Opinion
The defendant, Joseph Cote, appeals from the trial court’s judgment of conviction, following a jury trial, of burglary in the third degree in violation of General Statutes § 53a-103 (a) and larceny in the second degree in violation of General Statutes (Rev. to 2009) § 53a-123 (a).
The jury reasonably could have found the following facts. At approximately 10 a.m., on January 27, 2009, Judith Stanton left her home located at 677 Pequot Trail in Stonington (Stonington property). When Stanton returned to her home at approximately noon, she realized that the telephone was no longer on the wall, the liquor cabinet was open and drawers had been opened in every room upstairs. Her jewelry box had been “tom apart,” and pocket watches that were on display in a cabinet were missing. Jewelry, several $2 bills, a federal note and six $100 bills were missing from the property.
Lucinda Wesson, a neighbor who lived directly across the street from the Stonington property, noticed a car she did not recognize parked on her street the morning of January 27,2009. It was a dark-colored
An investigation at the Stonington property revealed that force had been used to open the rear door. An area of weather stripping that ran down the exterior of the
On January 27, 2009, at approximately 1:46 p.m., Raymond Driscoll, the police chief in Richmond, Rhode Island, drove past the home of an acquaintance located on 122 Kingston Road in Richmond. The homeowner’s truck was not on the property; however, there was a black Saab convertible with Massachusetts license plates parked in the yard. Driscoll observed two men standing in front of the garage door looking into the garage through a window. He then observed one of the men looking through a door at the front step next to the garage. This man was “alternately looking over his shoulder between looking into the house.” One of the men noticed that Driscoll was watching, and both men quickly walked to the Saab and drove away.
Driscoll followed the vehicle, which entered an abandoned gasoline station parking lot. While Driscoll was calling for additional police support, the operator of the vehicle got out of the car and walked over to him. Driscoll asked the operator for his license and registration, which he retrieved. The license identified the operator of the vehicle as the defendant, and his passenger was identified as Kalil.
Kalil was wearing a “sweatshirt type jacket” and had a pair of bloodstained white athletic socks in his jacket pockets. There was also a cut on Kalil’s hand. When asked why he had socks in his jacket pocket, Kalil responded that he had “bad feet.” Kalil stated that he and the defendant had been at the casino and that he had won $100. When asked why he was at the property located at 122 Kingston Road, Kalil stated that he and the defendant were lost and running out of gasoline and had stopped to ask for directions. When asked how they could be running out of gasoline when there were four gasoline stations within one and one-quarter miles of where they were located, Kalil responded that he did not know. When asked why they chose 122 Kingston Road to stop and ask for directions when there were no cars in the driveway, Kalil responded that he did not know.
After obtaining the defendant’s consent, Driscoll searched the vehicle, finding some articles of clothing in the backseat, a pair of black gloves on the center console and a screwdriver, pry bar and a hatchet/hammer in the trunk. When the additional police support arrived, Driscoll went back to the house and noticed two sets of footprints in the snow leading from the front of the home to the back of the home and
Driscoll placed Kalil in the backseat of an officer’s cruiser and asked the defendant to follow him to the police station. Driscoll drove into the parking area behind the station, and the defendant drove to the front of the station. After parking, Driscoll went to the front of the police station, and the defendant “was standing on the sidewalk in front of the Saab . . . right in front of a row of small shrubbery that’s in front of the police station.” Driscoll again obtained consent to search the defendant’s vehicle, and he seized the hatchet/hammer, screwdriver and pry bar. When looking through the interior of the vehicle, the police seized a costume jewelry gemstone. The gemstone was approximately one-quarter inch by one-quarter inch in size and blue or green in color. It was found between the driver’s seat and the passenger’s seat in the Saab.
The Richmond police later recovered a bag in the bushes in front of the Saab parked in the police department parking lot. Inside the bag were various types of jewelry, including pocket watches, rings and bracelets. The bag contained approximately fifty pieces of jewelry. The bag also had a piece of jewelry with gemstones that matched the gemstone found inside the vehicle.
The Stonington police were notified that the Richmond police department had found individuals and goods that were consistent with the Stonington burglary. Stanton viewed the jewelry obtained by the Richmond police department and identified it as her property.
The jury found the defendant guilty of burglary in the third degree in violation of § 53a-103 (a) and larceny in the second degree in violation of § 53a-123 (a). The defendant was sentenced on August 5,2010, to six years imprisonment on the larceny count and five years on the burglary count, to be served concurrently, for a total effective sentence of six years. This appeal followed. Additional facts will be set forth where necessary.
I
The defendant’s first claim on appeal is that after his arrest, but before his conviction, the General Assembly, in P.A. 09-138, amended § 53a-123 to increase the value of property taken for the commission of larceny in the second degree and that the court erred in refusing to apply the ameliorative change to the charge against him. We disagree.
At the time the defendant committed the offense in January, 2009, General Statutes (Rev. to 2009) § 53a-123 provided in relevant part: “(a) A person is guilty of larceny in the second degree when he commits larceny, as defined in section 53a-119, and ... (2) the value of the property or service exceeds five thousand dollars . . . .”
Whether we apply P.A. 09-138 retroactively to crimes committed before its effective date of October 1, 2009, is a question of law over which this court has plenary review. See State v. Nowell,
Generally, a defendant is prosecuted and sentenced under the statutes in effect at the time the defendant commits the offense. See Davis v. Commissioner of Correction,
Although the defendant concedes that generally the law in effect at the time of the offense controls sentencing, he posits three arguments in support of his proposition that P.A. 09-138 should apply retroactively in this case. The defendant contends that (1) P.A. 09-138 is an ameliorative statute,
A
The defendant first asserts that P. A. 09-138 is an ameliorative statute and, therefore, should apply retroactively to his case. The amelioration doctrine has not been adopted by Connecticut courts. The doctrine provides that “amendments to statutes that lessen their penalties are applied retroactively . . . .” State v. Graham,
The defendant cites cases from other states that have adopted the amelioration doctrine, which allows amendments to statutes that lessen their penalties to be applied retroactively. See, e.g., In re Estrada, supra,
B
The defendant next argues that the legislative intent behind P.A. 09-138 demonstrates that the legislature intended the provision to apply to an individual tried after the effective date of the enactment, even when the individual committed the offense before the effective date. Specifically, the defendant argues that the provision was meant to adjust the larceny threshold due to twenty-seven years of inflation and that its enactment was meant
Generally, the presumption that a statute affecting substantive rights applies prospectively can be rebutted only if the legislature clearly expressed an intent that the statute apply retroactively. State v. Nowell, supra,
In the present case, the offense occurred on January 27, 2009. Public Act 09-138 was signed by Governor M. Jodi Rell on June 25, 2009. The text of the act provides that it is effective October 1, 2009.
We further conclude that there is nothing in the legislative history to indicate that “the legislature clearly and unequivocally intended” for this provision to apply retroactively to crimes committed before its enactment. (Internal quotation marks omitted.) Id., 702. In the judiciary committee’s joint favorable report, the reason stated for the bill is that it “would adjust the monetary values utilized in the larceny statutes to more accurately reflect the actual values today. The values, last updated in 1982, are adjusted using the consumer price index.” Judiciary Committee Report, House Bill No. 6576, January 2009 Sess. We therefore conclude that there is no clear and unequivocal intention demonstrated by the legislature to allow for the provision to be applied retroactively.
The defendant, however, posits two arguments to support his contention that the legislative history indicates that the legislature intended for the provision to apply retroactively. The defendant first cites the judiciary committee’s joint favorable report to support his contention. He argues that the report indicates that the provision was meant to correct the larceny amounts to account for twenty-seven years of inflation. He also points to the report’s reference to Renee Cimino, of the office of chief public defender, and Conrad Ost Seifert, then president elect of the Connecticut Criminal Defense Lawyers Association, who both supported the bill due to its impact on criminal defendants and the penalties that potentially could be imposed. This short report, which simply references the opinions of two individuals involved in criminal defense, does not demonstrate that the legislature “clearly and unequivocally intended” for this provision to apply retroactively. The existence of legislative intent to increase the larceny values to
Second, the defendant contends that the enactment of the provision was designed to benefit financially the general fund of the state and, therefore, should apply retroactively to his case. The defendant cites the fiscal note authored by the General Assembly’s office of fiscal analysis to support his argument.
As we previously have recognized, “the summaries prepared by the office of legislative research expressly provide: The following fiscal impact statement and bill analysis are prepared for the benefit of members of the General Assembly, solely for purposes of information, summarization and explanation and do not represent the intent of the General Assembly or either house thereof for any purpose. . . . Although the comments of the office of legislative research are not, in and of themselves, evidence of legislative intent, they properly may bear on the legislature’s knowledge of interpretive problems that could arise from a bill.” (Citations omitted; internal quotation marks omitted.) Harpaz v. Laidlaw Transit, Inc.,
The fiscal impact statement is not indicative of legislative intent. As we have stated in prior cases, those statements are prepared for the members of the General Assembly and are not indicative of legislative intent. Further, the statement in the present case simply notes that the change in the larceny provisions will save the state money if an individual is incarcerated for a lesser period of time. This cost savings, however, is not the basis for the passing of this provision. Furthermore, merely because the changes in the statute might save the state money does not support the conclusion that the legislature intended to apply the provision retroactively to crimes committed before the provision became effective, when it expressly provided an effective date of October 1, 2009.
In sum, the language of P.A. 09-138 and its legislative history do not indicate that the legislature intended the provision to apply retroactively. Further, as outlined previously, our legislature has enacted savings clause provisions that govern prior offenses. “Our courts have repeatedly held that these savings statutes preserve all prior offenses and liability therefor so that when a crime is committed and the statute violated is later amended or repealed, defendants remain liable under the revision of the statute existing at the time
C
The defendant’s third argument is that, unless the legislative intent clearly indicates that an amended provision not be applied retroactively, the punishment is not warranted by law and, therefore, the failure to apply the provision retroactively violates article first, § 9, of the constitution of Connecticut.
Although the defendant contends that his claim is preserved, in the alternative, he also seeks review pursuant to State v. Golding,
Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) State v. Golding, supra,
n
The defendant’s next claim is that, in the absence of a jury instruction on accessory liability, there was insufficient evidence presented to prove that the defendant committed burglary in the third degree. We are not persuaded.
“In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . . because this court has held that a [trier’s] factual inferences that support a guilty verdict need only be reasonable. . . .
“ [A]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trier’s] verdict of guilty. . . . Furthermore, [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Internal quotation marks omitted.) State v. Butler,
To convict the defendant of burglary in the third degree, the state was required to prove beyond a reasonable doubt that the defendant “enter[ed] or remained] unlawfully in a building with intent to commit a crime therein.” General Statutes § 53a-103 (a). “A person ‘enters or remains unlawfully’ in or upon premises when the premises, at the time of such entry or remaining, are not open to the public and when the actor is not otherwise licensed or privileged to do so.” General Statutes § 53a-100 (b).
The defendant argues that there was insufficient evidence to support his conviction of burglary in the third degree because the state did not prove that the defendant actually entered the Stonington property, which is an element of the charged offense. The defendant contends that the jury would have had to resort to impermissible speculation to conclude that both the defendant and Kalil entered the residence, instead of only one of them. We disagree.
In proving that the defendant entered the Stonington property unlawfully, the state may rely upon direct or circumstantial evidence. State v. Sherman,
In this case, the jury reasonably could have found that the car that was stopped by Driscoll in Rhode Island was the same car that was parked outside of the Stonington property. The defendant and Kalil were stopped in a black Saab convertible with Massachusetts license plates. The vehicle matched the description of the vehicle Wesson observed outside of the Stonington property. Further, the tapestry bag with jewelry taken from the Stonington property was found in the bushes outside of the Richmond police station, and a gemstone matching that of a piece of jewelry found in the bag was located in the Saab. Taken together, the jury reasonably could have determined that the black Saab convertible that was stopped by Driscoll in Rhode Island was the same vehicle observed by Wesson parked in front of the Stonington property. Further, because the vehicle was registered to the defendant’s sister, the jury could have inferred that the defendant was at the Stoning-ton property.
“[I]n sustaining [burglary] convictions based entirely on circumstantial evidence, this court has relied on evidence that the defendant was at or near the residence at about the time of the burglary and that the defendant was in possession of items stolen from the residence thereafter.” Id., 387-88. In State v. Correa,
In the present case, the jury reasonably could have inferred that the defendant unlawfully entered the Ston-ington property. As already discussed, the jury reasonably could have determined that the defendant was at the Stonington property during the time of the burglary and that the vehicle he was driving was parked in front of the property. There was evidence that the door frame of the Stonington property had been manipulated by some type of tool, and a screwdriver, hatchet/hammer and pry bar were found in the trunk of the Saab. Although there was no direct evidence of the defendant’s physical unlawful entry, items taken from the Stonington property were later located in Rhode Island after the defendant and Kalil were
Although there was only one defendant in State v. Correa, supra,
The defendant argues that there was only one set of footprints in the snow outside of the Stonington property, thereby demonstrating that only one person arguably entered the Stonington property. He further argues that Wesson observed the vehicle in two different locations, and because the vehicle was moved, this tended to show that only one individual entered the Stonington property. We note again, however, that “[o]n appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trier’s] verdict of guilty.” (Internal quotation marks omitted.) State v. Butler, supra,
Ill
The defendant’s last claim on appeal is that the trial court erred in not granting the defendant’s renewed motion to sever the trials of the defendant and Kalil, after outbursts by Kalil before the start of the trial. We disagree.
The jury was brought into the courtroom again, and Kalil exclaimed, “[The defendant] and I are being held— we are being held. I will not be . . . held — and forced into a legal proceeding on something we didn’t do.” The court told Kalil to stop talking and to take a seat and then advised the jury that “you will disregard the statements and the actions of Mr. Kalil.” Kalil again stated, “[The defendant] and I are being held and forced into a legal proceeding on something we didn’t do.” The court again advised Kalil to stop talking and stated to the jury: “Ladies and gentlemen, you will disregard the statements and the outburst by Mr. Kalil. They will play no role in your determination in the case of state versus Albert Kalil and state of Connecticut versus [the defendant].”
After the first three witnesses testified for the prosecution, the defendant’s counsel again renewed his motion to sever the trials. He argued: “Mr. Kalil got up and had another outburst and then announced they’ve been in jail for another year or almost a year, had a bond placed on them. . . . And sits and taps on the table several other times .... I mean, we, as in every case . . . we try to make sure the jury doesn’t see shackles and dressed in the prison uniforms because of the prejudice of someone being in jail. He then announced to the entire jury while the jury was present that that’s where they’ve been, and this is the situation for both of them. So, I think his actions are now beginning to severely prejudice my client.” The court stated that it had given a curative instruction and that it had been speaking at the same time as Kalil, so the jury likely was unable to hear Kalil. The court therefore denied the motion.
During the court’s charge to the jury at the conclusion of closing arguments, the court stated: “Any statements or disruptions made at the beginning of the trial by the defendant Albert Kalil are to be disregarded by you. They are not evidence and are not to be considered by you in evaluating the evidence in this case with respect to either Albert Kalil or [the defendant].”
“[Wjhether to consolidate or sever the trials of defendants involved in the same criminal incident lies within the sound discretion of the trial court. ... A separate trial will be ordered where the defenses of the accused are antagonistic, or evidence will be introduced against one which will not be admissible against others, and it clearly appears that a joint trial will probably be prejudicial to the rights of one or more of the accused. . . . [T]he phrase prejudicial to the rights of the [accused] means something more than that a joint trial will probably be less
“The test for the trial court is whether substantial injustice is likely to result unless a separate trial be accorded. . . . [W]e will reverse a trial court’s ruling on joinder only where the trial court commits an abuse of discretion that results in manifest prejudice to one or more of the defendants.” (Citation omitted; internal quotation marks omitted.) State v. Ortiz,
The defendant contends that “after the jurors were informed by Albert Kalil that he and the defendant were being ‘held’ in jail until trial began, the defendant’s presumption of innocence and right to a rigorous application of the proof beyond a reasonable doubt standard were both vitiated . . . .” Accordingly, the defendant argues that the court erred in denying his motions to sever his trial from Kalil’s trial.
In cases involving a defendant’s motion for a mistrial when reference was made to pretrial incarceration, our courts have stated that “ [n]ot every reference to a defendant’s pretrial incarceration is grounds for a mistrial. . . . There is nothing sacrosanct about a defendant’s pretrial incarceration.” (Citation omitted; internal quotation marks omitted.) State v. Tucker,
In the present case, the record indicates that at the time of at least one of the outbursts by Kalil, the court was speaking at the same time and therefore reasonably
Moreover, the risk of prejudice to the defendant was mitigated by the court’s instructions to the jury to disregard Kalil’s statements. “Cautionary instructions to the jury concerning what evidence may be considered against which defendant can often alleviate any potential prejudice. The spillover effect . . . usually is best avoided by precise instructions to the jury on the admissibility and proper uses of the evidence introduced by the government.” (Internal quotation marks omitted.) State v. Jackson,
The judgment is affirmed.
In this opinion the other judges concurred.
Notes
General Statutes (Rev. to 2009) § 53a-123 (a) was the revision of the statute in effect at the tíme the defendant committed the offenses on January 27, 2009, and is the revision used by the trial court in sentencing the defendant.
In her statement to the police, she indicated that the vehicle was dark green.
She also testified that she was only looking at the individual from an angle and that it was hard to estimate his exact height.
Although she reviewed her statement to the police in which she indicated that the passenger was wearing a red sweatshirt, she could not remember when she testified what color sweatshirt the passenger was wearing.
Dale Brummond, an officer with the Stonington police department, testified that although there was no reference to the number of footprints in the police report, he recalled there being only one set of footprints at the Stonington property.
The police later determined that the car was registered to the defendant’s sister.
Driscoll testified that the owner of the home indicated that there should not have been any footprints in the back of his house.
Stanton created a list with all of the items taken from her property, and the approximate value of each of the items. The list identified thirty-nine pieces of jewelry and their approximate values as well as money and a telephone that was taken. The total value of the property taken was approximately $8104.50.
General Statutes § 53a-119 provides in relevant part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. ...”
Larceny in the second degree is a class C felony; General Statutes § 53a-123 (c); and larceny in the third degree is a class D felony. General Statutes § 53a-124 (c).
We note that in the defendant’s reply brief, in regard to his amelioration argument, he also argues that P.A. 09-138 is what is known as a “curative act,” which “merely clarifies or remedies a perceived defect or misapplication of the statute [and] is not considered a retroactive statute even though it affects events occurring before its enactment, since it is designed to reflect the true meaning of the statute or statutes involved.” (Internal quotation marks omitted.) We decline to address this argument because it was raised for the first time in the defendant’s reply brief. “Our practice requires an appellant to raise claims of error in his original brief, so that the issue as framed by him can be fully responded to by the appellee in its brief, and so that we can have the full benefit of that written argument. Although the function of the appellant’s reply brief is to respond to the arguments and authority presented in the appellee’s brief, that function does not include raising an entirely new claim of error.” (Internal quotation marks omitted.) Grimm v. Grimm,
Number 09-138, § 2, of the 2009 Public Acts provides in relevant part: “Section 53a-123 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2009) . . . ." (Emphasis in original.)
The fiscal note provides in relevant part: “The bill increases the threshold amounts for classes of larceny. Based on this adjustment, offenders would face lower maximum penalties than provided under current law. For example, any person convicted of stealing $1,000 worth of goods or services may receive a prison term of up to 5 years under current law whereas the bill provides for a maximum prison term of 1 year for such a theft. ... To the extent that these changes decrease the maximum criminal penalties to which larceny offenders are exposed, a potential savings related to probation supervision and incarceration (in addition to a potential revenue loss from criminal fines) exists. On average, it costs the state $3,736 to supervise an offender on probation in the community as compared to $44,165 to incarcerate the offender.” (Citation omitted.) Office of Fiscal Analysis, Connecticut General Assembly, Fiscal Note, House Bill No. 6526, An Act Concerning Larceny.
Article first, § 9, of the Connecticut constitution provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”
The entire colloquy was as follows:
“[Defense Counsel]: . . . I’m asking that the count two of the — of my client’s information be stricken. It’s my position that at this point in time the larceny three is anything up to $10,000, that the evidence in this case is approximately $8000 of items. I do — I do see at the time of January 27, 2009, the statute was anything above $5000 to below $5000 for larceny three.
“The Court: Why shouldn’t that be three?
“[Defense Counsel]: The change in law goes to the benefit of the defendants.
“The Court: Do you have any law?
“[Defense Counsel]: I do not. . . .
“The Court: Your application is denied.”
We note that our Supreme Court recently decided State v. Payne,