State v. Conroy

• Decision Date: 04 December 1984
• Citation: 194 Conn. 623,484 A.2d 448
• Parties: STATE of Connecticut v. Kevin CONROY.
• Court: Connecticut Supreme Court

Page 448

484 A.2d 448

194 Conn. 623

STATE of Connecticut v. Kevin CONROY.

Supreme Court of Connecticut.

Argued Oct. 3, 1984.

Decided Dec. 4, 1984.

Daniel D. Skuret, Ansonia, with whom were Ronald Stankye and, on the brief, Michael Moher, Seymour, for appellant (defendant).

William Domnarski, Deputy Asst. State's Atty., with whom, on the brief, was Susan Moch, Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and HEALEY, SHEA, DANNEHY, and SANTANIELLO, JJ.

DANNEHY, Associate Justice.

The defendant, Kevin Conroy, was convicted by a jury of the crimes of burglary in the third degree in violation of General Statutes § 53a-103 ¹ and larceny in the third degree in violation of General Statutes § 53a-124. ² On this appeal, the defendant claims the trial judge erred when he: (1) allowed evidence for which an adequate chain of custody had not been established; (2) admitted prejudicial hearsay testimony; (3) admitted expert testimony for which a proper foundation had not been laid; (4) excluded evidence of a third party's involvement in the alleged crimes; and (5) threatened, in the presence of the jury, to hold defense counsel in contempt of court. ³ We find no error.

The jury could reasonably have found the following facts. Sometime between the afternoon of August 11, 1980, and the afternoon of August 12, 1980, a house located at 127 Hurley Road in Oxford was forcibly entered. The glass in the two windows adjacent to the back door was broken and entry gained through one of the windows. A television set, a radio, a camera, money and two calculators that were in the house were stolen. Several fingerprints found on a storm window and a single fingerprint found on a piece of broken window glass were identified as those of the defendant. The defendant offered an alibi defense.

I

The defendant's first claim of error concerns the admission into evidence of the storm window upon which his fingerprints were found. ⁴ The defendant argues that the state failed to lay a foundation which adequately established the identity and unchanged condition of the glass from the time it was removed from the victim's house to the time it was presented at trial, and that therefore the admission of the window into evidence was error. We disagree.

The Connecticut state trooper who initially investigated the crime, Richard Connors, testified that he dusted the window and discovered fingerprints thereon. He then removed the window, marked it with an evidence tag, and stored it in a locked safe in his office where it remained until he brought it to the evidence locker of the Southbury state police barracks. Trooper Dennis Coyle testified that he transported the window from this evidence locker to the state forensic laboratory in Meriden; there, he gave it to Trooper Ronald Luneau. Luneau testified that he received and studied the window at the laboratory; and Trooper Thomas Guyette testified that he picked up the window from Luneau, and returned it to the evidence room at the Southbury barracks. Connors, Coyle, Luneau and Guyette each identified the window in court, and all but Luneau stated that it was in substantially the same condition as when it had been in their possession.

When the authenticity of an article of evidence is challenged, "[t]here is no hard and fast rule that the prosecution must exclude or disprove all possibility that the article ... has been tampered with; in each case the trial court must satisfy itself in reasonable probability that the [article] had not been changed in important respects." State v. Johnson, 162 Conn. 215, 232, 292 A.2d 903 (1972). Here, although there was no direct testimony describing the storage of the window while it was at the laboratory in Meriden or in transport from the Southbury barracks to the court, every other link in the chain of its custody was carefully established. There was also ample testimony establishing the window's unchanged condition as produced at trial. Given this record, the trial court did not abuse its discretion in admitting the window into evidence. See State v. Asherman, 193 Conn. 695, 722, 478 A.2d 227 (1984); State v. Piskorski, 177 Conn. 677, 696-97, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S.Ct. 283, 62 L.Ed.2d 194 (1979).

II

The defendant next maintains that the trial court erroneously admitted evidence that was both hearsay and prejudicial when it allowed Connors to testify that he "received a phone call from Sergeant Tucci, of the Woodbridge Police Department, in regards [sic] to Kevin Conroy being involved in burglaries." The state concedes that the admission of this testimony was error, but contends that the error was harmless. We agree that the error was harmless.

It is well settled that evidence of similar but unconnected crimes is generally not admissible to prove a criminal defendant's guilt. Such evidence can show no more than the defendant's bad character or an abstract disposition to commit a crime; it provides no proof of guilt of the specific offense in question. State v. Gilligan, 92 Conn. 526, 531, 103 A. 649 (1918); see State v. Esposito, 192 Conn. 166, 169, 471 A.2d 949 (1984). Given the state's concession of error, the sole issue is whether the admission of Connors' testimony prejudicially affected the jury's verdict. See State v. Tropiano, 158 Conn. 412, 427, 262 A.2d 147 (1969), cert. denied, 398 U.S. 949, 90 S.Ct. 1866, 26 L.Ed.2d 288 (1970). Because the defendant did not claim at trial that the error deprived him of a constitutional right, he bears the burden of proving its harmfulness. ⁵ State v. Januszewski, 182 Conn. 142, 174, 438 A.2d 679 (1980). Relying only on a conclusory statement of prejudice, the defendant has failed to meet this burden. The challenged testimony conveyed to the jury the general idea that the defendant was thought by another police officer to have been "involved" in other burglaries. Neither the details of the alleged involvement nor the basis for Tucci's belief were alluded to before the jury. Mention of the telephone call was made only once during the state's case and never repeated. ⁶ Moreover, it was made in the course of Connors' explanation of how he conducted his investigation into the crime, not as part of an attack on the defendant's character. The defendant failed to request a cautionary instruction which would have emphasized to the jury the limited purpose of the testimony. This failure further weakens the defendant's claim of prejudice. See State v. Falcone, 191 Conn. 12, 23 n. 13, 463 A.2d 558 (1983). The admission of this testimony, even though error, was harmless.

III

In his next claim of error, the defendant contends that the trial court erred in allowing the expert testimony of Luneau a certified latent fingerprint examiner. The defendant argues that Luneau's conclusion that the fingerprints found on the glass removed from the scene of the burglary matched the fingerprints of the defendant was inadmissible because it was not made in response to a hypothetical question. We do not agree.

Luneau was qualified without objection as an expert witness. He testified that he took photographs of sixteen fingerprints found on the glass and compared the photographs with a police card bearing the defendant's fingerprints. Further, he testified that he also prepared a chart, exhibited to the jury, which made a point-by-point comparison of an enlargement of one of the fingerprints found on the glass with an enlargement of one of the defendant's fingerprints. ⁷ Luneau was then asked if he had arrived at any conclusion as a result of his examination. He answered that the fingerprints found on the glass were identical to those of the defendant. Luneau's answer was based on the personal knowledge he had acquired through observation and study of the relevant evidence. It was therefore perfectly proper to elicit his testimony through direct questioning. That many experts must rely on the observations of others in the formation of their ultimate opinion is no reason to require one with actual, first-hand knowledge to testify in response to a hypothetical query. See Donch v. Kardos, 149 Conn. 196, 201, 177 A.2d 801 (1962); Tait & LaPlante, Handbook of Connecticut Evidence (1976) § 7.16(f).

IV

The defendant next raises the issue of his unsuccessful attempts to introduce evidence that one Lawrence Munko had participated in the crime. First, the defendant's attorney asked Connors: "Now, of your own personal knowledge, do you know of anyone else convicted of this crime of burglary and larceny, on August 12, 1980, of the property at 127 Hurley Road, in Oxford?" Later, defense counsel asked the defendant: "Now, at the time Lawrence Munko testified in December of 1980, in this court [at a trial of the defendant for a separate charge of burglary] did he also make admissions with regard to the crime, or did he actually make--did he give testimony with regard to the crime which was--you're being tried right now?" The trial court sustained the state's objections to both questions. The defendant argues that these exclusions were error in that they prevented him from presenting exculpatory evidence. The defendant further argues that the trial court's rulings were erroneous because they precluded him from laying a foundation for a request to charge that the jury could draw an inference adverse to the state from its failure to call Lawrence Munko as a witness. Neither argument is persuasive. ⁸

A

The defendant contends that the excluded evidence was admissible under an exception to the hearsay rule as a statement against penal interest exculpatory to the defendant. ⁹ This court delineated the requirements for the admission of such a statement in State v. DeFreitas, 179 Conn. 431, 426 A.2d 799 (1980), and again in State v. Gold, 180 Conn. 619, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S.Ct. 320, 66 L.Ed.2d 148 (1980). A prerequisite to the use of this exception is the unavailability of...