. Con-

sidering that there was massive police presence on the

scene, that the police had already been searching the

premises for an hour before the request to search for the

sales receipts was made, that petitioner was not told that

Constantino who made the request was a civilian, that

petitioner was not informed that no one had authority to

search for the sales receipts, and that petitioner had no

knowledge that he could legally resist the search, the most

that can be said for petitioner’s “consent” is that he tacitly

acquiesced and did nothing to prevent the search.

In an analogous situation, this Court has ruled that the

burden on the State “cannot be discharged by showing

no more than acquiescence to a claim of lawful authority.”

Bumper v. North Carolina, 391 U.S. 543, 549 (1968). The

finding of free and voluntary consent by the court below

cannot stand in light of this Court’s holding in Bumper

that as a matter of law:

“When a law enforcement officer claims authority to

search a home under a warrant, he announces in effect

that the occupant has no right to resist the search. The

situation is instinct with coercion—albeit colorably

lawful coercion. Where there is coercion there cannot

be consent.” bid.

This Court’s balancing of the two competing concerns

which must be accommodated in determining the meaning

of a voluntary consent“ the legitimate need” for the search

and “the equally important requirement of assuring the

absence of coercion”, Schneckloth v. Bustamonte, supra 412

U.S. at 227,—strengthens petitioner’s claim of error. In

the present case, the failure to obtain a warrant to search

for the records was termed “an oversight” (30a, 52a).

The police had waited over two weeks after the thieves

had been apprehended to obtain the warrant for the stolen

materials. Detective Cafferty knew and had informed the

other members of the search party that they could not

search for the sales receipts (30a, 153a). Rather than go

back and obtain a legitimate search warrant, Detective

Cafferty while on the way to the premises (30a, 31a, 53a),

embarked on a deliberate, premeditated, albeit deceitful

course of using a civilian to obtain consent from the Car-

bones.

Consent so obtained hardly comports with this Court’s

standards of voluntariness, and such improper police ac-

tivity should not be condoned.

III.

The two thieves, Edwards and Scofield, were the prin-

cipal State's witnesses; without them, simply, the State had

no case. At all times since they were arrested in July of

1971, Edwards and Scofield cooperated fully with the

authorities. After consultation with counsel, each gave

complete statements to the State and, intending always to

plead guilty, helped prepare the prosecution against the

Carbones. Scofield, in fact, had already pleaded guilty to

the thefts by the time of the deposition (IIa).

During cross-examination of Scofield and Edwards, the

defense proffered questions calculated to bring out the fact

that each had pleaded the Fifth Amendment privilege in

response to ail questions asked in the course of depositions

taken in a civil action brought by Carpenter Steel against

the Carbones, Scofield and Edwards (10a, 68a). The pur-

pose of the cross-examination, which was barred by the

trial court, was to impeach the credibility of the State’s

two most crucial witnesses (10a, 68a).“

»The defense claimed that such reliance upon the privilege, long

after they had decided to cooperate with the police and plead

guilty was in bad faith. It demonstrated a pure desire to “help”

the prosecution and to prevent the defendants from learning, in

advance, what their testimony would be at trial. It was offered to

show an interest on the part of both Scofield and Edwards in the

outcome of the criminal trial, and to show bias against the de-

fendants. Such inferences were permissible, intelligent conclusions

that the jury might have drawn, and used in weighing the credi-

bility of Scofield and Edwards.

The court below upheld the restriction on cross-examination on

the basis that the invocation of the privilege could have been

motivated by factors other than bias (68a). The question as to

whether or not the jury would have thought necessarily that the

invocation of the privilege showed bias is not truly the issue;

The only case relied on by the court below to support its

denial of petitioner’s right to cross-examine the State’s wit-

nesses is Grunewald v. United States, 353 U.S. 391 (1957).

But Grunewald, held it prejudicial error to allow the

Government to cross-examine the defendant about his prior

invocation of the privilege before the grand jury since the

assertion of the privilege was consistent with the de-

fendant’s innocence and such cross-examination would be

highly prejudicial to the defendant. Grunewald barred

cross-examination to insure fairness to the defendant and,

therefore, is wholly inapposite. Moreover the witnesses in

the pending case had admitted their guilt and could not

have been prejudiced by the questioning.

An individual under compuision to make disclosure as

a witness who revealed information instead of claiming

the privilege has been held to lose the benefit of the priv-

ilege. United States v. Kodel, 397 U.S. 1, 7-10 (1970).

More recently, in Garner v. United States, —— U.S. —,

47 L.Ed.2d 366 (1976), this Court held that a taxpayer’s

incriminating disclosures on his tax returns instead of

claiming the privilege, as he had a right to do, could sub-

sequently be used against him in a federal criminal prose-

cution.

This Court, moreover, has consistently disallowed re-

fusals to testify when there is no “real” and substantial

“hazard of incrimination,” see Marchetti v. United States,

390 U.S. 39, 48, 53 (1968), and has held that a witness who

volunteered incriminating answers to the grand jury could

not thereafter invoke the privilege as to details which

rather, the question is whether or not there was a reasonable

enough inference or argument of such bias that the defense should

have been entitled to explore the matter.

“would not further incriminate.” Rogers v. United States,

340 U.S. 367, 373 (1950).

Petitioner submits that Scofield and Edwards each had

effectively waived his privilege against self-incrimination

prior to its invocation during the civil proceedings. Having

already confessed to their roles in the crimes, there was no

real and substantial hazard of incrimination at the deposi-

tions.

A primary interest secured by the confrontation clause

is the right of cross-examination which traditionally has

allowed the cross-examiner “to impeach, i.e. discredit, the

witness.” Davis v. Alaska, 415 U.S. 308 (1974). In Davis

this Court held:

“The State’s policy interest in protecting the confiden-

tiality of a juvenile offender’s record cannot require

yielding of so vital a constitutional right as the effective

cross-examination for bias of an adverse witness.” 415

U.S. at 320.

Petitioner seeks review by this Court to resolve the ten-

sion between his right of confrontation under the Sixth

Amendment and the privilege against self-incrimination of

the Fifth Amendment invoked by the State’s chief witnesses

in prior proceedings. Petitioner submits that, under the

circumstances of this case, his right to cross-examine the

witnesses against him in order to impeach their credibility

as guaranteed by the Sixth and Fourteenth Amendments

to the Constitution of the United States should have pre-

vailed.

of the privilege at one proceeding carries through to another pro-

ceeding but the sounder rule is that it does. Ellis v. United States,

416 F.2d 791, 800 (D.C. Cir. 1969).

CONCLUSION

For these reasons, then, this Court should—and peti-

tioner requests that it does—issue its writ of certiorari to

review the judgment of the court below.

Respectfully submitted,

Elaine S. Amendola

Zevpes, NEEDLE & Cooper, P.C.

333 State Street, P.O. Box 1740

Bridgeport, Connecticut 06601

Attorneys for petitioner.

April 18, 1977

APPENDIX

INDEX TO APPENDIX

A—Search Warrant and Affida vit la

B—Findings of Superior Court for Fairfield County

Concerning Rulings Made Prior to and During

, ̃ 222... ̃ ̃ ſ— 8a

C—Portions of Request to Charge... cece eee 14a

D—Portions of the Charge to the Jury (Saden, J.)...... 15a

E— Exceptions to the Charge 27a

F—Opinion and Judgment of the Supreme Court of

Connecticut, Reversing and Remanding to the

,s ̃ ——pp pc ————— 28a

G—Joint Memorandum of Decision of Judge Levine of

ß / 43a

H—Opinion and Judgment of the Supreme Court of

Connecticut, Affirming the Judgment of the Su-

SED IID ——————————————ð5 51a

I—Motion for Neargu nent 71a

J— Denial of Motion to Reargue by Supreme Court

JJ ?—ͤ—2—ů⁵— 76a

K — Constitutional and Statutory Provisions Involved 77a

APPENDIX A

Search Warrant and Affidavit

SEARCH WARRANT

AND AFFIDAVIT

TO: A Judge of the Circuit Court

The undersigned, being duly sworn, complains on oath

that the undersigned has probable cause to believe that

certain property, to wit:

(1) Precious pure nickel cathodes in pallet form stamped

with initials INCO. (2) Copper inserts, square with round-

ed corners, ranging in wgt. from 2,500 to 4,000 lbs. (3)

Braided Cable Chain with Bull Ring and L Hooks for

lifting inserts. (4) Heavy Link Chain with an Oval Bull

Ring. (5) Gray Tarpin Canvas, approx. 6’ x 12’, rope pulls

on both ends. (6) Hanna Nickel described as small ingot

form, rectangular in shape, approximately four to five

inches thick, five to six inches wide and thirty inches long

with weight of approximately fifty pounds each.

is possessed, controlled, designed or intended for use as

a means of committing the crime of . . . Larceny in viola-

tion of Section 53-63, Conn. General Statutes.

was stolen or embezzled from . . Carpenter Technology

Corporation, Steel Division-Bridgeport, a Specialty Steel

Manufacturer, where with other metals, nickel in pure form

and copper is used.

And is within or upon a certain person, place, or thing,

to wit . . The property and buildings under the custody

and care of Fairfield Scrap Iron & Metal, 158 State Street

Extension, Fairfield, Connecticut.

And that the facts establishing the grounds for issuing a

Search and Seizure Warrant are the following

(1) At approximately 1:40 A.M., July 14, 1971, as a re-

sult of a stakeout surveillance at Carpenter Technology

Corporation, a Specialty Steel Manufacturing Company,

located at 837 Seaview Avenue, Bridgeport, Connecticut,

City of Bridgeport Police Officers, along with Company

Security Personnel, of the Sanitas Security Guard Service,

and Robert J. Magee, Director-Industrial Relations, appre-

hended and arrested the following two men who were

caught stealing and transporting with a truck approxi-

mately 3,000 Ibs. of stolen pure nickel cathodes having a

value of approximately $4,000.

(2) In the continuous investigation of an established, con-

firmed loss of copper inserts, precious pure nickel cathodes

in pallet form by Detective Robert J. Cafferty of the Detec-

tive Division of the City of Bridgeport Police, in a loss

value in excess of $99,830, the following two people were

re-arrested again in the theft of twelve pallets of this

precious pure nickel having a value of approximately

$60,000.

(3) That I, Robert J. Cafferty, a Detective and Member

of the City of Bridgeport Police Department, have in my

possession executed affidavits from the following two per-

sons who relate to me, under oath, that in the night season

in a surreptitious manner they stole, transported with a

truck precious pure nickel and inserts and sold

them to the Fairfield Scrap Iron & Metal, delivered them to

their property at 158 State Street Extension, Fairfield, Con-

necticut.

(4) That under oath, Russell J. Scofield, 34 years, 1171

North Avenue, Stratford, Connecticut and Albert A. Ed-

wards, 37 years, of Northrop Road, Bethany, Connecticut,

related to me in an Agreement with Peter Carbone these

stolen items were accepted and received by him in the early

hours of the morning where he aided them by personally

using a towmotor in the yard of this business to unload and

conceal these metals, in deliveries as follows: In the month

of January, 1971, they personally delivered two to three

copper inserts, specific date of this transaction unknown;

on January 24th, 1971, delivered five copper inserts and

two sets of chains were left belonging to the company. On

February 11, 1971, they delivered one pallet of nickel

cathodes and three pallets of Hanna nickel. On February

20, 1971, they delivered twelve pallets of pure nickel

cathodes. Further, that in the delivery and receiving of

these metals after the thefts of them, Peter Carbone was

at the Fairfield Scrap Iron & Metal Company to personally

receive each and every load.

(5) Further, that also left on the delivery of these metals

was a gray tarpan canvas stolen from the Carpenter Tech-

nology Corporation, roughly 6’ x 12’ long with rope pulls

on each end that had six panels of canvas sewed together.

(6) Further, that on February 11, 1971 three pallets of

Hanna Nickel described as small ingot form, rectangular

in shape, approximately four to five inches thick, five to

six inches wide and thirty inches long, with the weight

of approximately fifty pounds each, was stolen. Hanna

Nickel is approximately fifty percent pure nickel. The

three pallets of Hanna Nickel stolen and delivered to Fair-

field Scrap Iron & Metal totalled 12,000 pounds in weight.

(7) That based on the training and experience of the

below named Affiant, I Robert J. Cafferty, a Police Officer

currently in my 2lst year, feel that there is reasonable

grounds and probable cause for the issuance of a Search

and Seizure Warrant to seize and secure in evidence the

within named stolen items reported to be on the current

custody and care of the premises of Fairfield Scrap Iron &

Metal.

The undersigned has not presented this application in

any other court or to any other judge.

Wherefore the undersigned prays that a warrant may

issuc commanding a proper officer to search said person

or to enter into or upon said place or thing, search the

same, and take into custody all such property.

Signed at Bridgeport, Connecticut,

this 2nd day of September, 1971

s/Detective Robert Cafferty

Signed at Bridgeport, Connecticut,

this 2nd day of September, 1971

: . s/Robert J. Magee

JURAT Subscribed and sworn to before me this

2nd day of September, 1971

2 s/Sicilian, J.

STATE OF CONNECTICUT

CIRCUIT COURT

The foregoing Affidavit and Application for Search and

Seizure Warrant having been presented to and been con-

sidered by the undersigned, a Judge of the Circuit Court,

the undersigned (a) is satisfied therefrom that grounds exist

for said Application, and (b) finds that said Affidavit estab-

lishes grounds and probable cause for the undersigned to

issue this Search and Seizure Warrant, such probable cause

being the following: From said Affidavit, the undersigned

finds that there is probable cause for the undersigned to

believe that the property described in the foregoing Aff-

davit and Application is within or upon the person, if any,

named or described in the foregoing Affidavit and Applica-

tion, or the place or thing, if any, described in the fore-

going Affidavit and Application, under the conditions and

circumstances set forth in the foregoing Affidavit and Ap-

plication, and that, therefore, a Search and Seizure War-

rant should issue for said property, namely the Fairfield

Scrap Iron & Metal Company located at 158 State Street

Extension, Fairfield, Connecticut, for said property.

(1) Precious pure nickel cathodes in pallet form stamped

with initials INCO.

(2) Copper Inserts, square with rounded corners, ranging

in weight from 2,500 to 4,000 pounds.

(3) Braided Cable Chain with Bull Ring and L Hooks

for lifting inserts.

(4) Heavy Link Chain with an Oval Bull Ring.

(5) Gray Tarpan Canvas, approximately 6’ x 12’, rope

pulls at both ends.

(6) Hanna Nickel described as small ingot form, rectang-

ular in shape, approximately four to five inches thick, five

to six inches wide and thirty inches long with weight of

approximately fifty pounds each.

NOW THEREFORE, by authority of the State of Con-

necticut, I hereby command any Police Officer of a regu-

larly organized police department or any State Policeman

to whom these presents shall come within a reasonable time

after the date of this warrant to enter into or upon and

search the place or thing described in the foregoing Afh-

davit and Application, to wit: The buildings and property

under the custody and care of Fairfield Scrap Iron & Metal,

158 State Street Extension, Fairfield, Connecticut.

Search the person described in the foregoing Affidavit

and Application, to wit: for the property described in the

foregoing Affidavit and Application, to wit: (1) Precious

pure nickel cathodes in pallet form stamped with initials

INCO. (2) Copper inserts, square with rounded corners,

ranging in weight from 2,500 to 4,000 Ibs. (3) Braided

Cable Chain with Bull Ring and L Hooks for lifting in-

serts. (4) Heavy Link Chain with an Oval Bull Ring. (5)

Gray Tarpan Canvas, approximately 6’ x 12’, rope pulls at

both ends. (6) Hanna Nickel described as small ingot form,

rectangular in shape, approximately four to five inches

thick, five to six inches wide and thirty inches long with

weight of approximately fifty pounds each and upon find-

ing said property to seize the same, take and keep it in

custody until the further order of the court, and with

reasonable promptness make due return of this warrant

accompanied by a written inventory of all property seized.

Signed at Bridgeport, Connecticut,

this 2nd day of September, 1971

s/Sicilian. ].

RETURN FOR AND INVENTORY

PROPERTY SEIZED ON SEARCH

AND SEIZURE WARRANT

County of Fairfield, City of Bridgeport. Date of Seizure,

September 2, 1971, State of Connecticut.

Then and there by virtue of and pursuant to the author-

ity of the foregoing warrant, I searched the person, place,

or thing named therein to wit: The property and buildings

under the custoday and care of Fairfield Scrap and Iron

Metals located at 158 State Street Ext., Fairfield and found

thereon or therein, seized, and now hold in custody, the

following property . None of the within named property.

9-2-71

Detective Robert J. Cafferty, Bpt. P.D.

Sgt. Edward Targowski, Fairfield Police

APPENDIX B

Findings of Superior Court for Fairfield County

Concerning Rulings Made Prior to and During

the Trial (Saden, J.)

983. The original informations against each of the de-

fendants, dated October 5, 1971, charged a single count of

violation of Section 53-63a, Connecticut General Statutes,

charging larceny of the personal property of Carpenter

Technology Corporation, Inc. in excess of Two Thousand

($2,000.00) Dollars. Motions for Bills of Particulars were

filed by both defendants subsequent to the filing of the

initial informations. However, the information in each

case was superseded by a substituted information, in each

case dated March 3, 1972, which charged each of the defen-

dants with four separate counts of larceny in excess of

Two Thousand ($2,000.00) Dollars, in violation of Section

53-63a of the Connecticut General Statutes. Each defen-

dant, in identical Motions for a Bill of Particulars, asked,

in Paragraph number 8 of said motions, “whether the state

claims the defendant is a principal thief or receiver of

stolen goods”. In each case, the State objected to Para-

graph 8 of the Motion for Bill of Particulars. In its Memo-

randum of Decision dated April 14, 1972, the court Saden,

J, denied the defense requests of the State to specify

whether the defendant was charged as the principal thief,

a receiver of stolen goods, or an accessory, relying on an

earlier ruling by the court, Tierney, J., to a similar effect

when a similar motion had been addressed to the first set of

informations against the defendants, and also indicating

that the court felt the State was entitled to proceed in

accordance with the court’s reading of State vs. Palkimas,

153 Conn. 555, 563.

989. Prior to the institution of trial, both defendants

filed identical Motions to Suppress Evidence, and to return

property. Both motions were heard, in a pre-trial evidenti-

ary hearing before Levine, J. At that time, Judge Levine

ruled that a search of premises known as Fairfield Scrap

Iron & Metal Company in Fairfield, Connecticut, on Sep-

tember 2, 1971, was in all respects legal, and overruled the

motions by both defendants to suppress evidence. During

the trial of the case, State’s Exhibit O was marked for

identification, and an issue arose concerning the procedure

to be followed at the time State’s Exhibit O, a slip signed

with the name “John Parks” which had been taken from

Fairfield Scrap on September 2, 1971, was offered as a full

exhibit. Both defendants indicated to the court, at the trial,

that Judge Levine had held an earlier evidentiary hearing

concerning the admissibility of State’s Exhibit O for identi-

fication. Both defendants renewed their objection to the

admissibility of State’s Exhibit O, in the absence of the

jury.

The court ruled that it would not conduct another hearing

on the issue of admissibility based upon the Motions to

Suppress Evidence. The court indicated it was accepting

the decision by Judge Levine as controlling in the case.

The court indicated that both defendants had made their

proper objection, at trial, on the question of admissibility

on Fourth Amendment grounds, and the court overruled

those objections.

The defendants excepted to that ruling, and to the admis-

sibility and admission of State’s Exhibit O.

992. Albert Edwards and Russell Scofield were the prin-

cipal witnesses against the defendants, having testified on

direct examination that they had spoken to the defendant

Peter Carbone before making any thefts from Carpenter

10a

Technology, and that they had made arrangements, prior

to all of said thefts, for the defendants to purchase goods

which they were stealing. On the cross-examination of the

witness Albert Edwards, at a time when the jury was not

in the court room, counsel for the defendant Peter Car-

bone made an offer of proof to the court.

It was indicated that defendants offered to show that, in

connection with a civil action which had been brought by

Carpenter Technology against the defendants Peter and

James Carbone, and the witnesses Albert Edwards and

Russell Scofield, that depositions had been noticed of Ed-

wards and Scofield.

It was the position of the defendants that the assertion

of the Fifth Amendment privilege on behalf of Edwards

and Scofield in the civil action, at a time long after they

had given full, complete and voluntary statements to the

police which were extremely incriminating, showed not a

fear that either of them would actually incriminate them-

selves, but only an unwillingness to give any information

to the defendants or their attorneys, and thereby establish

an inference that Scofield and Edwards were biased against

defendants. In each instance, a voir dire was held outside

the hearing of the jury. It was brought out that Edwards

had given a full statement to the police on August 4, 1971.

He had given another signed statement on September 1,

1971. It was at this time that he wanted to cooperate

fully with the authorities, and tell them everything he had

done. His attorney was present with him at the time he

gave his September Ist, statement to the police. Edwards

knew that, as of early morning on July 14th he was caught

cold stealing about $3,000,000 worth of nickel, and that

he was dead on that charge.

lla

Edwards stated he asserted the Fifth Amendment privi-

lege upon the advice of his attorney. He stated he did not

know, at that time, whether or not he intended to testify

for the State. Edwards knew, at the time he gave the

statements to the police in August and September of 1971

that he was giving them material that was incriminating

to him. He had been warned of his rights before he gave

the incriminating material. Notwithstanding his knowledge

that the statements to the police were incriminating, he gave

them nevertheless. He had felt that it was better to just

come clean with it and put himself in the hands of the au-

thorities and make a clean breast of it. His position had

consistently been, since August of 1971 that he would tell

the police and the court as much as they wanted to know

on his part, and make a clean breast of it.

Concerning proposed cross-examination of the witness

Scofield on the same topic, an offer of proof was made that

on August 3, 1971, Scofield had given a full statement to

Detective Cafferty of the Bridgeport Police. No one had

threatened him or promised him any reward for giving

this statement, and the statement was voluntary and of

his own free will. The statement was given only after

consultation with his attorney, and that his attorney had

advised him to cooperate with the police. Later, on Sep-

tember 3, 1971, Scofield gave another statement to the po-

lice and signed handwriting exemplars. He had his rights

explained to him and nonetheless wished to give another

statement. On September 27, 1971, he gave a third signed

statement. Subsequent to giving the statements, he did

not contest any bind over to the Superior Court and waived

a hearing. He pleaded guilty to two charges in early Feb-

ruary, 1972. At all times it was his intention to plead

guilty, cooperate with the police, and testify against the

12a

defendants. At a time after he had already pleaded guilty,

and when it was his intention to cooperate with the police,

he was called in by subpoena to testify at a deposition pro-

ceeding in the civil case. At that time, relying upon the

Fifth Amendment privilege, he refused to answer any and

all questions put to him. Scofield claimed that he refused

to answer on the advice of counsel.

It was the defendants’ position that, in both cases, any

alleged reliance on the Fifth Amendment privilege was

spurious and a sham. It was defendants position that any

assertion of a privilege was bad faith, and showed the

bias and prejudice of each of the witnesses, Scofield and

Edwards, against the defendants. It was defendants’ posi-

tion that, based upon what had gone before, both Scofield

and Edwards had waived any privilege against self-incrimi-

nation, and that, under the circumstances, at least an argu-

able inference from the assertion of the privilege was that

it showed bias and prejudice against the defendants, and

therefore was relevant to the jury in assessing the credi-

bility of Edwards and Scofield. In each instance, the court

sustained the objections of the State.

In each instance both defendants excepted to the court’s

rulings.

995. At the end of the State’s evidence, the defendants

filed a Motion to Dismiss the information, alleging that

each count of each information was defective as duplici-

tious, in that they charged two separate crimes within

each count of each information. Oral argument was had

on the motions at which time the defendants contention

was that in allowing the state to charge defendants with,

in effect, committing both the crime of larceny itself, and

also the crime of receiving stolen goods, all within a single

13a

count or criminal charge, was duplicitious, and fatally

defective. The court denied the motions, and both defen-

dants excepted.

996. At the end of the State’s case, both defendants filed

Motions to Elect, whereby they moved that the court order

the state to elect whether or not to proceed, on each count,

on a theory of guilt based on whether the defendants were

allegedly a principal, or accessory to the thefts themselves,

or a theory of guilt based upon the Receiving Statute, 53-65,

Conn. Gen. Stats. Argument was had, along with the Mo-

tions to Dismiss, wherein the defendants claimed that, as

charged, if the defendants were subject to both theories of

possible criminal liability, within a single count of the in-

formation, the counts were each duplicitious, and fatally

defective. The court heard oral argument, and denied the

motions. The defendants excepted.

APPENDIX C

Portions of Request to Charge

836. Defendant requests that the court charge, concern-

ing the above defendant, on either the theory that said

defendant is charged as a principal thief under Section

53-63a as supplemented by the general accessory provisions

of Section §54-196—or as a receiver of stolen goods under

Section 53-65—but that the court not put both theories to

the jury.

15a

APPENDIX D

Portions of the Charge to the Jury (Saden, J.)

905. Now, larceny is charged, as I have repeated, in each

of these four offenses against each defendant. Included

within the charge of larceny is another offense under Sec-

tion 53-65, which does not appear on the face of this in-

formation but is nevertheless just as much before you as

though it were. And Section 53-65 is the section known

as the receiving and concealing stolen goods, knowing them

to be stolen, or for a short name, receiving stolen goods.

906. In this case, if the State has proved its case under

the rules laid down in this charge on the law, you may find

the defendants—and I speak of each defendant when I say

defendants—you may find the defendant guilty of either

the offense of larceny or the offense of receiving and con-

cealing stolen goods, but not of both offenses as to any

one count.

907. Now, Sections 53-63(a) is the larceny statute, and

it provides that any person who steals any goods of a cer-

tain value commits the crime of larceny in violation of that

statute. .

908. Now, a larceny is a theft. And a theft is defined as

the taking and carrying away of money or personal prop-

erty having some value from an out of the possession of

the owner with the intent to defraud or deprive him of it,

and to appropriate it to the use of the taker without excuse

or color of right.

16a

909. The first element embraced in the definition is the

taking and carrying away of personal property of another.

We are not concerned here with money, obviously.

910. The second element is the existence of a felonious

intent in the taker to deprive the owner of money or the

personal property permanently.

911. The third element is the lack of consent of the owner

of the property to the taking. The phrase “felonious in-

tent” as applied to larceny or theft simply means that the

taker has no color of right or excuse to perpetuate the act

of taking. Possession does not necessarily require that the

owner actually have the personal property in his hand or

in his person or in his pocket. It is in his possession if it

is at the time subject to his control.

912. So far as this crime is concerned, ownership in-

cludes the possession of the property which a person is

entitled to have for the time being.

913. Finally, you will remember I said to you that the

taking must be without color or excuse. That is to say,

the defendant must have taken the property with a wrong-

ful intent. If for example, he actually and honestly believes

under the circumstances of a given case that the money or

property was his own, no matter if he was mistaken, he

would not be guilty of a wrongful intent.

914. You will recall that the information states the value

of the personal property stolen. In the crime of theft or

larceny, it is necessary to prove the value of the property

taken. If you find that the defendant was guilty of the

crime of theft, and that the amount or value of the prop-

17a

erty stolen was as alleged in the information, when you

return to the courtroom and you are asked Whether you

find the defendant guilty as charged as to each éount, you

will answer guilty. But if you find he stole the property

but the value was not as stated in the information, your

verdict then would be guilty of theft of property of the

value of whatever value you find that value to be. And,

of course, if you find that he stolé property of no value,

then, of course, he would not be guilty of the crime of

larceny. :

915. Now, what a man’s purpose or intention or knowl-

edge has been is necessarily very largely a matter of in-

ference. In this case, the only way in which a Jury can

determine what a man’s purpose, intention or knowledge

was at any given time is by determining what that man’s

conduct was and what the circumstances were surround-

ing that conduct, and from those“circumstances and all

those facts infer what his purpose, intentign or knowledge

was. To draw such an inference is not only the priyilege

but also the duty of a jury, provided, of course, the infer-

ence drawn is a reasonable inference.

916. In this case it will be part of your duty to draw

all the reasonable inferences from the conduct of the de-

fendant in light of the surrounding circumstances as to

what purpose, intent or knowledge was in the mind of

each defendant at the various times in question.

917. Now, in connection with the charge of larceny in |

each of these informations, there is another statute relat-

ing to accessories to a crime which comes into play and

does not appear on the face of these informations but is

18a

nevertheless a statute that you must consider in reaching

your determination of guilt or innocence on each count.

This is Section 54-196 of the General Statutes, which reads

as follows:

918. “Any person who assists, abets, counsels, causes,

hires or commands another to commit any offense may be

prosecuted and punished as if he were the principal of-

fender.”

919. Now, in this case, I do not think there is any evi-

dence upon which the State could base a claim that these

defendants caused or hired or commanded Scofield or Ed-

wards to commit the larceny so that, you can dismiss from

your minds those three words. But that still leaves the

words “Any person who assists, abets or counsels another

to commit an offense may be prosecuted as a principal.”

920. The State does not claim in this case that the defen-

dants personally engaged in moving metal off of the own-

er’s premises, but it does claim that Edwards and Scofield

did, and that the defendant is chargeable as a principal

offender under the statute I have just read to you, because

the defendant in each case was an accessory under the

statute. If the defendant did any one of these things speci-

fied in the accessory statute as I have just explained it to

you, leaving out the three words “causes, hires or com-

mands,” he is in the eyes of the law just as guilty of the

crime charged as though he had directly committed it or

directly participated in its commission.

921. I want to particularly emphasize to you that the

statute does not connect the various things its specifies by

the word “and,” but instead it separates them by the word

19a

“or.” It reads: “Assists, abets or counsels.” The defen-

dant is guilty of the crime charged if he assisted in any

way in its commission, or if he abetted it or if he coun-

seled it. The words of the statute are clear, except per-

haps the word “abet,” spelled a-b-e-t. And here the word

means, did he encourage or incite the commission of this

crime. To find the defendant guilty, you must however,

decide that he did more than just passively acquiesce in

it or innocently perform certain acts which in fact did aid

in the commission of the offense. Unless there was a crimi-

nality of intent and an unlawful purpose in common with

the actual perpetration of the crime, he is not guilty under

the statute. If you find beyond a reasonable doubt that

he did any of these things specified in the accessory statute

with that criminal and common intent, he is just as much

guilty of the crime of larceny as though he had himself

committed it, and your verdict would be that he is guilty

of larceny. If you do not find that to be so beyond a rea-

sonable doubt, then he is entitled to an acquittal.

922. Every one is a party to an offense who actually

commits the offense or does some act which forms part of

the offense or directly or indirectly counsels any person

to commit the offense or do any act forming a part thereof.

So much for the accessory statute.

We come now to the statute relating to receiving stolen

goods. And I will use that short title to refer to that whole

statute. You will recall that I mentioned the statute on

larceny permits proof of the offense of receiving stolen

goods. And I will now read to you the language of Sec-

tion 53-65 of the General Statutes, which describes this

offense. It reads as follows:

20a

923. “Any person who receives and conceals any stolen

goods or articles knowing them to be stolen shall be prose-

cuted and punished as a principal, although the person

who committed the theft is not convicted thereof.”

924. What this states, as you can see, is that a receiver

and concealer of stolen goods who knows they are stolen

shall be punished as though he actually stole the goods him-

self in the first place, even though the person who in reality

committed the theft is not yet convicted of the offense.

925. The elements of the crime of receiving stolen goods

are as follows:

1. The personal property must have been stolen;

and ;

2. It must have been received by the defendant

with the knowledge that it was stolen; and

3. It must have been concealed; and

4. It must have been received and concealed with-

out color of right or excuse.

Of course, the State must prove all of these elements

beyond a reasonable doubt before the defendant can be

found guilty.

926. As to the first element, the property must have been

stolen. Stealing is the taking away of property from one

who owns or possesses it with the intent of depriving him

of it and converting to the takers own use without color of

right or excuse. As far as the offense of receiving stolen

goods is concerned, it does not matter who stole the prop-

erty or through how many hands it passed. All you need

to determine is that the property was stolen property.

Zla

927. Second, the stolen property must have been re-

ceived by the defendant with knowledge that it was stolen.

To receive means to take into one’s actual possession.

928. The State has offered direct evidence that the de-

fendant, when he received this property in each case, if

you find that he did receive it, knew that it was stolen.

The State has also offered circumstantial evidence, includ-

ing the conduct of each defendant when he received it and

immediately thereafter, from which you are asked to infer

that knowledge which claims you can and should do if you

decide from such evidence that the only reasonable con-

clusion to be drawn is that the defendant did know that

the property had been stolen. Thus the State claims and

has offered evidence, direct and circumstantial, to prove

actual knowledge on the defendant’s part that the prop-

erty was stolen. And if this evidence satisfies you beyond

a reasonable doubt, then you must find actual knowledge

did exist.

929. Third, you must be satisfied that, having received

the goods, knowing them to have been stolen, the defen-

dant concealed them. Now, conceal as used in this statute

has a broader meaning than that in which one ordinarily

might use the word, which is to hide. It, of course, in-

cludes hiding, but the requirement of concealment is met

if the defendant did anything which would make the dis-

covery or identification of the property more difficult.

930. As I have said, the word “conceal” is not to be

limited to the literal and technical construction of the word

“hiding.” It can include the handling of property in a

manner which would throw the owner off guard in his

22a

searching for it. It can include any conduct which will

assist the defendant in converting the property to his own

use and enjoyment, or which may hinder or prevent its

discovery by an owner, such as, for example, quickly dis-

posing of it, covering it in whole or in part, placing it

in any place where it is not likely to be seen, removing

any identification from the property. Hence you can un-

derstand that conceal as used in this statute includes a very

broad scope of conduct with reference to the stolen prop-

erty.

931. Finally, the State must prove that the defendant

acted without color of right or excuse. By this, I mean

that he must have acted with criminal intent. Here again,

the State has offered evidence, both direct and circum-

stantial, bearing on the question of the defendants’ intent

in each case. If you are satisfied beyond a reasonable doubt

that the defendants’ conduct established a criminal intent

on his part, the State has proved this element of the

charge. Intent is criminal if its object is to aid the thief

in any manner, whoever the thief may be. And it is crimi-

nal if it wrongfully seeks to deprive the true owner per-

manently of the property in question.

932. As in the case of larceny, you must also consider

the value of the property claimed to have been received

as stolen goods. If you find the defendant guilty of this

offense, when you return to the courtroom and you are

asked whether or not you find the defendant guilty of the

offense of receiving and concealing stolen goods knowing

them to be stolen, you will state that you do find the de-

fendant guilty of receiving stolen goods of the value of

whatever value you may find that to be if it is less than

23a

the amount stated in the information. If it is the same

amount as stated in the information, then you may simply

say so. And if there is no value proved to your satisfac-

tion under the law, you will render a verdict of acquittal.

933. Now, value as already indicated must be proved

under the offense of receiving stolen goods just as it does

under the larceny charge. The expressions “actual value,”

“fair market value” or “market price,” whether applied

to any article, means essentially the same thing. They

mean the price or the value of the article usually estab-

lished or shown by sales, public or private, in the way of

ordinary business. In this case, we are concerned with

the market value of the various items alleged in the State’s

information as having been stolen. Such value is a mat-

ter of opinion, and there is no rule of law that any par-

ticular method must be folowed to prove it.

934. We are, of course, concerned here with the value of

these items in terms of what a consumer such as Carpenter

Technology or any other consumer on the same level of ac-

tivity, of commercial activity, would be likely to pay for

such materials on the market. And their value would be

the price such a consumer would pay for each item on the

open market in the ordinary course of business during

the period of January and February of 1971.

935. One other thing on value. The State is not obliged

to prove the exact value of the property stolen as alleged

in the information. It is sufficient to prove a value in

excess of two thousand dollars, whatever that amount of

excess may be. If you find that the value is in excess of

two thousand dollars, that is as far as you need to go as to

value as to each count. If you find as to any count the value

24a

is less than two thousand dollars, then you will report

whatever lesser value you may find when you return your

verdict. And, of course, if you find there is no value, you

would have to acquit as to such count on which you so find.

936. Now, in this case, there is no evidence that at the

time of the defendants’ arrest, which occurred some six

months after January or February, 1971, there is no

evidence that either at the time of the arrest or thereafter

that there was any stolen goods in either defendants pos-

session. Ther< is, of course, evidence before you for your

consideration showing that certain articles of metal goods

were in defendants’ possession at or about the time alleged

in the four counts of the information, and that they were

stolen goods. And you must evaluate this evidence with all

of the other evidence in the case.

937. Now, the questions which you must decide are as

follows:

1. Is the defendant—and I refer to each defendant

separately—guilty of larceny as to one or more or all

of the counts in each case; or

2. Is the defendant guilty or receiving stolen goods

knowing them to be stolen as to one or more or all of

the counts in each case; or

3. Is the defendant not guilty of any offense as to

one or more or all of the counts in each case.

938. First, when I speak of the larceny counts, you must

keep in mind not merely the receiving stolen goods count,

you must keep in mind the aecessory statute. The accessory

statute affixes itself to the larceny count. The receiving

stolen goods charges, which are not alleged in the informa-

25a

tion but are nevertheless before you, do not become in-

volved with the accessory statute at all, and you can forget

the accessory statute as far as receiving stolen goods is

concerned. As I have previously mentioned to you, you

cannot find the defendant as to any one count guilty of

both larceny and of receiving stolen goods. As to each

count, it must be either one or the other or not guilty.

939. Now, neither defendant was ever present on the

Carpenter Technology premises. That is conceded by the

State. Nevertheless, the State does claim under the acces-

sory statute, which I explained to you before, that the

defendant assisted or abetted or counseled Edwards and

Scofield to commit the offense of larceny, and for this

reason the defendant is punishable as a principal offender

under the larceny statute as permitted by the accessory

statute. As to each count in the information, it is for you

to determine upon all of the evidence, both direct and

circumstantial, offered by either side whether or not the

defendant in question assisted or abetted or counseled

Edwards and Scofield prior to the time each theft occurred

by any words or act, such as advising them as to what

kinds of metals to steal, or in any other manner that you

may recall from the evidence. If you find from all of

the evidence that either or both defendants as to each

count did conduct himself with reference to that count in

the manner of an accessory, as already defined for you,

then you must find such -defendant or defendants guilty

of larceny as to that count. And the same is true of every

count in each information.

940. Of course, I remind you again that you should

consider each defendant separately and each count under

each information should be considered separately. If you

find as to any counts the defendant did not conduct himseif

26a

as an accessory before the offense, then as to that count

that defendant would be not guilty of larceny, and you

must then consider whether the defendant was guilty of

receiving stolen goods rather than larceny, as I defined

previously the offense of receiving stolen goods for you.

941. Because a defendant is charged with larceny, while

he may not be guilty of larceny, he may nevertheless be

found guilty of receiving stolen goods, provided the State

has met its burden of proof under the receiving statute as

I have explained it. If under the circumstances you find

the defendant guilty of receiving stolen goods as to one

or more or all counts, when called upon by the Clerk in

open Court to report your verdict as to each count, you

will say as to such count not guilty of larceny, but guilty

of receiving stolen goods of a value of whatever value you

will place upon the property. And, of course, if you find

the defendant as to each count is not guilty of larceny, and

that he is not guilty of receiving stolen goods as to such

count, you will return a verdict of not guilty as to both

charges as to such count.

27a

APPENDIX E

Exceptions to the Charge

979. The only other thing,—I think it is covered in my

motion—I do want to except to your Honor’s charging—

without arguing—charging on both receiving under 54-196.

The Court: We have been over this, Mr. Grudberg.

Mr. Grudberg: I just want to make sure.

980. The Court: I don’t want you to repeat yourself. It

is on the record. We have been over it at least twice and

more. Let’s not go over it any more. You have covered

it all on the record. You are going to have to raise the

question on the appeal if you ever go up on appeal. There

is no need to keep repeating yourself.

28a

APPENDIX F

Opinion and Judgment of the Supreme Court of

Connecticut, Reversing and Remanding to

the Superior Court

SUPREME COURT

NoveMBER TERM, 1974

State or Connecticut v. PETER CARBONE

SrarE or ConNECTICUT v. JAMES CARBONE

Substituted informations charging each defendant with

four counts of the crime of larceny, brought in the Su-

perior Court in Fairfield County; motions by the defen-

dants to suppress denied by the court, Levine, J.; trial in

each case to the jury before Saden, J.; verdict and judg-

ment in each case of guilty on all counts and appeal by

the defendants. Error in part; further proceedings.

Ira B. Grudberg, for the appellant (defendant) in the

first case.

Raymond W. Beckwith, with whom, on the brief, was

George N. Thim, for the appellant (defendant) in the

second case.

Joseph T. Gormley, Jr., chief state’s attorney, with

whom, on the brief, were Donald A. Browne, state’s at-

torney, and Richard F. Jacobson, assistant state’s attor-

ney, for the appellee (state) in both cases.

29a

MacDonatp, J. Each of the defendants was tried upon

a substituted information charging him with four counts

of larceny of personal property in excess of two thousand

dollars. The jury returned a verdict of “guilty as charged”

on each count as to both defendants. The defendants each

appealed and the appeals were combined by stipulation

of counsel. Prior to trial of the issues, the defendants filed

several similar motions and supplemental motions to sup-

press a receipt bearing the name “John Parks” which

had been obtained from the premises of Fairfield Scrap

Iron and Metal Company, hereinafter Fairfield Scrap, lo-

cated in Fairfield. A hearing was conducted on these mo-

tions and they were denied. In their assignments of errors

the defendants have raised a multitude of issues con-

cerning both the denial of the motions to suppress and

the conduct of the trial, but our ruling with regard to the

motions to suppress obviates the necessity of discussing

the issues raised with regard to the trial.

The finding with respect to the motions discloses the

following facts: In July of 1971, Detective Robert J. Caf-

ferty of the Bridgeport police department became involved

in an investigation of thefts of precious metals from the

Carpenter Technology Corporation, hereinafter Carpenter,

in Bridgeport. On September 2, 1971, Cafferty and Robert

J. Magee, an employee of Carpenter, applied for and ob-

tained a search and seizure warrant for the premises of

Fairfield Scrap. The warrant commanded a search for a

variety of named precious metals, and other items em-

ployed in the theft of those metals. Prior to making ap-

plication for the warrant, Cafferty had been informed by

Albert Edwards and Russell Scofield, the men admittedly

directly responsible for the thefts, that the name “John

Parks” had been used on one of the receipt slips signed at

30a

Fairfield Scrap where they claimed to have delivered the

stolen items. Through an oversight, Cafferty failed to

seek the inclusion of the “John Parks” receipt or, indeed,

of any slips or receipts involving Scofield, Edwards or

“John Parks,” in the list of items authorized to be seized.

The warrant was executed on September 2, 1971. With

Cafferty and Magee at the time of the execution of the

warrant were Henry Popowski, an employee of Carpenter,

who was present in order to identify items that might be

found belonging to Carpenter, and Alfred Constantino, a

special investigator for Federal Insurance Company of

New York, who was aiding and assisting Detective Caf-

ferty in the investigation and was present during the

search in connection with Carpenter’s claim with regard

to the loss of the metal. Patrolman John Sleeper, a photo

technician of the Bridgeport police department, Detective

Stephen Zadrovitz and Sergeant Edward Targowski of the

Fairfield police department, and Special Agent Edward

Buffum of the F.B.I. also assisted Cafferty in the search.

None of the law enforcement officers was in uniform.

Magee, Popowski, Constantino and Patrolman Sleeper

accompanied Detective Cafferty, in his police car, to Fair-

field Scrap, and there was a general conversation en route

about whether they might find anything with Edwards’

name or Scofield’s name on the Fairfield Scrap premises.

Cafferty told the others not to search for anything, but that

if they happened to see anything with those names on it,

to let him know. He also mentioned that there might be

paper work or slips. There also was a discussion concern-

ing “John Parks,” or slips possibly bearing that name.

Cafferty instructed the others that they were not allowed

to search for slips with the name “John Parks” because

such items were not named in the warrant. He told them

that if they ran into the names Scofield, Edwards or “John

Parks” it could be meaningful, and he admonished them to

“keep their eyes open” for those names and to tell him if

they saw those names at all. Popowski understood

Cafferty’s advice to mean that if he saw the names Scofield,

Edwards or “John Parks” on a piece of paper, he should

say something, but that it was not intended that he actually

go and look for them. No indication was given to Popowski

that the name “John Parks” might be found on a receipt of

Fairfield Scrap.

Fairfield Scrap is a sole proprietorship owned by James

Carbone, and Peter and Frank Carbone are the sons of

James and employees of Fairfield Scrap. The Carbones are

hereinafter individually referred to as James, Peter and

Frank and collectively as the Carbones. Upon arrival at

Fairfield Scrap, Sergeant Targowski sought out Peter and

informed him that they were present with a search warrant,

and read to him from the warrant the items for which they

were searching. Peter threw up his hands and said: “Go

ahead and look.” He and Targowski then accompanied

Cafferty inside the main building where Cafferty began

looking through closets for items named in the warrant.

James arrived a few minutes later. Targowski had the

warrant in his hand at this time and showed it to James

but he could not be sure if he read any portions of it to

James. James asked Targowski some questions, but Tar-

gowski referred him to Cafferty, since Cafferty was familiar

with the warrant. James never took the warrant and read

it. Targowski then returned the warrant to Cafferty, who

went upstairs to the rear office and gave Peter and James

the Miranda warnings. Cafferty advised Peter that he was

present legally for a search and seizure, and Peter did not

at that time ask Cafferty to read the warrant in its entirety.

32a

Along with the police officers, the civilians who had

arrived with them went around the premises assisting the

officers, since they were familiar with the items being

sought. The men searched the premises and the building.

At various times during the search, Cafferty was accompa-

nied by the civilians, Popowski and Magee, Patrolman

Sleeper, Sergeant Targowski and Detective Zadrovitz.

Nothing was found on the premises that was listed in the

warrant.

At some time after Cafferty arrived, Constantino asked

him whether he could look at the sales receipts, paper slips

or sales slips of Fairfield Scrap. Cafferty told Constantino

that he could do so only if he obtained the voluntary per-

mission of the Carbones. In Cafferty’s presence, Constan-

tino asked Frank if he could look at the sales receipts and

slips. Cafferty said nothing, although he knew that a pos-

sible result of Constantino’s question would be that Con-

stantino would look through the slips and that if he found

anything with the names Scofield, Edwards or “John Parks”

on it, he would show it to Cafferty. In reply to Constan-

tino’s request, Frank asked James, and James replied:

„Well, I see no reason why he shouldn't see them. Fine, let

him have them.” Frank indicated to Constantino that he

could see the business slips, and James then asked Frank:

“Where do we keep them?” Frank produced the slips and

Cafferty then left the area. Popowski and Constantino

looked through the records although neither man had asked

the Carbones whether Popowski could inspect these items.

Neither man had informed the Carbones who he was or why

he was present. Neither man had sought the permission of

the Carbones to be on the premises. Constantino considered

himself validly there under the terms of the warrant and

at the invitation of the police. In viewing the slips, Con-

33a

stantino and Popowski were looking for the names Scofield,

Edwards and “John Parks.”

Popowski came across a slip signed by “John Parks”

and then went outside and told one of the police officers.

Cafferty was advised of the discovery and returned to the

scale room. When he arrived back no police officers were

present. Cafferty asked Frank in James’ presence if he

could have the slip or a copy of it. Frank agreed, but said

that he would have to have a copy of it for the business.

Cafferty took the original and one photostatic copy and

left a photostatic copy with the Carbones. The slip was

discovered approximately an hour or an hour-and-a-half

after the search was begun. After the slip was discovered,

Constantino did not ask the Carbones whether he could

show the slip to the police. The Carbones were not asked

to sign a consent to search form nor were they advised that

the seizure of the slip was beyond the scope of the warrant.

Cafferty never discussed the presence of the civilians with

the Carbones nor did he seek their permission to have Con-

stantino on the premises. Targowski saw Constantino and

Popowski going through the slips and did not ask what they

were doing, although he was aware that there was no

authority under the warrant to search for or through said

items.

Constantino was a New York detective for eighteen years

prior to joining Federal Insurance Company of New York.

Cafferty had arranged to invite Constantino so that he

could aid and assist the police, if he observed or noted any-

thing, and as another person to look around, although Con-

stantino had no police powers. Popowski was asked by

Constantino to help him look through some records. He

handed Popowski a pile of slips and asked him to look

through them for the names Scofield, Edwards or “John

34a

Parks.” Peter was not in the room when the slip was dis-

covered, but accompanied Targowski to make the photo-

static copies upstairs.

The “John Parks” receipt was admitted at the trial of

Peter and James. The record discloses that the state’s

case in the main part hinged upon the credibility of the

witnesses Scofield and Edwards, and the “John Parks” slip

appears to have been a determinant in the jury’s considera-

tion of their credibility. Thus, if illegally seized, its admis-

sion was highly prejudicial to the defendants.

In its memorandum on the defendants’ motions to sup-

press, the court ruled that Peter had no standing to contest

the seizure, that a determination of the validity of the

search warrant was unnecessary since the court found that

the seizure was grounded upon consent, that the consent was

voluntary, and that the seizure was not subject to challenge

under the fourth amendment to the United States constitu-

tion or § 7 of article first of the Connecticut constitution,

since it was effected by private citizens.

On the question of the standing of Peter the court ruled:

“The evidence discloses that Peter had no interest in the

premises searched, or the slips voluntarily turned over to

Constantino and Popowski, since the premises and its con-

tents were owned solely by James Carbone. He is therefore

not a person aggrieved by the search which took place

here.”

The protection of the fourth amendment extends to com-

mercial premises. Mancusi v. DeForte, 392 U.S. 364, 367,

88 S. Ct. 2120, 20 L. Ed. 2d 1154; See v. City of Seattle, 387,

U.S. 541, 87 S. Ct. 1737, 18 L. Ed. 2d 943. Furthermore, the

fourth amendment does not shield only those who have title

to the searched premises. Mancusi v. DeForte, supra, 368.

One with a possessory interest in the premises might also

35a

have a standing. Jones v. United States, 362 U.S. 257, 80

S. Ct. 725, 4 L. Ed. 2d 697. Further, anyone legitimately on

the premises where a search occurs may challenge its legal-

ity when its fruits are proposed to be used against him.

Jones v. United States, supra, 267. See State v. Castle, 161

Conn. 570, 572, 287 A.2d 744: State v. Oliver, 160 Conn. 85,

92, 273 A.2d 867, cert. denied, 402 U.S. 946, 91 S. Ct. 1037,

29 L. Ed. 2d 115. The United States Supreme Court has

steadfastly recognized the principle that fourth amendment

rights are personal rights which may not be asserted

vicariously. Alderman v. United States, 394 U.S. 165, 89

S. Ct. 961, 22 L. Ed. 2d 176; Simmons v. United States, 390

U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247; Jones v. United

States, supra. However, in Brown v. United States, 411

U.S. 223, 228, 93 S. Ct. 1565, 36 L. Ed. 2d 208, its most

recent pronouncement on the issue of standing, the court

clearly reaffirmed the principle that presence on the

premises at the time of the search and seizure is sufficient

to confer standing, and summarized its holding (p. 229) as

follows: “In deciding this case, therefore, it is sufficient to

hold that there is no standing to contest a search and

seizure where, as here, the defendants: (a) were not on the

premises at the time of the contested search and seizure;

(b) alleged no proprietary or possessory interest in the

premises; and (c) were not charged with an offense that

includes, as an essential element of the offense charged,

possession of the seized evidence at the time of the contested

search and seizure. The vice of allowing the Government

to allege possession as part of the crime charged, and yet

deny that there was possession sufficient for standing pur-

poses, is not present.”

Peter had been present on the premises during the entire

search. Although the record does not indicate that he was

in the scale room at the time of the discovery of the “John

36a

Parks” slip, he did accompany Targowski to photostat the

slip. The premises of Fairfield Scrap is comprised of an

outside storage area, a main building, and several shacks.

The warrant authorized a search of this entire area. The

finding discloses Peter’s presence in the main building at

several points prior to and after the seizure and this is

sufficient to bring him within the purview of Jones and

Brown. The court instead, ruled that the search was not

directed at Peter, and that since James was the sole pro-

prietor of Fairfield Scrap, Peter did not have a sufficient

possessory interest under Jones to have standing. We can-

not agree with either ruling. When Sergeant Targowski

entered the premises he sought out Peter and read him the

warrant. Detective Cafferty advised Peter and James of

their constitutional rights. In paragraph four of the affi-

davit of Detective Cafferty and Robert Magee submitted in

support of their application for the search warrant, which

affidavit is printed in full in an appendix to Peter’s brief,

and which was made part of the finding, reference is made

to the sworn statements of Scofield and Edwards, in which

they state that the stolen items were received and accepted

by Peter. The investigation certainly had focused upon

Peter at this time, and the fact that the Warrant com-

manded a search of the premises and did not expressly

name Peter in its command is no indication that the search

was not directed at him. The warrant sought the seizure of

items concerning which the state was to contend, at the trial,

that Peter had sufficient control over their appropriation to

be held as a principal in their theft.

The Supreme Court in Jones (p. 266) declined to impose

upon the law of search and seizure “distinctions . . . only

of gossamer strength” between the principles of private

property law such as “invitee,” “licensee,” “guest” and

37a

“lessee,” but conferred standing on those legitimately pres-

ent on the premises where a search occurs, stating (p. 267):

“No just interest of the Government in the effective and

rigorous enforcement of the criminal law will be hampered

by recognizing that anyone legitimately on premises where

a search may challenge its legality by way of a motion to

suppress, when its fruits are proposed to be used against

him. This would of course not avail those who, by virtue

of their wrongful presence, cannot invoke the privacy of

the premises searched. As petitioner’s testimony estab-

lished . . . consent to his presence . . he was entitled to

have the merits of his motion to suppress adjudicated.”

Thus, the denial of sufficient possessory interest in the

premises in Peter, based on a finding that James was sole

proprietor of the company, is far too strict and creates a

standard in contravention of Jones and Brown. James had

standing to contest the search warrant.

The denial of standing to Peter, in and of itself, does not

necessitate a vacation of the conviction if the issues that he

sought to raise are sufficiently presented in the record to

allow this court to rule upon them. Jones v. United States,

362 U.S. 257, 272, 80 S. Ct. 725, 4 L. Ed. 2d 697. However,

preliminary to its ruling on the question of consent, the

court declined to entertain the defendants’ challenge of

the validity of the search warrant. In State v. Memoli, 159

Conn. 433, 436, 270 A.2d 543, this court reiterated the

standards by which the voluntariness of a claimed consent

is to be judged: “Not every search made without a warrant

is unlawful. A search which is made with the full consent

of the defendant may be lawful provided the state affirma-

tively establishes the consent is voluntary. State v. Miller,

152 Conn. 343, 347, 206 A.2d 835. The question is one of fact

to be decided by the court upon the evidence and such rea-

38a

sonable inferences as can be drawn from it. State v. Hanna,

150 Conn. 457, 471, 191 A.2d 1°4. All of the surrounding

circumstances are pertinent to the question of voluntari-

ness. State v. Hassett, 155 Conn. 225, 230, 230 A.2d 553.”

See also Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct.

2041, 36 L. Ed. 2d 854. .

The illegality of a warrant under the authority of which

entry is gained is a factor to be considered on the question

of voluntariness. Bumper v. North Carolina, 391 U.S. 543,

549, 88 S. Ct. 1788, 20 L. Ed. 2d 797; Earls v. State,

Tenn. , 496 S.W.2d 464. The state has the burden of

proving that consent is not tainted by reason of the primary

illegality. Schneckloth v. Bustamonte, supra; Wong Sun v.

United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441.

The primary attack upon the search warrant involved here

is that the information contained in the affidavit, relating

to probable cause to believe that the items sought are upon

the premises, is stale. Peter has printed the search warrant

application in an appendix to his brief and, as an exhibit

at the hearing, it was made part of the finding without

having to be printed, and thus may be considered. Para-

graph one of the application indicates that Seofield and

Edwards were not apprehended until July 14, 1971. Para-

graph four of the affidavit reveals that Scofield and Ed-

wards made deliveries of certain precious metals, stolen

from Carpenter, to Peter on the premises at Fairfield

Serap, on four dates: January 24, 1971, another unknown

date in January, 1971, February 11, 1971, and February 20,

1971. In paragraph seven Detective Cafferty, one of the

affiants, states that the items sought are “reported to be on

[sic] the current custody and care of the premises of

Fairfield Scrap Iron & Metal.” No indication is given of the

source of this report or of its reliability.

—

39a

“The recital [of the underlying circumstances in the affi-

davit] must be of facts so closely related to the time of the

issuance of the warrant as to justify a finding of probable

cause at that time.” State v. DeNegris, 153 Conn. 5, 8-9, 212

A.2d 894, citing Sgro v. United States, 287 U.S. 206, 210,

53 S. Ct. 138, 77 L. Ed. 260. “The facts and circumstances

set forth in an affidavit submitted in support of the issuance

of a search warrant should be current and timely, so as to

indicate that the premises, person, place or thing to be

searched PRESENTLY contains the fruits of the crime.

... Markle, The Law of Arrest and Search and Seizure,”

p. 223. An exception to this rule is where the court finds

facts indicating the likelihood that there is a continuing

criminal activity. United States v. Mustone, 469 F.2d 970

(Ist Cir.) ; United States v. Johnson, 461 F.2d 285 (10th

Cir.); State v. Austria, Haw. , 524 P.2d 290;

Johnson v. State, 14 Md. App. 721, 288 A.2d 622; note, 100

A.L.R.2d 525, 542; Markle, supra, 226.

The facts indicating this continuity must satisfy the same

requisites of reliability as other facts within the affidavit

that purport to evidence probable cause. An affidavit that

merely states the affiant’s belief that there is cause to search

without stating facts upon which that belief is based does

not establish probable cause. Nathanson v. United States,

290 U.S. 41, 54 S. Ct. 11, 78 L. Ed. 159. Thus the unsup-

ported observation by Detective Cafferty that the items are

“reported to be on [sic] the current custody and care of the

premises” is insufficient to establish eontinuity, nd, thus,

we are unable to find that there is a substantial basis for the

issuing judge’s conclusion that probable cause presently

existed. State v. DeNegris, supra. A lapse of just over six

months occurred between the latest noted delivery to Fair-

field Serap and the issuance of the warrant. By their testi-

“Oa

mony at the trial Scofield and Edwards indicated that the

Carbones did not intend to keep the stolen items on their

premises very long. In fact, with regard to the Hanna

nickel named in the command of the warrant, the Carbones

indicated it was worthless and they would have to bury it.

There clearly was merit to the claim that the warrant was

stale and the court erred in failing to consider this circum-

stance in determining the issue of consent.

The court next concluded that the search and seizure of

the “John Parks” slip was conducted by private citizens and

was thus not within the purview of the fourth and four-

teenth amendments. Despite this conclusion, the court went

on to rule that there was a voluntary consent to this seizure,

a ruling the necessity for which would appear to have been

obviated by its conclusion presently under consideration.

Neither the state nor counsel for Peter has briefed this

issue although the consent issue was briefed extensively by

all parties. If, in fact, this had been a seizure by a private

citizen not acting in concert with or as an agent of the

police, nor assisting them at their direction, its validity

would not have hinged upon the authority of the warrant

nor upon the validity of any purported consent. It simply

would have been outside the purview of the protections of

the constitution; and, although it may have been obtained

as a result of a trespass actionable in the civil courts, its

use in criminal prosecutions could not have been challenged.

For the reason, seizures of this nature must be scrutinized

carefully, for it is only the autonomous private seizure,

free from police institgation and concert, that is expected

from the proscriptions of the fourth amendment.

The rule of admissibility of the fruits of private seizures

stems from Burdeau v. McDowell, 256 U.S. 465, 474-76, 41

S. Ct. 574, 65 L. Ed. 1048 and it’s the rule in most jurisdic-

4la

tions that the exclusion will apply to evidence obtained by

a private citizen only where the police through suggestion,

order or request, made the private person their agent for

purposes of criminal investigation. See Corngo v. United

States, 367 F. 2d 1 (9th Cir.) ; Moody v. United States, 163

A.2d 337 (D.C. App.); Machlo v. State, 248 Ind. 218, 295

N.E.2d 762; Thacker v. Commonwealth, 310 Ky. 702, 221

S.W.2d 682; State v. Scrotsky, 39 N.J. 410, 189 A.2d 23;

note, A.L.R.3d 553, 590. Courts must, therefore, be con-

cerned with the actuality of the share by the government

agent in the total enterprise of securing and selecting evi-

dence by other than sanctioned means. Note, 36 A.L.R.3d

553, 590, and authorities cited therein.

The portions of the finding relevant to this question indi-

cate that Constantino and Popowski were present at the

invitation of the police and under the authority of the war-

rant. They were instructed not to search but to disclose

anything bearing the name Edwards, Scofield or “John

Parks.” They were further instructed that in order to

examine items not named in the warrant they would have

to seek permission from the Carbones. It was never indi-

cated to the Carbones that they were not police officers.

Their express purpose ir accompanying the police was to

assist the officers in identifying items named in the warrant,

and they accompanied the officers in searching various por-

tions of the premises. Upon discovering the “John Parks”

slip they immediately sought out Detective Cafferty, who

then negotiated with the Carbones for the original and a

copy of the slip. These men at all times were assisting and

acting at the instigation of the executing officers. They were

present at the invitation of the police and the manner and

scope of their explorations were dictated by the police. It

was an enterprise of mutual assistance, and the actions of

42a

Popowski and Constantino, thus, must come within the

countenance of the fourth amendment.

The following language from the United States Supreme

Court’s most recent annunciation on the issue of consensual

searches is pertinent to the ultimate determination whether,

upon all the circumstances, the consent herein can be

deemed to have been voluntarily given: “(t]he Fourth and

Fourteenth Amendments require that a consent not be

coerced, by explicit or implicit means, by implied threat or

covert force. For, no matter how subtly the coercion were

applied, the resulting ‘consent’ would be no more than a

pretext for the unjustified police intrusion against which

the Fourth Amendment is directed.” Schneckloth v. Busta-

monte, 412 U.S. 218, 228, 93 S. Ct. 2041, 36 L. Ed. 2d 854.

In summary, it was error for the court to deny the de-

fendants’ motions to suppress without considering all of

the circumstances surrounding the purported consent to

search, including any question as to the invalidity of the

search warrant itself. “[I]f under all the circumstances it

has appeared that the consent was not given voluntarily—

that it was coerced by threats or force, or granted only in

submission to a claim of lawful authority—then we have

found the consent invalid and the search unreasonable.”

Schneckloth v. Bustamonte, supra, 233. Since it is obvious

from the record that this error was prejudicial to the de-

fendants, it is not necessary to consider the assignments of

error directed to the trial.

There is error, the judgement is set aside in each case

and the cases are remanded to be proceeded with in accord-

ance with this opinion.

In this opinion the other judges concurred.

43a

APPENDIX G

Joint Memorandum of Decision of Judge Levine

of August 1, 1975

These matters have been remanded to this court to be

proceeded with in accordance with the Supreme Court's

opinion: State v. Carbone, Conn. (36 Conn. L.J., No. 37,

pg. 5, 10). The remand is for the purpose of having this

court determine whether the search warrant was “stale”

and, therefore, invalid and its effect on the respective de-

fendants’ motions to suppress which the court had previ-

ously denied. “In summary, it was error for the court to

deny the defendants’ motions to suppress without consider-

ing all of the circumstances surrounding the purported

consent to search, including any question as to the invalidity

of the search warrant itself. [If under all the circum-

stances it has appeared that the consent was not given

voluntarily—that it was coerced by threats or force, or

granted only in submission to a claim of lawful authority—

then we have found the consent invalid and the search

unreasonable.’ Schneckloth v. Bustamonte, supra [412 U.S.

218, 228, 93 S. Ct. 2041, 36 L.Ed.2d 854], 233.” State v.

Carbone, supra, p. 10.

The investigation of thefts from the Carpenter Steel

Company began in July of 1971 and continued into the

month of September, 1971. The search warrant for the

premises of Fairfield Scrap was issued on September 2,

1° 1. The affidavit attached to the search warrant set forth

that there had been several thefts of metals and apparatus

for moving the metals during the months of January and

February and that in July the “thieves” were apprehended

in the act in a subsequent theft from the Steel Company and

44a

it related that on the occasions of the takings in January

and February, the metals were delivered to the defendants.

The items to be searched for included in the warrant were:

“a. Precious nickel cathoes in pallet form stamped with

the initials INCO.

b. Copper inserts, square with rounded corner, ranging

in weight from 2,500 to 4,000 Ibs.

e. Braided cable chain with bull ring and L hooks for

lifting inserts.

d. Heavy link chain with oval bull ring.

e. Gray Tarpaulin canvas, approximately 6’ x 12’, rope

pulls at both ends.

f. Hanna Nickel described as small ingot form rectan-

gular in shape, approximately four to five inches

thick, five to six inches wide, thirty inches long, with

weight of approximately fifty pounds each.”

At issue is the suppression of a receipt-slip bearing the

name “Parks” found on the premises and which was not

one of the items described in the search warrant. The affi-

davit accompanying the search warrant stated factually

that two employees of the Steel Company caught in the act

of larceny on July 14, 1974, admitted in early August to

taking metals and the apparatus for handling of those

metals, which would include the braided cable chain with

bull ring (c), the heavy link chain (d), and the gray tar-

paulin (e), three of the named six items. The other items,

(a), (b), and (f), were the stolen metals taken in January

and February. The act of larceny in July put the Steel

Company on notice that the earlier larcenies had been

committed and it was at that point that the investigation

45a

began, resulting in the September 2, 1974 search warrant

and search. The warrant was issued about thirty days after

the police secured the information from the “two thieves”

that these metals and other items were sold to the defen-

dants and as a result of which, the investigation was begun

and continued up to September 2, 1974.

The general rule is to the effect that the facts in an

affidavit for a search warrant should provide the basis for a

finding of probable cause that named items are on the

premises at the time of the intended search.. . . it is mani-

fest that the proof must be of facts so closely related to the

time of the issue of the warrant as to justify a finding of

probable cause at that time. Whether the proof meets this

test must be determined by the circumstances of each case.”

Sgro v. United States, 287 U.S. 206, 210-11. “The recital

must be of facts so closely related to the time of the issuance

of the warrant as to justify a finding of probable cause at

that time.” State v. DeNegris, 153 Conn. 5, 8-9. Three of

the items included in the search warrant, the braided cable

chain (e), the heavy link chain (d), and the gray tarpaulin

(e), are used in the handling and moving of metals and

are not ordinarily bought and sold as marketable items in

the defendant’s business. Since they make handling of

metals easier and more efficient, there is every reason to

believe that they would be kept on the premises where they

could be made use of. The first knowledge of their pres-

ence on the defendant’s premises was when the larcenists

made their statements in early August and Sergeant Caf-

ferty’s statement that there was cause to believe that these

three items were there had a reasonable basis. At the hear-

ing on the motions to suppress, this court had no testimony

from the defendants or Scofield or Edwards as to what the

defendants intended to do with the items, testimony which

46a

came out on the subsequent trial and which the Supreme

Court considered in reaching its decision, and no finding

was made to that effect by this court. As to the other three

items, nickel cathoes (a), copper inserts (b), and Hanna

nickel (f), the possibility existed that they were still on the

premises, since, as in every business, their sale depended on

the market price of those items and the desire of the owners

to sell at the current price or to wait for a higher one. The

rule is that in each case the observations stated in the affi-

davit must support a reasonable belief that the material in

question is on the premises. Schoeneman vs. United States,

317 F.2d 173. See Annotation 100 A.L.R. 2d 525, 534. “The

question of the staleness of probable cause depends more

on the nature of the unlawful activity alleged in the affi-

davit than the dates and times specified therein.” United

States v. Harris, 482 F.2d 1115, 1119 (1973). The nature

of the property to be seized is important. United States v.

Johnson, 461 F.2d 285. State v. Kasold, 110 Ariz. 563. State

v. Tella, 321 A.2d 87. Also important is the mobility of the

property. State v. Hoffman, 516 P.2d 84. Here three of the

items, the three used for handling metal, were of such a

nature that use of them could be made on the premises and

would lead to a conclusion that they would have remained

there inasmuch as it would be natural to keep them where

there was constant need for them. The affidavit sets forth

a continuous course of criminal conduct in which the lar-

cenists stole the materials and sold them to the defendants

during the months of January and February and further

establishes a larceny in July when the perpetrators were

caught in the act, which, of course, prevented delivery of

the materials. Such a continuous course of action lessens

the importance of the time lapse. United States v. Johnson,

supra. The facts stated in the affidavit of September 2,

47a

1974, provided the basis for a belief that the three items

used for handling metals, (c), (d), and (e), were currently

on the premises and the basis for belief of the reasonable

probability that the metals were also there.

The remaining issue requiring the decision of the court

is on the question of the voluntariness of the consent to

search for the receipt-slip. “Not every search made without

a warrant is unlawful. A search which is made with the full

consent of the defendant may be lawful provided the state

affirmatively establishes that the consent is voluntary.”

State v. Memoli, 159 Conn. 433, 436. State v. Miller, 152

Conn. 343, 347. . The question is one of fact to be

decided by the court upon the evidence and such reasonable

inferences as can be drawn from it. State v. Hanna, 150

Conn. 457, 471, 191 A.2d 124. All of the surrounding cir-

cumstances are pertinent to the question of voluntariness.

State v. Hassett, 155 Conn. 255, 230, 230 A.2d 553.’ See

also Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct.

2041, 36 L.Ed.2d 854.” State v. Carbone, supra, 8. Where

a search is conducted without a warrant the burden is on

those seeking exemption from the requirements of a war-

rant to demonstrate justification for it. United States v.

Jeffers, 342 U.S. 48, 51. Consent to a search, regarded as a

waiver of constitutional protection, must be voluntary and

affirmatively established by the State. State v. Miller,

supra, 347. See Johnson v. Zerbst, 304 U.S. 458, 464; United

States v. Wade, 388 U.S. 218; United States ex rel. Hollo-

way v. Reincke, 229 F.Supp. 132, 137. Where consent is

established, the product of the search is admissible in evi-

dence and the burden of establishing the voluntariness of

that consent is on the State, Pekar v. United States, 315

F.2d 319; United States v. Smith, 308 F.2d 657; State v.

Hanna, supra. See State v. Collins, 150 Conn. 488; United

48a

States v. Thompson, 356 F.2d 216.“ [The Fourth and Four-

teenth Amendments require that a consent not be coerced,

by explicit or implicit means, by implied threat or covert

force. For, no matter how subtly the coercion were applied,

the resulting ‘consent’ would be no more than a pretext for

the unjustified police intrusion against which the Fourth

Amendment is directed.” Schneckloth v. Bustamonte, supra,

228. When the officer arrived on the Carbone premises,

Sergeant Targowski displayed the warrant to the defendant

Peter Carbone, advised him of his purpose for being on the

premises, and allowed him to read the warrant. The items

described in the warrant were never found; however, some

time after the searchers arrived one of them, Constantino,

a special insurance investigator, asked Sergeant Cafferty if

he could look at the sales receipts, paper slips, or sales slips

of the company. He was told by Cafferty that he could do

so only if he obtained the voluntary permission of the

defendants, Carbones. With Cafferty present, Constantino

asked Frank Carbone, a son of the defendant James Car-

bone, who was also present, and an employee of the com-

pany, if he could look at the sales receipts and slips. In

reply to that request, Frank asked the defendant James,

who replied, “Well I see no reason why he shouldn’t see

them. Fine let him have them.” Frank told Constantino

that he could see them and the defendant James asked

Frank, “Where do we keep them?” Frank produced the

slips; Cafferty left the office area; and Constantino, helped

by Popowski, an employee of the Steel Company, went

through the slips and found one with the name “Parks” on

it. That slip was turned over to Cafferty who asked Frank,

in the presence of the defendant James, if he could have the

slip or a copy of it. Frank agreed, without objection from

the defendant James, and Targowski accompanied by the

49a

defendant Peter, went upstairs and prepared two photo-

static copies of the receipt. Cafferty gave a receipt for the

slip, which was signed by Frank and the defendant James,

and took with him the original and one photostat. The

members of the search party knew that receipts, slips, and

papers were not included in the search warrant and that

consent was needed to search for them. The conversation

between the Carbones and Constantino indicates that per-

mission was sought and voluntarily given. The defendant

James, the sole proprietor of the company, by his expres-

sion that there was no reason to keep the slips from Con-

stantino, indicated his willingness and again indicated his

willingness by asking where they were kept so that their

production would be aided. To go further, when Cafferty

asked for the slip or photostats of it, he indicated his vol-

untariness through sitting in the presence of Frank, who

agreed, and by allowing the defendant Peter to assist in

the making of the photostats and by signing the Cafferty

receipt. By his expressions and his actions, he indicated

the voluntariness of his consent, as did his son Frank and

defendant-brother Peter, his employees.

It is clear from a reading of Schneckloth that knowledge

of the right to refuse to allow the search is not determina-

tive of the voluntariness of the consent but is one factor to

be considered with all the circumstances or that it is invol-

untary unless it could have been given in the absence of

official inquiry (search warrant). In considering some of

the relative factors set forth in that case, all the Carbones

were adults, who were operating a business, who had been

advised of their constitutional rights by the officers, and who

gave their consent within a short period of time after the

subject of the slips was first raised. See United States ex

rel. Combs v. LaVallee, 417 F.2d 523 (2d Cir.); United

50a

States v. DeMarco, 488 F.2d 828, 830 (2d Cir.); United

States v. Alloway, 397 F. 2d 105, 108 (6th Cir.) ; Hoover v.

Beto, 467 F.2d 516 (5th Cir.). Bumper v. North Carolina,

391 U.S. 543, upon which the defendants rely, is distinguish-

able on the facts. In that case the person giving the permis-

sion was an elderly widow; here each defendant and the

son Frank were adult businessmen. Of importance is the

rule that employees, such as Frank and the defendant

Péter, who possess common authority over premises or

effects, may give consent for a person who shares the same

authority. United States v. Matlock, 415 U.S. 164, 170.

“Consent to a search is effective when given by one whose

right to occupancy or possession is at least equal to that of

the person contesting the search.” United States v. Gargiso,

456 F. 2d 584, 586. United States v. Grigsby, 367 F.Supp.

900, 902; Frazier v. Cupp, 394 U.S. 731. The actions of

Frank and Peter, relatives and employees, bound the

defendant James and the actions of the defendant James

bound the defendant Peter. Under all the circumstances,

the consent for the search for the slip was not expressly

or impliedly compelled or coerced by the search warrant,

the search, or the search party’s presence on the premises;

consent was freely and voluntarily given.

The motions to suppress and for the return of the slip

should be denied.

Irving Levine, J.

5la

APPENDIX H

Opinion and Judgment of the Supreme Court of

Connecticut, Affirming the Judgment of

the Superior Court

SUPREME COURT

Ocroszr Trax, 1976

Substitution Opinionꝰ

State or Commsoncur v. Peter CaRBone

State or Connecticut v. James Carpone

= C. J., Loiselle, Bogdanski, Longo and MacDonald,

— * October 19, 1976—decision released January 18,

Separate informations charging each defendant with four

counts of the crime of larceny, brought to the Superior

Court in Fairfield County, motions to suppress denied,

Levine, J., and jury trial before Saden, J.; verdicts and

judgments of guilty on all counts and appeal by the defen-

dants to the Supreme Court, which set aside the judgments

and remanded the cases for further proceedings in accord-

ance with its opinion; on remand, the Superior Court,

Levine, J., denied the motions to suppress; Tierney, J.,

upon motion by the state, ordered the judgment in each

case reinstated, from which decision the defendants again

appealed to the Supreme Court, which granted a joint mo-

tion of the parties for reargument. No error.

»The opinion appearing in today’s Law Journal is a substitute

for the opinion in State v. Carbone which appeared in the Law

Journal of March 11, 1975.

52a

Ira B. Grudberg, with whom was Mari-Jo Scopac, for

the appellant (defendant Peter Carbone).

Raymond W. Beckwith, for the appellant (defendant

James Carbone).

Joseph T. Gormley, Jr., chief state’s attorney, with whom

was Robert E. Beach, Jr., assistant state’s attorney, for the

appellee (state).

LolskLLx, J. Prior appeals in these cases were decided

by this court in the November term of 1974.“ The opinion

does not appear in the Connecticut Reports. So that our

recital of various facts from the finding shall not be inter-

preted as being, in any respect, different from those facts

considered in the prior decision, the entire discussion rela-

tive to the finding of facts in the prior decision is included

in the footnote.?

136 Conn. L. J., No. 37, p. 5.

* The finding with respect to the motions discloses the following

facts: In July of 1971, Detective Robert J. Cafferty of the Bridge-

port police department became involved in an investigation of

thefts of precious metals from the Carpenter Technology Corpora-

tion, hereinafter Carpenter, in Bridgeport. On September 2.

1971, Cafferty and Robert J. Magee, an employee of Carpenter,

applied for and obtained a search and seizure warrant for the prem-

ises of Fairfield Scrap. The warrant commanded a search for a

variety of named precious metals, and other items employed in

the theft of those metals. Prior to making application for the

warrant, Cafferty had been informed by Albert Edwards and

Russel] Scofield, the men admittedly directly responsible for the

thefts, that the name “John Parks” had been used on one of the

receipt slips signed at Fairfield Scrap where they claimed to have

delivered the stolen items. Through an oversight, Cafferty failed

to seek the inclusion of the “John Parks” receipt or, indeed, of

any slips or receipts involving Scofield, Edwards or “John Parks”

in the list of items authorized to be seized.

The warrant was executed on September 2, 1971. With Cafferty

and Magee at the time of the execution of the warrant were

Popowski, an employee of Carpenter, who was present in order to

identify items that might be found belonging to Carpenter, and

Alfred Constantino, a special investigator for Federal Insurance

53a

Many of the details recited in that opinion will not be

repeated here. Briefly, the defendants, James Carbone and

Company of New York, who was aiding and assisting Detective

Cafferty in the investigation and was present during the search in

connection with Carpenter’s claim with regard to the loss of the

metal. Patrolman John Sleeper, a photo technician of the Bridge-

port police department, Detective Stephen Zadrovitz and Sergeant

Edward Targowski of the Fairfield police department, and Special

Agent Edward Buffum of the F.B.I. also assisted Cafferty in the

search. None of the law enforcement officers was in uniform.

Magee, Popowski, Constantino and Patrolman Sleeper accom-

panied Detective Cafferty, in his police car, to Fairfield Scrap, and

there was a general conversation en route about whether they might

find anything with Edwards’ name or Scofield’s name on the Fair-

field Scrap premises. Cafferty told the others not to search for

anything, but that if they happened to see anything with those

names on it, to let him know. He also mentioned that there might

be paper work or slips. There also was a discussion concerning

“John Parks,” or slips possibly bearing that name. Cafferty in-

structed the others that they were not allowed to search for slips

with the name “John Parks” because such items were not named

in the warrant. He told them that if they ran into the names

Scofield, Edwards or “John Parks” it could be meaningful, and he

admonished them to “keep their eyes open” for those names and

to tell him if they saw those names at all. Popowski understood

Cafferty’s advice to mean that if he saw the names Scofield,

Edwards or “John Parks” on a piece of paper, he should say

something, but that it was not intended that he actually go and

look for them. No indication was given to Popowski that the name

“John Parks” might be found on a receipt of Fairfield Scrap.

Fairfield Scrap is a sole proprietorship owned by James Carbone,

and Peter and Carbone are the sons of James and employees

of Fairfield Scrap. The Carbones are hereafter individually

referred to as James, Peter and Frank and collectively as the Car-

bones. Upon arrival at Fairfield Scrap, Sergeant Targowski sought

out Peter and informed him that they were present with a search

warrant, and read to him from the warrant the items for which they

were searching. Peter threw up his hands and said: “Go ahead

and look.” He and Targowski then accompanied Cafferty inside the

main building where Cafferty began looking through closets for

items named in the warrant. James arrived a few minutes later.

Targowski had the warrant in his hand at this time and showed it

to James but he could not be sure if he read any portions of it to

James. James asked Targowski some questions, but Targowski

referred him to Cafferty, since Cafferty was familiar with the war-

rant. James never took the warrant and read it. Targowski then

returned the warrant to Cafferty, who went upstairs to the rear

54a

Peter Carbone, were convicted after a jury trial of four

counts of larceny of personal property in excess of $2000

on four different dates between January 8, 1971, and Feb-

office and gave Peter and James the Miranda [384 U.S. 436, 86

S. Ct. 1602, 16 L. Ed. 2d 694] warnings. Cafferty advised Peter

that he was present legally for a search and seizure, and Peter did

not at that time ask Cafferty to read the warrant in its entirety.

Along with the police officers, the civilians who had arrived with

them went around the premises assisting the officers, since they were

familiar with the items being sought. The men searched the prem-

ises and the building. At various times during the search, Cafferty

was accompanied by the civilians, Popowski and Magee. Patrolman

Sleeper, Sergeant Targowski Detective Zadrovitz. Nothing was

found on the premises that was listed in the warrant.

At some time after Cafferty arrived, Constantino asked him

whether he could look at the sales receipts, paper slips or sales slips

of Fairfield Scrap. Cafferty told Constantino that he could do so

only if he obtained the voluntary permission of the Carbones. In

C s presence, Constantino asked Frank if he could look at the

sales receipts and slips. Cafferty said nothing, although he knew

that a possible result of Constantino’s question would be that Con-

stantino would look through the slips and that if he found any-

thing with the names Scofield, Edwards or “John Parks” on it, he

would show it to Cafferty. In reply to Constantino’s request, Frank

asked James, and James replied: “Well, I see no reason why he

shouldn’t see them. Fine, let him have them.” Frank indicated to

Constantino that he could see the business slips, and James then

asked Frank: “Where do we keep them?” Frank produced the

slips and Cafferty then left the area. Popowski and Constantino

looked through the records although neither man had asked the

Carbones whether Popowski could inspect these items. Neither man

had informed the Carbones who he was or why he was present.

Neither man had sought the permission of the Carbones to be on the

premises. Constantino considered himself validly there under the

terms of the warrant and at the invitation of the police. In viewing

the slips, Constantino and P i were looking for the names

Scofield, Edwards and “John Parks.”

Popowski came across a slip signed by “John Parks” and then

went outside and told one of the police officers. Cafferty was ad-

vised of the discovery and returned to the scale room. When he

arrived back no police officers were present. Cafferty asked Frank

in James’ presence if he could have the slip or a copy of it. Frank

agreed, but said that he would have to have a copy of it for the

business. Cafferty took the original and one photostatic copy and

left a photostatic copy with the Carbones. The slip was discovered

approximately an hour or an hour-and-a-half after the search was

55a

raary 20, 1971. James Carbone was the owner of Fairfield

Scrap Metal Company, hereinafter referred to as Fairfield

Scrap, in Fairfield, and Peter, his son, was an employee.

Russell Scofield and Albert Edwards, two former em-

ployees of Carpenter Technology Corporation, hereinafter

referred to as Carpenter, in Bridgeport, testified that they

had stolen copper and nickel from their employer on vari-

ous dates, transported it in rented trucks, and sold it to

the defendants at Fairfield Scrip. Scofield stated he had

signed a slip under the name of “John Parke” A slip

bearing that signature was admitted into evidence. There

was also evidence that Fairfield Seraj had sold copper and

nickel to a New York scrap dealer on two occasions near

the dates of thefts from Carpenter.

Before the trial, motions to suppress the slip were

denied.“ The slip had been seized while a search was being

begun. After the slip was discovered, Constantino did not ask the

Carbones whether he could show the slip to the police. The Carbones

were not asked to sign a consent to search form nor were they ad-

vised that the seizure of the slip was beyond the scope of the war-

rant. Cafferty never discussed the presence of the civilians with the

Carbones nor did he seek their permission to have Constantino on

the premises. Targowski saw Constantino and Popowski going

through the slips and did not ask what they were doing, although

he was aware that there was no authority under the warrant to

search for or through said items. ;

Constantino was a New York detective for eighteen years prior

to joining Federal Insurance Company of New York. Cafferty had

arranged to invite Constantino so that he could aid and assist the

lice, if he observed or noted anything, and as another person to

look around, although Constantino had no police powers. Popowski

was asked by Constantino to help him look through some records.

He handed Popowski a pile of slips and asked him to look through

them for the names Seoheld, Edwards or “John Parks.” Peter was

not in the room when the slip was discovered, but accompanied

Targowski to make the photostatic copies upstairs.

Certain corrections in the finding of the court which decided the

motions to suppress were made in the statement of facts in the

opinion on the former appeal of this case. The other corrections

sought are immaterial or involve requests to add facts which are

merely cumulative.

56a

conducted on the premises of Fairfield Scrap by the police,

acting under a warrant. It was not one of the items listed

on the warrant. Alfred Constantino, an insurance investi-

gator who accompanied the police, had inquired of Detective

Robert J. Cafferty, who was in charge of the search party,

whether he could search for sales slips. Constantino was

told that he could not search under the warrant as the sales

slips were not listed but was told that he could if he obtained

consent. He thereafter asked Frank Carbone, another son

of James and also an employee of Fairfield Scrap, whether

he might look at sales slips. Frank relayed the request to

James who replied, “Well, I see no reason why he shouldn’t

see them. Fine, let him have them.” Frank got the slips

and brought them out and placed them on a desk in the

presence of James. Peter Popowski, an employee of Car-

penter who also accompanied the police on this visit, joined

Constantino in looking through the slips and discovered

the “John Parks” slip. Frank, in the presence of James,

was asked if the slip or a copy of it could be taken. Frank

agreed and two photostatic copies were made. A receipt

signed by Frank and James was made out.

The court ruled that the search was conducted by private

citizens, and the fourth amendment thus was not appli-

cable. This court disagreed, concluding that Popowski and

Constantino were assisting the police and “thus, must

come within the countenance of the fourth amendment.”

The lower court also concluded that James Carbone gave

his voluntary consent to the search, that Peter lacked

standing to object, and that consequently it did not need to

consider the objections relating to the validity of the war-

rant. This court determined that Peter had standing, and

that the lower court erred in failing to consider all the

circumstances surrounding the purported consent, including

any question of the validity of the warrant under which

57a

entry to the premises was gained. The judgments were

set aside and the cases remanded for further proceedings.

On remand, the court found that the warrant was valid,

the consent was voluntary, and that the consent of any of

the Carbones, all of whom had a right to be on the premises,

was effective as to the others. The judgments were rein-

stated, and the defendants have again appealed.

The defendants claim that the warrant was invalid be-

cause there was no probable cause to believe that the items

listed therein would be found, on that date, at Fairfield

Scrap. The affidavit attached to the warrant, which was

issued om September 2, 1971, stated that Scofield and

Edwards, who had been apprehended in July of 1971, had

delivered metals and appartus for moving metals (the items

listed on the warrant) to Fairfield Wcrap in January and

February of that year. Noting the time lapse, this court

stated in its prior opinion that “there was merit to the claim

ihe werrant was stale.”

Upon remand, the motions to suppress to which this

court had addressed itself were resubmitted to Irving

Levine, J., who had ruled on the motions previously. It

was agreed by all parties that a new record need not be

made amd that the facts presented in the first hearing on

the motions to suppress could provide a sufficient evi-

dentiary basis for the new conclusions. Consequently, the

finding of facts included in the record is controlling.

The motions to suppress and for the return of the slip

vere denied by the court. As there was no supplemental

record made, we look to the memorandum of decision to

determine the reasoning for the conclusion reached by the

court. In re Application of Dodd, 132 Conn. 237, 240, 43

A.2d 224. In considering the list of items enumerated in

58a

the warrant,‘ in view of the previous opinion of this court

thet as a matter of law the search was not a private search,

that Peter Carbone had standing to challenge the search,

and that the claim of staleness of the warrant had merit,

the court determined that the apparatus for handling metal

(two chains and a tarpaulin) would have been useful in the

defendants’ business and was not ordinarily bought and

sold in that business. The court concluded that the appa-

ratus probably would have remained on the premises and

the warrant was therefore not stale.

The court recognized that there must be probable cause

that the items sought are on the premises when the warrant

is issued. This principle was enunciated by the United

States Supreme Court in a statutory, rather than a con-

stitutional, context in Sgro v. United States, 287 U.S.

206, 210, 53 S. Ct. 138, 77 L. Ed. 260. The requirement,

however, is believed to be one of constitutional proportions.

See Bastida v. Henderson, 487 F.2d 860 (5th Cir.) ; United

States v. Gwinn, 454 F.2d 29 (5th Cir.) ; State v. DeNegris,

153 Conn. 5, 9, 212 A.2d 894. It is also recognized that a

time lapse between the observations on which the affidavit

is based and the issuance of the warrant is an important

consideration, but not necessarily controlling under all

circumstances. United States v. Steeves, 525 F.2d 33, 38

(8th Cir.). We previously did not find that the time lapse

alone was so great as to invalidate the warrant as a matter

*The items to be searched for included in the warrant were:

“a. Precious nickel cathoes in pallet form stamped with the ini-

tials INCO. b. Copper inserts, square with rounded corner, rang-

ing in weight from 2,500 to 4,000 Ibs. c. Braided cable chain with

bull ring and L hooks for lifting inserts. d. Heavy link chain with

oval bull ring. e. Gray Tarpaulin canvas, approximately 6’ x 12’,

rope pulls at both ends. f. Nickel described as small ingot

form rectangular in shape, approximately four to five inches thick,

five to six inches wide, thirty inches long, with weight of approxi-

mately fifty pounds each.”

59a

of law. The motions to suppress were remanded to be con-

sidered in the light of our opinion and the case not re-

manded for a new trial absent the items seized under the

warrant. If items of property are innocuous in themselves

or not particularly incriminating and are likely to remain

on the premises, that fact is an important factor to be

considered in determining the staleness of a warrant. In

United States v. Steeves, supra, it was held that a warrant

issued to search for items used in a robbery three months

earlier was stale as to the money and the bank’s money

bag, but not as to a gun, a ski mask, and clothing worn by

the robber. “The ski mask and the clothes were not in-

criminating in themselves, and apart from his prior felony

record possession of the pistol was not unlawful in itself or

particularly incriminating. Moreover, people who own

pistols generally keep them at home or on their persons.”

Id., p. 38. See also United States v. Rahn, 511 F.2d 290

(10th Cir.) (warrant to search for guns issued on informa-

tion eighteen months old not stale when affidavit showed

the defendant had said guns would appreciate in value if

kept, had been seen making personal use of one gun, and

search of records of area pawnshops revealed no sales by

the defendant). On the court’s analysis it cannot be held

that the court erred in denying the motions to suppress.

Because the warrant is found valid, it can no longer be

maintained that the slip was “the indirect product of an

unlawful search,” and thus excluded according to Wong

Sun v. United States, 371 U.S. 471, 484, 83 S. Ct. 407,

9 L. Ed. 2d 441. And because there was no “claim of lawful

authority” to search for the sales slip, this case is dis-

tinguishable from Bumper v. North Carolina, 391 U.S.

543, 549, 88 S. Ct. 1788, 20 L. Ed. 2d 797, in which a woman

“consented” to a general search after a policeman, without

showing a warrant, announced, “I have a warrant to search

60a

your house.” Here the actual warrant was read to Peter

and shown to James, and a specific separate request to

search for the sales slip was made by one who had been

informed that he could not search for the slip without

express consent.

In determining whether the consent was voluntary, all

the circumstances are to be considered. Schneckcloth v.

Bustamonte, 413 U.S. 218, 227, 93 S. Ct. 2041, 36 L. Ed. 2d

854. It is a question of fact for the court. State v. Hanna,

150 Conn. 457, 471, 191 A.2d 124. The court, having found

that Constantino was not on the premises unlawfully, con-

sidered the other circumstances surrounding the consent,

and as stated in its memorandum of decision: “The conver-

sation between the Carbones and Constantino indicates that

permission was sought and voluntarily given. The defen-

dant James... by his expression that there was no reason

to keep the slips from Constantino, indicated hs willingness

and again indicated his willingness by asking where they

were kept so that their production would be aided. To go

further, when Cafferty asked for the slip or photostats of

it, [James] indicated his voluntariness through sitting in

the presence of Frank, who agreed, and by allowing the

defendant Peter to assist in the making of the photostats

and by signing the Cafferty receipt... [A]ll the Carbones

were adults, who were operating a business, who had been

advised of their constitutional rights by the officers, and

who gave their consent within a short period of time after

the subject of the slips was first raised.”

The determination by the trial court that consent was

voluntary was reasonable considering all the evidence to-

gether with the reasonable inferences which could be drawn

from it. There is no error in the denial on remand of the

motions to suppress.

6la

The defendants also claim error in the court’s reinstate-

ment of the judgments without a new trial. The Practice

Book contains no mention of a motion to reinstate judg-

ment. A new trial would have been needed, however, only

had the motions to suppress been granted on remand.

Reinstatement of the judgments after the motions were

denied was not error. MclIsaac v. Hale, 105 Conn. 249,

250, 135 A. 37, states that a finding of error with a re-

mand to proceed according to law destroys the first judg-

ment and requires a new trial of all the issues. In this

case, however, there were two separate proceedings: the

motions to suppress, heard by the court, and the trial by

jury. The previous opinion concerned itself entirely with

the court’s denial of the motions to suppress and the re-

mand to proceed in accordance with the opinion neces-

sarily was limited to the motions to suppress as no other

matters were discussed. Where the error occurred only

in the first proceeding, and it was cured in a manner

which did not change the evidence admissible in the sec-

ond, a new trial was not required. See Jackson v. Denno,

378 U.S. 368, 394, 84 S. Ct. 1774, 12 L. Ed. 2d 908.

The defendants were entitled under the remand to a

determination of motions to suppress and if the motions

were granted, necessarily to a new trial without the ad-

missions of those items of evidence suppressed. If, as hap-

pened in this case, the motions to suppress were denied,

the most that the defendants were entitled to under the

terms of the remand was this determination and no fur-

ther action by the court other than entering judgment.

“The reversal of a judgment annuls it, but does not neces-

sarily set aside the foundation on which it rests. This

foundation may be sufficient to support a judgment of a

different kind, and may be such as to require it. A re-

62a

versal therefore is never, standing alone, and ex vi termini,

the grant of a new trial. If the error was one in drawing

a wrong legal conclusion from facts properly found and

appearing on the record, it would be an unnecessary pro-

longation of litigation to enter again on the work of as-

certaining them.” Coughlin v. McElroy, 72 Conn. 444, 446,

44 A. 743. See the cases of Fitch v. State, 138 Conn. 534,

86 A.2d 718, and Fitch v. State, 139 Conn. 456, 95 A.2d

255, wherein the court rendered judgment on the second

case after remand to correct a referee’s report with no

right in the appellant to have the issues tried again. See

also Lamenza v. Shelton, 96 Conn. 403, 413, 114 A. 96;

Nowsky v. Siedlecki, 83 Conn. 109, 118, 75 A. 135. The

defendants claim that as the previous judgment was set

aside, they had a right to a new trial with the presenta-

tion of evidence as if no prior trial had occurred. As

stated in Coughlin v. McElroy, supra, 447, [a] case can-

not be presented by halves. In every trial which may re-

sult in an appeal to this court, it is the duty of each party,

so far as he is able, to see that whatever is material to

support his contentions is proved and found. If he con-

tents himself with bringing forward only so much as he

may deem sufficient to meet those of his adversary, he

must be prepared, should an appeal be taken on either

side, to have it decided with reference to no other facts

than those apparent on the record.” In this instance, the

only matter remanded, in effect, was the propriety of the

admission of an item obtained during a search. As that

matter has been resolved in favor of the state, there is no

need for a new trial on the issues already tried to com-

pletion. |

In the court’s prior opinion, it is true that it was stated

that “our ruling with regard to the motions to suppress

63a

obviates the necessity of discussing the issues with regard

to the trial.” Had the trial court on remand granted the

motions to suppress, a new trial would have been required,

and claims of error in the first trial would have been

mooted. Because a new trial did not occur, this court

must now consider the defendants’ claims of error at the

trial.

The defendants claim that the prosecutions were abated,

prior to the bringing of the informations, by the repeal of

§ 53-63a of the General Statutes, under which they were

prosecuted. The repeal took place as part of a revision

of the entire criminal code of this state. 1969 Public Acts,

No. 828, § 214, effective October 1, 1971. Section 54-194

of the General Statutes, however, provides: “The repeal

of any statute defining or prescribing the punishment for

any crime shall not affect any pending prosecution or any

existing liability to prosecution and punishment therefor,

unless expressly provided in the repealing statute that

such repeal shall have that effect.” The defendants claim

that § 54-194 itself was implicitly repealed by the later en-

actment of § 1-1 (t), which states: “The repeal of an act

shall not affect any punishment, penalty or forfeiture in-

curred before the repeal takes effect, or any suit, or prose-

cution, or proceeding pending at the time of the repeal, for

an offense committed, or for the recovery of a penalty or

forfeiture incurred under the act repealed.”

Section 1-1 (t) is a blanket provision drawn to cover

both criminal and civil statutes. It has been described as

“broader” than § 54-194. Simborski v. Wheeler, 121 Conn.

195, 200, 183 A. 688. A mere overlap between the two

statutes does not constitute an implied repeal of the earlier.

Section 1-1 (t) preserves punishments incurred and prose-

cutions pending, but it does not state that liability to prose-

64a

cution shall not be preserved under some other statute.

Since the defendant was liable to prosecution at the date

of the repeal, § 54-194 preserves that liability. “Repeals

by implication are not favored and will never be presumed

where the old and new statute may well stand together.

Fair Haven d W. R. Co. v. New Haven, 75 Conn. 442, 447,

53 A. 960; Bissell v. Dickerson, 64 Conn. 61, 29 A. 226;

Windham County Savings Bank v. Himes, 55 Conn. 433,

12 A. 517.... Furthermore... if courts can by any

fair interpretation find a reasonable field of operation for

both statutes without destroying or perverting their evi-

dent meaning and intent, it is the duty of the courts to

do so, thus reconciling them and according to them con-

current effect. Lecte v. Griswold Post, 114 Conn. 400, 405,

158 A. 919; Costa v. Reed, 113 Conn. 377, 385, 155 A. 417,

and cases cited; 1 Sutherland, Statutory Construction (3d

Ed). § 2014.’ Shanley v. Jankura, 144 Conn. 694, 702, 137

A.2d 536.” Waterbury Teachers Assn. v. Furlong, 162

Conn. 390, 404, 294 A.2d 546; Daley v. Liquor Control Com-

mission, 166 Conn. 97, 101, 347 A.2d 69; 73 Am. Jur. 2d,

Statutes, § 393. There was no error in the court’s denial of

the pleas in abatement.

James Carbone assigns error in the trial court’s refusal

to find eight paragraphs of the draft finding which he

submitted according to former § 629 of the Practice Book.“

These paragraphs all involve matters which came out on

cross-examination of state witnesses by the defense. The

defendant’s request that the court include them as evi-

dence offered by and claimed to have been proven by the

state was not appropriate. “A party to an action may not

force into the claims of proof of his adversary factual

* Repealed October 1, 1974.

65a

matters on which the latter does not rely.” Darling v.

Burrone Bros., Inc., 162 Conn. 187, 190, 292 A.2d 912;

Franks v. Lockwood, 146 Conn. 273, 276, 150 A.2d 215.

The court properly denied the request.

The informations charged each defendant with four sepa-

rate counts of larceny in excess of $2000, in violation of

then § 53-63a of the General Statutes.* In his motion for

a bill of particulars, James Carbone asked “whether the

state claims the defendant is a principal thief or receiver

of stolen goods.” The state objected to this portion of

the motion, and the court denied the defendant’s request

to force the state to specify. This was error. Under the

former statutory scheme, § 53-65 of the General Statutes’

authorized prosecution and punishment of a receiver as

a principal offender under § 53-63. One charged under the

larceny statute could be convicted by proof either that he

was a principal or that he was a receiver. State v. Pal-

kimas, 153 Conn. 555, 562, 219 A.2d 220. The essential

elements of larceny and of receiving stolen property differ.

State v. Huot, 170 Conn. 463, 467, —— A.2d ——. The in-

formation cited the larceny statute and alleged specific

conduct of the defendant. It did not allege specifically

any of the elements of the crime either of receiving stolen

property or of larceny, except insofar as those elements

might be understood as comprehended in the reference to

the statute. Indeed, since it referred only to § 53-63a, and

made no mention of § 53-65, the information would not

have apprised a layman of the possibility of a conviction

for receiving stolen property.’ “In all criminal prosecu-

* Repealed October 1, 1971.

*This defect is cured in the present larceny statute, § 53a-119,

which specifically includes receiving stolen property as a type of

tions, the accused shall have a right . . to be informed of

the nature and cause of the accusation.” Conn. const.,

art. I, §8; United States constitution, amend, VI. “Short

form” informations were permitted by then Practice Book

§ 493° and held constitutional because the defendant had

the opportunity to obtain the information to which he was

constitutionally entitled by requesting a bill of particulars.

State v. Davis, 141 Conn. 319, 321, 106 A.2d 159. Here

the defendant made use of that opportunity so there was

no waiver of the right such as was found in State v. Cole-

man, 167 Conn. 260, 268, 355 A.2d 11. The error, however,

does not require a new trial because it is clear beyond a

reasonable doubt that it was not prejudicial to the defen-

dant. Chapman v. California, 386 U.S. 18, 24, 87 S. Ct.

824, 17 L. Ed. 2d 705. Obviously, the experienced counsel

for James Carbone was aware that § 53-63a was violated

either by larceny or by receipt of stolen property; other-

wise he would not have asked the prosecution to elect

between the two theories. He undoubtedly understood the

state’s refusal to elect as an implicit statement that it

was charging both and would endeavor to prove either.

See State v. Palkimas, 153 Conn. 555, 562, 219 A.2d 220;

State v. Ward, 49 Conn. 429, 439. He had notice of this

and an opportunity to prepare his case accordingly.

A pretrial motion for severance of the cases was denied

by the court. James alleged that he would be prejudiced

by the inability of the jury to separate evidence against

him from evidence against Peter, and that the evidence

against Peter would involve statements inculpating James

but not subject to cross-examination by him. It does not

appear that James and Peter had antagonistic defenses,

* Repealed October 1, 1976.

67a

or that a joint trial was likely to result in any injustice.

Compare State v. Holup, 166 Conn. 471, 352 A.2d 275.

This is not a case analogous to Bruton v. United States,

391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476, where a

confession by one defendant, properly admissible against

him, also implicated another. At the time of the motion

counsel did not point to any statements admissible against

Peter which might also implicate James, and it is signif-

icant, although the likelihood of prejudice must be deter-

mined on the facts as known before the trial rather than

after, that even now, with the benefit of hindsight, he iden-

tifies no such statements in his brief.

The defendant James Carbone also makes certain claims

of error in the court’s failure to give requested charges.

The court charged the jury, both as to the testimony of

accomplices and as to good reputation evidence, substan-

tially as requested. The defendant’s brief presents no argu-

ment to support these claims of error; therefore, they

are not considered. Nowsky v. Siedlecki, 83 Conn. 109, 119,

75 A. 135; see Stoner v. Stoner, 163 Conn. 345, 307 A.2d

146. Nor do we consider claims by James Carbone based

on exceptions to the charge taken by counsel for Peter

Carbone. Practice Book § 249. As already implicitly stated

in this opinion, it was not error for the court to charge

the jury that the defendant could be convicted either as a

principal thief or as a receiver of stolen goods.

The Court permitted Scofield to testify, overruling the

objection that the testimony of one alleged accomplice

could not be used to corroborate the testimony of another.

There is no such rule in this state.

The court properly admitted the testimony of a hand-

writing expert to authenticate the signature on the “John

Parks” slip. The defendant cites no authority for the

proposition that authentication should not be allowed prior

to a claim that the signature is not authentic, nor are we

aware of any.

The court admitted the records of Sola Metal, a New

York scrap dealer, showing a purchase from Fairfield Scrap

of four pieces of copper on January 25, 1971. The pieces

weighed 2340, 4240, 2348 and 2420 pounds, with a deduc-

tion for 667 pounds of dirt. The indictment charged the

defendants with larceny of copper, specifically, five pieces

weighing a total of 10,000 pounds, on or about January

24, 1971. The defendant objected that this evidence was

speculative and insufficiently tied to other evidence in the

case. He pointed to testimony by Edwards and Scofield

that there was no way that more than 600 pounds of dirt

could have been put on the copper, and to certain other

testimony apparently viewed by him as inconsistent, but

not presented in the finding or the brief in such a manner

that any inconsistency appears. The dirt is not such an

inconsistency as to make the evidence speculative or irrele-

vant; there was no error in admitting the records.

At the trial, the court refused to permit counsel for

Peter Carbone to cross-examine Scofield and Edwards re-

garding their prior invocation of their fifth amendment

privilege when being deposed in a civil action which Car-

penter brought against them and the Carbones. It is Peter’s

contention that this would have shown the bad faith of

Scofield and Edwards, who were entitled to claim the

privilege, but did so after deciding to cooperate with the

police. Peter’s theory was that they claimed the privilege

only in order to prevent the Carbones from learning their

testimony in advance. This amounts to mere speculation.

The prior invocation of a constitutional privilege can be

motivated by so many factors other than bias that the

court was within its discretion in excluding cross-exami-

nation on this matter as irrelevant. Raffel v. United States,

69a

271 U.S. 494, 499, 46 S. Ct. 566, 70 L. Ed. 1054, relied upon

by the defendants, is not to the contrary; it held only

that when a defendant waived the privilege and testified

at his second trial that he did not make a statement re-

ported by a witness, he might be cross-examined concern-

ing his silence at the first trial, which was inconsistent

with such a denial. In Grunewald v. United States, 353

US. 391, 77 S. Ct. 963, 1 L. Ed. 2d 931, Raffel was distin. .

guished, and the Supreme

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