Appeal from a judgment of the District Court for the District of Connecticut, M. Joseph Blumenfeld, Judge, granting petition for habeas corpus based on violations of petitioner's rights under the Confrontation and Due Process Clauses. Reversed.
Before Friendly and Mulligan, Circuit Judges, and Gagliardi, District Judge.*fn*
The State of Connecticut appeals from a judgment of the United States District Court for the District of Connecticut (Blumenfeld, J.) ordering the release of Donald A. Rado from custody unless the State elects to retry Rado within sixty days. In 1972, after trial by jury in the Connecticut Superior Court (Speziale, J.), Rado was convicted of the crimes of robbery in the first degree and conspiracy and was sentenced to a six to twelve year period of incarceration. The Connecticut Supreme Court affirmed the judgment of conviction. State v. Rado, 172 Conn. 74, 372 A.2d 159 (1976), Cert. denied, 430 U.S. 918, 97 S. Ct. 1335, 51 L. Ed. 2d 598 (1977).*fn1 After a hearing, the Connecticut district court held, in an unreported memorandum decision, that Rado's conviction had been obtained in violation of his constitutional rights under the Confrontation Clause and the Due Process Clause. For the reasons which follow, we reverse.
The state charged that in July, 1972 Rado met with three other men, Sean Donnelly, Wayne Epprecht and Fred Hall, at his Waterbury, Connecticut home to plan the armed robbery of a jeweler's widow, who lived nearby. Rado was not accused of having actually committed the substantive offenses of burglary and robbery, but of selecting the victim, instructing the robbers how to proceed, and supplying them with walkie-talkies and a gun with which to perpetrate the crime. Donnelly, Epprecht and Hall pled guilty to various charges stemming from the robbery and were called upon to testify at Rado's trial in December 1972.
The trial lasted two weeks. The principal state witnesses were Donnelly and Epprecht, both of whom testified that on the evening of July 2, 1972, they met with Rado and Hall at Rado's home and discussed the proposed robbery. Rado pointed out the victim's house, which was directly opposite and clearly visible from the back porch of his own, and stated that money and jewelry could likely be found there. The following day, July 3, Hall drove Donnelly and Epprecht in his car to Rado's home. The four men conferred in the basement of the home, where Rado gave Epprecht a .32 caliber pistol and Hall gave Donnelly a .38 caliber pistol. Rado instructed Donnelly and Epprecht to use the pistols in the course of the robbery, gave Donnelly a walkie-talkie unit to carry with him during the crime and agreed to remain at home for its duration "in the event anything happened."
Donnelly and Epprecht further testified that Hall drove them to the victim's home and remained in his car. While carrying a pine bush in an attempt to conceal their identities, Donnelly and Epprecht forced their way into the house, struck and bound the victim, and ransacked the house, taking several items of jewelry. When surprised by a neighbor, Donnelly and Epprecht fled, dropping Rado's walkie-talkie unit in their haste, and were driven by Hall back to Rado's home where they changed their clothes and returned the pistols to Rado.
Attacking the credibility of these two witnesses, the defense uncovered some minor inconsistencies in their respective accounts of the events of July 3 (E. g., the precise time of day that they arrived at Rado's house, the manner in which they got there, and their activities earlier that day immediately prior to arrival). In addition, the defense sought to impeach Donnelly with prior inconsistent statements that he made to police concerning disposal of the guns used in the robbery and his admission that he had been using narcotics in July, 1972. Epprecht admitted perjuring himself concerning his prior contacts with the Waterbury area. On the basic details of the crime, however, Epprecht and Donnelly's respective accounts were mutually corroborative and remained unshaken.*fn2 Moreover, strong circumstantial evidence of Rado's guilt was adduced by the state. An employee of Radio Shack, an audio equipment store in Waterbury, testified that the walkie-talkie dropped by Donnelly and found near the scene of the crime had identical serial numbers to a walkie-talkie sold in June, 1962 to a person identifying himself as D. Rado, 47 Mildred Avenue, Waterbury, Connecticut (Rado's address). The pistol used by Epprecht during the robbery was found in a search of Rado's house.*fn3 Fearing that the jury might nonetheless have drawn unfavorable inferences from Hall's failure to testify, the state called Hall to the stand.
On November 28, 1978, several days prior to the commencement of Rado's trial, pursuant to a plea bargain, Hall agreed to plead guilty to a charge of conspiracy in a superseding information in exchange for the state's attorney's promises to enter a nolle prosequi on the substantive offenses of robbery and burglary contained in the original information and to recommend a sentence of two to four years. It was also agreed that Hall could be subpoenaed by either side at Rado's trial, that the jury would not be informed of Hall's guilty plea, and that the state's attorney would recommend a lesser sentence if Hall cooperated in Rado's prosecution. The state's attorney also agreed that he would not contest Hall's right to assert his privilege against self-incrimination if Hall was called to testify and if Hall elected to do so. The attorneys informed Judge Speziale, who later presided over Rado's trial, of the terms of the plea bargain, except for the state's agreement to honor Hall's possible assertion of the fifth amendment privilege. The judge stated that if he were unable to agree to the recommended sentence after seeing the presentence report, he would permit Hall to withdraw his plea. Hall entered his guilty plea to the conspiracy charge in open court. The prosecutor recited the facts of the robbery, implicating Rado, Donnelly, and Epprecht as well as Hall. Asked by the court if he had anything to add to the recitation, Hall responded "No, sir." When asked if the facts as thus set forth were "substantially correct and accurate," Hall stated "Yes, sir." Hall's replies were not made under oath. The court accepted Hall's plea, the remaining counts were nollied, and further proceedings were scheduled for January, 1973.
It is undisputed that prior to calling Hall to the stand at Rado's trial, the state's attorney did not know whether or not Hall would in fact assert his Fifth Amendment privilege. At the outset of his direct examination, Hall freely testified that he was a Waterbury resident and had known Rado for twelve years, had been employed by Rado in two separate Connecticut restaurants, and had become Rado's friend. Hall identified Rado's house in a photograph and stated that he had been a visitor there from time to time. He also testified that he had made Epprecht's acquaintance while working in Florida, had given Epprecht his phone number upon returning to Connecticut, and that he met Epprecht in July 1972 in Connecticut. Hall refused to state precisely where he again met Epprecht on the ground that his answer might tend to incriminate him. The court ordered Hall to answer, however, and he complied.
The state's attorney proceeded to question Hall about his car and its confiscation by the police. When Hall claimed to be unable to identify his car in a photograph, the court declared him to be a hostile witness and ruled that the state was entitled to "cross examine" him. Hall admitted that in July, 1972, he had a blue suitcase in his car that belonged to Donnelly and Epprecht and contained their clothes, but he claimed that he was not certain how the suitcase found its way into the car's trunk. The state's attorney then returned to the subject of Hall's relationship with Rado. Hall invoked the privilege against self-incrimination when asked how well he knew Rado. At the court's direction, and once again without any objection to Hall's assertion of the privilege by the state's attorney, Hall responded that Rado was a "social acquaintance".
The state's attorney's questioning then shifted to the events leading up to the robbery. Asked if he had ever taken Epprecht and Donnelly to Rado's house, Hall again asserted the Fifth Amendment privilege. The judge excused the jury and explained to Hall that because he had pleaded guilty to the conspiracy charge his claim of privilege lacked merit. Hall's attorney was not present in the courtroom and the judge refused to hear argument from Rado's counsel on the question of Hall's privilege. Upon the jury's return, Hall again refused to answer whether he had ever brought Donnelly and Epprecht to Rado's house and asked to speak to his attorney. At the court's repeated direction, Hall finally answered that he had met with Epprecht and Donnelly at Rado's house on July 3, 1972. Although he initially refused to answer whether he had seen a walkie-talkie or a gun in Rado's house on that day, the court again ordered him to answer. In each instance, Hall responded that he was not sure.
The state's attorney next asked Hall whether he had planned the July 3d robbery with Rado, Epprecht and Donnelly. On four consecutive occasions, the court ordered Hall to answer this question, but each time Hall invoked his fifth amendment privilege. The court again excused the jury and warned Hall that his continued refusal to answer questions would result in his being found in contempt. Hall explained that he was acting on his attorney's advice and that he had not spoken to Rado about testifying. The state's attorney offered to withdraw the question and, upon the jury's return to the courtroom, the question was withdrawn.
At this juncture, the state's attorney directed Hall's attention to the guilty plea proceedings of the previous week:
"Q. Mr. Hall, do you remember being in Court here, in this courtroom here, on November 28, 1972?
Q. And I believe your attorney, Mr. Zeldes, was here with you; do you recall that?
Q. Do you recall that the following occurred:
(A defense objection was overruled.)
Q. Do you recall my saying in your presence:
"Yes, your Honor. On July 3rd, 1972, the home of a Mrs. Hyman, in the Bunker Hill section of Waterbury, was entered by Sean Donnelly and Wayne Epprecht. They were at the time armed with firearms. They had been driven to the scene by this accused in his own car'? That is referring to you.
Q. You were here with Mr. Zeldes?
"Donnelly and Epprecht carried with them a bush, by means of which they gained entry in the home and attempted to commit the crime of robbery and burglary in the first degree. Prior to driving to the home, this scheme, this plan to commit this crime had been discussed with the conspirators Rado, Donnelly, Epprecht, and Hall. That is the factual recitation.'
And the Court said: "Frederick Hall, you heard the State's Attorney set forth the facts here at the request of the Court. Do you have anything to add to the statement as set forth by Mr. McDonald at this point?' And you ...