State v. Grasso
State v. Grasso
Opinion of the Court
The defendants, Frank M. Grasso and Frank J. Pastore, were found guilty, on a trial to a jury, of arson in violation of former § 53-82 of the General Statutes
After argument on the appeal, the defendant Pastore died. The appeal is therefore moot as to him. State v. Granata, 162 Conn. 653, 289 A.2d 385; State v. Raffone, 161 Conn. 117, 120, 285 A.2d 323. The assignments of error pressed and briefed on appeal by the defendant Grasso will be considered.
At the trial, evidence was introduced tending to show that the fire was not accidental. Murray Hershman, president of the Haven Realty Company, which owned the property at 75 Shepard Street, testified that he had contacted one Marshall Fazzone with a view to getting someone to burn down the property in order to collect the insurance, and that he and Fazzone had conspired with G-rasso and Pastore, who agreed to set the fire and were paid for setting it. Fazzone corroborated this testimony, which was denied by both defendants.
On appeal, the defendant Grasso makes numerous claims of error, but only those which were briefed are determined. Fox v. Fox, 168 Conn. 592, 593, 362 A.2d 854. Before the trial, his counsel filed a motion for disclosure of all exculpatory material, to which the state replied that it had none. At the trial, counsel renewed the motion, expanding it to seek all prior “criminal involvement” of the state’s witnesses, claiming that Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215, gave this right. The court denied the motion, and exception was taken. The court did, however, order the state to disclose felony convictions of its witnesses.
In Brady v. Maryland, supra, a case involving the discovery, after trial, of information which had been known to the prosecution but unknown to the defendant, the United States Supreme Court held that the prosecution’s suppression of exculpatory
It must be emphasized that the present case is not an exact Brady situation where there is discovery, after trial, of specific information not revealed, hut a direct appeal where the claim is made that unknown information, and known information, was suppressed hy the prosecution. Necessarily, in this appeal, to make a determination of the issue presented, we are confined to the facts and information revealed in the appeal.
United States v. Agurs, supra, does impose a duty upon the prosecution to disclose information sufficient to create a reasonable doubt of guilt independent of any motion by the defense for disclosure. When a conviction depends entirely upon the testimony of certain witnesses, as it did in the present ease, information affecting their credibility is material in the constitutional sense since if they are not believed a reasonable doubt of guilt would be created. Felony convictions can be used to impeach, and the trial court ordered those disclosed. 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 and, when the witness is an essential link in the state’s case, must be disclosed.
The defendant assigns as error the court’s restriction of the cross-examination of Hershman, which was apparently directed toward showing that Fazzone had claimed Hershman was threatening him, but that no arrest of Hershman for obstructing justice or threatening government witnesses had been made. The scope of cross-examination of a witness is largely a matter in the discretion of the trial court. State v. Clemons, 168 Conn. 395, 404, 363 A.2d 33. While this court has held that arrest or indictment of a witness may be inquired into when it tends to show bias; State v. Annunziato, supra; see also annot., 62 A.L.R.2d 610, 624 § 3; it has never been suggested that facts which merely suggest that an arrest might have been made are admis
The defendant Grasso also assigns error in the court’s admission of certain testimony by Hershman and in its denial of a motion by the defendant Pastore for a mistrial. Hershman testified that he asked Pastore to set a second fire in property on Haven Street two years later, and that Pastore agreed to go look at the building but then refused to set the fire because “there were too many cops around.” Although this is argued vigorously in the defendant Grasso’s brief, neither the record nor the transcript reveals that counsel for Grasso made any objection to the admission of this testimony, which concerned only Pastore. Practice Book § 226
There is no error in the appeal of Frank M. Grasso; the appeal of Frank J. Pastore is dismissed as moot, and the trial court is directed so to note on its records.
In this opinion House, C. J., Cotter and Barber, Js., concurred.
Section. 53-82 was repealed in 3969, repeal effective October 1, 1971, as part of a general revision of the criminal laws. The present arson statutes are §§ 53a-lll to 53a-113, inclusive.
“[Practice Book] Sec. 226. objections to evidence Whenever an objection to the admission of evidence is made, counsel shall state the grounds upon which it is claimed or upon which objection is made, succinctly and in such form as he desires it to go upon the record, before any discussion or argument is had. Argument upon such objection shall not be made by either party unless the court requests it and, if made, must be brief and to the point. An exception to the ruling must be taken in order to make it a ground of appeal.”
Concurring in Part
(concurring in part and dissenting in part). I agree with, the disposition of the Grasso case hut not with the disposition of the Pastore appeal. The opinion states that “[ajfter argument on the appeal, the defendant Pastore died.” Because direct appeals in criminal cases are a matter of right, and because death will prevent any review on the merits of any such appeal, this court should follow the law enunciated by the Supreme Court of the United States and vacate the judgment and direct dismissal of all proceedings had against the deceased, Frank J. Pastore.
“|T)]eath pending direct review of a criminal conviction abates not only the appeal but also all proceedings had in the prosecution from its inception. ... [0]n death of the convicted petitioner the ‘cause has abated.’ ” Durham v. United States, 401 U.S. 481, 483, 91 S. Ct. 858, 28 L. Ed. 2d 200.
The law provides for two kinds of punishment, “pecuniary” and “corporal.” In Crooker v. United States, 325 F.2d 318 (8th Cir.) one of the judgments appealed from involved a fine as well as imprisonment. The court there held (p. 321) that “[a] fine is not something to which the United States is entitled by way of compensation or damages, but only as a matter of punishment being thereby meted upon the defendant. ‘It was imposed as a punishment of the defendant for his offense. If, while he lived, it had been collected, he would have been punished by the deprivation of that amount from his estate; but, upon his death, there is no justice in punishing his family for his offense.’ ” See also State v. Rutledge, 243 Iowa 201, 50 N.W.2d 801.
The offense for which the deceased Pastore was convicted was punishable by a fine as well as impris
I would, therefore, vacate the judgment as to Pastore and remand his case to the Superior Court with direction to dismiss all proceedings had in connection therewith.
Reference
- Full Case Name
- State of Connecticut v. Frank M. Grasso; State of Connecticut v. Frank J. Pastore
- Cited By
- 29 cases
- Status
- Published