State v. Gaston

201 Conn.App. 276

241 A.3d 209

STATE of Connecticut

v.Michael GASTON

AC 43499

Appellate Court of Connecticut.

Argued September 22, 2020

Officially released November 10, 2020

Robert L. O'Brien, Hartford, assigned counsel, with whom, on the brief, was Christopher Y. Duby, North Haven, 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).

Elgo, Moll and Pellegrino, Js.

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 conclude that the defendant does not have standing to raise this claim and, accordingly, we dismiss this appeal.

The following procedural history and facts are relevant to our resolution of this appeal. On June 7, 2016, the defendant was arrested in connection with a robbery 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), conspiracy 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 conspiracy 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 conducted 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, Washington 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. Attorney McMahon had represented Washington in the aforementioned 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 questions 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 murder 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 mandatory 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 consulted 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 intertwined with a court's subject matter jurisdiction. ... In addition, because standing implicates the court's subject matter jurisdiction, the issue of standing is not subject to waiver and may be raised at any time." (Internal 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 representative 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 standing 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 constitutional 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 defendant 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 privilege. 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 interest 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]mendment privilege is a personal privilege: it adheres basically to the person, not to information that may incriminate 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, 93 S. Ct. 611.

In State v. Williams , supra, 206 Conn. 203, 536 A.2d 583, 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 immunized." Id., at 207, 536 A.2d 583. In Williams , the chief court administrator appointed the Honorable Anthony V. DeMayo, a judge of the Superior Court, to conduct an inquiry into allegations of professional gambling and municipal corruption in the city of Torrington. Id., at 205, 536 A.2d 583. During the course of the inquiry, the court granted immunity, under General Statutes § 54-47a, to a witness who had previously 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 omitted.) Id., at 206, 536 A.2d 583. 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,...