State v. Girolamo

• Decision Date: 13 August 1985
• Docket Number: 11622,Nos. 12342,s. 12342
• Citation: 197 Conn. 201,496 A.2d 948
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Joseph GIROLAMO.

Page 948

496 A.2d 948

197 Conn. 201

STATE of Connecticut v. Joseph GIROLAMO.

Nos. 12342, 11622.

Supreme Court of Connecticut.

Argued May 3, 1985.

Decided Aug. 13, 1985.

Jon L. Schoenhorn, Hartford, with whom, on brief, was Joseph Rubin, Hartford, for appellant (defendant).

Susann E. Gill, Deputy Asst. State's Atty., with whom, on brief, were John Bailey, State's Atty., Kevin Kane, Timothy McNamara, and Carl Schuman, Asst. State's Attys., for appellee (state).

Before PETERS, C.J., and ARTHUR H. HEALEY, DANNEHY, SANTANIELLO and CALLAHAN, JJ.

ARTHUR H. HEALEY, Associate Justice.

The defendant has appealed from convictions after two separate criminal trials. The defendant was convicted by a jury, in May, 1982, of two counts of theft of a firearm in violation of General Statutes § 53a-212 and of fourth degree larceny by receiving stolen property in violation of General Statutes § 53a-119 and § 53a-123. In a separate jury trial in June, 1982, the defendant was convicted of two counts of conspiracy to commit first degree larceny in violation of General Statutes § 53a-48 and § 53a-122 and of first degree larceny in violation of General Statutes § 53a-119 and § 53a-122.

Although the claim of error raised by the defendant in his appeal from each trial rests on its own merits, the appeals were consolidated as certain pretrial motions and the sentencing proceedings were conducted jointly. ¹

I

(Case No. 12342: May 1982, Conviction)

The defendant's first claim of error with respect to the May, 1982 trial is the admission by the trial court into evidence of two automatic handguns which were not relevant to any issue before the jury. The state concedes that the trial court erred in admitting the guns because the guns were not relevant to the issues in the case. The state argues, nevertheless, that the error does not require reversal because the defendant has not sustained his burden of proving harmfulness.

This first trial centered on charges arising out of the seizure of two "showpiece" magnum handguns and a television set, items that had been reported to the police as stolen during burglaries in 1979. These items were found in the defendant's home when searched under a warrant in February, 1980.

It was during the same police search that revealed these stolen items that the two automatic handguns, rightfully in the defendant's possession, were also discovered. All of the handguns that were found were seized for the protection of the officers according to the testimony of police officers at trial.

The introduction into evidence of the automatic handguns, ² a .25 Colt and .380 Lama, occurred despite two motions by the defendant to suppress. The first motion to suppress the guns, as well as other items seized during the search, alleged that the warrant for the search of the defendant's house was issued without probable cause. The motion was denied without prejudice on March 23, 1982. The defendant renewed his motion to suppress just prior to his trial in May, 1982, and a full evidentiary hearing was held. At this hearing, the police officers who conducted the search were questioned as to the scope of the search. In addition, the departmental police policy of seizing any guns found during a search for the safety of the officers involved was explored extensively by both sides. The trial court denied the second motion to suppress on May 12, 1982.

At trial, the state did not attempt to introduce the two automatic weapons in question until after the defendant's counsel cross-examined one of the investigating officers. During cross-examination the officer stated that there were guns, other than the two showpiece guns, on the defendant's premises.

On redirect examination, the state continued and expanded the questioning of the police officer concerning the automatic weapons. The state then attempted to offer into evidence the .25 caliber Colt pistol the police officer identified as one of the two guns found in the defendant's bedroom. The defendant objected and the jury was excused. The grounds of the defendant's objection were that the automatic pistols were not related to the charges against the defendant and that these guns were immaterial, irrelevant and prejudicial. The objection was overruled on the ground that the "probative value [of the guns] outweighs the prejudicial effect." The state then made an offer of proof that included the .380 Lama automatic as well as the .25 caliber Colt automatic. Both automatic pistols were ruled admissible. After a discussion between the trial court and counsel, which was extraneous to this prior ruling, the trial court, sua sponte, reversed itself on the admissibility of the automatic pistols. In doing so, the court stated that the guns "have no direct relevance to the issues in the case" and that to have them as "physical" exhibits in the case "gilds the lily" and "creates more of a prejudice than a probative value." The jury then returned. The defendant's counsel, on the recross-examination of the police officer, questioned him about his reasons for seizing unloaded guns. The officer again responded, as he had during the suppression hearing, that the departmental policy was to seize all guns for the "safety of the officers involved."

Upon the second redirect examination of this officer by the state, he explained the instructions that the officers had been given concerning the seizure of handguns during searches. During this questioning, the discovery of the two loaded automatic pistols in the defendant's bedroom was again developed. The state attempted for a second time to offer the two automatic handguns; the defendant objected for the same reasons of relevancy and prejudice. The trial court then ruled that the guns were now admissible because "at this point the probative value outweighs the prejudicial effect and because of the recross and redirect...." The defendant's claim of prejudicial error arises out of this admission into evidence of the two automatic handguns as full exhibits.

The trial court, after the admission of the two automatic handguns as full exhibits, gave a limiting instruction to the jury about the purpose of the admission of the guns. The jury was told that the guns were only introduced to corroborate testimony that the guns were seized during the search for the safety of the police.

In conceding that the trial court erred in admitting into evidence the two automatic handguns, the state acknowledges that the error in the admission stems from the lack of relevancy of the automatic guns to the guilt or innocence of the defendant as to the pending criminal charges. According to the state, the automatic guns were probative only on the issue of the police officers' motivations for the seizure of the guns during a search. The legality of the search is not, however, an issue in this appeal.

The dispositive issue, therefore, arising out of defendant's May, 1982 trial is whether the error of the trial court in admitting into evidence the two automatic handguns seized in connection with the stolen guns was harmful error. We hold that it was.

"This court has consistently indicated that ' " '[a]ny improper evidence that may have a tendency to excite the passions, awaken the sympathy, or influence the judgment, of the jury, cannot be considered as harmless.' " State v. Loughlin, 149 Conn. 21, 26, 175 A.2d 367 [1961]; see State v. Acklin, [171 Conn. 105, 115-16, 368 A.2d 212 (1976) ]; State v. Ferraro [160 Conn. 42, 45, 273 A.2d 694 (1970) ].' State v. Onofrio, 179 Conn. 23, 32-33, 425 A.2d 560 (1979)." State v. Williams, 190 Conn. 104, 109, 459 A.2d 510 (1983); see also St. Martin v. New York, N.H. & H.R. Co., 89 Conn. 405, 411, 94 A. 279 (1915).

The jury had before it, during the trial as well as during deliberations in the jury room, the two automatic weapons, each with clips with a number of live rounds of ammunition. Additionally, the police officer who testified to the seizure of the weapons had demonstrated to the jury, using the .25 Colt handgun, the ease with which a user of the gun could put a shell into its chamber. Another police officer testified, prior to the offer of the automatic guns into evidence and without objection by the defendant, to the discovery of the two loaded automatic weapons during the search of defendant's house. Although this testimony was admitted without objection, it was not, as the state claims, "merely cumulative." Rather, with the introduction of the irrelevant guns as demonstrative evidence, at the very least the jury could have believed that the defendant was a violent individual. State v. Ferraro, supra, 160 Conn. 46, 273 A.2d 694; cf. State v. Villafane, 171 Conn. 644, 675-76, 372 A.2d 82, cert. denied, 429 U.S. 1106, 97 S.Ct. 1137, 51 L.Ed.2d 558 (1977).

The trial court's attempt to cure the error of its admission by a limiting instruction was not sufficient to overcome the prejudicial effect of the weapons as a full exhibit. The limiting instruction informed the jury that the automatic weapons were not claimed by the state to have been stolen and that there was nothing illegal about the defendant's possession of these guns in his house. The jury was told not to draw any inference of guilt from the defendant's possession of these weapons but merely to consider them as corroborative of the officer's testimony that the guns were seized for the "safekeeping" of the officers. We have stated, however, that "a curative instruction is not inevitably sufficient to overcome the prejudicial impact" of inadmissible evidence. State v. Tinsley, 180 Conn. 167, 170, 429 A.2d 848 (1980); see State v. Binet, 192 Conn. 618, 633, 473 A.2d 1200 (1984).

The jury was still left with the tangible exhibits, i.e., the automatic handguns, in the jury room while deliberating the charges brought against the defendant. "Real proof often has enormous apparent probative force because the lay trier may lose sight of the fact that its...