Orsini v. Manson

498 A.2d 114, 5 Conn. App. 277, 1985 Conn. App. LEXIS 1139
CourtConnecticut Appellate Court
DecidedSeptember 17, 1985
Docket3802
StatusPublished
Cited by3 cases

This text of 498 A.2d 114 (Orsini v. Manson) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Orsini v. Manson, 498 A.2d 114, 5 Conn. App. 277, 1985 Conn. App. LEXIS 1139 (Colo. Ct. App. 1985).

Opinion

Borden, J.

The petitioner appeals1 from the judgment of the trial court dismissing his petition for a writ of habeas corpus challenging the validity of his convictions of larceny in the second degree, conspiracy to commit larceny in the second degree, and being a persistent [278]*278offender. This case is the aftermath of State v. Orsini, 187 Conn. 264, 445 A.2d 887, cert. denied, 459 U.S. 861, 103 S. Ct. 136, 74 L. Ed. 2d 116 (1982), in which the Supreme Court sustained those convictions.

The petitioner claims on appeal that he was denied due process of law because of the admitted failure of the state to disclose, at his original trial, the fact that two of the state’s witnesses were under arrest for pending unrelated state charges when they testified in that trial. The trial court in this case dismissed the petitioner’s petition because he had not established a miscarriage of justice. We find no error.

The petitioner’s convictions arose from a series of three burglaries and thefts committed by Morris Ashcroft and some companions. The petitioner purchased weapons from Ashcroft which were the fruits of the burglaries. State v. Orsini, supra, 266-67.

After our Supreme Court rejected his direct appeal and the United States Supreme Court denied certiorari, the petitioner filed this action. His revised petition alleged essentially that the state withheld exculpatory information consisting of the arrest of and pending charges against three of the state’s witnesses in his original trial: Ashcroft, Walter Hazuka and James Hirst. In this appeal, he has failed to brief any claims regarding Hirst, which claims are considered abandoned. State v. Gradzik, 193 Conn. 35, 44 n.11, 475 A.2d 269 (1984). We, therefore, confine our discussion to the claims regarding Ashcroft and Hazuka.

At the petitioner’s criminal trial, held in the Superior Court for the Middlesex judicial district, he made an oral, pretrial request of the state’s attorney for the record of pending arrests of and criminal charges against any of the state’s potential witnesses, he filed a written motion requesting “any exculpatory information or materials,” and he subpoenaed any state police rec[279]*279ords regarding Ashcroft. The state’s attorney, in accordance with his open file policy, permitted the petitioner’s attorney to examine his file. Also, having received assurances from William Doyle, his inspector, that no state’s witnesses had other charges pending against them, he informed the petitioner’s attorney of that fact. The petitioner knew that Ashcroft had been arrested and was facing criminal charges arising out of the burglaries and thefts which were the basis of the charges against the petitioner. The state’s attorney also replied in writing to the petitioner’s motion that, with one exception not relevant here, he had no exculpatory material. The state police responded to the petitioner’s subpoena that there were no records regarding Ashcroft.

In fact, both Ashcroft and Hazuka were facing other, unrelated state charges in geographical area number nine of the Court of Common Pleas, located in Middle-town. Ashcroft was facing state police charges of attempted first degree larceny by extortion. Hazuka was facing charges of second degree reckless endangerment, illegal discharge of firearms, carrying a dangerous weapon and possession of marihuana.

The state concedes, as it must, that all these charges should have been disclosed to the petitioner, because they would have furnished grist for the mill of cross examination based on “possible bias or interest resulting from inducements made by the [state].” United States v. Bagley, 473 U.S. 667, 678, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985). “Information that a witness has been arrested, is being prosecuted, or has confessed to a crime, tends to show that the state has power over a witness which may induce him to give testimony which will win favor with the state. ...” State v. Grasso, 172 Conn. 298, 302, 374 A.2d 239 (1977).2

[280]*280This does not end our inquiry, however. “To mount a successful collateral attack on his conviction a prisoner must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal.” D’Amico v. Manson, 193 Conn. 144, 156-57, 476 A.2d 543 (1984). The fact that the non-disclosed evidence was exculpatory, in the sense that it could have been used to impeach Ashcroft and Hazuka; see United States v. Bagley, supra; is not dis-positive. It must also be “material” in the constitutional sense. Id., 678-81.

We find fresh and authoritative guidance in the very recent decision of the United States Supreme Court in United States v. Bagley, supra. Where the suppression involves a “failure to assist the defense by disclosing information that might have been helpful in conducting the cross-examination . . . such suppression of evidence amounts to a constitutional violation only if it deprives the defendant of a fair trial. Consistent with ‘our overriding concern with the justice of the finding of guilt,’ United States v. Agurs, [427 U.S. 97, 112, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976)], a constitutional error occurs, and the conviction must be reversed, only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial.” United States v. Bagley, supra, 678.

A majority of the Bagley court agreed on a further refinement of the standard of materiality. Where there has been no request for exculpatory evidence, or, as in this case, where there has been either a general or [281]*281a specific request, “[t]he evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” Id., 682. Where the suppressed evidence is cumulative, however, of what was already placed before the jury by other evidence, it is not material in the constitutional sense. United States v. Sperling, 726 F.2d 69, 71-73 (2d Cir.), cert. denied, 467 U.S. 1243, 104 S. Ct. 3516, 82 L. Ed. 2d 824 (1984); see State v. Baker, 195 Conn. 598, 609-610, 489 A.2d 1041 (1985).

With these principles in mind we analyze the materiality of the suppressed evidence.

I

Morris Ashcroft

The state concedes that Ashcroft was its key witness at the original trial. After the first burglary, Ashcroft went to a gas station owned by Thomas Cestaro, who told Ashcroft that the petitioner would be a potential customer for the guns.

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Related

Horn v. Commissioner of Correction
138 A.3d 908 (Supreme Court of Connecticut, 2016)
State v. Jennings
500 A.2d 571 (Connecticut Appellate Court, 1985)
Orsini v. Manson
499 A.2d 804 (Supreme Court of Connecticut, 1985)

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Bluebook (online)
498 A.2d 114, 5 Conn. App. 277, 1985 Conn. App. LEXIS 1139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/orsini-v-manson-connappct-1985.