State v. Lynch

• Decision Date: 01 May 1990
• Docket Number: No. 7739,7739
• Citation: 21 Conn.App. 386,574 A.2d 230
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Edward T. LYNCH.

Page 230

574 A.2d 230

21 Conn.App. 386

STATE of Connecticut v. Edward T. LYNCH.

No. 7739.

Appellate Court of Connecticut.

Argued Jan. 12, 1990.

Decided May 1, 1990.

Wesley W. Horton, with whom were Jeffrey A. Hoberman, Hartford, and M. Hatcher Norris, Glastonbury, for appellant (defendant).

Susan C. Marks, Asst. State's Atty., with whom, on the brief, were Harry Weller and John Malone, Asst. State's Attys., for the appellee (state).

Before DUPONT, C.J., and SPALLONE and LAVERY, JJ.

DUPONT, Chief Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of criminal attempt to commit larceny in the first degree by extortion in violation of General Statutes §§ 53a-49 and 53a-122(a)(1), and conspiracy to commit larceny by extortion in violation of General Statutes §§ 53a-48 and 53a-122(a)(1). ¹ He and a codefendant, Paul Fox, were tried together. The defendant challenges the admission into evidence of an out-of-court statement made by Fox, and the sufficiency of the evidence for his conviction of both criminal charges.

The facts in this case revolve around a partially abandoned mill property in the town of Enfield. In 1980, the property was purchased by Martin Levitz, a real estate developer. ² In 1981, after making several improvements to the property, Levitz offered the property for sale by way of open listing agreements with several real estate agencies. The defendant, the president of a real estate and appraisal company, did not have a listing for the property. Prior to the Levitz purchase, however, he had appraised the property, and, on one occasion, had introduced Levitz to a potential buyer.

In March, 1981, James Wood, a real estate agent who had an open listing agreement with Levitz, was contacted by Mario Mozzillo, a potential buyer who was interested in making an offer on the property. Prior to submitting that offer to Levitz, Wood met with Fox, the director of planning for Enfield, and another Enfield town official to discuss the town's view on rezoning the mill for residential and retail use. As director of planning, Fox acted as liaison with the planning and zoning commission, reviewed applications pending before the commission, prepared reports on those applications, and set the agenda for the commission's meetings. Wood, on behalf of Mozzillo, subsequently submitted an offer to buy the property to Levitz, who rejected the offer. In May, 1981, Wood made another offer on behalf of Mozzillo that also was rejected. Throughout this period, Wood continued to communicate with both Fox and Levitz about the possible sale.

On July 2, 1982, Mozzillo asked Wood to make another offer on the property. On that same day, Fox called Wood, learned of the proposed offer, and asked Wood to attend a meeting at the defendant's office that afternoon. All prior meetings of Wood and Fox concerning the property had taken place in the Enfield town offices, and the defendant had never been included. Fox also contacted Levitz and requested his presence at the meeting. Fox stated that the purpose of the meeting was to discuss a potential buyer of the mill property. The meeting was held as planned in the defendant's office. Present were Fox Wood, Levitz, the defendant and the defendant's son-in-law, who worked for the defendant's company.

At trial, both Levitz and Wood testified that Fox essentially ran the meeting and that most of his comments were directed to Wood. At the meeting, Fox reviewed the negotiations over the possible sale and rezoning of the mill, emphasizing his role in those negotiations. Wood testified that Fox told him that "the only way that you're going to get this transaction through town planning and zoning in Enfield, is to cobroke this commission with Ed Lynch. And Ed Lynch, in turn, will take care of me." Levitz corroborated Wood's testimony as to this statement. Wood testified that the defendant said something after Fox's statement, but he could not remember what it was. Levitz testified that the defendant stated that "there would be nothing that would be expected if the course of the deal didn't go through." No evidence was offered that the defendant made any other statements at the meeting.

The proposed purchase of the property by Mozzillo never materialized. In the fall of 1982, Fox left his position with the town of Enfield and went to work for the defendant's company. Prior to the July meeting, Fox had told Wood that he intended to work for Lynch. In November, 1985, Wood contacted the state's attorney's office about the events of July 2, 1982.

The defendant first claims that the trial court erred in failing to make an independent, preliminary determination as to whether the state had proven a prima facie case of conspiracy prior to admitting into evidence Fox's out-of-court statement against the defendant. He argues that the court improperly allowed the jury to make the determination. He further asserts that the court, had it made the determination, could not have found sufficient evidence of a conspiracy without the statement, and, therefore, would have excluded the statement from evidence. The state essentially concedes that the court erred in failing to make the preliminary determination, but argues that the defendant's claim is not reviewable because it was not properly preserved at trial. The state also claims that even if we choose to review the defendant's claim, the court's error is harmless because Fox's out-of-court statement could have been admitted on a variety of other grounds.

The defendant did not object to the admission of Fox's statement at trial in the same manner that he now asserts on appeal. Prior to trial, the defendant filed a motion in limine seeking a limiting instruction to the jury that Fox's out-of-court statement should be considered against the defendant only if the jury were to find that the state had established the defendant's participation in a conspiracy without the statement. The court indicated that it was inclined to postpone any limiting instruction until it gave the jury charge, but added that the defendant could raise the issue of a limiting instruction at any appropriate time during trial, and that the court would rule on it then. The defendant did not object or request a limiting instruction during the testimony of Levitz and Wood concerning Fox's statement.

At the close of the state's case, the defendant moved for a judgment of acquittal on all counts of the information, arguing that Fox's statement was inadmissible against him because, without it, the state had not proved a prima facie case of conspiracy, and that, without the statement, there was insufficient evidence for a finding of guilty. The court denied the motion, and the defendant rested his case, waiving all rights to cross-examine Fox or Fox's witnesses or to challenge evidence presented in Fox's defense. Prior to the commencement of Fox's defense, the jury was instructed not to consider any evidence offered by Fox against the defendant. In its charge to the jury at the close of all the evidence, the court instructed in relevant part: "[A]ny evidence of a statement made by one alleged conspirator, other than at the trial, shall not be considered by you as against another alleged conspirator, unless you first determine from other independent evidence, that at the time the statement was made, a conspiracy to commit a crime existed."

Although the defendant made no objection to the charge, he claims that his motion in limine and motion for judgment of acquittal sufficiently preserved his claim that Fox's statement was inadmissible against him. Alternatively, he contends that this court should exercise its discretion and review his claim under the plain error doctrine. Practice Book § 4185.

The trial court misstated the law when it instructed the jury that the jury had the duty to determine whether the state had proven a prima facie case of conspiracy independent of the coconspirator's statement. Before out-of-court statements of a coconspirator can be admitted into evidence, a trial court must make a preliminary determination, by a fair preponderance of the evidence, that there is sufficient independent evidence of a conspiracy still in existence at the time of the declaration, and that the declaration was made in furtherance of the conspiracy in which both coconspirators were participants. State v. Vessichio, 197 Conn. 644, 654, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S.Ct. 1642, 90 L.Ed.2d 187 (1986); see also Cooke v. Weed, 90 Conn. 544, 548, 97 A. 765 (1916). The court's submission of this question to the jury amounted to plain error. See State v. Luca, 19 Conn.App. 668, 672, 563 A.2d 752 (1989).

We must, therefore, review the evidence, excluding Fox's statement, in terms of its sufficiency to sustain a determination by the court, by a fair preponderance of the evidence, of the existence of a conspiracy. See State v. Vessichio, supra, 197 Conn. at 655-56, 500 A.2d 1311. Our review is conducted without regard to the credibility of the witnesses. State v. Robinson, 213 Conn. 243, 256, 567 A.2d 1173 (1989).

"To establish the crime of conspiracy under § 53a-48 of the General Statutes, the state must show that there was an agreement between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators." State v. Vessichio, supra, 197 Conn. at 656, 500 A.2d 1311; State v. DeMatteo, 186 Conn. 696, 707, 443 A.2d 915 (1982); State v. Smith, 15 Conn.App. 122, 125, 543 A.2d 301 (1988). "The existence of a formal agreement between the parties need not be proved; it is sufficient to show that they are 'knowingly engaged in a mutual plan to do a forbidden act.' State v. Holmes, 160 Conn. 140, 149, 274 A.2d 153 [1970]." State v. Ortiz, 169 Conn. 642, 645, 363 A.2d 1091 (1975); State v. Smith, supra. Because of the...