State v. Festo

Decision Date24 June 1980
Citation181 Conn. 254,435 A.2d 38
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Ralph FESTO. STATE of Connecticut v. Clive RUSSELL.

Charles Hanken, Bridgeport, with whom, on the brief, was Joseph Mirsky, Bridgeport, for appellants (defendant in each case).

Richard F. Jacobson, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Walter D. Flanagan, Asst. State's Atty., for appellee (state).


LOISELLE, Associate Justice.

Each of the defendants, officers in the Stamford police department, was charged with larceny in the first degree in violation of General Statutes §§ 53a-119 and 53a-122(a)(2) and burglary in the third degree in violation of § 53a-103(a). A jury found them guilty of first degree larceny but not guilty of third degree burglary. The court sentenced each defendant to three to six years in prison and both defendants appealed.

The defendants raise three issues on appeal: whether the court should have granted their motions for a mistrial or their motions to suppress for failure to disclose incriminating evidence prior to trial despite a court order directing the state to do so; whether their constitutional rights to be confronted with the witnesses against them was violated by the state's failure to arrest an accomplice in the crime, thereby permitting him to leave the jurisdiction for parts unknown; and whether the court erred in denying the defendants' motions to set aside the verdicts for insufficient evidence. The remaining issues raised by the defendants in their preliminary statement of issues have not been briefed and are considered abandoned. State v. Hoffler, 174 Conn. 452, 457, 389 A.2d 1257 (1978).

We review first the defendants' claim of insufficient evidence. From the evidence presented the jury could have found the following facts. On June 8, 1975, the Stamford police department received a telephone call from a neighbor of Frederick H. Gibbs to investigate a possible burglary at the Gibbs home in Stamford. The home was situated on a six acre lot which was fairly well wooded. The neighbor had checked Gibbs' home approximately two weeks before that day and the premises appeared secure, but on June 8 he noticed the front door open, tire tracks in the driveway and some furniture missing. When he returned home, he telephoned the police.

The police officer who responded to the call met the neighbor at the Gibbs residence. The officer found the interior of the home in complete disarray and found no furniture except for some mattresses and a couch. There were no indications of forced entry, but the officer noticed the tire tracks. The officer advised the neighbor to contact the police should anything further develop, then left the scene.

On June 16, 1975, that same neighbor heard a truck spinning its wheels in the Gibbs driveway as though it were stuck in the mud. Again he telephoned the police who met him in Gibbs' driveway. The truck, its hood still warm, was registered to William Caputo of Stamford. No one was in the truck at the time. Although a search of the surrounding area was fruitless, the following items were found in the truck: a ladies' handbag containing personal papers which belonged to Karen Festo, Ralph Festo's wife, several articles of clothing including a pair of police trousers with Festo's name inside, a vial of vitamin pills, another ladies' handbag, this one empty, a container of breath mints and a nail file.

The following day, June 17, 1975, three police officers went to Festo's home in Norwalk. Festo said he knew nothing about the Gibbs incident and permitted the officers to search his home. The search revealed nothing. Festo's friend Caputo was there at the time. Festo also told the police that Caputo had told him the police would contact him about the presence of the truck and its contents on the Gibbs property. Festo explained that he and his wife had used Caputo's truck to move from Stamford to Norwalk and that they had left some personal belongings in the truck because they no longer wanted them.

On June 8, 1975, Russell and Caputo rented space at the Westchester Coliseum Antiques Show from an antiques dealer who later testified for the state at trial. She identified the bureau Russell brought to the show as the bureau depicted in a photograph introduced as an exhibit by the state. 1 Gibbs' neighbor also identified the bureau in the photograph as one he had observed in the Gibbs' home. Russell told the dealer that he had the rest of the bedroom set and other furniture available for sale. He set a price of $1000 for the bureau.

On June 12, 1975, Caputo telephoned Ralph Sparan, the buyer for United Housewrecking Corporation in Stamford. United buys and sells used furniture. Caputo told Sparan he had something to sell. When Sparan telephoned Caputo the next day, Russell answered the telephone and made arrangements for Sparan to see a bedroom set. Russell told Sparan to meet him at Caputo's house. When Sparan arrived Russell showed him two beds, two dressers, a highboy, and a night table which did not belong to the set. Russell told Sparan that the furniture belonged to another person, that he was selling it for her and that he was asking $2000 to $2300 but the woman might take as little as $1900. The two men discussed the condition of the furniture. Sparan asked where the mirrors were, then left after saying he would discuss the purchase with his boss. Sparan called Russell later that day to arrange a time for his employer to see the furniture. His employer, a part owner of United, viewed the furniture that same day. Russell told him that the furniture had been in storage and belonged to his grandmother. United's owner offered $1500 and Russell agreed.

Sparan returned with another, employee that afternoon to pick up the bedroom set. When he arrived both Festo and Russell were present and made no effort to conceal the fact that they were police officers. Russell signed a receipt for the furniture and Sparan issued Russell a check for $1500. The check was presented to a bank for payment by Ralph Festo between 3 and 5 o'clock that afternoon. A police detective located the furniture with the receipt bearing Russell's name on it on June 28, 1975. Gibbs' personal secretary later identified the furniture at United as items belonging to Gibbs.

On June 28, 1975, Caputo, accompanied by his attorney, made a statement to the Stamford police, and Festo and Russell offered their written resignations, badges, guns, keys and other equipment. Caputo returned several items which had been stolen from Gibbs' home. Festo and Russell told a superior officer, a police lieutenant, that they thought the house was abandoned, that this was the only incident in which they had been involved, that it was an embarrassing situation and that they hoped other members of the department would not suffer because of it. When the lieutenant asked them where Gibbs' metric tools were, Russell answered, "Don't press me on it. I can't get them." On July 1, 1975, the lieutenant telephoned Festo to ask where Gibbs' air compressor was. Caputo returned it that evening, along with an Allard tire and a desk also stolen from Gibbs' home. Festo and Russell were arrested on July 19, 1975.

" 'When a jury verdict is challenged on the ground that the evidence is insufficient to sustain the verdict, the issue is whether the jury could have reasonably concluded upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt....' Each essential element of the crime charged must be established by such proof ... and although it is within the province of the jury to draw reasonable, logical inferences from the facts proven, they may not resort to speculation and conjecture." (Citations omitted.) State v. Saracino, 178 Conn. 416, 419, 423 A.2d 102 (1979).

The defendants contend that in view of the evidence introduced on their behalf, the jury could not reasonably have concluded that the evidence was sufficient to support a verdict of guilty beyond a reasonable doubt of first degree larceny. The defendants' evidence may be fairly summarized as follows. Caputo led Festo and Russell to believe that he owned the furniture, and that they could help him sell it at a fair price. Since Festo and Russell worked the evening shift and Caputo needed someone to show the furniture during the day, Russell agreed to meet the prospective buyer from United Housewrecking. According to Festo, when he gave Caputo the $1500, Caputo offered him $100 to share with Russell but Festo refused because Caputo had recently loaned Festo his truck to help him move from Stamford to Norwalk. Both defendants testified that their resignations were submitted under duress and before they discovered that Caputo had incriminated them. According to the defendants, when Caputo tried to retract his statement of the Gibbs incident, the police lieutenant threatened him with arrest and prosecution. The defendants also denied and contradicted several material facts established by the state's witnesses on direct.

On the evidence presented and the reasonable inferences therefrom, as presented above, the cumulative effect of the evidence was sufficient to justify the jury's verdicts of guilty on the first degree larceny charges. State v. Saracino, supra. Although the jury acquitted the defendants on charges of third degree burglary, this does not render their verdicts on charges of first degree larceny unreasonable or illogical. There was ample evidence, both direct and circumstantial, to convince the jury beyond a reasonable doubt; State v. Dubina, 164 Conn. 95, 98, 318 A.2d 95 (1972); and it was within the province of the jury to disbelieve the defendants'...

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