State v. Carcare

• Decision Date: 01 April 2003
• Docket Number: (AC 22173).
• Citation: 818 A.2d 53,75 Conn. App. 756
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. JOSEPH FRANCIS CARCARE.

75 Conn. App. 756

818 A.2d 53

STATE OF CONNECTICUT v. JOSEPH FRANCIS CARCARE.

(AC 22173).

Appellate Court of Connecticut.

Argued October 28, 2002.

Officially released April 1, 2003.

Schaller, West and Shea, Js. Dennis P. McDonough, special public defender, for the appellant (defendant).

Melissa L. Streeto, special deputy 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).

Opinion

WEST, J.

The defendant, Joseph Francis Carcare, appeals from the judgment of conviction, rendered after a jury trial, of burglary in the third degree in violation of General Statutes § 53a-103, credit card theft in violation of General Statutes § 53a-128c (a) and larceny in the fifth degree in violation of General Statutes § 53a-125a.¹ On appeal, the defendant claims (1) that the trial court improperly denied his motion to suppress items seized from his motor vehicle and his written statement to the police, (2) that the court denied his motion for a judgment of acquittal as to the charge of larceny in the fifth degree and (3) that there was insufficient evidence to support his conviction of larceny in the fifth degree.

The jury reasonably could have found the following facts. On June 20, 2001, between the hours of 10 a.m. and 1 p.m., a burglary was committed at a residence located at 102 East Pembroke Road in Danbury. At that time, William Gotthardt and Winifred Gotthardt, who lived at that address, were attending the funeral of their son, John Gotthardt (decedent), who had resided with them. When members of the family returned to the house, they discovered that someone had broken a window in the back door. At 1:20 p.m., a member of the family telephoned the Danbury police department to report the break-in.

By 2 p.m. both Jeffrey Lee, a Danbury police officer, and James Terry, a police detective, had arrived at the home. The officers noted that pieces of broken glass from the back door contained blood and fragments of hair, indicating that the perpetrator probably had been injured while breaking into the house. The family and the police officers walked through the house and discovered that the decedent's wallet, containing two credit cards, approximately $250 and miscellaneous identification, had been stolen. Clothing belonging to the decedent was also taken.

The decedent's sister reported the theft of the credit cards to the issuers of the cards shortly after 2 p.m. and was informed of recent activity on one of the decedent's accounts. Terry spoke to a representative of the credit card issuer and learned that the card had been used at a Citgo gasoline station in Danbury. Several purchases were made there in the name of the decedent. Terry instructed the issuer of the credit card to inform the family if additional charges were made to the account.

Terry left the home and called on several Citgo service stations in the vicinity. At 3:15 p.m., he discovered that the decedent's credit card had been used at the Citgo station on Main Street in Danbury. Terry obtained copies of the credit card receipts, which revealed that the purchases had been signed for in the name of the decedent. The attendant at the service station described the individual who had used the credit card as a Hispanic male, approximately twenty years old, driving a gold colored Hyundai.

Terry returned to the police station shortly after 4 p.m. to attend the shift change meeting and to provide information about the burglary to officers coming on duty at that time. Terry also met with Detective Robert Yakacki to inform him of the investigation and to provide him with a description of the suspect.

While he was at the station, Terry received information about additional use of the decedent's credit cards in the Danbury area. Terry learned that charges had been made on the cards at a BP gasoline station, a Bradlees department store, a Service Merchandise store, a Ritz Camera store and a Getty gasoline station. All of these businesses are adjacent to Newtown Road in Danbury. Terry left the police station to continue his investigation at these businesses. Yakacki went to patrol the vicinity of the gasoline service stations, hoping that the perpetrator of the crimes was still in the area.²

Terry's investigation revealed that beginning at about 3 p.m. that day, someone had made purchases with the decedent's credit cards at each of the aforementioned businesses. The individual making the purchases had used the cards by signing the decedent's name. An employee of Ritz Camera informed Terry that the person who had purchased a camcorder there was a well tanned white male, who was approximately sixty years old and wearing a red shirt.³

In the meantime, Yakacki had been patrolling Main Street in the area of the Citgo gasoline station. At approximately 6 p.m., he saw a gold colored Hyundai that matched the description of the suspect's vehicle. Yakacki recognized the individual in the operator's seat as the defendant, due to the defendant's extensive criminal past. Yakacki saw the Hyundai go through a red traffic control signal. Yakacki followed the vehicle and instructed the defendant to drive to the side of the road. Yakacki also observed a large box bearing a Bradlees sticker in the backseat of the vehicle. The box appeared to contain a television or other large appliance. Yakacki was aware that Bradlees was one of the businesses where the decedent's credit card had been used that afternoon because Terry had used his police radio to broadcast the results of his investigation.

Yakacki asked the defendant to produce his operator's license, which the defendant did. Yakacki saw a large gash on the defendant's left forearm and asked the defendant to step out of the vehicle.

Shortly after Yakacki stopped the defendant, Sergeant Adam Fernand of the Danbury police department arrived to assist Yakacki. Fernand, too, noticed the box bearing the Bradlees sticker in the rear of the vehicle, as well as a paper towel on the front seat that appeared to be covered with blood. Fernand also recognized the defendant from his prior arrests and asked the defendant whether there was anything in the vehicle that the officers should be concerned about, such as illegal drugs or weapons. The defendant responded in the negative. Fernand then asked the defendant for permission to search the vehicle. The defendant gave Fernand permission to search the vehicle. Almost immediately after Yakacki began his search, he found two of the decedent's credit cards behind a sun visor over the operator's seat. Fernand placed the defendant under arrest while Yakacki read him his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The officers transported the defendant to the Danbury police station.

At the police station, Terry met the defendant, whom he had known for ten years, and advised him again of his constitutional rights pursuant to Miranda. The defendant stated that he understood his rights and signed a notice of rights form. Terry interviewed the defendant, who gave Terry a written statement. In his statement, the defendant admitted that he was involved in the burglary and that he had used the decedent's credit cards to make purchases at Bradlees (television set), Service Merchandise (gold chain) and Ritz Camera (camcorder).

The jury returned a verdict of guilty, and the defendant received an effective sentence of ten years in prison and was required to make restitution of $250 to the victims of the burglary. The defendant appealed to this court. Additional facts will be addressed where they are needed.

I

The defendant first claims that the court improperly denied his motion to suppress the evidence found in his vehicle at the time Yakacki searched it and the written statement the defendant gave to Terry. The defendant argues that (1) his state and federal constitutional rights were violated by Yakacki, who did not have a reasonable and articulable suspicion to detain the defendant, (2) the defendant did not voluntarily consent to the search of his vehicle and (3) the evidence and his written statement, therefore, were the fruit of illegal police activity and should have been suppressed. We disagree with the defendant's claim.

Prior to the start of evidence at trial, the defendant filed a motion to suppress the evidence of the stolen credit cards and his written statement. The court conducted a suppression hearing on May 4, 2001, and rendered its decision orally from the bench the next court day. At the suppression hearing, the state offered the testimony of Lee, Terry, Yakacki and Fernand.

A

We first turn our attention to the procedural difficulties presented by the defendant's claim related to the motion to suppress. Practice Book § 64-1 provides that in ruling on a motion to suppress, the court shall state its decision orally or in writing. It also provides that if the decision is given orally and an appeal is taken, the court shall create a memorandum of decision by ordering the court reporter to transcribe the decision, which the court shall sign. Here, the court did not sign the transcript of its decision, and the defendant apparently took no steps to provide this court with a signed transcript of the trial court's decision. It is the appellant's responsibility to provide an adequate record for our review. Practice Book § 61-10; see State v. Duteau, 68 Conn. App. 248, 253, 791 A.2d 591 (setting out procedure for providing adequate record), cert. denied, 260 Conn. 939, 835 A.2d 58 (2002).

"While we do not condone the court's failure to comply with [Practice Book § 64-1] . . . we would not exalt form over substance if the deficiency were of a technical nature." (Internal quotation marks omitted.) State v. Duteau, supra, 68 Conn. App. 253. The defendant's failure to provide us with a signed copy of the court's...