State v. Francione

• Decision Date: 19 June 2012
• Docket Number: No. 32820.,32820.
• Citation: 46 A.3d 219,136 Conn.App. 302
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Brian T. FRANCIONE, Jr.

136 Conn.App. 302

46 A.3d 219

STATE of Connecticut

v.Brian T. FRANCIONE, Jr.

No. 32820.

Appellate Court of Connecticut.

Argued Jan. 12, 2012.

Decided June 19, 2012.

Deborah G. Stevenson, special public defender, for the appellant (defendant).

Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, was Kevin D. Lawlor, state's attorney, for the appellee (state).

GRUENDEL, LAVINE and SHELDON, Js.

LAVINE, J.

The defendant, Brian T. Francione, Jr., appeals from the judgment of conviction, rendered following a jury trial, of arson in the first degree in violation of General Statutes § 53a–111 (a)(1). On appeal, the defendant claims that (1) the trial court improperly denied his motions for a judgment of acquittal because the evidence was insufficient to establish that the fire was set intentionally and that the defendant was the individual who set the fire, and (2) prosecutorial improprieties during closing arguments deprived the defendant of a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In April, 2008, the defendant was eighteen years old, a junior in high school and a member of the Junior Firefighters in Ansonia. The Junior Firefighters consisted of individuals between fourteen and eighteen years old who provided assistance to the Ansonia volunteer fire department at fire scenes.¹ Thomas Langrieger, Jr., who was fourteen years old at the time, also was a member of the Junior Firefighters. Langrieger and the defendant were close friends who often would spend the night at one another's houses.

On April 14, 2008, the defendant stayed at Langrieger's house. Langrieger lived with his parents at 14 Jarvis Drive, which is approximately nine houses away from where the defendant lived with his parents on Benz Street.² After watching movies with Langrieger's father and sister, the defendant and Langrieger went into the garage to “hang out” at approximately 11:45 p.m. The defendant stated that he needed clothes, exited the garage and walked behind the house, where he filled an empty Gatorade bottle with gasoline from a leaf blower. The defendant told Langrieger that he needed the gasoline for his father, who was a volunteer firefighter with the Ansonia fire department. The defendant then left Langrieger's house and walked down Jarvis Drive toward Martin Terrace,³ which intersects with Jarvis Drive and is parallel to Benz Street.

Approximately ten to twenty minutes after the defendant left Langrieger's house, Langrieger went outside and saw the defendant jogging toward the house while holding a bag. Langrieger could see that there was a fire down the street because “the whole street was glowing up orange.” The defendant told Langrieger that he lit the fire “because there hasn't been a structure fire lately....” Langrieger and the defendant then heard the tone from Langrieger's pager announcing a fire at 21 Martin Terrace, which is approximately seven houses away from Langrieger's house. The defendant left Langrieger's house and ran toward the fire, where he met his father and grabbed his fire gear from the back of his father's car. Langrieger woke his father and sister and arrived at the fire with them five or ten minutes later.

At approximately midnight, Christopher Flynn, a sergeant in the Ansonia police department, received a call that there was a fire on Martin Terrace. He arrived at 21 Martin Terrace and observed a fire on the exterior wall of the garage attached to the house. Flynn banged on the front door and awoke the homeowner, Patrick DiCantio, informing him that his house was on fire and that he needed to evacuate. After DiCantio exited the house, Flynn checked the interior for more occupants. He looked into the garage, where he observed flames in the front far corner “starting to creep up the wall” and “roll toward the ceiling.” As Flynn was getting DiCantio out of the house, other emergency personnel began to arrive at the scene, including Ralph E. Tingley, the fire marshal for Ansonia. Tingley observed that the fire was burning almost the entire exterior side wall of the garage. In total, approximately forty firefighters responded to the fire.⁴

The firefighters eventually gained control of and extinguished the fire. The fire burned through the siding, insulation and sheathing of the side wall of the garage, destroying much of the garage. After the fire was extinguished, but before it was cleaned up, Langrieger and his family returned to their house and went to bed. The defendant returned to Langrieger's home sometime thereafter and talked with Langrieger. The defendant again admitted that he had lit the fire “because there hasn't been a structure fire lately....”

The next morning, on April 15, 2008, the defendant visited with Samantha Morisseau, with whom he was romantically involved,⁵ and Nicole Perez, Morisseau's best friend, at Morisseau's house.⁶ Morisseau received a call from Langrieger, who discussed the fire from the previous night. After getting off the telephone with Langrieger, Morisseau “asked [the defendant] if he knew anything about the fire because [she] heard that he started it....” The defendant responded that he had started the fire “because Ansonia fire department has not had a lot of structure fires lately....” Later that night, Perez, Morisseau and the defendant were at Morisseau's house when Morisseau received a telephone call from James Blaskewicz. Morisseau went inside to converse with Blaskewicz and left the defendant and Perez outside on the porch. While inside, Morisseau overheard the defendant and Perez talking about the fire, put the telephone down and asked the defendant if he startedthe fire. The defendant responded that he had started the fire.

On May 7, 2008, Morisseau, Perez, Langrieger and the defendant were socializing at Morisseau's house when John Rafalowski, a detective in the Ansonia police department, and another detective arrived to discuss the fire with Morisseau. Upon seeing the police car, the defendant told the group to “be cool,” his face turned red and he appeared nervous. Rafalowski asked Morisseau her age, and after she told him that she was sixteen years old, Rafalowski asked for the telephone number of her mother. After the detectives left, the defendant stated, “I bet [the police were] here because they think I started the fire.” The defendant then stated that he had to go home and left Morisseau's house.

On another occasion, on or about May 7, 2008, Morisseau asked the defendant if he had started any other fires because there had been an additional fire on Wakelee Avenue in Ansonia subsequent to the fire at 21 Martin Terrace. The defendant responded that “the only fire he started was on Martin Terrace, that he swears to God he didn't start the Wakelee Avenue fire.” Morisseau spoke with the defendant again on May 13, 2008. The defendant asked her if she had talked with the police, and Morisseau denied having done so.⁷ Morisseau then asked the defendant for a fourth time whether he had started the fire. The defendant stated, “yes, but not the one on Wakelee Avenue.”

On May 16, 2008, Rafalowski and Patrick Lynch, a detective sergeant in the Ansonia police department, interviewed the defendant at Ansonia High School. The defendant denied any involvement in starting the fire at 21 Martin Terrace. Lynch noticed, however, that when the conversation turned to the fire, the defendant appeared nervous.

Tingley, Ansonia's fire marshal, and Michael Grasso, a fire investigator for the homeowner's insurance company, conducted separate investigations of the fire at [136 Conn.App. 309]21 Martin Terrace. Both individuals determined, after examining the burn patterns, that the fire began on the exterior side of the garage. They also excluded accidental or natural causes. Tingley and Grasso both determined, for example, that there were neither any problems with the electrical system nor anything else in the garage that could have ignited the fire and that there had been no thunderstorms on the night of the fire. They ultimately concluded that the fire had been set intentionally. No accelerants were found, however, in the debris tested by the forensic laboratory.

The defendant was charged with arson in the first degree in violation of § 53a–111 (a)(1), and a jury trial followed. At the close of the state's case, the defendant made an oral motion for a judgment of acquittal on the ground of insufficiency of the evidence. The court denied the motion. The defendant renewed his motion for a judgment of acquittal at the close of all of the evidence, and the court, again, denied the motion. On June 1, 2010, the jury found the defendant guilty of the arson charge. On August 6, 2010, the court sentenced the defendant to a total effective term of ten years of imprisonment and two years of special parole. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly denied his motions for a judgment of acquittal because the evidence presented at trial was insufficient to establish that the fire at 21 Martin Terrace was set intentionally and that the defendant was the individual who set the fire. Specifically, the defendant argues that the testimony of Tingley and Grasso, both of whom the court qualified as expert witnesses as to the cause and origin of the fire, was unreliable.⁸ The defendant also argues that the testimony of Morisseau, Perez and Langrieger was “wholly insufficient to prove, beyond a reasonable doubt, that the defendant was culpable” because their testimony was inconsistent and not credible. Specifically, the defendant argues that Morisseau's testimony was “suspect, at best,” because of her romantic relationship with the defendant.⁹ The defendant asserts that Perez' testimony was unreliable because she claimed that she woke DiCantio and helped him across the street, which was contradicted by the testimony of Flynn and...