Citation Numbers: 172 Conn. 385, 374 A.2d 1065, 1977 Conn. LEXIS 906
Judges: House, Loiselle, Bogdanski, Longo, Dannehy
Filed Date: 2/15/1977
Status: Precedential
Modified Date: 10/19/2024
The plaintiff was convicted of a violation of General Statutes §§ 19-480 (a) and 19-452 in selling a cannabis-type drug. Upon appeal that conviction was sustained. State v. Lombardo, 163 Conn. 241, 304 A.2d 36. Lombardo petitioned for a new trial on the ground of newly discovered evidence. The trial court rendered judgment denying the petition and from that judgment this appeal has been taken.
At the trial in which Lombardo was convicted, two undercover agents testified that they purchased four kilos of marihuana from the defendant. The defendant denied the charges, and offered in his defense an alibi. The jury rendered a verdict of guilty.
At the original trial, the state offered evidence that Ronald Minas, a detective, had met a man, whom he identified in court as the defendant, in Wickham Park in Manchester four or five times during July, 1970, and that each time they had discussed a sale of marihuana. On the evening of July 22, 1970, Minas and his associate, Officer John C. Mayoros, met with Lombardo at Wickham Park and advised him that they wished to buy as much marihuana as possible for $1000. Plans were made for delivery the next morning at the park. Minas gave his telephone number to Lombardo, so that Lombardo could call him concerning the time for the sale. At about 9 a.m., July 23, 1970, Minas
Minas and Mayoros, the two undercover officers, drove to Wickham Park. Shortly after 11 a.m. Lombardo drove up in a blue Ford. Dominick Lisella arrived in a white Pontiac registered to one Robert Majewski. Lisella opened the trunk of Lombardo’s vehicle and a suitcase was opened which contained twenty-four kilos of a substance later identified as marihuana. Minas chose four kilos of this substance from the suitcase and Lombardo accepted $1000 from Mayoros. Minas was never more than two or three feet from Lombardo during the entire transaction.
At the original trial before the jury the defendant offered evidence concerning his claim of an alibi. This included testimony by the defendant and by a number of witnesses that on July 22, when the state’s evidence put him at Wickham Park arranging for the marihuana sale, he was continuously with friends; that he attended a wake, visited someone at a hospital and returned home, but never went to Wickham Park. ITis alibi for the time of the sale the next day was based on his own testimony, and on the testimony of a friend who saw him at home, preparing to attend a funeral, without an operable car available, at about 11 a.m. on the 23rd, shortly before the state’s evidence put him at the park selling marihuana. Another witness testified that she had telephoned Lombardo at his home and had spoken with him three or four times
Another witness for the defense was Robert Majewski, the owner of the white Pontiac mentioned by the state’s witnesses. He testified that he spent the night of the 22nd at Lombardo’s home, arriving when Lombardo returned with friends from the wake. He also testified that at 10 a.m. on the 23rd he, Dominick Lisella, and Richard Putinas drove the Majewski car to Wickham Park, leaving Lombardo at home in bed. At the park, Lisella and Putinas met “Ron” and “Jack” (presumably the two undercover agents, Ronald Minas and John Mayoros) and drove to a rear parking lot together. He, Majewski, had left the car and was helping two girls wax their car and did not see what went on in the rear lot. Although he was at the park all day on the 22nd and the 23rd, he did not see Lombardo at the park either day.
At the original trial Dominick Lisella also testified for the defense. He was a boyhood friend and neighbor of Lombardo, to whom he was like a brother. He testified that he met “Ron” and “Jack” on the evening of July 22nd and discussed “business” with them, but he did not see Lombardo at the park. He spent the night with Lombardo and made a telephone call the next morning from Lombardo’s telephone, but he refused to tell to whom he made the call. After the call he went to the park with Putinas and Majewski. He met “Ron” and “Jack” at the park and went with them to the back parking lot. He declined to testify further on direct examination, claiming he might incriminate himself.
At the hearing, it was explained that Putinas had told Lombardo’s counsel at the original trial that he would testify that he participated in the sale, but that on advice from his attorney he changed his mind. Lombardo’s counsel issued a subpoena for him, but the sheriff could not find him. Counsel for Lombardo did not ask for a continuance because he concluded that after Lisella claimed the privilege against self-incrimination there was no hope Putinas would testify.
The court denied the petition for a new trial, concluding that the testimony of Lisella and Putinas was basically cumulative of testimony given by Majewski and others at the original trial and con
A petition for a new trial is addressed to the legal discretion of the trial court. State v. Grimes, 154 Conn. 314, 325, 228 A.2d 141; Smith v. State, 141 Conn. 202, 207, 104 A.2d 761. “The rules for granting a new trial on the ground of newly discovered evidence are well established. The evidence must, in fact, be newly discovered, material to the issue on a new trial, such that it could not have been discovered and produced on the former trial by the exercise of due diligence, not merely cumulative and likely to produce a different result. Turner v. Scanlon, 146 Conn. 149, 163, 148 A.2d 334.” Pass v. Pass, 152 Conn. 508, 511, 208 A.2d 753; Hamlin v. State, 48 Conn. 92, 93.
It is true that in a capital case, which this is not, “[a] 11 of the . . . rules [relating to new trials] are qualified ... in the light of the principle laid down in Andersen v. State, 43 Conn. 514, 517, that fin a case where human life is at stake, justice, as well as humanity, requires us to pause and consider before we apply those rules in all their rigor.’ ” Taborsky v. State, 142 Conn. 619, 623, 116 A.2d 433; Hamlin v. State, supra, 94.
Whether a new trial should be granted does not turn on whether the evidence is such that the jury could extend credibility to it. A petition for a new trial is a civil action. The plaintiff has the burden
At first blush it might appear that where a person confesses to a crime and will testify to that effect, that testimony is of such weight that it is not only material to the issue of the innocence or guilt of an accused, but would necessarily also be likely to produce a different result. In this case, however, the evidence does not rise to that level. The evidence claimed to be new is that Lisella arranged for and made the sale, that Putinas was present at the time of the sale and “participated” in it, and
In view of the evidence produced at the trial to the jury which made Lisella a participant, according to the state’s witnesses and by inference from Majewski’s and Lisella’s own testimony, the claimed new evidence is not of the same substance as that which gave concern in Smith v. State, supra. Essentially, the whole story is one that the jury heard at the trial, although some facts which the jury might have inferred are filled in by the new testimony. The jury judged the credibility of the witnesses and found Lombardo guilty.
There is no error.
In this opinion House, C. J., Longo and Dannehy, Js., concurred.