State v. Gaston ( 2020 )

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STATE OF CONNECTICUT v. MICHAEL GASTON
(AC 43499)
Elgo, Moll and Pellegrino, Js.
Syllabus
Convicted of the crime of murder in connection with the shooting death of
the victim, the defendant appealed, claiming that the trial court commit-
ted plain error pursuant to the applicable rule of practice (§ 60-5) when
it permitted W, the key witness against him, to testify instead of accepting
W’s invocation of his fifth amendment right against self-incrimination.
W previously had been charged with felony murder, robbery in the
first degree and conspiracy to commit robbery in the first degree in
connection with the victim’s death. A different trial court found no
probable cause with respect to the felony murder charge against W and,
after a trial, found him not guilty of robbery in the first degree and
conspiracy to commit robbery in the first degree. When W invoked his
fifth amendment privilege at the start of the state’s direct examination
of him, the court instructed counsel who had represented W during the
proceedings in W’s case to advise W of his rights. W then testified against
the defendant, who did not object to or seek to preclude W’s testimony.
Held that this court lacked subject matter jurisdiction over the defen-
dant’s appeal, as he lacked standing to challenge the trial court’s rejec-
tion of W’s invocation of his fifth amendment privilege against self-
incrimination; that right is a personal privilege that adheres to the person
and not to information that may incriminate him, and, accordingly, the
appeal was dismissed.
Argued September 22—officially released November 10, 2020
Procedural History
Substitute information charging the defendant with
the crimes of murder, robbery in the first degree, con-
spiracy to commit robbery in the first degree and felony
murder, brought to the Superior Court in the judicial
district of Hartford and tried to the jury before D’Ad-
dabbo, J.; verdict of guilty of murder, robbery in the
first degree and felony murder; thereafter, the court
vacated the verdict as to robbery in the first degree
and felony murder, and rendered judgment of guilty of
murder, from which the defendant appealed. Appeal
dismissed.
Robert L. O’Brien, assigned counsel, with whom, on
the brief, was Christopher Y. Duby, assigned counsel,
for the appellant (defendant).
Mitchell S. Brody, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, former
state’s attorney, and David L. Zagaja, senior assistant
state’s attorney, for the appellee (state).
Opinion
MOLL, J. The defendant, Michael Gaston, appeals
from the judgment of conviction, rendered after a jury
trial, of murder in violation of General Statutes § 53a-
54a. The threshold issue in this appeal is whether the
defendant has standing to challenge the trial court’s
initial decision refusing to accept a key state witness’
invocation of his fifth amendment right against self-
incrimination and, following the witness’ consultation
with counsel, permitting the witness to testify. We con-
clude that the defendant does not have standing to raise
this claim and, accordingly, we dismiss this appeal.
The following procedural history and facts are rele-
vant to our resolution of this appeal. On June 7, 2016,
the defendant was arrested in connection with a rob-
bery and an assault that occurred on May 16, 2016,
resulting in the death of the victim, Marshall Wiggins.
By way of a substitute long form information dated May
31, 2018, the defendant was charged with murder in
violation of § 53a-54a, robbery in the first degree in
violation of General Statutes § 53a-134 (a) (2), conspir-
acy to commit robbery in the first degree in violation
of General Statutes §§ 53a-48 and 53a-134 (a) (2), and
felony murder in violation of General Statutes § 53a-
54c. The defendant pleaded not guilty to the charges
and elected to be tried by a jury. The trial began on
May 31, 2018.
At trial, the state called as its key witness Laurence
Washington, who was the sole witness to the underlying
incident called by the state. In connection with the same
incident, Washington previously had been charged with
felony murder in violation of § 53a-54c, robbery in the
first degree in violation of § 53a-134 (a) (2), and conspir-
acy to commit robbery in the first degree in violation
of §§ 53a-48 and 53a-134 (a) (2). After a probable cause
hearing, the trial court, Crawford, J., made a finding
of no probable cause with respect to the felony murder
charge against Washington. Following a court trial con-
ducted in 2017, Washington was found not guilty of the
charges of robbery in the first degree and conspiracy
to commit robbery in the first degree.
Thereafter, during the defendant’s trial, at the start
of the state’s direct examination of Washington, Wash-
ington almost immediately invoked his fifth amendment
privilege against self-incrimination. Although the trial
court, D’Addabbo, J., informed Washington that he no
longer had charges pending against him, and, therefore,
he had nothing for which he could incriminate himself,
Washington continued to assert the privilege. The court
then stated: ‘‘[B]efore anything happens, I think it would
be appropriate if we let you speak to an attorney.’’
The court located an attorney, Dennis McMahon, in the
courthouse to advise Washington of his rights and then
instructed the attorney to remain in the courtroom in
the event Washington desired to speak with him. Attor-
ney McMahon had represented Washington in the afore-
mentioned probable cause hearing and robbery trial.
After speaking with counsel, Washington returned to
the witness stand. Upon his return to the witness stand,
the court asked Washington a series of questions,
including if the attorney ‘‘answer[ed] all [of] the ques-
tions that [Washington] had for him . . . .’’ The court
also asked Washington if he ‘‘need[ed] any more time
to answer any questions . . . .’’ Last, the court asked
if Washington would ‘‘be answering questions’’ once he
returned to the witness stand. Washington answered
each of the preceding questions, the first and last in
the affirmative, and the second in the negative, and
then proceeded to testify against the defendant. At no
time did the defendant object to or otherwise seek to
preclude Washington’s testimony.
On June 6, 2018, the jury found the defendant guilty
of murder in violation of § 53a-54a, robbery in the first
degree in violation of § 53a-134 (a) (2), and felony mur-
der in violation of § 53a-54c, and not guilty of conspiracy
to commit robbery in the first degree in violation of
§§ 53a-48 and 53a-134 (a) (2). On July 25, 2018, pursuant
to State v. Polanco, 308 Conn. 242, 61 A.3d 1084 (2013),
the trial court vacated the conviction of robbery in the
first degree and felony murder, subject to reinstatement
in the event that ‘‘there is a reversal on appeal and a
retrial,’’ and sentenced the defendant on the murder
conviction to fifty years of incarceration, with a manda-
tory minimum term of incarceration of twenty-five
years. This appeal followed.
Relying on Practice Book § 60-5, the defendant’s sole
claim on appeal is that the trial court committed plain
error by failing to accept Washington’s invocation of
his fifth amendment right against self-incrimination and
thereafter permitting him to testify after he had con-
sulted with counsel.1 The defendant asserts that the
court should have excused Washington after he had
invoked his fifth amendment privilege. In response, the
state argues, as an initial matter, that the defendant
lacks standing to challenge the court’s decision in that
regard, and, therefore, this court lacks subject matter
jurisdiction to entertain the defendant’s claim. We agree
with the state.
We begin by reviewing the well established principles
of standing. ‘‘Generally, standing is inherently inter-
twined with a court’s subject matter jurisdiction. . . .
In addition, because standing implicates the court’s sub-
ject matter jurisdiction, the issue of standing is not
subject to waiver and may be raised at any time.’’ (Inter-
nal quotation marks omitted.) State v. Brito, 170 Conn.
App. 269, 285, 154 A.3d 535, cert. denied, 324 Conn.
925, 155 A.3d 755 (2017). ‘‘A determination regarding
standing concerns a question of law over which we
exercise plenary review.’’ World Business Lenders, LLC
v. 526-528 North Main Street, LLC, 197 Conn. App.
269, 273, 231 A.3d 386 (2020).
‘‘Standing is the legal right to set judicial machinery
in motion. One cannot rightfully invoke the jurisdiction
of the court unless he has, in an individual or representa-
tive capacity, some real interest in the cause of action,
or a legal or equitable right, title or interest in the subject
matter of the controversy. . . . The question of stand-
ing does not involve an inquiry into the merits of the
case. It merely requires the party to make allegations
of a colorable claim of injury to an interest which is
arguably protected or regulated by the statute or consti-
tutional guarantee in question.’’ (Internal quotation
marks omitted.) State v. Iban C., 275 Conn. 624, 664,
881 A.2d 1005 (2005).
Relying on, inter alia, State v. Williams, 206 Conn.
203, 536 A.2d 583 (1988), the state argues that the defen-
dant lacks standing to challenge the court’s rejection
of Washington’s invocation of his fifth amendment right
against self-incrimination because it is a personal privi-
lege. The defendant contends that he has standing
because he is an aggrieved party challenging what he
characterizes as an evidentiary ruling made by the trial
court. More specifically, he asserts that he has an inter-
est in whether Washington could testify after invoking
his fifth amendment right and that he has suffered an
injury because the court allowed Washington, the
state’s key witness, to testify against him. We agree
with the state and reject the defendant’s contentions.
Courts have routinely held that ‘‘the [f]ifth [a]mend-
ment privilege is a personal privilege: it adheres basi-
cally to the person, not to information that may incrimi-
nate him.’’ (Emphasis omitted.) Couch v. United States,
409 U.S. 322, 328, 93 S. Ct. 611, 34 L. Ed. 2d 548 (1973).
‘‘By its very nature, the privilege [against compulsory
self-incrimination] is an intimate and personal one. It
respects a private inner sanctum of individual feeling
and thought and proscribes state intrusion to extract
self-condemnation.’’ Id., 327.
In State v. Williams, supra, 206 Conn. 203, our
Supreme Court applied the ‘‘general principle that a
defendant does not have standing to challenge the
method by which a witness against him has been immu-
nized.’’ Id., 207. In Williams, the chief court administra-
tor appointed the Honorable Anthony V. DeMayo, a
judge of the Superior Court, to conduct an inquiry into
allegations of professional gambling and municipal cor-
ruption in the city of Torrington. Id., 205. During the
course of the inquiry, the court granted immunity, under
General Statutes § 54-47a, to a witness who had pre-
viously invoked his fifth amendment privilege against
self-incrimination. Id. The defendant filed a motion
seeking to bar the admission of the witness’ testimony
on the basis of that grant of immunity. Id. The trial
court found that the prior grant of immunity was invalid
because it was Judge DeMayo who acted on the earlier
application for immunity, and he could not, in essence,
‘‘wear two hats . . . .’’ (Internal quotation marks omit-
ted.) Id., 206. Nevertheless, after the state had applied
for another grant of immunity so that the witness would
testify in the hearing on that motion, the court granted
the second application. Id. The witness then testified
in accordance with the court’s order in such a manner
as to implicate the defendant in the crimes charged. Id.
‘‘The trial court concluded that, although the general
rule of standing would forbid the vicarious assertion of
fifth amendment rights, this case called for an exception
because, in its view, the grant of immunity had been
made without authority.’’ Id. It reasoned that because
the grant of immunity by Judge DeMayo was ‘‘ ‘clearly
illegal,’ ’’ the circumstances demanded an exception to
the general rule that a party has no standing to assert
a privilege belonging to another. Id., 207. The trial court
later suppressed the testimony. Id., 206.
On appeal, our Supreme Court concluded that the
circumstances of the case did not warrant a departure
from the general principle that a defendant does not
having standing to challenge the method by which a
witness against him has been immunized. Id., 207. In
deciding Williams, our Supreme Court relied on the
well settled principle that ‘‘the right to be free from
testimonial compulsion is a personal one that may not
be asserted vicariously.’’ Id., 208, citing Fisher v. United
States, 425 U.S. 391, 398–99, 96 S. Ct. 1569, 48 L. Ed.
2d 39 (1976), and Broadrick v. Oklahoma, 413 U.S. 601,
610–11, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973); see also
State v. Pierson, 208 Conn. 683, 686–89, 546 A.2d 268(1988) (defendant lacks standing to challenge witness’
waiver of psychiatrist-patient privilege), cert. denied,
489 U.S. 1016, 109 S. Ct. 1131, 103 L. Ed. 2d 193 (1989);
State v. Pierson, supra, 689 (‘‘[l]ike the marital privilege
or the privilege against self-incrimination an errone-
ous denial of the psychiatrist-patient privilege does not
infringe upon the right of any person other than the
one to whom the privilege is given’’ (emphasis added)).
We conclude that the defendant’s particular challenge
in State v. Williams, supra, 206 Conn. 203—i.e., to the
postinvocation grant of immunity pursuant to § 54-47a
to a witness who testified against him—is substantially
similar to the sole claim raised in the present appeal—
i.e., that Washington should not have been permitted
to testify after he initially invoked his fifth amendment
privilege against self-incrimination. In light of the simi-
larity between such claims, we align our analysis with
the standing principles applied in Williams by which
we are bound and conclude that the defendant in the
present case lacks standing to challenge the trial court’s
rejection of Washington’s invocation of his fifth amend-
ment privilege against self-incrimination.2 Accordingly,
we lack subject matter jurisdiction over this appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
1
The defendant concedes that this claim was not preserved for appellate
review, and he does not seek review under State v. Golding, 213 Conn. 233,
239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R., 317 Conn.
773, 781, 120 A.3d 1188 (2015), because he characterizes his claim as an
evidentiary, nonconstitutional claim.
2
We recognize that there are numerous cases in which our Supreme Court
and this court have addressed the merits of a defendant’s challenge to a
trial court’s allowance of a witness’ invocation of his fifth amendment right
against self-incrimination. See, e.g., State v. Simms, 170 Conn. 206, 207–10,
365 A.2d 821 (concluding that defendant’s right to compulsory process under
sixth amendment to federal constitution was not violated by trial court’s
allowance of witness’ invocation of fifth amendment privilege against self-
incrimination), cert. denied, 425 U.S. 954, 96 S. Ct. 1732, 48 L. Ed. 2d 199(1976); State v. Luther, 152 Conn. App. 682, 697–701, 99 A.3d 1242 (conclud-
ing that defendant’s constitutional right to present defense was not violated
by trial court’s allowance of witness’ invocation of fifth amendment privilege
against self-incrimination), cert. denied, 314 Conn. 940, 108 A.3d 1123 (2014);
State v. Ayuso, 105 Conn. App. 305, 309–15, 937 A.2d 1211 (concluding that
defendant’s right to compulsory process under sixth amendment to federal
constitution was not violated by trial court’s allowance of witness’ invocation
of fifth amendment privilege against self-incrimination), cert. denied, 286
Conn. 911, 944 A.2d 983 (2008); State v. Mourning, 104 Conn. App. 262,
275–77, 934 A.2d 263 (same), cert. denied, 285 Conn. 903, 938 A.2d 594(2007); State v. Brown, 22 Conn. App. 521, 524–27, 577 A.2d 1120 (same),
cert. denied, 216 Conn. 825, 582 A.2d 204 (1990).
As an initial matter, we note that, in those cases, the courts did not address
the question of standing. More significantly, however, the claims addressed
on the merits in those cases involved the trial court’s acceptance of a witness’
invocation of his fifth amendment privilege against self-incrimination, which
may conflict with the accused’s constitutional rights to compel testimony
and/or to present a defense, whereas, in the present case, the defendant
challenges the court’s rejection of Washington’s invocation of such privilege,
akin to the claim in Williams. Accordingly, we perceive no conflict between
the merits discussions in the aforementioned cases and our holding herein.