State v. Brown, 35508.
| Decision Date | 14 October 2014 |
| Docket Number | No. 35508.,35508. |
| Citation | 101 A.3d 375,153 Conn.App. 507 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. Christopher BROWN. |
James B. Streeto, assistant public defender, for the appellant (defendant).
Rocco A. Chiarenza, assistant state's attorney, with whom, on the brief, were Matthew C. Gedansky, state's attorney, and Nicole I. Christie, assistant state's attorney, for the appellee (state).
LAVINE, SHELDON and BISHOP, Js.
The defendant, Christopher Brown, appeals from the judgment of conviction rendered against him after a jury trial on charges of conspiracy to commit burglary in the third degree in violation of General Statutes §§ 53a–48 and 53a–103, accessory to burglary in the third degree in violation of General Statutes §§ 53a–8 and 53a–103, conspiracy to commit larceny in the third degree in violation of General Statutes §§ 53a–48 and 53a–124, and accessory to larceny in the third degree in violation of General Statutes §§ 53a–8 and 53a–124. On appeal, the defendant claims that (1) the trial court erred in allowing the state to introduce evidence of his prior misconduct to prove his intent and motive to commit the charged offenses; (2) his conviction of certain charges violated his constitutional right against double jeopardy; and (3) the trial court's jury instructions on the essential elements of conspiracy were erroneous. We affirm the judgment of the trial court.
The following procedural history and evidence adduced at trial are relevant to our resolution of this appeal. In January, 2010, Gerald Hargrave and his wife, Carrie Hargrave, resided in a single-family home located at 6 Longview Street in Ellington. On January 10, 2010, Carrie Hargrave died. Shortly thereafter, Gerald Hargrave1 was admitted to a hospital as a result of a prescription drug overdose, for which he was still in the hospital on February 4, 2010, the date at issue, until he was discharged sometime later in February, 2010. While Hargrave was in the hospital, he gave his mother and brother the keys to his home so that they could clean and prepare it for his return from the hospital. As a part of their work in this regard, Hargrave's mother and brother intentionally removed all prescription drugs from the premises.
When Hargrave's mother visited the home on February 3, 2010, she did not notice anything out of order. All of the doors and windows were closed and locked when she left the premises that day. When she returned to the home on the next day, however, she noticed that several of her son's possessions had disappeared. The missing items included Hargrave's desktop computer, monitor and several related computer accessories, his surround sound system, his DVD/VCR player, his Xbox video game system and Xbox games, and his sixty-seven inch television. Hargrave later estimated that the total value of the missing items was approximately $6250.
While Hargrave was in the hospital, the defendant, Hargrave's cousin, conspired with Frederick E. Johansen to burglarize Hargrave's home and to steal property from it. According to Johansen's written statement, given to the police while in custody, the defendant told him that Hargrave had “piles of drugs” in the home, including prescription Oxycontin and Percocet
pills, informed him that he could “take the pills and whatever else you want,” and that he “could just go in [to Hargrave's home] because he had someone that would leave the door open” and instructed him to “do it on the fourth.”2 Johansen's written statement also recites that the defendant told Johansen that if he did all the “dirty work, [he] could keep most of the profit,” provided only that he gave the defendant “a couple of hundred dollars as kind of a finder's fee.”
On the morning of February 4, 2010, Johansen and Victor Kozubenko, drove in Kozubenko's car to Hargrave's home to retrieve the drugs that the defendant had said would be there. On their way, they gave a ride to Rockville to two of their friends, Frederick Colby and his wife, where Colby, a self-confessed drug addict and convicted criminal, was appearing as a defendant in a motor vehicle case. After dropping off the Colbys in Rockville, Johansen and Kozubenko drove directly to Hargrave's home in Ellington.
When Johansen and Kozubenko arrived at Hargrave's home, Johansen initially attempted to enter through the rear door, which he found to be locked, and then attempted to enter the home through the front door, which was also locked. According to Kozubenko's testimony, Johansen said that he had been told that the door would be open, but upon arriving at Hargrave's home, Johansen found, first, that the back door was locked, and next, that the front door was locked as well. Johansen searched for an unlocked window through which to enter the home. Although he found an unlocked window on the side of the home, he was unable to open it on his own. Kozubenko then suggested that Johansen look in the toolbox attached to the bed of a truck parked in the driveway to see if there was anything in there with which to open the window. Finding a screwdriver in the toolbox, Johansen used it to open the side window and gain entrance to the home. He then opened the back door to let Kozubenko enter the residence.
Upon realizing that there were no drugs in the home, Johansen told Kozubenko that he was also “supposed to sell all [of Hargrave's] stuff,” and so, on that pretext, he asked Kozubenko if he wanted to buy any of the items in the home. Johansen and Kozubenko then agreed that Kozubenko would give Johansen fifteen Oxycontin pills and $250 in cash in exchange for Hargrave's television, DVD/VCR player, computer, monitor and computer accessories, printer, Xbox and Xbox games and surround sound system. Johansen and Kozubenko then loaded the selected items in Kozubenko's car, and left some items in the garage of Kozubenko's mother's home in Manchester.
After purchasing rope at a hardware store, they drove back to Hargrave's house to retrieve the television. They placed a blanket on the roof of the car, placed the television on top of the blanket and tied the television in place with the recently purchased rope.3 With the television on the roof of the car, Kozubenko and Johansen picked up Colby and Colby's wife in Rockville and gave them a ride to Colby's house. When Colby asked Johansen about the television, Johansen explained that “he got it from my sister's house....” Colby testified that he then rode with Kozubenko to his mother's house in Manchester where he helped Kozubenko unload the television, computer and Xbox from Kozubenko's car and take the items into the house.
Colby's written statement to the police reveals that Johansen later explained that he and Kozubenko had stolen the television and other “stuff from [Hargrave's] house.” Johansen explained to Colby that Colby further explained in his statement that “[a]bout a week after I found out from [Johansen], I heard the same from [the defendant]....”
Several weeks later, the police obtained a warrant to search the home of Kozubenko's mother. Upon executing the warrant, the police found most of the items that had been taken from Hargrave's home and arrested Kozubenko. Shortly thereafter, Johansen was also arrested in connection with the Hargrave burglary and was taken into custody. The defendant was arrested on April 17, 2010, and charged, by way of long form information, with two counts of conspiracy to commit burglary in the third degree in violation of §§ 53a–48 and 53a–103, and two counts of conspiracy to commit larceny in the third degree in violation of §§ 53a–48 and 53a–124. The defendant was also charged, by way of a part B information, with having committed various crimes while on pretrial release in violation of General Statutes § 53a–40b. On May 10, 2011, the defendant pleaded not guilty to the first part of the information and elected to be tried by a jury.
Following trial, the defendant, on June 1, 2011, was convicted of all charges.4 The court then sentenced the defendant to a total effective term of ten years incarceration, execution suspended after six years, followed by four years probation. This appeal ensued.
The defendant first claims that the court abused its discretion in permitting the state to present evidence at trial of his prior misconduct because such evidence was not relevant to any disputed issue in the case, and, even if relevant, the prejudicial impact of this evidence outweighed its probative value. Finally, on this issue, the defendant claims that the court's admission of this evidence was not harmless error. We are not persuaded.
The following additional facts and procedural history are relevant to our resolution of this claim. On May 17, 2011, approximately one week before the start of evidence at trial, the state filed a detailed notice of its intent to introduce evidence of the defendant's prior bad acts against him at trial. Specifically, the state gave notice of its intent to offer evidence that on August 13, 2009, approximately six months before the Hargrave burglary and larceny, the defendant and one of his alleged coconspirators in the present crimes, Johansen, had jointly committed ten car burglaries in Litchfield, as described in an attached police report concerning those offenses and sworn written statements by Johansen and the defendant admitting to them. The state's purposes for introducing such prior misconduct evidence, as disclosed in its notice, were to demonstrate a system of criminal activity between the defendant and Johansen, to prove the elements of the crimes charged against the defendant involving conspiracy, and to establish a relationship between the defendant and Johansen as coconspirators.
The evidence submitted by the state in support of its notice showed, more particularly, that...
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