Appeal from the grant of a writ of habeas corpus by the United States District Court for the District of Connecticut, Alan H. Nevas, Judge, requiring the State to grant Biller a new trial. Held, that the Connecticut trial court's denial of Biller's in limine motion seeking to prevent the State's use of a prior state court conviction for impeachment, which caused Biller to forego testifying in his own defense, violated the Fifth Amendment, in that the prior conviction had been obtained through the use of coerced testimony, and that the defendant's failure to testify did not prevent the state appellate court from considering Biller's constitutional claims under Luce v. United States, 469 U.S. 38, 83 L. Ed. 2d 443, 105 S. Ct. 460 (1984), and under Connecticut law. Judgment affirmed.
Oakes and Kearse, Circuit Judges, and Bonsal, District Judge.*fn*
This appeal is by the State of Connecticut from the grant of a petition for writ of habeas corpus by the United States District Court for the District of Connecticut, Alan H. Nevas, Judge. Petitioner Biller successfully challenged the legality of his 1982 conviction on charges of interfering with a police officer on the basis that the denial of his in limine motion to preclude use on cross-examination of a 1976 conviction deprived him of the opportunity to testify in the 1982 case, even though his 1976 conviction was subsequently overturned on Fifth Amendment grounds by the Connecticut State Supreme Court. State v. Biller, 190 Conn. 594, 462 A.2d 987 (1983).*fn1 We affirm the decision of the district judge granting the writ, reported as Biller v. Lopes, 655 F. Supp. 292 (D. Conn. 1987).
This appeal requires us to consider three separate judicial proceedings: two criminal trials in the Connecticut state courts, and the habeas petition in the federal district court. Petitioner Biller is a former licensed public adjuster, and his first criminal trial was on charges relating to two suspicious fires which heavily damages a New Haven apartment building in April of 1975. Biller had been retained by the closely-held corporation which owned the buildings to adjust claims arising out of the fires. Taking the evidence in the light most favorable to the State, Biller obtained from the insureds two blank but signed proof of loss forms for each fire, and used the forms to submit excessive claims, inflated to more than cover his fee of 10 % of the settlement. He was charged with falsely certifying two oaths, in violation of Conn. Gen. Stat. § 53-368, and was convicted after a jury trial. See State v. Biller, 190 Conn. at 595-96, 462 A.2d at 989 (" Biller I "). On his appeal of that conviction to the Connecticut Supreme Court, Biller successfully argued that the admission of several statements made by him before a one-man investigative grand jury violated his Fifth Amendment rights, in that he was compelled to make statements in his "corporate capacity" over his consistent assertion of the constitutional privilege against self-incrimination. 190 Conn. at 601, 462 A.2d at 991.
The second state court trial occurred in 1982, after Biller was arrested and charged with acting as a public adjuster without a license and interfering with a police officer at the scene of a New Haven house fire. An arson control assistant inspector, assigned to the Connecticut State's Attorney's office, saw Biller approach the homeowners and provide them with several documents, which they signed and returned to him. The inspector then overheard Biller tell the homeowners that he would contact their insurance company, and quickly thereafter ordered Biller's arrest. Before he was taken into custody Biller tore up the documents he had received, and then resisted the efforts of the inspector and another officer to search his pockets. See State v. Biller, 5 Conn. App. 616, 618-19, 501 A.2d 1218, 1220 (1985), cert. denied, 199 Conn. 803, 506 A.2d 146, cert. denied, 478 U.S. 1005, 106 S. Ct. 3296, 92 L. Ed. 2d 711 (1986) (" Biller II ").
At this second trial, Biller moved in limine and at the close of his case to preclude the State from using his Biller I conviction to impeach his testimony should he take the stand in his defense. The motion was based upon the fact that the conviction was on appeal at the time of his Biller II trial. This basis was not articulated on the record, although it apparently was discussed in chambers when the motion was made initially. The motion was denied and Biller convicted of interfering with a police officer. The appellate court which decided Biller II did not pass on the constitutional argument made here, but merely held that the trial court was within its discretion in admitting evidence of a prior conviction for impeachment purposes despite the pendency of an appeal, see State v. Schroff, 3 Conn. App. 684, 492 A.2d 190, 193 (1985), provided that defense counsel is permitted to point out the pendency of the appeal to the jury. See Biller II, 5 Conn. App. at 623-24, 501 A.2d at 1222.
It is important to point out that on appeal here the State concedes, as it did in the district court, that concerns of "State comity and exhaustion" are satisfied because Biller did present his constitutional claims to the Connecticut Appellate Court in Biller II. Even though the court did not consider them directly, it clearly could have done so. Under Connecticut procedure an appellate court may entertain claims not preserved in the trial court if they "arose subsequent to the trial," Conn. Practice Book § 4185, or "where a new constitutional right not readily foreseeable has arisen between the time of trial and appeal." State v. Evans, 165 Conn. 61, 70, 327 A.2d 576, 581 (1973). Here Biller's Fifth Amendment claim became more concrete after the Biller II trial, when the Connecticut Supreme Court reversed Biller I. See Appellant's Brief on this appeal, at 2 n.2.
After Biller I was reversed and dismissed and the Connecticut appellate court affirmed the Biller II conviction, the Connecticut and the United States Supreme Courts denied review and petitioner filed this habeas action under 28 U.S.C. § 2241. Biller alleged that the state conviction in Biller II was the fruit of compelled testimony obtained in Biller I in violation of the Fifth and Fourteenth Amendments, that the conviction was also based on the impeachment use of the constitutionally unreliable Biller I conviction in violation of due process, and that the state trial judge violated due process by considering the Biller I conviction in imposing the maximum sentence on the petitioner in Biller II. The federal district court granted the habeas corpus petition for Fifth Amendment reasons, and did not decide the other two claims, although the due process claim is kept alive in the petitioner's brief. See Loper v. Beto, 405 U.S. 473, 31 L. Ed. 2d 374, 92 S. Ct. 1014 (1972).
The State's principal argument is that the district court's conclusion that Biller suffered prejudice is entirely speculative, in that Biller never took the stand, never presented his constitutional arguments to the trial court, and never made an offer of proof as to what his trial testimony would have been. The State also contends that it made neither direct nor derivative use of the Biller I conviction because the prior conviction was never entered into evidence. In the alternative, the State claims that any threatened derivative use of the invalid prior convictions by the State was harmless beyond a reasonable doubt.*fn2
The State maintains that Luce v. United States, 469 U.S. 38, 83 L. Ed. 2d 443, 105 S. Ct. 460 (1984), controls this case. Luce held that when a defendant does not take the stand and testify, "[a]ny possible harm flowing from a district court's in limine ruling permitting impeachment by a prior conviction is wholly speculative." Id. at 41; accord, United States v. DiPaolo, 804 F.2d 225, 233 (2d Cir. 1986); United States v. Weichert, 783 F.2d 23, 25 (2d Cir.), cert. denied, 479 U.S. 831, 107 S. Ct. 117, 93 L. Ed. 2d 64 (1986). However, as the district court pointed out, "the Luce decision does not deal with an error of constitutional dimension." 655 F. Supp. at 301. Indeed, Chief Justice Burger's opinion for the court in Luce carefully distinguished Brooks v. Tennessee, 406 U.S. 605, 32 L. Ed. 2d 358, 92 S. Ct. 1891 (1972), and New Jersey v. Portash, 440 U.S. 450, 59 L. Ed. 2d 501, 99 S. Ct. 1292 (1979), both of which involved Fifth Amendment challenges to state court rulings that operated to dissuade defendants from testifying, on the basis that Brooks and Portash did not involve "a federal court's preliminary ruling on a question not reaching constitutional dimensions -- such as a decision under [Fed. R. Evid.] Rule 609(a)." 469 U.S. at 42-43. Since a 609(a) ruling requires a court to balance the probative value of admitting the conviction against the prejudicial effect to a defendant, a reviewing court would be totally handicapped in making the required harmless error determination absent the defendant's testimony. See 469 U.S. at 43 (Brennan, J., concurring). However, where the in limine ruling depends on legal and not factual considerations, the requirement that the defendant actually testify at trial to preserve the admissibility issue for appeal "might not necessarily be appropriate." Id. at 44.
On November 12, 1982, prior to the Biller II trial, Biller filed a written motion stating that he had been convicted in the summer of 1979 of two counts of falsely certifying an oath in violation of Connecticut General Statutes § 53-368, and that he "desires to testify in his own defense in the instant matter." The motion went on to state that "if this Court should rule that the State would be allowed to impeach Mr. Biller with those previous convictions, he would be deterred from testifying in his own defense, thus depriving him of the most effective witness available to present a defense in the instant charges." The motion then referred to the Connecticut legal standard, requiring the judge to balance a conviction's probative value against its prejudicial effect, and expressly noted that the motion was also based upon "such further reasons as may become apparent upon the hearing of this motion." The motion concluded with the request "that this Court rule, prior to trial, that the State may not use these prior convictions to impeach Mr. Biller when he elects to testify in his own defense." The motion was denied with little discussion, though the court did refer on the record to a ...