State v. Foshay, 4663

• Citation: 530 A.2d 611,12 Conn.App. 1
• Decision Date: 21 October 1987
• Docket Number: No. 4663,4663
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Robert J. FOSHAY.

Page 611

530 A.2d 611

12 Conn.App. 1

STATE of Connecticut v. Robert J. FOSHAY.

No. 4663.

Appellate Court of Connecticut.

Argued March 6, 1987.

Decided Aug. 11, 1987.

Certification Granted Oct. 21, 1987.

John W. Watson, Asst. Public Defender, with whom, on the brief, was Joette Katz, Public Defender, for appellant (defendant).

Susann E. Gill, Deputy Asst. State's Atty., with whom, on the brief, were Brian E. Cotter, Asst. State's Atty., and John Sheedy and William R. Korey, Legal Interns, for appellee (state).

Before DUPONT, C.J., and BORDEN and DALY, JJ.

BORDEN, Judge.

The defendant appeals from the judgment of conviction, after a jury trial, of burglary in the third degree in violation of General Statutes § 53a-103, ¹ and of larceny in the third degree in violation of General Statutes § 53a-124(a)(1), ² and from the judgment of conviction, after a court trial, of being a persistent serious felony offender in violation of General Statutes § 53a-40(b). The defendant claims that the trial court erred as follows: (1) he was denied his right to a speedy trial; (2) the court's instructions to the jury on accessory liability were defective; (3) the court's instruction to the jury on the larceny offense impermissibly allowed the jury to convict the defendant of an offense with which he was not charged; (4) there was insufficient evidence to convict the defendant of larceny in the third degree as charged in the information; (5) in admitting evidence of uncharged misconduct of the defendant; (6) in denying the defendant's motion to dismiss the charge of being a persistent serious felony offender; and (7) the defendant did not have fair notice that he faced enhancement of his sentence on both felony counts, based on the single persistent serious felony offender charge. We find no error.

The jury could reasonably have found the following facts: On the morning of October 5, 1983, Sharon Somers left her Danbury home, returning shortly after noon. Upon her return, she discovered that her house had been forcibly entered and ransacked. She immediately alerted the police. Several items of jewelry, including a gold and black onyx earring and a man's silver pocket watch, and a video cassette recorder, were missing from her house. The missing items were valued at more than $1000.

Somers' house is located just behind the parking lot of "Jimmy's Market," a convenience store. Around noon on October 5 Steven Costigan, the store manager, was in the parking lot. He observed a man running through the parking lot. Costigan was able to give a fairly detailed description of the man and had noticed that the man was carrying a brown and silver box-like item approximately twenty-four inches by twenty-four inches by eight inches. The man ran to an automobile which was parked, with the motor running, on the road next to the parking lot, about fifty feet from Somers' house. Costigan testified that there were two other people in the car, a male sitting in the driver's seat and an unidentifiable figure in the rear seat. Costigan observed the car's license number as it sped away.

Thereafter, a police officer arrived, inspected the victim's home, and took her account of what happened. The information given by the victim and Costigan was broadcast over the police radio.

Officer Ronald Inconstanti awaited the return of the automobile at the address of the car's registered owner. At approximately 1:25 p.m., the defendant drove the car into the driveway at that address. Inconstanti stopped the car. There were four persons in the car: the defendant, Robert Hyde, Warren Booth, and Deborah Schlemmer.

Hyde, the front seat passenger, had Somers' silver pocket watch in his left shirt pocket, her black onyx earring was in his cigarette pack. Her video cassette recorder was in the trunk of the car.

Costigan was brought to the scene of the arrest, where he identified the car driven by the defendant as the one he had seen parked next to his store earlier that day. He also identified Hyde as the man he had seen running to the car carrying a box-like object. He was not able to identify anyone else.

I

The facts relevant to the defendant's speedy trial claim are as follows. On October 5, 1983, the defendant was arrested in connection with the charges for which he was convicted. At the time of his arrest, the defendant was on parole from a previous, unrelated indeterminate sentence. On the day of his arrest, the Connecticut department of correction, division of parole, filed a "parole sticker" against the defendant, pursuant to General Statutes §§ 54-127 and 54-128, ³ and ordered him remanded to the custody and control of the Bridgeport correctional center. The defendant remained incarcerated in that facility throughout the pendency of the proceedings in the trial court in this case.

On October 18, 1983, after entering a plea of not guilty, the defendant requested a speedy trial. On February 29, 1984, allegedly in compliance with General Statutes § 54-82c(a), the defendant's attorney sent a letter to the department of correction requesting that certain information be prepared and forwarded to the appropriate persons pursuant to that statute. The agent in charge of such matters refused to provide the information as requested because the defendant was not "in sentenced status." On March 2, 1984, the defendant again filed a motion for a speedy trial.

On March 22, 1984, the state informed the trial court that it was not ready to proceed to trial because the victims were out of state on vacation, and were due back in Connecticut on April 14. In response to this development, the defendant made an oral motion to dismiss the charges on speedy trial grounds. During the hearing on the motion, counsel for the defendant indicated to the court the difficulty he had had in locating witnesses and the increased risk posed by the passage of additional time for securing the attendance of a particular witness at a trial which would commence in the indefinite future. ⁴ The motion was denied by the court, Moraghan, J., with the statement that if the state was not ready to proceed on April 24, the case would be "dismissed and dismissed summarily."

The defendant's case did not come to trial on April 24, 1984, because of a lack of judicial personnel due to an ongoing criminal trial. On May 11, 1984, the defendant again filed a motion for speedy trial. After hearing argument on the motion on May 25, 1984, the court, Maiocco, J., ordered that the state's case against the defendant would follow the trial of a defendant named "Skidmore."

After learning that there would not be a jury called during the summer months, on July 12, 1984, the defendant again filed a motion to dismiss for lack of a speedy trial. On July 20, 1984, the court, Stodolink, J., denied the motion.

On September 12, 1984, the case against the defendant was called for trial. Prior to the commencement of trial, the defendant again made a motion to dismiss for lack of a speedy trial. In support of that motion, counsel for the defendant apprised the court of the difficulties he had in locating a key witness, Deborah Schlemmer, and serving her with a subpoena. ⁵ It is apparent from the record that Schlemmer is the same witness to whom the defendant's counsel referred in his statement to the court on March 22, 1984. See footnote 4, supra. Further, in support of his motion, the defendant called a former boyfriend of the missing witness, who testified that he had last seen her approximately two weeks before, and that she had been living at a particular Danbury address in the past but that he did not know where she was then living. The court, Geen, J., denied the defendant's motion to dismiss. Thereafter, on September 12, 1984, voir dire examination of jurors began, and on September 14, 1984, the jury impaneled to decide the case against the defendant was sworn in, and testimony from the state's first witness was presented.

The defendant's claim that he was denied his right to a speedy trial takes two forms. First, he argues that the delay in trying him violated General Statutes §§ 54-82c ⁶ [12 Conn.App. 10] and 54-82d. ⁷ Second, he contends that the delay in trying him violated his right to a speedy trial under the federal ⁸ and state ⁹ constitutions. Since "[c]onstitutional issues are not considered unless absolutely necessary to the decision of the case"; Edelson v. Zoning Commission, 2 Conn.App. 595, 600, 481 A.2d 421 (1984); we first consider the defendant's statutory argument in support of his motions to dismiss on speedy trial grounds.

A

The defendant contends that he was entitled to the protection against delayed trials afforded to inmates in Connecticut correctional facilities by General Statutes §§ 54-82c and 54-82d. Those provisions establish procedures by which a person who "has entered upon a term of imprisonment" within a state correctional facility may request a speedy disposition of outstanding Connecticut criminal charges. If a criminal case is not brought to trial within the statutory period of 120 days from the delivery of the prisoner's request, accompanied by his custodian's certificate, to the appropriate prosecuting official and court, the case must be dismissed. State v. Toste, 198 Conn. 573, 585-87, 504 A.2d 1036 (1986); State v. McCarthy, 197 Conn. 166, 169-70, 496 A.2d 190 (1985).

The defendant, who was incarcerated prior to trial due to his inability to make bond, contends that because a "parole sticker" was also lodged against him, he had at that point "entered upon a term of imprisonment" within the meaning of § 54-82c, entitling him to the dismissal of the charges pursuant to § 54-82d. Because we conclude, however, that a parolee who is confined while awaiting a parole revocation hearing has not entered upon a term of imprisonment within the meaning of General Statutes § 54-82c, the defendant's statutory argument must fail.

General Statutes § 54-82c is patterned...