State v. DelVecchio

Decision Date13 September 1983
Citation191 Conn. 412,464 A.2d 813
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Raymond T. DelVECCHIO, Jr.

Howard T. Owens, Jr., Bridgeport, with whom, on the brief, was Kevin L. Burns, Bridgeport, for appellant (defendant).

Carl Schuman, Asst. State's Atty., with whom was John J. Kelly, State's Atty., for appellee (state).


ARTHUR H. HEALEY, Associate Justice.

A jury found the defendant, Raymond T. DelVecchio, Jr., guilty of two counts of arson in the first degree in violation of General Statutes § 53a-111(a)(1) and of two counts of criminal mischief in the first degree in violation of General Statutes § 53a-115(a)(1). 1 He has appealed from the judgment of conviction raising a number of claims of error, some of which we need not reach because of our disposition of his appeal.

Those claims made by the defendant which warrant discussion are (1) whether the trial court erred in its instructions on proof beyond a reasonable doubt; (2) whether the court erred in allowing the state to prove the corpus delicti through the statements of the defendant; and (3) whether the court erred in permitting the state to introduce inculpatory statements of the defendant from tape recordings made during an undercover police investigation.

The evidence before the jury included the following: The defendant and Fay Dorso were married in July, 1976. They separated four months later, at which time the defendant moved out of their apartment at 12 High Street, a three story building in Derby. He had told her that if she went through with the divorce, he would burn down the apartment. On July 16, 1978, while the first floor was occupied by one James Maloney and his family, the building was damaged by a fire. 2 In fleeing from the fire, Mrs. Maloney sustained a burn to her leg and, as she ran out of the house, the upper porches fell just behind her. The Maloney apartment alone sustained damage of $4000.

The Derby fire marshal was at the scene as the High Street building was burning. A "loud report" or explosion had preceded the fire, and its spread was "fast" and "rapid." After an investigation, and on the basis of his training and experience, he believed "some sort of accelerant had to be used." The color of the fire on High Street, i.e., "a volatile orange flame," was consistent with the use of gasoline as an accelerant. A Derby police officer, working at the fire, observed the defendant across the street as the building was burning.

On June 27, 1978, the residence of Charles LaRowe and his family at 21 Derby Avenue in Derby was extensively damaged by fire. His residence was about seventy-five feet away from that of the defendant with whom he had a prior disagreement which resulted in the summoning of police. 3 The Derby fire marshal came to the scene of this fire while it was still aflame and thereafter undertook an investigation. He lived in the area of this fire and testified that firecrackers were going off that night and that there was one louder sound just before this fire report came over his fire radio. In the area of what he determined to be the point of origin of this fire he found "paint cans, paper, regular debris from old wallpaper." He considered the fire of "a suspicious nature," and gave his opinion that there was "no plausible method of ignition" which he could find "except relating it back to probably a firecracker setting off the debris that was there." Several photographs of various parts of the building after the fire were introduced as he testified.

From April, 1972, to October, 1978, the defendant was employed as a truck driver with an oil company in Derby known as Petrol Plus. He was terminated by Petrol Plus because of his arrest for stealing gasoline from the terminal of Petrol Plus' supplier. On February 19, 1979, the radiators of six trucks owned by Petrol Plus were damaged at the company yard in Derby. There was a hole in each radiator made by an iron bar and the coolant had all run out. This caused a major disruption in the business of Petrol Plus at a very busy time. The repair bill for this damage was $9300.

After her separation from the defendant, Fay Dorso moved to 7 Maple Street, Seymour. Ivy Poulin and Roberta Poulin also lived at that address. While attempting to contact Fay, the defendant spoke on the telephone with Roberta Poulin several times and eventually arranged to take her to the racetrack. When they went to the racetrack, the defendant met her at her car which she parked in a public lot across the street from Rudy's Pub in Seymour. During the day of July 22, 1980, the defendant called Roberta Poulin at her place of employment and told her that her friend Tom Rider had called and harassed the defendant's mother. He told her that she "would have to put a stop to it or else." At about eleven o'clock that night a police officer came to her home to report that her car had been badly damaged in the public parking lot across from Rudy's Pub. She accompanied the officer to this parking lot where she customarily parked. When she had parked her car there for the night, the windows were "up tight" and the doors locked. When she arrived with the officer, she found the passenger window broken, most of the inside burned, the dashboard, including the dials, ruined and the roof "entirely burned" on the inside. She said "[e]verything was just sort of melted and blackened." Poulin also noticed "a lot of broken green glass" on the front seat on the passenger side although she had not left any green bottle or green glass on the seat when she came home from work that day.

During an undercover police investigation which focused on the defendant, a number of tape recordings were made of several conversations he had with the undercover officer in the presence of others. The conversations from the tape recordings were admitted into evidence at the trial and contained certain inculpatory statements of the defendant which served to identify him as the perpetrator of each of the crimes of which he was found guilty.

We take up first the defendant's claim that the court erred in its instructions on the state's burden of proving his guilt beyond a reasonable doubt. During its instructions on reasonable doubt, the court made reference to defense counsel's argument to the jury about reasonable doubt and a football field. 4 The instruction challenged on appeal is as follows: "Now, in his summation to the jury, Mr. Altschuler, defense counsel, made some mention of reasonable doubt, and he gave you one explanation of reasonable doubt, and in giving you examples of reasonable doubt he used two sports similes, one was a baseball game. As I recall, the other one was a football game. He did not, and I have discussed this with him, and he knows I am going to tell you this, he did not mean to infer that you have to go a hundred yards to guilt and that you must go a hundred yards for reasonable doubt. When he said you could get to the twenty yard line, or ten yard line, you got to go to the goal line; he meant to say to the goal line to reach reasonable doubt, not to the hundred yard line or the goal line to reach guilt. I hope you understand this distinction.

"Reasonable doubt is not guilt beyond any doubt. You don't have to go a hundred yards for a guilty finding. You got to go somewhere, I suppose, beyond the fifty yard line; where it is in there is up to you to decide. But what Mr. Altschuler meant to say was that in his explanation the hundred yards was to reach the point of reasonable doubt, not reach the point of guilt. I think you can understand the distinction."

The defendant duly excepted to this instruction at the trial. Pointing to the central importance of instructions on the concept of reasonable doubt in a criminal trial, he argues that it effectively lightened the state's burden of proof. Additionally, he claims that, although it followed an accurate statement of law, 5 it was the sole illustration of the concept in lay terms to a jury of laymen and it is, in effect, impossible to say that they were not misled.

The state recognizes the constitutional nature of this claim but argues first that there was no error. It argues that a review of the charge as a whole will so demonstrate. See State v. Carrione, 188 Conn. 681, 685, 453 A.2d 1137 (1982). Alternatively, it maintains, citing United States v. Hasting, --- U.S. ----, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983), that even if there were error, it must be found to be harmless beyond a reasonable doubt in view of the overwhelming evidence of the defendant's guilt. We find error.

It is fundamental that proof of guilt in a criminal case must be beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970); United States v. Pine, 609 F.2d 106, 107 (3d Cir.1979); State v. Mason, 186 Conn. 574, 585, 442 A.2d 1335 (1982); State v. Kurvin, 186 Conn. 555, 558, 442 A.2d 1327 (1982); State v. Smith, 183 Conn. 17, 27-28, 438 A.2d 1165 (1981). The United States Supreme Court has held that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, supra, 397 U.S. at 364, 90 S.Ct. at 1072. "The [reasonable doubt concept] provides concrete substance for the presumption of innocence--that bedrock 'axiomatic and elementary' principle whose 'enforcement lies at the foundation of the administration of our criminal law.' " (Citation omitted). In re Winship, supra, 363, 90 S.Ct. at 1072. "At the same time, by impressing upon the factfinder the need to reach a subjective state of near certitude of the guilt of the accused, the [reasonable doubt] standard symbolizes the significance that our society attaches to the criminal sanction and thus to liberty itself." Jackson...

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