State v. Izzo

• Decision Date: 30 March 2004
• Docket Number: (AC 23646)
• Citation: 82 Conn. App. 285,843 A.2d 661
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. JOSEPH IZZO

82 Conn. App. 285

843 A.2d 661

STATE OF CONNECTICUT v. JOSEPH IZZO

(AC 23646)

Court of Appeals of Connecticut.

Argued January 9, 2004.

Officially released March 30, 2004.

Dranginis, McLachlan and Stoughton, Js. David V. DeRosa, special public defender, for the appellant (defendant).

Proloy K. Das, special deputy assistant state's attorney, with whom, on the brief, were Walter D. Flanagan, state's attorney, and Anthony Bochicchio, assistant state's attorney, for the appellee (state).

Opinion

STOUGHTON, J.

The defendant, Joseph Izzo, appeals from the judgment of conviction, rendered after a jury trial, of two counts of burglary in the first degree in violation of General Statutes §§ 53a-101 (a) (1) and (2), conspiracy to commit burglary in the first degree in violation of General Statutes §§ 53a-48 and 53a-101 (a) (1), and attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134 (a) (2). His sentence was enhanced for having committed a class B felony with a firearm in violation of General Statutes § 53-202k. On appeal, the defendant claims that (1) he was deprived of his right to due process and a fair trial by the introduction of evidence of prior misconduct, (2) the prosecutor engaged in egregious misconduct and, thus, deprived him of a fair trial and (3) the evidence was insufficient to prove entry into the victims' residence, a required element of the burglary charge. We do not agree with those claims and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Sometime in June, 2001, the defendant told Michael Martinez about a plan to lie in wait for Thomas Farrington and his wife, Susan Farrington, outside of their house in New Fairfield. The defendant plotted to push the Farringtons into their house, tie them up and rob them. The defendant showed Martinez the Farringtons' house, as well as a shotgun and some wire ties. The defendant informed Martinez that there was $100,000 located in the Farringtons' safe and that Martinez' part in the robbery would be to grab Susan Farrington. Martinez declined to participate in the defendant's plan.

On June 4, 2001, Martinez, after being arrested on an unrelated matter, told the police that he had information about a pending home invasion and robbery. He described the plan and said that it was suggested to him by "Joe," an individual he described as "an Italian" who was staying at a Best Western motel. The police found the name of the defendant registered at the motel and showed Martinez a photographic array containing three photographs from which Martinez identified the defendant. The police drove Martinez around New Fairfield, and he identified the Farringtons' home as the target of the defendant's plan. The state police were notified, and they watched the house for a time until they believed the danger had passed.

The police informed Thomas Farrington of the possible plot against him and his wife. The Farringtons subsequently devised a plan for self-protection. Thomas Farrington, a gun collector, deposited loaded guns in various places in his house. He and his wife arranged that whenever they arrived home, she would remain in their vehicle until he had determined that it was safe for her to enter the house. The plan was for him to enter the house, turn off the alarm and turn on the outside lights as a signal that it was safe to enter.

On June 28, 2001, the Farringtons returned home after having gone out to dinner. They arrived just after 10 p.m. and utilized their security precautions. Thomas Farrington entered the home, turned off the alarm, turned the lights on and told his wife to come in. As Susan Farrington got out of the car, three men rushed at her from their concealed hiding spot near the house. Two of the men ran toward her and threw her to the ground. All of the men wore masks of some kind and were armed. One of the men had a handgun, which he put to her head. Susan Farrington screamed for her husband and watched as a man with a mask and a rifle ran to the house. When Thomas Farrington heard his wife's screams, he retrieved a loaded handgun from under a cushion on a nearby couch. He then saw the front door of his house open and a masked man enter carrying a rifle. As the intruder looked to his right and saw him, Thomas Farrington attempted to shoot his handgun, but the weapon would not fire because the safety was on. The intruder ran from the Farringtons' house. Thomas Farrington followed the masked intruder from the house and saw one of the other men still on top of his wife, who was lying prone on the ground. Thomas Farrington fired his handgun at the man who had run from the house. Thomas Farrington fired gunshots until the weapon's magazine was empty but did not hit anyone. The two men who had attacked Susan Farrington fled, and Susan Farrington managed to retreat to the safety of the house. Thomas Farrington, after obtaining a second gun from the house, told his wife to telephone the police.

Thomas Farrington then observed one of the men running up a hill and took the cordless telephone from his wife to report what had happened. He ran to the street and saw the man getting into a sport utility vehicle that was located up the hill. He fired six gunshots, hitting the vehicle with some of them.¹ The vehicle sped away and eventually went off the road, down an embankment and crashed into a tree. The three men were able to escape through a wooded area. Neither of the Farringtons could identify any of the three masked men.

The police arrived at approximately 10:30 p.m., set up roadblocks and used dogs to try to track the suspects. They found a green vehicle in a gully near the Farringtons' house. There were bullet holes in the vehicle, and bullet fragments were found that were determined to have been fired from Thomas Farrington's gun. In the vehicle, the police found the defendant's cellular telephone and pager. On the ground next to the vehicle, the police recovered a gas mask, and subsequent testing revealed the presence of the defendant's DNA in the mask. The police also found two duffle bags on the Farringtons' property that contained, among other items, a baseball bat, duct tape, electrical ties, a two-way radio, ammunition and latex gloves.

The green vehicle that the masked men had used to flee the scene was registered to the father of Theresa Hinty, the defendant's girlfriend. Earlier that evening, Hinty had driven the vehicle to a restaurant where she worked and left it parked there. The defendant had called Hinty on his cellular telephone at about 9 p.m. and arranged for her to leave the ignition key under the mat of the vehicle so that he could borrow it that night. At about 11 p.m., she discovered that the vehicle was not in the lot.

At some point in time, the defendant told Martinez that the plan had backfired. He explained to Martinez that the victim had two guns and had shot at him, that he ran and escaped through the wooded area and that he saw state police dogs in the wooded area.

Before we discuss the defendant's claims, we note that it often is possible, after the verdict, to conclude that certain pieces of evidence might not have been absolutely necessary. We recognize, however, that when a defendant in a criminal trial pleads not guilty, the state is required to meet the burden of proving, beyond a reasonable doubt, that the defendant committed the crimes charged. The parties do not know beforehand how the witnesses will withstand cross-examination, how the jury will assess their credibility or how it will interpret the evidence.

We also reiterate the common-law principle, recognized in our case law and code of evidence, that any evidence that is relevant is admissible unless some other rule makes it inadmissible. See Jenkins v. Kos, 78 Conn. App. 840, 843, 829 A.2d 31 (2003); Conn. Code Evid. § 4-2. A party is entitled to offer any relevant evidence to aid the trier of fact in its determination, as long as the evidence is not unfairly prejudicial. Jenkins v. Kos, supra, 845.

I

The defendant first claims that five instances of irrelevant prior misconduct "found their way in front of the defendant's jury."² Of those five instances, only one was properly preserved for review.

At the outset, we set forth certain legal principles and the standard of review that guides the resolution of the defendant's claim. "Connecticut Code of Evidence § 4-1 provides in relevant part that [r]elevant evidence means evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence. As it is used in the code, relevance represents two distinct concepts: Probative value and materiality. Conn. Code Evid. § 4-1, commentary. Conceptually, relevance addresses whether the evidence makes the existence of a fact material to the determination of the proceeding more probable or less probable than it would be without the evidence.... [I]t is not necessary that the evidence, by itself, conclusively establish the fact for which it is offered or render the fact more probable than not. Conn. Code Evid. § 4-1, commentary. In contrast, materiality turns upon what is at issue in the case, which generally will be determined by the pleadings and the applicable substantive law .... Id. If evidence is relevant and material, then it may be admissible. See id., § 4-2." (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Gombert, 80 Conn. App. 477, 488-89, 836 A.2d 437 (2003), cert. denied, 267 Conn. 915, 841 A.2d 220 (2004).

"We begin our review of the trial court's action by noting that [a]s a general rule, evidence of prior misconduct is inadmissible to prove that a defendant is guilty of the crime of which he is accused.... Nor can such evidence be used to suggest that the defendant has a bad...