State v. DeCaro

Decision Date29 February 2000
Docket Number(SC 15891)
CourtConnecticut Supreme Court

Borden, Norcott, Katz, Palmer and McDonald, Js.1 Roy S. Ward, with whom, on the brief, was Philip Russell, for the appellant (defendant).

Lisa Herskowitz, assistant state's attorney, with whom, on the brief, were Eugene Callahan, state's attorney, and Robert Katz, senior assistant state's attorney, for the appellee (state).



A jury found the defendant, Rita DeCaro, guilty of nine counts of forgery in the second degree in violation of General Statutes § 53a-139 (a),2 and not guilty of three counts of larceny in the second degree in violation of General Statutes § 53a-123 (a) (4).3 The trial court rendered judgment in accordance with the jury verdict,4 and the defendant appealed.5 On appeal, the defendant claims that: (1) the evidence was insufficient to sustain her forgery convictions; (2) her forgery convictions cannot stand because they are inconsistent with her acquittal on the larceny charges; (3) the trial court improperly denied her request for a mistrial or, alternatively, for a curative instruction, in response to allegedly improper comments the prosecutor had made during closing arguments; and (4) the trial court violated her sixth amendment rights to confront witnesses and to compulsory process6 by quashing a portion of a subpoena duces tecum that she had served on her former supervisor seeking documents relevant to the case. Although we reject the defendant's first three claims, we conclude that the trial court improperly quashed a portion of the subpoena duces tecum issued by the defendant to her former supervisor. On the current record, however, we cannot ascertain whether that impropriety violated the defendant's rights under the sixth amendment and, if so, whether the harm stemming from the constitutional violation requires a new trial. Accordingly, we remand the case to the trial court for further proceedings regarding that issue.

The jury reasonably could have found the following facts. At all relevant times, the defendant worked as an account clerk for the Westport building department (department). The department processes all applications for building permits. While the defendant was employed at the department, her immediate supervisor was the Westport building official, Stephen Smith. Smith, in turn, reported to the fire chief, Richard Gough. Among other tasks, the defendant collected permit fees.7 She also processed the permit applications on the department's computer and printed out each permit. A computer generated permit would not become valid, however, until it was signed by one of the department building officials. Hard copies of all signed permits were kept in manila file folders in the department offices. The defendant also prepared periodic reports for the town controller's office accounting for the permits issued and funds collected, by check or cash, over a particular time period, usually once every one or two weeks. These reports were used by the town controller, Donald Miklus, to prepare the fees for deposit. When the defendant went on vacation or was ill, no reports were generated until her return. Smith did not review the reports the defendant had prepared for Miklus. The defendant often complained about problems that she was having with the computer program, including inaccuracies in the function used to generate the reports for Miklus. Specifically, she complained that when she created these reports, permits often would be missing from the list. The defendant complained about this problem to Gough, who told her to type in the missing permits.8 The defendant also complained that she had difficulty retrieving information regarding permits from prior fiscal years.

In April, 1994, an individual contacted the controller's office about a check that his bank had returned. Although the individual had issued the check to the department in October, 1993, in payment of a permit fee, the check had not been presented for payment to his bank until April, 1994. While investigating the reason for this delay, the controller's office discovered that a substantial number of checks deposited during certain periods did not correspond to the permits listed on the reports for those periods. According to Smith, the checks should have been deposited during the same period that the permits were issued. The controller's office also found numerous instances in which a permit was listed on a report for a particular period, but the fee for the permit had been covered by a check in the name of someone other than the permit applicant, and the check corresponding to the permit had been deposited in a later period. Miklus informed both Smith and Gough of these irregularities and also expressed his concern that unusually small amounts of cash had been included in recent department deposits. Neither Smith nor Gough previously had been aware of the existence of any undeposited cash or checks, or of any discrepancies between the period in which a particular fee was received and the period in which that fee had been deposited.

After the close of business on or about May 11, 1994, Gough conducted a search of the department offices. During the course of the search, he found an envelope in the defendant's desk containing a steno pad and approximately eighty-six checks totaling $2593. The checks bore dates ranging from December, 1993, through April, 1994. Gough also found cash in the defendant's desk in two separate locations totaling $82 and $30, respectively.9

During the next reporting period, Miklus and Gough noted that $112 in cash had been received by the defendant in payment for permit fees. Miklus and Gough waited to see if the cash and checks that Gough had discovered in the defendant's desk would be included in the defendant's next report. When the defendant had failed to include the checks or cash in her report, Gough, Smith and Miklus arranged to meet with the defendant. At that meeting, which occurred on May 20, 1994, the defendant was asked why the checks did not correspond to the permits listed on the report. The defendant said that she was unaware of the discrepancy and attributed any discrepancy to her heavy workload.10 When asked about the cash and why it was not deposited, the defendant said that she must have used it to make change for someone who had overpaid with a check. The defendant also said that she was unaware of any undeposited checks from earlier reporting periods. She indicated that the only checks remaining in the department offices would be those checks that had been received during the current reporting period. Miklus then suggested that they search the department offices to see whether there were any checks there that should have been deposited during a prior period.

Gough, Smith and Miklus gave the defendant an opportunity to look for such checks, but she claimed to be unable to find any. Gough then retrieved from the defendant's desk the envelope that he had found earlier, containing the checks and a steno pad. The defendant tried to take the envelope from Gough, but he handed it to Miklus. The defendant was asked why the checks were in the envelope. She stated that they corresponded to permits not yet reflected in her reports. Miklus retained the checks and the pad, then asked the defendant if she could produce the permits corresponding to the checks in the envelope. The defendant agreed to do so, and some time thereafter, provided Gough with thirty-two documents that she claimed to be the corresponding permits. None of the thirty-two documents, however, was signed by a building official.

Gough and the controller's office reviewed the thirty-two documents, which reflected a total of $3140 in fees, to determine whether they were legitimate and whether they corresponded to the checks found in the defendant's desk. On September 30, 1994, Gough and Miklus held another meeting with the defendant at which they reported their findings regarding the documents. Although their review indicated that some of the permits were legitimate in that they had not been issued previously, others related to projects for which the general contractor already had prepaid all applicable fees. Specifically, approximately ten of the permits, representing $326 worth of fees,11 corresponded to work for which permits previously had been issued at no fee as a result of general contractors' prepayments for anticipated subcontractor work. Thus, there was no reason for such permits to have been issued. Moreover, none of the checks found in the defendant's desk matched any of the thirty-two permits.

When asked for an explanation, the defendant reported that she had not checked the manila file folders in preparing the documents. She indicated that, instead, she only had consulted the computer, and provided permits that, to the best of her knowledge, had not yet been issued. The defendant also was asked why there had been so little cash deposited recently.12 The defendant responded only that the department received cash in "dribs and drabs." Regarding the cash fees that the department had received in May, 1994, the defendant could not explain why that cash had not been deposited.

In February, 1995, the police questioned the defendant about the various discrepancies and irregularities. Thereafter, the defendant went to Miklus' deputy, John Kondub, to point out that there was cash in the office, in three different locations, that had been received in payment for photocopying department records. She told Kondub that she "wasn't going to take the blame for this money being here." Kondub then collected and counted the cash, which totaled $367.85. The defendant also told Kondub that Smith knew about the cash, that Smith had used some of it for a building officials' meeting and, finally, that Smith had authorized ...

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