State v. Russell

• Decision Date: 22 May 2007
• Docket Number: No. 26026.,26026.
• Citation: 922 A.2d 191,101 Conn.App. 298
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Leslie RUSSELL.

922 A.2d 191

101 Conn.App. 298

STATE of Connecticut v. Leslie RUSSELL.

No. 26026.

Appellate Court of Connecticut.

Argued October 27, 2006.

Decided May 22, 2007.

Eugene J. Riccio, Bridgeport, with whom was Richard Emanuel, New Haven, for the appellant (defendant).

James M. Ralls, assistant state's attorney, with whom, on the brief, were Walter D. Flanagan, state's attorney, and Warren C. Murray, supervisory assistant state's attorney, for the appellee (state).

FLYNN, C.J., and ROGERS and PELLEGRINO, Js.

ROGERS, J.

The defendant, Leslie Russell, appeals from the judgments of conviction, following a jury trial, of two counts of stalking in the third degree in violation of General Statutes § 53a-181e (a),¹ two counts of criminal violation of a protective order in violation of General Statutes § 53a-223 (a)² and one count of burglary in the second degree in violation of General Statutes § 53a-102 (a)(1).³ He claims on appeal that the evidence presented at trial was insufficient to support his conviction on each of these charges. The state concedes that the evidence was insufficient as to one count of stalking in the third degree but contests the defendant's claims as to his conviction of the remaining charges. We agree with the parties that the conviction of one of the stalking charges lacks evidentiary support and conclude further that the state failed to prove that the defendant committed burglary but disagree with the defendant's remaining claims. We therefore affirm in part and reverse in part the judgments of the trial court.

The defendant's convictions stem from his conduct toward the victim over a period of years. In regard to those actions, the jury reasonably could have found the following facts. The defendant and the victim, a mother of triplets who was separated from her husband, met some time in 2001 and dated on again, off again until January, 2003, when the victim finally broke off the relationship. The defendant continued to pursue the relationship by writing to the victim and sending her flowers, but the victim did not respond.

On February 27, 2003, at approximately 11:30 p.m., the victim was in the dining room of her home in Newtown, reading while her children slept upstairs. The weather was bitterly cold, and the victim heard crunching noises in the frozen snow on the ground outside. She saw a "dark figure" looking through her dining room window. Thinking it was a burglar, she called 911, and police responded shortly thereafter to find her upset and frightened.

Outside, the police found footprints near the dining room window that led off into a wooded area. The footprints led generally in the direction of Old Gate Lane, a nearby street. The police followed the footprints and, along the way, discovered a black knit hat and a flashlight.

While speaking with the victim, the police indicated that they were checking on a car parked on Old Gate Lane that was registered to an individual named Leslie Russell, i.e., the defendant. Upon receiving that information, the victim explained that she had been dating that individual and that he probably had come by to leave something in her mailbox.⁴ In the presence of the police, she called the defendant's cellular telephone and left him a voice message, informing him that the police had found his car and were looking for him. After leaving the victim's house at about 2 a.m., the police went to the defendant's home, also in Newtown, but he was not there.

The following morning at approximately 8 a.m., police were dispatched to a commuter parking lot off Interstate 84 in Newtown in response to a report of a disoriented man who had called 911 from a pay telephone. The disoriented man was the defendant. The lot was five to six miles from the victim's home. The defendant appeared dazed and was unsure how he had gotten to the commuter lot. He complained of head and leg pain but had no visible injuries and refused treatment. The defendant last recalled driving or parking his car near the victim's house.⁵ He told the police that he often drove by the victim's house, or parked in the neighborhood and walked by, at various times such as before and after his workday or on his lunch hour. The defendant characterized his visits as "therapy for him" and acknowledged that the victim, who was unaware of those visits, would be upset if she knew. Thereafter, the police informed the victim of the defendant's frequent drives past her home.⁶

That same morning, the police photographed the defendant's car, which remained parked on Old Gate Road. On the front passenger seat, the police photographer observed what appeared to be a black knit ski cap with eye and mouth holes cut into it. A neighborhood resident who looked in the car also saw a ski mask on the seat, as well as a flashlight. According to that neighbor, the defendant's car had been parked there frequently, beginning in July, 2001.⁷

As a result of the foregoing events, the defendant was arrested and charged with stalking in the third degree.⁸ When he was arraigned on that charge on March 17, 2003, a protective order was issued pursuant to General Statutes § 54-1k.⁹ See footnote 2. The protective order required the defendant to refrain from, inter alia, stalking the victim, entering her dwelling or coming within 100 yards of her.

The next incident underlying the defendant's conviction occurred about seven months later, on October 5, 2003. At that time, the victim was a Girl Scout leader, and two of her children were Girl Scouts. On the weekend of October 4 and 5, 2003, the victim, her daughters and the rest of their troop went camping at Housatonic Meadows State Park (campground) in Sharon, which is forty-five minutes to an hour from Newtown. On Saturday, rain fell torrentially, so the group, after setting up camp, decided to return home to Newtown. On Sunday, they returned to the campground. At approximately 2 p.m., the defendant approached the group's campsite and began speaking with two of the adult troop leaders. At the time he approached the campsite, the victim was in a nearby restroom.

While the defendant and the troop leaders spoke, one of the victim's daughters walked up and stated that she knew the defendant, referring to him by name. The defendant looked at the daughter and smiled but did not respond otherwise. One of the adults, Donna Herring, recognized the name and was aware that there was a protective order requiring the defendant to stay away from the victim. When the victim emerged from the bathroom, Herring intercepted her, informed her that the defendant was there and led her behind a van that was parked near the campsite. The defendant continued to speak with the other leader and, after giving the group a bag of tomatoes, walked away from the campsite. He had been present at the victim's campsite for about ten minutes.

The victim immediately reported the incident to the state police.¹⁰ A warrant was issued for the defendant's arrest, and he was charged with one count of criminal violation of a protective order. At the defendant's arraignment on November 18, 2003, a second protective order was issued that contained prohibitions similar to those in the March 17, 2003 protective order. The defendant later was charged in a substitute information with an additional count of stalking in the third degree in connection with the campground incident.

Given the defendant's appearance at the remote campground, the victim was concerned that he was somehow privy to her schedule. Accordingly, she purchased a "spy camera" disguised as a flower pot, which she installed on top of her refrigerator. Images captured by the camera were recorded on a videocassette recorder located in the victim's bedroom. The camera faced a clock and the victim's wall calendar, on which she recorded many of her and her children's planned appointments and events.¹¹

On the evening of Friday, January 9, 2004, the victim went out to dinner with some friends. Her children were with their father, as was usual on Fridays, a fact of which the defendant was aware. When the victim returned home at about 11 p.m., she played the videotaped footage that her camera had recorded while she was out. The tape showed that between 10 and 10:40 p.m., an individual, whom the victim recognized as the defendant,¹² had moved throughout the kitchen and, apparently, elsewhere within the house. At the outset, the individual exited the kitchen through a passage leading to the victim's family room, where she kept a large dog crated. While in the kitchen, the individual repeatedly looked through the victim's calendar, and he removed her telephone from the wall and accessed information in its caller identification unit. He opened a set of louvered doors behind which the victim kept a bag containing discarded mail for recycling. The individual looked through the bag, removed some of the papers from within and tucked them into his waistband near the small of his back. Although $106 in cash was secured to the front of the victim's refrigerator, the individual did not take it.

After viewing the tape, the victim locked herself in her bedroom and called the police. When the police arrived, the victim urged them to check the house for an intruder. No intruder was found, and there were no signs of forced entry. On the basis of information supplied by the victim, a search warrant was obtained for the defendant's vehicle and residence. Upon executing that warrant, the police seized several flashlights, a black knit cap and a gray hooded sweat jacket with rubber gloves in the pocket that was hanging on the defendant's bedpost. They photographed a pair of two-toned "duck" boots that were in the defendant's bedroom. The police did not recover a dark hooded coat or any personal papers of the victim. See footnote 12. When asked by police whether he had a key to the victim's house, the defendant immediately retrieved from a ring a key that matched a key the victim had...