State v. Cari

Citation303 A.2d 7,163 Conn. 174,72 A.L.R.3d 608
CourtConnecticut Supreme Court
Decision Date24 May 1972
Parties, 72 A.L.R.3d 608 STATE of Connecticut v. Anthony CARI.

Thomas F. Keyes, Jr., New Haven, for appellant (defendant).

Jerrold H. Barnett, Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty., John F. Mulcahy, Jr., and Robert K. Walsh, Asst. State's Attys., for appellee (state).

Before HOUSE, C.J., and RYAN, SHAPIRO, LOISELLE and FITZGERALD, JJ., concuring.

HOUSE, Chief Justice.

The defendant Anthony Cari was tried by a jury and found guilty of the crime of arson in violation of § 53-83 of the General Statutes and of the crime of having a dangerous or deadly weapon in a motor vehicle in violation of $29-38 of the General Statutes. The court denied the defendant's motion to set aside the verdict on the grounds that it was against the law and the evidence, because of claimed errors in the charge and because of claimed errors in in rulings by the court, and also denied the defendant's motion for judgment notwithstanding the verdict. From the judgment rendered on the verdict, the defendant has appealed assigning error in the court's denial of these motions as well as certain other errors claimed to have occurred in the course of the trial.

The ruling on both motions is tested in light of the evidence printed in the appendices to the briefs. State v. Mortoro, 157 Conn. 392, 393, 254 A.2d 574; State v. Gyuro, 156 Conn. 391, 397, 242 A.2d 734, cert. denied,393 U.S. 937, 89 S.Ct. 301, 21 L.Ed.2d 274; Kingston v. Blake, 151 Conn. 714, 715, 201 A.2d 460.

The appendices properly disclose the relevant evidence submitted to the jury. Practice Book §§ 716-722. From this evidence the jury could have found the following facts: About 11:45 p.m. on May 30, 1968, Robert A. Patchell was working as a bartender at the Dogwood Inn on the Boston Post Road in the town of Orange, Connecticut. While looking out of the window facing the highway, he saw a Cadillac automobile stop directly across the street facing in the direction of Milford. A man was standing outside the car and appeared to be looking for something in the back seat.

Patchell then stopped watching the car and began to close the restaurant. As he was about to go from the dining room to the barroom, there was a big flash in the barroom. Patchell ran to the front door and observed a man dressed in a light shirt and dark pants running away. The man was about sixty feet away when he was first observed, running in a westerly direction. The Cadillac automobile which Patchell had observed previously had moved down the road about 300 to 500 feet in a westerly direction. Patchell then returned to the dining room and after attempting to extinguish the blaze called the Orange police. As Patchell was waiting outside the tavern for the police to come, the same Cadillac automobile drove by and two men in the car yelled something to him. When the police arrived, he described the car as a 1957 two-door Cadillac, light colored with a dark top.

Later, about 1:15 a.m., Police Officer Robert A. Gimler was traveling east on the Post Road when he observed a Cadillac automobile meeting the description furnished by Patchell turning around in the parking lot of Art's Package Store. Simultaneously Officers Joseph Cybart and Robert F. Stankye arrived in their automoile at the scene and observed the same Cadillac automobile noted by Officer Gimler. Officer Gimler was the first to reach the vehicle, followed soon thereafter by Officers Cybart and Stankye. Officer Gimbler blocked the path of the automobile from the front, slightly to the driver's side, and radioed to police headquarters. Officer Stankye pulled to the right side of the vehicle about eight to ten feet away.

As Officers Stankye and Cybart drove up, both of them observed the operator of the Cadillac lean over the front seat, open the door on the passenger's side slightly and drop a bottle to the ground. Officers Cybart and Gimbler removed the defendant from the automobile while Officer Stankye went to the passenger side of the vehicle and picked up a soda bottle which contained gasoline with stuffing material in the top. The defendant was then arrested and the Cadillac automobile was searched on the scene. In the trunk were found a shotgun with a portion of the barrel sawed off, several boxes of shotgun shells of a type which could be used in the weapon and three knives. There was a shell in the chamber of the shotgun at the time it was found.

The defendant's first claim of error is that the state, on the evidence presented at trial and as summarized above, failed to prove the guilt of the defendant beyond a reasonable doubt and thus the court erred in rendering judgment on the verdict and denying the defendant's motions for a directed verdict and for judgment notwithstanding the verdict. In support of his contention, the defendant relies on the test we reiterated in State v. Kelsey, 160 Conn. 551, 553, 274 A.2d 151: 'It is fundamental that '(t)he trier may not reach a conclusion of guilt where the facts, established by the evidence, including those reasonably and logically inferred from other proven facts, are rationally consistent with the innocence of an accused. A conclusion of guilt requires proof beyond a reasonable doubt, and proof to that extent is proof which precludes every reasonable hypothesis except that which it tends to support, and is consistent with defendant's guilt and inconsistent with any other rational conclusion.' State v. Foord, 142 Conn. 285, 295, 113 A.2d 591, 596; State v. Annunziato, 145 Conn. 124, 136, 139 A.2d 612.' State v. Reid, 154 Conn. 37, 40, 221 A.2d 258, 259.' In that case the decisive question was whether the identification of the defendant Kelsey's automobile was, by itself, and without evidence of Kelsey's presence at the scene, sufficient evidence to support a conviction. Unlike that situation, in the case at bar there was evidence not only that an automobile similar to the defendant's was in the vicinity of the Dogwood Inn when the crime was committed but also that the defendant, when later apprehended, had in his possession materials of the type that are commonly used in the commission of the crime of which he was accused. In addition, the defendant was dressed in a manner fitting the description of the man Patchell had seen get out of the Cadillac automobile just a few seconds before the flash fire. Furthermore, there was evidence that the defendant, shortly before he was arrested, had returned to the scene to view the damage done to the Dogwood Inn.

While none of these facts taken singly is decisive on the issue of guilt, their cumulative effect was sufficient to permit the jury to find that the defendant's guilt had been proved beyond a reasonable doubt. There is no legal distinction between direct and circumstantial evidence so far as probative force is concerned. State v. McGinnis, 158 Conn. 124, 129, 256 A.2d 241.

The defendant's second assignment of error is that the court erred in charging the jury as follows: 'Now, it is the sworn duty of Courts and jurors to safeguard the rights of persons charged with crime by respecting the presumption of innocence which the law imputes to every person so charged. But the law is made to protect society and innocent persons and not to protect guilty ones. If this presumption of innocence has been overcome or removed by evidence clearly demonstrating beyond a reasonble doubt that the accused person is guilty of the crime charged, then it is the sworn duty of the jury to enfore the law which is made for the protection of life, society and property and to render such a verdict as the evidence warrants.' It is the claim of the defendant that a statement of this nature was improper because it tended to weaken the effect of the instruction on presumption of innocence which had been emphasized in an earlier portion of the charge.

The defendant has cited several cases from other jurisdictions which tend to support his claim. See Shaw v. United States, 244 F.2d 930, 17 Alaska 1 (9th Cir.); Gomila v. United States, 146 F.2d 372 (5th Cir.); Chinn v. State, 210 So.2d 666 (Miss.); Martinez v. People, 172 Colo. 82, 470 P.2d 26, 29; State v. Romeo, 42 Utah 46, 128 P. 530. On the other hand, the overwhelming majority of courts have held that statements in a charge which instruct the jury that the presumption of innocence is designed to protect the innocent and not to aid the guilty are proper. See United States v. Farina, 184 F.2d 18, 20 (2d Cir.), cert. denied, 340 U.S. 875, 71 S.Ct. 121, 95 L.Ed. 636, rehearing denied, 341 U.S. 928, 71 S.Ct. 795, 95 L.Ed. 1359; Moffitt v. United States, 154 F.2d 402, 404 (10th Cir.), cert. denied, 328 U.S. 853, 66 S.Ct. 1343, 90 L.Ed. 1625; State v. Farnsworth, 51 Idaho 768, 10 P.2d 295; People v. Dowling, 95 Ill.App.2d 223, 238 N.E.2d 131; Turner v. State, 102 Ind. 425, 1 N.E. 869; State v. Barnes, 202 Kan. 21, 446 P.2d 774; State v. Hanlon, 38 Mont. 557, 100 P. 1035; State v. Gee Jon, 46 Nev. 418, 211 P. 676, 217 P. 587; Lofton v. State, 489 P.2d 1169, 1174 (Wyo.); Carrillo v. State, 474 P.2d 123, 124 (Wyo.), cert. denied, 401 U.S. 921, 91 S.Ct. 907, 27 L.Ed.2d 823.

We continue to be in accord with the majority view that the charge as given was proper and correct since it was used in conjunction with clear instruction both as to the presumption of innocence and as to the duty of the state to prove beyond a reasonable doubt the defendant's guilt of the crimes with which he is charged. State v. Colonese, 108 Conn. 454, 459, 143 A. 561.

The defendant's third assignment of error is that the trial court erred in instructing the jury that '(f)requently, evidence relating to a claimed alibi will consist in part at least of the testimony of witnesses who are related to or are friends or associates of the accused and who may therefore be held to be in a greater or less degree interested. The liability of the...

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