State v. SpillaneState v. Spillane
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- Before:
- Healey
Opinion
HEALEY, J.This case is before us on remand from our Supreme Court. State v. Spillane, 255 Conn. 746, 770 A.2d 898 (2001). Thе defendant, Robert W. Spillane, originally appealed to this court from the judgment of conviction, rendered after a jury trial, of larceny in the third degree in violation of
We determined that the trial court improperly omitted the definition of the term “appropriate” set forth in
The Supreme Court agreed that the trial court should have defined for the jury the term “appropriate,” but it found the improper instruction to have been harmless and therefore it reversed our judgment and remanded the case to us with direction to consider the defendant’s remaining grounds for appeal, i.e., (1) “whether the trial court improperly refused to give a missing witness instruction for the state’s failure to call the wife of the complaining witness to testify” and (2) “whether the prosecutor’s allegedly improper argument deprivеd the defendant of his due process right to a fair trial under *339the United States and Connecticut constitutions.”4 State v. Spillane, supra, 255 Conn. 762.
The relevant facts underlying the defendant’s conviction, as the jury reasonably could have found them, were set out in the Supreme Court’s decision as follows. “The defendant operated Walnut Street Services, Inc., a towing company in Hartford. Walnut Street Services, Inc., was authorized by various area businesses, including Mechanics’ Savings Bank on Farmington Avenue in Hartford, to tow unauthorized vehiсles from their lots during nonbusiness hours.
“Around midnight, on April 27, 1996, Webster Lewis parked his car on the street in front of Mechanics’ Savings Bank and entered the apartment of his girlfriend, Andrea Gudealm. When Lewis exited the building, he discovered his car was missing. Gudealm called the police from a nearby pay telephone, and the police gave her the telephone numbers of several tow companies. Upon calling the tow companies, Gudealm located Lewis’ car at Walnut Street Services, Inc. The following afternoon, Lewis proceeded to Walnut Street Services, Inc., and paid the defendant’s wife, Cheryl Spillane, $148 to retrieve his vehicle. Lewis found his glove compartment open, papers scattered around the car and tools missing from the back of the car. Lewis then called the police, and larceny charges were brought against the defendant.
“The defendаnt was tried on two counts of larceny in the third degree in violation of
“Much of the trial testimony addressed where Lewis’ car had been parked when it was towed. If it had been parked in the Mechanics’ Savings Bаnk parking lot, Walnut Street Services, Inc., rightfully towed the vehicle. If, however, it had been parked on the street, as the state claimed, then Walnut Street Services, Inc., wrongfully towed the vehicle. In accordance with Lewis’ testimony, the jury found the tow to have been wrongful and, on March 20, 1997, found the defendant guilty of larceny in the third degree. The defendant was found not guilty of the charges of reckless endangerment in the second degree and risk of injury to a сhild. The defendant was sentenced on May 2, 1997, to a two year suspended sentence and three years probation. He was also ordered to pay Lewis restitution in the amount of $200, participate in an anger management program, and donate $1000 to the Hartford police department outreach program.” Id., 749-51. Additional facts will be set forth as necessary.
I
We first address the defendant’s claim that pursuant to Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960), overruled in part, State v. Malave, 250 Conn. 722, 737 A.2d 442 (1999) (en banc), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000), the trial court improperly refused to give *341a missing witness instruction for the state’s failure to call the wife of the comрlaining witness to testify. The state argues that the defendant’s claim was not properly preserved and that the court did not abuse its discretion “because the witness was not one the state would ‘naturally’ have called.”
The defendant failed to raise this claim at trial. Furthermore, in seeking our review of this claim, the defendant fails to request review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. See
*342II
We next turn to the defendant’s claim that the prosecutor’s improper argument deprived him of his due process right to a fair trial under the United States and Connecticut constitutions.
The defendant raises his claim for the first time on appeal. Furthermore, in seeking our review of his claim, the defendant fails to request review pursuant to State v. Golding, supra, 213 Conn. 239-40, or the plain error doctrine. We reiterate that “[w]here a defendant fails to seek review of an unpreserved claim under either Golding or the plain error doctrine, this court will not examine such a claim.” State v. Abraham, supra, 64 Conn. App. 404 n.18. We therefore decline to review this claim.
Even if we werе to review the defendant’s prosecutorial misconduct claim, we would conclude that it lacks merit because the defendant has failed to show that the prosecutor’s remarks were improper.
The following additional facts are relevant to the defendant’s claim. In its closing argument, the state *343argued that the defendant’s motive for committing larceny was money and that possession of Lewis’ vehicle represented money tо the defendant. It argued that the fundamental issue for the jury to decide was whether the defendant towed Lewis’ vehicle wrongfully from the street or lawfully from the parking lot. The state further argued that the defendant essentially had a license to steal and that it was “almost the perfect crime” because the defendant could collect cars off the street and receive money from the owners who, like Lewis, just wanted to get their cars back and were unaware that Walnut Street Services, Inc., lacked the authority to tow such cars from the street. The state also observed that Lewis had no motive to cause the defendant’s arrest and that he merely wanted his car and tools returned. In its rebuttal argument, the state argued that the jury should not “let this defendant get away with what he did on April 27, 1996, when he made Webster Lewis buy back his own car . . . .” The defendant did not object to any of these remarks.
Prosеcutorial misconduct can occur in the course of closing argument. State v. Atkinson, 235 Conn. 748, 768-69, 670 A.2d 276 (1996). “[T]o deprive a defendant of his constitutional right to a fair trial . . . the prosecutor’s conduct must have so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct.” (Internal quotation marks omitted.) State v. Chasse, 51 Conn. App. 345, 355, 721 A.2d 1212 (1998), cert. denied, 247 Conn. 960, 723 A.2d 816 (1999). “A prosecutor may not appeal to the emotions, passions and prejudices of the jurors.” State v. Williams, 204 Conn. 523, 545, 529 A.2d 653 (1987). Nor should a prose*344cutor “inject extraneous issues into the case that divert the jury from its duty to decide the case on the evidence.” Id., 547.
“[T]o determine whether claims of prosecutorial misconduct amоunted to a denial of due process, we must decide whether the challenged remarks were improper, and, if so, whether they caused substantial prejudice to the defendant. ... In conducting our analysis, we focus on several factors: (1) the extent to which the misconduct was invited by defense conduct or argument; (2) the severity of the conduct; (3) the frequency of the conduct; (4) the centrality of the misconduct to the critical issues of the сase; (5) the strength of the curative instructions adopted; and (6) the strength of the state’s case.” (Citation omitted; internal quotation marks omitted.) State v. Garrett, 42 Conn. App. 507, 515, 681 A.2d 362, cert. denied, 239 Conn. 928, 929, 683 A.2d 398 (1996).
In his appellate brief, the defendant claims that the prosecutor committed misconduct by arguing in her summation that the jury “should convict him of a crime with which he was not charged,” i.e., extortion,8 thus injecting an extraneous issue designed to divert the jury from its duty to decide the case on the relevant evidence. Specifically, the defendant argues that the prosecutor “never claimed that the evidence established that [he] was guilty of third degree larceny . . . in regard to Mr. Lewis’ car, but, instead, asked the jury to find him guilty of stealing the money Mr. Lewis paid to obtain the release of his car.” He further argues that *345the prosecutor improperly “asked the jury to find that the defendant’s intention was to deprive Mr. Lewis of his car temporarily, in order to extract an illegal payment from him for its release.” (Emphasis added.) In its appellate brief, the state responds that there was no permanency requirement in the form of larceny at issue and that its summation accurately reflected the “appropriation” form of larceny rather than the “extortion form.” We agree with the state.
In its decision, the Supreme Court noted that the “intent to deprive” aspect of larceny was not at issue because the dеfendant was charged with the “intent to appropriate,” which requires an intent to dispose of property for the benefit of oneself or a third person. State v. Spillane, supra, 255 Conn. 753-54. It also stated that
In his reply brief, the defendant argues for the first time that the prosecutor improperly argued that he was guilty of criminal trover in the second degree,9 a crime he was not charged with committing. He goes on to state that his argument “must be viewed in the context of [his] basic argument that the definition of larceny relied on by the state, i.e., to dispose of property for the benefit of oneself or a third person . . . does not constitute larceny under the Connecticut [General] Statutes.” According to the defendant, this is because “such a return of property to the owner is not a ‘disposal’ of it under
*346Although the defendant raises this claim in the prosecutorial misconduct context, he essentially is making a sufficiency of the evidence claim with respect to the meaning of “intent to appropriate” under
In noting that
Thus, it is fair to say that the Supreme Court has stated more than once that disposing of the vehicle for *347a $148 benefit was sufficient tо satisfy the element of intent “to dispose of the property for the benefit of oneself or a third person” under
Likewise, we continue to adhere to the view expressed in our earlier opinion that the state’s summation was consonant with the “intent to appropriate” theory of larceny. Indеed, in determining which subsection of larceny was at issue, we stated that the prosecution proceeded under the “appropriation” form and that “defense counsel did not then or thereafter at trial take issue with the state’s theory on the first count. He did not claim surprise but proceeded to go forward with his own case.” State v. Spillane, supra, 54 Conn. App. 213. We further pointed out that “[d]uring its argument to the jury, the state argued that the defendant, in towing the Lewis car, was motivated by thе money that would be obtained by towing the car and then charging the owner money to get the car back.” Id. We therefore believe that in claiming that “neither the Appellate Court nor the Supreme Court engaged in any discussion of what the legislature meant by the use of [the] language [to dispose of the property for the benefit of oneself or a third person],” the defendant misreads the record.
We conclude that there is no merit to the defendant’s claim that the prosecutor’s argument in her summation urged the jury to “convict him of a crime with which he was not charged.” Accordingly, the defendant has failed to show that the prosecutor’s remarks were improper. In so concluding, we observe that the defendant cites no authority for claiming prosecutorial misconduct on that basis. We also note that in its final instructions to the jury, the trial court stated that it was the court’s function, nоt counsel’s, to explain to the *348jury the applicable law and that what it says in that regard is binding on the jury.10 We therefore must presume that the jury knew the applicable law and convicted the defendant on that basis. See State v. Sauris, 227 Conn. 389, 403, 631 A.2d 238 (1993) (“[j]urors are presumed to have followed the instructions of the court as to the law in the absence of a clear indication to the contrary”).11
The judgment is affirmed.
In this opinion the other judges concurred.
Notes
We rejected the defendant’s claim that the trial court improperly denied his motions for a judgment of acquittal; State v. Spillane, supra, 54 Conn. App. 210; and his interrelated claims concerning the trial court’s refusal to instruct the jury about the destruction of the police tapes and its denial of his motion to strike the testimony of the complaining witness, both of which we considered in the event that they were to arise in the new trial that we had ordered. Id., 220-21, 228.
Both the state and the defendant have filed supplemental memoranda directed to these two issues.
Pursuant to State v. Golding, supra, 213 Conn. 239-40, “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.” (Emphasis in original.)
Even if we were to review the defendant’s claim, we would conclude that it lacks merit. The defendant argues that by remanding the “missing witness” issue (o this court, the Supreme Court “implicitly determined that *342[State v.] Malave [supra, 250 Conn. 722] only had prospective application.” In Malave, our Supreme Court abandoned, in criminal cases, the Secondino rule, also known as the missing witness rule, which sanctioned, under certain circumstanсes, a jury instruction that an adverse inference may be drawn from the failure of a party to produce a witness. Id., 738.
Although our Supreme Court to date has not addressed whether Malave applies retroactively, we have held on several occasions that Malave does apply retroactively. See State v. Walker, 67 Conn. App. 120, 123, 786 A.2d 1116 (2001), cert. denied, 259 Conn. 926, 793 A.2d 252 (2002); State v. Quinones, 56 Conn. App. 529, 533, 745 A.2d 191 (2000). Moreover, when our Supreme Court intends for a decision to apply prospectively only, it knows how to say so clearly. See State v. Delvalle, 250 Conn. 466, 475-76, 736 A.2d 125 (1999) (“we . . . direct our trial courts to refrain from using the [jury instruction at issue in that case] in the future”). Therefore, absent a determination by the Supreme Court to the contrary, we conclude that the Malave decision applies retroactively to this case. Accordingly, the defendant’s “missing witness” claim lacks merit.
The trial court instructed the jury on the applicable law in relevant part as follows: “Our statute defines larceny as follows: Aperson commits larceny when, with intent to deprive another of property or to appropriate the same to himself ... he wrongfully takes, obtains or withholds the property from an owner. Each of the following elements must be proved by the state beyond a reasonable doubt. First, that the defendant wrongfully took, obtained or withheld property from an owner. And second, that at the time the defendant obtained the properly, he intended to appropriate that property to himself or a third person. . . . The state must prove to you beyond a reаsonable doubt that first, [the defendant] wrongfully took, obtained or withheld property from the owner and at the time he did that, he intended to appropriate the same to himself or a third person.”
In his supplemental brief, the defendant also argues that the trial court overlooked
The defendant’s other remaining arguments are also without merit. His reference to the definition of “conversion” in Black’s Law Dictionary (7th Ed. 1999) provides him no support because in the present case we are concerned with the proper construction of a statute, not a common-law term. Likewise, the defendant’s reliance on State v. Sawyer, 95 Conn. 34, 110 A. 461 (1920), is inapposite because that case concerned a definition of larceny that was superseded by the enactment of the Penal Code in 1969.