State v. Famiglietti

• Decision Date: 23 July 1991
• Docket Number: No. 13991,13991
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Mark FAMIGLIETTI.

Page 306

595 A.2d 306

219 Conn. 605

STATE of Connecticut v. Mark FAMIGLIETTI.

No. 13991.

Supreme Court of Connecticut.

Argued May 29, 1991.

Decided July 23, 1991.

Wesley W. Horton, with whom were Jeffrey A. Hoberman, Hartford and William A. Conti, Torrington, for appellant (defendant).

Judith Rossi, Asst. State's Atty., with whom, on the brief, were John A. Connelly, State's Atty., and Corinne Klatt, Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and SHEA, CALLAHAN, GLASS and BORDEN, JJ.

PETERS, Chief Justice.

The principal issue in this appeal is the sufficiency of the evidence to sustain the conviction of the defendant, Mark Famiglietti, on a charge of having committed arson in the first degree in violation of General Statutes § 53a-111(a)(2) and (4). ¹ After a jury trial that resulted in a verdict of guilty, the trial court denied the defendant's motion for a judgment of acquittal and sentenced him to imprisonment for a term of twenty years, execution suspended after ten years, with five years probation. The defendant has appealed directly to this court pursuant to General Statutes § 51-199(b)(3). We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. Valley Appliance, Inc., a retail household appliance store in Waterbury, was the scene of an intense, albeit short-lived, fire on December 10, 1988. The store was a family business, having been owned by the defendant's father until his death. At the time of the fire, the defendant's mother was the president of the corporation that owned the business, while the defendant was its vice president and its day-to-day manager.

On the day of the fire, the defendant returned to the store at about 5:30 p.m. He unlocked the front door and entered the store to gather some papers. He saw no other person inside. In preparation for leaving for the evening, he called a Sonitrol operator at about 5:51 p.m. to initiate the store's "intrusion detection" system. He "coded out" to a Sonitrol operator, who, recognizing the defendant by his voice and his code number, activated the security system. The system was designed to signal the defendant's departure from the building by the activation of a red light indicator. During the interval before the red light indicator became activated, the Sonitrol operator heard sounds of someone moving around inside the store and "crackling" sounds that became "loud popping noises." After taking further precautionary steps, including trying to reach the store by telephone, the operator called the responsible authorities at 6:06 p.m. to report a fire.

Upon their arrival at the store at 6:15 p.m., the firefighters found the building full of thick black smoke and an intensely hot fire. In about one hour, they succeeded in extinguishing the fire, which was limited to the building's outer office area and a back furnace room. In fighting the fire, the firefighters were all exposed to the risk of backdrafts, explosions, and roof collapse, and two firefighters were actually injured.

A determination by the fire marshal that the fire had been deliberately set by the use of accelerants led to the defendant's trial and conviction. After a trial in which the parties presented conflicting evidence about the cause of the fire and about the time of the defendant's departure from the premises, the jury found the defendant guilty as charged.

The defendant has raised five issues in his appeal. Asserting that he is entitled to be acquitted of the charge of arson, he urges us: (1) to adopt a "substantial evidence" standard for appellate review of the sufficiency of the evidence; and (2) to find the evidence adduced at his trial to be insufficient to support his conviction. Asserting, alternatively, that he is entitled to a new trial, he claims that the proceedings against him were tainted by: (3) prosecutorial misconduct; (4) the jury's receipt of an improper exhibit list; and (5) the court's failure to give a unanimity charge with respect to subdivisions (2) and (4) of § 53a-111(a). We are unpersuaded.

I

The defendant's principal claims concern the sufficiency of the evidence to convict him of the charge of arson. To bolster his claim that the trial court should have granted his motion for acquittal, he contends that we should adopt a "substantial evidence" standard for appellate review. He also contends that, on any applicable standard, the evidence at trial did not establish beyond a reasonable doubt that he was guilty of the crime with which he had been charged.

A

This court has consistently employed a two-part analysis in appellate review of the sufficiency of the evidence to sustain a criminal conviction. "Whether we review the findings of a trial court or the verdict of a jury, our underlying task is the same.... We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant's guilt beyond a reasonable doubt." State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991), and cases therein cited. The defendant urges us to reconsider this standard, on prudential or constitutional grounds, and to adopt instead a "substantial evidence" test of appellate review.

The defendant's argument is predicated on the proposition that our existing standard for appellate review permits affirmance of a criminal conviction that rests on a quantum of evidence that can fairly be characterized as a "mere modicum" or "insubstantial." We do not agree. As State v. Jarrett reiterates, we have undertaken independently to determine whether "the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant's guilt beyond a reasonable doubt." Id., at 771, 591 A.2d 1225. Consistently with that standard of review, we have on occasion found the evidence to be insufficient, as in State v. Carpenter, 214 Conn. 77, 84, 570 A.2d 203 (1990), on which the defendant relies. Contrary to his assertion, however, State v. Carpenter does not signal the de facto adoption of a new or different standard of appellate review, but illustrates the searching review of criminal convictions that this court presently undertakes in accordance with our existing standard. The scope of our appellate review is therefore consistent with the due process based warning in Jackson v. Virginia, 443 U.S. 307, 320, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), that "a 'modicum' of evidence could [not] by itself rationally support a conviction beyond a reasonable doubt."

B

We turn next to the defendant's specific claims of evidentiary insufficiency. He contends that the state failed to establish, beyond a reasonable doubt, that: (1) the fire at the Valley Appliance store was intentionally set rather than accidental; (2) he was the person criminally responsible for its occurrence; or (3) firefighters at the scene were subjected to a substantial risk of injury. We disagree.

Whether the fire was incendiary or accidental in origin was an issue that was vigorously contested at trial. Extensive conflicting expert testimony was adduced by the state and the defendant.

For the state, the fire marshall based his opinion that accelerants had been used on inferences drawn from physical observations of the scene of the fire. He commented, inter alia, on the evidence of localized heavy damage near the floor level of the two rooms to which the fire was confined, noting that it was unusual in a fire of brief duration to have more intense heat near the floor rather than near the ceiling. He also remarked on the evidence of "V-patterns" of burn damage, at several places in the two rooms, which indicated that there was no single point of origin from which this fire spread to other areas. He concluded that the pattern of fire damage was not attributable to combustible materials falling from the ceiling because, according to tests done at the state laboratory, the ceiling material was not combustible. These physical manifestations led him to conclude that accelerants had been used even though samples of material from the burned area of the premises did not manifest any trace of flammable liquid. He explained that some types of accelerants would leave no traces: a flammable liquid with a low boiling point would evaporate in the intense heat of the fire; and a water-soluble liquid would be obliterated by firefighting hoses in the process of extinguishing the fire. In his view, the physical evidence ruled out accidental causes for the fire, including electrical malfunctioning. An electrical expert testified, as a rebuttal witness for the state, that the electrical service panel in the back furnace room did not manifest physical evidence of having undergone an explosion.

The defendant's expert witnesses, on the other hand, concluded, on the basis of their investigation, that an electrical malfunction in an air conditioning-heating unit had caused a fire in the electrical service panel in the back furnace room which in turn had ignited combustible materials in that room and in the adjacent office room. They relied on physical evidence consisting, inter alia, of a molten and beaded piece of copper wiring in the electrical service panel and the carbonized condition of the electrical outlet for the air conditioner. They found evidence confirming their hypothesis in the electrical condition of a water meter on the premises and in the electrical plug for the air conditioner-heating unit. In their view, the charring on the floor resulted from falling ceiling materials that ignited as the fire spread and gained intensity.

On this state of the record, the jury as...