State v. Taylor

214 A.2d 362, 153 Conn. 72, 1965 Conn. LEXIS 401
CourtSupreme Court of Connecticut
DecidedOctober 7, 1965
StatusPublished
Cited by105 cases

This text of 214 A.2d 362 (State v. Taylor) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Taylor, 214 A.2d 362, 153 Conn. 72, 1965 Conn. LEXIS 401 (Colo. 1965).

Opinion

Cotter, J.

On January 30, 1958, Samuel Taylor was arrested and charged with aiding and abetting Joseph Gauze, a codefendant, in furnishing drugs to a minor. Gauze was charged with furnishing drugs to a minor. Cum. Sup. 1955, § 2105d (General Statutes § 19-267). They were tried simultaneously, Taylor to the court and Gauze to the jury. Both were found guilty. At the trial each was represented by private counsel. After sentence was passed, Taylor retained new private counsel for the purpose of taking an appeal to this court. His appeal was filed June 7, 1958. The appeal was *75 withdrawn by the attorney on October 4, 1958, after consultation with Taylor, because Taylor was unable to pay the fee which had been agreed upon. Subsequently, in October, 1962, Taylor initiated a habeas corpus proceeding in the Superior Court, claiming that he had been denied the right to an appeal and that he had been denied the right to have assistance of counsel in the preparation of an appeal. The Superior Court, having taken the testimony of all parties involved, found that Taylor had consented to the withdrawal of the appeal by counsel and had thereby waived his right to an appeal. We refused to review that determination. See General Statutes § 52-470. Taylor’s petition to the United States Supreme Court for a writ of certiorari was denied on October 14, 1963. Taylor v. Connecticut, 375 U.S. 840, 84 S. Ct. 86, 11 L. Ed. 2d 68.

Nine days later, on October 23,1963, Taylor began a habeas corpus action in the federal District Court for the district of Connecticut. That court, exercising its plenary power to review constitutional issues arising out of state court convictions, as established in Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837, and Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770, determined that Taylor had not waived his right to appeal and ordered that Taylor be discharged unless, within a reasonable time, an appeal of the 1958 conviction was granted. United States ex rel. Taylor v. Reincke, 225 P. Sup. 985 (D. Conn.). Pursuant to this order of the District Court, this appeal was granted and counsel appointed.

Before proceeding to the basic claims of the defendant, it is necessary to consider a preliminary matter. The defendant makes some claim that this *76 court should “find”, because of the lapse of five and one-half years, that the finding of the trial judge is not reasonably supported by his memory and that we should therefore order a new trial. This claim was first made in a motion to the trial judge, which he denied. The trial judge’s denial of the motion can be construed only as a determination that he could make a finding reasonably supported by memory. As pointed out by the District Court: “It must be left to the judge ... to test his own memory.” United States ex rel. Taylor v. Reincke, supra, 991. The question whether the time lapse between trial and appeal is of sufficient duration to prevent the making of a finding is one which the trial judge is in a unique position to decide, and we find no reason for disturbing that determination in this case. The entire transcript of the trial containing the testimony of all the witnesses was filed with the court and was available to the trial judge before he made his finding. This transcript contained all the evidence relevant and material to the issues raised on appeal. Practice Book, 1951, §404 (as amended, Practice Book, 1963, §641). It would be absurd to believe a trial judge of many years’ experience could not refresh his memory from a full transcript of the trial while witnesses are permitted under our rules of jurisprudence to refresh their memories in innumerable ways and from all sorts of writings of ancient vintage. 3 Wigmore, Evidence (3d Ed.) §§ 758-64; 58 Am. Jur. 323-38, Witnesses, §§ 578-608. We therefore pass to the merits of the appeal.

The defendant in his brief raises several claims. For convenience we first consider the claims arising from rulings on evidence. The court admitted into evidence, over the objection of the defendant, a *77 magnetized metal box found near the place where the sale of narcotics took place. This metal box contained three glassine packets of heroin. The defendant objected to its admission on the ground that the state had shown no connection between the box and either the defendants or the crime charged. The court admitted the box into evidence when the state said that it would later show that the glassine packets in the box were of the same type as the one which was the subject of the sale to the minor, Edmund Arsenault. The defendant claims that the state failed to fulfil this promise to connect. We cannot agree. The necessary link in the chain of circumstances was drawn when the individual packet of heroin, the subject of the sale to Arsenault, became a full exhibit. The trier was then in a position to compare this packet with the packets in the metal box to justify the inference that they had a common origin. State v. Belanger, 148 Conn. 57, 59, 167 A.2d 245. There was adequate corroborative evidence to support this inference. After this offer of proof to connect, substantial evidence was introduced. The state’s expert witness, Dr. Abraham Stolman, testified that the packets in the box, as well as the individual packet in the prime transaction, contained heroin. There was testimony by several police officers who observed the activities that the defendant and Gauze entered the alley where the box was subsequently found and emerged only moments later, at which time the individual packet was passed from Gauze to Arsenault. In addition, photographs were marked as full exhibits to show the locus of the activities of the defendant and Gauze. Using these photographs, witnesses testified to the circumstances in detail, and the trial judge, if he believed the testimony, could find that the defend *78 ant and Ganze went into the alley, secured a packet of heroin from the cache, and proceeded to walk to Arsenault and give it to him. On the basis of later evidence, therefore, the promise to connect the metal box to the main case was fulfilled by the state, and the box was properly before the court as part of the overall case. Steiber v. Bridgeport, 145 Conn. 363, 366, 143 A.2d 434. These facts are in a train of events in evidence which the court could consider. It is fundamental that “circumstantial evidence may be as cogent and convincing as direct evidence and may properly be found to outweigh conflicting direct evidence.” The Rocona v. Guy F. Atkinson Co., 173 F.2d 661, 665 (9th Cir.) (citing 32A C.J.S., Evidence, §1039). “[Djirect evidence of a fact is not required. Circumstantial evidence is not only sufficient, but also may be more certain, satisfying and persuasive than direct evidence.” Michalic v. Cleveland Tankers, Inc., 364 U.S.

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Cite This Page — Counsel Stack

Bluebook (online)
214 A.2d 362, 153 Conn. 72, 1965 Conn. LEXIS 401, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-taylor-conn-1965.