Who Let The Grand Jury Transcript Out …
... For The Shredder?
Cool Justice Editor’s Note: This 1978 report is timely in 2013 not only because 3,000 pages of a related transcript are missing and no one has done anything about it. The report also is relevant as a frame of reference for an ongoing investigation into the Mary Badaracco homicide. In that case, a secret order sealed the fact-finding report. A related bribery trial involving a judge is scheduled for June 2013. Links at the bottom of this post lead to background columns.
GRAND JURY REPORT
In Re: The Death of Kevin B. Showalter
By SUPERIOR COURT JUDGE JOSEPH F. DANNEHY
“On December 24, 1973, an unknown person in the operation of a motor vehicle caused the death of Kevin B. Showalter, age 20, on Pequot Avenue in New London, Connecticut. When a young man is killed violently and mysteriously, a fair amount of interest and media coverage is to be expected. But when overtones of police corruption and rumors of police conspiracy begin to sound and to circulate, tension and the profile of the case rise dramatically. And so, on December 20, 1976, the Deputy Chief State’s Attorney, John F. Mulcahy Jr., filed an application with the Honorable John P. Cotter, Chief Court Administrator, for an order that pursuant to Sec. 54-47 of the General Statutes an inquiry be made into the death of Kevin B. Showalter of 248 Pequot Avenue, New London, Connecticut. On December 23, 1976, the undersigned, a judge of the Superior Court, was appointed to conduct an investigative inquiry with the assistance of the State’s Attorney for New London County and the Office of the Chief State’s Attorney.
The inquiry was preceded by a thorough investigation conducted by Lieutenant Richard Hurley, State Policewoman Justine Miller, Trooper George Ryalls, Trooper Frank Paparelli, Trooper Charles Wargat and Trooper Michael Stergio of the Connecticut State Police Department. All of the available evidence discovered by the investigators which was relevant and material to the matters under inquiry was introduced in the subsequent proceedings by Assistant State’s Attorney Austin J. McGuigan.
Pursuant to said order, the undersigned heard in private the testimony of one hundred and seven witnesses on twenty-six days between July 5, 1977 and December 7, 1977. The witnesses were questioned to determine whether or not there is probable cause to believe that a crime or crimes within the jurisdiction of the Court of Common Pleas and/or the Superior Court have been committed; and also to determine whether or not there was probable cause to believe that any persons had committed such crimes.
I. Factual Chronology
The evidence presented to the Grand Juror revealed the following:
Kevin B. Showalter, age 20, of 248 Pequot Avenue, New London, died instantly from injuries sustained when he was struck by a motor vehicle traveling in a southerly direction on Pequot Avenue in New London. The accident took place on Pequot Avenue just south of where Plant Street intersects but does not cross Pequot Avenue on December 24, 1973, at approximately 11:11 p.m.
At the time of the accident, Showalter was with Debra L. Emylita of Uncasville, Connecticut. Earlier, sometime around 7:30 o’clock, in the evening of December 24, 1973, Miss Emylita had gone to the Bach Dor, a discotheque in Waterford, Connecticut. Showalter, a student at Mitchell College; New London, was a part-time disc-jockey-bartender at the Bach Dor. He was working at the Bach Dor in the evening of December 24, 1973 and he had become acquainted with Emylita after 7:30 on that evening.
Emylita drove alone to the Bach Dor on December 24, 1973, in her 1973 blue Ford Pinto bearing Connecticut registration ME 3465. She had plans to meet friends at the Bach Dor and while there socialized with her friends, Nancy Wickson of Niantic and Robert Chabot of Voluntown; and Showalter. During the course of the evening, Showalter invited Emylita to attend a Christmas party with him. Emylita agreed and remained at the Bach Dor with Showalter until closing time, approximately 9:00 P.M. Showalter and Emylita left from the parking lot of the Bac Dor in Emylita’s Pinto. Showalter’s vehicle, a 1968 Ford Thunderbird, was parked at the Bach Dor. He told Emylita he was having trouble starting it and they decided to go in the Pinto. Emylita drove them to Showalter’s apartment at 248 Pequot Avenue in New London.
Showalter and Emylita arrived outside his apartment shortly after 9:00 P.M.; parked the vehicle on the west side of Pequot Avenue and immediately entered his second floor apartment. There is no evidence to indicate that either Showalter or Emylita entered Chuck’s, a restaurant on the first floor of 248 Pequot Avenue where Showalter also had part-time employment. Showalter and Emylita remained in the apartment for approximately one and a half hours. While at the apartment, it was decided that Emylita would not accompany Showalter to the Christmas party. Emylita did not know where the Christmas party was to be held. She assumed, without knowing, that the party was at the home of Ramona Ricci, an acquaintance of Showalter who was also employed at the Bach Dor. Sometime after 10:00 P.M., Showalter called Ricci to say that he would attend the party and to ask whether anyone at the party wanted a pizza. Showalter, however, told Emylita he would not attend the Christmas party, and arranged with her to return to the Bach Dor to pick up his car. After that, Emylita would go home.
Showalter and Emylita came out of his apartment at approximately 10:30 p.m., and proceeded directly across the street into the blue Pinto. Emylita operated the vehicle. As she drove southerly on Pequot Avenue, Emylita had difficulty steering the vehicle; and she brought it to a stop on the west side of Pequot Avenue, north of the Plant Street intersection. She then drove across the intersection, and parked the vehicle a few feet south of the Plant Street intersection, approximately one to two feet from the curb on the west side of Pequot Avenue. Showalter and Emylita then got out and inspected the vehicle. They discovered on inspection that the front tire on the driver’s side was partially deflated.
Their predicament was observed by persons resident and visiting on Pequot Avenue, who were looking out of windows. They testified that Showalter encountered considerable difficulty as he tried to change the tire. First, he placed the jack under the front bumper of the Pinto. After he studied the driver’s manual, he placed the jack in the correct position, under the driver’s door. The people looking out the windows of houses on Pequot Avenue continually watched him. They saw that, due to the nature of the jacking system and the location of the defective tire, he was forced into a squatting position in the traveled portion of the southbound lane of Pequot Avenue while working around the tire.
Some witnesses who observed Showalter at this time said he was facing southbound traffic. Others felt he was not being observant and was facing only northbound traffic. All of the witnesses were of the opinion that Showalter had placed himself in a dangerous position to change the tire.
Pequot Avenue at the place where the Emylita vehicle was disabled is approximately twenty-nine feet wide and Showalter’s position on the driver’s side of Emylita vehicle left only about twenty feet for cars traveling in both directions on Pequot Avenue. Also, a car owned by Albert Sitty, 607 Oakridge Drive, Gales Ferry, Connecticut, was parked on the easterly side of the street directly in front of the residence of Victoria Sitty, 346 Pequot Avenue. This car was parked facing north, off the traveled portion of Pequot Avenue, but the width of the traffic lanes for cars traveling north and south on Pequot Avenue was measurably decreased at the place where the Emylita vehicle as standing. Tests conducted by State Police investigators showed that Showalter, who was wearing a brown tweed coat and blue and white checked trousers, would have been visible to cars traveling in a southerly direction on Pequot Avenue but that he was nevertheless in a position of danger. The parking lights were on in the Pinto when Showalter first attempted to change the tire. After some time, Emylita, at Showalter’s request, shut the lights off to conserve the battery. The danger of his position increased.
At approximately 11:11 P.M., people in the immediate area heard a loud noise that they described either as a thud or a thump. Emylita heard the noise, looked up, and walked from the wall where she was sitting alone, around to the front of the Pinto where Showalter had squatted to change the tire. She saw a shoe in the roadway and when she looked about, she saw Showalter lying face up on the sidewalk and adjacent grassy area on the west side of Pequot Avenue. (Showalter’s body was thrown approximately fifty feet from the estimated point of the impact and landed on the sidewalk area of the west side of Pequot Avenue approximately seventy-five feet from the beginning of the sidewalk area on the west side of Pequot Avenue, south of the Plant Street intersection). Emylita also observed the taillights of a vehicle going south on Pequot Avenue. She was unable to provide any description of the vehicle. She saw neither any other vehicles parked on the west side of Pequot Avenue nor did she speak to anyone or see anyone during the time she was sitting on the wall or standing on the sidewalk. She immediately ran across the street to the residence of Mrs. Victoria Sitty, 346 Pequot Avenue. Mrs. Sitty had a Christmas party at her house on that evening and among her guests were her sons Edmund and Albert, their wives Marilyn and Kathleen, and her son Victor. Each of them heard the noise they described as a loud thump or thud and were moving to the door as Emylita was running across Pequot Avenue.
As Emylita crossed the street to the Sitty residence, the occupants were opening the front door to go out of the house to investigate the meaning of the loud noise. Marilyn Sitty observed Emylita running across the street as the front door of the Sitty residence was being opened. The occupants of the Sitty residence feared at this time that Emylita’s vehicle had fallen on Showalter because of the problem with the jack. Sensing this, Albert Sitty immediately telephoned and asked the operator for an ambulance, stating that a car had fallen on a young man. The operator connected Albert Sitty with Bernard McNally , the dispatcher for the New London Fire Department Rescue Squad. Albert Sitty informed McNally that a car had fallen on a young man and hung up the telephone without identifying himself or his location. Approximately one to two minutes later, the telephone operator contacted McNally and gave him the location of the accident.
McNally immediately dispatched the Fire Department Rescue ambulance from the Bank Street firehouse, New London, to the place where the accident happened: the intersection of Pequot Avenue and Plant Street. The rescue ambulance followed the fire chief’s vehicle operated by Captain Leo McCarthy. Both vehicles exited the Bank Street station and proceeded directly to the accident scene with lights flashing and sirens sounding. The two vehicles arrived at the scene within two to three minutes of the operator’s call.
Victor Sitty bolted from the Sitty residence as Emylita reached the door. He knew almost before reaching the street that Kevin Showalter was the victim of a hit-run operator. He was convinced that the driver of the offending vehicle would return to the scene of the collision. He went directly to where Showalter’s body was lying and remained there until the firemen arrived. He was quickly joined by his brothers; and they rendered what assistance they could to the fallen Showalter. Later, other persons began to congregate at the scene. Victor Sitty saw the Pinto; he saw no other car; he saw no other person, male or female, in the area. He was especially watchful of vehicles traveling past the accident scene. He was able to remember and to relate that three vehicles passed the accident scene while traveling northerly on Pequot Avenue. He described the vehicles and their occupants. He described these vehicles as a two door Chevrolet operated by a man accompanied by a woman giving the appearance of being middle-aged, another unidentified vehicle with a number of people in it and a yellow mustang operated by a young man. Again, Victor Sitty observed no vehicles traveling southbound past the accident scene on Pequot Avenue.
Victor Sitty was not the only witness to the accident scene from seconds after the impact. Mrs. Ruth Hendel of 336 Pequot Avenue almost continuously observed the accident scene from seconds after she heard the loud noise and looked out through her living room window. Earlier, before she heard the noise, she had watched the Emylita car stop on Pequot Avenue and then move forward past the Plant Street intersection. Alone at home with her sick husband, Mrs. Hendel riveted her attention on the car and its occupants. The road was dry; the weather was clear; the night was cold. She had a clear and unobstructed view of the car and its occupants, and she continued to survey the actions of the young man and his female companion. She saw Showalter; she saw Emylita, huddled against the cold, sitting on the stone wall. She was always in a position to see, and would have been able to see a car, if it stopped in front of the disabled vehicle. She was always in a position to see and would have been able to see a man, if he stood talking to Emylita. She never saw another car stop; she never saw another man in conversation with Emylita. She did see immediately after hearing the noise a vehicle traveling southerly on Pequot Avenue. She could not accurately describe the vehicle.
Arthur Adams, a security guard at Mitchell College, also saw Showalter while he was changing the tire. Adams observed Showalter and a girl sitting on a stone wall adjacent to the sidewalk on the west side of Pequot Avenue on two occasions between 11:00 p.m. and 11:10 p.m., December 24, 1973. Adams saw no other car parked in front of the Pinto; he saw no man talking to the girl. Dr. Robert Weller, the President of Mitchell College, also drove by the scene, sometime after 11:00 P.M. Weller was accompanied by his wife, Mary, his daughter, Barbara Jean Weller, and Nancy Wildes. Barbara Jean Weller saw the Pinto; she saw Showalter behind it; she saw no girl; she could not recall seeing any car parked in front of the Pinto.
When the rescue ambulance and the chief’s car arrived at the scene of the accident neither Captain McCarthy nor the ambulance operators, David Burchfield and John Boyd, observed any vehicle or vehicles parked in front of the Pinto. Indeed, the ambulance was parked directly in front of the Pinto, parallel to the curb on the west side of Pequot Avenue. From the evidence it is accepted that no vehicle was parked at any time in front of the Pinto after it was disabled until the ambulance arrived at approximately 11:15 P.M.
When the fire department vehicles arrived, no police department vehicles wee at the scene. The rescue personnel, Burchfield and Boyd, found Showalter lying face up, sprawled on the sidewalk and adjacent grassy area on the west side of Pequot Avenue; his clothes were torn and his coat and sweater were pulled around his head exposing his abdomen which had numerous abrasions. A quick examination by Boyd and Burchfield revealed that Showalter had no respiration or pulse. Sue Roseanne Costello of 33 Converse Place, New London, Connecticut, a nurse’s aide at the Lawrence Memorial Hospital, New London, who had also arrived at the scene immediately after the Fire Department personnel, attempted to take Showalter’s pulse: she was unable to detect any heartbeat. Costello was accompanied to the scene by her mother, Erna Webster, and her brother, Kirtley Webster.
Knowing his condition was critical, the ambulance personnel decided to take Showalter straight way to the hospital. Even at this time the police had not arrived, although they had been notified by Dispatcher McNally immediately after the rescue ambulance left the Bank Street Headquarters. Captain McCarthy, noting the absence of the police at the scene, radioed headquarters to ask McNally if he had notified the police. McNally responded affirmatively and again called the New London Police Department. As Showalter was being placed into the rescue ambulance, Officer Steve Colinis and Supernumerary Donald Clark drove up and parked their police vehicle on the east side of Pequot Avenue, facing south in the northbound lane in front of Sitty residence. Officer Colonis somehow learned that Emylita was in the Sitty residence. He entered the residence of Victoria Sitty after ordering Officer Clark to divert traffic traveling south on Pequot Avenue at the intersection of Plant Street and Pequot Avenue. Neither Colonis nor Clark approached the ambulance at this time.
The rescue ambulance left the scene at approximately 11:20 p.m., proceeded south on Pequot Avenue to Granada Terrace, west on Granada Terrace to Montauk Avenue and north on Montauk Avenue to the Lawrence Memorial Hospital. Showalter was brought into the hospital on a stretcher. He was pronounced dead by Doctor Robert T. Henkel, Medical Examiner, at 11:27 p.m.
II. The New London Police Investigation
After Showalter was taken to the hospital, officers of the New London Police Department began to arrive and steps to organize an investigation were taken. The investigating officer was Patrolman Vincent P. McGrath, whose assigned patrol area included Plant Street and Pequot Avenue. Under guidelines of the New London Police Department in effect at that time, McGrath was responsible for the preliminary investigation of the accident. His duty required him to file a comprehensive written report of the accident, containing detailed measurements and accurate diagrams of the accident scene. He was also initially responsible for the collection and preservation of any physical evidence. In light of this responsibility, McGrath caused a telephone call to be placed to Detective Sergeant, now Lieutenant, Konstanty T. Bucko for assistance. Bucko arrived at the scene at approximately 11:40 p.m. He immediately took charge of the whole investigation, including the collection and preservation of physical evidence and taking pictures of the accident scene.
Officer McGrath, however, remained responsible to take the measurements and to collect the data necessary to prepare his written accident report. Officer McGrath completed his accident report sometime during the morning of December 25, 1973. McGrath’s report is contained in four pages of multiplied mistakes and gross inaccuracies. For example, the report states McGrath was the first officer to arrive at the scene. In fact, Officers Colonis and Clark were there first. The report states that the street lights were out on Pequot Avenue. The street lights were on and never out on Pequot Avenue. The report states that Officer McGrath noticed that the victim had no pulse or respiration. Officer McGrath never approached within six feet of the victim. The report states that Showalter’s body was thrown some twenty-two feet. The evidence established that the distance was approximately fifty feet. The report put the victim’s body in the roadway. In fact, the victim’s body was on the sidewalk and grassy area on the west side of Pequot Avenue adjacent to the roadway. The report depicts the jack in front of the Emylita vehicle. The jack was on the driver’s die of the vehicle, to the rear of the left front wheel.
It is unnecessary to comment further on the glaring inaccuracies of the McGrath report. It is necessary to point out, however, that Officer McGrath’s failure to carry out his assigned duty to make a proper report almost presaged, if it did not actually predestine, the shocking and abysmal failure of the New London Police Department investigation.
While Officer McGrath was about his business, Sergeant Bucko, now in charge, was taking pictures of the accident scene. It should be interjected that the question of overall supervision for the investigation was somewhat confused owning in part to the fact that the accident had occurred on Christmas Eve just prior to change in duty shifts. Indeed, Lieutenant Murphy, the 3:00 p.m. to 11:30 p.m. shift commander, on hearing of the Showalter accident, left the police station in somewhat of a hurry as soon as his shift terminated. By his conduct, it can be fairly said that he plainly indicated a refusal to assist in the investigation. Sergeant Joseph Jullarine, the 11:30 p.m. to 7:00 a.m. shift commander, did everything he could to help in the investigation, specially assigning, for example, two of his patrolmen, West and Gavitt, to assist Bucko. Ultimately, if not immediately, overall responsibility for the investigation fell to Lieutenant Bucko.
Bucko, after taking the photographs, began a search for physical evidence at the scene. No steps were taken, however, to secure the area of the accident scene or to guard the physical evidence against tampering, loss or removal. Bucko and Patrolman Gavitt apparently collected numerous pieces of glass which they believed might have come from the headlights of the offending vehicle. Curiously, none of the many witnesses at the scene saw any glass in the roadway; and Bucko’s photographs do not reveal any glass in the roadway. Furthermore, tests conducted by the Connecticut State Police established that the sound of breaking glass was audible in the Sitty residence and also from where Emylita was sitting on the wall. Neither Emylita nor any of the occupants of the Sitty residence recall hearing the sound of breaking glass.
Patrolman Gavitt testified that he found pieces of amber plastic material which he believed were part of a signal or reflector light. He also testified that a large piece of grayish porous material was identified by Michael Buscetto, 621 Ocean Avenue, New London, Connecticut, as automobile body putty.
Buscetto, the operator of the wrecker truck called to the scene, testified that Gavitt showed him a piece of green colored body putty in the presence of Lieutenant Bucko, Gavitt first testified that he turned the body putty over to Bucko. Later he changed his testimony to say that he must have turned the body putty over to Bucko because he turned over all of the items he picked up at the scene to Bucko. Bucko, on the other hand, was adamant. He testified that Gavitt never gave him any body putty; that, in fact, he never even saw any body putty either at the scene or at any later time. Gavitt finally testified that he recalled finding and having the body putty at the scene but that he cannot now remember what he actually did with it.
The whereabouts of the amber reflector light and body putty found by Officer Gavitt is unknown. Significantly, neither Gavitt nor Bucko filed any report or inventory of the items of physical evidence collected at the scene. Indeed, the question of who has possession of the headlight glass remains unanswered. Bucko and Gavitt believe that the headlight glass was placed in Bucko’s coat pocket. Credible testimony established, however, that Gavitt was observed by a number of witnesses dropping a handkerchief full of glass in the emergency room of the Lawrence Memorial Hospital sometime after 21:00 a.m. on December 25, 1973. In any event, whether some particles of glass were subsequently sent to the F.B.I. Laboratory were the same as those allegedly found at the scene can only be a matter of conjecture. The circumstances surrounding the preservation and custody of the glass were unexplained. There was no proof that intermeddlers tampered with the glass. There are insufficient facts, however, to establish with any degree of probability that the glass sent to the F.B.I. for analysis was the glass collected at the scene. Quite simply, there was no chain of custody.
The clothing which Showalter was wearing, a brown tweed coat, blue and white checked trousers, a blue sweater, belt, and shoes had been removed from the victim in the hospital examining room. They were given to Bucko at the hospital. The clothes were kept somewhere, and nobody knows quite where, in the New London Police Department until shipped to the F.B.I. Laboratory for analysis on January 9, 1974. While at the New London Police Department, no precautionary measures of any kind were taken in order to preserve intact the evidentiary value of the clothing. It is especially noteworthy and entirely characteristic of the New London Police Department’s investigation that five days elapsed before the glass allegedly found at the scene was shipped to the F.B.I. Laboratory; and that the victim’s clothing was not sent for analysis until some two weeks after the accident and then only at the insistent urging of the State’s Attorney’s Office in New London County.
The F.B.I. Laboratory tests revealed that the particles of glass belonged to a General Electric sealed beam headlight; and that Showalter’s clothing contained microscopic particles of green paint which most closely resembled in composition a forest green paint used on 1968 Chrysler Motor Company automobiles. The F.B.I. Laboratory report concerning the clothing was received on February 6, 1974, and after that date, the entire focus of the New London Police Department investigation was narrowed to center only on 1968 Chrysler products.
After December 25, 1973, the New London Police Department did virtually nothing to solve the hit-run death of Kevin B. Showalter. On Christmas morning, a routine sweep of the south end of New London was made; and the officers involved searched for a vehicle damaged in the right front end. Mrs. Hendel gave her impression of the offending vehicle, and described it to the inquiring police as bright in color, a sport model, longer in the front than in the back. This information was not given to any of the officers searching for damaged vehicles and was never conveyed to the media for public assistance in solving the case. For want of a better word, and only because of paucity of terms compels its use, “the investigation” into the death of Kevin Showalter fell into the solitary hands of Lieutenant Bucko. Overwhelmed by the magnitude and notoriety of his task and constantly interrupted by his routine duties, Bucko could only hope, as he consistently testified, that a guilty conscience would prod the operator of the offending vehicle to come forward to admit his involvement. Alone, unguided and misguided, Lieutenant Bucko did ask local garages to report any cars under repair. He kept no record of any responses that may have been made. He failed to devise any kind of an investigative plan; he made no effort to evaluate available evidence; he declined volunteered assistance. All of the evidence compels the conclusion that the New London Police Department did not properly investigate the death of Kevin B. Showalter.
The evidence clearly indicated general inefficiency and laxity on the part of the New London Police Department in the investigation of the accident. For example, no attempt was made to interview the Fire Department rescue personnel who were first at the scene. Indeed, the Fire Department personnel were puzzled by the fact that they were never interviewed and testified that this was contrary to normal procedure. Inquiries from public agencies received no better treatment. An official inquiry from the Chief State’s Attorney’s Office in November of 1974 concerning whether or not any vehicles registered to Harvey Mallove, 28 Mallove Avenue, New London, Connecticut or Mallove Jewelers of New London had been physically inspected for damage after the accident prompted the response from Lieutenant Bucko that all six cars had been checked by the New London Police Department shortly after the accident and that none of the six cars had any damage. In fact, the six vehicles were never inspected by the New London Police Department and at least two had damage to the right front around the time of the accident. The general inefficiency and laxity of the investigation however, cannot be attributed to any corruption on the part either of the officer nominally in charge or the other members of the New London Police Department; rather it was more likely due to feelings of futility and frustration.
III. The State Police Investigation
The State Police Investigation into the death of Kevin B. Showalter was seriously hampered because it began with the assumption made in all good faith that all of the physical evidence turned over by the New London Police Department was in substantially the same condition as when it was collected. The New London Police Department turned over the physical evidence collected from the accident scene to the State Police on the following dates: (1) one box containing glass particles re: Kevin B. Showalter on December 23, 1976; Showalter’s misplaced clothing on January 5, 1977. Although the New London Police had some difficulty in locating the victim’s clothing, the State Police investigation continued for some time on the assumption that the evidence turned over by the New London Police Department was protected by a strong chain of custody. Considerable time elapsed and much effort was wasted before the investigating troopers realized that their work would have to begin at the beginning; and an investigative plan was needed.
The Connecticut State Police investigative plan was based squarely on the premise that due to the direction of travel of the offending vehicle, the season and time of night, the vehicle had a definite purpose for being in the south end of New London; that the operator was in all probability visiting or returning home. Consequently, some 4,000 letters were sent to citizens of the south end of New London, letters openly soliciting any information, however slight, that might be of assistance. At the same time, newspaper, radio and television appeals were made for any information which might be relevant to the case. There were approximately 187 responses to the mail and media campaign. Each response was meticulously examined and carefully evaluated.
Since the F.B.I. Laboratory report indicated the presence of forest green paint belonging to a 1968 Chrysler product in the victim’s clothing, the investigators obtained from the Connecticut Motor Vehicle Department a detailed list of 1968 Chrysler products registered in New London County. The Connecticut Motor Vehicle Department printout contained a list of some 10,000 cars whose color was ascertained. In all, approximately 450 cars were checked out. None was found to have any connection with the accident. Numerous paint samples were collected and forwarded to the F.B.I. Laboratory for analysis. The results were negative.
Meanwhile, all physical evidence turned over by the New London Police was being analyzed in various laboratories. On July 8, 1977, an envelope purportedly containing additional physical evidence was turned over by the New London Police to the Connecticut State Police. This evidence consisted of seven small pieces of flat turquoise green material, (1) one brown button and an envelope marked “12-24-73 Glass From Fatality Kevin Showalter.” This additional evidence was also forwarded to numerous laboratories for analysis.
The event was reenacted on numerous occasions and video-taped for visualizing the manner in which the accident might have occurred. Various tests at the scene were conducted to determine, for example, if glass could be heard breaking, if the sound of car brakes could be heard, if a vehicle traveling south on Pequot Avenue had to swerve to avoid the victim.
The State Police investigators interviewed almost four hundred persons who might have information concerning the accident. Even a detailed background investigation concerning Kevin Showalter was carried out to determine whether his activities might be in any way related to the incident. The State Police investigation into the death of Kevin B. Showalter was well-planned, thoroughly coordinated and completely exhaustive. The investigators conducted themselves in a highly competent manner and their activities were in keeping with the highest standards of law enforcement.
IV. Physical Evidence
Laboratory test results of the glass turned over to the State Police by the New London Police Department showed that there were glass fragments from not one but at least two General Electric headlamps. The particles from the two General Electric headlamps belonged to a high and a low beam headlamp which was manufactured prior to 1967. Tests on the glass were conducted by; the F.B.I. Laboratory in Washington, D.C., Electrical Testing Laboratory of 2nd East End Avenue, Manhattan, New York; General Electric Corporation, Miniature Lamp Section, 2400 Highland Road, Richmond Heights, Ohio; New Haven Police Department Laboratory, New Haven, Connecticut; Westinghouse Electric Corporation, Miniature Lamp Section, 1 Westinghouse Place, Bloomfield, New Jersey; Tung-Sol Headlamp Company, division of Wagner Electric Corporation, 100 Misty Lane, Parsippany, New Jersey; General Electric Company, Lexington, Kentucky and Corning Glass Company, Greenville, Ohio.
In addition to particles from the two General Electric headlamps, the glass turned over to the State Police by the New London Police Department contained numerous pieces of headlight glass of unknown origin as well as glass particles from a high intensity lamp (auxiliary driving lamp) of unknown foreign origin. This high intensity lamp glass was sent to the following laboratories; Lucas Industries, North America Inc. of Great Britain, Robert Bosch Corporation, Federal Republic of Germany, and Hella Glass Company, Federal Republic of Germany. Its origin remains unknown to date.
The box containing the glass turned over to the State Police Department by the New London Police Department also contained a headlight filament with an attached contact prong from a General Electric headlamp. Curiously, this filament was never noted in any of the available reports of the New London Police Department and the F.B.I. Laboratory never listed the filament as having been sent to it even though the filament, according to the New London Police Department, was sent to the F.B.I. Laboratory on December 30, 1973, with all the other glass supposedly collected at the scene. The F.B.I. personnel, however, did list the filament separately when the State Police shipped the samples to the F.B.I.
The filament was analyzed by the Lamp Glass Division, Pressed Ware Group of General Electric Company, Richmond Heights, Ohio. Denes Tarnay, senior engineer for the Pressed Ware Group and a recognized expert in the design and construction of sealed beam headlamps, testified that there was no way that the filament and attached contact prong could have become dislodged from a motor vehicle during a collision with a pedestrian. Tarnay testified that the condition of the filament and contact prong indicated that it had been “forcefully removed from the headlamp socket of an automobile.”
Not only is the existence of the headlight filament and contact prong difficult to explain in light of the F.B.I. inventory, but the fact that the FBI Laboratory reported that the glass sent by the New London Police Department was a General Electric headlamp is not consistent with the test results establishing that the glass turned over to the State Police investigators contained glass from two General Electric headlamps, glass from a headlamp of unknown origin and glass from a high intensity lamp of foreign origin. Furthermore, the F.B.I. Laboratory personnel testified that all large pieces of glass sent by the New London Police Department would have been specifically marked. Significantly, all of the large pieces of glass identified as being General Electric headlamp glass were marked by F.B.I. laboratory personnel while none of the large pieces of glass of unknown origin were marked by the F.B.I. Laboratory personnel during the initial testing. The F.B.I. Laboratory also found headlamp glass in the victim’s clothing as well as glass of an unknown type in the victim’s coat.
The loss of certain physical evidence by the New London Police Department has already been noted. Body putty and amber plastic material were found at the scene but to date have not been turned over to the State Police; and no satisfactory explanation has been provided as to the reasons for the disappearance of those materials.
The certain pieces of turquoise green material turned over to the State Police on July 8, 1977, were contained in an envelope “12-24-73 Glass From Fatality Kevin Showalter.” The materials were turned over by Lieutenant Bucko who said he found the envelope containing the green material in his files on that July date. Bucko indicated that it might be the missing body putty. He produced a button belonging to the victim’s coat, which he claimed was in the envelope containing the green material. An examination of the seven pieces of green material by the New Haven Police Crime Laboratory and by the F.B.I. Laboratory established that it was floor tile. The back of the floor tile was covered by an adhesive substance which was still tacky when the investigators picked it up from Bucko, a plain indication that the floor tile had not been in the envelope since the Showalter accident. To date, no satisfactory explanation has been provided as to how the floor tile ended up in an envelope with a button from Kevin Showalter’s coat when the writing on the envelope indicated that the envelope contained glass from the Showalter fatality. Lieutenant Konstanty Bucko has admitted that the writing is his: however, laboratory analysis of the envelope established that the envelope never contained any broken glass. Although Bucko identified the writing on the envelope as his own, he could not remember when he had written “21-24-73 Glass From Fatality Kevin Showalter” on the envelope. Curiously, laboratory analysis conducted on the button allegedly found by Lieutenant Bucko in the envelope with the floor tile showed small microscopic particles of glass adhering to the button.
So far as the phase of the inquiry relating to the physical evidence and the manner of its keeping is concerned, the inability of the various New London police witnesses to recall most of the circumstances surrounding the matters involved in the investigation of the death of Kevin Showalter and their lack of frankness in testifying greatly impeded the progress of the inquiry. It may properly be inferred that physical evidence was lost and misplaced, that evidence furnished to the Connecticut State Police during the course of this investigation by Lieutenant Bucko was not evidence gathered in the Showalter case, and that while there is no reasonable ground to believe that any member of the New London Police Department deliberately attempted to mislead the undersigned, there is reason to believe that the New London Police Department, at least in this case, was woefully inept and demonstrated a total lack of even rudimentary police techniques. The general ineptitude of the New London Police Department’s investigation is not to be attributed to any conspiracy on the part of either the officer in charge or the members of the police department. Rather, it is more likely due to incompetence and a woeful lack of proper training.
The clothing turned over to the State Police by the New London Police Department was also analyzed by the New London Police Crime Laboratory and Dr. John Reffner of the Institute of Material Science, University of Connecticut at Storrs. Dr. Reffner, a recognized expert in the field of material identification, analyzed materials recovered from the victim’s clothing and found the following: fragments of various colored mineral grains characteristic of sand; asphaltic materials and yellow paint similar to that used on highways. Reffner also found that piling and linting on the victim’s trousers indicated that the trousers were not new. Reffner stated in his opinion the condition of the right sleeve of the victim’s jacket indicated that this was a point of impact with the offending vehicle. Reffner found no green paint in the victim’s clothing nor did he find any indication of paint transfer from the offending vehicle. He testified further that he would not consider it unusual if paint transfer had not occurred.
Dr. Henkel, the medical examiner, testified that the victim was struck on the right side by the offending vehicle and said that the abrasions on the victim’s abdomen indicated to him that the victim had traveled through the roadway after impact with the automobile. A number of witnesses noted the presence of a significant amount of roadside debris in the area of the accident. The lack of proper custody and control over the victim’s clothing combined with the misapplication and contamination of the evidence destroys any value that the finding of green paint might have in this case. Considering the age of the victim’s clothing, his line of travel after impact and the amounts and types of debris found in his clothing, the possibility that his clothing had been contaminated from a source other than the offending vehicle is great.
V. Criminal Charges
The possible criminal charges arising from the death of Kevin B. Showalter are: Misconduct with a Motor Vehicle in violation of “Section” 53a-57 (a) of the Connecticut General Statutes; Negligent Homicide with a Motor Vehicle in violation of “Section” 53a-58a (a); and Evading Responsibility in Operation of Motor Vehicles in violation of “Section” 14-224 (a) of the Connecticut General Statutes.
A. Misconduct with a Motor Vehicle “Section 53a-57 (a) and Negligent Homicide with a Motor Vehicle “Section” 53a-58 (a)
To date, there has been no evidence presented which would warrant a conclusion that the driver of the offending vehicle was criminally negligent or that Kevin B. Showalter’s death was caused by the negligent operation of a motor vehicle. Indeed, the evidence presented indicates that the victim placed himself in a dangerous situation while changing the tire in a crouched position in the traveled portion of the roadway.
Although a reenactment of the accident scene established that Showalter was visible to vehicles traveling southbound on Pequot Avenue, there was no evidence to indicate that the driver of the vehicle actually saw Showalter. In fact, witnesses to the accident testified that the offending vehicle never decelerated, accelerated, or altered its course. There is nothing to indicate that the offending driver ever applied the vehicle’s brakes. Since the failure to note the presence of Showalter in the roadway cannot be attributed solely to any negligence on the part of the driver of the offending vehicle and there is no evidence to indicate that the driver of the offending vehicle was speeding or otherwise operating in an improper manner, the conclusion is ineluctable therefore, that there is insufficient evidence to warrant a prosecution for Misconduct with a Motor Vehicle or Negligent Homicide with a Motor Vehicle.
B. Evading Responsibility in Operation of Motor Vehicles “Section” 14-224 (a)
While it is true that the perpetrator failed to stop or render assistance as required by “Section” 14-224 (a), the statute imposes the duty to stop and render assistance only where the operator has knowledge of the impact or injury. The available evidence however, established that the driver of the offending vehicle was actually unaware that his vehicle had struck Showalter; the offending vehicle did not alter its course of travel, or change its speed; there was no indication that the brakes of the offending vehicle were applied; Showalter was in a crouched position and his body traveled along the roadway after impact. Balanced against these known facts is only the evidence concerning the sound of impact, and the natural tendency to conclude the driver must have known. While the sound of impact was clearly loud enough to be heard in some of the adjacent houses, the offending driver hearing the sound and seeing nothing might have been unaware of the cause of the sound. In short, the offending driver’s knowledge of the injury to Showalter is, at this point, a matter of conjecture.
Sometime after December 24, 1973, Harvey M. Mallove had mentioned to various persons that he had passed the accident scene around 11:12 p.m., and said that he had notified the police. Mrs. Showalter found out that Mallove had passed the accident scene, and on February 22, 1974 she called him to ask what he had seen. Mallove told Mrs. Showalter the he had given his information to the police on December 25, 1973, specifically to Detective Walter Petchark, and related the following:
On December 24, 1973, he had been working at his store in New London. At about 6:30 p.m. in the evening of that day, he left the store and drove in his automobile, a 1970 yellow Lincoln Continental, to the home of Peter Mariani in Groton, Connecticut. There he remained until after 9:00 p.m. when he left to go to the home of Mrs. Wilma Zimet on Woodridge Circle, Gales Ferry, Connecticut. He was in the Zimet home at about 10:45 p.m. when his wife called him by telephone to ask at what time he would be home. Mallove left the Zimet home shortly thereafter, at approximately 10:50 p.m. He went directly to his jewelry store on State Street in New London. He parked his Lincoln car, entered the store, picked up a package and started home by way of Pequot Avenue, traveling south on Pequot Avenue through the intersection of Plant Street and Pequot Avenue. As he traveled through the intersection of Pequot Avenue and Plant Street, he saw a small car parked near the corner on Pequot Avenue and at the same time he saw a car colored “dirty green” parked diagonally in front of the small car. He thought the “dirty green” car was a city vehicle and that a man he saw standing with a girl near it was a plainclothes policeman. He had promised his wife when he spoke to her on the telephone from the Zimet residence that he was coming right home. He carefully read the time on his watch. It was 11:12 p.m. He stifled his curiosity and continued homeward. Mallove believed that he saw a body lying on the grassy area adjacent to the roadway. Mrs. Showalter described the clothing Kevin was wearing. Mallove said that he had seen the body. Mallove was home at around 11:20 p.m.
Mrs. Showalter considered Mallove’s story to be of telling significance. She apprised her attorney immediately.
Shortly after Mrs. Showalter’s attorney was notified, the New London Police Department somehow became aware that Mrs. Showalter thought Harvey Mallove had important information concerning her son’s death. Mr. Mallove was interviewed by Lieutenant Bucko on February 28, 1974, and again on March 1, 1974. During these interviews, Mallove furnished, in essence, the same information as he had previously imparted to Mrs. Showalter. Mallove, however, stated that he had been mistaken in his belief that he had seen Showalter’s body, that what he had actually observed on December 24, 1973, was the trunk floor mat which Showalter had removed from the Emylita vehicle. The trunk floor mat was lying on the grassy area between the sidewalk and roadway on the west side of Pequot Avenue. The floor mat shows prominently in photographs of the scene taken by one of the New London Policemen. However, not one person at the scene on December 24, 1973, recalls seeing the floor mat. Neither was the floor mat observed by officers passing the area during reenactments of the accident.
What Mallove said to Mrs. Showalter and to the police who interviewed him conflicted with, if it did not squarely contradict, the testimony of all the other witnesses. Considering the time Mallove claimed he passed the accident scene, and his story that he saw an automobile parked diagonally in front of the Emylita vehicle and a middle-aged man talking to a young woman, the New London Police Department was then faced with a witness providing details markedly different from those provided by other witnesses. Even so, the New London Police Department never asked Mallove for a written statement. They did not even bother to inspect his motor vehicles. Mallove did make a written statement dated August 28, 1974.
Mallove in testimony during this inquiry recounted his story to Mrs. Showalter. He read the time on his watch, which may not have been exact, as 11:12-11:13 while passing the scene at a speed of about 25-35 miles per hour. However, he described his view of the scene as kaleidoscopic. He claimed that the car parked in front of the Pinto may not have been parked at a significant angle; and he could not remember if it extended into the traveled portion of the roadway farther than the Pinto. He was unable to recall whether he was required to alter the line of his travel or to change the course of his vehicle in order to avoid either Showalter or the “dirty green” colored car he observed parked in front of the Pinto.
Mallove emphatically and vehemently denied hitting Showalter, claiming that he would have known if he had struck him and further that he could not have struck Showalter because the vehicle he observed parked in front of the Pinto made it physically impossible for him to do so. Mallove complained of the conduct of the investigators, stating that the investigation concerning him had been too extensive and that he had been improperly implicated in a court hearing in New Jersey.
Harvey Mallove was a ready witness; and throughout the whole investigation, he was cooperative with the police, willing to provide his information on simple request. He also took a state police polygraph examination in 1975 with results indicating his responses to the questions asked at that time were truthful. He freely admitted that there was damage upon the right front side of his 1970 Lincoln automobile, damage that could have been caused by collision with a pedestrian. There was other evidence, however, that the same automobile had received damage before December 24, 1973; and some turquoise green body putty was found after the inspection of the 1970 Lincoln car by the Connecticut State Police around the right front fender area. Whether this was part of the body putty Gavitt claimed he found at the scene of the accident must be rejected out of hand as mere guess and pure speculation.
Mallove admitted that there was damage to the right front of his Lincoln including a malfunction with the headlight door. He could not recall the cause of the damage, he could not recall whether his vehicle had or had not sustained any damage on December 24, 1973. He claimed that there was so much damage that it would be hard to recall when any particular types of damage occurred. He claimed that he had reported his observations to the New London Police Department during an investigation of a shoplifting incident in his store. However, he could not recall whether or not he had told two other witnesses in this inquiry that he had reported his observations on Christmas day.
All of the evidence demonstrated that Harvey Mallove was driving his 1970 Lincoln automobile southerly on Pequot Avenue passing the intersection at Plant Street at the time when Kevin Showalter was hit. There was no evidence to indicate that any vehicle was parked diagonally in front of the Emylita vehicle; neither is there evidence to corroborate his statement that a middle-aged man was in conversation with Miss Emylita. Mallove is apparently convinced that he saw a car parked and two people together on the sidewalk. There is no reason to conclude that his story is fabricated. There is reason to believe that his recollections are vague; that his observations are entirely inconsistent with all of the other persuasive testimony; that his statement was inaccurate and misleading and that what he related was misapplied and influenced by the lapse of time and what he heard in unending conversations with others, including witnesses who went before him to testify in these proceedings.
There are certain facts about which there is no real dispute. These facts include the following: that at about 11:11 o’clock in the late evening of December 24, 1973, Kevin B. Showalter was changing the left front tire on a motor vehicle owned by Debra Emylita which was parked in the traveled portion for southbound vehicles on Pequot Avenue in new London when he was struck and killed by a motor vehicle being operated in a southerly direction on Pequot Avenue by an unknown person: that the general direction of Pequot Avenue is north and south; that it is intersected from the west, but not crossed, by Plant Street, the general direction of which is east and west; that each street is generally straight in the area of the intersection; that Pequot Avenue is about twenty-nine feet wide, but on the night and at the time and place in question had a width of useable for traffic of approximately twenty feet; and that the collision occurred southerly of the intersection.
There is no direct evidence of the collision. In reviewing what had occurred, it was frequently necessary to rely on circumstantial evidence and to draw inferences from it. It appears from the evidence that Kevin B. Showalter was changing a tire on a vehicle stationary in the southbound lane of travel on Pequot Avenue at the time of the accident and evidence as to the collision consisted of the testimony of Debra Emylita who was accompanying him but did not see him struck and the testimony of other witnesses who had observed Showalter and Emylita for a considerable period of time before and immediately after he was fatally struck. Emylita, after stating she was with Showalter at the time of the accident and was sitting on the wall when it occurred, stated that she and Showalter were alone, that she never saw another man, that she never talked to another man and that she never saw another car parked near her disabled Pinto on Pequot Avenue before Showalter was hit. From this testimony and that of other witnesses as to the circumstances of what they saw just before and immediately after the collision the fair inferences of facts are that nobody stopped, nobody parked a car near the Pinto, and that nobody spoke to Emylita while Showalter was changing the tire. Showalter and Emylita were always quite alone.
From Mallove’s statement concerning the time he passed the scene, his observations, observations of all the witnesses and all the other circumstances of the accident, it is more probable than not that Harvey Mallove was the operator of the offending vehicle.
There is considerable evidence as to what Showalter did while changing the tire. Some of that evidence pointed to a lack of due care on his part. No negligence on the part of Mallove was shown; and the mere fact that Showalter was struck does not supply the place of evidence. The nature of the accident makes it probable that negligence on Showalter’s part was a contributing cause of the collision.
It is customary for the State’s Attorney to decide, after investigation, whether or not a prosecution is warranted. Strong reasons now and then require strong action; and in the aftermath of this inquiry, prosecution is not recommended. Before the physical evidence connected with the collision could be admitted, there would have to be a showing that each object is in substantially the same condition as when the collision occurred and that the object has not been changed in important respects. It is true that there is no hard and fast rule that the prosecution must exclude all possibility of tampering with the evidence. Here, however, it cannot be shown where the physical evidence was stored subsequent to its removal from the accident scene or that it remained undisturbed, from that point on. Bearing in mind the circumstances surrounding the preservation and custody of the physical evidence, its nature and foreign intermeddlers tampered with it, a likelihood too strong to overcome.
Ordinarily this report would be filed with the Superior Court for New London County, with the order that it should not be published. However, due to the nature of the inquiry, it is perhaps, best to allow anyone who wishes to read this report to do so.
Finally, Lieutenant Richard J. Hurley and his specially assigned investigators, State Policewoman Justine Miller, Trooper George Ryalls, Trooper Frank Paparelli, Trooper Charles Wargat, and Trooper Michael Stergio must be acknowledged as entitled to my appreciation and respect for their dedication and extraordinary skills. Their conduct was impeccable, their manner courteous, their methods fair and always objective. For so much as this inquiry effectively accomplished, all credit must reflect on these distinguished and eminently professional members of the Connecticut State Police Department.
The exhibits, numbers A to ZZ inclusive, introduced in evidence before we had been left sealed in the custody of the Chief State’s Attorney.
With the filing of this report with the Superior Court for New London County the present stage of inquiry into the death of Kevin B. Showalter is concluded. Should the need for additional testimony arise, however, the undersigned is ready to resume a further investigative inquiry.
Superior Court Judge Joseph F. Dannehy, February 17, 1978