Posts tagged with "insufficiency of the evidence"

The Prosecutor’s Job in a DUI Case: Demonstrate the Defendant was Intoxicated, Not Educate the Jury About Field Sobriety Tests

In March, the Appellate Court of Connecticut reviewed a defendant’s insufficiency of the evidence claim as it related to his recent conviction of operating a motor vehicle while under the influence (OMVUI) of alcohol.

This case arose from an incident that occurred at approximately 9pm on August 20, 2006. Police officers saw the defendant driving his moped on Route 12, a public roadway, in an erratic manner. After officers initiated a traffic stop, they made the following observations of the defendant: bloodshot glassy eyes, the smell of liquor, and disheveled clothing. When asked for his driver’s license, the defendant stated, “[y]ou don’t need a license to operate a moped… give me a break, I just got out on a DWI offense,” and indicated he should not have been driving. The defendant became uncooperative with the officers, was unable to complete one field sobriety test, and refused to undergo other field tests and a breathalyzer test. The defendant was charged and convicted of OMVUI and operating a motor vehicle with a suspended license in violation of General Statutes §§ 14-227a and 14-215(c), respectively. On appeal, the defendant argued that the evidence presented by the State was insufficient to sustain his conviction for OMVUI.

To be found guilty of OMVUI, the state must prove beyond a reasonable doubt that the defendant “operated a motor vehicle, on a public highway and while the defendant was under the influence of an intoxicating liquor.” To establish the third element, there must be sufficient evidence demonstrating that the defendant “had become so affected in his mental, physical or nervous processes that he lacked to an appreciable degree the ability to function properly in relation to the operation of his vehicle.”

In this case, the defendant contested that the State failed its burden in proving the third element. However, the Appellate Court was persuaded that the State satisfied this element through officer testimony regarding the defendant’s appearance and behavior. The defendant argued that the State failed to establish what a person must do to pass field sobriety tests and how the tests measure a driver’s ability to operate their car. However, the Appellate Court wrote, “The state… did not bear the burden of educating the jury with regard to field sobriety tests, but of demonstrating that the defendant was intoxicated.” After addressing additional grounds for appeal, the Appellate Court affirmed judgment.

When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence), an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Written by Lindsay E. Raber, Esq.

Since Defendant Filed Appeal After Statutory Deadline, Trial Court Lacked Jurisdiction to Adjudicate

In April, the Appellate Court of Connecticut affirmed a trial court’s determination that it lacked subject matter jurisdiction to hear plaintiff’s appeal because the statutory filing period had already expired.

In this case, the plaintiff was arrested for operating a motor vehicle while under the influence (OMVUI) of alcohol. At the police station, the plaintiff was informed that, under General Statutes § 14-227b(b), if he refused to submit to either a breathalyzer test or other sobriety tests, his license would be suspended for six months. The plaintiff refused to take the tests, and the defendant Department of Motor Vehicles (DMV) began the process of suspending the plaintiff’s license. The plaintiff requested an administrative hearing, which was held on August 28, 2009. The hearing officer found that police had probable cause to arrest the plaintiff and that the plaintiff refused to take sobriety tests and operated a motor vehicle at the time he was arrested.

On September 16, 2009, the plaintiff moved for reconsideration, and this motion was denied on September 29. The plaintiff filed a recognizance bond with the clerk’s office on November 12, and then submitted his appeal on November 27. The trial court found it lacked subject matter jurisdiction to adjudicate the appeal because it was submitted after the statutory filing period. When the plaintiff appealed this decision, he argued that the trial court erred with this finding: he claimed he actually filed his appeal at the same time as his recognizance bond.

Under General Statutes § 4-183(c), a party must file an appeal with the agency that renders a decision either within forty-five days 1) after mailing of the final decision or 2) after the agency denies a petition for reconsideration. In the context of administrative appeals, courts will strictly comply with statutory dictates, and § 4-183(c)’s forty-five day filing requirement is “a mandatory jurisdiction in the first instance.” A reviewing court will not disturb the findings of a trial court unless there is no evidence to support it, or if a review of the evidence leaves the sense that a mistake was made. This is known as the clearly erroneous standard of review.

In this case, the forty-five day statutory period began to run on September 29, 2009, and expired on November 12, 2009, the day the plaintiff filed his recognizance bond. The plaintiff claimed that he handed a copy of his appeal to the clerk at the same time. However, the trial court found that the filing of the bond “did not constitute a ‘filing’ with the clerk of the court” and that the plaintiff did not file his appeal until November 27, 2009. The Appellate Court stated that the trial court was within its discretion to weigh the evidence, and could not hold that the findings made in this case were clearly erroneous. Therefore, it affirmed judgment.

When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence) or license suspension, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Written by Lindsay E. Raber, Esq.

Superior Court Denies Defendant’s Motions to Suppress Confession, Citing Sufficient, Independent Corroborating Proof

In a recent criminal law matter, a Superior Court of Connecticut considered a defendant’s motions to suppress a confession and evidence arguing insufficiency of the evidence to establish that he was the driver a DUI-related incident.

This case arose from an incident that occurred after midnight on January 16, 2009. While responding to a two-car accident in front of Foxwoods Casino, a state trooper came across a one-car accident along the away. The defendant was walking around the car and appeared confused and dazed. No one else was in the vicinity besides other vehicles passing by. The trooper noticed that the defendant smelled of alcohol, had bloodshot glassy eyes, and was unsteady on his feet. The defendant stated he was the driver of the vehicle, and explained that while driving, an oncoming car crossed into his lane. To avoid a head-on collision, the defendant swerved off the road and hit a rock. He admitted to consuming seven glasses of wine while at Foxwoods.

The trooper observed that the defendant’s car was steaming and hissing, indicating the accident had recently occurred. There was heavy front-end damage, as well as debris next to a large rock along the side of the road, consistent with the damage to the car. The trooper conducted field sobriety tests, all of which the defendant failed. The defendant was placed under arrest and brought to the state trooper barracks, where he underwent blood alcohol tests at 12:58am and 1:50am. The defendant registered a blood alcohol content (BAC) of .135 and .121, respectively, both above the legal limit of 0.08.

The defendant was charged with operation of a motor vehicle while under the influence (OMVUI) in violation of § 14-227a. He filed a motion to suppress his confession that he was the driver, as well as a motion to suppress the results of the field sobriety and blood alcohol tests administered to him after the accident. The defendant argued that there was insufficient corroborative evidence to establish that he operated the car, meaning his confession was inadmissible. In addition, he argued that the State did not present evidence to establish the blood alcohol tests were administered within the two-hour statutory window after operation.

When a defendant makes a “naked extrajudicial confession of guilt,” this on its own is not sufficient to sustain a criminal conviction unless supported by corroborative evidence. Such evidence need not be direct evidence, but may be circumstantial in nature as well. If, however, the crime charged does not involve a specific harm, loss, or injury, such as OMVUI, it “is [only] necessary … to require the Government to introduce substantial independent evidence which would tend to establish the trustworthiness of the [defendant’s] statement.” Finally, chemical tests measuring BAC must be taken within two hours after operation of the motor vehicle occurs.

In this case, the Superior Court found sufficient independent proof, in the form of the trooper’s observations, to corroborate the truthfulness of the defendant’s assertion that he was the driver of the vehicle. In addition, the evidence supported the conclusion that the accident happened very recently: as the court wrote, “the accident could not have gone undetected for any substantial length of time.” In addition, since the trooper did not start his shift until 12:00am, and the second chemical blood alcohol test was administered at 1:50am, it was proper to conclude that the tests were taken prior to the expiration of the two-hour statutory window.

When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence), an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Written by Lindsay E. Raber, Esq.

Because Curative Instructions were Properly Administered, Defendant Did Not Suffer Harmful Error in Her DUI Conviction

In a recent criminal law matter, the Appellate Court of Connecticut considered rejected a defendant’s claims that there was insufficient evidence to convict her of DUI, and that she was harmed by an improper limiting instruction.

This case arose from an incident that occurred on August 17, 2005. A state police trooper observed the defendant’s vehicle weaving and leaving the traffic lane three times along Route 8 in Trumbull, so he conducted a traffic stop. The trooper noticed the defendant had bloodshot eyes and detected the strong odor of alcohol, and the defendant stated she had two glasses of wine at a restaurant in Fairfield. The trooper administered three field sobriety tests, all of which the defendant failed, so she was placed under arrest and brought to state police barracks. During questioning, the defendant stated she had two vodka drinks at a restaurant in Bridgeport. She submitted to an Intoxilyzer test twice, which reported a blood alcohol content (BAC) of 0.159 and 0.143, both of which were above the legal limit of 0.08.

The defendant was charged with violating General Statutes §§ 14-227a(a)(1) and (2): operation of a motor vehicle while under the influence (OMVUI) of an intoxicating liquor and while having an elevated blood alcohol content. At trial, the director of controlled substances in the toxicology laboratory for the Department of Public Safety extrapolated the defendant’s BAC to 0.185 at the time she was operating her car. The court instructed the jury that the chemical test results could not be considered as evidence of the defendant’s guilt with respect to the behavioral count. “That evidence was offered for a limited purpose only and is admissible only with respect to the allegations contained in [the per se count] of the information.” The jury convicted the defendant and she appealed, arguing insufficiency of the evidence to convict, and that the jury impermissibly considered the toxicologist’s testimony “regarding the result of the Intoxylizer tests” in deciding upon the behavioral count.

When a reviewing court considers a claim of “evidentiary impropriety,” if the issue affects a constitutional right, the state must prove the error was harmless beyond a reasonable doubt. However, if the purported improper ruling is not constitutional in nature, the defendant must prove that the error was harmful. In cases, such as this one, where the defendant is charged under both subsections of § 14-227a(a), “appropriate limiting instructions regarding the use of chemical analysis serve as the proper safeguard.” Thus, if a defendant does not show evidence indicating otherwise, a jury presumably followed the curative instructions given by the trial court.

In this case, the Appellate Court found that the defendant did not prove that the jury failed to follow the court’s limiting instruction. Therefore, she failed her burden in establishing harmful error. In addition, the Court agreed that there was plenty of evidence to establish guilt beyond a reasonable doubt with respect to the OMVUI charge. It noted the defendant’s appearance on the scene, the failed field sobriety tests, as well as the inconsistent stories she provided. Therefore, the Appellate Court affirmed judgment.

When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence), an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Written by Lindsay E. Raber, Esq.

Immersing Child Into Steaming Bathwater Constitutes Reckless Assault

In a recent criminal law matter, the Appellate Court of Connecticut rejected a defendant’s insufficiency of the evidence claim, citing ample evidence that placing a child into extremely hot bathwater was reckless conduct.

This case arose from an incident that occurred on January 10, 2002 in New Haven, Connecticut. The defendant lived with his girlfriend and her three children, including two-and-a-half year old W. The defendant regularly cared for W, including bathing, without incident. On the morning in question, neighbors heard loud banging noises coming from the defendant’s apartment, as well as W crying and the defendant repeatedly yelling at W to be quiet.

Paramedics responded to a 911 call placed by the defendant. W had sustained second and third degree burns to his body up to his hands and forearms, and suffered serious medical side effects. When paramedics were treating the child, a sergeant with the police department walked into the bathroom and “noticed that there was water in the bathtub and steam rising from the water.” Two detectives returned to the apartment to re-create what occurred. They followed the defendant’s explanation of how he prepared the bath, and the thermometer produced a water temperature reading of 160 °F, which “cooled” to 120 °F after thirty minutes.

At trial, the defendant testified that he was unaware of the bathtub’s excessive temperature. He stated that he placed W into the bathtub and left the room for at least ten minutes, at which point he returned, saw W’s skin floating in the water as well as the burns, and promptly called 911. He could not recall W screaming, yelling, or crying in the bathtub. However, W’s attending physician explained that “on the basis of the pattern of injuries and severity of the burns, W’s injuries must have been inflicted intentionally and not accidentally.” A professor of pediatrics testified that W’s injuries were a “classic, textbook case of abusive immersion burns” that were the result of an intentional “hot, quick dip.” The defendant was convicted of first degree assault (specifically reckless assault) and risk of injury to a child, in violation of Connecticut General Statutes (CGS) §§ 53a-59(a)(3) and 53-21(a)(1) respectively. On appeal, the defendant argued in part that the evidence was insufficient to convict him of the assault charge.

Under CGS § 53a-59(a)(3), a person commits reckless assault when with extreme indifference to human life, he or she “recklessly engages in conduct which creates a risk of death to another person,” but instead causes serious physical injury to that person. “Reckless” conduct is that which shows the actor knew of but consciously disregarded a substantial or unjustifiable risk, which is of such a nature that disregarding it “constitutes a gross deviation” from a reasonable person’s conduct under the circumstances.

In this case, the question is whether or not dipping a child into scalding bathwater is reckless conduct creating a risk of death. The Appellate Court held that the jury could reasonably have found that the defendant immersed W into extremely hot water, and this conduct was a gross deviation from what is considered reasonable. Because the defendant’s conduct “constituted a conscious disregard for the risk of serious physical injury to W,” there was sufficient evidence to convict him of reckless assault.

When faced with a charge of assault or risk of injury to a child, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

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Felony Murder Conviction Affirmed in Light of Confession and Extrinsic Evidence

In a recent criminal law matter, the Appellate Court of Connecticut affirmed a defendant’s conviction following the strangulation murder of a woman, because the defendant’s confession was sufficiently corroborated by evidence that a crime actually occurred.

This case arose from an incident that occurred on January 2, 1998 in Hartford, CT. The defendant called an escort service to set up an arrangement before leaving his home in search of narcotics. He was stabbed multiple times following a failed robbery attempt, after which Good Samaritans treated his wounds and drove him home. The escort (the victim) arrived at the defendant’s residence and called her boss from inside, stating she was going to leave. When she stated her intention to the defendant, he blocked the entrance and a lengthy physical struggle ensued, during which he suffocated the victim.

The defendant transported the victim’s body in her own car to Suffield, where he disposed of it in a wooded area. Upon returning to Hartford, he traded the car to two drug dealers for $50 worth of cocaine and then saw various family members for treatment of his injuries and to request that his apartment be cleaned out. Afterwards, the defendant fled to Massachusetts. A missing person’s report was filed by the victim’s daughters, and telephone records directed investigators to the victim’s boss, who told them the victim was with the defendant on the night she disappeared. Officers then went to the defendant’s apartment, where the front door was open, bloodstains were on multiple pieces of furniture, and a gold hoop earring similar to one owned by the victim was located underneath the bed.

The defendant was tracked down in Massachusetts, where he was in prison for other offenses. On three occasions, he confessed to strangulating the victim and disposing of her body. He twice showed police to the wooded area in Suffield, and skeletal remains were recovered. The remains were identified as belonging to the victim, and a medical examiner cited “homicidal violence” as the cause of death. In addition, the medical examiner found that “the remains recovered were consistent with someone who had been killed by strangulation.”

The defendant was subsequently convicted of manslaughter in the first degree, felony murder, kidnapping in the first degree, and larceny in the third degree. On appeal, he challenged the sufficiency of the evidence to convict, in part [uniquely] because the state “failed to present substantial independent evidence that indicated that his confessions were true.” As such, the State’s case “based solely on his uncorroborated confessions… failed to comply with the rule of corpus delicti.”

Under the rule of corpus delicti, out-of-court confessions cannot be the sole basis for a conviction. Instead, the confession must be corroborated by proof that a crime in fact had occurred. However, many jurisdictions, including Connecticut, have moved away from this doctrine and adopted the trustworthiness doctrine. Direct corpus delicti proof is not required if there is “substantial independent evidence which would tend to establish the trustworthiness of the [defendant’s] statement.”

In this case, the Appellate Court found that there was sufficient independent evidence which established the trustworthiness of the defendant’s confessions. He led police to where the victim’s skeletal remains were located, and the medical examiner concluded death was not natural but the result of homicidal violence consistent with strangulation. Additional support came from the discovery of the victim’s earring, as well as the boss’s testimony and telephone records. All of this taken together established that a crime did take place, and that the defendant was the perpetrator. Therefore, this aspect of the defendant’s insufficiency of the evidence claim failed, and after addressing additional matters on appeal, the judgment was affirmed.

When faced with a charge of a homicide crime, kidnapping, or larceny, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

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Appellate Court Finds Defendant’s Convictions Proper: Evidence Was Sufficient, and Guilty Verdicts Were Not Legally Inconsistent

In a recent criminal law matter, the Appellate Court of Connecticut rejected a defendant’s insufficiency of the evidence and legally inconsistent guilty verdicts claims.

This case arose from an incident that occurred on May 20, 2008. The defendant and his friends confronted members of a rival gang, including the victim, who struck the defendant in the face as the two groups met. Each separated and fought others when the defendant “pulled a handgun from his waist and fired five shots into the crowd of participants in the fight,” one which struck the victim. The defendant fired a sixth round as he ran for his vehicle.

The defendant was subsequently arrested and charged with assault in the first degree, reckless endangerment in the first degree, and carrying a pistol without a permit. The gun used was never introduced into evidence, but the State provided forensic, testimonial, and demonstrative evidence that the gun used by the defendant had a barrel that did not exceed twelve inches in length. At the close of evidence, the trial court issued a jury instruction that discussed the essential elements of each crime. The jury returned a guilty verdict on all counts.

On appeal, the defendant first argued that a jury instruction allowed “legally inconsistent guilty verdicts” on the first two charges. He argued that each contained a mutually exclusive mental state – intentionality and recklessness – thus it would be improper to conclude that he acted “intentionally and recklessly with regard to the same act and the same result.” When a court reviews a claim of legal inconsistency, it must determine whether “there is a rational theory by which the jury could have found the defendant guilty of both crimes.” As the Appellate Court highlighted, “It is not inconsistent… to find that a criminal defendant possesses two different mental states, as long as [the] different mental states relate to different results.”

In this case, the Court agreed that the convictions were not legally inconsistent, because the trial court never instructed the jury that the crimes were committed by the same physical act. It explained, “It seems evident that one who deliberately shoots at another person acts intentionally, while one who shoots into a crowd acts recklessly,” a position the defendant did not contest. Thus, the Court determined that it was reasonable for the jury to conclude that the defendant intended to cause injury to the victim, while also being reckless with respect to firing shots into a gathered crowd. Therefore, this aspect of the defendant’s appeal failed.

The defendant also argued that there was insufficient evidence to convict him of carrying a pistol without a permit. He claimed that the State did not prove that the handgun he fired met the statutory definition of a pistol, which requires a barrel length of less than twelve inches. The Appellate Court readily disagreed with the defendant: based on the forensic, testimonial, and demonstrative evidence supplied to the jury, it could reasonably conclude that the gun’s barrel length was less than twelve inches. “Direct numerical evidence of barrel length is not required to obtain a conviction [for carrying a pistol without a permit].” Therefore, the Court affirmed the judgment.

When faced with a charge of carrying a pistol without a permit or other gun offenses, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

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Deli Robber’s Conviction Upheld, as State Presented Sufficient Evidence to Establish Requisite Guilt

In a recent criminal law matter, the Appellate Court of Connecticut held that the State presented sufficient evidence to convict the defendant of charges arising from the robbery of a deli.

This case arose from an incident that occurred on February 26, 2005. The defendant wore a half mask as he entered a deli, pulled a handgun from his jacket pocket, and pointed it at the cashier while demanding money. When the cashier went to get his wallet from his coat, located behind a glass deli case, the defendant fired at him twice. Both shots missed, and the defendant escaped with a paltry $38 cash.

One month after the robbery, police presented a photographic array to the cashier, who chose the defendant but needed a recently-taken picture to be sure. Four days later, a newspaper article with a more recent picture of the defendant appeared, linking him with another robbery. The cashier promptly called police and stated the man in the newspaper photograph (the defendant) was the same man who robbed him at the deli, then made a positive identification (ID) of the defendant in a second photographic array. However, the gun used to perpetrate this crime was never recovered.

The defendant was charged with a convicted of robbery in the first degree, larceny in the sixth degree, attempt to commit assault in the first degree, and carrying a pistol without a permit. On appeal, he argued that the State presented insufficient evidence identifying him as the robber. The defendant claimed that the cashier’s ID was unreliable because the perpetrator wore a mask. He cited the cashier’s initial inability to positively identify the defendant in the first photographic array and the passage of time between the incident and the second photographic array.

The Appellate Court was not convinced, citing a plethora of trial evidence upon which the jury could reasonably conclude the defendant as the robber. The cashier saw the defendant for an extended period of time in a brightly lit area at close proximity. According to testimony, the mask itself was particularly thin, allowing the cashier to see features through it, and was only a half mask, which does not cover one’s mouth, nose, forehead, eyes, and sections of hair. Finally, in contrast to the defendant’s assertion, the cashier was “100 percent sure that the defendant was the [perpetrator]” and made an in-court identification during trial. It was up to the jury, as the arbiter of credibility, to decide what testimony to believe. Thus, this aspect of the defendant’s insufficiency of the evidence claim failed.

In Connecticut, a person may not carry a pistol or revolver outside of their home or place of business without a permit to do so. A pistol or revolver that falls under this statute must have a barrel length of less than twelve inches. Without the gun itself presented into evidence, the defendant argued that the State did not sufficiently establish the length of the barrel on the firearm used in the robbery. As such, a conviction for this charge was improper.

Police recovered two spent .45 caliber shell casings and two spent bullets, the latter located behind the deli case. At trial, State experts testified that only a handful of companies create the weapons that can fire this ammunition, and “none… manufactured firearms with a barrel length of more than twelve inches capable of discharging the kind of spent casings and bullets found at the scene of the robbery.” In addition, the cashier provided testimony that the firearm was pulled from a jacket pocket and held with just one hand, facts from which inferences are permitted that would suggest the barrel is only twelve inches or less in length. Therefore, the Appellate Court found that the jury could reasonably infer that all elements of the carrying without a permit charge were supported by sufficient evidence.

When faced with a charge of larceny, burglary, robbery, or attempt, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

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Testimony Deemed Proof of Market Value of Shoplifted Goods Where Defense Counsel Failed to Object to Its Admission

In a recent criminal law matter, the Appellate Court of Connecticut rejected a defendant’s insufficiency of the evidence claims regarding the value of shoplifted goods and the element of “taking” under Connecticut’s larceny laws.

This case arose from an incident that occurred on January 30, 2007. Stratford police responded to a shoplifting in progress at a local Wal-Mart. At the store’s loss prevention office, the officers observed live camera footage of the defendant and her accomplices attempting to hide DVDs, first in a clear plastic tote, then within a suitcase. The defendant stayed inside the store as the accomplices pushed a cart with the suitcase to a store exit and left it there as they proceeded outside, where they were arrested. The defendant then moved to the cart and pushed it slightly, but was detained before actually leaving the store. Pursuant to police department procedure in shoplifting cases, the officers asked a store employee to scan the DVDs and provide a receipt as if they were purchased. There were 101 DVDs with an aggregate value of $1,822.72.

The defendant was charged with larceny in the third degree and conspiracy to commit larceny in the third degree. At trial, an officer testified as to how the value of the DVDs was calculated, but could not remember the exact amount. After being shown a copy of his report to refresh his recollection, the officer testified that the total amount was $1,822.72. Defense counsel did not object to the line of questioning or the testimony on the grounds of hearsay or competency. No other evidence regarding the value of the DVDs was provided, such as the receipt or the DVDs themselves.

The defendant was convicted on both counts and sentenced to three years of incarceration. On appeal, she first argued that the officer’s testimony was incompetent evidence that the value of the DVDs exceeded $1,000. He did not have an independent knowledge of their value and was merely reciting a value from a document not entered into evidence. Even if such testimony was competent, the use of the store’s price tags was an inadequate measure of market value. Rather, according to the defendant, evidence of actual sales was necessary.

The Appellate court found that the officer’s testimony was sufficient proof because defense counsel did not object to its admission. “If [inadmissible] evidence is received without objection, it becomes part of the evidence in the case, and is usable as proof to the extent of the rational persuasive power it may have.” The Court noted that “market value” and “selling price” (a.k.a. price tags) are synonymous terms, and that “any evidence which reasonably tends to show the present value of the stolen goods may be admitted.”

The defendant next argued that there was insufficient evidence of a taking, as she was still inside the store and had not brought any DVDs outside at the time she was detained. In Connecticut, larceny consists of “(1) the wrongful taking or carrying away of the personal property of another; (2) the existence of a felonious intent in the taker to deprive the owner of [the property] permanently; and (3) the lack of consent of the owner.” To constitute a criminal taking, what is necessary is the “implicit transfer of possession or control,” not whether the item itself was removed from the owner’s premises. To constitute larceny in the third degree, the value of the property must exceed $1,000.

In this case, the Appellate Court was once more not persuaded that there was insufficient evidence. The actions taken by the defendant and accomplices “in concealing the DVDs and moving them to an area where they quickly could be removed from the store” was sufficient evidence to establish the essential taking element of larceny.

When faced with a charge of larceny, burglary, conspiracy, or attempt, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

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Captured Fugitive Could Not “Reap the Benefit” of His Status When Appealing Burglary Conviction

In a recent criminal law matter, the Supreme Court of Connecticut held that the fugitive felon disentitlement doctrine applies not just to fugitives in flight, but also those who are arrested prior to filing their appeals.

This case arose from an incident that occurred on April 27, 1999. The victim arrived at his workplace and discovered the unauthorized presence of the defendant, who immediately ran off. Police found that two computers were unplugged with their keyboards in the garbage. The defendant was charged and convicted of burglary in the third degree and attempt to commit larceny in the first degree. However, prior to sentencing in December 2000, the defendant posted bond and fled to England, though he was rearrested and extradited to Connecticut. He once more posted bond and fled the country prior to his second sentencing date, was rearrested, and finally sentenced in November 2008. The defendant appealed his conviction, in part claiming insufficient evidence to convict for attempted larceny. However, the State argued that the defendant’s appeal should be wholesale dismissed because of the fugitive felon disentitlement doctrine.

The doctrine of fugitive felon disentitlement gives the court authority to dismiss a fugitive defendant’s appeal under certain circumstances. It is not accepted in all U.S. jurisdictions, and Connecticut has only addressed the doctrine in three cases where the fugitive filed his appeal while still on the run. Therefore, the Supreme Court set to the task of determining whether the doctrine applied to a fugitive who filed an appeal after being arrested, and if so, the scope of its application.

There are several rationales for the doctrine, only one of which applied in this context: “the promotion and protection of the dignified and efficient operation of the appellate system.” Courts want to ensure that defendants do not game the system through their fugitive status “by gaining unfair advantages due to the passage of time at the expense of the integrity of the appellate process.” In this case, the Supreme Court held that a fugitive’s post-arrest appeal may be dismissed if his conduct undermined the appellate process. Thus, if the State seeks to assert the doctrine, it must show specific instances of prejudice caused by the fugitive’s flight, such as the loss of evidence or witness-related issues. If the State meets this burden, it is then shifted to the defendant, who must establish by a preponderance of the evidence that his flight was not prejudicial.

The Supreme Court found that in this case the State alleged sufficient evidence that the defendant could not rebut. “The appellate process has been prejudiced by the loss of trial exhibits and by the effect that the passage of time has had on the availability and reliability of witnesses.” Therefore, all of the defendant’s claims on appeal, including insufficiency of the evidence, were not reviewable because the doctrine applied.

When faced with a charge of larceny, burglary, or attempt, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

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