State v. Kitt

• Decision Date: 11 November 1986
• Docket Number: No. 2190,2190
• Citation: 513 A.2d 731,8 Conn.App. 478
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. William KITT.

Page 731

513 A.2d 731

8 Conn.App. 478

STATE of Connecticut v. William KITT.

No. 2190.

Appellate Court of Connecticut.

Argued March 20, 1986.

Decided Aug. 12, 1986.

As Modified on Reargument Nov. 11, 1986.

John O'Meara, Certified Legal Intern, with whom were Timothy H. Everett, Bridgeport, and, on brief, Charles E. Oman, Certified Legal Intern, for appellant (defendant).

James G. Clark and Christopher Malaney, Deputy Asst. State's Attys., with whom, on brief, were James Bernardi, Asst. State's Atty. and Susan C. Marks, Deputy Asst. State's Attys., for appellee (State).

Before BORDEN, DALY and BIELUCH, JJ.

BIELUCH, Judge.

The defendant has appealed from the judgment of conviction, after a jury trial, of one count each of burglary in the third degree, in violation of General Statutes § 53a-103; conspiracy to commit burglary in the third degree, in violation of General Statutes § 53a-48; larceny in the third degree, in violation of General Statutes § 53a-124; and conspiracy to commit larceny in the third degree, in violation of General Statutes § 53a-48. The defendant was sentenced to serve two concurrent three year sentences for the underlying counts of burglary and larceny, and two consecutive one year sentences on the conspiracy counts, for a total effective sentence of five years. The defendant claims that the court erred (1) in denying his motion for a mistrial and in failing to give the jury a cautionary instruction after the state attempted to argue that an adverse inference should be drawn from a witness' decision to remain silent, and (2) in permitting a charge of larceny in the third degree to go to the jury when the information charged him with larceny in the second degree. ¹

The jury could reasonably have found the following facts. The defendant was arrested early in the morning of April 10, 1983, outside the Diane Knitwear Fabrics factory in Norwalk. City police officers had been directed to the factory by a security service, which had informed the police that an alarm had been triggered at the plant. Patrolman Steven J. Tyska was the first officer to arrive on the scene. While waiting for other police units to arrive, Tyska heard a person walking on metal stairs and then observed the defendant coming down a factory fire escape. The defendant was placed under arrest by another officer who had arrived at the scene. Tyska thereafter climbed the fire escape and found a large cardboard box and a green garbage bag which together contained a total of 145 sweaters. A subsequent search of the building by a police dog revealed two other men, Leon Knowles and James Leroy Moore, hiding under an empty box.

As a result of these events, the defendant was charged on April 11, 1983, in an information with (1) burglary in the third degree, in violation of General Statutes § 53a-103, (2) conspiracy, in violation of General Statutes § 53a-48, and (3) larceny in the second degree in violation of General Statutes § 53a-123. On April 29, 1983, the defendant pleaded not guilty to each of these three counts and elected to be tried by a jury. On the day before the trial commenced on these charges, June 13, 1983, the state filed an amended information, adding a fourth count of conspiracy to commit larceny in the second degree, in violation of General Statutes § 53a-48. Our record in this case does not disclose that the defendant was thereafter put to plea on this charge, although, at the outset of the trial on the following day, after the reading of the four-count information, the court informed the jury: "On these charges he was arraigned. On his arraignment, he pleaded not guilty."

On June 15, 1983, at the close of the state's case-in-chief, the defendant moved for a judgment of acquittal on the charges of larceny and conspiracy to commit larceny in the second degree, since the only evidence of the value of the 145 sweaters found by the police was below the minimum amount needed to establish larceny in the second degree. ² The state then conceded that it could not prove that the defendant had committed larceny in the second degree, and declared its intention to ask for an instruction on larceny in the third degree. The court granted the motion for a judgment of acquittal, but in view of the state's request the court stated that it would instruct the jury on larceny in the third degree. Additional motions for acquittal of the other charges were denied. In addition to charging on burglary in the third degree and larceny in the third degree, the court charged the jury on conspiracy to commit burglary in the third degree and conspiracy to commit larceny in the third degree. The jury found the defendant guilty of all four of these charges. The court thereafter sentenced him to serve an effective sentence of five years in prison. ³

The defendant's first claim of error is that the trial court erred in denying his motion for a mistrial after permitting the prosecution to claim, before the jury, that an adverse inference should be drawn from Moore's decision to stand on his constitutional right to refuse to testify. ⁴ We find no error on this claim.

Moore was called to the witness stand by the defense despite his declared intention to stand on his fifth amendment right to refuse to testify because of his pending criminal prosecution. When he repeated his intention to exercise that privilege, the assistant state's attorney interrupted any further questioning, stating: "Well, your Honor, I believe he is pleading the fifth amendment on the grounds that the answer to the question might incriminate him." Subsequently, the assistant state's attorney asserted that "[the fifth amendment] can only be invoked when the question will expose the witness to a substantial hazard of prosecution. So, if he is admitting here that he has invoked his fifth amendment privilege because it will expose him to a substantial hazard of prosecution, I would like to have that." The defense now argues that these statements improperly raised the inference that Moore had refused to testify because, if he testified truthfully, he would have had to state that he did conspire with the defendant. ⁵

Despite the fact that the assistant state's attorney's comments were made before the jury, the defendant never objected to those comments on the day when they were made. Rather, on the next day, the defendant moved for a mistrial on this ground. Under very similar circumstances, our Supreme Court, in State v. Reddick, 197 Conn. 115, 496 A.2d 466 (1985), cert. denied, --- U.S. ----, 106 S.Ct. 822, 88 L.Ed.2d 795 (1986), concluded that the record did not support the defendant's claim that the court had erred in denying his motion for a mistrial, in which he alleged that the state knowingly and repeatedly asked questions of the witness designed to elicit an invocation of the witness' fifth amendment privilege. Id., 126, 496 A.2d 466. In the present case, the defendant failed to make a timely objection to the prosecutor's remarks. Nor does the record reveal that the court should have granted the motion for mistrial.

" '[S]ome courts have indicated that error may be based upon a concept of prosecutorial misconduct, when the Government makes a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege.... A second theory seems to rest upon the conclusion that, in the circumstances of a given case, inferences from a witness' refusal to answer added critical weight to the prosecution's case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant.' [ Namet v. United States, 373 U.S. 179, 186-87, 83 S.Ct. 1151, 1154-55, 10 L.Ed.2d 278 (1963) ]." State v. Reddick, supra, 197 Conn. 126, 496 A.2d 466. In the present case, it was the defendant's question which prompted the witness to invoke the fifth amendment, not the state's examination. The assistant state's attorney, by his comments, merely clarified the basis for the witness' invocation of that right. " '[T]he prosecutor need not accept at face value every asserted claim of privilege, no matter how frivolous.' Namet v. United States, supra, [373 U.S.] 188 ." State v. Reddick, supra, 197 Conn. 127, 496 A.2d 466. In order to protect the state's legitimate interest in the prosecution, the prosecutor had the obligation to verify that the witness was invoking his own fifth amendment right. In so doing, he neither attempted to build his case upon adverse inferences, nor did he attempt to afford critical weight to his case by the pursuit of such an inference. Further, as the trial court indicated, if the witness had testified, that testimony could be used against him at his own pending trial. Similarly, his decision not to testify at the defendant's trial could be relevant to the state's subsequent prosecution of the witness. Thus, the court did not err in denying the defendant's motion for a mistrial.

The defendant's second claim of error is that, since he was originally charged with larceny in the second degree in violation of General Statutes § 53a-123, the court erred in charging the jury on larceny in the third degree in violation of General Statutes § 53a-124 because larceny in the third degree is only a lesser included offense of the form of larceny in the second degree contained in General Statutes § 53a-123(a)(2). We agree.

On June 15, 1983, when the state rested its case-in-chief, the defendant moved for acquittal of the charges of larceny and conspiracy to commit larceny in the second degree. The court granted that motion but, in accordance with the state's concession that it could not prevail on the charge of larceny in the second degree and its request for a later instruction on larceny in the third degree, the court advised that it would later instruct the jury on larceny in the third degree. ⁶ The defendant did not object to this sequence of events at the time, or at any time thereafter before the close of...