Appendix — Rado v. Connecticut

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No. -

DONALD A. RADO,

Petitioner,

v.

STATE OF CONNECTICUT AND JOHN MANSON,

COMMISSIONER OF CORRECTION,

; Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

APPENDIX

DAVID S. GOLUB, ESQ.

SILVER, GOLUB

& SANDAK, P.C.

P.O. Box 3247

Stamford, Connecticut 06905

(203) 325-449]

Attorney for the Petitioner

ae

INDEX TO APPENDIX

APPENDIX A:

The opinion of the Court of

Appeals in Rado v. State of

Connecticut reported at 607 F.2d

4 re ee ae ae ee ee ee a ee ee -

APPENDIX B:

The unreported opinion of

the United States District Court

in Rado v. State of Connecticut .. .B-l

APPENDIX C: @

The opinion of the Connecticut

Supreme Court in State v. Rado

affirming petitioner's convictions

reported at 172 Conn. 74, 372 A.2d

Boe ss 6 eS ee ee 6 8 Se eee

APPENDIX A

eS

Opinion of Court of Appeals

@ UNITED STATES COURT OF APPEALS

FoR THE SECOND CIRCUIT

—

No. 1113—August Term, 1978.

(Argued May 2, 1979 Decided October 3, 1979.)

Docket No. 78-2154

- ———>____—_-

DONALD A. RADbO,

Petitioner-Appellee,

@ —against—

STATE OF CONNECTICUT, et al.,

Respondents-Appellants.

————_—<>-___—_

Before:

FRIENDLY and MULLIGAN, Circuit Judges,

and GAGLIARDI, District Judge. *

-. ——<—}—__—_

. Appeal from a judgment of the District Court for

the District of Connecticut, M. Joseph Blumenfeld,

Judge, granting petition for habeas corpus based on

violations of petitioner’s rights under the Confronta-

tion and Due Process Clauses. Reversed.

—>—

The Honorable Lee P. Gagliardi, United States District Judge

for the Southern District of New York, sitting by designation.

*

4973

A-1

|

~—

“ue

rere cer or oR Fr ~ -

wre

“= Tv.

Opinion of Court of Appeals

Davi S. GoLun, Esq., Stamford, Ct. (Sil-

ver, Golub & Sandak, P.C.), for Pett-

tioner-Appellee.

RoBERT E. BEACH, JR., Esq., Wallingford,

Ct. (Assistant State’s Attorney,

State’s Attorney's Office), for Re-

spondents-Appellants.

————<>—_—

GAGLIARDI, District Judge:

The State of Connecticut appeals from a judgment

of the United States District Court for the District

of Connecticut (Blumenfeld, J.) ordering the release

of Donald A. Rado from custody unless the State

elects to retry Rado within sixty days. In 1972, after

trial by jury in the Connecticut Superior Court

(Speziale, J.), Rado was convicted of the crimes of

robbery in the first degree and conspiracy and was

sentenced to a six to twelve year period of incarcera-

tion. The Connecticut Supreme Court affirmed the

judgment of conviction. State v. Rado, 172 Conn. 74,

372 A.2d 159 (1976), cert. denied, 430 US. 918

(1977).! After a hearing, the Connecticut district

court held, in an unreported memorandum decision,

that Rado’s conviction had been obtained in violation

of his constitutional rights. under the Confrontation

Clause and the Due Process Clause. For the reasons

which follow, we reverse.

1 During the four-year pendency of his state appeal, Rado was

free on a $75,000 property bond. In 1977 the Connecticut dis-

trict court granted Rado’s motion for bail on similar terms pend-

ing a final disposition of the case on the merits. Rado v. Man-

son, 435 F.Supp. 349 (D. Conn. 1977).

4974

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Opinion of Court of Appeals

The Facts

The state charged that in July, 1972 Rado met

with three other men, Sean Donnelly, Wayne

Epprecht and Fred Hall, at his Waterbury, Connec-

ticut home to plan the armed robbery of a jeweler's

widow, who lived nearby. Rado was not accused of

having actually committed the substantive offenses of

burglary and robbery, but of selecting the victim, in-

structing the robbers how to proceed, and supplying

them with walkie-talkies and a gun with which to

perpetrate the crime. Donnelly, Epprecht and Hall

pled guilty to various charges stemming from the

robbery and were called upon to testify at Rado’s

trial in December 1972.

The trial lasted two weeks. The principal state

witnesses were Donnelly and Epprecht, both of whom

testified that on the evening of July 2, 1972, they

met with Rado and Hall at Rado’s home and discus-

sed the proposed robbery. Rado pointed out the

victim’s house, which was directly opposite and

clearly visible from the back porch of his own, and

stated that money and jewelry could likely be found

there. The following day, July 3, Hall drove Donnelly

and Epprecht in his car to Rado’s home. The four

men conferred in the basement of the home, where

Rado gave Epprecht a .32 caliber pistol and Hall

gave Donnelly a .38 caliber pistol. Rado instructed

Donnelly and Epprecht to use the pistols in the

course of the robbery, gave Donnelly a walkie-talkie

unit to carry with him during the crime and agreed

to remain at home for its duration “in the event

anything happened.”

4975

Opinion of Court of Appeals

Donnelly and Epprecht further testified that Hall

drove them to the victim’s home and remained in his

car. While carrying a pine bush in an attempt to

conceal their identities, Donnelly and Epprecht forced

their way into the house, struck and bound the

victim, and ransacked the house, taking several items

of jewelry. When surprised by a neighbor, Donnelly

and Epprecht fled, dropping Rado’s walkie-talkie unit

in their haste, and were driven by Hall back to

Rado’s home where they changed their clothes and

returned the pistols to Rado.

Attacking the credibility of these two witnesses,

the defense uncovered some minor inconsistencies in

their respective accounts of the events of July 3

(e.g., the precise time of day that they arrived at

Rado’s house, the manner in which they got there,

and their activities earlier that day immediately prior

to arrival). In addition, the defense sought to im-

peach Donnelly with prior inconsistent statements

that he made to police concerning disposal of the

guns used in the robbery and his admission that he

had been using narcotics in July, 1972. Epprecht ad-

mitted perjuring himself concerning his prior con-

tacts with the Waterbury area. On the basic details

of the crime, however, Epprecht and Donnelly’s re-

spective accounts were mutually corroborative and re-

mained unshaken.? Moreover, strong circumstantial

evidence of Rado’s guilt was adduced by the state.

An employee of Radio Shack, an audio equipment

store in Waterbury, testified that the walkie-talkie

dropped by Donnelly and found near the scene of the

2 Two defense witnesses, however, Rado’s wife and his next

door neighbor, testified that Donnelly and Epprecht had not

been in Rado’s house on the night of July 2.

4976

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Opinion of Court of Appeals

crime had identical serial numbers to a walkie-talkie

sold in June, 1962 to a person identifying himself as

D. Rado, 47 Mildred Avenue, Waterbury, Connecticut

(Rado's address). The pistol used by Epprecht during

the robbery was found in a search of Rado’s house.’

Fearing that the jury might nonetheless have drawn

unfavorable inferences from Hall’s failure to testify,

the state called Hall to the stand.

On November 28, 1978, several days prior to the

commencement of Rado’s trial, pursuant to a plea

bargain, Hall agreed to plead guilty to a charge of

conspiracy in a superseding information in exchange

for the state’s attorney’s promises to enter a_ nolle

prosequi on the substantive offenses of robbery and

burglary contained in the original information and to

recommend a sentence of two to four years. It was

also agreed that Hall could be subpoenaed by either

side at Rado’s trial, that the jury would not be in-

formed of Hall’s guilty plea, and that the state’s at-

torney would recommend a lesser sentence if Hall

cooperated in Rado’s prosecution. The state’s attorney

also agreed that he would not contest Hall’s right to

assert his privilege against self-incrimination if Hall

was called to testify and if Hall elected to do so. The

attorneys informed Judge Speziale, who later pre-

sided over Rado’s trial, of the terms of the plea bar-

gain, except for the state’s agreement to honor Hall’s

possible assertion of the fifth amendment privilege.

The judge stated that if he were unable to agree to

the recommended sentence after seeing the presen-

tence report, he would permit Hall to withdraw his

3 Through several witnesses, it was proven that pine needles

found in Hall's car were of the same genus as the bushes used

by Donnelly and Epprecht to camouflage their approach to the

victim’s house.

4977.

A-5

Opinion of Court of Appeals

plea. Hall entered his guilty plea to the conspiracy

charge in open court. The prosecutor recited the

facts of the robbery, implicating Rado, Donnelly, and

Epprecht as well as Hall. Asked by the court if he

had anything to add to the recitation, Hall responded

“No, sir.” When asked if the facts as thus set forth

were “substantially correct and accurate,” Hall stated

“Yes, sir.” Hall’s replies were not made under oath.

The court accepted Hall’s plea, the remaining counts

were nollied, and further proceedings were scheduled

for January, 1973.

It is undisputed that prior to calling Hall to the

stand at Rado’s trial, the state’s attorney did not

know whether or not Hall would in fact assert his

Fifth Amendment privilege. At the outset of his

direct examination, Hall freely testified that he was

a Waterbury resident and had known Rado for

twelve years, had been employed by Rado in two sep-

arate Connecticut restaurants, and had become Rado’s

friend, Hall identified Rado’s house in a photograph

and stated that he had been a visitor there from

time to time. He also testified that he had made Ep-

precht’s acquaintance while working in Florida, had

given Epprecht his phone number upon returning to

Connecticut, and that he met Epprecht in July 1972

in Connecticut. Hall refused to state precisely where

he again met Epprecht on the ground that his an-

swer might tend to incriminate him. The court or-

dered Hall to answer, however, and he complied.

The state’s attorney proceeded to question Hall

about his car and its confiscation by the police.

When Hall claimed to be unable to identify his car

in a photograph, the court declared him to be a hos-

tile witness and ruled that the state was entitled to

4978

A-6

Opinion of Court of Appeals

“cross examine” him. Hall admitted that in July,

1972, he had a blue suitcase in his car that belonged

to Donnelly and Epprecht and contained their

clothes, but he claimed that he was not certain how

the suitcase found its way into the car’s trunk. The

state’s attorney then returned to the subject of Hall's

relationship with Rado. Hall invoked the privilege

against self-incrimination when asked how well he

knew Rado. At the court’s direction, and once again

without any objection to Hall’s assertion of the privi-

lege by the state’s attorney, Hall responded that

Rado was a “social acquaintance”.

The state’s attorney's questioning then shifted to

the events leading up to the robbery. Asked if he

had ever taken Epprecht and Donnelly to Rado’s

house, Hall again asserted the Fifth Amendment

privilege. The judge excused the jury and explained

to Hall that because he had pleaded guilty to the

conspiracy charge his claim of privilege lacked merit.

Hall's attorney was not present in the courtroom and

the judge refused to hear argument from Rado’s

counsel on the question of Hall’s privilege. Upon the

jury’s return, Hall again refused to answer whether

he had ever brought Donnelly and Epprecht to

Rado’s house and asked to speak to his attorney. At

the court’s repeated direction, Hall finally answered

that he had met with Epprecht and Donnelly at

Rado’s house on July 3, 1972. Although he initially

refused to answer whether he had seen a walkie-

talkie or a gun in Rado’s house on that day, the

court again ordered him to answer. In each instance,

Hall responded that he was not sure.

The state’s attorney next asked Hall whether he

had planned the July 3d robbery with Rado, Ep-

4979

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Opinion of Court of Appeals

precht and Donnelly. On four consecutive occasions,

the court ordered Hall to answer this question, but

each time Hall invoked his fifth amendment privi-

lege. The court again excused the jury and warned

Hall that his continued refusal to answer questions

would result in his being found in contempt. Hall ex-

plained that he was acting on his attorney's advice

and that he had not spoken to Rado about testifying.

The state’s attorney offered to withdraw the question

and, upon the jury’s return to the courtroom, the

question was withdrawn.

At this juncture, the state’s attorney directed

Hall’s attention to the guilty plea proceedings of the

previous week:

“Q. Mr. Hall, do you remember being in Court

here, in this courtroom here, on November 28,

1972?

A. Yes, I do.

Q. And I believe your attorney, Mr. Zeldes,

was here with you; do you recall that?

A. Yes.

Q. Do you recall that the following occurred:—

[A defense objection was overruled.]

“Q. Do you recall my saying in your presence:

‘Yes, your Honor. On July 3rd, 1972, the

home of a Mrs. Hyman, in the Bunker Hill sec-

tion of Waterbury, was entered by Sean Don-

nelly and Wayne Epprecht. They were at the

time armed with firearms. They had been driven

to the scene by this accused in his own car’?

That is referring to you.

Q. You were here with Mr. Zeldes?

A. Yes.

4980

A-8

Opinion of Court of Appeals

‘Donnelly and Epprecht carried with them a

bush, by means of which they gained entry in

the home and attempted to commit the crime of

robbery and burglary in the first degree. Prior

to driving to the home, this scheme, this plan to

commit this crime had been discussed with the

conspirators Rado, Donnelly, Epprecht, and_ Hall.

That is the factual recitation.’

And the Court said: ‘Frederick Hall, you heard

the State’s Attorney set forth the facts here at

the request of the Court. Do you have anything

to add to the statement as set forth by Mr.

McDonald at this point?’ And you recall that you

answered: ‘No, sir’ do you remember that?

A. Yes.

Q. Was that a true recitation of what hap-

pened?

The Witness: If your Honor please, I would

like to talk to you.

The Court: You want to speak to the Court in

the absence of the jury?

The Witness: Yes, I would.

The Court: I am going to excuse you, ladies

and gentlemen.

The judge held unreported bench conferences first

with Hall and then with counsel. The state’s attorney

thereupon withdrew the last question. The jury was

called back and informed of its withdrawal. The

state’s attorney then directed Hall’s attention once

again to the November 28th plea hearing and stated:

Q. Now, do you recall, Mr. Hall, being in

Court again on November 28, 1972, when the

4981

A-9

Opinion of Court of Appeals

question and answers that I have just read to

you were asked? Do you recall that?

A. Yes.

Q. You were here with Mr. Zeldes?

A. Yes.

Q. And yov recall that after you were asked

by the Court if you had anything to add to the

statement as set forth by Mr. McDonald, at this

point you answered, ‘No, sir.’

Then the Court said: ‘Are the facts set forth

by Mr. McDonald substantially correct and accu-

rate?’

And you replied: ‘Yes, sir.’

Do you recall giving that answer to the Court?

A. Yes.

Q. In the presence of your attorney?

A. Yes.

Q. That the statement of facts that was read

at that time was accurate, substantially correct

and accurate; do you recall that?

A. Yes.

Q. Do you recall that part of that recitation

included the words “prior to driving to the

home, this scheme, this plan to commit this

crime had been discussed with the conspirators

Rado, Donnelly, Epprecht, and Hall; do you re-

call that being said in Court?

The Court: He previously answered that he

did recall it in a prior question, Mr. McDonald.

Mr. McDonald: Yes.

The Court: He is asking you again: Do you re-

call it?

The Witness: He is asking me the same ques-

tion again?

4982

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Opinion of Court of Appeals

By Mr. McDonald:

Q. Yes. You already answered that you did.

A. It would be my same answer.

The. state’s attorney next sought to explore Hall’s

possible bias in favor of petitioner. When Hall stated

that he could not remember how many times he had

eaten lunch with Rado since the commencement of

the trial, the state’s attorney asked him whether Hall

had a bad memory. Hall began to state that he did

not wish to answer, but before he could finish the

court excused the jury and immediately found Hall in

contempt.

After a recess, Rado’s counsel moved for a mis-

trial. The motion was denied, and the jury returned

to the courtroom. Rather than repeating the question

about Hall’s memory, the state’s attorney asked the

following series of questions:

“Q. Mr. Hall, did you plan at Mr. Rado’s

home on the afternoon of July 3, 1971, with Ep-

precht and Donneily, together with Mr. Rado, to

rob Mrs. Hyman?

The Witness: If your Honor please, I refuse

to answer the question on the grounds that it

might tend to incriminate me.

Mr. McDonald: I won’t press the question,

your Honor.

By Mr. McDonald:

Q. In your presence were firearms given to

Epprecht and Donnelly at the home of Donald

Rado?

4983

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Opinion of Court of Appeals

The Witness: If your Honor please, I refuse

to answer the question on the grounds that it

might tend to incriminate me.

Mr. McDonald: I won’t press that question.

By Mr. McDonald:

Q. Were the walkie-talkies given to these men

or to Donnelly and to you by Mr. Rado to perpe- ©

trate this armed robbery against Mrs. Hyman on.

that day?

The Witness: If your Honor please, I refuse to

answer the question on the grounds that it

might tend to incriminate me.

By Mr. McDonald:

Q. Can you see the home of Mrs. Hyman

from the back porch of Mr. Rado’s house?

The Witness: If your Honor please, I refuse to

answer the question on the grounds that it

might tend to incriminate me.”

At that point, the state’s attorney concluded his

direct examination.

On cross-examination, Rado’s counsel asked Hall

whether he had been asked to sign a statement im-

plicating Rado in the robbery and whether the state’s

attorney had offered a recommendation of a lenient

sentence in return for Hall’s testimony. Hall asserted

his Fifth Amendment privilege once again, but at the

court’s direction responded that his attorney had

been offered a deal, the specifics of which he could

not remember and that his attorney had asked him

to sign a statement incriminating Rado but that he

had refused to do so. Hall then explained how he,

4984

A-12

Opinion of Court of Appeals

Epprecht and Donnelly arrived at Rado’s house on

July 3rd. Hall testified that his car had broken down

early that morning and he had asked Rado to pick

up his friends Epprecht and Donnelly at a motel in

town. Rado brought Epprecht and Donnelly to Hall's

house while Hall repaired his car. After fifteen or

twenty minutes, Rado, Epprecht and Donnelly left.

When asked if he had ever been to the Radio Shack

store in Waterbury, Hall asserted his Fifth Amend-

ment privilege and Rado’s counsel withdrew the ques-

tion.

On redirect, Hall testified that after Rado, Ep-

precht, and Donnelly left Hall’s house, Rado brought

Epprecht and Donnelly to Rado’s house and that Hall

met them there that afternoon. When the state’s at-

torney questioned Hall about his reluctance to sign

any written statements about the crime, Hall again

raised the privilege and these questions were with-

drawn. When the state’s attorney concluded his redi-

rect, the court again excused the jury. The court

noted that there were several questions asked by .

both sides which the witness refused to answer, but

that neither side had pressed for answers to those

questions. The court then vacated the finding of con-

tempt and released Hall from custody. Hall was ex-

cused, and the jury returned to the courtroom.

Il. Tite CONSTITUTIONAL CLAIMS

Rado raised two constitutional claims below, both

of which the district court found to be meritorious.

First, the court held that the state’s attorney's recita-

tion from the transcript of Hall’s plea hearing vio-

lated Rado’s right to confront the witnesses -against

‘4985

A-13

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Opinion of Court of Appeals

him. Second, the court held that the last four qucs-

tions by the state’s attorney on direct examination

were posed notwithstanding the expectation that Hall

would assert his privilege against self-incrimination

and that they thus constituted prosecutorial miscon-

duct and a denial of due process of law.

A. The Confrontation Clause Claim

The Confrontation Clause of the Sixth Amend-

ment, applicable to the states via the Due Process

Clause of the Fourteenth Amendment, Pointer Uv

Texas, 380 U.S.,400 (1965), guarantees to a criminal

defendant the right “to be confronted with the wit-

nesses against him.” The origins of the clause have

been traced to the desires of the Framers to eradi-

cate “trial by affidavit”, a procedural abuse common

during the colonial era, and to ensure the defendant

the opportunity to challenge his accusers face-to-face

before a jury. California v. Green, 399 US. 149, 156

(1970); United States v. Belle, 593 F.2d 487, 502 n.4

(3d Cir. 1979) (en banc) (Gibbons, J., dissenting)

[I]t is this literal right to ‘confront’ the witness at

the time of trial that forms the core of the values

furthered by the Confrontation Clause.” California i

Green, supra, 399 U.S. at 157. These values are usu-

ally served by providing the defendant with adequate

opportunity to cross-examine the state’s witnesses

Douglas v. Alabama, 380 USS. 415, 418 (1965) al-

though there may be instances in which the “indicia

of reliability” are so strong that an extrajudicial

statement may be placed before the jury even though

there is no opportunity for the defendant to confront

the declarant. Dutton v. Evans, 400 US. 74, 89

(1970) (plurality opinion). In all instances, however,

4986

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Opinion of Court of Appeals

“It}he decisions of [the Supreme] Court make it clear

that the mission of tiie Confrontation Clause is to

advance a practical concern for the accuracy of the

truth-determining process in criminal trials by assur-

ing that ‘the trier of fact [has] a satisfactory basis

for evaluating the truth of the prior statement.’” Jd.,

quoting California v. Green, supra, 399 U.S. at 161.‘

As he did in the court below, Rado has placed his

principal reliance upon the case of Douglas uv.

Alabama, supra. In Douglas, two defendants were

tried separately on charges of assault with intent to

murder. Defendant Loyd was tried first and con-

victed. The state then called him to testify at

4 The Confrontation Clause serves many of the same values as

the rule against hearsay, but they are not congruent evidentiary

principles. The admission of an extrajudicial statement pursuant

to a recognized hearsay exception may nonetheless violate the

Confrontation Clause; conversely, the admission of such a state-

ment in violation of hearsay rules does not necessarily result in

denial of confrontation rights. California v. Green, supra, 399

U.S. at 155-56. Thus, it is not particularly relevant to our task

to determine whether the state’s attorney's recitation of the

questions and answers at Hall's plea hearing was admissible for

substantive purposes under Connecticut's hearsay rules. See id.

at 164 (“there is little difference as far as the Constitution is

concerned between permitting prior inconsistent statements to be

used only for impeachment purposes, and permitting them to be

used for substantive purposes as well”).

It may be noted parenthetically, however, that under the

Federal Rules of Fvidence, Hall's answers to the state's at-

torney’s incriminating questions at his plea hearing might con-

stitute statements against penal interest pursuant to Rule

804(b) (3). See, e.g., Chambers v. Mississippi, 410 U.S. 284, 299

& n.18 (1973); United States v. White, 553 F.2d 310, 312-14 (2d

Cir.), cert. denied, 431 U.S. 972 (1977). Such statements,

however, are not admissible in federal court unless the declarant

is “unavailable”. Although a declarant who “persists in refusing

to testify concerning the subject matter of his statement despite

a court order to do so” is considered to be “unavailable” under

Rule 804(a)(2), there was no such order with respect to the

question at issue during Hall's direct testimony.

* 4987

A-15

i

Opinion of Court of Appeals

Douglas’ trial. Because Loyd wished to appeal his

conviction, he gave only his name and address and

refused to answer any questions put to him concern-

ing the alleged crime, citing his privilege against

self-incrimination. The court, on the state’s motion,

declared Loyd to be a “hostile witness” subject to

cross-examination. The prosecutor then produced a

document purporting to be Loyd’s signed confession

and read it aloud in the presence of the jury, paus-

ing every few sentences to ask Loyd if he had made

the statement in question. In all, the prosecutor

posed some 21 questions, occupying seven pages in

the printed record. Loyd asserted the privilege and

refused to answer after each question. The state then

called three law enforcement officers who identified

the document produced by the prosecutor as Loyd’s

signed confession. The confession incriminated

Douglas, and he was convicted. Reversing Douglas’

conviction, the Supreme Court unanimously held that

Douglas’ inability to cross-examine Loyd as to his

alleged confession violated his Confrontation Clause

rights. Id. at 419.

Loyd’s alleged statement that the petitioner fired

the shotgun constituted the only direct evidence

that he had done so; coupled with the descrip-

tion of the circumstances surrounding the shoot-

ing, this formed a crucial link in the proof both

of petitioner's act and of the requisite intent to

murder. Although the [prosecutor’s] reading of

Loyd’s alleged statement, and Loyd’s refusal to

answer, were not technically testimony, the

[prosecutor's] reading may well have been the

equivalent in the jury’s mind of testimony that

4988

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Opinion of Court of Appeals

Loyd in fact made the statement; and Loyd’s

reliance upon the privilege created a situation in

which the jury might improperly infer both that

the statement had been made and that it was

true. Since the [prosecutor] was not a witness,

the inference from his reading that Loyd made

the statement could not be tested by cross-

examination. Similarly, Loyd could not be cross-

examined on a statement imputed to but not ad-

mitted by him.

Id.

Although the facts in Douglas resemble to some

extent those of the instant case, we believe that

Douglas is distinguishabie in several important re-

spects. First, the recitation of Hall’s answers to the

state’s attorney’s questions at the plea hearing were

neither “crucial” to the state’s case against Rado,

Douglas v. Alabama, supra, nor “devastating” to

Rado’s defense. Bruton v. United States, 391 US.

123, 136 (1968). See, e.g., Dutton v. Evans, supra,

400 U.S. at 87; United States v. Wright, 588 F.2d

31, 38-39 (2d Cir. 1978), cert. denied, 99 S.Ct. 1236

(1979); United States v. Mangan, 575 F.2d 32, 44

(2d Cir. 1978), cert. denied, 4389 U.S. 931 (1979);

United States v. White, 553 F.2d 310, 314 (2d Cir.),

cert. denied, 431 U.S. 972 (1977); United States v.

Puco, 476 F.2d 1099, 1102-08 (2d Cir.), cert. denied,

414 U.S. 844 (1973); United States v. Rogers, 549

F.2d 490, 500 (8th Cir. 1976), cert. denied, 431 USS.

918 (1977). Because the extrajudicial statements in

Douglas were the sole direct evidence of the defen-

dant’s guilt, they “clearly bore on a fundamental part

of” and “added critical weight to” the state’s case.

4989

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Opinion of Court of Appeals

380 U.S. at 420. In the instant case, by contrast, the

direct testimony of Donnelly and Epprecht and

strong circumstantial evidence provided by the

walkie-talkie and pistol traced to his possession had

seriously weakened Rado’s defense. This _ strong

evidence of guilt obviously reduced the deleterious

impact of the state’s attorney’s recitation.

Second, unlike the declarant in Douglas, Hall was

available for effective cross-examination concerning

the veracity of his extrajudicia! statement. The trial

judge ruled that Hall could not assert the Fifth

Amendment privilege because of his plea of guilty to

the conspiracy charge. Even if it were determined

that this ruling was erroneous,’ Douglas clearly holds

that resolution of a Confrontation Clause claim does

not turn upon the validity of the declarant’s claim of

privilege. 380 U.S. at 420. The issue remains

whether or not effective confrontation was possible.

Hall was a reluctant witness, but it suffices to note

that at the court’s direction, and under penalty of

contempt, he responded to questions concerning such

matters as the circumstances under which he met

5 Whether or not this is the case is open to dispute. Under Con-

necticut law, a nollied charge may be reopened by the prosecu-

tion within thirteen months. See v. Gosselin, 183 Conn. 158,

161, __. A.2d _____ (1946). Therefore, it may be argued, on the

one hand, that Hall risked self-incrimination on the charges of

robbery and burglary which had been nollied pursuant to the

plea bargain. See, United States v. Yurasovich, 580 F.2d 1212,

1218 (3d Cir. 1978), cert. denied, 99 S.Ct. 1537 (1979) (“if the

witness is still subject to prosecution for other crimes which his

testimony might tend to reveal, the privilege remains”). Alter-

natively, it might be contended that Hall would be entitled to

“specific performance” of his plea bargain agreement, under

which the substantive counts would be dismissed. See United

States v. Rocco, 587 F.2d 144, 148 n. 12 (3d Cir. 1978) citing

Santobello v. New York, 404 U.S. 257 (1972).

4990

A-18

Opinion of Court of Appeals

Rado and Epprecht, when counsel insisted upon an

answer. Although Hall never answered any questions

regarding the details of the robbery, it is by no

means clear that he would have continued to refuse

to answer if the parties had insisted. Moreover,

unlike the declarant in Douglas, Hall admitted that

he had made the extrajudicial statement implicating

Rado and had vouched for its accuracy when made.®

Counsel for Rado could have attempted to show that

Hall had confessed to a crime he had not committed

or, more likely, that the portions of his statement

implicating Rado were untrue. Counsel’s failure to

cross-examine Hall in this manner, or to seek the aid

of the court in eliciting this testimony, did not

render Hall unavailable for the purposes of the Con-

frontation Clause. See United States v. Insana, 423

F.2d 1165, 1168 (2d Cir.), cert. denied, 400 U.S. 841

(1970); Wade v. Yeager, 415 F.2d 570 (3d Cir.), cert.

6 In Nelson v. O'Neil, 402 U.S. 622 (1971), the Supreme Court

held that the declarant need not specifically affirm a prior state-

ment as his in order to satisfy Confrontation Clause _re-

quirements. In Nelson, the declarant denied making the extra-

judicial statement attributed to him, but was available to testify

as to the underlying facts. Whether the declarant (1) denies hav-

ing made the extrajudicial statement, United States v. Ballen-

tine, 410 F.2d 375, 376-77 (2d Cir. 1969), cert. denied, 397 US.

928 (1970); United States v. Peterson, 435 F.2d 192, 195-96 (7th

Cir. 1970), cert. denied, 403 U.S. 907 (1971); (2) admits having

made the statement, but denies its truth; United States ex rel.

Pugach v. Mancusi, 441 F.2d 1073, 1075 (2d Cir.), cert. denied,

404 US. 849 (1971); or (3) claims an inability to recall the

statements or its contents, United States v. Insana, 423 F.2d

1165, 1170 (2d Cir.), cert. denied, 400 U.S. 841 (1970); United

States ex rel. Thomas v. Cuyler, 548 F.2d 461, 462-63 (3d Cir.

1977); United States v. Rogers, supra, 549 F.2d at 494-95;

United States v. Payne, 492 F.2d 449, 451-54 (4th Cir.), cert.

denied, 419 U.S. 876 (1974). Courts have held that a jury has a

‘ satisfactory basis to evaluate the truth of the prior statement so

Ong as the declarant is willing to testify about the underlying

acts.

4991

A-19

Opinion of Court of Appeals

denied, 396 U.S. 974 (1969); United States ex rel.

Smith v. Reincke, 354 F.2d 418, 421 (2d Cir. 1965),

cert. denied, 384 U.S. 993 (1966).

Finally, Hall’s statements at his plea hearing carry

greater “indicia of reliability” than did Loyd’s confes-

sion in Douglas. Dutton v. Evans, supra. To be sure,

declarations made against penal interest which also

inculpate the accused must be treated with care for

the declarant may be seeking to “curry favor with

the authorities.” United States v. White, supra, 553

F.2d at 313 n.4 (quoting Advisory Committee Note

to F.R.E. 804(b)(4)). Hall’s statements, however, were

made in open court before a judge rather than “in

the coercive atmosphere of [police] interrogation, as

[in] Douglas . . .” 400 U.S. at 87. Moreover, unlike

the confession in Douglas, the direct testimony of

Donnelly and Epprecht and the strong circumstantial

evidence of Rado’s guilt corroborated Hall’s state-

ments, thus adding some additional assurance of

reliability. See, eg., Chambers v. Mississippi, 410

U.S. 284, 300-01 (1973); United States v. White,

supra, 553 F.2d at 314.

In short, we conclude that Rado’s right of confron-

tation was not violated by the state’s attorney’s

reading from the transcript of Hall’s guilty plea pro-

ceeding for the following reasons: 1. the recitation

was neither “crucial” to the state’s case against Rado

nor “devastating” to his defense; 2. Hall was

available for cross-examination at trial as to the

veracity of his extrajudicial statements in light of

the court’s ruling that Hall had no Fifth Amendment

privilege to assert, its willingness to impose sanc-

tions for what it perceived to be an improper asser-

tion of the privilege and Hall’s eventual response to

4992

A-20

Opinion of Court of Appeals

questions when ordered to do so by the court; and 3.

Hall’s statements, though inculpatory of Rado, were

reliable to the extent that they were corroborated by

other evidence in the case, both direct and cir-

cumstantial, and were made in a non-coercive at-

mosphere.

B. The Due Process Claim

Rado’s alternative basis for challenging his convic-

tion is that the state’s attorney’s questioning of Hall

with knowledge that Hall would refuse to answer

constituted prosecutorial misconduct. Rado contends

that the prosecutor’s conduct throughout the course

of the examination, but particularly at its conclusion,

denied Rado’s right to due process of law.

The leading case in this area is Namet v. United

States, 373 U.S. 179 (1963), in which the Supreme

Court, relying heavily upon Judge Learned Hand’s ©

decision in United States v. Maloney, 262 F.2d 535

(2d Cir. 1959), articulated two principles on which a

witness’ invocation of his Fifth Amendment privilege

may constitute error: 1. “prosecutorial misconduct,

when the Government makes a conscious and fla-

grant attempt to build its case out of inferences aris-

ing from use of the testimonial privilege”; and 2.

when “in the circumstances of a given case, 1n-

ferences from a witness’s refusal to answer added

critical weight to the prosecution’s case in a forum

not subject to cross-examination. . ” 873 US. at

186-87. In Douglas v. Alabama, supra, these prin-

ciples were given constitutional significance and

made applicable to the states. See 380 U.S. at

419-20 (citing Namet and Maloney, supra). In apply-

- 4993

A-21

_ Opinion of Court of Appeals

ing the Name rule to particular cases, the courts

have analyzed various factors, including the pro-

secutor’s intent in calling the witness, the number of

questions asked, their importance to the state’s case,

whether the prosecutor draws any inference in his

closing argument from the witness’ refusal to answer

in his closing argument and whether the trial judge

gives a curative instruction. Moynahan v. Manson,

419 F. Supp. 1139, 1149 (D. Conn. 1976), aff'd, 559

F.2d 1204 (2d Cir.), cert. denied, 434 U.S. 939

(1977).

We do not believe that the record before us can

support a finding of prosecutorial misconduct based

upon either of the Namet principles. It is undisputed

that, prior to calling Hall to the stand, the state’s at-

torney did not know that Hall would assert his priv-

ilege against self-incrimination. “Since the govern-

ment has the obligation to present such relevant

testimony as the witness may possess, it must in

turn have a reasonable opportunity to test whether

that testimony will be forthcoming, and if not,

whether it can be compelled.” United States v.

Mayes, 512 F.2d 637, 649 (6th Cir.), cert. denied,

422 U.S. 1008 (1975). Moreover, the state’s attorney

apparently believed, as in Namet, that as a matter of

law Hall had no Fifth Amendment privilege to in-

voke, reasoning that Hall’s plea of guilty to the con-

spiracy charge nullified his right against self-

incrimination.’ The trial judge evidently shared this

7 It is apparent from the hearing held below that the state’s at-

torney knew that as a matter of Connecticut law, the prosecu-

tion may generally vacate a nolle prosequi and reinstituted a

prosecution without violating principles of double jeopardy. He

also believed, however, that in the context of a plea bargain,

nollied charges could not be reinstituted “so long as the plea

bargain stood.” (Appendix, at 154).

4994

A-22

Opinion of Court of Appeals

view and repeatedly directed Hall to respond and

found him in contempt when he did not. Under the

circumstances, we cannot find that the state’s at-

torney’s decision to press further and to ask Hall the

final four questions concerning the actual perpetra-

tion of the robbery was a deliberate attempt by the

state to capitalize on the witness’ refusal to testify.

While the state’s attorney should not have

withdrawn each of these questions without asking

the court for its assistance in eliciting the desired

testimony, we do not view this single lapse, when

viewed in the context of a two-week trial, as a

calculated ruse aimed at inducing the jury to draw

improper inferences against Rado. See Namet v.

United States, supra, 373 U.S. at 188-89.

Turning to the second prong of the Namet rule,

we also cannot find that Hall’s refusal to answer

added “critical weight” to the state’s case. This is not

a case like Douglas v. Alabama, supra, United States

v. Maloney, supra or Robins v. Small, 371 F.2d 793

(Ist Cir.), cert. denied, 386 U.S. 1033 (1967) in

which “a witness’ refusal to testify is the only source

or even the chief source of the inference that the

witness engaged in criminal activity with the defen-

dant.” Namet v. United States, supra, 373 US. at

189. Both the testimony of Donnelly and Epprecht

and the strong circumstantial evidence adduced at

trial strongly implicated Rado in the planning of the

robbery. Hall’s claims of privilege were merely

“cumulative support” for inferences already estab-

lished through witnesses who were subject to full

and effective cross-examination.® See, e.g., Cota uv.

~ We also reject Rado's alternative contention that Hall’s invoca-

tion of the privilege violated Rado’s rights under the Confronta-

4995

A-23

éomrebee — ee

Opinion of Court of Appeals

Eyman, 453 F.2d 691, 695 (9th Cir. 1971), cert.

denied, 406 U.S. 949 (1972); United States v. Roselli,

432 F.2d 879, 903 (9th Cir. 1970), cert. denied, 401

U.S. 924 (1971); Moynahan v. Manson, supra, 419 F.

Supp. at 1149. Rado does not claim that the state’s

attorney made any reference to Hall’s refusal to

testify in his closing argument to the jury. While the

trial judge gave no curative instruction in this case,

it does not appear that Rado’s counsel asked the

court to do so. In sum, analyzed under either of the

theories set forth in Namet, we cannot find that

Rado was denied a fundamentally fair trial.

CONCLUSION

Because we find no violation of Rado’s constitu-

tional rights of confrontation and due process, the

judgment of the district court is reversed and the

cause is remanded with instructions to deny the peti-

tion.

tion Clause since we believe, for the reasons set forth in the

text, that Hall’s refusal to answer did not lend critical weight to

the state’s case. See Douglas v. Alabama, supra.

4996 A-24

570—10-5-79 e USCA—4498

OUTPUT SYSTEMS, INC., 157 Chambers St., N.Y. 10007 , 374-1234

Opinion of District Court

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

Z DONALD A. RADO H

CIVIL NO.

‘ V. = H-77-125

STATE OF CONNECTICUT, ET AL:

MEMORANDUM OF DECISION

The petitioner, Donald Rado, seeks a

writ of habeas corpus ordering his release

from confinement by the state of Connecticut.

In 1972, after a jury trial in Connecticut

Superior Court, petitioner was convicted of

the crimes of robbery in the first degree,

burglary in the first degree, and conspir-

acy. The judgment of conviction was affir-

APPENDIX B med by the Connecticut Supreme Court. State

V. Rago, i772 Conn. 74, 372 A.2€@ i159 (1976).

He charges that the admission of certain

evidence at that trial deprived him of his

right to confront witnesses against him,

and that prosecutorial misconduct at the

| trial caused a deprivation of liberty without

due process of law, in contravention of the

sixth and fourteenth amendments to the United

States Constitution. This court has granted

petitioner's motion for bond pending resolu-

tion of his habeas corpus petition. Rado v.

Manson, 435 F.Supp. 349 (D. Conn. 1977).

This decision is rendered after a full hearing

on the merits.

Opinion of District Court

> Pe

I. THE FACTS

A. The Crime

The state charges that petitioner met

with three other men at his home to plan

the robbery of a neighbor's house. Though

petitioner was not charged with participa-

tion in the actual robbery, it was alleged

that he selected the victim, gave instruc-

tions to the robbers, and supplied them

with walkie-talkies and a gun for use in

committing the robbery.

The other three defendants pleaded

guilty to charges arising from the robbery,

and each of them testified at petitioner's

trial. Two of the men, Sean Donnelly and

Wayne Epprecht, gave full accounts of the

robbery and of meetings with petitioner

where it was allegedly planned. They dis-

agreed, however, on certain details of the

crime. In addition, both witnesses were

successfully impeached at trial. Donnelly

was shown to have given an inconsistent

statement to the police, and to have been

using narcotics regularly at the time of

the crime. Epprecht, confronted with docu-

ments conflicting with his testimony,

admitted that he had perjured himself on

direct examination. Because the credibi-

lity of these witnesses was successfully

attacked at trial, the testimony of the

third defendant, Fred Hall, was critically

important to the state's case against

—ee

on Hine

Opinion of District Court

petitioner. Petitioner's constitutional

claims are based on prosecution tactics

employed in the direct examination of

Hall.

B. Hall's Plea Hearing

The original information filed against

Hall charged him with robbery and burglary.

Hall agreed to plead guilty to a charge of

conspiracy in a substituted infomation, in

exchange for the state's attorney's promises

to enter a nolle prosequi on the substantive

offenses charge and to recommend a sentence

of two to four years. It was agreed that

Hall could be subpoenaed by either side in

petitioner's trial, that the jury would not

be told that Hall had entered a guilty plea,

and that the state's sentencing recommenda-

tion would be reduced if Hall cooperated in

the prosecution of petitioner. Hall's

attorney, Jacob D. Zeldes, also extracted

a promise that the state's attorney, Francis

McDonald, would not contest Hall's right to

invoke the privilege against self-incrimin-

ation if Hall elected to invoke the privilege

at petitioner's trial. When the plea bargain

was entered, the state's attorney was not

told that Hall would invoke the privilege at

trial, but such a possibility was tacitly

acknowledged by the promise to honor the

privilege if it was claimed.

Hall's guilty plea was taken by Judge

John A. Speziale of the superior court, the

Same judge who presided at petitioner's

trial. Before the plea was taken, the

judge held a chambers conference with Mr.

Zeldes and Mr. McDonald. The attorneys

informed Judge Speziale of their plea bar-

gain, including the sentence which the

Opinion of District Court

-4-

state's attorney had agreed to recommend.

Judge Speziale was not informed that the

state had agreed to honor a possible fifth

amendment claim by Hall. The judge told

the attorneys that if he was unable to agree

to the sentence recommended by the state's

attorney, he would allow Hall to withdraw

his guilty plea.

On November 28, 1972, Hall entered

his guilty plea before Judge Speziale to

a charge of conspiracy. A recitation by

Mr. McDonald set forth the alleged facts

of the robbery, implicating petitioner,

Donnelly and Epprecht as well as Hall.

Hall was asked by the court if he had any-

thing to add to Mr. McDonald's statement,

and he answered, "No, sir." When asked

if the facts set forth by Mr. McDonald

were "substantially correct and accurate,"

he replied, "Yes, sir." No oath was

-administered to Hall at the plea hearing.

The court accepted Hall's plea, the

remaining counts were nolled, and the case

was continued to January 5, 1973, for dis-

position.

C. Hall's Testimony at Petitioner's Trial

Hall was called to testify against

petitioner on December 7, 1972. His attor-

ney, Zeldes, was not present. Though the

state's attorney knew that the witness

might refuse to answer incriminating

questions, he did not ask to examine him

in the absence of the jury.

Opinion of District Court

=

The witness freely answered the first

questions put to him by the state's attor-

ney, which concerned the location of his

home and the manner by which he had come

to know petitioner. When asked if he

had eaten lunch with petitioner every day

during the trial, he stated that he

wished to reserve his right not to answer

certain questions. Judge Speziale said

that Hall could certainly answer this

question, and Hall replied in the negative.

He answered questions about the location

of petitioner's home and his initial

acquaintance with Wayne Epprecht in Florida,

but refused to say when he had first seen

Epprecht in Connecticut, on the ground

that his answer might tend to incriminate

hiin. The court ordered Hall to answer the

Guestion, and he did so.

The state's attorney continued his

questioning in the presence of the jury.

Hall gave a series of reluctant answers

to questions about his car and its con-

fiscation by the police while he was

incarcerated. The court declared Hall to

be a hostile witness, and the questioning

continued. Hall answered several questions

about a suitcase containing Epprecht's

and Donnelly's clothing which had been

found in his car. He refused to answer a

question about how well he knew the peti-

tioner, but did so when the court ordered

him to answer. He then answered several

guestions about his social relationship

with the petitioner, though his answers

were increasingly evasive.

Opinion of District Court

-6-

The state's attorney's questions

drew closer to the facts of the alleged

crime. Hall refused to state whether he

had ever brought Donnelly and Epprecht to

petitioner's house and at that point the :

judge excused the jury. He explained to

Hall that because Hall had pleaded guilty

to conspiracy, the court considered his

fifth amendment claim "foundless." The

court refused to hear argument from peti-

tioner's counsel on the question of Hall's

privilege.

When the jury returned, the witness

again refused to answer the last question

and asked for an opportunity to get in

touch with his attorney. After twice

being ordered to answer, Hall finally

answered the question about bringing Donn-

elly and Epprecht to petitioner's house

in the affirmative. The state's attorney

then focused on a meeting at petitioner's

home on July 3,1972, the date of the

robbery. Hall refused to answer three of

the state's attorney's questions about

the meeting, but each time he was ordered

to answer and did so.

Hall was next asked if he remembered

planning the robbery at petitioner's

house on July 3. He repeatedly refused

to answer this question, even after the

court had ordered him four times to do

so.

oo

Judge Speziale excused the jury again.

He explained to Hall that he would be held

in contempt if he persisted in refusing to

answer. Hall asked if he could have his

Opinion of District Court

oF=

attorney present. The judge said that he

could have had his attorney present; but

Hall explained that he had been in court

for several days of trial waiting to tes-

tify, and that his attorney could not be

present for the entire trial. Hall told

the court that he was acting on his attor-

ney's advice, that he had no fear of testi-

fying, and that no one but his attorney had

spoken to him about testifying. The state's

attorney offered to withdraw his last

question. The jury returned to the court-

room and was told that the question had

been withdraw.

Instead of continuing to ask the

witness questions about the alleged crime,

the state's attorney proceeded as follows:

"BY MR. MC DONALD:

"Q Mr. Hall, do you remember

being in Court here, in this court-

room here, on November 28, 1972?

"A Yes, I do.

"Q And I believe your attorney,

Mr. Zeldes, was here with you; do you

recall that?

a ‘See

"Q Do you recall that the

following occurred: --

[A defense objection was overruled.]

Opinion of District Court

-8-

"Q Do you recall my saying in your

presence:

"Yes, your Honor. On July 3rd, 1972,

the home of a Mrs. Hyman, in the Bunker

Hill section of Waterbury, was entered

by Sean Donnelly and Wayne Epprecht.

They were at the time armed with fire-

arms. They had been driven to the scene

by this accused in his own car'? That is

referring to you.

"'"Donnelly and Epprecht carried with

them a bush, by means of which they gained

entry in the home and attempted to commit

the crimes of robbery and burglary in the

first degree. Prior to driving to the

home, this scheme, this plan to commit

this crime had been discussed with the

conspiractors Rado, Donnelly, Epprecht,

and Hall. That is the factual recitation.'

"And the Court said: 'Frederick Hall,

you heard the State's Attorney set forth

the facts here at the request of the Court.

Do you have anything to add to the state-

ment as set forth by Mr. McDonald at this

point?' And you recall that you answered:

'No, sir'; do you remember that?

"A. Fes.

"Q Now, do you recall giving that

answer to the Judge, that you had nothing

to add to that recitation?

“A Yes.

Opinion of District Court

=9-

"Q Was that a true recitation of

what happened?

"THE WITNESS: If your Honor please,

I would like to talk to you.

"THE COURT: You want to speak to

the Court in the absence of the jury?

"THE WITNESS: Yes, I would.

"THE COURT: I am going to excuse

you, ladies and gentlemen."

The judge held unreported conferences with

the witness and then with counsel. The last

question was read back, and the state's attor-

ney withdrew it. The jury was called back and

was told that the last question had been with-

drawn. But the judge did not repeat the

question to them.

The state's attorney then asked the witness

whether he recalled his earlier answer to what

occurred at the plea hearing, and continued

with regard to that incident,

"Then the Court said: ‘Are the facts

set forth by Mr. McDonald substantially

correct and accurate?'

"And you replied: '‘'Yes, sir.'

"Do you recall giving that answer

to the Court?

"A . Yea.

Opinion of District Court

-10-

Hall repeated that he recalled whatwas said

at the hearing, but was not asked again

whether the answers he gave at the plea

hearing were true. Nor was he asked whether

the transcript of the plea hearing had

refreshed his recollection of the events

of July 3. |

The state's attorney then explored

the witness' possible bias in favor of

petitioner. Hall said he could not remem-

ber how many times he had eaten lunch with

petitioner during the trial. The state's

attorney asked if Hall had a bad memory,

and Hall started to state that he did not

wish to answer. Before he could finish,

the court excused the jury for a fourth

time. Without hearing argument, the judge

immediately held Hall in contempt.

After a recess, petitioner's attorney

moved for a mistrial. The motion was

denied, and the jury returned to the court-

room. The question about Hall's memory

was not repeated. Instead, the state's

attorney asked the following series of

questions:

"Q Mr. Hall, did you plan at

Mr. Rado's home on the afternoon

of July 3, 1971, with Epprecht

and Donnelly, together with Mr.

Rado, to rob Mrs. Hyman?

"THE WITNESS: If your Honor,

please, I refuse to answer the

question on the grounds that it might

tend to incriminate me.

Opinion of District Court

= hh

"MR. MC DONALD: I won't press the

question, your Honor.

"BY MR. MC DONALD:

"Q In your presence were firearms

given to Epprecht and Donnelly az the

home of Donald Rado?

"THE WITNESS: If your Honor please,

I refuse to answer the question on the

grounds that it might tend to incrimin-

ate me. :

"MR. MC DONALD: I won't press

that question.

"BY MR. MC DONALD:

"Q Were the walkie-talkies given

to these men or to Donnelly and to you

by Mr. Rado to perpetrate this armed

robbery against Mrs. Hyman on that day?

"THE WITNESS: If your Honor,

please, I refuse to answer the question

on the grounds that it might tend to

incriminate me.

"BY MR. MC DONALD:

"Q Can you seen the home of Mrs.

Hyman from the back porch of Mr. Rado's

house?

"THE WITNESS: If you Honor, please,

I refuse to answer the question on the

grounds that it might tend to incriminate

me."

Opinion of District Court

ey

The direct examination of Hall concluded

at this point.

The cross-examination was primarily F

concerned with the state's attorney's

efforts to obtain a statement from Hall

against petitioner, and with Hall's expla- .

nation of how he came to be at petitioner's

home with Epprecht and Donnelly. Hall tes-

tified that he had had a problem with his

car on the morning of July 3, and that he

had asked petitioner to help him by pick-

ing up his two friends at a motel. Peti-

tioner brought Epprecht and Donnelly to

Hall's house while Hall was working on his

car, and after 15 or 20 minutes they pro-

ceeded to petitioner's house, where Hall

said he picked them up late in the day.

The witness continued to refuse to answer

certain questions when he felt the answers

might incriminate him.

In a short re-direct examination,

the state's attorney explored Hall's

reluctance to sign any statements about

the crime and his account of the events

of July 3. After the re-direct examina- le

tion, the judge excused the jury for a

fifth time. He asked the state's attor-

ney if he cared to be heard regarding

the finding of contempt against Hall.

Mr. McDonald stated that he would not ask

the court to press the contempt citation,

particularly because he had withdrawn the

question which had brought on the finding

of contempt. Judge Speziale noted that

Opinion of District Court

2 Jus

while the witness had not answered several

questions, Mr. McDonald had not pressed

him for answers. He then vacated the

finding of contempt and released Hall from

custody. The jury returned, and Hall was

excused.

II. THE LAW

Petitioner raises two constitutional

claims. First, he argues that because

Hall claimed the privilege against self-

incrimination, he could not be cross-

examined concerning the facts of the

alleged crime. Therefore the state's.

attorney's recitation from the transcript

of Hall's plea hearing constituted evi-

dence admitted in violation of petitioner's

right to confront the witnesses against

him. Second, he argues that portions of

the direct examination of Hall, and the

last four questions in particular, con-

stituted prosecutorial misconduct and

a denial of due process of law. This

claim is made because the state's

attorney had reason to know that Hall

would refuse to answer substantive ques-

tions about the alleged crime, and

sought to use the questions themselves

Opinion of District Court

ale

1/

as persuasive evidence against Rado.=

These claims will be discussed in

turn.

A. The Confrontation Clause Claim

1. The Rule of Douglas v. Alabama

With respect to the first claim,

the leading case is Douglas v. Alabama,

380 U.S. 415 (1965). There an accomplice

witness, one Loyd, claimed the privilege

1/ The state's attorney's continued

questioning of Hall after he claimed

the privilege against self-incrimina-

tion may be characterized as a breach

of the plea agreement reached between

Hall and the state. Petitioner does

not claim that his personal due process

rights were affected by the state's

attorney's failure to honor Hall's

privilege as promised.

Opinion of District Court

-15=

against cross-examination because he planned

to appeal his conviction. On direct examin-

ation, he was asked a series of questions

based on a confession he had given to police,

and three police officers also testified

about receiving the witness' statement. Loyd

refused to answer any questions about the

crime, or to acknowledge that he had made the

statement. The Supreme Court held that the

defendant had been denied his right to cross-

examination under the Confrontation Clause.

"Loyd could not be cross-examined on a state-

ment imputed to but not admitted by him."

380 U.S. at 419. The Court recognized that

while Loyd's confession was not admitted into

evidence, the unanswered questions could have

had a significant impact on the jury.

"Although the Solicitor's reading of

Loyd's alleged statement, and Loyd's

refusals to answer, were not techni-

cally testimony, the Solicitor's read-

ing may well have been the equivalent

in the jury's mind of testimony that

Loyd in fact made the statement; and

Loyd's reliance upon the privilege

created a situation in which the jury

might improperly infer both that the

statement had been made and that it was

true."

Id. In a case very similar to Douglas, it was

held that the prejudicial impact of such an

inference cannot be cured by an instruction at

the end of the trial, directing the jury to

disregard unanswered questions. Robbins v.

Opinion of District Court

-16-

Small, 371 F.2d 793, 795-6 (lst Cir.), cert.

denied, 386 U.S. 1033 (1967).

In determining whether evidence of a

hearsay statement violates the Confrontation

Clause, "[t]he relevant factual inquiry is

whether, under the circumstances, the un-

availability of the declarant for cross-

examination deprived the jury of a satis-

factory basis for evaluating the truth of

the extrajudicial declaration." United

States v. Adams, 446 F.2d 681, 683 (9th

Cir.) cert. denied, 404 U.S. 943 (1971).

It is thus important to consider not only

the extent to which Hall was "available"

for cross-examination, but also the nature

of the evidence that had been presented in

connection with his hearsay statement.

Like the witness

refused to answer any

robbery. However, he

had given the answers

in Douglas, Hall

questions about the

did admit that he

which the state's

attorney recited from the transcript of

his plea hearing. The answers themselves

were not offered as evidence, and the

respondents do not argue that they were

admissible hearsay. Instead, they were

purportedly mentioned in order to refresh

Hall's recollection, and thus to enable

him to testify from a present recollection

regarding the events of July 3. Yet after

the recitation from the plea hearing tran-

script, the state's attorney did not

press Hall to answer any substantive

questions about those events, or even to

state whether his previous answers at

the plea hearing had been truthful.

Opinion of District Court

-17=

After Hall refused to answer whether the

statements which he acknowledged having

made were true, the state's attorney with-

drew that question.

When the direct examination had been

concluded, the state had not introduced

any positive evidence through Hall that

Rado had plotted or committed the robbery.

It was admitted that Hall had given cer-

tain answers about the crime, but there

was no evidence before the jury that those

answers were true.2/ There are thus two

reasons why petitioner could not cross-

examine Hall regarding the facts of his

alleged crime. First, those facts were

not placed in evidence during the direct

examination. Second, Hall had refused to

answer any questions about the crime it-

self. The state's attorney's questions

created a situation in which the jury

might infer, as in Douglas, that Hall's

prior statements were true; yet because

Hall refused to answer substantive ques-

tions, it had no "satisfactory basis" for

evaluating the truth of those state-

2/ The conclusior of the Connecticut

Supreme Court that Hall had affirmed that

the statements "were his and were true ...,

State v. Rado, supra, 172 Conn. at 80,

372 A.2d at 162, is simply not supported

by the trial record. Rado v. Manson,

supra, 435 F.Supp. at 351 n.2.

Opinion of District Court

a

i hed

ments.3/ Therefore, the conclusion reachec

in Douglas seems equally applicable to this

case, even though the witness acknowledged

that he had made the hearsay statements.

2. Limitations of the Rule

~The respondents rely on several cases

which have distinguished Douglas v. Alabama

or limited the scope of its holding. Most

of these cases, however, did not involve

witnesses who refused to testify on fifth

amendment grounds. In Calforniav. Green,

399 U.S 149 (1970), the witness claimed

that he could not remember the events to

which he had testified at a preliminary

hearing. The Court held that the claimed

loss of memory did not make the witness

3/ In Douglas, three law enforcement officers

o testified that they had received Loyc.'s

confession were available for cross-examina-

tion. The court pointed out that cross-

examination regarding the issue of whether

Loyd had made the confession "could not

substitute for cross-examination of Loyd

to test the truth of the statement itself.

Motes v. United States, 178 U.S. 458 [1900];

cf., Kirby v. United States, 174 U.S. 47

[1899]." 380 U.S. at 420. Here the declar-

ant himself could be cross-examined regard-

ing whether he had made the statements,

but not regarding their truth.

Opinion of District Court

-]9-

unavailable for "full and effective cross-

examination," 399 U.S. at 158, and speci-

fically distinguished Douglas because there

the witness had "refused to testify on

self-incrimination grounds,"id. at 163.

The Second Circuit held in United States

v.- Insana, 423 F.2d 1165 (2d Cir.), cert.

denied, 400 U.S. 841 (1970), that a wit-

ness' prior grand jury testimony could be

used to impeach his asserted lack of

memory at trial. Other courts have

reached similar conclusions regarding

witnesses whose memories failed at trial.

see, e.g., United States ex rel. Thomas

v. Cuyler, 548 F.2d 460 (3d Cir. 1977);

United States v. Payne, 492 F.2d 449

(4th Cir.), cert. denied, 419 U.S. 876

(1974). However, our circuit has refused

to apply the Insana holding to a witness

who refused to testify on the grounds of

privilege. United States v. Fiore, 443

F.2d 112, 115 (2d Cir. 1971).

In Dutton v. Evans, 400 U.S. 74 (1970),

a witness testified regarding an out-of-

court statement by an accomplice declarant

who did not appear at trial. The Court

found no violation of the Confrontation

Clause because the veracity of the out-of-

court statements was thought, by the Court,

to be otherwise well-established by the

evidence. Id. at 88-89.

Evidence of a co-defendant's out-of-

court statement was admitted in Nelson

v. O'Neill, 402 U.S. 622 (1971). The

co-defendant took the stand, Waiving his

Opinion of District Court

-20-

privilege against self-incrimination, and

denied making the statement. The Court

held that there was no Confrontation Cluase

violation, because the witness could be, and

was, cross-examined regarding the statement

even though he had disaffirmed it. Id. at

627-28. The witness in Nelson v. O'Neill,

unlike Hall, testified fully regarding the

charges against him and the defendant.

In United States ex rel. Smith v.

Reincke, 354 F.2d 418 (2d Cir. 1965), cert.

denied, 384 U.S. 993 (1966), an accomplice-

witness who had previously pleaded guilty

and who refused to answer certain questions

about his alleged crime, was confronted with

a confession that he had signed. He said

that he had signed the confession under

coercion and that it was false. Unlike the

witness in Nelson v. O'Neill, the witness in

Reincke did, like Hall, assert his fifth

amendment rights. However, in contrast to

the present case, the defendant in Reincke

did not lose his confrontation rights in

spite of the fifth amendment privilege.

Although the defendant did not do so, 4/

he could have cross-examined the witness

regarding the circumstances of the claimed

coercion which allegedly compelled the

confession, thus giving the jury a basis

for evaluating the truth of the out-of-

court statement. Id. at 420-421. In the

case at bar, the veracity of Hall's out-of-

4/ Because the defendant did not avail

himself of this opportunity to cross-

examine, the court held he could not later

claim a violation of the Confrontation

Clause.

Opinion of District Court

-21=-

court statement was not independently put

in issue for the jury in his direct examin-

ation. From the outset, Hall refused to

answer any question regarding the truth of

those statements, thus blocking cross-

examination.

In United States v. Rogers, 549 F.2d

490 (8th Cir. 1976), cert. denied, 431 U.S.

981 (1977), an accomplice-witness admitted

that he had pleaded guilty to robbery

charges and acknowledged that he had given

a statement to a government agent, but

said that he could not remember the facts

of the crime. At the suggesion of defense

counsel, he was advised of his fifth

amendment rights. He then refused to answer

any further questions, and the government

introduced independent evidence of his

confession. The Eighth Circuit held that

the jury had an adequate opportunity to

evaluate the truth of the out-of-court

statement and, thus, within the terms of

Dutton v. Evans, supra, 400 U.S. 74,

there was no Confrontation Clause violation.

Id. at 500.

Rogers may be distinguished from the

case at bar on several grounds. The wit-

ness did not claim the privilege until

after admitting his own participation in

the crime. Id. at 501. The privilege

was Claimed only at the suggestion of the

defendant's attorney. Id. at 494. There

was other, overwhelming evidence of guilt,

so tnat the hearsay statement could not

have had a critical impact on the customs

of the trial. Id. at 501-502. Finally,

Opinion of District Court

mi Pe

the jury was instructed before it heard

the hearsay that it was only to be con-

sidered to impeach the witness' actual

testimony. Id. at 497, 502. In the case

at bar, the subject of whether Hall's

prior statements were true was not explored

in his direct examination, and Hall refused

to answer any questions regarding the sub-

stance of those answers. Despite the clear

hearsay character of that statement, no

limitation whatsoever was put upon its use.

The witness in United States v. Klein,

488 F.2d 481 (2d Cir. 1973), cert. denied,

419 U.S. 1091 (1974), claimed a loss of

memory on the stand. When asked about her

prior testimony before a grand jury, she

acknowledged giving the testimony but did

not affirm its truth. Without specifically

discussing Douglas v. Alabama, the Second

Circuit found no error in allowing the

prosecutor to read from the grand jury

transcript. Not only was the grand jury

testimony "almost inconsequential" to the

case, id. at 483, but the witness' acknow-

ledgement of the testimony was tantamount

to admitting its truth:

"If Mrs. Clow had said explicitly

that her grand jury testimony was

the truth, this principle [that

when a witness ‘affirms the truth

of a prior statement, the earlier

statement is to be considered "not

only as bearing on the credibility

of the witness but as affirmative

evidence",' United States v.

Borrelli, 336 F.2d 376, 390-391

(2d Cir. 1964), cert. denied,

Opinion of District Court

~23<

379 U.S. 960 (1965), quoting from Stewart

v. Baltimore & Ohio R.R., 137 F.2d 527,

529 (2d Cir. 1943)] would sustain the

judge's ruling. Since she had sworn to

tell the grand jury the truth and in

no way suggested at trial that she had

disregarded that oath, her admission that

the transcript correctly reflected what

she had said is so close to the hypo-

thetical that a distinction would be

irrational."

Id.

The Klein case may implicitly recognize

an exception to Douglas allowing the admission

of hearsay where the declarant acknowledges the

out-of-court statement and the statement itself

was given under oath. Several other cases

that have distinguished Douglas have relied in

part on the inherent reliability of the hearsay

statement. See Dutton v. Evans, supra, 399

U.S. at 165 (dictum); United States v. Rogers,

Supra, 492 F.2d at 452. Respondents seek to

analogize these cases to the instant situation

by arguing that Hall's responses at his plea

hearing were inherently reliable because "they

were made in ajudicial context and were obvious-

ly against the declarant's interest."

3. Reliability of Plea Hearing Statements

Even it it is assumed that Douglas does

not apply to inherently reliable hearsay, the

unsworn statements made by a defendant at

the hearing where he pleads guilty pursuant

to a plea bargain cannot, realistically, be

regarded as inherently reliable. Despite

Opinion of District Court

~24=

the safeguards of our system which are

designed to assure that no innocent person

is ever convicted of a crime, innocent

persons are frequently persuaded to plead

guilty. Sometimes this occurs because

defendants are not aware whether their

specific acts have fulfilled the elements

of the crime of which they are charged. :

See A. Rosett & D. Cressey, Justice By

Consent: Plea Bargains in the American

Courthouse 26-27 (1976). A guilty plea

usually reduces the uncertainty faced by

a defendant, by eliminating the risk of

a maximum sentence. See Note, Plea

Bargaining and the Transformation of the

Process, 90 Harv. L. Rev. 564, 576 (1977).

The grading of offenses and the usual

reduction of charges also served "to

encourage defendants to buy mitigation

with a guilty plea." A. Rosett & D.

Cressey, supra, at 29. Asa practical

matter, a defendant's interests are

frequently well served by a guilty plea;

and it is unfair to characterize state-

ments made in connection with a plea as ‘

"obviously against the declarant's

interest." These considerations have

led some commentators to conclude that :

"[m]any guilty pleas submitted in American _ |

courts are not free acts of the accused; |

they are gained by psychological coercion

through threat of severe punishment."

Id.

Opinion of District Court

a

"The practice of exchanging sentenc-

ing concessions for guilty pleas

creates an incentive for defendants

to plead guilty whenever there is

Significant risk of conviction at

trial. The greater the concession

that is offered, the smaller the risk

of conviction that a defendant will

be willing to accept, and thus the

greater the incentive to plead guilty

that the defendant may have."

Note, supra, 90 Harv. L. Rev. at 573-74 (foot-

notes omitted). For defendants with prior

convictions, the perceived risk of conviction

is greater and so is the incentive to plead

guilty. 5/

5/ "In reality some defendant who

regularly give up their rights in

favor of pleading guilty by negotiation

are indeed innocent .... A great many

of these defendants are poor, many

illiterate or semi-literate who have

spent every part of their lives living

on the fringes of the law .... They

have served time, they have been jail-

educated, and they are known on sight

by every police officer in the areas

they frequent. It is probably true

that this defendant has been arrested

on less than ten percent of the offenses

that he has actually committed, but on

the particular offenses for which he

had been charged, he may be innocent.

Opinion of District Court

-26—

The colloguy between judge and defen-~

dant is indeed guilty of the crime to which

he pleads. "This remedy is insufficient,

though, because defense counsel might advise

their clients to admit involvement in the

crime in order not to jeopardize the bargain

that has already been struck." Note, supra,

90 Harv. L. Rev. at 574-75. When the defen-

dant knows that certain answers must be

given to uphold his bargain with the prosecu-

tor, the inguiry into the factual basis for

the pleas becomes a "ritual of questions by

the judge and answers by the accused ...."

A. Rosett & D. Cressey, supra, at 26. Even

if a defendant is guilty, he may respond

with approval to an inaccurate statement

by the prosecutor of the facts and circum-

stances of his crime, because he

5/ continued

He knows that he has little chance in

court because he has seen the process

fail his peers."

Thomas, Plea Bargaining: The Clash Between

Theory and Practice, 28 Loyola L. Rev. 303,

305 (1974).

Opinion of District Court

-27-

knows that his hearing must go smoothly

if he is to obtain the reduced charge

and sentence for which he has bargained.

The recognition that guilty pleas

are frequently unreliable is built into

our system of criminal justice. Guilty

pleas are often withdrawn with a court's

permission for reasons that have nothing

to do with guilty or innocent. See

Kercheval v. United States, 274 U.S.

220, 224 (1927). Once a guilty plea

has been withdrawn, evidence of the

plea is inadmissible in any subsequent

action, criminal or civil. United States

v. Gallington, 488 F.2d 637, 640 (8th

Cir. 1973), cert.denied, 416 U.S. 907

(1974); United States v. Robinson, 459

F.2d 1164, 1169 (D.C. Cir. 1972) (dictum).

The fact that one person has pleaded

guilty to a crime may not generally be

used as evidence of another person's

guilty, Gerberding v. United States,

471 F.2d 55, 60 (8th Cir. 1973); United

States v. Baete, 414 F.2d 782, 783 (5th

Cir. 1969) (dictum), though it may be

introduced for impeachment or other

special purposes. United States v.

Wiesle, 542 F.2d 61, 62 (8th Cir. 1976).

Cf., Bruton v. United States, 391

U.S. 123 (1968) (evidence of extra-

judicial confession by co-defendant).

The Federal Rules of Criminal

Procedure also implicitly recognize

that statements made in connection

with a guilty plea may be unreliable.

They provide that when a guilty plea

Opinion of District Court

~2G<

has been withdrawn, statements made

in connection with that plea are

inadmissible against the defendant

except in a prosecution for perjury

or false statement, and then only if

they were made undey oath. Fed. R.

Crim. P. ll(e)(6).—’ The same rule

has been applied to other incrimina-

tion statements made by a defendant

after entry of a guilty plea and

prior to its withdrawal. United

States v. Albano, 414 F.Supp. 67

(S.D.N.Y. 1976).

In view of these considerations,

the fact that certain statements were

made by a defendant about his co-defen-

6/ The Rules provides:

"(6) Inadmissibility of Pleas,

Offers of Pleas, and Related State-

ments. Except as otherwise provided

in this paragraph, evidence of a plea

of guilty, later withdrawn, or a plea

of nolo contendere to the crime char-

ged or any other crime, or of state-

ments made in connection with, or

relevant to, any of the foregoing

pleas or offers, is not admissible

in any civil or criminal proceeding

against the person who made the plea

or offer. However, evidence of a

statement made in connection with,

and relevant to, a plea of guilty,

Sem

Opinion of District Court

~F7G—

dant in connection with a guilty plea

does not afford a basis for concluding

that the statements must necessarily

have been true. Hall's unsworn answers

at the plea hearing were not intrinsi-

cally more reliable than the confession

introduced in Douglas.

4. Conclusion

The respondents would also distin-

guish Douglas on the ground that Hall's

claim to a fifth amendment privilege

was invalid. However, it is by no

6/ continued

later withdrawn, a plea of nolo conten-

dere, or an offer to plead guilty or

nolo contendere to the crime charged or

any other crime, is admissible in a

criminal proceeding for perjury or

false statement if the statement was

made by the defendant under oath, on

the record, and in the presence of

counsel."

Opinion of District Court

= 30«

means clear that the trial judge ruled

correctly on Hall's refusal to answer

incriminating questions.— But even if

7/ Hall had pleaded guilty to the crime

of conspiracy, and two other pending

charged had been nolled. Under Connecti-

cut law, however, a nolle prosequi does

not bar a subsequent prosecution for the

same offense. State v. Garvey, 42 Conn.

232 (1875); State v. Benham, 7 Conn. 414,

418 (1829) (dictum). "Nolle ,rosequi is

nothing but a declaration of the prosecu-

ting officer that he will not prosecute

the suit further at that time. State v.

Kopelow, 126 Me. 384." State v. Ackerman,

a2? Con... Supp. 209, 211, 234 A.2¢d i120,

121 (Super. Ct. Tolland County 1967).

Hall thus remained exposed to possible

charges of burglary and robbery, and it

would appear that the privilege against

self-incrimination applied to any answer

that could be used to support these

charged.

In addition, Judge Speziale had

indicated that he would allow Hall to

withdraw his guilty plea if the judge

could not approve the sentence recommen-

ded by the state's attorney. If that

had occurred, Hall would have been

exposed to possible trial on the con-

Spiracy charge as well.

Opinion of District Court

oe ee

But even if Hall had no valid privilege,

that would not affect petitioner's pres-

‘ent claim. The Douglas opinion indicates

clearly that the defendant's right of

confrontation does not depend upon whe-

ther the witness acted within his rights

7/ continued

The general rule is that a witness

cannot claim the privilege with respect

to a crime of which he has been convic-

ted, United States v. Romero, 249 F.2d

371, 375 (2d Cir. 1957), or to which he

has pleaded guilty, United States v.

Sanchez, 459 F.2d 100, 102 (2d Cir.)

cert. denied, 409 U.S. 864 (1972). This

rule applies if no related charges are

pending against the witness, and no

additional charges can reasonabley be

anticipated. ~United States v. Hodge &

Zweig, 548 F.2d 1347, 1352 (9th Cir.

1977).

However, the possibility of addi-

tionallyrelated charges may revive the

privilege. In United States v. Johnson,

488 F.2d 1206 (lst Cir. 1973), a witness-

codefendant had pleaded guilty to a

charge of distributing cocaine. His

fifth amendment claim was upheld because,

while his “conviction, of course, removed

any claim of privilege based upon lia-

bility for that offense, see, e.g.,

United States v. Romero, [supra,] 249

F.2d 371, 375 [the witness] remained

open to a state or federal conspiracy

prosecution." Id. at 1209. The fact

inion of District Court

anne: Opinion of District Court

-32- | _T

/

ee. Me ere | to answer was procured by the

"We need not decide whether Loyd | petitioner, see Motes v. United

properly invoked the privilege in States, supra, at 471; on this

light of his conviction. It is record it appears that Loyd was

sufficient for the purposes of acting entirely in his own inter-

deciding petitioner's claim under ests in doing so."

the Confrontation Clause that no

suggestion is made that Loyd’ refusal Douglas v. Alabama, supra, 380 U.S. at

420. Similarly, no claim is made here

that Hall's silence was induced by

7/ continued petitioner or his attorney. AS Hall

that further prosecution was unlikely, stated at the trial, he was acting in

that that the federal prosecutor had his own interest and on the advice of

denied any intention to charge the wit- his own counsel.

ness with conspiracy, did not negate his

privilege. Id., n. 2. See United States

v. Franz, 469 F.2d 76 (9th Cir. 1972);

United States v. Ward, 314 F.Supp. 26l, 7/ continued

263-66 (E.D.La. 1970).

A similar exception applies where

a witness has been convicted and sen-

tenced, but a motion to vacate sentence : £ th ‘wil we

is pending, Ottomano v. United States, Waiver of the privilege in one proces

468 F.2a 269, 274 (lst Cir. 1972), cert. ; ing does not affect a witness' rights

denied, 409 U.S. 1128 (1973), or where in ancther, independent proceeding.

tape : ‘ ited States, supra, 468

his conviction is still subject to appeal, Ottomano v. Unit gp : =!

Prenteice v. Hsu, 280 F.Supp. 384, 388 : F.2d at 273; United States v. Miranti,

(S.D.N.Y. 1968). The present situation, 253 F.2d 135, 140 (2d Cir. 1958).

in which Hall's guilty plea was still

subject to withdrawal, can readily be

analogized to these cases.

It should also be noted that Hall

did not waive his privilege by speaking

on the record at his plea hearing.

Opinion of District Court

-34-

The respondents argue finally that

Hall was not actually unavailable for

cross-examination, because when he was

ordered to answer a question by the trial

judge, he eventually gave an answer.

Of the 14 questions which Hall refused

to answer, or to which he objected in

some form, he gave answers to the first

seven. However, none of those seven

questions directly concerned the facts

of the alleged crime. Hall never answered

any question about the crime itself,

even though he was ordered several times

to do so. This is because all such

questions were explicitly or implicitly

withdrawn after the judge had ordered

Hall to answer three times. The last

four were withdrawn immediately after

Hall's initial refusal to answer.

It appears that Hall was unwilling

to answer any question which directly

concerned the conspiracy and robbery.

He was held in contempt for this very

reason. If respondents are correct,

and answers to those questions could be

obtained by simply ordering Hall to

answer, it may be asked why the state's

attorney repeatedly withdrew his ques-

tions instead of pressing for answers.

It is obvious that the state's attorney

did not believe that Hall could be

prodded to answer such direct questions.

I conclude that the witness was unavail-

able for cross-examination regarding

the truth of his prior statements,

Pe en ad

Opinion of District Court

= |

and therefore that the prosecutor's ques-

tions based on the plea hearing violated

petitioner's right of confrontation under

the sixth and fourteenth amendments.

B. The Due Process Claim

. Petitioner's second claim is that the

final questions in the direct examination

of Hall violated due process because they

were asked with the knowledge that no

answer would be given and for the purpose

of creating inferences in the minds of

the jury as to what Hall's answers would

have been.

The significance of such inferences

was pointed out by Judge Learned Hand:

"When a witness claims his privi-

lege, a natural, indeed an almost

inevitable, inference arises as

to what would have been his answer

if he had not refused .... Such

refusals [to answer] have been

uniformly held not to be a permiss-

ible basis for inferring what would

have been the answer, although logi-

cally they are very persuasive ....

[I]t is clear, not only that the

presumed answer has not the sanction

of an oath, but--what is even more

important--that the accused cannot

cross-examine. If they once do

get before the jury, there arises,

as we have said, a strong probabil-

ity that they will be taken as

evidentiary."

Opinion of District Court

-36-

United States v. Maloney, 262 F.2d 535,

Sa? (eG CSE. 2959) «

Basic fairness requires that a

prosecutor discontinue his leading ques-

tions when it becomes apparent that

the witness will not answer them.

Robbins v. Small, supra, 371 F.2d 793,

795. As Judge Hand noted in the para-

graph just quoted, "If the prosecution

knows when it puts the questions that

[the witness] will claim the privilege,

it is charged with notice of the prob-

able effect of his refusal upon the

jury's mind." 262 F.2d 537.

"The central case in this

area is, of course, Namet v.

United States, 373 U.S. 179

(1963), whose principle was

raised to constitutional level

and made applicable to state

proceedings in Douglas v. Alabama

[supra, 380 U.S. 415]. Under the

rule set out in those cases, the

practice of compelling a witness

to invoke his fifth amendment

privilege can require reversal

in two circumstances: (1) when

it amounts to prosecutorial mis-

conduct, i.e., when a prosecutor

knowingly attempts to influence

the jury through the impermissible

inference, and thus deprives the

defendant of his right to due

process; or (2) when it allows the

prosecution to add critical

weight to its case by eliciting

Opinion of District Court

-37-

evidence of inferences in a manner

which does not allow the defendant

to subject the witness to cross-

examination, and thus deprives him

of his right to confrontation guar-

anteed by the sixth amendment."

Moynahan v. Manson, 419 F.Supp. 1139, 1148-

49 (D.Conn. 1976), aff'd, 559 F.2d 1204

(2d Cir.), cert. denied, 434 U.S. 939 (1977)

(footnote omitted). The standards discussed

in Namet are often difficult to apply, and

no clear guidelines appears from the decided

cases. Id. at 1149.

"Among the factors which courts

take into account appear to be: the

prosecutor's intent in calling the

witness, the number of questions which

he asks, the importance of the ques-

tions the testimony in the closing

argument, and whether or not the judge

gives a curative instruction."

Id. (footnote omitted).

When Hall was called to testify, it

was uncertain whether or not he would claim

the privilegeagainst self-incrimination

that he would not answer any question

which directly concerned his alleged crimes.

While the state's attorney could not know

what to expect at the outset, it was clear

once the jury had been excused for the

fourth time that the most probing questions

would not be answered. Focusing on the

series of questions asked when the jury

returned, it is clear that the state's

attorney expected no answers. He withdrew

Opinion of District Court

~-38=

the questions even before the judge could

order Hall to answer them. Since no

answers were expected, the only plausib’e

reason for asking the questions was to

have the jury hear Hall's refusals to

answer. The impact of his refusals was

exacerbated by the length of the interro-

gation and the necessity to excuse the

jury five times. As Judge Hand explained,

an impermissible inference arose from

Hall's refusals to answer, and the state's

attorney was charged with notice to that

effect. "The prosecutor is not a witness;

and he should not be permitted to add to

the record either by subtle or gross

improprieties." Donnelly v. DeChristoforo,

416 U.S. 637, 650-651 (1974) (Stewart,

J., concurring). Under the first criterion

enunciated in Namet v. United States, supra,

373 U.S. at 186, I find that the final

questions by the state's attorney consti-

tuted prosecutorial misconduct and a denial

of due process.

The state's attorney asked seven

questions that were never answered. The

importarce of Hall's testimony to the case

against petitioner has already been dis-

cussed in Part I, supra. No curative

instruction was given. No transcript of

the closing argument has been filed in

this case, so it is not known whether the

state's attorney referred to Hall's

refusal to answer. But the prejudicial

impact of the unanswered questions, espe-

cially in combination with the reference

to Hall's prior hearsay statements, is

clear. Referring to the second Namet

eee eee

Opinion of District Court

-39-

criterion, the inferences from Hall's

refusals to answer "added critical

weight to the prosecution's case in

a form not subject to cross-examina-

tion, and thus unfairly prejudiced the

defendant." Id. at 187.

Unless the state shall elect to

retry the petitioner within 60 days

of the entry of judgment in this

action, a writ of habeas corpus shall

be issued, and he shall be released

from custody. The foregoing shall

constitute the court's findings of

fact and conclusions of law, as required

by Rule 52(a), Fed. R. Civ. P

SO ORDERED.

Dated at Hartford, Connecticut,

this 24th day of October, 1978.

/s/ M. JOSEPH BLUMENFELD

M. JOSEPH BLUMENFELD

UNITED STATES DISTRICT

JUDGE

eee

Opinion of Connecticut

Supreme Court

. STATE OF CONNECTICUT

V.

DONALD RADO

Information charging the defendant with the

crimes of robbery in the first degree, burglacy in

the first degree, and conspiracy, brought to the

Superior Court for the judicial district of Water-

bury and tried to the jury before Speziale, J.;

‘verdict and judgment of guilty and appeal by the

defendant. No error.

APPENDIX C The appellant filed a motion for reargument

which was denied.

Richard D. Casella, for the appellant (defendant).

Walter H. Scanlon, assistant state's attorney,

with whom was Francis M. McDonald, Jr., state's

attorney, for the appellee (state).

MacDonarn, J. Ona trial toa jury, the defendant

was found guilty of one count of robbery in the first

degree in violation of § 53n-134 of the General Stat.

utes, one count of burglary in the first degree in

violation of §53a-101 and one count of conspiracy

in violation of § 53a-48. On his appeal to this court,

the defendant raises six issues, assigning error to

ecveral rulings on evidence made during the trial,

the denial of his motion for a mistrial with respect

to the testimony of one of the state’s witnesses und

C-i

Opinion of Connecticut Supreme Court

76 DECEMBER, 1976 172 Conn 74

Btate v. Rado

the denial of his motion to set aside the verdict and

order a new trial because of a claimed improper

remark by the state’s attorney during his summa-

tion. In order adequately to review the claimed

errors, it is necessary to consider only the following

facts as to which the state produced evidence and as

set forth in the statements of facts printed in the

briefs.

On the evening of July 2, 1972, Sean T. Donnelly,

Wayne J. Epprecht and Fred J. Wall went to the

home of the defendant, Donald A. Rado, and dis-

cussed a proposed robbery of a jeweler’s widow,

Theresa A. Hyman, whose home was directly

opposite and clearly visible from the back poreh of

the Rado home. Radu pointed out the Hyman

house and stated that it could contain money and

jewelry. The next day, July 3, Tall, Donnefly and

Epprecht drove in Hall’s ear to Rado’s home. Late

in the afternoon, Donnelly went to the nearby home

of Rado’s neighbor, John Spinella, to help with some

carpentry. After Donnelly’s return, the four men

met in the basement of Rado’s home, where Rado

gave Epprecht a 32 caliber pistol and Tall gave

Donnelly a .38 ealiber pistol. Rado instructed Don-

nelly and Epprecht that they were to use the pistols

to rob the-Tyman home, gave Donnelly a walkie-

talkie portable transceiver to carry with him’during

the robbery and agreed to remain at his home dur-

ing the robbery “in the event anything happened.”

Hall drove Donnelly and Epprecht to the Hyman

home and remained in his car while Donnelly and

Mpprecht foreed their way into the house, struck

and bound Theresa [fyman and ransacked the house,

taking a number of items of jewelry. When sur-

prised by a neighbor, Donnelly and Epprecht fled, -

dropping Rado’s walkie-talkie in their haste, were

C-2

iia ee

er ee

Poe eee Seen ee

ee

Opinion of Connecticut Supreme Court

172Conn 74 = =DECEMBER, 1976. 77

Rtnte vv. ude

picked up by Hall in his car, and returned to Rado’s

home, where they changed their clothes and pave

the pistols back to Rado. The ownership of the

walkie-talkie dropped by Donnelly was traced to

Rado and, during a search authorized by a warrant,

the pistol used by Epprecht during the robbery was

found in the Rado home.

Three of the errors claimed by the defendant per-

tain to rulings inade by the court with respect to

the testimony of Hall who, after pleading guilty to

the crime of conspiracy to commit the robbery

involved here, was called as a state’s witness, the

remaining charges against him of burglary and

robbery having been nolled. Claiming error in the

court’s permitting the state even to produce Hall as

a witness when the state “knew or should have

‘known that he would refuse to testify,” the defend-

ant cites State v. Moynahan, 164 Conn. 560, 586, 325

A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291,

38 L. id. 2d 219 where we state: “A prosecutor or

state’s attorney, in a criminal case, may not eall

anyone who, in any capacity, has become so involved

in the defendant’s criminal activities as to be liable

to prosecution for the same offense or for another

offense growing out of the transaction from which

the defendant’s alleged offenses arise, with a design

or purpose of extracting a claim of privilege against

self-incrimination.” (Fmphasis added.) ‘The inap-

plicability of this Janguage to the defendant's elaim

is clearly indicated by the emphasized words. Hall,

an accomplice of the defendant, already had pleaded

guilty to his participation in the transaetion from

which the defendant’s offenses arese and, accord-

ingly, unlike the witness in Moynahan, no longer had

the privilege against self-inerimination sinee he no

longer could be incriminated by his testimony con-

C-3

Opinion of Connecticut Supreme Court

78 DECEMBER, 1976 172 Conn 74

Hinte v. Rado

cerning the crime under consideration. “It is well

established that once a witness has been convicted

for the transactions in question, he is no longer

able to claim the privilege of the Fifth Amendment

and may be compelled to testify.” United States v.

Romero, 249 F.2d 371, 375 (2d Cir.); Reina v.

United States, 364 U.S. 507, 513, 81 S. Ct. 260,

5 I. Wd. 2d 249; Brown vy. Walker, 161 U.S. 591,

597-600, 16 S. Ct. 644, 40 L. Fd. 819.

Returning to the words emphasized in the above

quotation from our opinion in Moynahan, there was

no showing or suggestion here that the state knew

or should have known in advance of the trial that

Hall would attempt to invoke the privilege. See

Namet v. United States, 373 U.S. 179, 83 S. Ct. 1151,

10 I. id. 2d 278, which held that the trial coust’s

permitting the prosecution to ask witnesses incrimi-

nating questions concerning their relationship with

the defendant with the knowledge that the witnesses

would invoke the privilege against self-incrimination

did not constitute reversible error, the court stat-

ing (p. 189): “We cannot find that these few lapses,

when viewed in the context of the entire trial,

amounted to planned or deliberate attempts by the

iovernment to make capital out of witnesses’

refusals to testify.” As a matter of fact, the state

might well have heen in derogation of its duties if

it had not called Hall as a witness for, as stated by

the court in United States v. Romero, supra, 375,

“Tijn view of the fact that . . . [Hall] had intimate

knowledge of the transactions upon which the prose-

cution was based, the government ran the risk of

argument to the jury by defense counsel] that the

government’s failure to call an available witness

raised the jnference that his testimony would be

unfavorable to the government’s case.” Clearly, it

C-4

ae denee ene ae nae

Opinion of Connecticut Supreme Court

172 Conn 74 DECEMBER, 176 7)

Btate ¢. Mado

was not error, under the circumstances, for the

court to permit the state’s attorney to produce Tall

as itx witness nor, for the reasons given and under

the authorities cited above, was it error, as claimed

by the defendant, for the court to order fall to tes-

tify despite his repeated invocation of the fifth

amendment.

The defendant also claims that the court erred in

permitting the state’s attorney to interrogate the

witness Ha” “from a document not in evidence and

which was clearly hearsay, under the guise of

refreshing his recollection.” The document in ques-

tion was the stenographic transcript of statements

made in open court by Hall a few weeks prior to the

trial in the course of his pleading guilty to the

offense of conspiracy to commit the robbery and

burglary in question. lis determination not to

testify as to events immediately preceding the com-

mission of this erime was made apparent by his

repeated statements that he could not remember

them. The use of a transcript of his prior state-

ments to refresh his recollection was entirely

proper, as were the questions asked by the state’s

attorney in cross-examination of a witness who

specifically had heen found by the court to be hostile.

“Any memorandum which ean in fact stimulate the

present recollection may be used, whether made hy

the witness or not, whether it-be the original ora

copy, or whether made at the time of the events

testified to or not. In the ease of the past recollee-

tion the memorandum may be laid in evidence as a

part of the direct examination, while in the case of

the present recollection it may not, since it is the

recollection, not the memorandum, which is the eVvi-

dence.” Neff v. Neff, 96 Conn, 273, YTS-7o, T14 A.

126.

Opinion of Connecticut Supreme Court

80 DECEMBER, 1976 172 Conn 74

¥ Rtute v. Rado

The defendant claims support for his position in

Douglas v. Alabama, 380 U.S. 415, 85 S. Ct. 1074,

13 TL. ld. 2d 934, where the court held that it was a

violation of the defendant’s constitutional right to

permit the state’s attorney to use a confession

signed by an accomplice to refresh the accomplice’s

recollection when he was called as a state’s witness

and relied on his privilege to refuse to answer. In

pointing out that effective confrontation by cross-

examination of the witness was made impossible by

his refusal to answer, the court in Douglas, quoting

Namet, stated (p. 420): “The circumstances are

therefore such that ‘inferences from a_ witness’

refusal to answer added critical weight to the prose-

cution’s case in a form not subject to cross-

examination, and thus unfairly prejudiced the

defendant.” Tere, confrontation of Hall was made

possible by his affirmation of the questions pro-

pounded to him by the state’s attorney, specifically

affirming that the prior statements he had made in

open court, as recorded in the transcript, were his

and were true and concerning which the defendant

could and, in fact, did cross-examine him at length.

The court did not err in permitting the state’s attor-

ney to cross-examine Hall from the transcript of his

statements made in open court at a prior hearing.

The defendant, in his statement of issues and

argument to this court, claims error’ in allowing

testimony from Epprecht and Hall “concerning evi-

dence of another crime, said evidence being irrele-

vant and hearsay.” The entire thrust of his argu-

ment on that issue before this court is addressed

to the prejudicial nature of evidence of other

crimes involving the accused, but the record dis-

closes that this argument was not made to the trial

>

C-6

ib ean ed Dawn pacts bo mera

Opinion of Connecticut Supreme Court

172 Conn 74 DECEMBER, 1976 SI

Stato v. Undo

court. The only exceptign taken during the intro-

duction of the testimony under consideration was

to the court’s overruling an objection that evidence

as to a statement made by the defendant was hear-

say. Since the statement in question was not a con-

fession or admission, the ruling was correct, and the

state properly claimed that the grounds for ohjee-

tion now urged on appeal differ from those stated

during the trial. “To assign error in the court’s

evidential ruling on the basis of objections never

raised at the trial amounts to trial by ambuseade

of the trial judge... . “This court is not bound to

consider claims of law not made at the trial.’ ” State

v. Johnson, 166 Conn. 439, 444-45, 352 A.2d 294.

Inasmuch as the record discloses that the other

crime mentioned in the testimony admitted did not

involve or concern the defendant, no prejudice to the —

defendant can be claimed to constitute “exceptional

circumstances,” as discussed in State v. Evans, 165

Conn. 61, 69-71, 327 A.2d 576, to require our con-

sideration of the ground for objection now urged

for the first time.

The claimed error in denying the defendant's

motion for a mistrial with respect to the testimony

of the witness John Spinella came about when

Spinella, a neighbor of the defendant, became ill

while testifying for the state and was unable to

return to court for cross-examination by the defend-

ant. Ifis testimony was merely corroborative of

that of Donnelly wherein Domielly stated that on

the afternoon of July 3, 1972, while he was at Rado’s

home, he and Rado had gone to Spinella’s home and

assisted him with some carpentry. When Spinella

was unable to return te court, his son, Jol Spi-

nella, Jr., was called by the state and gave sub-

stantially the same testimony as had his father,

C-7

Opinion of Connecticut Supreme Court

$2 DECEMBER, 1976 172 Conn 74

Binte v. Rado

with respect to which the defendant, although given

the opportunity, failed to cross-examine. Under the

circuinstances, the state moved to strike the testi-

mony of the elder Spinella as unnecessary and the

court, over objection of the defendant, granted that

motion and subsequently denied the defendant's

inotion for a mistrial based upon the grounds that

his testiinony could give rise to damaging infer-

ences, The court, however, did instruct the jury to

disregard the testimony of the elder Spinella in a

charge set forth in the footnote. The decision to

strike the testimony of the elder Spinella, accom-

panied by the cautionary instruction to the jury as

an alternative to declaring a mistrial, was, within

the sound diseretion of the trial court, especially

where the son had testified to the same relatively

unimportant facts as had his father and wag not

cross-examined by the defendant.

The final assignment of error pertains to the

denial of the defendant’s motion to set aside the

verdiet and order a new trial because of an allegedly

improper remark made by the state’s attorney dur-

ing his summation to the jury and which, it is

claimed by the defendant, referred to his failure to

testify.

The remark to which objection was made was a

statement that the defendant was “hiding behind

[Footnotes set forth at the conclusion

of this opinion.)

:

i

a

Opinion Of Connecticut Supreme Court

172 Conn 74 DECEMBER, 1976 — : 83

Rtate v. ade

ooo

the skirts of his wife and aging mother-in-law,” and

the entire record of the claimed improper remark

and the action taken by defense counsel at the time

appears in the footnote? Tt should be noted that,

contrary to the defendant's claim in his brief that

“a Motion for Mistrial was made beeause of this

comment and was denied” and at variance with his

statement of the issue presented as the denial of his

notion for a mistrial, no such motion actually was

made or denied nor was the objection so stated that

the trial court had before it the exact basis of the

defendant's objection. The first specifie mention of

this issue in the record was in an “Amendment to

Motion to Set Aside the Verdict and Order New

Trial for the Defendant” filed approximately one

month after the trial. In view of the fact, however,

that the defendant has claimed a violation of a con-

stitutional right, namely, his privilege against self-

incrimination guaranteed by the fifth amendment to

the United States constitution and article first, §§,

of the Connecticut constitution, and sinee he did

make timely objection and noted an exception to the

court’s action in permitting the state's attorney to

continue without further action at the time, we will

consider this claim as being properly before the

court, 7

Section 54-84 of the General Statutes provides, in

relevant part: “The neglect or refusal of an accused

party to testify shall not be commented upon to the

court or jury.” In addition to this statutory pro-

tection it is, of course, undisputed that the defend-

[Footnotes set forth at the conclusion

of this opinion.]

Opinion of Connecticut Supreme Court

4 DECEMBER, 1976 172 Conn 74

ee lt A A GL CC

—_—- —

Htate vo Rudo

ant is protected against any adverse comments

concerning his failure to testify by such decisions

of the United States Supreme Court as Griffin v.

California, 880 US, GOO, 85 8. Ct. 1229, 14 1. Kd. 2d

106, rehearing denied, 381 U.S. 957, 85 S. Ct. 1797, 14

LL. Mad. 2d 730, and Chapman v. California, 386 U.S,

18, 875. Ct. 824, 17 1. lad. 2d 705, rehearing denied,

386 U.S. 987, 87 5. Ct. 1283, 18 LL. Md. 2d 241; see

State v. Branham, 171) Conn. 12, 368 A.2d 63.

An examination of the United States Supreme

Court decisions cited by the defendant including

Grifin and Chapman, however, discloses that

the prosecutor's comments there under consider-

ation were umnistakably and even flagrantly

directed toward the failure of the defendant to tes-

tify. Tn the ease before us, by contrast, no direct

reference was made to the failure of the defendfint

‘to testify and any inference of such reference, under

the circumstances of this case, can be found only by

rather strained interpretation, Tn the concluding

paragraph of his brief, the defendant states: “That

such words were a comment on the defendant’s fail-

ure to testify is evident because his two main wit-

nesses were his wife and aging mother-in-law

taking up most of the defense’s case-in-chief.” Tnas-

much as if is apparent from this candid statement,

without even consulting the record, that the defense

was based almost entirely upon the testimony of

the defendant’s wife and mother-in-law, the state’s

of this opinion.]

[Footnotes set forth at the conclusion

Opinion of Connecticut Supreme Court

172 Coun 74 DECEMBER, 1976 8h

Bute c. Rude

attorney’s characterization of the defense was a

reasonably accurate assessment, even (hough in less

than flattering Janguage. The trial court, in order

to make certain that the jurors, if they did interpret

the remark as a reference to the defendant's failure

to testify, would totally disregard it, charged them

as to the defendant’s right not to testify, and

instructed them completely to disregard the remark

in question, as fully set forth in the footnote. It

also should be noted that the court omitted from its

charge any further clarification of the defendant's

right not to testify at the express request of the

defendant.'

[Footnotes set forth at the conclusion

of this opinion.]

Opinion of Connecticut Supreme Court

8H DECEMBER, 1976 172 Conn 74

Opinion of Connecticut Supreme Court

172 Conn 74 DECEMBER, 1976 87

eee eee C0 eee ae oe oe es ee ee

Btnte v. Nnido

Under the particular circumstances of this case,

it ix difficult to see how the remark of the state's

attorney could be interpreted as a reference to the

failure of the defendant to testify or, under any

interpretation, how it prejudiced him. Tn State v.

Monahan, 96 Conn. 289, 291, 114 A. 102, this court

stated, in considering an allegedly unfair comment

by the state’s attorney in the light of the predeces-

sor statute to our present § 54-84: “But disobedi-

ence of this statutory rule of practice docs not

entitle the accused to a new trial as of right, unless

it appears to have injuriously prejudiced him before

the jury. And failure of the court to enforce the

statute will not of itself be ground for granting a

new trial, for the accused may waive its enforce-

ment ‘by neglecting to move for a discharge of the

jury at the time and by proceeding without further

objection or motion to an adverse ending of the

trial.’ State v. Burton, 79 Conn. 477, 480, 65 Atl.

997." And in language strikingly applicable to the

facts of the present case, the court continued

(p. 292): “The comment objected to was not com-

ment upon the failure of the accused .. . to testify.

Tt neither dircetly referred to that fact, nor could

un inference to that effect be fairly drawn from the

comment. The comment was to the failure of the

defense to produce evidence which was essential to

the case of the accused, The statute prevents pre)-

udice to an accused from his failure to testify; it

does not prevent prejudice to his case from the

failure to produce any evidence, or any sufficient

evidence, to establish his case.”

Iiven if the remark under discussion were to be

construed as an oblique reference to the failure of

the defendant to testify, it is dificult to see how he

could have been prejudiced thereby. In Chapman

Hinte v. Hnde

v. California, 386 U.S. 18, 87°S. Ct. 824, 17 1. ld. 2d

705, decided after both Monahan and Griffin, the

United States Supreme Court held that before an

error involving the denial of a federal constitutional

right can be held harmless in a state criminal case,

the reviewing court must be satisfied beyond a rea-

sonavle doubt that the error did not contribute to

the defendant’s conviction. Tt further observed

(pp. 21-22): “We are urged ... to hold that all

federal constitutional errors, regardless of the facts

and circumstances, must always be deemed harmful.

Such a holding, as petitioners correctly point out,

would require an automatic reversal of their convie-

ions and make further discussion unnecessary. We

decline to adopt any such rule.” (Jomphasis added.)

One of the “facts and circumstances” of the present

case that must be considered in determining whether

¢ . ® °

the error, if any, was harinful, is the overwhelhning

evidence against the defendant as revealed by the

record and even by reference to those portions of

the evidence referred to in this opinion. tn Ailton

v. Wainwright, 407 U.S. 371, 377, 92 S. Ct. 2174,

33 L. Ed. 2d 1, the court observed: “[|TJhe federal

courts do not sit to re-try state cases de novo but,

rather, to review for violation of federal constitu-

tional standards. In that process we do not close

our eyes to the reality of overwhelming evidence of

guilt fairly established in the state court,” and

again (p. 372): “Assuming, arguendo, that the chal-

lenged testimony should have been. excluded, the

record clearly reveals that any error in its adinis-

sion was harmless beyond a reasonable doubt. ar-

rington v. California, 395 U.S. 250... 789 S. Ct.

1726, 23 L. Ed. 2d 284]; Chapman v. California,

386 U.S.18... [87 S. Ct. 824, 17 LL. Wad. 2d 705).

C-i3

Opinion of Connecticut Supreme Court

88 DECEMBIER, 1976 172 Conn 88

Webb v. Czyr Construction Co.

The jury, in addition to hearing the challenged testi-

inony, was presented with overwhelming evidence of

petitioner’s guilt.”

Another of the “facts and circumstances” to be

considered under the Chapman test is the fact that

the trial court clearly instructed the jury to dis-

regard the remark under consideration if, indeed,

they construed it as a comment on the defendant’s

right not to testify. See footnote 4, supra. The

court refrained from elaborating further on the

defendant’s constitutional right to remain silent

only at the specific request of his attorney. See

footnote 5, supra. We do not find that the remark

under consideration constituted a reference to the

defendant's failure to testify, but even if it were to

he so construed, we find the court’s action with

reference thereto to constitute error that was harm-

less beyond a reasonable doubt.

There is no error.

Tn this opinion the other judges concurred.

Sea AS

NOTES [FOOTNOTES]

1. "The Court: Now ladies and

gentlemen, just to bring you up to

date, briefly, I indicated to you

yesterday that the last witness you

had heard last week, a Mr. John Spin-

ella, who had been on the stand here

before I let you go for the weekend,

yesterday it was brought to the

Court's attention that he had been

hospitalized after he left here last

week, and the condition of his health

was gOing to be checked upon by the

State. It has been reported to the

Court that he is still in the hospi-

tal. He is ill. And rather than hold

up this trial, the Court at this time

--the Court in your absence has stricken

his entire testimony from the record

in this case, and at this time I not

only caution you, but I order you to

completely disregard his entire testi-

mony and to dismiss it from your minds."

2. "Mr. Casella: I object, your

Honor, to that last statement, hiding

behind the skirts of his wife and aging

mother-in-law.'

"The Court: You may be

seated, Mr. Casella. You may proceed,

Mr. Scanlon.

"Mr. Casella: May I have an

exception?

"The Court: Exception noted."

3. In Griffin,’ for example, the

remarks of the prosecutor (p. 611) inclu-

ded the following:

C-i5

3. (continued)

"These things he has not seen fit to

take the stand and deny or explain. And

in the whole world, if anybody would know,

this defendant would know. Essie May is

dead, she can't tell you her side of the

story. The defendant won't."

In Chapman, an appendix to the

opinion (pp. 26-42) includes seventeen

pages of the prosecutor's comments con- t

taining literally dozens of caustic

references to the failure of the defen-

dants to testify.

4. "The Court: Ladies and gentlemen,

on reflection here, the point that Mr.

Casella brought up as to any construction

of the term 'hiding behind the skirts' of

anyone, that Mr. Scanlon used here, I am

going to ask you to completely disregard

that. If at all, he was referring to the

fact that the defendant did not take the

stand, and I will later on explain that

to you more fully, that the defendant

does not have to take the stand. So I

am going to order those remarks stricken

from the record in compliance with the .

request of Attorney Casella, and ask you

to disregard those remarks completely.

"Mr. Scanlon: May I make one state-

ment, your Honor? That was not the purpose.

"The Court: All right.”

5. "The Court: All right, gentlemen, I

am about to call the jury to charge them

on the law. Mr. Casella, is there some-

thing you would like to say for the record

at this point?

"Mr. Casella: I would just like to

state, your Honor, I filed no request to

charge as to the defendant not taking the

stand in this matter, and I would prefer

C-16 |

5. (continued)

that your Honor would give no--make no

reference to that.

"The Court: Even though the

Court did make some reference to the

fact when the Court stated he did not

have to take the stand when you moved

the jury be cautioned about the remarks

of Mr. Scanlon?

"Mr. Casella: Even though that is

true.

"The Court: At this time, you would

request the Court not to make any refer-

ence to the fact that the accused did not

take the stand?

"Mr. Casella: Yes, your Honor.

"The Court: All right. The record

will so indicate."