State v. Baker
State v. Baker
Opinion of the Court
The defendant was convicted after a jury trial of burglary in the third degree in violation of General Statutes § 53a-103 and of larceny
The jury could reasonably have found the following facts. The defendant entered the apartment of Margaret Eusso on April 21, 1977, without her permission by prying open a window. Eusso returned home at approximately 8 p.m. at which time she only caught a glimpse of the intruder’s arm before he fled with several thousand dollars worth of personal articles which were not recovered. The police discovered the defendant’s fingerprints on a black plastic coin bank which he had moved from the dining room to the bedroom during the burglary. The latent fingerprints found at the scene of the crime were identical to fingerprints of the defendant on file at the New Haven police department. Eusso did not know the defendant and did not authorize him to remove any articles from her home. On June 7,1978, the day before the trial began, the defendant submitted to fingerprinting. These prints also establish that the defendant, Baker, touched the plastic bank.
Baker testified and alleged that he accepted the invitation of an acquaintance, Dwight Willoughby, to cut through several backyards to a house which Willoughby identified as his girlfriend’s but which in reality belonged to Eusso. There, Willoughby asked the defendant to wait by the back door because his girlfriend did not like unanticipated visitors. Willoughby entered the house from another side and later opened the back door from
I
The defendant argues for the first time on appeal that he was denied a fair trial because a state’s witness improperly brought to the jury’s attention the implication that the defendant had been previously involved in criminal activities. To establish that the defendant committed the crime in question the state introduced and compared three separate sets of fingerprints: those obtained from the plastic bank at the scene of the crime, the defendant’s prints obtained the day before trial and a copy of the defendant’s fingerprints taken by Officer John Lehr of the New Haven police department on August 11,1976, and preserved on a card in a police department file. The state offered Lehr’s testimony to lay the foundation for the admission of the fingerprint card dated August 11, 1976. After several preliminary questions Lehr testified concerning his responsibilities and duties on August 11, 1976, and stated “[i]n police nomenclature, I was the doorman at the detention facility.”
Although the response given could be construed to have created some prejudice in the minds of the jurors, the question posed did not contemplate such a response. The witness could have answered, and indeed a more likely response to the question would
Only the most exceptional circumstances will save a claim, constitutional or otherwise, from the fatal consequences of a defendant’s failure to make a timely objection. State v. Briggs, 179 Conn. 328, 332, 426 A.2d 298, cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862; State v. Rogers, 177 Conn. 379, 418 A.2d 50; State v. Adams, 176 Conn. 138, 406 A.2d 1; State v. Evans, 165 Conn. 61, 70, 327 A.2d 576. The policy behind this rule is both ancient and sound and “does not permit a defendant in a criminal case to fail, whether from a mistake of law, inattention or design, to object to matters occurring during a trial until it is too late for them to be corrected or even considered and then, if the outcome proves unsatisfactory, to raise them for the first time on an appeal.” State v. Taylor, 153 Conn. 72, 86, 214 A.2d 362, cert. denied, 384 U.S. 921, 86 S. Ct. 1372, 16 L. Ed. 2d 442; State v. Evans, supra, 66; State v. Tuller, 34 Conn. 280, 295. The defendant tries to equate this claim of error with the recognized exception “where the record adequately supports
On the present record before us the defendant’s counsel may well have made a strategic decision that any further reference to Lehr’s remark might have emphasized testimony which left no impact on the jury or which only obscurely hinted to the jury that the defendant may have been involved in prior criminal behavior. See, e.g., United States v. Carter, 448 F.2d 1245 (8th Cir.), cert. denied, 405 U.S. 929, 92 S. Ct. 981, 30 L. Ed. 2d 802; State v. DeFreitas, 179 Conn. 431, 459 n.14, 426 A.2d 799. The record here does not support the defendant’s claim that Lehr’s answer clearly deprived him of a fair trial.
II
The defendant also alleges denial of a fair trial due to prosecutorial misconduct in soliciting the testimony of Lehr in order to lay a foundation for and the admission of the August 11, 1976 fingerprint card. He argues that misconduct was committed on the ground that Lehr was an unnecessary witness, that the state had knowledge that his testimony would be prejudicial to the defendant and that the August 11,1976 fingerprint card was merely cumulative because post-arrest fingerprints were available to identify the defendant.
The defendant concedes the relevance of the fingerprint evidence but argues that its prejudicial effect, in light of Lehr’s testimony that he, while a doorman at the detention facility, rolled those fingerprints, outweighed its probative value to such an extent that the card was obviously inadmissible when offered by the prosecutor. Evidence is admissible when it tends to establish a fact in issue or corroborate other direct evidence in the case. State v. Crowe, 174 Conn. 129, 384 A.2d 340. In State v. Ralls, 167 Conn. 408, 356 A.2d 147, this court recognized that “[i]n this age and particularly in these times it is a matter of common knowledge that fingerprinting is used in numerous branches of civil service and is not itself a badge of crime.” Id., 418. For this reason, there cannot be an automatic rule regarding the admissibility of such evi
in
A
The value of the stolen articles was testified to by Russo, the victim-owner. The defendant claims that before she testified the trial court should have required her to demonstrate her knowledge of the particular values at issue. The trial court exercises judicial discretion in deciding, under the particular circumstances of the case before it, whether to admit a witness’ testimony of the value of her property. Coffin v. Laskau, 89 Conn. 325, 329-30, 94 A. 370. Our cases have ruled that the competence of the witness to testify to the value of property may be established by demonstrating that the witness owns the property in question. Misisco v. LaMaita, 150 Conn. 680, 684-85, 192 A.2d 891; Anderson v. Zweigbaum, 150 Conn. 478, 483n, 191 A.2d 133; Saporiti v. Austin A. Chambers Co., 134 Conn. 476, 479-80, 58 A.2d 387; Lovejoy v. Darien, 131 Conn. 533, 536, 41 A.2d 98. The rule establishing an owner’s competence to testify reflects both the difficulty of producing other witnesses having any knowledge upon which to base an opinion especially where the stolen items are never recovered; see Jeffries v. Snyder, 110 Iowa 359, 362, 81 N.W. 678; and the common experience that an owner is familiar with her property and knows what it is worth.
The trial court granted the defendant a voir dire in the absence of the jury before Busso’s testimony was offered, and he did not accept the opportunity at that time or on cross-examination at trial to attack her qualifications or competency to testify. On the record before us we cannot conclude that Busso, in fact, lacked knowledge of the particular value at issue. See 3 Wigmore, Evidence (Chadbourn Ed. 1970) § 716.
B
In this state the degree of larceny and the severity of the punishment vary by statute according to
The items taken during the burglary were never recovered and, therefore, were not physically entered in evidence. Busso, however, testified that $300 in cash was stolen along with two fur pieces purchased for $4200, six items of jewelry worth $4950 and four time pieces worth $1275.
Finally, the defendant claims error in the court’s failure to include the statutory definition of “value”; General Statutes § 53a-121;
There is no error.
In this opinion Peters, Healey and Parskey, Js., concurred.
The defense counsel did object in an extensive colloquy to the prejudicial impact which he claimed the “detention facility” remark had in combination with the August 11, 1976 fingerprint card but those remarks were clearly made in an effort to exclude the entire fingerprint card.
In the present case the trial court ruled that the August 11, 1976 copy of the fingerprint card was admissible. The defendant properly preserved objections to admitting the copy of that card at trial; on appeal, however, he has not pursued the claim made at trial but has submerged that objection into a claim of prosecutorial misconduct. We, therefore, do not review the trial court’s evidentiary ruling. State v. Festo, 181 Conn. 254, 255-56, 435 A.2d 38; State v. Hoffler, 174 Conn. 452, 457, 389 A.2d 1257; State v. McLaughlin, 132 Conn. 325, 339, 44 A.2d 116.
We note that in the one instance where Busso admitted that she did not know the value of an item the trial court stopped her from answering questions as to its value and specifically barred her from repeating an appraiser’s out-of-court statement as to its value. Yonan Rug Service, Inc. v. United Services Automobile Assn., 69 A.2d 62, 64 (D.C.).
Busso testified to the following values for the stolen items: (1) a diamond dinner ring, $800; (2) a gold sapphire ring with a diamond, $250; (3) a jade ring, $200; (4) a grandmother ring, $500. (According to the complainant the grandmother ring contained the birthstones of all her grandchildren as well as her own birthstone.); (5) a big antique watch, $75; (6) a $20 gold piece
Commonwealth v. Warlow, 237 Pa. Super. Ct. 120, 346 A.2d 826, and State v. Hammond, 6 Wash. App. 459, 493 P.2d 1249, were decided under a statute similar to Connecticut’s. Wash. Rev. Code Ann. § 9A.56.010 (12) superseding Wash. Rev. Code Ann. § 9.54-100 as of July 1, 1976; 18 Pa. Cons. Stat. Ann. § 3903 (c) (Purdon) cited in Warlow.
General Statutes $ 53a-121 provides: “(a) Por the purposes of this part, the value of property or service shall be ascertained as follows: (1) Except as otherwise specific in this section, value means the market value of the property or services at the time and place of the crime or, if such cannot be satisfactorily ascertained, the cost of replacement of the property or service within a reasonable time after the crime. ... (3) When the value of property or service cannot be satisfactorily ascertained pursuant to the standards set forth in this section, its value shall be deemed to be an amount less than fifty dollars.”
Dissenting Opinion
(dissenting). The defendant claims that the court erred in failing to define the term “value” pursuant to § 53a-121 of the General Statutes when charging the jury as to the crime of larceny in the first degree.
While the court did instruct the jury that in order to convict the defendant of first degree larceny they had to find that the value of the property was in excess of $2000, it failed to instruct them as to what standard of proof § 53a-121 mandates and what the consequences are of the finding that that mandate has not been met. The effect of this was to remove from the jury’s consideration an essential element of the crime of first degree larceny.
Section 53a-121 provides: “the value of property shall be ascertained as follows: (1) . . . , value means the market value of the property ... at the
The absence of any instructions as to value as set forth in the statute leads to the conclusion that the jury engaged in pure speculation.
I would find error and order a new trial.
Reference
- Full Case Name
- State of Connecticut v. Collin Baker
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- 54 cases
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- Published