State v. McCarthy

• Decision Date: 06 August 1985
• Citation: 197 Conn. 166,496 A.2d 190
• Parties: STATE of Connecticut v. John J. MCCARTHY, Jr.
• Court: Connecticut Supreme Court

Page 190

496 A.2d 190

197 Conn. 166

STATE of Connecticut v. John J. MCCARTHY, Jr.

Supreme Court of Connecticut.

Argued April 30, 1985.

Decided Aug. 6, 1985.

Bruce L. Levin, Milford, for appellant (defendant).

John M. Massameno, Asst. State's Atty., with whom, on brief, were Walter D. Flanagan, State's Atty., Judith Rossi, Sp. Asst. State's Atty., and Raymond J. Doyle, Jr., Asst. State's Atty., for appellee (State).

Before PETERS, C.J., and HEALEY, SHEA, DANNEHY and SANTANIELLO, JJ.

DANNEHY, Justice.

The defendant was convicted by a jury of six counts of burglary in the third degree, four counts of larceny in the second degree, one count of larceny in the third degree, and one count of larceny in the fourth degree. On appeal he claims that (1) the trial court erred in denying his motion to dismiss pursuant to General Statutes § 54-82c, (2) the trial court erred in allowing evidence of insurance payments to establish the value of the stolen property, (3) he was denied effective assistance of counsel, (4) the trial court erred in admitting the hearsay testimony of two police officers and the written statement of an accomplice, and (5) there was insufficient evidence to sustain the verdict. We disagree and find no error.

Between June 5, 1980, and June 19, 1980, eight homes in affluent sections of the town of Ridgefield were burglarized. Taken from those homes was an assortment of silverware, jewelry, cash, and other items. In August, 1980, a police investigation led to the arrest of David Basque. Basque admitted to having driven the defendant to several homes in Ridgefield during the span of a few days in order to burglarize them with the intent to sell the items stolen to purchase drugs. On the basis of Basque's confession, the defendant was arrested.

Prior to the commencement of trial, the defendant moved to dismiss all of the charges against him, claiming that he had been denied his right to a speedy trial pursuant to § 54-82c of the General Statutes. ¹ After a hearing, the trial court denied the motion. On appeal, the defendant claims that the trial court erred in denying his motion when the defendant did all that was required of him under § 54-82c.

The stipulated facts relating to this claim are as follows. On June 5, 1981, the defendant sent to the warden of the institution where he was incarcerated an undated "written notice of the place of his imprisonment and his request for final disposition ... of the ... information." General Statutes § 54-82c(a). On June 5, 1981, the warden forwarded the defendant's request together with the required certificate to the appropriate court, which acknowledged receipt of the request on June 11, 1981. General Statutes § 54-82c(b). The office of the state's attorney, however, did not receive the defendant's request for disposition until September 3, 1982. The trial began on December 1, 1982, eighty-nine days after the receipt of the defendant's request by the state's attorney but almost eighteen months after the defendant first submitted his request to the warden.

Under General Statutes § 54-82d, if a criminal case is not assigned for trial within the statutory period of 120 days fixed under § 54-82c, the case must be dismissed. ² The defendant does not dispute that our holding in State v. Springer, 149 Conn. 244, 178 A.2d 525 (1962), is controlling. There, we held that "[u]nder [54-82c], the act required to be done in order to start the running of the period of 120 days is the delivery of the prisoner's request, accompanied by his custodian's certificate, to the prosecuting official of the county and the appropriate court. Obviously, a prisoner confined in a penal or correctional institution could not be required to make personal delivery. The General Assembly has therefore provided that the prisoner initiate the request for a trial, has required further that his custodian supply information concerning the prisoner's confinement to the prosecuting official and the court, and has then prescribed the procedure to effect the actual delivery of both. It is the completed delivery of both the request and the supplemental information which starts the running of the period of 120 days within which the prisoner must be brought to trial. Subsection (b) makes this clear in that the prisoner's written notice and request is required only to be 'given or sent' to the custodial official, but the latter's transmittal must be 'by registered or certified mail, return receipt requested.' The return receipt furnishes ample means of fixing the date from which the 120 days is to be computed. No provision is made, however, for fixing the date on which the notice and request is 'given or sent' by the prisoner to his custodian." Id., 249-50, 178 A.2d 525.

Admittedly, the defendant was brought to trial within 120 days of the receipt of his request by the state's attorney. The defendant urges us, however, to create an implied exception to our interpretation of when the 120 day period begins to run where a defendant has done "all things required of him to secure his right to a speedy trial under § 54-82c" and where the only failure to comply with the statute has been on the part of the warden who, due to inadvertence or malfeasance, has failed to notify the appropriate officials of the defendant's request.

On the basis of this record, the defendant has failed to provide us with any evidence to indicate that the delay between June 5, 1981, and September 3, 1982, was caused by the "inadvertence or malfeasance" of the warden in violation of the warden's statutory duty "promptly [to] forward" the defendant's request. General Statutes § 54-82c(b). At the hearing on his speedy trial motion, the defendant not only failed to call the warden to testify but he offered no evidence concerning the cause of the delay. In the absence of any evidence to the contrary, it is presumed that the warden properly performed his duty. Parham v. Warden, 172 Conn. 126, 134, 374 A.2d 137 (1976); State v. Lenihan 151 Conn. 552, 555, 200 A.2d 476 (1964). We cannot conclude, as the defendant argues, that the only reasonable inference for the cause of the delay in this case was that the warden simply failed to forward the defendant's request to the state's attorney.

The defendant next claims that the trial court erred in overruling his hearsay objections to the state's use of evidence of insurance payments to establish the value of the property taken from two of the burglarized residences.

To prove the value of the items stolen, the state offered the testimony of the victim-owners. The first victim testified that her losses included several antique sterling silver serving pieces and some gold and silver jewelry. She stated that she initially estimated the value of these items at approximately $2000. The state then asked her whether she had been reimbursed by her insurance carrier for the loss. She replied in the affirmative. When asked how much she had received, the defendant objected on the ground of hearsay. The trial court overruled the objection and the defendant duly excepted. The victim then testified that she had received $4000 from her insurance company.

The next victim-owner called by the state testified that several pieces of jewelry, some camera equipment, and a silver candy dish were taken from her home. She stated that, in her opinion, the value of the stolen items was approximately $2000. She further testified, over the defendant's renewed hearsay objection, that she had received a $1200 reimbursement from her insurance company.

The jury returned verdicts of guilty of larceny in the second degree with respect to the burglaries of these two residences. General Statutes (Rev. to 1981) § 53a-123 provides: "(a) A person is guilty of larceny in the second degree when ... (2) the value of the property or service exceeds five hundred dollars...." General Statutes (Rev. to 1981) § 53a-121(a) provides in pertinent part: "[T]he value of property ... shall be ascertained as follows: (1) ... value means the market value of the property ... at the time and place of the crime or, if such cannot be satisfactorily ascertained, the cost of replacement of the property ... within a reasonable time after the crime."

The law in this state is well settled as to the competency of the owner of property to testify as to its value. "Our cases have ruled that the competence of the witness to testify to the value of property may be established by demonstrating that the witness owns the property in question.... The rule establishing an owner's competence to testify reflects both the difficulty of producing other witnesses having any knowledge upon which to base an opinion especially where the stolen items are never recovered ... and the common experience that an owner is familiar with her property and knows what it is worth.... This rule is applicable in criminal as well as civil cases." (Citations omitted.) State v. Baker, 182 Conn. 52, 60-61, 437 A.2d 843 (1980); State v. Gabriel, 192 Conn. 405, 424, 473 A.2d 300 (1984). We do not understand by what reason the defendant can claim prejudicial error with respect to the admission of the evidence of insurance payments where each owner first testified as to her opinion of the value of the stolen property.

This court recently approved without discussion the admission of evidence of insurance proceeds to establish the value of stolen property. State v. Taylor, 196 Conn. 225, 229, 492 A.2d 155 (1985). While payment by an insurer might be considered an implied hearsay assertion of its belief as to market value, both the Federal Rules of Evidence and the Uniform Rules of Evidence do not regard nonverbal conduct as falling within the definition of hearsay unless it is intended as an assertion. Fed.R.Evid., rule 801(a); Unif.R.Evid. (1974 Rev.), rule 62(1). Evidence of nonassertive conduct by persons not in privity with the parties is not violative of modern conceptions...