State v. Caprilozzi

• Decision Date: 17 June 1997
• Docket Number: No. AC,AC
• Citation: 696 A.2d 380,45 Conn.App. 455
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Edward T. CAPRILOZZI. 15211.

Page 380

696 A.2d 380

45 Conn.App. 455

STATE of Connecticut v. Edward T. CAPRILOZZI.

No. AC 15211.

Appellate Court of Connecticut.

Argued March 20, 1997.

Decided June 17, 1997.

Robert P. Pickering, West Hartford, with whom, on the brief, was F. Mac Buckley, for appellant (defendant).

Peter A. McShane, Assistant State's Attorney, with whom, on the brief, was Kevin T. Kane, State's Attorney, for appellee (State).

Before EDWARD Y. O'CONNELL, LANDAU and MULCAHY, JJ.

EDWARD Y. O'CONNELL, Judge.

The defendant appeals from the judgment of conviction, following a jury trial, of larceny in the first degree in violation of General Statutes § 53a-122 and conspiracy to commit larceny in the first degree in violation of General Statutes §§ 53a-48 and 53a-122. The defendant claims that the trial court improperly (1) admitted a state's exhibit into evidence, (2) admitted evidence of a coconspirator's guilty plea and (3) admitted a conclusory hearsay opinion of a nonexpert witness into evidence. In addition, the defendant claims (4) that there was insufficient evidence to support his conviction on either count. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In June, 1994, Humprey Amedeo, the owner of Connecticut Beverage Company (CBC) located in Norwich, was informed that approximately 773 cases of beer were unaccounted for during the June, 1994 inventory. The defendant was employed at CBC as the day shift warehouse manager from June, 1992, to October, 1994. His duties and responsibilities included the day-to-day operation of the warehouse and the loading of delivery trucks. The defendant also participated in the inventory of stock. Inventory was required twice a year by the Liquor Control Commission and was conducted as follows: Two teams began at opposite ends of the warehouse, and each team conducted an independent inventory of the entire warehouse. When the two teams completed their counts, they met to determine if the numbers reconciled. If the two teams agreed, the numbers were recorded. If they did not agree, the teams recounted until the numbers reflected an accurate amount.

The following precautions were also used by CBC to prevent loss of stock. The night manager loaded the trucks and counted each load to ascertain that each truck contained the correct number of cases. The night manager signed a load sheet indicating the contents of each truck. The next morning, the day manager and the driver would verify the count and the day manager would sign off on the load sheet. A final count was conducted after any add-ons were placed on the trucks. Once the add-ons and final count were completed, the truck doors were closed and the truck left the warehouse to begin its delivery route.

As a result of the shortage disclosed by the June inventory, Amedeo ordered another inventory in September, 1994. That inventory, conducted in the same manner as the semiannual inventories, revealed an additional shortage of 408 cases of beer. When Amedeo apprised the defendant of the June inventory shortage, the defendant responded that there must be a bookkeeping error.

Following discovery of the inventory shortage, Amedeo hired a private investigator, Arthur Heely, to help determine the cause of the inventory loss. Heely eventually focused on Eric Finley, one of the drivers, and followed him on his delivery route. On September 26, 1995, Heely observed Finley taking a case of beer from his truck and placing it in the trunk of a car belonging to Beansy Carrigan.

When Heely confronted Finley, Finley admitted that he and the defendant were involved in a scheme to steal beer for their personal use as well as to sell to package store owners. Finley testified that he and the defendant had loaded extra cases onto Finley's truck without accounting for them. The defendant would sign off on the load sheet despite the additional cases on the truck. Finley would then sell them to people along his route for cash, and he and the defendant would divide the money. This scheme continued for ten to eleven months, during which Finley and the defendant earned approximately $700 each per month. The defendant warned Finley that they should stop stealing the beer because the "inventory was really messed up."

I

The defendant first claims that the trial court improperly admitted into evidence a state's exhibit that consisted of a computer generated inventory control sheet bearing handwritten calculations. The state argued that the exhibit was admissible under the business exception to the hearsay evidence rule contained in General Statutes § 52-180. A hearsay document may be admitted into evidence if (1) it was made in the regular course of business, (2) it was the regular course of business to make such a writing, (3) and the writing was made at the time of the transaction or occurrence or within a reasonable time thereafter. Id.

The defendant contends that the business entry exception does not apply in the present case because the exhibit was prepared in anticipation of litigation. For purposes of this decision, we assume, without deciding, that a statement prepared to support an insurance claim is the equivalent of a document prepared in anticipation of litigation. The defendant relies on Amedeo's testimony that the exhibit was prepared in order to submit a claim to his insurance company. Accordingly, the defendant argues that the exhibit does not meet the requirements (1) that it be prepared in the regular course of business and (2) that it was the regular course of business to make the exhibit. We are not persuaded.

Appellate review of business entry claims is limited to determining whether the trial court abused its discretion in ruling that a document qualified under § 52-180. River Dock & Pile, Inc. v. O & G Industries, Inc., 219 Conn. 787, 795, 595 A.2d 839 (1991). That statute is to be liberally construed and records will not be excluded where the statutory requirements can reasonably be assumed to have been met. Jefferson Garden Associates v. Greene, 202 Conn. 128, 141, 520 A.2d 173 (1987); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.1988) § 11.14.3, p. 386.

Even if the challenged exhibit was prepared solely for litigation, its exclusion would not be automatic. "The generally accepted view ... is that documents prepared for litigation are excluded, not on a per se basis, but rather upon an inquiry into whether such documents bear circumstantial indicia of lack of trustworthiness. In the exercise of appropriate discretion, courts may exclude such records where they are self-serving and a motive for falsification can be demonstrated.... Although this court has recognized that the trustworthiness of business records, under § 52-180, comes from their being used for business and not for litigation ... we have not thereby mandated the exclusion of multipurpose documents that have ancillary utility in subsequent litigation. We have emphasized, instead: that § 52-180 should be liberally construed ... that the essential hallmark of admissibility under § 52-180 is the trustworthiness of the document ... and that appellate review in these cases is limited to ascertaining whether the trial court abused its discretion." (Citations omitted; internal quotation marks omitted.) Jefferson Garden Associates v. Greene, supra, 202 Conn. at 140-41, 520 A.2d 173.

Despite Amedeo's testimony that he was planning to submit an insurance claim, it was within the trial court's discretion to determine whether the statute was satisfied. We attach no significance to the facts that the purpose of the January and June inventories, also admitted as exhibits, was to satisfy state liquor control commission requirements and that the impetus of the September inventory, the challenged exhibit, was to identify the reason for the shortage that came to light in the June inventory. It is reasonable that a warehouse business would inventory the content of its warehouse and that records of the inventory would be made. The September, 1994 inventory was conducted in the same manner as the semiannual inventories. We conclude, therefore, that the challenged inventory record contained sufficient indicia of reliability and trustworthiness for the trial court to allow its admission under the business record exception to the hearsay rule.

The defendant also argues that the exhibit was inadmissible for the reason that Amedeo's notes and calculations were written at the bottom of the page. Amedeo explained that the calculations were of the amount of his loss, the multiplication of the wholesale price by the number of cases missing. It was necessary that the state prove the value of the property alleged to have been stolen, and these calculations could have been performed in the presence of the jury. Accordingly, it is irrelevant that the calculations had been performed in advance and appeared as notations on the computer sheets.

The trial court did not abuse its discretion in admitting into evidence the computer printout of the inventory.

II

The defendant next complains that the trial court improperly allowed the state to question Finley, the defendant's coconspirator, concerning his guilty plea to a similar charge. The defendant concedes that he did not object to this line of questioning, nor did he request a curative instruction. During his cross-examination, the defendant asked Finley six questions concerning his conviction.

Notwithstanding his failure to preserve the claim, the defendant seeks appellate review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), ¹ or under the plain error doctrine. Practice Book § 4061 (formerly § 4185). ²

To qualify for Golding review, the defendant's claim must meet all four Golding conditions and the appellate tribunal is free to respond to the claim by focusing on whichever condition is most relevant in the particular case. State v. Golding, supra, 213...