Petition — Turcio v. Connecticut
Supreme Court brief1980
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SEP 197 i979
Hu The [mic “4, JR, CLERK
Supreme Court Of Che United States
OCTOBER TERM, 1979
No. 9-449
JOSEPH TURCIO, Petitioner
Vv.
STATE OF CON NECTICUT, Respondent
PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME COURT FOR THE
STATE OF CONNECTICUT
HUBERT J. SANTOS
A. SUSAN PECK
Counsel of Record
51 Russ Street
Hartford, CT 06106
(203) 249-6548
TABLE OF CONTENTS
Opinions Below .
Jurisdiction .
Questions Presented.
1
2
Constitutional Provisions Involved . . 2
2
3
Statement of the Case.
Reasons for Granting the Writ. .... 10
in
Res
THE COURT'S CHARGE THAT THE JURY
SHOULD WEIGH THE TESTIMONY OF
CERTAIN DEFENSE WITNESSES WITH
PARTICULAR CARE WAS ERRONEOUS AND
AT VARIANCE WITH THE DECISIONS OF
STATE COURTS IN WASHINGTON,
MINNESOTA AND NORTH CAROLINA. AS
A RESULT OF THIS ERRONEOUS
INSTRUCTION, THE BURDEN OF PROOF
WAS SHIFTED TO THE DEFENDANT, HE
WAS THEREBY DENIED DUE PROCESS,
A FAIR TRIAL AND THE EFFECTIVE
ASSISTANCE OF COUNSEL ..... ll
THE COURT'S REFUSAL TO SUPPRESS
THE CONFESSION AND ADMISSIONS
OF THE SIXTEEN (16) YEAR OLD
DEFENDANT FOR THE REASON THAT
HE WAS ASKED TO WAIVE HIS
MIRANDA RIGHTS WITHOUT THE
PRESENCE OF HIS PARENTS, AN
ATTORNEY, A GUARDIAN OR OTHER
INTERESTED ADULT WAS ERRONEOUS.
IN SO HOLDING THE COURT ADOPTED
A "TOTALITY OF THE CIRCUMSTANCES"
TEST AND REJECTED DECISIONS BY
COURTS IN PENNSYLVANIA, INDIANA,
GEORGIA AND LOUISIANA THAT
HAVE ADOPTED A PER SE
EXCLUSIONARY RULE FOR
DEFENDANTS UNDER THE AGE OF
EIGHTEEN (18). :
Conclusion.
Appendix:
(1) - Opinion of Connecticut
State Supreme Court, XL
Comm. L: J. Bo. 32 at 4
(June 26, 1979)
(2) - Unreported Memorandum of
Trial Judge Denying
Petitioner's Motion To
Suppress.
TABLE OF CASES
Commonwealth v. Harvell, 477 Pa. 126,
Commonwealth Vv. McCutchen, 463 Pa. 90,
Commonwealth Vv. Roane, 459 Pa. 389,
A. Ree he ae eae
Commonwealth v. Smith, 472 Pa. 492,
A. are age ee ae ee
Commonwealth v. Starkes, 461 Pa. 178,
A. AE ee en eee ee
Fahay v. State, 25 Conn. 204, 106
(1856)
Freeman v. Wilcox, 167 S.E. 2d 163
(Ga. Ct. App. 1969). SPO a ea
In re Dino, __ + 299 80.24
586 (1978) SN ee ee ere
ii
PAGE
27
la
- 28a
24
23
a3
aay 22
23
26
25
25
Lewis v. State, 259 Ind. 431, 288
“N.E. 2d 138 (1972). .
State v. Bibee, 496 S.W. 2d 305,
State v. Bishop, 289. Minn. “188, 183
N.W. 2d 971)
State v. Davis, 223 N. 9S 57, “25 S. E.
State v. Eakins, 292 N. C. 445, 233,
N.E. 2d 387, 388 i) be} SO eS
State v. Evans, 165 Conn. 61, 70,
327 A.2d 576 (1973). Roa
State v. Everett, 488 S.W. “2d 873,
878 (1970)...
State v. Huff, 76 Wash. od 577, 458
P.2d 180 (1969). as
Be us Lamb, 30 N.C. “App. 255,
680 (1976) .
iii
PAGE
24
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14
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20
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IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1979
No.
JOSEPH TURCIO,
Petitioner
V.
STATE OF CONNECTICUT,
Respondent
Petition For A Writ Of Certiorari To The
Supreme Court For The State Of Connecticut
TO THE HONORABLE CHIEF JUSTICE AND ASSOCIATE
JUSTICES OF THE SUPREME COURT OF THE UNITED
STATES :
The above-named Petitioner respectfully
prays that a writ of certiorari issue to
review the judgment and opinion of the Supreme
Court for the State of Connecticut entered in
this proceeding on June 26, 1979.
OPINIONS BELOW
The opinion of the Connecticut Supreme
Court is reported at XL Conn. L. J. No. 52
1
at 4 (June 26, 1979) and appears in Petitioner's
Appendix. The unreported memorandum of the
trial judge denying Petitioner s motion to
suppress his confession and admissions also
appears in Petitioner's Appendix.
JURISDICTION
The judgment of the Connecticut Supreme
Court as on June 26, 1979... This
petition for certiorari was filed within
ninety (90) days of that date. This Court's
jurisdiction is invoked under 268 U.S.6.
§1254(1).
CONSTITUTIONAL PROVISIONS INVOLVED
FIFTH AMENDMENT
v
No person shall be held to answer for a
capital, or otherwise infamous crime, unless
on a presentment or indictment of a Grand
Jury, except in cases arising in the land or
naval forces, or in the Militia, when in actual
service in time of War or public danger; nor
shall any person be subject for the same offence
to be twice put in jeopardy of life or Limb ;
nor shall be compelled in any criminal case ~
to be a witness against himself, nor be deprived
of life, liberty, or property, without due
process of law; nor shall private property be
taken for public use, without just compensa-
tion.
SIXTH AMENDMENT
In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public
trial, by an impartial jury of the State and
district wherein the crime shall have been
committed, which district shall have been
previously ascertained by law, and to be
informed of the nature and cause of the
2
accusation; to be confronted with the Wit-
nesses against him; to have compulsory process
for obtaining witnesses in his favor, and to
have the Assistance of Counsel for his defence.
QUESTIONS PRESENTED
1. Whether at Petitioner's murder trial
the Court's jury charge that the testimony of
Petitioner's family, friends and former
attorney should be weighed with "particular
care'"' denied Petitioner due process of law,
effective assistance of counsel, a fair trial
and acted to shift to him the burden of proof.
2. When the sixteen (16) year old
Petitioner did not consult with an attorney
or other adult interested in his welfare
before he waived his Miranda rights, and when
the police failed to advise any adult
interested in Petitioner's welfare of
Petitioner's Miranda rights before securing
a waiver of those rights, did the court err
in not suppressing Defendant's confession
and admissions to the crimes of murder and
assault?
STATEMENT OF THE CASE
On March 5, 1975, the owners of Frank's
Market on Foxon Road in East Haven, Connecti-
cut, Frank and Jean Massaro, were shot after
closing their store at 8 p.m. (T. at 103,
156-159, 205-206). Mr. Massaro was killed
and his wife wounded. A cigar box contain-
ing the day's receipts from the store was
taken by the assailant. (T. at 1033). On
the date of the crime the Defendant, Joseph
Turcio, Jr., was sixteen (16) years of age.
(Tt. at &h73).
At 7:45 p.m. on March 5th, the Defendant
was picked up by Robert McKiernan while hitch-
hiking. (T. at 273-274). While in the car,
the Defendant stated that he was going to
rob Frank's Market and he wanted his compan-
ions to wait until he came out. (T. at 276).
McKiernan did not take the Defendant serious-
ly, dropped him off at the market and then
drove off. (T. at 276). The Defendant then
entered the store, made a purchase and left.
(T. at 1034).
At 8 p.m. the Massaros were closing
their store. Mrs. Massaro, called as a wit-
ness for the State, then related what occurred.
She went to their car first, carrying a cigar
box containing the money. (T. at 1028). After
she and her husband got into the car, she
heard the back door of the vehicle open and
saw a person enter pointing a gun between
her and her husband. (T. at 1031). She turn-
ed, saw the person's face, opened the car
door and ran around the car screaming. (T.
at 1031). She was then shot in the back,
fell to the ground and heard another shot and
saw her husband fall. (T. at 1032). The
assailant then picked up the cigar box and
ran. (T. at 1033). He had come into her store
before and she knew he lived nearby. (T. at
1034). The witness then made an in-court
identification of the Defendant as the person
who shot and robbed her and her husband on
March 5, 1975. (T. at 1036).
At approximately 8:15 p.m. the Defendant
appeared at the home of Bartholomew Mansi, Jr.
who resided a few blocks from Frank's Market.
(T. at 361). The Defendant asked for Mansi's
son. (T. at 368). When he was told he was
not at home, the Defendant left. (T. at 370-
372). Mr. Mansi observed an ammunition box
in the Defendant's pocket. (T. at 368).
Thereafter, the Defendant waved down a
car operated by Fred Melillo. Richard Green-
spun was a passenger in the car. (T. at 417,
490). The Defendant was carrying a small
object, like a box, according to Melillo.
(T. at 418, 490). The Defendant got into
the back seat. Both Melillo and Greenspun
testified to substantially the same effect
that the Defendant asked for a ride to New
Haven,. (T. at 419, 456, 491) which would
require them to pass Frank's Market. (T. at
419). The Defendant told Melillo to make a
turn (T. at 421, 491, 492) eliminating the
need to pass the market. (T. at 422). While
in the car, the Defendant "mumbled something
about dropping his bullets and something like
'I hope I killed him.'", (T. at 428) and "I
wish I wore a mask" (T. at 493). While en
route to New Haven, the Defendant said he
wanted to put something back at his uncle
Michael Liso's house, and Melillo then headed
in that direction. (T. at 430, 461). At his
uncle's, the Defendant got out (T. at 431,
483, 493) and asked Melillo to wait, but he
decided to leave. (T. at 432, 484). After the
Defendant left the car, Greenspun found a
cigar box containing money. (T. at 432, 495).
Between 9:00 and 9:30 p.m., the Defen-
dant was again hitchhiking, this time on
Route 80 in East Haven. He was picked up by
Domenic DeLucia (T. at 679), who noticed
that the Defendant had in his possession
certain items taken in a burglary of his
home in the morning hours of March 5th.
(T. at 680-683). DeLucia took the Defendant
to his home, called the police, who arrived,
arrested the Defendant and took him to the
police Station. (T. at 683-691, 705).
The Defendant was a suspect in the inci-
dent at Frank' Market before the police's
arrival at the DeLucia home. Mrs. Massaro
had told them that the person who shot her
and her husband was "the boy up the street,
whose mother is a crossing guard" (T. at 58,
105, 167) and who Mrs. Massaro further des-
cribed as being sixteen years of age (T. at
167) and "lived up the street in the big
house with the bricks on the front, next to
the Patchet's house." (T. at 247).
Once at the police station, without the
presence of his parents, a guardian or an
attorney (T. at 824-825) the Defendant made
oral admissions (T. at 814-820) and a tape-
recorded confession. (T. at 824-847). Prior
to trial and at the conclusion of all the
evidence at trial the defense moved to sup-
press the admissions and confession and a
tape-recorded interview made on March 6, 1975
with State's Attorney Arnold Markle (T. at
864-869). The defense contended that the
defendant, a drug addict, who had drugs in
his possession at the time of his arrest (T.
at 1219), was so under the influence that
his statements were made involuntarily. The
motion to suppress was denied and the state-
ments were heard by the jury. (T. at 847).
The Defendant testified in his own
defense. (T. at 1175). Defendant's recol-
lection of the events at Frank's Market were
hazy, but he did recall Mrs. Massaro began
to scream and then a gun went off. (T. at
1211). He next recalled that someone was
running toward him, and this is all he could
recollect about the incident. (T. at 1211).
The Defendant then testified that he arrived
at Mr. Mansi‘s home looking for his son.
(T. at 1212). When he left he waved down a
car being driven by Fred Melillo who took
him to his uncle's home. (T. at 1213-1214).
The next thing the Defendant recalled was
6
being picked up by Domenic DeLucia. (T. at
1214), and being taken to his home when the
police arrived. (T. at 1214). The Defendant
had no recollection of being driven to
Frank's Market by Robert McKiernan, (T. at
1215) or of confessing to the crime. (T.
at 1215).
The Defendant further testified that he
started using drugs in the ninth grade. (T.
at 1176-1177). Initially, he ingested soft
drugs (T. at 1177) and then graduated to
seconals, mandrakes, quaaludes and nembutal.
(T. at 1179). At age fifteen he attended a
drug counselling program and attended Alpha
House for a day or two, but then he left the
p-ogram. (T. at 1183). During his second year
or high school the defendant used L.S.D.,
cocaine, morphine and dilaudid (T. at 1184).
He ingested drugs every day. (T. at 1184).
The Defendant further testified that on
the date of the murder, March 5, 1975, he was
under the influence of drugs and had no clear
recollection of the events of that day. (T.
at 1189). He did recall being at the hofne
of Domenic DeLucia early in the day, but
could not recall any details. (T. at 1189-90).
Later in the day he went to Lenny's Garage
and saw some people in the office. (T. at
1193-94). The Defendant also recalled knock-
ing on the door of a home on Laurel Street
and an elderly woman answering. (T. at 1194).
The next thing the Defendant recalled was
being inside of Frank's Market. (T. at
1195-97).
The Defendant also testfied that on
March 4, 1975, he ingested a drug known as
quaaludes which is a depressant. (T. at 12-
20). He had about 100 of them. (T. at 1220).
|
During cross-examination the Defendant
admitted to burglarizing DeLucia's home on
March 5th and stealing a number of items.
(T. at 1232-34, 1264). He further testified
that he had no recollection of where he got
the gun and ammunition he used in the shoot-
ings. (T. at 1242-43). Nor did he recollect
using a gun or shooting the victims (T. at
1243-1248), but neither did he deny the
commission of the crimes. (T. at 1250,
1270-71).
To corroborate the claim that Defendant
lacked the requisite criminal intent because
of drug intoxication, the defense called a
number of witnesses. The Defendant's parents
testified to their son's drug history. (T.
at 1053-1060, 1144-1149), the fact that he
was under the influence of drugs during the
evening of March 4, 1975 (T. at 1072-73,
1154) and the afternoon hours of March 5,
1975. (T. at 1075-1077). In addition, Mr.
and Mrs. Turcio testified that they saw their
son at the police station after his arrest
and he was intoxicated. (T. at 1079, 1305)
and that he was in the same condition on
Maren 6, 975° (7. at 44390, 1157).
The defense also called Attorney Fred
D. Dahlmeyer who testified that he arrived
at the East Haven police station on the
night of March 5, 1975, in response to a
request from the Defendant's father. (T.
at 1424). Attorney Dahlmeyer met with the
Defendant and observed that his eyes were
nearly closed, that his speech was slurred,
that he was physically "slow" and was un-
responsive to a number of questions put to
him. (T. at 1426-27). The Defendant's move-
ments were "lethargic, slow" and he was
"wobbly". (T. at 1429). Attorney Dahlmeyer
had difficulty in understanding the Defendant.
(T. at 1429). Attorney Dahlmeyer further
8
testified that he did not believe the
Defendant to be under the influence of drugs
om March 6, i975. ‘{(T. eat 147%).
The defense called a number of other
witnesses who saw the Defendant on March 5,
1975. Victor Papolizo, Jr., an employee at
Lenny and Sons Towing in East Haven, saw
the Defendant at that garage during the early
afternoon of March 5, 1975, and in his opinion
the Defendant "was either drunk or under the
influence of something." (T. at 1332-1334).
Another employee of Lenny and Sons
Towing, Allen Warner, saw the Defendant during
the late morning and early afternoon hours of
March 5, 1975. (T. at 1400). He appeared
to Warner to be "messed up," he was slouched
in a chair, very talkative and mumbling.
(T. at 1402-3).
John Orifice, whose son owned Lenny
and Sons Towing, was at the establishment on
March 5, 1975. (T. at 1473). He saw the
Defendant between 2 and 3 p.m. and he appeared
abnormal. (T. at 1475-76).
Mrs. Thomasina DeLucia testified that
she saw the Defendant between 9:00 and 9:30
P.M. at her home on March 6, 1975. (T. at
1416-17). He appeared to be on drugs. His
eyes "were awful funny and he was very, very
Glam; ss” “fe. OS. ESS).
Debra Ann Dahlmeyer, the attorney's
daughter, testified that she saw the
Defendant on March 5, 1975, at 3 p.m. (T.
at 1484-85), and his eyes appeared glassy.
(T. at 1486).
The defense also called two of the
Defendant's friends, David Leary and Robert
Torres. Leary detailed the Defendant's drug
9
history. (T. at 1348-50). Leary last saw
the Defendant a week or two before his arrest,
but could not recall the exact date. (T. at
1350, 1352, 1355, 1359). On that occasion
both Leary and the Defendant used drugs
including quaaludes. (T. at 1352). Both
youths were "messed up." (T. at 1353).
Robert Torres, 16 years of age, testi-
fied that he was currently residing at Alpha
House, a drug rehabilitation center. (T.
at 1369). Torres related that he and the
Defendant experimented with drugs together.
(T. at 1370-71). Torres last saw the
Defendant about one to two days before his
arrest on March 5, 1975 (T. at 1377), but
he could not recall the exact date. (T. at
1377-78). When the Defendant knocked on his
window at midnight and woke Torres out of
bed (T. at 1372) the Defendant appeared
intoxicated and asked Torres for a set of
works. (T. at 1373). The Defendant remained
with Torres for about 45 minutes to an hour
and then left. Torres did not leave with
the Defendant, but went back to sleep.
(T. at 1378-79).
After a trial before a jury of twelve,
the Defendant was convicted of the murder of
Frank Massaro and the assault of Jean Massaro.
He was sentenced to an effective term of not
less than seventeen and one-half (17-1/2)
years nor more than life imprisonment. The
Connecticut Supreme Court affirmed the con-
viction on June 26, 1979.
REASONS FOR GRANTING THE WRIT
The decision rendered by the Connecti-
cut Supreme Court concerning both of the issues
raised herein are in conflict with the decisions
of the highest appellate courts of other
states and involve federal questions of
10
substance not herebefore determined by this
Court.
me
THE COURT'S CHARGE THAT THE JURY SHOULD
WEIGH THE TESTIMONY OF CERTAIN DEFENSE WIT-
NESSES WITH PARTICULAR CARE WAS ERRONEOUS
AND AT VARIANCE WITH THE DECISIONS OF STATE
COURTS IN WASHINGTON, MINNESOTA AND NORTH
CAROLINA. AS A RESULT OF THIS ERRONEOUS
INSTRUCTION, THE BURDEN OF PROOF WAS SHIFTED
TO THE DEFENDANT, HE WAS THEREBY DENIED DUE
PROCESS, A FAIR TRIAL AND THE EFFECTIVE
ASSISTANCE OF COUNSEL.
In the course of his defense, the
Defendant called a number of witnesses in
support of his claim that he was under the
influence of drugs when he committed the
crimes in question. Among those witnesses
were Defendant's parents, Mr. and Mrs. Joseph
Turcio (T. at 1049, 1142, 1289), a relative,
Michael Liso (T. at 1325), Defendant's friends
and associates, David Leary (T. at 1347) and
Robert Torres (T. at 1369) and Defendant's
former lawyer, Attorney Fred. D. Dahlmeyer.
C(t... at 26235).
At the State's request, the Court
charged the jury as follows:
In weighing the credibility of a
witness who is a member of defendant's
family, or a friend, or an associate, or
who bears a professional relationship to
the defendant, you should scrutinize his
or her testimony with particular care.
(T. at 1670). [Emphasis supplied].
Defense counsel took exception to this
portion of the charge as follows:
11
Your Honor instructed the jury
as to the interest of friends and
relatives of the defendant, and
instructed the jury that they can
take into consideration, but
failed to refer to similar con-
sideration as to the State's
witnesses who may have been
acquainted with or friendly with
the victims in this case, including
not only lay witnesses, but police
officers. (T. at 1746-1747).
On appeal to the Connecticut Supreme Court
Petitioner assigned the charge as error on
three grounds: (1) it was unbalanced, (2)
it shifted to the Petitioner the burden of
proof and (3) denied Petitioner due process
of law and a fair trial. The Connecticut
Supreme Court rejected the claim and held
that the charge was fair comment on the
credibility of witnesses and well balanced,
and when read with other portions of the
charge did not shift the burden of proof.
In so doing the Connecticut Supreme Court
ignored decisions cited to it from the States
of Washington, Minnesota and North Carolina
that have condemned such a charge.
A trial court has a duty to instruct
the jury on the issue of credibility, Like-
wise, it is perfectly proper for the trial
court to advise the jury that it may con-
sider any bias or interest a witness may
have. However, such a charge must be even-
handed. It should not unduly emphasize
either side, and should in no way suggest
that one class of witnesses is less believa-
ble because of bias or prejudice.
[It has been held improper
to direct the jury to consider
the interest of a particular
witness or class of witnesses in
12
weighing his or their testimony
without directing attemtion to the
peg ig on the other side. 75
.Jur.2d, TRIAL §861 (1974) 23A
C.J.S., Criminal Law, §1308 (1961)
A number of jurisdictions have addressed
the problem that ya charge such as the one
given in the instant case creates. In
State v. Huff, 76 Wash. 2d 577, 458 P.2d 180
(1969) the court noted the underlying danger
created when a trial court singles out the
testimony of a particular class of witnesses:
To single out the testimony
of a particular witness for discus-
sion in an instruction (unless it
be a particular class, such as an
accomplice) seems to us to be argu-
mentative, to be an invasion of the
province of the jury, and to
suggest théefbourt's belief that
the testimony of the witness is
Suspect...Id. at 458 P.2d 182;
also see State v. Bibee, 496 S.W.
; oetate v.
Everett, 488 S.W. 2d 873, 878 (1970)
In State v. Bishop, 289 Minn. 188,
183 N.W. 2d 536 (1971) the defense asked
the trial court to instruct the jury that
certain indentification testimony be
scrutinized with extreme care." [Emphasis
supplied. 1rming the trial court's
refusal to give the charge the Supreme
Court of Minnesota said:
It is generally held that
it is improper for the court to
Single out particular witnesses
and charge as to their credibility.
{citing 19 Dunnell, Dig. (3 ed.)
§§9786, 9787; 53 Am. Jur., TRIAL
§ 615]; Id. 183 NW. 2d at 540.
13
Other jury charges using wording simi-
lar to the "with particular care" language
in the instant have constituted reversible
error. In State v. Davis, 223 N.C. 57,
25 SE.2d 187 (1943) the Following charge
led to a new trial:
The law regards with suspicion
the testimony of near relations,
other interested parties and those
testifying in their own behalf....
The evidence of near relations,
interested parties and those
testifying in their own behalf
must be taken with some degree of
allowance. Id, 25 S.E. 2d at 188.
The appellate court in State v. Lamb,
30 N.C. App. 255, 226 S.E. 2d 680 (1976),
held that a jury charge indicating that the
testimony of defendant's uncle ‘should be
carefully scrutinized," required a new trial.
The North Carolina Supreme Court has
sanctioned a charge that the testimony of a
defendant's relatives should be scrutinized,
but only if the court also instructs the
jury that if after such scrutiny the testi-
mony is believed it must be given the same
weight and credence as that of other
witnesses. State v. Eakins, 292 N.C. 445,
233 N.E. 2d ; .
While Petitioner believes the
latter North Carolina rule to be inadequate,
the charge in question herein falls far
short of even that standard for three very
significant reasons. First the jury in the
instant case was not advised that if after
weighing the testimony of defendant's
witnesses "with particular care" it believed
that testimony, it should give the testimony
the same weight and credence as that of
other witnesses. Secondly the charge in the
14
instant case not only focused on defendant's
relatives, but also included his friends
(Torres and Leary) and his former attorney
(Dahlmeyer) . Thirdly, the charge in the
instant case not only called undue attention
to defense witnesses, but went even further
and advised the jury that it should weigh
their testimony "with particular care."
This type of charge is normally reserved
for witnesses who are perjurers, accomplices
and informers. A comparison of the charge
given in this case with the perjurer, accom-
plice and informer charges from Devitt &
Blackmar, Federal Jury Instructions (1979)
follows:
The Turcio Charge
In weighing the credibility
of a witness who is a member of the
Defendant's family, or a friend,
or an associate, or who bears a
professional relationship to the
Defendant, you should scrutinize
his or her testimony with particu-
lar care. (T. at 1670). [Emphasis
supplied]
The Informer Charge
The testimony of an informer
who provides evidence against a
defendant for pay, or for immunity
from punishment, or for personal
advantage or vindication, must be
examined and weighed by the jury
with greater care than the testi-
mony of an ordinary witness. The
jury must determine whether the
informer's testimony has been
affected by interest, or by prej-
udice against defendant.
[Emphasis supplied. ] ag; at §17.02.
15
The Perjurer Charge
The testimony of an admitted
perjurer should always be con-
sidered with caution and weighed
with great care. [Emphasis supplied. ]
Id. af S17 .05
The Accomplice Charge
An accomplice is one who unites
with another person in the commission
of a crime, voluntarily and with
common intent. An accomplice does
not become incompetent as a witness
because of participation in the
crime charged. On the contrary,
the testimony of one who asserts by
his testimony that he is an accom-
plice, may be received in evidence,
and considered by the jury, even
though not corroborated by other
evidence, and given such weight as
the jury feels it should have. ;
The jury, however, should keep in
mind that such testimony is always
to be received with caution and con-
sidered with great care...[Emphasis
supplied.J] Id. at §17.06.
Instead of using the language ‘greater
care’ or "great care,’ the court in the
instant case used the phrase "with particu-
lar care.'' The effect, however, was the
same as when the informer, perjurer or
accomplice charge is given, to wit: to call
special attention to the witness or —
witnesses and to have the jury scruntinize
their testimony with greater care than the
testimony of other witnesses.
16
The charge in the instant case was
erroneous in and of itself. When read,
however, with other portions of the court's
instructions which specifically commented
on the same defense witnesses referred to
in the "particular care" charge, the jury
was left with the clear impression that
Defendant's parents, his friends, Torres
and Leary, and his former attorney should be
disbeleived. For example, immediately be-
fore the "particular care" language, the
court charged:
The State has the right to
show any bias or interest toward
the defendant on the part of
witnesses for the defense, The
evidence elicited from these
witnesses, by cross-examination,
concerning the nature of their
relationship with the defendant,
indicated long-term friendships
with such witnesses as Mr. Torres
and Mr. Leary, and their obvious
common interest and values. This
is relevant evidence which had a
direct bearing on the credibility
of these witnesses. (T. at 1669-
1670).
The court also instructed the jury on
the significance of felony convictions in
weighing credibility, and once again re-
ferred to the defense witnesses:
In this matter of credibility,
for example, you may consider the
testimony of Mr. Turcio, Senior,
in which he conceded, during cross-
examination, to having given prior
erroneous, inconsistent testimony,
at a pretrial hearing. I instruct
you that it is all proper for you,
as jurors, to determine credibility
upon these terms,
17
You will recall again, in
determining fact from evidence
offered to you in court, that it
was disclosed that the witnesses,
Mr. Turcio, Senior, and Mr. David
Leary, had been convicted of a
serious crime. A witness is not
disqualified because of his con-
viction of crime; but, such con-
viction may be shown for the purpose
of affecting his credibility.
(T.. at 42673).
Thus in five Consecutive pages of its
charge the court advised the jury to weigh
the testimony of key defense witnesses "with
particular care'' and then went on to cite
specific matters for them to consider. Mr.
and Mrs. Turcio, Torres and Leary, and
Attorney Dahlymeyer were central to the
intoxication issue, the sole defense. In
effect, the court's charge undermined their
credibility, shifted the burden of proof
and denied Defendant a fair trial, all in
violation of due process.
In addition to the foregoing the instant
charge further prejudiced the Petitioner
in that it advised the jury that the testi-
mony of Attorney Fred Dahlmeyer should be
weighed with "particular care."' An accused,
of course, has the constitutional right to
counsel after arrest. After Defendant was
arrested and confessed, Attorney Dahlmeyer
arrived at the police station and at trial
testified to his observations of the
Petitioner during this period. To suggest
in a charge that the attorney's testimony
should be weighed in the same manner as the
testimony of an accomplice, informer or perjurer
erodes the right to counsel guaranteed by the
Sixth Amendment.
18
so
THE COURT'S REFUSAL TO SUPPRESS THE CON-
FESSION AND ADMISSIONS OF THE SIXTEEN (16)
YEAR OLD DEFENDANT FOR THE REASON THAT HE
WAS ASKED TO WAIVE HIS MIRANDA RIGHTS WITHOUT
THE PRESENCE OF HIS PARENTS, AN ATTORNEY,
A GUARDIAN OR OTHER INTERESTED ADULT WAS
ERRONEOUS. IN SO HOLDING THE COURT ADOPTED
A "TOTALITY OF THE CIRCUMSTANCES" TEST AND
REJECTED DECISIONS BY COURTS IN PENNSYLVANIA,
INDIANA, GEORGIA AND LOUISIANA THAT HAVE
ADOPTED A PER SE EXCLUSIONARY RULE FOR
DEFENDANTS UNDER THE AGE OF EIGHTEEN (18).
Before trial, defense counsel moved to
Suppress certain statements made by Defendant
including a tape-recorded statement of March 5,
1975, any statements made by Defendant after
his apprehension by police up to the point
when the tape recording began, any sketches or
drawings made in the presence of law enforce-
ment officials, any waivers of rights made
orally or in writing by Defendant on March 5
and 6, 1975 and any oral statements made by
Defendant on March 6, 1975 in the presence of
Sg.t Joseph Izzo. As grounds for the motion,
counsel alleged that the statements were taken
in violation of Defendant's constitutional
rights against self-incrimination, to
effective assistance of counsel and due
process of law, and were not voluntarily and
knowingly made. Furthermore, the motion
alleged that the Defendant did not knowingly
waive his rights.
An extensive hearing was held before
trial, and in a memorandum of decision the
motion to suppress was.denied. At the con-
clusion of all the evidence at trial the
motion was renewed and again denied. (T.
at 1652-1653).
19
On appeal Petitioner asked the Connecticut
Supreme Court to adopt a rule recognized by
courts in Pennsylvania, Indiana, Georgia and
Louisiana. In order to sustain a purported
waiver of Miranda rights by a sixteen (16)
year old Defendant in the foregoing four
jurisdictions the state must show that the
Defendant actually consulted with an attorney
or other adult before the waiver and that the
attorney or adult consulted was interested in
the welfare of the Defendant and if an adult
other than an attorney was consulted the adult
was fully advised of Defendant's rights.
In rejecting the claim, the Connecticut
Supreme Court refused to adopt this rule
and instead adhered to a "totality of the cir-
cumstances" test, and concluded that the
trial court's finding that Petitioner know-
ingly and intelligently waived his Miranda
rights was fully supported by the record.
Although the issue raised herein was not
specifically raised at trial, the Connecticut
Supreme Court reviewed the claim because of
its constitutional dimensions. State v. Evans,
165 Conn. 61, 70, 327 A.2d 576 (1973).
FACTUAL BACKGROUND
In its memorandum of decision the trial
court found certain facts that we concede
were adequately supported by the record and
within the. discretion of the trial court to
find. No purpose can be served by repeating
the facts found. Since the issue raised
herein was not raised at trial, a review of
the facts relevant to the instant claim is
hereinafter set forth.
On the evening of March 5, 1975 police
officer Oren was called to the DeLucia home
where Defendant was being held by the
20
DeLucia family for a burglary. Officer Oren
arrived and read the Defendant his Miranda
rights and brought him to the police station.
Shortly after 10:00 P.M. at the police station
the Defendant was again advised of his Miranda
rights and executed a waiver at 10:15 P.M.
At about 10:45 P.M. police officer Izzo arrested
the Defendant for the Frank's Market incident
and again read him his Miranda rights and
Defendant executed another waiver. Thereafter
Defendant was taken to the detective room for
questioning. After approximately five minutes
Defendant made an oral inculpatory statement,
together with markings on a sketch and there-
after a recorded statement.
The taping was interrupted and curtailed
by the arrival of the family lawyer, Fred
Dahlmeyer, who had been called by Defendant's
father. Mr. Turcio was called at the
suppression hearing and testified as follows.
(Motion to Suppress Transcript, hereinafter
"M.S.T.", at 233-280). He received a phone
call around 10:30 P.M. from his brother-in-law
telling him that his son was down at the
police station. (M.S.T. at 233). This
was his first knowledge of the arrest.
(M.S.T. at 233). Mr. Turcio then called
Attorney Dahlmeyer and went down to the
police station. (M.S.T. at 234-235). When
he arrived at the police station, Attorney
Dahlmeyer was already there. The attorney
conferred with the Defendant and Mr. Turcio
remained in another room. (M.S.T. at 235).
Mr. Turcio then went home, conferred with
Mrs. Turcio and returned with some clothes.
(M.S.T. at 235-236). Thereafter Mr. Turcio
saw his son for a few seconds, but did not say
anything to him. (M.S.T. at 236-239).
Mr. Turcio was advised that he couldn't see
his son until the morning and the couple
returned in the early morning. (T. at
239-240; 261-265; 276-277). This was the
21
first time Mr. Turcio talked to his son and
the conversation lasted about five minutes.
(T. at 266).
In his memorandum, the trial judge
noted that before the Defendant made the oral
and tape-recorded admissions, ''the record
grounds no finding as to whether the Defendant
ever asked to have his parents present".
THE LEGAL AUTHORITIES
The Defendant was sixteen years old on
the date of the offense. Under Connecticut
law, a sixteen year old defendant is a minor
and a youthful offender. He is accorded
special status because of his age and
immaturity. At least four states have
recognized that a defendant under the age
of eighteen is entitled to consult with his
parents or another adult when asked to waive
his Miranda rights. The record is clear that
this did not occur in the instant case.
Commonwealth v. Smith, 472 Pa. 492,
372 A.2d 797 (1977) litigated the issue
of effective waiver of a minor's con-
stitutional rights prior to custodial
interrogation. In Smith, the defendant,
a 17 year old youth, was charged and con-
victed of murder. During custodial
interrogation following his arrest the
defendant made an inculpatory statement
which was used against him at trial. In
reversing the conviction and ordering a
new trial, the court recognized that "due
process requires that a waiver by a youth-
ful offender is effectuated only when it
has been shown that the minor comprehended
the full significance of the panoply of
rights that protects him during custodial
interrogation." Id. at 372 A.2d 799. To
insure such comprehension, the court
formulated the following rule:
22
[T]he impediment of immaturity
can only be overcome where the record
establishes that the youth had access
to the advice of an attorney,
parent, or other interested adult
and that the consulted adult was
informed as to the constitutional
rights available to the minor and
aware of the consequences that might
follow the election to be made.
Id. 372 A.2d at 800.
In Smith, unlike our case, th
defendant"s father heard the not nen
warnings and was invited to accompany
his son to the police station. Even this,
in the view of the court, was not adequate
to insure a knowing and intelligent waiver.
Under Smith, failure by the state to
establish: .
[EJither the adult was one
interested in the welfare of the
juvenile accused, that the adult
was aware of the rights of the
accused, or that the minor had an
opportunity to consult, would justify
the conclusion that the purported
waiver was ineffective. Id. 372
A.2d at 803. as
The Smith decision, supra is the most
recent Pennsylvania case to recognize the
importance of parental or adult guidance
in waiving a minor's Miranda rights.
Commonwealth v. Roane, 459 Pa. 389, 329 A.2d
286 (1974) (16 year old defendant) ;
Commonwealth v. Starkes, 461 Pa. 178, 335
A.2d 698 (1975) (14 year old defendant) ;
Commonwealth v. McCutchen, 463 Pa. 90, 343
A.2d 669 (1975) (I5 year old defendant) U.S.
a
cert. denied in 424 U.S. 934;
Commonwealth v. Harvell, 477 Pa. 126, 374
A. year old defendant).
The Supreme Court of Indiana in Lewis
v. State, 259 Ind. 431, 288 N.E. 2d 138
adopted an exclusionary rule
similar to the one recognized in
Pennsylvania. In Lewis the defendant was
17 years of age and convicted of murder.
He was brought to the police station as a
Suspect, advised of his Miranda rights and
executed a written waiver. Thereafter the
defendant confessed, and after the con-
fession called his mother.
The court first noted that persons
under eighteen years of age occupy a
special legal status in our society. In
many states, they are unable to execute
a binding contract, convey real property,
unable to marry without parental consent,
purchase alcoholic beverages or donate their
own blood. It would be inconsistent and
unjust, noted the court, to require such
persons to stand on the same footing as an
adult when asked to waive important Fifth
and Sixth Amendment rights. Id. 288 N.E.2d
at 141-142.
The court reversed the conviction and
said:
We hold therefore that a
juvenile's statement or confession
cannot be used against him at a
subsequent trial or hearing unless
both he and his parents or guardian
were informed of his rights to an
attorney, and to remain silent.
Furthermore, the child must be given
an opportunity to consult with his
24
parents, guardian or an attorney
representing the juvenile as to
whether or not he wishes to waive
those rights. After such consulta-
tion the child may waive his rights
if he so chooses provided of course
that there are no elements of coer-
cion, force or inducement present.
This approach has been advocated by
several commissions who have studied
this area and we believe it represents
the best solution to a difficult
and re-occuring problem. Model
Rules for Juvenile Courts, Rule 25,
Evidence (1969), proposed by the
Council of Judges of the National
Council on Crime and Delinquency,
Proposed Indiana Rules of Juvenile
Procedure, Rule 9. Having a
familiar and friendly influence
present at the time the juvenile
is required to waive or assert his
fundamental rights assures at
least some equalization of the
pressures borne by a juvenile
and an adult in the same situation.
Likewise, the Supreme Courts of Georgia
and Louisiana have adopted the same per se
rule adopted in Pennsylvania and Indiana and
have rejected reliance on the "totality of
circumstances" test accepted by the Connecti-
cut Supreme Court in the instant case.
Freeman v. Wilcox, 167 S.E.2d 163 oe, Ce.
App. 1969); In re Dino, me. , 399 So.
2d 586 (1978).
Under Connecticut law a sixteen year old
is not a juvenile. The test, however, of
what rights a minor under the age of eighteen
is to be afforded should not depend on his
classification under state law as a "juvenile".
25
Should a seventeen-year-old "juvenile" in
Pennsylvania, Indiana, Georgia and Louisiana
be entitled to greater constitutional pro-
tections than a sixteen-year-old "adult" in
Connecticut? If anything the sixteen-year-old
accused in Connecticut should be afforded
greater protection since the consequences
of prosecution he faces as an "adult" are
much more serious than the consequences
facing the seventeen-year-old Pennsylvania
"juvenile".
Connecticut law does not permit a sixteen-
year-old minor to appear in court without one
of his parents or a guardian ad litem. Fahay
v. State, 25 Conn. 204, 106 (1856). The parent
or guardian is there to advise the defendant
of many things including whether to waive
his privilege against self-incrimination
by testifying in his own defense or by
pleading guilty. To require adult advice
in court but not while the minor is in
custody makes no sense. If the minor needs
adult advice in the courthouse where his
lawyer is present, it is even more important
that he have the same protection at the police
station when no counsel is present.
As we have noted, the trial court's
memorandum notes that ''the record grounds
no finding as to whether the Defendant ever
asked to have his parents present". Under
the standards adopted by Pennsylvania,
‘Indiana, Georgia and Louisiana, the prosecu-
tion has the burden of establishing a
knowing, intelligent and voluntary waiver
of Miranda rights. Here the State failed
to establish that Defendant waived his
parents’ presence. At a minimum this Court
should adopt a rule requiring the State to
prove by a preponderance of the evidence
that a sixteen-year-old defendant was advised
26
of his right to have his parents present and
waived same. Such a rule would not satisfy
the Pennsylvania, Indiana, Georgia and
Louisiana tests, but would supply some
minimum protection for the youthful offender.
The trial judge also found that the
Defendant had drugs on his person when arrested
on March 5, 1975. At trial, but not at the
suppression hearing, defense counsel called
scores of witnesses to testify to Defendant's
drug addiction history and his intoxicated
condition on March 5, 1975. Their testi-
mony is persuasive that there was not a
knowing, intelligent and voluntary waiver
of fundamental constitutional rights in this
case.
CONCLUSION
For the foregoing reasons Petitioner
respectfully requests that the writ of
certiorari be granted.
Respectfully submitted,
THE PETITIONER
By HUBERT J. SANTOS
A Member of the Bar
of the Supreme Court
of the United States
Dated: August 27, 1979
27
APPENDIX
APPENDIX (1)
Opinion of Connecticut State Supreme Court,
XL Conn. L. J. No. 52 at 4
(June 26, 1979)
la
SUPREME COURT
January Term, 1979
State oF ConnEcTIcUT v. JosePH TURCIO
Corrmr, C. J., LOISELLE, BoGpANSKI, PeTeRS and ParSKEY, Js.
Argued January 9—decision released June 26, 1979
Indictment charging the defendant with the crime
of murder and information charging the defendant
with the crimes of assault in the first degree and
robbery in the first degree, brought to the Superior
Court in New Haven County and tried to the jury
before McCarthy, J.; verdicts and judgments of
guilty and appeals by the defendant. No error.
Hubert J. Santos, with whom, on the brief, was
A. Susan Peck, for the appellant (defendant).
Ernest J. Diette, Jr., assistant state’s attorney,
with whom, on the brief, were Arnold Markle, state’s
attorney, and John T. Redway, assistant state’s
attorney, for the appellee (state).
LorseLte, J. The defendant was found guilty by
a jury of twelve of causing the death of Frank Mas-
saro, while committing or attempting to commit a
robbery, in violation of General Statutes § 53a-54e
and also guilty of the crime of assault in the first
degree upon Jean Massaro, in violation of General
Statutes §53a-59 (a) (1) and of robbery in the
first degree in violation of General Statutes
§ 53a-134 (a) (1). From the judgments rendered
on the verdicts, the defendant has appealed.
On March 5, 1975, at about 8 p.m., the owners of
Frank’s Market on Foxon Road in East Haven,
Frank and Jean Massaro, were closing their store.
2a
=
Mrs. Massaro went to their car first, carrying a
cigar box containing money. After she and her
husband got into their car, the defendant jumped
in behind them waving a gun. Mrs. Massaro turned,
saw the defendant’s face, opened the car door, got
out and ran screaming around the car. She was
then shot in the back and fell to the ground. She
heard another shot and saw her husband fall. The
defendant then picked up the cigar box and ran.
Frank Massaro died as a result of the shooting.
Both in his brief and at oral argument, the defend-
ant conceded that the state had a “strong” case
against him and that the real issue was whether he
was so intoxicated from the use of drugs as to be
incapable of forming the requisite intent required
to be convicted of the crimes charged. To resolve
this issue, both the state and the defendant intro-
duced evidence as to the defendant’s activities on
the day of the shootings and of his condition prior
thereto, including the early morning hours of March
3, 1975, the details of which are discussed more fully
in response to the defendant’s claims of error in the
charge and in certain evidentiary rulings.
The defendant has raised and briefed numerous
claims of error. In this case, the maximum sentence
was life imprisonment. It has been the policy of this
court that in such situations, although the research
and decision process are not affected, the opinion is
more detailed than is otherwise warranted.
I
The defendant first contends that the court erred
in charging the jury that it should weigh the testi-
mony of a certain class of witnesses “with particular
care.” In presenting his defense, the defendant
called a number of witnesses to testify in support
of his claim that he was under the influence of drugs
when he committed the crimes in question. Among
3a
those witnesses were the defendant’s parents,
Joseph Turcio, Sr., and Jeanette Turcio, his uncle
Michael Liso, his friends David Leary and Robert
Torres, and his former attorney, Fred D. Dahl-
meyer. At the prosecution’s request the trial court
charged the jury as follows: “In weighing the
credibility of a witness who is a member of
defendant’s family, or a friend, or an associate, or
who bears a professional relationship to the defend-
ant, you should scrutinize his or her testimony with
particular care.” Defense counsel excepted to this
charge on the ground that there was a lack of
balance.”
The issue as presented on appeal is whether it is
permissible for the court to single out a particular
class of witnesses and instruct the jury to scrutinize
their testimony more carefully because they have
a particular relationship with the defendant. In
determining the credibility of a witness, the jury
may take into account the fact that he stands in
some legal or contractual relationship to a party
which might affect his testimony, such as where the
witness is an attorney, a relative, or a friend. As a
general rule, “[a] court may not by an instruction
deny to the jury the right to consider the interest
of a party in determining the credit to which his
~ testimony is entitled, but in instructing the jury as
to the credibility of witnesses, may authorize them
to take into consideration the interest of the wit-
nesses, if any, in the result of the lawsuit, and in a
proper case should caution the jury as to the care to
be exercised in weighing the testimony of interested
persons.” 75 Am. Jur. 2d, Trials, § 861, p. 743.
*The state contends that the grounds raised on appeal are
different than those asserted at trial. From reading the record and
the defendant’s brief, it is apparent that the substance of the objec-
tion on appeal is basically the same as that made at the trial court
and that the defendant clearly apprised that court of his objection.
Therefore, the defendant’s claim is addressed as presented here.
State v. Rado, 172 Conn. 74, 81, 372 A.2d 159 (1976).
4a
In an analogous situation, that of instructions
concerning the alibi witness, this court has held that
an instruction as to the interest of witnesses is cor-
rect and necessary: “On numerous occasions this
court has stated that the trial court in a criminal
case may, in its discretion, make fair comment on
the evidence and particularly on the credibility of
witnesses. See State v. Tropiano, 158 Conn. 412,
428, 262 A.2d 147; State v. LaFountain, 140 Conn.
613, 620, 103 A.2d 138; State v. Pecciulis, 84
Conn. 152, 158, 79 A. 75. In addition, we have also
declared that an instruction on the credibility of
alibi witnesses similar to that challenged by this
assignment of error is both proper and fair when
weighed in the light of the other paragraphs of the
charge. State v. Groos, 110 Conn. 403, 410, 148 A.
350; State v. Cianflone, 98 Conn. 454, 466, 120 A.
347 .... It is well recognized that the credibility
of alibi witnesses is a subject as to which fair com-
ment by the court to the jury is allowed. See Sul-
livan v. Scafati, 428 F.2d 1023 (1st Cir.), cert.
denied, 400 U.S. 1001, 91 S. Ct. 478, 27 L. Ed. 2d
452; Surridge v. State, 239 Ark. 581, 393 S.W.2d
246; Commonwealth v. Sullivan, 354 Mass. 598, 239
N.E.2d 5, cert. denied, 393 U.S. 1056, 89 S. Ct. 697,
21 L. Ed. 2d 698; State v. Griffin, 336 S.W.2d 364
(Mo.); Commonwealth v. Gates, 392 Pa. 557, 141
A.2d 219; Rogers v. State, 455 S.W.2d 182 (Tenn.
Crim. App.); Bolin v. State, 219 Tenn. 4, 405
S.W.2d 768.” State v. Cari, 163 Conn. 174, 182, 303
A.2d 7 (1972). While the defendant here did not
offer an alibi in the sense that he claimed to be some-
where else at the time of the shooting, the testimony
offered by the witnesses in question went directly to
his only defense, i.e., intoxication due to drug inges-
tion, and is, therefore, quite similar to the alibi
defense in Cari, supra. See also State v. Bennett,
172 Conn. 324, 329-30, 374 A.2d 247 (1977); State
v. Jones, 167 Conn. 228, 238, 355 A.2d 95 (1974).
5a
The defendant further contends that the trial
court’s instructions* as to prior inconsistent state-
ments and witnesses with prior felony convictions
and ascertainable interests compounded the prob-
lem, because taken together with the “particular
care” charge they suggested that certain defense
witnesses should not be believed.* The court was
correct in its instruc‘‘ons on the credibility to be
accorded witnesses with prior felony convictions,
ascertainable interests or who had given prior
inconsistent statements. It was an unfortunate
situation, but one for which the trial court had no
responsibility to compensate, that only those wit-
nesses who had testified for the defendant fell into
these categories. The rule is well settled in this
state that a charge does not rise or fall on individ-
ual, isolated sentences, but must be looked at as a
whole. This court laid down the test in State v.
Ralls, 167 Conn. 408, 422, 356 A.2d 147 (1974):
“The charge to the jury, however, must be read as
a whole, and an attempt to assert reversible error
* The court instructed as follows:
“The state has the right to show any bias or interest toward the
defendant on the part of witnesses for the defense. The evidence
elicited from these witnesses, by cross-examination, concerning the
nature of their relationship with the defendant, indicated long-term
friendships with such witnesses as Mr. Torres and Mr. Leary, and
their obvious common interest and values. This is relevant evidence
which had a direct bearing on the credibility of these witnesses.”
Later the court also instructed :
“In this matter of credibility, for example, you may consider
the testimony of Mr. Turcio, Sr., in which he conceded, during cross-
examination, to having given prior erroneous, inconsistent testimony,
at a pretrial hearing. I instruct you that it is all proper for you, as
jurors, to determine credibility upon these terms.
“You will recall again, in determining fact from evidence offered
to you in court, that it was disclosed that the witnesses, Mr. Turcio,
Sr., and Mr. David Leary, had been convicted of a serious crime.
A witness is not disqualified because of his conviction of crime; but
such conviction may be shown for the purpose of affecting his
credibility.”
*In discussing what had a direct bearing on credibility, the court
noted that Joseph Turcio, Sr., made prior inconsistent statements
and had a felony conviction; that Robert Torres and David Leary
were long-term friends of the defendant; and that Leary had a
felony conviction.
6a
by culling a single phrase or inaccurate statement
must fail unless it is reasonably probable that the
jury were misled. State v. Tropiano, 158 Conn.
412, 433, 262 A.2d 147, cert. denied, 398 U.S. 949,
90 S. Ct. 1866, 26 L. Ed. 2d 288; Penna v. Esposito,
154 Conn. 212, 215, 224 A.2d 536; Allard v. Hart-
ford, 151 Conn. 284, 292, 197 A.2d 69.” The charge
in the instant case was well balanced. Prior to giv-
ing the eomplained of charge on “particular care,”
the court gave the following instruction on how to
determine the credibility of all the witnesses: “In
weighing the testimony of a witness, you should
consider his appearance on the stand; you should
try to size him up; you should have in mind all those
little circumstances which point to his truthfulness
or untruthfulness; you should consider any possible
bias or prejudice he may have, whether for or
against the state or the accused; his interest or
lack of interest, of whatever sort, in the outcome
of the trial... you should test the evidence he
gives you by your own knowledge of human nature,
and of the motives which influence and control
human beings.” Moreover, the charge contained the
customary reference to the presumption of inno-
cence and the burden on the state to prove all the
elements of the offense beyond a reasonable doubt
before they could convict. Taken as a totality, it is
obvious that the charge accurately and adequately
presented the law to the jury. State v. Roy, 173
Conn. 35, 40, 376 A.2d 391 (1977); State v. Craw-
ford, 172 Conn. 65, 69, 372 A.2d 154 (1976); State
v. Mullings, 166 Conn. 268, 275, 348 A.2d 645 (1974).
In light of the fact that the jury had already been
instructed that in weighing the credibility of all
witnesses they could consider the ordinary factors
that might affect recollection or produce bias, the
additional instruction was mappropriate and should
be discouraged. When viewed as a whole, however,
the charge did nothing more than state to the jury
7a
what good common sense dictates; namely, that they
may weigh on the credibility seale the potential for
bias where a witness has some relationship with a
party to an action.
IT
The defendant’s second assignment of error is
that the trial court erred in allowing the defendant’s
father to be cross-examined as to other crimes and
bad acts committed by the defendant. On direct
examination, the defendant’s father was asked about
and gave his opinion as to his son’s propensity for
violent conduct. On cross-examination, the prosecu-
tion questioned the father about his knowledge of
specific incidents in which his son was involved. On
this appeal, the defendant claims that this cross-
examination should have been excluded for two
reasons: (1) a portion of the examination violated
this court’s holding in State v. Martin, 170 Conn.
161, 365 A.2d 104 (1976), that a character witness
cannot be cross-examined as to specific acts of mis-
conduct in detail to disprove the trait in question;
and (2) other portions of the objected-to examina-
tion were not relevant to rebut the claim of non-
violence.
The following is a synopsis of the testimony in
issue. In support of the intoxication defense, the
defendant’s father took the stand and testified about
his son’s problems with drugs and his intoxicated
condition on March 5, 1975. During his direct tes-
timony, Joseph Turcio, Sr., was asked by defense
counsel to render an opinion as to his son’s propen-
sity for violence. Before Turcio responded, the
prosecutor objected on the grounds that the question
was irrelevant. In the ensuing colloquy, the prose-
cution indicated that it felt that this question was
placing the defendant’s character into issue. In
response, defense counsel claimed that the question
went to establishing whether the defendant had as
8a
a “trait” the tendency to commit violent acts. Turcio
then testified that his son was a calm boy and that
he had “never seen him act violently.”
On cross-examination of Turcio, the prosecution
delved into the issue of the defendant's character
and tendency to nonviolence as follows: Turcio was
asked if he knew that his son “pushed your wife
around and was somewhat belligerent and physical
with her on July 25th of 1974.” Turcio’s answer was
that he was not aware of the incident. The prosecu-
tion then asked whether Turcio knew that his son
struggled with the police when they responded to
the incident and that the police had to subdue him.
Turcio responded that he was not aware of the
incident. The prosecution also asked Turcio
whether he and his son had a fistfight in August of
1974. Turcio’s response was that he remembered the
incident, but he explained that no blows had been
exchanged. The prosecution next asked Turcio
whether he knew that his son had created a dis-
turbance at the East Haven Middle School in March
of 1973. Turecio answered that he did not know of
the incident. Turcio was then asked whether he
knew that his son in June of 1973 had thrown a
firecracker out of a car at a police officer. Turcio’s
reply was that he was aware that his son had thrown
a firecracker: in front of the police station, but he
was not aware it was at a police officer.
From the form and content of the questions
excerpted above, it is obvious that the purpose of
the cross-examination in the present case was not
to prove that certain acts occurred, and thereby dis-
prove a trait of character, but to test the witness’
concept of the character trait, the extent of his
observations, and the good faith with which he tes-
tified. It is also obvious from the phrasing “did
you know” and “do you recall” that the prosecution
wanted to test the basis of the witness’ opinion, not
9a
to disprove the existence of the trait by proof of
specific facts. The questions themselves contained
no more detail than was necessary to apprise the
witness of the specific incidents to which the prose-
cution was referring and did not require the witness
to go into prejudicial detail in Sis answers.
Whether the acensed produces testimony of rep-
utation or opinion to prove a trait, the prosecution
may not use specific acts of misconduct to disprove
the trait. See Verdi v. Donahue, 91 Conn. 448, 454,
99 A. 1041 (1917), for the rationale of this rule.
“There is a distinction between the prosecution’s
use of specific acts in rebuttal to disprove the trait
in question and the prosecution’s use of specific acts
in the cross-examination of a character witness.
When a character witness has given his opinion as
to a particular trait, the state may cross-examine
that witness concerning specific acts, not to prove
the truth of such facts, but to test the credibility of
the character witness by ascertaining his good faith,
his source and amount of information and his accu-
racy. See Michelson v. United States, [335 U.S.
469, 69 S. Ct. 213, 93 L. Ed. 168]; United States v.
Curry, 512 F.2d 1299, 1305 (4th Cir.), cert. denied,
423 U.S. 832, 96 S. Ct. 55, 46 L. Ed. 2d 50; United
States v. Beno, 324 F.2d 582, 588 (2d Cir.), cert.
denied, 379 U.S. 880, 85 S. Ct. 147, 18 L. Ed. 2d 86;
and see cases cited in annotation, 47 A.L.R.2d 1258,
1274-77. The question should not be extended to
the details of the acts. See Magee v. State, 198 Miss.
642, 650, 22 So. 2d 245; State v. Carroll, 188 S.W.2d
22, 24 (Mo.) ; Schroeder v. State, 142 Tex. Crim. 443,
447, 154 S.W.2d 480. When, on cross-examination,
questions as to specific acts are asked for that pur-
pose, they are not objectionable.” State v. Martin,
170 Conn. 161, 164-65, 365 A.2d 104 (1976).
10a
As noted above, the defendant also objects to the
prosecution’s inquiries about the East Haven school
disturbance and the throwing of the firecracker on
the ground that those specific incidents were irrele-
vant to the issue of the defendant’s propensity for
violence. Defense counsel made a timely objection
for the same reasons, but the trial court overruled
the objection.
“Evidence of an accused’s trait of character must
be relevant to an element of the crime charged. State
v. Blake, 157 Conn. 99, 104, 249 A.2d 232; State v.
Campbell, 93 Conn. 3, 10, 104 A. 653. Likewise, when
the prosecutor attacks the basis of the witness’
opinion by questioning him as to his knowledge of
specific acts, such acts must be relevant to those
traits. See Aaron v. United States, 397 F.2d 584,
585 (Sth Cir.) ; People v. Marsh, 58 Cal. 2d 732, 745,
376 P.2d 300. The determination of relevance must
be made according to reason and judicial experience.
Robinson v. Faulkner, 163 Conn. 365, 371, 306 A.2d
857. ... ‘In determining whether there has been
an abuse of discretion, every reasonable presump-
tion should be given in favor of the correctness of
the court’s ruling. ... Reversal is required only
where an abuse of discretion is manifest or where
injustice appears to have been done.’ State v.
Brown, 169 Conn. 692, 702, 364 A.2d 186. ‘[T]he
ultimate issue.is whether the court could reasonably
conclude as it did.’ DiPalma v. Wiesen, 163 Conn.
293, 299, 303 A.2d 709.” State v. Martin, supra,
165-66.
The defendant’s father asserted on direct exam-
ination that the defendant was a “calm boy.” We
cannot say that the trial court abused its discretion
by deeming relevant the incidents of the school dis-
turbance and the throwing of the firecracker, which
refute the claim of a calm disposition. As to the
prejudicial effect of the testimony, the trial judge,
lla
in the exercise of judicial discretion, must decide
whether the probative value of the testimony out-
weighs the prejudice likely to result from its admis-
sion. State v. Ralls, 167 Conn. 408, 417, 356 A.2d
147 (1974); State v. Moynahan, 164 Conn. 560, 597,
325 A.2d 199, cert. denied, 414 U.S. 976, 94S. Ct. 291,
38 L. Ed. 2d 219 (1973). The defendant put his
character into evidence through his father’s testi-
mony as to his opinion of his son’s propensity for
violence. The trial court did not err in allowing the
state to question the basis of Turcio’s opinion by
referring to specific acts of the accused. The inquiry
was relevant to traits in issue and the prosecution
went into no more detail than was necessary to
delineate and describe the incidents.
It
The defendant’s third assignment of error is that
the court improperly admitted into evidence testi-
mony pertaining to certain specific acts of prior mis-
conduct and crimes allegedly committed by the
defendant. The defendant specifically objects to five
separate incidents: (1) the state’s introduction of
testimony in its case in chief that on the day of the
murder, March 5, 1975, the defendant burglarized
a home and was found in possession of the fruits
of that burglary later that day; (2) the state’s intro-
duction during the course of its cross-examination
of the defendant’s mother of an appearance bond
form which indicated that the defendant had been
arrested for trespassing on March 3, 1975; (3) in
rebuttal, the state’s presentation of more evidence
concerning the defendant’s arrest for trespass and
the introduction of testimony that in the course and
apprehension of the defendant and a companion,
Robert Torres, shotgun shells were found on both
of them; (4) the state’s presentation of evidence in
rebuttal that a policeman observed and followed the
12a
defendant on March 4, 1975, at 2:30 a.m.; and (5)
the state’s offer of evidence that on September 19,
1974, an East Haven police officer fingerprinted the
defendant.
As a general proposition, evidence of guilt of
other crimes, because of its prejudicial nature, is
inadmissible to prove that a defendant is guilty of
the crimes with which he is charged. State v. Hol-
liday, 159 Conn. 169, 172, 268 A.2d 368 (1970) ; State
v. Harris, 147 Conn. 589, 599, 164 A.2d 399 (1960).
Such evidence is admissible for other purposes,
however, such as when it is particularly probative
in showing such things as intent, an element in the
crime, identity, malice, motive or a system of crim-
inal activity, to name some exceptions to the rule.
State v. Brown, 169 Conn. 692, 701, 364 A.2d 186
(1975). The trial judge, however, must determine
in the exercise of judicial discretion that its pro-
bative value outweighs its prejudical tendency.
State v. Moynahan, supra, 597; State v. Holliday,
supra, 173. Reversal is required only where an
abuse of discretion is manifest or where injustice
appears to have been done. State v. Hauck, 172
Conn. 140, 144, 374 A.2d 150 (1976); Thomas v.
Thomas, 159 Conn. 477, 480, 271 A.2d 62 (1970); 1
Wharton, Criminal Evidence (13th Hd.) § 241.
The testimony to which the defendant has
assigned error concerning the burglary was given
by three witnesses, Domenic DeLucia, James Arcan-
gelo and Anthony DeLucia, called by the state in
presenting its case in chief.‘ The sum and sub-
stance of their testimony was as follows: Domenic
DeLucia took the stand and testified on direct that
between 9 and 9:30 p.m. on March 5, 1975, the
*The burglary itself is relevant because the defendant was brought
to the police station initially in connection with it. It was while
being questioned about the burglary at the DeLucia residence that
he admitted shooting the Massaros.
13a
day of the assault on the Massaros, he was a passen-
ger in a car being driven by his cousin, James
Arcangelo. DeLucia saw the defendant hitchhiking
on route 80 in East Haven and Arcangelo stopped
the car and they talked with him. While they were
talking, DeLucia noticed that the defendant had in
his possession DeLucia’s wristwatch and his sister’s
ring. DeLueia then told the defendant to get into
the car and, when the defendant resisted, the two
exchanged punches. The trio then drove directly to
DeLucia’s home and DeLucia called the police
because he believed that the defendant had robbed
his house earlier that day. According to DeLucia,
the defendant denied breaking into his house. The
defendant also told him that the items taken from
DeLucia’s house between 10 and 11 a.m. were at
David Leary’s house.
DeLucia further testified that the police arrived
at the house five or ten minutes after they were
called. The police placed the defendant in custody
and left. DeLucia saw other items on the defendant
that were taken in the burglary including a cross,
silver coins and rings. DeLucia did not see a gun
on the defendant when he picked him up. On the
stand, DeLucia identified a wallet that was stolen
from his house. He stated that he saw the wallet
on March 5, 1975, when it was taken out of the
defendant’s pocket. DeLucia also testified that while
the defendant was with him he looked tired, but there
was nothing unusual about him, that he understood
everything the defendant said and that the defend-
ant was not staggering or acting abnormally.
Immediately after DeLucia testified, the trial
court at the request of the defendant gave an
instruction on DeLucia’s testimony, cautioning the
jury that his testimony could be considered only for
the limited purpose of explaining the confrontation.
l4a
Jamies Arcangelo testified generally to the same
effect. He also testified that although the defendant
appeared tired, he seemed to know where he was.
He had no difficulty walking, spoke clearly and his
appearance was not unusual. No cautionary instruc-
tion was requested or given.
Anthony DeLucia, Domenic’s father, testified that
he was home when the defendant and his son and
Arcangelo arrived shortly after 9 p.m. He asked
the defendant if he had broken into the house and
the defendant said no. He further testified that the
defendant told his son: “I wouldn’t rip you off,
Domenic. If you want your stuff, I can take you
right now. It’s at Dave's.”
On direct examination, the prosecution did not
ask Anthony DeLucia about the defendant’s physical
condition. No limiting instruction was requested or
given.
Before these witnesses were called, defense coun-
sel objected to their testifying on the ground that the
prior crime evidence he expected to be elicited would
be prejudicial and lacked probative value; that evi-
dence of a burglary which occurred between 10 and
11 a.m. was irrelevant to establish the defendant’s
state of mind at 8 p.m. the same day; that there
were no witnesses to the burglary; and that the only
link between it and the defendant was the fact that
he had some of the stolen items in his possession.
The prosecution claimed the testimony was relevant
and thus admissible on two grounds: first, to negate
the claim that the defendant’s confession was invol-
untary because of his intoxicated condition and,
secondly, to negate the defendant’s anticipated
defense that he lacked the intent to commit the
crime because of his intoxicated state.
l5a
In the instant case, the defense was lack of spe-
cific intent to commit the crimes charged by reason
of intoxication due to drug ingestion. In order to
prove intent, an essential element of the crimes
charged, the prosecution had the burden of dis-
proving intoxication. To this end, testimony as to
the defendant’s demeanor, his ability to understand,
his physical appearance, and his speech patterns,
offered by individuals who observed and interacted
with him a little less than an hour after the shoot-
ings, would be highly probative and relevant on the
issue of intent. The testimony as to prior crimes was
necessary background to explain how and why
the defendant was in the presence of those three wit-
nesses shortly after the shootings and as a basis
for the admissions to the police which were to follow.
See State v. Harris, 147 Conn. 589, 599, 606, 164 A.2d
399 (1960).
While it was not an abuse of the trial court’s dis-
cretion to allow the testimony as to the morning
burglary, because of its relevancy to intent and the
issue of drug intoxication or lack of the same and
its significance in establishing a context, it is impor-
tant to note also that the same evidence was elicited
later without objection from the arresting officer in
testifying as to the voluntariness of the defendant’s
subsequent admissions while in custody. Further,
after the inital testimony by DeLucia, the court gave
a limiting instruction which correctly instructed the
jury on its proper use.
IV
The defendant next attacks the court’s allowance
into evidence of an appearance bond form signed
by the defendant two days before the shootings.
The appearance bond in question contained the
defendant’s signature and indicated that he had
been arrested for criminal trespass on March 3,
1975.
l6a
The context of the complained of error is as fol-
lows: During its case in chief, the prosecution intro-
duced two Miranda warning cards without objection
and a fingerprint card, all of which were offered
solely to show the voluntary nature of the state-
ments made by the defendant in police custody.
Defense counsel objected to the admission of the fin-
gerprint card on the ground of lack of relevancy,
but the objection was overruled.
To support its claim that the defendant was so
intoxicated by drugs that he lacked the required
intent to commit the crimes charged, the defense
called the defendant’s mother, Jeanette Turcio, who
was familiar with the defendant’s handwriting, and
questioned her about her son’s handwriting on
various exhibits. During cross-examination of Mrs.
Turcio, the prosecution offered the appearance bond
in question. Defense counsel objected to the admis-
sion of the bond on the grounds that it was evidence
of a prior arrest and it had no probative value that
outweighed its prejudical effect.
The state argued that the appearance bond was
relevant to the issue of the defendant’s mental
ability or state of mind at the time it was signed.
The court ruled that the offer of other comparative
signatures was the operative condition for its admis-
sion; that it was relevant evidence to the issue of
the defendant’s ability to form intent; and that its
probative value outweighed the prejudical context.
The court noted that there was no way to excise the
prejudicial parts of the form. Defense counsel made
no suggestion on how to disguise the nature of the
document at that time, except for exclusion.
On appeal, the defendant contends that he was
prejudiced because the appearance bond form and
the testimony surrounding its admission tended to
l7a
prove the commission of other crimes than that
charged and unconnected with the case being tried.
The defendant argues that the appearance bond
form is similar to a mug shot and fingerprint card
and therefore its admissibility should be dependent
on the same criteria as that enunciated in United
States v. Harrington, 490 F.2d 487 (2d Cir. 1973).
Since Harrington was decided, this court has con-
sidered the effect of mug shots in evidence in at least
four cases and has consistently followed the rule
regarding any evidence which indicates prior crim-
inal activity. In determining admissibility the trial
court must consider whether such evidence is rele-
vant and, if so, whether its probative value out-
weighs its prejudicial effect. See State v. Peary,
Conn. (40 Conn. L.J., No. 13, pp. 1, 3) (1978);
State v. Crowe, 174 Conn. 129, 131, 384 A.2d 340
(1977) ; State v. Robertson, 172 Conn. 9, 372 A.2d
128 (1976) ; State v. Woods, 171 Conn. 610, 370 A.2d
1080 (1976).
The defense raised by the defendant was that he
lacked specific intent to commit the crimes charged
due to intoxication. Evidence was introduced by
the defense that the defendant had been “high”
daily for two weeks up to and including the day of
the shootings. There also was testimony that the
defendant had taken the same amount and type of
drugs on March 3, 1975, the day he was arrested for
criminal trespass, as he took on the day of the
shootings, March 5, 1975. In an attempt to prove
that the defendant was intoxicated with drugs on
the evening of March 5, 1975, the defense introduced
a photostatic copy of the defendant’s bankbook and
his social security card with his signature. Mrs.
Turcio identified the signatures on these items as
the defendant’s. She was then presented with two
Miranda cards, which had previously been intro-
duced by the prosecution for another purpose,
18a
signed by the defendant the night of the killings, and
was asked to identify the signatures. She testified
that the signatures on the Miranda cards did not
look like her son’s writing. In response to this tes-
tumony, the prosecution introduced the appearance
bond which had been signed two days before the
shootings and asked Mrs. Turcio to identify the
signature. Other samples of the defendant’s hand-
writing were in evidence. Some were offered by the
defense ; others by the prosecution. The appearance
bond, however, was the only other sample offered
that was made by the defendant when he was sup-
posedly “high.” Thus, it was the only evidence avail-
able to contradict or at least to question the defend-
ant’s claim that his signature on the two Miranda
warning cards indicated his intoxicated state.
It cannot be argued that the signature which was
written only two days earlier was not relevant in
view of the testimony of the defendant’s mother
concerning the appearance of his signature on the
items signed shortly after the shootings, when the
defendant was supposedly “high.”
The argument that the evidence that the defend-
ant was arrested for trespassing and was roaming
the streets late at night shortly before the shootings
could influence the jury in the determination of
whether he committed the crimes charged loses its
force since it is admitted that the state had a
“strong” case against the defendant concerning the
shootings. The real issue was whether he was intox-
icated by drugs at the time as claimed by the defend-
ant himself. In this context, it cannot be found as
a matter of law that the court was in error in its
finding that the probative value of this evidence out-
weighed its prejudical effect. It is also noted that
the court gave a cautionary instruction to the jury
which in no way focused the jury’s attention on the
source or nature of the document.
19a
V
The defendant has further assigned as error the
trial court’s refusal to exclude Officer George Silk’s
testimony relating to a prior arrest and misconduct
and the defendant’s possession of a shotgun shell.
In its rebuttal case, the state called Officer Silk, who
testified that he had arrested the defendant and
Robert Torres, who had previously testified as a
witness, on the night of March 3, 1975, for criminal
trespass. The prosecution asked Officer Silk whether
Torres and the defendant were searched. The officer
responded affirmatively and the prosecution asked
what was found on Torres. Silk testified that he
found two shotgun shells on Torres and one .12
gauge shotgun shell on the defendant. He also tes-
tified in response to a question as to the defendant’s
appearance at that time that the defendant’s eyes
appeared “bloodshot, reddish, sort of glassy,” but
that he had no trouble understanding him, his speech
was not slurred and he was not staggering. The
officer further testified that he observed the defend-
ant the next morning, March 4, 1975, around 2:30
a.m., and he stopped him and questioned him. Officer
Silk also responded that at that time the defendant
did not seem to have any difficulty moving and he
had no speech defects. Officer Silk also observed
that his eyes did not appear glassy or red and that
the defendant appeared to understand everything
Officer Silk said.
Prior to Officer Silk’s testimony about the March
3 arrest, defense counsel asked that the jury be
excused and he objected on the ground that it was
testimony as to prior crimes and its prejudicial
effect outweighed its probative value. The state
argued that there was no error in admitting the tes-
timony because it went to establishing the defend-
ant’s physical condition and state of mind which
were the central issues in the trial, and because the
20a
fact of the arrest had already been brought out
through Mr. Turcio, Sr.’s testimony, Torres’ testi-
mony and the introduction of the appearance bond.
The state contended that the testimony about the
defendant’s possession of the shotgun shell was rele-
vant to proving he had access to his uncle’s house
and gun collection from which the murder weapon
was taken. The court, after the state made its offer
of proof, overruled the defendant’s objections and
allowed Officer Silk to testify as noted above.
The defendant has really raised together two sep-
arate claims of error here.. They will be addressed
separately.
The law as to testimony of prior crimes and mis-
conduct discussed above is applicable to testimony
here regarding the criminal trespass arrest and the
March 4 nightwalking incident when he was stopped
by Officer Silk. In balancing the relevancy and pro-
bative value of the testimony against its prejudicial
effect; State v. Ralls, 167 Conn. 408, 417, 356 A.2d
147 (1974); we find that the trial court was not in
error in admitting it. The testimony about the arrest
for criminal trespass served only as a predicate upon
which to base Officer Silk’s testimony about his
observations of the defendant’s physical and mental
condition on both the night of March 3, 1975, and
again the following morning of March 4, 1975. The
defendant had based his defense on the claim that
he was intoxicated through drug ingestion when he
shot the Massaros on March 5, 1975, and that he
had been “high” for the immediately preceding few
days. He had interjected the issue of his mental
and physical state into the trial through his own
testimony, through that of his parents and through
the testimony of Robert Torres and David Leary.
Thus, Officer Silk’s testimony, which described the
defendant’s physical state within forty-eight hours
of the shooting, was relevant to intent, an element of
2la
the crime at issue. State v. Moye, Conn. (40
Conn. L.J., No. 46, p. 1) (1979); State v. Schaffer,
168 Conn. 309, 317, 362 A.2d 893 (1975).
Officer Silk had been able to observe the defendant
twice during this self-proclaimed “high” period.
The relevance of this evidence to disproving the cen-
tral claim advanced by the defendant is obvious and,
clearly, the necessity and probative value of it out-
weighs any prejudicial impact that an arrest for
trespass might have had on the jury. The same is
true of the nightwalking incident on March 4. It
was offered not to show that the defendant was a
bad person, but to contradict the testimony put forth
by the defendant’s witnesses that he was “high” at
the time of the shootings and for a period of days
preceding them. It bears reiterating that the issue
of intoxication by drugs was the central issue in
the case. Therefore, the testimony was relevant and
probative and-the trial court did not abuse its dis-
cretion in allowing it. Moreover, after Officer Silk
concluded his testimony, the court gave a cautionary
instruction as to evidence of other crimes.
The defendant claims that the testimony about the
shotgun shells presents an entirely different aspect
of the question of the admissibility of evidence per-
taining to prior crimes and misconduct. He directs
our attention to this court’s recent ruling in State
v. Acklin, 171 Conn. 105, 368 A.2d 212 (1976). There
is a fundamental difference between Acklin and the
case at bar. In Acklin, the evidence concerning the
defendant’s possession of ropes and masks went to
the heart of the crimes charged—robbery and con-
spiracy to commit robbery. Moreover, the prosecu-
tion proffered them for the express purpose of
proving the conspiracy charge. In the instant case,
it was established that the shootings were done with
a .32 caliber pistol not the shotgun from which the
22a
shells were taken. According to the state, the tes-
timony was offered to suggest that the defendant had
possible access to the murder weapon, not a critical
element, since the essential issue in the trial was not
whether the defendant shot the victims, which
he admitted, but whether he had the physical and
mental capacity to form the necessary intent.
The instant case is also distinguishable from State
v. Johnson, 160 Conn. 28, 273 A.2d 702 (1970), on
which Acklin was based. As with Acklin, the testi-
mony in Johnson went directly to establishing a
critical and disputed issue in the case—the defend-
ants’ access to the dynamite—the means of commit-
ting the crime. The state never “connected” the
defendants with the dynamite seized. In State v.
Ferraro, 160 Conn. 42, 273 A.2d 694 (1970), this
court followed Johnson, supra, and remanded for a
new trial in a situation where the state offered evi-
dence as to the defendants’ possession of guns and
ammunition after an armed robbery, but never tied
the guns and ammunition in question to the crime
with which the defendants were charged. The
instant case is distinguishable from the above cases
because the testimony was not presented to establish
a critical element of the crime, i.e., possession of the
instrumentality to commit the crime. Despite this
fact, however, it was error to admit the shotgun shell
testimony as its claimed relevancy was too remote.
The error was harmless, however; see State v. Ralls,
167 Conn. 408, 417, 356 A.2d 147 (1974) ; for several
reasons: (1) there was no suggestion that the shell
came from the murder weapon; (2) possession of a
shotgun shell is not a criminal act; (3) possession of
a shotgun shell per se is not the type of activity that
elicits fear and prejudice from a jury; and (4)
there was overwhelming evidence of his guilt. See
State v. Williams, 170 Conn. 618, 634, 368 A.2d 140
(1976).
23a
VI
The defendant next assigns as error the trial
court’s refusal to grant a mistrial as the result of
Officer Nicholas Bencivengo’s testimony which the
defendant claims prejudicially suggested prior crim-
inal misconduct on the defendant’s part. The
objected-to testimony, which was ultimately stricken,
is as follows: After indicating that he knew the
defendant and identifying him, Officer Bencivengo
testified :
“Q. (Mr. John T. Redway] Did you have occa-
sion to see him on September 19th of 1974?
A. [Officer Bencivengo] Yes, I did.
Q. Did he have occasion to affix his signature to
a document in your presence on that particular day?
A. Yes, he did.
Q. At my request, did you bring a photocopy of
that document here today?
A. Yes.
Q. May I see it?
A. (Indicating).
Q. How do you know—how do you recognize that
document?
A. I make it a practice on fingerprint cards—I
make a practice of putting an X where the accused
has to sign his signature.
Q. And is your signature on there also?
A. Yes, it is.
Q. Can you recognize your signature as well?
A. Yes, sir.
Mr. Redway: I'll offer this, your Honor.
24a
Mr. [Barry B.] Johnson: I’m going to ask that
the jury be excused again.”
The defendant contends on appeal, as he did in
the trial court, that Officer Bencivengo’s unsolicited
reference to “fingerprint cards,” set against the
background of all the previously admitted other
prior crimes testimony, raised the specter of prior
criminal misconduct and “infected” the jury to the
extent that neither the curative instructions given
by the court nor its order to strike the testimony was
sufficient to remove the taint. The question of
whether the court erred in denying the defendant’s
motion for a mistrial must, then, focus on Officer
Benvicengo’s remark in the context of the curative
instruction and the granting of the motion to strike.
Right after the remark about fingerprint cards,
defense counsel asked that the jury be excused and
requested a mistrial. The motion for a mistrial was
denied, although the court sustained the defendant’s
objection to the testimony itself. At this point the
jury were recalled, and the court in their presence
ordered the question and Benvicengo’s answer
struck. Then the court gave the following curative
instructions to the jury: “In your absence, ladies
and gentlemen, I have sustained an objection to
the testimony the witness Bencivengo was about
to offer for your consideration. That was the
witness’ sole prospective evidential value to you,
and he has been withdrawn from the witness stand.
The court instructs you to disregard his testimony
insofar as his responses may have suggested to you
an accusation of crime by the defendant for which he
is not charged here. Any such consideration is
improper and is not before you and you are
instructed to disregard it.”
25a
The general principle is that a mistrial should be
granted only as a result of some occurrence upon the
trial of such a character that it is apparent to the
court that because of it a party cannot have a fair
trial. State v. Peary, Conn. (40 Conn. L.J., No.
13, pp. 1, 2) (1978); State v. Ruiz, 171 Conn. 264,
368 A.2d 222 (1976) ; State v. Brown, 169 Conn. 692,
703, 364 A.2d 186 (1975); State v. Rose, 168 Conn.
623, 635, 362 A.2d §13 (1975). The court has a
wide discretion in passing on motions for mistrial.
State v. Ruiz, supra; State v. Rose, supra; State
v. Savage, 161 Conn. 445, 449, 290 A.2d 221 (1971).
In light of the fact that the answer was unrespon-
sive,’ the fingerprint card was never placed before
the jury or admitted into evidence,’ there was no
evidence that the fingerprint card was obtained in
conjunction with an arrest rather than with a job;
see State v. Ralls, 167 Conn. 408, 418, 356 A.2d 147
(1974); and the trial court granted the motion to
strike and immediately gave the above mentioned
curative instruction to the jury, we hold that the
trial court properly coneluded that there was noth-
ing in the witness’ answer which could not be cured
by its being stricken and by the instructions to the
jury to disregard it. Therefore, it cannot be found
that the trial court abused its discretion in not
declaring a mistrial. State v. Ruiz, supra, 274;
State v. Brown, supra, 703.
*It is important to note that we are concerned here not with the
admission into evidence of a fingerprint record containing incom-
petent extraneous material; see State v. Ralls, 167 Conn. 408, 417-18,
356 A.2d 147 (1974); but testimony about a document containing
the defendant’s signature, which unresponsively was identified as a
“fingerprint card.”
*In questioning the witness, the prosecutor had referred only to a
“dogument” and had not solicited any evidence from Officer Ben-
civengo about criminal activity on the defendant’s part.
"Although not raised at the trial level in this form, we are con-
sidering this claim because of its constitutional dimensions, State
v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).
26a
VII
The defendant’s final assignment of error is that
the trial court erred in not suppressing his confes-
sion and other statements made after his apprehen-
sion because a minor cannot effectively waive a con-
stitutional right without parental advice.’ In his
argument, the defendant candidly admits that he is
asking this court to adopt a per se rule that accused
individuals under the age of eighteen cannot effec-
tively waive their constitutional rights against self-
incrimination, to effective assistance of counsel and
to due process of law unless advised by a parent or
guardian. We are not persuaded by the defendant’s
arguments or his interpretation of the rulings of the
Supreme Courts of Pennsylvania and Indiana.’
Instead, we again reaffirm the test laid down in State
v. Oliver, 160 Conn. 85, 94, 273 A.2d 867 (1970), cert.
denied, 402 U.S. 946, 91 S. Ct. 1637, 29 L. Ed. 2d
115 (1971): “There is nothing in our law which dis-
qualifies a minor simply because of age from effec-
tively waiving his rights and confessing as the
defendant did. It is the totality of the circumstances
of the waiver and confession rather than only the
age of the defendant which determines whether a
waiver of Miranda specified rights is valid and
effective. “We cannot accept the suggestion that
every minor is as a matter of law incompetent to
waive his constitutional rights to remain silent and
to an attorney unless the waiver is consented to by
a parent or guardian who has himself been advised
of the minor’s rights. Of course, such adult consent
is to be desired. However, whether a minor know-
ingly and intelligently waived these rights is a ques-
tion of fact and a mere failure of the police to seek
the additional consent of an adult will not outweigh,
in any given instance, an evidentially supported find-
ing that such a waiver was actually made.’ ”
There is no error.
In this opinion the other judges concurred.
27a
NO. 20235
NO. 20236
STATE OF CONNECTICUT) SUPERIOR COURT
VS. 5 NEW HAVEN COUNTY
JOSEPH TURCIO DECEMBER 12, 1975
MEMORANDUM OF DECISION ON MOTION TO
SUPPRESS DEFENDANT'S STATEMENTS.
The crimes charged against the defen-
dant engage a common nexus of fact and were
APPENDIX (2) + acre about 8:00 p.m. on March 5,
Unreported Memorandum of Trial Judge The defendant was then over sixteen and
Denying Petitioner's Motion To Suppress one-half years old; his date of birth,
August 2, 1958.
The defendant has a tenth-grade edu-
cation, average educational attainments
until he left school, and ability to commu-
nicate understandingly in the English
language.
On the evening of March 5, about 9:45
p.m., police officer Oren was called to a
private home - arriving some five to ten
minutes later - by parties there who had
apprehended the defendant elsewhere, in
another matter, and removed him thence.
The defendant had red marks about the face,
attributable to rough handling by his
keepers; but the defendant told the officer
he was all right, medical treatment was
neither sought nor given, then or thereafter,
and any physical or mental effects did not
then or thereafter at any time or occasion
material herein affect the defendant's
ability to deal normally, knowledgeably and
competently with his affairs. While the
defendant's father related that, when he
28a 29a
saw the defendant in police custody at the
local police station, later that night, in
a fleeting glance, he believed he was
bleeding, and the father and their lawyer
testified that the defendant told them
variously that he got the marks two weeks
before, or as the result of being pushed
into a wall by the police, the court rejects
any such finding or conclusion expressly
and attributes the nature and origin of
such marks as hereinabove; nor indeed does
the court take any such recital of police
brutality to be seriously pressed.
On the foregoing meeting, officer
Oren read the defendant his Miranda rights,
arrested him on a discrete charge, relative
to this motion, and removed him to the local
police station, shortly after 10:00 p.m.,
there, in the detention area, to repeat the
Miranda warnings, again from a printed card,
upon the reverse of which the defendant
executed a waiver, at 10:15 p.m., writing
"Yes'' in response to two questions, so to
express his understanding of those rights,
and his wish to talk to the police, and
appending his signature. D's Ex. l.
During the foregoing contact with the
defendant officer Oren had known that he
was a suspect in the instant crimes; but
there was no exchange between them on this
topic.
At about 10:45 p.m., in the detention
room, police officer Izzo arrested the
defendant in the instant matter, again
read him Miranda warnings from another card,
and the defendant replied that he under-
stood those rights, that he had already had
them read to him, and signed the reverse,
blank side of this card, together with the
officer and officer Hegg; the defendant
30a
was then taken to the detective room for
questioning in this matter.
Interrogation in the instant matter
was conducted primarily by officer Izzo,
with officer Hegg, and intermittent audition
by officer Oren. In its course, the defen-
dant, after approximately five minutes, made
the first of two statements at issue,
together with markings on a sketch, (D's
Ex. 3), and thereafter a third statement,
which last was recorded. D's Ex. 4.
This taping was interrupted and cur-
tailed by the arrival of the family lawyer,
called by the defendant's father. The rec-
ord grounds no finding as to whether the
defendant ever asked to have his parents
present. See State v. Oliver, 160 Conn. 85,
94. The police withdrew and the defendant
and the lawyer conferred privately.
Thereafter the lawyer retired for the
moment, and the defendant told officers
Izzo and Hegg that he did not want to
continue, that he would "rather have my
lawyer present like I said in the first
place;'' whereupon the interrogation conclu-
ded, and the lawyer conferred again with
the defendant.
The defendant did no solicit counsel
or express a wish to discontinue question-
ing. until counsel arrived and had conferred
with him.
At some time during interrogation in
the instant matter, the defendant's clothing
was taken, and he was supplied a blanket,
until his parents procured a change of
clothing at the suggestion of the police.
This interlude was not long, and did not
expose the defendant to general view or
embarrassment or physical distress suscep-
tible of characterization as intimidation
or harassment or as physical or mental abuse
3la
or pressure affecting his capacity to deal
normally and competently with his affairs,
freely and voluntarily.
At the conclusion of interrogation
March 5, the defendant was photographed,
State's Ex. B, and fingerprinted, and
signed the fingerprint card, State's Ex.C,
at about 12:30 a.m., March 6.
The defendant's lawyer arrived at the
police station at about 11:30 p.m.
In the foregoing time frame, the per-
iod of overall custodial interrogation was
not long. The initial interrogation and
the instant one each engaged not more than
two police officers. The defendant made
the first statement at issue within five
minutes after commencement of interrogation
in the instant matter, and within about
one hour from the time of his original ar-
rest. Interrogation was neither extensive
nor oppressively nor compulsively intensive,
nor did it supply the defendant details
of the commission of the crime charge.
The following morning, March 6, the
defendant and his lawyer solicited an
interview with state's attorney Markle at
New Haven, and the defendant was brought
there for that purpose. The meeting engaged
the defendant, his lawyer, state's attorney
Markle, and officer Izzo, who brought
the defendant to the premises and returned
him again thereafter. This interview was
also recorded, State's Ex. A, but is not,
subject to reservation, addressed by the
instant motion.
Thereafter, during the defendant's
departure from these premises, he made
two more statements to officer Izzo, one at
a water cooler, with his lawyer nearby, and
then another, as the defendant and the
officer were leaving. The defendant initi-
ated both statements, without interrogation
32a
ow tins Mdubibe -
by the officer, except that after the
second statement the defendant answered
a question as to detail, and the statements
were unsolicited, spontaneous and gratui-
tous.
Upon the foregoing mixed factual and
conclusory predicates, the court further
concludes ultimately upon the issues of the
motion that the defendant was sufficiently
apprised of his constitutional privilege
against self-incrimination and his right
to counsel, consonant with the calls of
Miranda v. Arizona, 384 U.S. 436. The
defendant queries the adequacy of advice
of right to counsel, unless supplemented
by police knowledge and advice upon the
availability of appointed counsel before
interrogation; but this proposed augmen-
tation transcends Miranda, State v. Ralls,
36 Conn. L.J., No 27, pp. 4, 10; State v.
Cobbs, 164 Conn. 402, 416-19, and in the
instant matter is mooted by effective
warnings of rights to silence and to
appointed counsel, and by officer Izzo's
knowledge that on such request and lack
of ready court appointment, interrogation
should cease. The warnings so effected
March 5 comprehended the occasions of the
defendant's two statements to officer Izzo
the following morning, March 6, subject of
paragraph 5 of the motion. The defendant
knew - or, given his capacities hereinafter
more particularly noted - reasonably should
have known that the warnings given to him
by officer Izzo the night before would
apply to his statements to the same officer
the following morning. Moreover, in the
interview immediately preceding those
statements, state's attorney Markle had
just repeated those warnings, yet again,
State's Ex. A. State v. Darwin, 29 Conn.
Supp. 423, 428-29 (Super. Ct.).
33a
I ii aa
Further, the court so concludes that the
defendant understood his rights to remain
silent and to counsel and the presence
of counsel during interrogation; that no
threats or promises were made to him and
no pressure or coercion exercised upon him
to induce his accession to interrogation,
and that he voluntarily, freely, intelli-
gently and comprehendingly waived those
rights on the occasions of his statements
herein at issue, being then physically
and mentally capable of such understanding
and waiver, - those statements comprehending
two unrecorded statements March 5; a sketch
(D's Ex. 3); a recorded statement March 5
(D's Ex. 4); and the two unrecorded
statements March 6, subject of paragraph 5
of the motion. State v. Bartee, 36 Conn.
L.J., No. 21, p. I; State v. Cobbs, supra,
at 515-16, 419-22; State v. Cofone, 164
Conn. 162, 168-69; State v. Oliver, supra,
93. In these ultimate conclusions the
court has taken into consideration the
totality of the circumstances, including
but not limited to the defendant's age,
Oliver at 94; note, 87 A.L R.2d 624, and
his experience of receiving Miranda warn-
ings on two prior occasions in :
State v. Cobbs, supra, 421. The defendant
would have it that he has been given to
ingestion of drugs for some period of time,
and that on the occasions of his statements
March 5-6 he was sufficiently under the
influence of drugs to negate the foregoing
conclusions of effective waiver. While
he had drugs on his person when arrested,
and may be a drug user, the court in its
conclusions has credited the testimony
of the participating police officers as
to his normal appearance and conduct,
alertness and understanding, subject to
34a
ee eee
a Finds acento.
a ao ae
understandable but not incapacitating
fatigue toward the close of proceedings
March 5, together with the following
corroborating considerations. His photo-
graph, State's Ex. B, does not display
any perceptible aberrancies from normalcy,
in particular the alleged conditions of
drooping eyelids and stance. His writing
on the Miranda cards, Def's Exs. 1 & 2,
and on his fingerprint record, State's
Ex. C, are not markedly or significantly
aberrant from exemplars of his signatures
on other and presumably normal or unaffected
occasions, D's Exs. 5-7; the signature on
D's Ex. 2 is something of a scribble, but
it is bracketed by those on D's Ex. 1 and
State's Ex. C, relatively indistinguishable
from the proffered exemplars, and none
in any event to be taken to ground the
defendant's waiver as ineffectual. Moreover,
the court has twice audited the taped
statement of March 5, D's Ex. 4, and once
the recorded statement of March 6, State's
Ex. A, together with transcripts considered
only as aids to audition, and has so
considered both records for both content
and delivery of defendant's remarks.
According to the defendant's lawyer, the
defendant seemed relatively all right the
morning of March 6, in state's attorney
Markle's office, was in possession of his
faculties, responsive and coherent, with
responses consistent but not entirely
credible, and the defendant's parents
thought the March 6 record better than
March 5. Yet, the court concludes that
the defendant's coherence and speech
pattern are, if anything, relatively better
in the March 5 record than in the March 6
record, and that in any event the defendant
responded to questions in the March 5 record
35a
intelligently and comprehendingly, with
coherent and responsive answers. In this
vein, for example, the court is particularly
impressed with the understanding and
reflective terms in which the defendant
paused and expressed the difficulty of
responding directly to a critical question,
when this exchange is taken in the context
of his other statements. There is also
to be considered his facility in terminating
further interrogation March 5, after collo-
quy with counsel. Finally, the defendant
would have his speech characterized as
thick, slurred, not normal; albeit the
police officers disagreed, and to the
defendant's counsel that meant trailing
off, not diction, which was clear. The
court finds and concludes no signal slurring
or abnormality of speech pattern, evocative
of inference of disability in terms of
effective waiver. In this light the
phrasing, articulation and clarity are
good, and the speech is slangy rather than
notably slurred, albeit vernacular rather
than classical; but not adversely reflective
upon effective waiver.
In this particular regard, as to the
real en statements of March 6, State v.
arwin, supra, is distinguished, as to
adequacy of warnings pat gh lack of
expectable confidentiality of the statements
29 Conn, Sup. at 430-31, and as to presence
of counsel, immediately following the
recorded interview sought by the defendant
and counsel with the state's attorney,
at which Miranda warnings were yet again
repeated. Given the repetitive warnings
and setting, the state cannot reasonably
be expected to turn a deaf ear to statements
gratuitously proffered under effective
waiver. Miranda, supra, 478; State v.
Bartee, supra, 3.
36a
bd
i
wen
With respect to the discontinuance by
the defendant of recorded statement on
March 5, when the defendant conferred
with counsel and then in a resumption of
recordation terminated the interrogation,
stating that he would "rather have my
lawyer present, like I said in the first
place;"’ the court concludes that the
defendant had not theretofore requested
in course of interrogation that it be
terminated, consonant with the testimony
of the police officers, and that the
quotation is consistent with officer Hegg's
recollection of a statement in that vein
in the unrecorded interlude after the
arrival of counsel, when interrogation
had then in fact terminated.
The time interval between arrival of
counsel at the police station and his
introduction to the defendant during the
recordation of a March 5 statement has
been particularly considered, in the light
of the fact that the tape runs some seven
and one-half minutes from the beginning to
the knock on the door introducing counsel
to the room, and the defendant's proffer
that the time between arrival of counsel
at the station and his introduction to
the defendant could have been as long as
fifteen minutes. However, the defendant's
evidence also variously estimated that
interval otherwise from ten minutes plus,
to seven minutes, down to six minutes.
Recognizing stressful circumstance, certain
collateral discrepancies and counsel's
fine relation with the police, the court
credits that he was immediately recognized
by officer Heck, on duty at the reception
desk, who walked without delay a short
distance to an inner foyer, adjacent to
the reception foyer, there announced his
37a
arrival to deputy police chief Hubbard,
who so advised the chief and Mr. Markle
in the adjacent office, and was promptly
advised his admission, effected in a matter
of seconds, so that any delay entailed
only Mr. Markle's explanation of the
charges thereafter and counsel's comment,
before counsel was led directly to the
defendant, a matter of three to five
minutes, at a time when the defendant
himself had waived and not requested
counsel, and neither he nor his interro-
gating police officers knew that counsel
was coming or had already arrived at the
station. Counsel on admission from the
outer foyer had advised the police that
interrogation should cease; but there
was no deliberate or significant delay
from then until he was ushered down the
hall to the defendant.
The state accordingly has satisfied its
burden of proving the voluntariness of
the statements at issue, by at least a
fair preponderance of the evidence, Bartee,
supra, at 3, and the motion is denied.
/s/ McCarthy, J.
38a
'
:
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.