State v. Kalil

• Decision Date: 03 July 2012
• Docket Number: No. 32804.,32804.
• Citation: 46 A.3d 272,136 Conn.App. 454
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Albert KALIL.

136 Conn.App. 454

46 A.3d 272

STATE of Connecticut

v.Albert KALIL.

No. 32804.

Appellate Court of Connecticut.

Argued March 7, 2012.

Decided July 3, 2012.

Daniel J. Krisch, special public defender, with whom, on the brief, was Dana M. Hrelic, for the appellant (defendant).

Michele C. Lukban, Rocky Hill, with whom, on the brief, were Michael L. Regan, state's attorney, and Peter A. McShane, state's attorney, for the appellee (state).

LAVINE, ROBINSON and BEAR, Js.

ROBINSON, J.

The defendant, Albert Kalil, appeals from the trial court's judgment of conviction, following a jury trial, of burglary in the third degree in violation of General Statutes § 53a–103 (a) and larceny in the second degree in violation of General Statutes (Rev. to 2009) § 53a–123 (a). On appeal, the defendant contends that (1) the court improperly admitted the testimony of a Rhode Island police officer because the prejudicial effect of his testimony far outweighed its probative value, (2) there was insufficient evidence to prove that the defendant was guilty of burglary in the third degree or larceny in the second degree and (3) the court improperly joined the defendant's trial with that of his codefendant, Joseph Cote, when their defenses were mutually antagonistic. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 10:00 a.m. on January 27, 2009, Judith Stanton left her home located at 677 Pequot Trail in Stonington (Stonington property). When Stanton returned at approximately noon, she realized that the telephone was no longer on the wall, the liquor cabinet was open and drawers had been opened in every room upstairs. Her jewelry box had been “torn apart,” and pocket watches that were on display in a cabinet were missing. Jewelry, several $2 bills, a federal note and six $100 bills were missing from the property.

Lucinda Wesson, a resident of 672 Pequot Trail in Stonington lives directly across from the Stonington property. On the morning of January 27, 2009, she noticed a car she did not recognize parked on her street. It was a dark colored ¹ convertible Saab with a Massachusetts license plate. At that time, no one was in or near the car. Some time later, Wesson went to the other side of her home, and she again saw the car because it was stationed outside of her property. At this time, the passenger's side door was open, and a man was wandering in the middle of the street, appearing as if he were looking for something. The person driving the car told the passenger to get in the car, and the parties then left. Each of the individuals had a “very thick Massachusetts accent.” From her standpoint in her home, she believed the individual outside of the vehicle was approximately six feet tall,² and she apprised police that he was of Italian descent, with black hair, between forty and fifty years old, approximately 200 pounds and wearing a red sweatshirt type of jacket.³

An investigation at the Stonington property revealed that force had been used to open the rear door. An area of weather stripping that ran down the exterior of the door had been manipulated or moved. The damage was consistent with forced entry into the house. There were footprints in the snow outside the Stonington property that ran from the front of the home to the back door; however, the police were not able to get foot impressions. The Stonington police filed a report with the National Crime Information Center detailing the incident.

On January 27, 2009, at approximately 1:45 p.m., Raymond Driscoll, the police chief in Richmond, Rhode Island, drove past the home of an acquaintance located at 122 Kingston Road in Richmond (Rhode Island property). The homeowner's truck was not on the property; however, there was a black Saab convertible with Massachusetts license plates parked in the yard. Driscoll observed two men standing in front of the garage door looking into the garage through a window. He then observed one of the men looking through a door at the front step next to the garage. This man was “alternately looking over his shoulder between looking into the house.” One of the men noticed that Driscoll was watching, and both men quickly walked to the Saab and drove away.

Driscoll followed the vehicle, which pulled into an abandoned gasoline station parking lot. While Driscoll was calling for additional police support, the operator of the vehicle got out of the car and walked over to him. Driscoll asked the operator for his license and registration, which he retrieved. The license identified the operator of the vehicle as Cote, and his passenger was identified as the defendant.⁴ Cote volunteered that he and the defendant were on their way from the casino and had gotten lost. Cote stated that they had stopped at the house to ask for directions and that they were running out of gasoline. Driscoll asked Cote to turn the vehicle on, and Driscoll observed that the vehicle had more than one quarter of a tank of gas remaining.

The defendant was wearing a “sweatshirt type jacket,” and he had a pair of blood-stained white athletic socks in his jacket pockets. There was also a cut on the defendant's hand. When asked why he had socks in his jacket pocket, the defendant responded that he had “bad feet.” The defendant stated that he and Cote were at the casino, and he had won $100. When asked why he was at the Rhode Island property, the defendant stated they were lost and running out of gasoline and had stopped to ask for directions. When asked how they could be running out of gasoline when there were four gasoline stations within a mile and one quarter of where they were located, the defendant responded that he did not know. When asked why they chose to stop at the Rhode Island property and ask for directions when there were no cars in the driveway, the defendant responded that he did not know.

After obtaining Cote's consent, Driscoll searched the vehicle, finding some articles of clothing in the back seat, a pair of black gloves on the center console and a screwdriver, a pry bar and a hatchet/hammer in the trunk. When the additional police support arrived, Driscoll went back to the house and noticed two sets of footprints in the snow leading from the front of the home to the rear of the home and back to the front.⁵ He could see where an individualhad stopped on the back step and presumably looked into the house through the back door. There did not appear to be any entry into the house.

Driscoll placed the defendant in the back seat of an officer's cruiser and asked Cote to follow him to the police station. He pulled into the parking area behind the station, and Cote pulled up to the front of the station. After parking, Driscoll went to the front of the police station, and “Cote was standing on the sidewalk in front of the Saab ... right in front of a row of small shrubbery that's in front of the police station.” Driscoll again obtained consent to search Cote's vehicle, and he seized the hatchet/hammer, screwdriver and pry bar. When looking through the interior of the vehicle, the police seized a costume jewelry gemstone. The gemstone was approximately one-quarter inch by one-quarter inch in size and blue or green in color. It was found between the driver's seat and the passenger's seat in the Saab.

The Richmond police later recovered a bag from the bushes in front of the Saab that was parked in the police department parking lot. Inside the bag, there were various types of jewelry, including pocket watches, rings and bracelets. The bag contained approximately fifty pieces of jewelry. The bag also had a piece of jewelry with gemstones that matched the gemstone found inside the vehicle.

The Stonington police were notified that the Richmond police department had found individuals and goods that were consistent with the Stonington burglary. The Stantons viewed the jewelry obtained by the Richmond police department and identified it as their property.⁶ The defendant and Cote thereafter were arrested by the Stonington police and charged with burglary in the third degree and larceny in the second degree.

The jury found the defendant and Cote guilty of burglary in the third degree in violation of § 53a–103 (a)and larceny in the second degree in violation of General Statutes (Rev. to 2009) § 53a–123 (a). The defendant was sentenced to a total effective sentence of nine years incarceration. Additional facts will be set forth where necessary.

I

The defendant's first claim on appeal is that the court improperly admitted the testimony of Driscoll when the prejudicial effect of his testimony far outweighed its probative value. The defendant contends that Driscoll's testimony was not relevant to complete the story of the burglary and the capture of the defendant nor was it proof of the defendant's intent. Rather, the defendant argues it was evidence only of his bad character, and, therefore, was unduly prejudicial.

The following additional facts are relevant to the resolution of the defendant's claim. Prior to trial, defense counsel filed a motion in limine to bar Driscoll's testimony about any observations that he made prior to stopping the defendant and Cote in Rhode Island on January 27, 2009. Counsel argued that allowing Driscoll to testify as to the nature of the incident he observed would be extremely prejudicial to the defendant, as the defendant was not charged for that incident and it was separate from the charges in Connecticut. The state, in turn, argued that the testimony would complete the story of the Stonington burglary and demonstrate the defendant's intent to commit the Stonington burglary. The court determined that the testimony was admissible to complete the story. The court cited State v. Ali, 233 Conn. 403, 427, 660 A.2d 337 (1995), for the proposition that misconduct evidence is admissible to “complete the story of the charged crime by placing it in the context of nearby and nearly contemporaneous...