State v. Millstein
| Decision Date | 26 August 1986 |
| Docket Number | No. 2819,2819 |
| Citation | 513 A.2d 1253,8 Conn.App. 581 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. Joel B. MILLSTEIN. |
W. Paul Flynn, with whom was Howard A. Lawrence, New Haven, for appellant (defendant).
Susann E. Gill, Deputy Asst. State's Atty., with whom, on brief, were John M Bailey, State's Atty., Kevin McMahon, Asst. State's Atty. and Mary Glassman, law student intern, for appellee (State).
Before HULL, DALY and BIELUCH, JJ.
After a jury trial, the defendant was convicted of arson in the second degree, a violation of General Statutes (Rev. to 1979) § 53a-112. He now appeals from the judgment of conviction rendered on the verdict, claiming that the trial court erred: (1) in admitting into evidence statements he made to the police; (2) in permitting the state to make reference to an ethnic stereotype in its examination of several witnesses and in its closing argument; (3) in refusing to strike, as violative of Practice Book § 755, testimony given by a police officer; 1 (4) in admitting "identification" testimony; and (5) in denying his motion for judgment of acquittal. We find no error. 2
The jury reasonably could have found the following facts. Shortly after 11 p.m., on July 10, 1980, three youths who were riding their bicycles on Main Street in Glastonbury noticed smoke coming from Augie's Restaurant. One of the young men went to the nearby police station and reported the fire. The officer who received the information arranged to have the fire department notified and then proceeded to the restaurant. On arriving at the scene of the fire, the officer checked the perimeter of the building and saw that the front doors were unlocked and that one of the doors was ajar. Shortly after the officer completed his initial check of the area, members of the fire department arrived. They immediately smelled gasoline and one of the firefighters noticed that the floor was slippery and covered with some kind of liquid. Later, the firefighters discovered three plastic containers which held an orange liquid that later was determined to be gasoline, behind the restaurant's food counter. A fourth container was found near the locked and bolted rear door. The defendant filed a claim against his insurance company for the damage the fire caused to the restaurant.
For several months preceding the fire, business had dropped off at Augie's. Many of the restaurant's suppliers had reduced their credit terms from thirty days to seven days, and then to cash on delivery. On a few occasions during this time period, the defendant approached friends and discussed selling either Augie's, or his other business, Dave's Original Bagels. In the year before the fire, the defendant had discussed burning down one of his businesses with two individuals and had offered money to one of them to do so.
Approximately eight months before the fire, the defendant called his insurance agent and asked that the coverage on Augie's be increased from $41,000 to $135,000. The agent felt that the amount the defendant wanted was disproportionate to the value of the building and its contents. In addition, the defendant was already behind in paying his premiums. The agent therefore refused the requested increase. Either the day of, or the day before the fire, the agent called the defendant and informed his wife that the insurance on the restaurant would be cancelled unless he received at least a $1000 payment on the outstanding balance within ten days.
On the day of the fire, the defendant called his nephew, who worked at a gas station, and told him that he had run out of gasoline. As a result of this call, the nephew put two and one-half gallons of gas in the trunk of the defendant's car. At around 8 p.m. that evening, Alan Mitchell, the father of one of the defendant's employees, saw an individual pull his car up to the side door of the restaurant. Mitchell noticed that the individual, whom he thought was the defendant, was unloading things from his trunk. He, therefore, went over to offer help. Mitchell took a box, in which he saw four plastic containers with an orange liquid in them, into the restaurant. Later in the evening, the defendant returned to the restaurant and, using the gasoline as an accelerant, set fire to the building.
The defendant first claims that the police elicited certain statements from him in violation of his right to remain silent as guaranteed by the fifth amendment to the United States constitution and interpreted by the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He argues that the trial court therefore erred in allowing a police officer to testify as to the substance of the statements. Because the defendant withdrew his objection to the admission of the testimony at trial, we decline to review this claim of error.
At trial, the state sought to elicit testimony from Steven Oborski, a Glastonbury police officer, concerning certain statements the defendant had made to him. The defendant objected arguing, inter alia, that his oral statements to Oborski were inadmissible because he had not been told, pursuant to the United States Supreme Court's decision in Miranda v. Arizona, supra, that he had a right to remain silent. The defendant argued that he was entitled to Miranda warnings because, at the time the questions were asked, the police had begun to focus their investigation on him. The trial court recessed court to allow defense counsel time to research the issue. When court reconvened, defense counsel conceded "that the threshold question in regard to statements of the defendant is custody." He also stipulated that "there is no question [that the defendant] was not in custody at that time nor is there an issue of voluntariness, that he was [at the police station] voluntarily...." Counsel then expressly withdrew his Miranda-based objection.
In general, State v. Reddick, 197 Conn. 115, 125, 496 A.2d 466 (1985), cert. denied, --- U.S. ----, 106 S.Ct. 822, 88 L.Ed.2d 795 (1986). Where a party makes an objection and then withdraws it, the trial court has no such opportunity. The defendant has not shown, nor does the record reveal, any exceptional circumstances which would persuade us to exempt this case from the general rule. Accordingly, we decline to review this claim of error. 3 See State v. Miner, 197 Conn. 298, 305, 497 A.2d 382 (1985) ().
The defendant's second claim is that he was deprived of a fair trial by the state's use of the term "Jewish lightning" in its examination of several different witnesses and in its closing argument, and by the trial court's use of the term during its instruction to the jury. According to the defendant, the use of this term encouraged the jurors to form an inference of guilt based not on the evidence but on an ethnic stereotype: that Jews as a character trait commonly commit arson to defraud insurance companies rather than suffer business failures. The state argues that this court should not review this issue because the defendant never objected on this ground at trial. We agree with the state's position.
The challenged references to the term "Jewish lightning" arose in the following situations. To establish a motive for the arson, the state called several members of the "coffee group," regulars at Augie's who were friends of the defendant. They testified about the decline in the defendant's business, the defendant's financial troubles, and his attempts to sell the restaurant. During the direct examination of Rocco Malena, one member of the group, the state asked whether the defendant had ever said anything about what he wished would happen to the business. Malena answered that the defendant had expressed a hope that the building would burn down. When cross-examining Malena, defense counsel, in an attempt to cast doubt on the seriousness of the defendant's statement, first referred to "Jewish lightning" in the following manner:
In an attempt to rebut the implication raised during cross-examination that the defendant had been joking when he said he wished his building would burn down, the state, during its redirect examination of Malena, referred to "Jewish lightning" as follows: "This joking about Jewish lightning was a general thing but he wished it would burn down two or three months before the actual fire?" When Malena refused to acknowledge any distinction, the state pressed this point stating: "Are you saying that you took the way he was talking two or three months before the fire in a more serious vein than your normal joking about Jewish Lightning?" Malena still refused to acknowledge any distinction.
The third challenged reference to "Jewish lightning" made by the state occurred when Ronald Molina, another member of the coffee group, was being examined on direct. The state asked Molina whether it was "a regular topic--the term Jewish lightning that came up in your conversation?" Again, during the examination of Ronald Cheney, yet another member of the group, the state asked whether the talk about "Jewish lightning" was a common topic. Cheney responded that the topic "came up." Thereafter, the term was mentioned by...
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