State v. Lago

• Decision Date: 17 September 1992
• Docket Number: No. 9866,9866
• Citation: 611 A.2d 866,28 Conn.App. 9
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Ralph LAGO, Sr.

Page 866

611 A.2d 866

28 Conn.App. 9

STATE of Connecticut v. Ralph LAGO, Sr.

No. 9866.

Appellate Court of Connecticut.

Argued Feb. 21, 1992.

Decided June 23, 1992.

Certification Denied Sept. 17, 1992.

Freedman, J., filed a concurring opinion.

Wesley W. Horton, with whom were Robert M. Shields, Jr., Hartford, David B. Harting, and, on the brief, Richard J. Joseph, Middlebury, for appellant (defendant).

James A. Killen, Asst. State's Atty., with whom, on the brief, were John Connelly, State's Atty., and Edward Ricciardi, Asst. State's Atty., for appellee (state).

Before FOTI, LAVERY and FREEDMAN, JJ.

FOTI, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of arson in the second degree in violation of General Statutes § 53a-112 (a), and insurance fraud in violation of General Statutes § 53a-215(a)(1). ¹ On appeal, the defendant raises three claims. He contends that the trial court improperly (1) permitted unreliable identification testimony, (2) instructed the jury on the defendant's failure to call a witness, and (3) found sufficient evidence to convict the defendant of insurance fraud and, therefore, denied his motion for a new trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On April 20, 1989, a fire destroyed the house of Diana Lago at 48 East Street in Wolcott. She had been awarded sole possession of the house after her divorce from the defendant. The defendant resented her possession of the house and had threatened her life, telling her she would never enjoy the house and that she was not going to keep it. After the fire, the defendant indicated that if she rebuilt the house with insurance proceeds, it would "go up again," with her in it. In February, 1989, Diana Lago had changed the locks of the house and found that on March 8 the defendant had entered the house and that all the locks had been removed. The following day, Diana Lago discovered that new locks had been installed on the doors. She called the police. Upon their arrival, she entered the house to find all the lights on and the thermostats turned all the way up. The defendant called Diana Lago later that evening and told her that he had left a key on a table. The key fit only the door leading to the basement exit. Subsequently, only she and the defendant had keys to the house. A few days prior to the fire, she discovered that someone had dismantled the fire alarm system in the house.

On the night of the fire, Diana Lago left the house at approximately 6:05 p.m. Her friend picked her up to go bowling, as they had done every Thursday evening for ten years. She locked the house with her dog inside. Soon after leaving the house, Diana Lago and her friend observed the defendant driving his Ford van in the direction of the house on a road that intersects with East Street. At approximately 6:30 p.m., an acquaintance of the defendant observed him driving his van away from East Street. At the time, the defendant was wearing a red plaid jacket. Between 6:20 and 6:30 p.m., a neighbor saw Diana Lago's dog outside, but did not observe anything unusual or any indication of smoke or fire.

At approximately 7:45 p.m., Robert Trerice, a lieutenant of the Waterbury fire department, drove by the Lago house. He observed heavy smoke and flames shooting out of the back of the house. He watched a man step out of the front door and appear to try to lock it. The man was approximately 5 feet 8 inches tall with a husky build, and dark hair which was gray or white around the ears. He was approximately forty to fifty years old. The man was wearing blue or green industrial type work clothes. Trerice also observed two cars in the driveway, one of which was medium sized and similar to a Datsun or Toyota. Trerice proceeded to the firehouse and returned shortly thereafter with the fire department. He did not see the man at the scene upon his return.

At approximately the same time that Trerice passed the house, a neighbor witnessed flames and smoke at the Lago house from her backyard. She also heard screeching tires and observed a small brown car pull out of the Lago driveway and proceed north toward Wolcott center. She described the car as similar to a Toyota Corolla or small Mustang, with dark windows seemingly covered in dark plastic. The vehicle did not appear to have any chrome or bumpers. The screeching tires reminded her of the way that the defendant's son, Ralph Lago, Jr., drove when he lived at the house.

Shortly thereafter, Larry Thomas, a fireman, was driving south on County Road. He observed a small orange-brown Toyota type car proceed at a high rate of speed through the stop sign at County Road and East Street. A few minutes later he saw a large column of black smoke coming from the area of the Lago residence. He later identified a car sitting in the driveway of the defendant's son's house as the one he had seen go through the intersection.

When the firefighters arrived at the Lago house, they found all of the doors locked. Although the fire had not been burning long, the house was fully in flames. Firefighters were able to detect the presence of an accelerant. On the following day, it was determined that the fire had been ignited intentionally and that an accelerant had been used. The living room, which had sustained the most damage, smelled of gasoline. Tests indicated the presence of gasoline and number two fuel oil or diesel fuel. Typically, gasoline is combined with fuel oil and used as an accelerant because gasoline is easier to ignite, and number two fuel oil causes the accelerant to burn longer than if gasoline alone is used. The defendant's oil truck, which was parked in the Lago driveway, contained number two fuel oil. According to Christine Bosco and John Korab, attendants at two different gas stations in Wolcott, a man fitting the defendant's description purchased gasoline in a container from them on the day of the fire.

I

The defendant first claims that the trial court improperly permitted the introduction of unreliable testimony that was the result of unnecessarily suggestive identification procedures. The following additional facts are pertinent to our analysis of this claim.

A TESTIMONY OF ROBERT TRERICE

At trial, Trerice described the height, build and clothing of the man he had observed at the scene of the fire. In particular, Trerice described the man's hair. At the time he observed the man, it was daylight and Trerice got a good look at the individual's back and side. He did not view the man's face straight on. Trerice observed the man from approximately 120 feet.

As a result of the defendant's motion to suppress identification, the court held a hearing in the absence of the jury at which the following facts came to light. The defendant had been videotaped without his knowledge at the police station the day after the fire while speaking to Lieutenant Joseph Forte. Later that day, Trerice viewed the videotape and indicated that the man in the tape was very similar to the man he had seen at the house and that the hair of each was identical. He could not, however, make a positive identification.

Trerice offered to testify before the jury as to the similarity between the man he had seen in the videotape and the man he had seen at the scene. The court did not treat this proffered testimony as an identification but distinguished it as 'resemblance" testimony. Although the court found that the police had used an unnecessarily suggestive procedure in showing Trerice the videotape, the court admitted Trerice's testimony on the basis that Trerice was not making an identification nor was his testimony leading to an identification of the defendant. The court explicitly prohibited Trerice from making any comparison before the jury between the defendant and what he had seen. The court refused to admit the videotape itself into evidence on the basis that it was unnecessarily suggestive. In the jury's presence, Trerice testified as to the similarities between the man he had seen at the house and the man he had viewed on the videotape, specifically as to hair, age and build. The defendant took an exception. Later in the trial, Forte identified the person on the videotape as the defendant. He indicated that at the time of the taping, the defendant wore blue work pants, dark shoes, a red plaid wool or flannel hip length jacket and a red shirt.

We agree that Trerice's testimony was not identification testimony. Whether resemblance testimony is the same as identification testimony in each case in which there has been an improper identification procedure is an issue of first impression in our state. We note that there is disagreement among the federal courts that have had occasion to pass on this issue. Compare United States v. Brooks, 449 F.2d 1077 (D.C. Cir.1971) with Patler v. Slayton, 503 F.2d 472 (4th Cir.1974). In United States v. Brooks, the District of Columbia Circuit Court of Appeals stated that "[w]hile 'resemblance' testimony projects some uncertainty on the part of the witness, it is part of the evidence which the jury may consider to constitute a basis for a guilty verdict, and a defendant's rights would be violated if such testimony had been obtained by the Government e.g., by an arrantly suggestive confrontation." United States v. Brooks, supra, at 1083. We find the view articulated by the Fourth Circuit in Patler v. Slayton, supra, to be more compelling, however. In that case the Fourth Circuit held that although the line between resemblance and identification testimony may be thin, it is a "line worth drawing." Patler v. Slayton, supra, at 476. This view has also been adopted by the Appellate Division of the New York Supreme Court. See People v. Moss, 172 App.Div.2d 856, 569 N.Y.S.2d 457 (1991), appeal granted, 78 N.Y.2d 1079, 583 N.E.2d 954, 577 N.Y.S.2d 242 (1991); People v. Sanders, 108 App.Div.2d 316, 489 N.Y.S.2d 348 (1...