State v. Damato

• Decision Date: 22 January 2008
• Docket Number: No. 27129.,27129.
• Citation: 105 Conn.App. 335,937 A.2d 1232
• Parties: STATE of Connecticut v. Gary R. DAMATO.
• Court: Connecticut Court of Appeals

937 A.2d 1232

105 Conn.App. 335

STATE of Connecticut v. Gary R. DAMATO.

No. 27129.

Appellate Court of Connecticut.

Argued September 24, 2007.

Decided January 22, 2008.

Gary R. Damato, pro se, with whom were Cyd O. Oppenheimer and Richard A. Reeve, special public defenders, and, on

the brief, Michael O. Sheehan and George G. Kouros, special public defenders, for the appellant (defendant).

Leon F. Dalbec, Jr., senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, James E. Thomas, former state's attorney, and Michael A. Gailor, executive assistant state's attorney, for the appellee (state).

McLACHLAN, HARPER and LAVINE, Js.

McLACHLAN, J.

The defendant, Gary R. Damato, appeals from the judgment of conviction, rendered after a jury trial, of inciting injury to persons in violation of General Statutes § 53a-179a(a),¹ attempt to assault a prosecutor in violation of General Statutes §§ 53a-49(a)(2)² and 53a-167d(a),³ and attempt to commit murder in violation of General Statutes §§ 53a-49(a)(2)⁴ and 53a-54a.⁵ On appeal, the defendant claims that the trial court improperly (1) denied his motion for a judgment of acquittal, (2) instructed the jury on the charge of inciting injury to persons, (3) failed to give a special instruction regarding the credibility of a jailhouse informant and (4) ruled on the admissibility of certain evidence. We affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the jury reasonably could have found that the defendant was plotting to assault or murder Enfield prosecutor Christopher Parakilas. Parakilas had prosecuted the defendant's son in an unrelated narcotics case and, subsequently, had assisted in the prosecution of the defendant in an assault case. The defendant undertook certain steps in furtherance of his plan to assault or murder Parakilas. He solicited his friend, Cord Campbell, to find a gun and to hire another individual to kill Parakilas for $5000. He followed Parakilas to Steve's Boston Seafood restaurant, reconnoitered Parakilas' place of residence and provided this information to Campbell. On November 14, 2002, Tommy Carbone, an acquaintance of both the defendant and the defendant's son, reported to the state police that he had overheard the defendant discussing over the telephone a "hit" on Parakilas. Over the next several days, Carbone engaged the defendant in taped conversations about Parakilas. An arrest warrant was issued, and the defendant was arrested on November 19, 2002. After the jury found him guilty on all counts, the court sentenced the defendant to twenty-one years incarceration.

I

The defendant claims on appeal that the court improperly denied his motion for a judgment of acquittal because the state presented insufficient evidence to support his conviction of (1) attempt to commit murder and attempt to assault a prosecutor and (2) inciting injury to persons. The defendant argues that the state presented insufficient evidence to prove that he had taken a substantial step toward the commission of murder and assault of Parakilas. Specifically, he argues that the evidence presented could not establish that the defendant had followed Parakilas and reconnoitered Parakilas' residence. With respect to the charge of inciting injury to persons, the defendant contends that a jury reasonably could not have concluded that the defendant's conduct was likely to produce imminent lawless action. We disagree.

During the state's case-in-chief, Campbell, a friend of the defendant's for more than eight years, testified that the defendant was angry with Parakilas, the prosecutor in his son's trial, because he thought Parakilas was "riding his son." On five or six occasions in a span of three to four months, the defendant told Campbell that he wanted Parakilas "messed up" and wished that he could "f___ him up." Campbell also testified that shortly after the defendant's son was sentenced, the defendant asked Campbell to obtain a gun for the defendant. The defendant emphasized to Campbell more than once that he wanted "to get it done." When Campbell indicated that he could retain people to "get the job done," the defendant proposed to Campbell that he would pay $5000, with half of that amount as a down payment. The defendant provided Campbell with an address and a description of where Parakilas lived. He described the prosecutor's residence as having many bushes and as being on a dead-end street, across from railroad tracks and accessible by boat.

Campbell testified that initially he did not think that the defendant was serious. Throughout their friendship, the defendant often requested Campbell to "do this to someone [or] do that to someone," but the defendant had not persisted in those instances. Campbell became convinced that the defendant was serious about harming Parakilas, however, when the defendant offered money and provided a description of the residence.

On August 30, 2004, Michael Price encountered the defendant while both were in a holding cell in the judicial district of Hartford. Price recognized the defendant because he knew the defendant's son. The defendant explained to Price that he was at the court on charges of attempted assault and attempted murder of Parakilas. The defendant told Price that his son had been "screwed over" and sentenced to almost ten years incarceration. As a result, the defendant was angry with Parakilas, who prosecuted his son, and was going to kill him. The defendant also told Price that he had someone follow Parakilas to Steve's Boston Seafood restaurant in Enfield.

Defense counsel orally moved for a judgment of acquittal at the close of the state's case-in-chief and renewed this motion following the verdict. The defendant argued that the state did not present sufficient evidence to establish a time or factual "linkage" between the defendant's following of Parakilas to Steve's Boston Seafood restaurant and his conversations with Campbell and Carbone about his intent to cause injury to or to kill Parakilas, or to explain how the defendant obtained the information about Parakilas' residence. The defendant also argued that there was no substantial evidence to support a finding that criminal action was imminent. The court denied the defendant's motion.

"In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... [I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury's function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Citation omitted; internal quotation marks omitted). State v. Solomon, 103 Conn.App. 530, 539, 930 A.2d 716 (2007).

"We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt.... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt....

"Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt ... nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal.... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask instead, whether there is a reasonable view of the evidence that supports the [finder of fact's] verdict of guilty." (Internal quotation marks omitted). State v. Davis, 283 Conn. 280, 329-30, 929 A.2d 278 (2007).

We review each category of claimed insufficient evidence in turn and determine whether on the facts so construed the jury reasonably could have concluded that the evidence established guilt beyond a reasonable doubt.

A

The defendant first argues that the state presented insufficient evidence to support his conviction of attempt to commit murder and attempt to assault a prosecutor. He contends that the state failed to prove beyond a reasonable doubt that he had taken a substantial step in the commission of these crimes because the testimony of Campbell and Price was insufficient to establish that the defendant followed Parakilas and reconnoitered his residence. We disagree.

"There are two essential elements that the state must prove beyond a reasonable doubt to sustain a conviction of the crime of attempt to commit murder. First, the state must prove beyond a reasonable doubt that the defendant had the kind of mental state required for commission of the crime of murder. Second, the state must prove beyond a reasonable doubt that the defendant intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.... [T]he attempt is complete and punishable, when an act is done with intent to commit the crime, which is adapted to the perpetration of it,...