State v. ThompsonState v. Thompson
Lead Opinion
Opinion
The defendant, Brushaun Thompson, appeals from the judgment of conviction, rendered after a jury trial, of two counts of larceny in the first degree by false pretenses in violation of
The information alleged two counts of larceny in the first degree by false pretenses against the defendant. Count one alleged that “on or between September 16, 2005, and September 26, 2005, in Westport
The jury reasonably could have found the following facts. In September, 2005, John Spalding, owner of ABC Moving, was hired by Decorator’s Warehouse in Nor-walk to deliver a couch and love seat to the defendant at 557 Atlantic Street in Bridgeport. When Spalding made the delivery he met the defendant for the first time. The defendant introduced himself as a “caretaker for a doctor” who orders “a lot of stuff.” The defendant inquired of Spalding as to whether he would like to start picking up deliveries for “us.” The defendant explained that “we’re doing construction and because at the time we’d like to do some business with you because our current delivery service isn’t working out.” The defendant told Spalding that he worked for “Dr. Rosenblatt” and at another time for “Mr. Murray.”
On September 16, 2005, Betsy Nosara Conway, assistant manager of the Coach store in Westport, received a telephone call from a man who identified himself as Larry Rosenblatt. Rosenblatt wanted to place an order for merchandise he had seen in a catalogue. He ordered a number of items totaling $2534.76
On September 17, 2005, Conway took another telephone call from the man who again identified himself as Rosenblatt. According to Rosenblatt, his family enjoyed the gifts, and he wanted to purchase more merchandise. These items totaled $2700.88, and Rosenblatt gave Conway a credit card number but not the one he had used the day before. On September 21, 2005, the same so-called Rosenblatt called Coach twice and placed two additional orders with Conway. His first purchase on that day totaled $2789.92 and was charged to an American Express account belonging to Catherine Saldinger and Pierre Saldinger. Neither one of the Saldingers had authorized the use of their account for the purchase. Minutes after making the first call, the caller, identifying himself as Rosenblatt, yet again called Coach and ordered a diamond watch worth $2117.88. To purchase the watch, Rosenblatt used an American Express account belonging to Ronald Schectman, who had not authorized the use of the account for the purchase.
From September 16 through 21, 2005, the defendant placed four orders with Coach in Westport, charged $10,203.44 to credit card accounts belonging to other persons and asked Spalding each day to pick up the merchandise at Coach and deliver it to him at the Wald-baum’s parking lot in Bridgeport. Each time Spalding delivered the merchandise from Coach, the defendant paid him the agreed upon fee of $100. Among the items purchased from Coach, in this fashion, was a water buffalo billfold wallet.
From September 16 through 22, 2005, the defendant asked Spalding to make six deliveries of merchandise from Lowe’s in Newington to a garage below an apartment at 557 Atlantic Street in Bridgeport. The value of the merchandise delivered that week totaled $37,558.55.
Each time Spalding delivered the Lowe’s merchandise to 557 Atlantic Street in Bridgeport, the defendant was waiting for him. The defendant again represented to Spalding that he was the caretaker for Rosenblatt, a contractor. According to Spalding, the defendant explained that “they were going to pick them up the next day because they didn’t want them on the job site, you know, because they wanted to install them the next day. That’s what he told me.”
On September 23, 2005, Donna Corra, manager of Coach in Westport, received a telephone call from a person complaining of an unauthorized charge on her credit card account. Corra subsequently notified the Westport police. Corra informed Conway of the call, as well. On September 26, 2006, Conway took a telephone call at Coach from someone identifying himself as attorney Gary Hertzberg, who placed a telephone order and used a credit card account number to make the purchase. When Conway processed the order, the credit card information was declined. Conway telephoned the Westport police, who went to the Coach store. When Spalding arrived at the store,
Spalding and Rocke waited in the parking lot for the defendant to arrive. When the defendant drove up next to Spalding’s truck, Spalding identified him to Rocke as the man who had hired him to deliver merchandise from Coach and Lowe’s. Rocke got out of the truck carrying a shopping bag filled with empty Coach boxes. The defendant got out of the vehicle that he was driving and met Rocke. Rocke asked the defendant if the packages were his, and the defendant responded affirmatively. Rocke asked the defendant if he wanted the receipt, and the defendant said, “yes.” Rocke reached into the bag as if to retrieve the receipt but pulled out a weapon and arrested the defendant. There was a passenger in the defendant’s vehicle, Francis Beethoven, and the defendant indicated to Rocke that Beethoven was not involved. When Rocke searched the defendant, he found a Coach water buffalo double billfold wallet similar to the one that the man who identified himself as Rosenblatt had purchased on September 17, 2005. The wallet contained $110 in currency
Following the defendant’s arrest, he was released on a $25,000 bond, but he failed to report for his scheduled court date on January 11, 2006. Subsequently, a warrant was issued for his arrest. The defendant was taken into custody again on February 25, 2006. Additional facts will be set out where necessary.
The defendant first claims that he was deprived of a fair trial because the court failed to instruct the jury that it could aggregate the value of the property that was stolen only if it determined that the theft was part of one scheme or course of conduct. More specifically, the defendant argues that because no individual charge to a credit card account was valued at more than $10,000, the jury had to aggregate the individual purchases in order to have found him guilty of larceny in the first degree as to the theft of items from Coach and from Lowe’s.
The defendant concedes that this claim was not preserved at trial and asks that we reverse his conviction pursuant to State v. Golding,
We begin our analysis by setting forth the applicable standard of review, “[individual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirely, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . Accordingly, [i]n reviewing a constitutional challenge to the trial court’s instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury. ... In other words, we must consider whether the instructions [in totality] are sufficiently correct in law, adapted to the issues and ample for the guidance of the jury. . . .
“[I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled. ... [A] jury instruction that improperly omits an essential element from the charge constitutes harmless error
In his closing argument, the prosecutor argued that the evidence proved beyond a reasonable doubt that the defendant had devised a plan or scheme to defraud Coach and Lowe’s. “[W]hen the defendant got arrested, there was another guy in the car, Francis Beethoven. What does the defendant say? He’s got nothing to do with this. Well, the defendant wasn’t the scam artist? The defendant wasn’t the guy setting this all up? How would he know there was something to be involved with? If he just happened to be in the wrong place at the wrong time, why would he tell the police that Francis Beethoven had nothing to do with this? He wouldn’t. He told the police that because [the defendant] at that point, knew that he was caught.
“Now, the defendant wanting a receipt, you know, the defendant did a lot to cover his tracks, didn’t he? He bought warranties on stuff, he bought small innocuous items; he used a third party to make the deliveries. He never had anything delivered to his own residence. He had it delivered to a parking lot in Bridgeport or to Tamika Creer’s address. Everything the defendant did was to cover his tracks and avoid detection.”
Most important is the defendant’s theory of defense. The defendant did not claim that each of the serial thefts from Coach and from Lowe’s were not part of one scheme or course of conduct. See State v. Gainey, supra,
Affirming the power of the evidence presented to the jury in this case is defense counsel’s closing argument in which she conceded that there was a carefully designed plan or scheme to defraud Coach and Lowe’s. Defense counsel argued in part: “The evidence shows in this case, in this case, somebody took great measures to avoid [detection]. Somebody else picked things up. Someone placed orders over phones that couldn’t be traced using different names. It was so carefully planned; how clever is this; whoever is making the orders at Lowe’s orders high ticket items and then items that are $1.98. And not even that, they order a long-term plan, a warranty, some of the items. Why do they do it? I submit to you to avoid [detection].”
The concurring and dissenting opinion would reverse the defendant’s conviction on the basis of State v. Desi-mone,
In Desimone, our Supreme Court held that “in determining the degree of the crime of larceny by receiving stolen property, the value of multiple items of allegedly stolen property may be aggregated only if the state has established that the defendant received the property pursuant to one scheme or course of conduct.” State v. Desimone, supra,
Our Supreme Court agreed with the New York Court of Appeals that “ajury may aggregate the value of stolen property only if the successive takings be pursuant to a single intent and design and in execution of a common fraudulent scheme.” (Internal quotation marks omitted.) Id., 457, quoting People v. Cox,
Under the facts of this case, however, time cannot be the distinguishing factor as to whether there was one scheme or course of conduct by which the defendant defrauded Coach and another scheme or course of conduct to defraud Lowe’s. Although neither we nor the concurring and dissenting opinion have found a precise definition of “one scheme or course of conduct,” as set forth in § 53a-121 (b), cases such as State v. Desimone, supra,
“[A]n alleged defect in a jury charge which raises a constitutional question is reversible [impropriety] if it is reasonably possible that, considering the charge as a whole, the jury was misled .... In other words, the test for determining whether a constitutional [impropriety] is harmless ... is whether it appears beyond a reasonable doubt that the [impropriety] complained of did not contribute to the verdict obtained.” (Internal quotation marks omitted.) State v. Hampton,
Secondarily, from a public policy perspective, the theft of personal data, including misappropriation of credit card information is a serious problem in our society. Failure to recognize the defendant’s actions as a scheme or course of conduct provides a road map for a savvy thief whose plan is to use, every other day, stolen credit card information to make purchases but is careful to limit the cost of each purchase to avoid the harsher penalties of a conviction of larceny in the first degree.
II
The defendant’s second claim is that the court violated his constitutional right to represent himself. He also claims that the court erred when it failed to conduct an inquiry pursuant to
The following additional facts are relevant to the defendant’s claim. On April 24, 2007, immediately prior to the start of evidence, the defendant represented, through counsel, that he wanted to represent himself. The court noted the defendant’s prior requests to represent himself and that at those times, the defendant was not able to complete the court’s canvass. In denying the defendant’s latest request to represent himself, the court stated: “I’ve lost count at this point of how many requests the defendant has had to fire his own attorney to represent himself. I’ve lost count of the canvasses at this point. I do know that he has not been able to successfully get through the canvasses. He’s had ample opportunity ... to hire his own attorney, if he wanted to. He never did that, so I do find that his request to represent himself is nothing but an attempt to hinder, delay or impede the start of the trial.” The defendant has not challenged the court’s recitation of the procedural history.
“Both the federal constitution and our state constitution afford a criminal defendant the right to [forgo] the assistance of counsel and to choose instead to represent himself or herself at trial. ... A defendant’s right to represent himself or herself, after a clear and unequivocal request to do so, is not unlimited. ... In Faretta [v. California,
“In accordance with those limitations, our Supreme Court recently held [in State v. Flanagan,
In this case, trial had begun, as trial commences with voir dire. Id., 502 n.7. The court, therefore, was required to balance the factors established in Flanagan to determine whether the potential disruption of the proceedings already in progress outweighed the defendant’s interest in representing himself. We conclude that the court engaged in the proper analysis. The court found that the defendant failed to express a clear reason for his request. The court found that the defendant’s real reason for making the request to represent himself merely was an attempt to hinder, to delay or to impede the progress of trial. Although the court did not address the second factor explicitly, the court noted that a number of attorneys had represented the defendant and that he never had suggested that any one of them was not competent. Defense counsel stated, at the time she voiced the defendant’s request, that she thoroughly was prepared, had prepared cross-examinations and researched the rules of evidence. The court made no finding that counsel was not qualified, and the defendant did not ask the court to make such a finding. In light of those aggregate considerations, the second factor is met. The court directly addressed the third factor and found that the defendant had substituted counsel on numerous occasions. In denying the defendant’s request to represent himself, the court noted that it had lost count of the number of requests the defendant had made to discharge his counsel and to represent himself. The court also noted that it had attempted to complete a canvass of the defendant pursuant to
We conclude, therefore, on the basis of the Flanagan factors, that the court did not abuse its discretion in concluding that granting the defendant’s request to represent himself had the potential to disrupt the proceedings, which outweighed the defendant’s interest in self-representation. Consequently, there was no need for the court to conduct a canvass of the defendant pursuant to
Ill
The defendant’s third claim is that the court abused its discretion by denying his motion for a mistrial because the prosecutor had engaged in impropriety by intentionally charging the defendant with crimes that had been nolled in another prosecution. We disagree.
More specifically, the defendant claims that he was entitled to a mistrial because certain charges of identity theft in the third degree involved the use of credit card accounts belonging to Christopher Miller
“The standard for review of an action upon a motion for a mistrial is well established. While the remedy of a mistrial is permitted under the rules of practice, it is not favored. [A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated. . . . On appeal, we hesitate to disturb a decision not to declare a mistrial. The trial [court] is the arbiter of the many circumstances which may arise during the trial in which [its] function is to assure a fair and just outcome. ... In [our] review of the denial of a motion for mistrial, [we recognize] the broad discretion that is vested in the trial court to decide whether an occurrence at trial so prejudiced a party that he or she can no longer receive a fair trial. The decision of the trial court is therefore reversible on appeal only if there has been an abuse of discretion. ... In general, abuse of discretion exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided it based on improper or irrelevant factors. . . . Therefore, [i]n those cases in which an abuse of discretion is manifest or where injustice appears to have been done, reversal is required.” (Internal quotation marks omitted.) State v. Peloso,
“[W]hen confronted with a claim of prosecutorial [impropriety], we must determine whether the prosecutor’s conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . The burden of proving a constitutional violation as a result of prosecutorial [impropriety] rests with the defendant . . . and the defendant must demonstrate substantial prejudice.” (Citations omitted; internal quotation marks omitted.) State v. James G.,
It is not clear from the record whether the identity theft charges involving the credit card accounts of Miller and Seath arose from purchases made at Lowe’s in South Windsor, as the defendant contends. A prior long form information charged the defendant with, among other things, identity theft as to Miller and Seath for use of their credit card accounts at Lowe’s in Newin-gton. Seath’s credit card statement, which was admitted into evidence, shows that at least one transaction was made at Lowe’s in Newington. Miller did not testify at trial, and the state nolled the identity theft charge as to him. The prosecutor stated on the record that he “was under the impression that [Miller] was one of the Newington victims . . . .” Although the prosecutor may have been mistaken, the court acted well within its discretion when it found implicitly that no intentional misconduct had occurred. Moreover, there is no evidence of prejudice to the defendant, as the state withdrew the identity theft charge as to Miller before the defendant filed his motion for a mistrial and before the jury returned its not guilty verdict as to all counts of identity theft. The defendant, therefore, has
The judgment is affirmed.
In this opinion LAVINE, J., concurred.
Notes
The defendant was found not guilty of ten counts of identity theft in the third degree in violation of
The defendant also claims that the jury’s verdict finding him guilty of the charges of larceny in the first degree but not guilty of the charges of identity theft are legally inconsistent. We decline to review the claim. See State v. Arroyo,
The defendant used credit card accounts owned by Larry Rosenblatt, John Murray and others to make purchases. Each man testified that he had not authorized the defendant to use his account. Rosenblatt also testified that he is not a doctor but the publisher of children’s books. Murray further testified that he never had been employed in real estate, contracting or development of any kind.
The following items were ordered: key chains, wallets, handbags, scarves, umbrellas and shoes.
Spalding made deliveries of Lowe’s merchandise to the defendant as follows: $5089.94 on September 16, 2005; $6602 on September 18, 2005; $5678.88 on September 19, 2005; $8252.09 on September 20, 2005; $278 on September 22, 2005; and $8657.64 on September 22, 2005.
The defendant purchased a wide range of merchandise from Lowe’s. For example, he purchased roofing coil nails, snow throwers, a ladder, a leveling laser, a range, a range hood, a microwave, a refrigerator, a dishwasher, a granite countertop, bathroom vanities, rakes, tarps, faucets, dryers, dryer ducts and a rug.
The credit card accounts that the defendant used to make purchases at both Coach and Lowe’s belonged to customers of Advantage Waste Services (Advantage). The individuals had provided Advantage with their credit card information so that their periodic payments for garbage removal could be charged directly to their accounts. Arena Johnson, an employee of Advantage, admitted having known the defendant for fifteen years but denied that she gave him any credit card information. Johnson, however, admitted that she was a convicted felon.
When later asked again why the Lowe’s merchandise was delivered to the garage at 557 Atlantic Street, Spalding testified that the defendant had said that “the contractors were going to come pick it up the next morning, deliver it to the sites because they didn’t want to leave them out overnight . . . .”
Spalding later told police that the defendant had informed him that he was picking up merchandise for Hertzberg.
The currency included a $10 bill and five $20 bills, presumably for the defendant to pay Spalding $100 for making the delivery, as they had agreed.
The court charged the jury with respect to larceny in the first degree, in relevant part, as follows: “The first count allegedly involves the Coach store ... in Westport . . . and the second count allegedly involves the Lowe’s store ... in Newington ....
“The law as to the larceny in the first degree by false pretenses is as follows: A person obtains property by false pretenses when by any false pretense he obtains from another any property with intent to defraud him or any other person. There are five elements to this crime, and I’ll now go through them ....
“The first element is false pretense. This means that the defendant made a false representation or statement of a past or existing fact. A representation may be false either expressly or by implication and may consist of any act or word calculated and intended to deceive.
“A false pretense is an intentional false statement concerning a material matter of fact in reliance on which the title or possession of property is parted with. A misrepresentation of fact made innocently or inadvertently cannot form the basis of a conviction. Moreover, a false pretense by which the property is obtained must relate to a past or existing fact or set of circumstances. A false pretense as to future acts or events will not support a conviction under the statute. A mere promise to do an act in the future is not a false pretense under the statute unless at the same time the person also makes material false representations as to existing or past facts.
“A false pretense may be made by implication as well as by words written or spoken. Under some circumstances, silence may constitute false pretenses. For instance, silence and acquiescing in another’s statements knowing that those statements are false may constitute a false pretense if that silence implies an affirmation of such statements and if that affirmation is engaged in with the intent to defraud another and thus obtain property of another. The mere expression of an opinion does not make the person expressing it guilty under the statute, but if one knows an opinion to be wrong, the matter is, as to him, not an opinion but an existing fact. . . .
“The second element is that, in making the representation, the defendant knew of its falsity. That is, that the defendant knew the statement was false at the time that he made it and that he made it with the intent to defraud.
“The third element is that the defendant intended to defraud the particular store—the first, count would be Coach, and the second count would be Lowe’s. This requires that I instruct you on the meaning of intent and how it may be proven.
“Intent relates to the condition of mind of the person who commits the act, his purpose in doing it. As defined by our statute, a person acts intentionally with respect to a result of the conduct when his conscious objective is to cause such result or to engage in such conduct.
“What aperson’s intention has been is very largely a matter of inference. No witness can be expected to come here and testify that he looked into another person’s mind and saw therein contained a certain intention. A jury can determine what a person’s intention was at any given time by determining what that person’s conduct was and what the circumstances were surrounding that conduct and from those things infer what his intention was. An intent may be inferred from circumstantial evidence, provided such inference is reasonable and isn’t warranted by facts that you find proven.
“Intent to defraud may be difficult to prove beyond a reasonable doubt by direct evidence, but it may be inferred from the defendant’s conduct. You may, if you find it reasonable and logical, infer the [necessary] intent to defraudfrom the circumstances and from what was done by the accused.
“The fourth element is that the particular store was, in fact, induced by the defendant’s intentionally false representation to act to their ipjuiy. This means that it must be proven that the particular store—in the first count it would be Coach or in the second count it would be Lowe’s—believed the false statement and relied on it and acted on that reliance by giving the defendant the goods or merchandise.
“The fifth element is that the false representation or statement was the effective cause of the defendant receiving something of value without compensation. The defendant must have obtained property of value exceeding $10,000. The word obtain here includes bring about the transfer of property [to] the defendant. The word property includes money, and the value of cash is its face value.” (Emphasis added.)
State v. Golding, supra,
There was evidence, however, that when he was apprehended, the defendant told the police that Beethoven, the man who was with him at the time, was not involved. Having volunteered this statement to the police at the time of his arrest belies the defendant’s theory of defense.
“(1) Has been clearly advised of the right to the assistance of counsel, including the right to the assignment of counsel when so entitled;
“(2) Possesses the intelligence and capacity to appreciate the consequences of the decision to represent oneself;
“(3) Comprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case; and
“(4) Has been made aware of the dangers and disadvantages of self-representation.”
To the extent that the defendant has asserted a claim under the constitution of Connecticut, he has failed to provide an independent analysis of that claim. See State v. Geisler,
The identity theft charges as to Miller in this prosecution were not presented to the jury.
The jury returned a verdict of not guilty on the count of identity theft as to Seath, as it did on all counts charging identity theft.
Concurrence Opinion
concurring in part and dissenting in part. I agree with the analysis and conclusion reached by the majority in parts II and III and, accordingly, would affirm the judgment with respect to the conviction of the defendant, Brushaun Thompson, of failure to appear in the first degree in violation of
With respect to part I of the majority opinion, I agree that the failure of the trial court to instruct the jury on the issue of aggregation was reviewable pursuant to State v. Golding,
The jury was never instructed to consider whether the amounts stolen in the individual transactions were to be aggregated pursuant to
The majority points out that the existence of one scheme or common plan was not a hotly contested issue at trial, and I agree.
When arguing in its brief that the error was harmless, the state noted the following. The credit card numbers used, for the most part, were taken from customers
An analysis of case law suggests that the evidence in this case does not so overwhelmingly support the existence of one scheme or course of conduct that a failure to instruct on that issue is harmless. Our Supreme Court’s leading case in this area of the law is State v. Desimone,
In contrast, in State v. Browne,
In this case, for the jury to find the defendant guilty of larceny in the first degree, it had to aggregate transactions that occurred at different times. There is no doubt that the values of the goods ordered in each telephone transaction should be aggregated, and the defendant does not assert otherwise. Additionally, the evidence of one scheme or coruse of conduct may well have been sufficient to support the aggregation of the value of goods ordered in different telephone calls and received in different transactions had the court properly instructed the jury regarding aggregation. The transactions, however, occurred on different days and were accomplished by different calls and different deliveries. Although there was evidence that Spalding was to be generally available and the methods of the crimes were quite similar, a jury reasonably could have failed to reach the conclusion that the transactions were but steps effecting a single scheme, had it been so instructed. For example, the jury may not have believed the entirety of Spalding’s testimony; similarly, a reasonable doubt could have arisen from a hypothesis that the defendant’s intent to commit a subsequent transaction was not fully formed until just prior to its commission. There may have been other hypotheses consistent with the evidence. Consistent with State v. Desimone, supra,
For the foregoing reasons, I respectfully concur in part and dissent in part.
There does not appear to have been a formal concession that there was a common scheme; rather, the issue does not seem to have been addressed specifically. The majority aptly summarizes the positions of the parties at trial. Though the majority’s arguments fully support the notion that the element was not contested, they do not amount to a waiver or formal concession.
The majority suggests that I would rely on State v. Desimone, supra, 241 Conn. 439, for the “conclu[sion] that there was not one scheme or course of conduct.” Neither the Desimone court nor I reach such a conclusion. To the contrary, there was sufficient evidence on which a properly instructed jury could have concluded that the transactions were undertaken pursuant to one scheme or course of conduct.
In State v. Brown,
I have found no precise definition of the phrase “one scheme or course of conduct.” Cases such as State v. Desimone, supra,
The scenario is further complicated by the axiom that a jury may believe some, all or none of any witness’ testimony. Some of Spalding’s testimony, for example, regarding the defendant’s statements to him, may have been self-serving and to some degree disbelieved by the jury. As a reviewing court, we should not be left to speculate.
The majority suggests that a thief could take advantage of the reasoning of the concurring and dissenting opinion and avoid harsh punishment by serializing crimes. I would suggest that even such a well-read and erudite felon runs a great risk of being convicted of the greater degree of larceny by a properly instructed jury. The issue is not whether the evidence presented in this case is sufficient to convict.