State v. Moye

• Decision Date: 15 April 1986
• Citation: 199 Conn. 389,507 A.2d 1001
• Parties: STATE of Connecticut v. Kelly MOYE.
• Court: Connecticut Supreme Court

Page 1001

507 A.2d 1001

199 Conn. 389

STATE of Connecticut v. Kelly MOYE.

Supreme Court of Connecticut.

Argued Dec. 13, 1985.

Decided April 15, 1986.

Edward J. Peters, Jr., Portland, with whom was Anthony C. Polvino, East Hartford, for appellant (defendant).

Elizabeth B. Leete, Sp. Asst. State's Atty., with whom, on brief, were Arnold Markle, State's Atty., and Mary Galvin, Asst. State's Atty., for appellee (State).

Before SHEA, DANNEHY, SANTANIELLO, CALLAHAN and FREDRICK A. FREEDMAN, JJ.

CALLAHAN, Associate Justice.

After a trial to a jury, the defendant Kelly Moye was convicted of arson in the second degree in violation of General Statutes (Rev. to 1981) § 53a-112(a), ¹ and of conspiracy to commit arson in the second degree in violation of General Statutes § 53a-48(a). ² He was sentenced by the court to serve concurrent terms of imprisonment for a total effective sentence of not less than two and one-half years nor more than five years. He was also ordered to pay a fine of $1000. From this judgment the defendant appeals, claiming that the trial court erred: (1) in allowing a statement which was only "witnessed" by the defendant to be admitted into evidence as an adoptive admission; (2) in denying the defendant's motion for mistrial; and (3) in denying the defendant's motion for acquittal. We find no error.

From the evidence presented at trial, the jury could reasonably have found the following facts: On November 8, 1980, a waitress at the Dutchess Diner in West Haven saw the defendant and James Baker, who were off-duty New Haven police officers, enter the diner at 1:40 a.m. When she brought them part of their order, the defendant left through the front door. He returned in three to five minutes, and both men left the diner between 1:50 a.m. and 2 a.m. Four young adults, Mary Ellen Reinwald, Marc Ierardi, Terri Steeves and James Kiaunis, were also in the diner that morning until shortly before 2 a.m. When the four left, they paused on the street outside. At that time, Reinwald noticed the defendant and Baker standing and talking in the parking lot by a car which had the door on the driver's side open. In the same row of the parking lot there was another car approximately one space away. Baker then walked to the diner and spoke to someone inside. At that point, the defendant called out, "Is everything okay?" Baker replied in the affirmative. The defendant, who was standing behind the car door, then moved one arm downward toward the open car. That movement was followed by a flash and smoke emanating from the car. The flash was in the middle of the windshield near the rear view mirror. Reinwald yelled to Ierardi, who was standing beside her, "There is a man in the back of the parking lot that just lit a car on fire." Ierardi and Kiaunis ran toward the car but the defendant displayed a police badge and told them that "it was a fuse fire, and that he would take care of it" and not to worry about it. Reinwald ran to her aunt's house, which was only six houses away, and her aunt called the police. Kiaunis and Ierardi attempted to put out the fire despite the defendant's protests. As they did so, Kiaunis saw a burning object fall from the area of the rear view mirror. It sparked when it fell and Kiaunis then noticed a bottle on the floor. The bottle, which was later recovered, was half full of gasoline. As Kiaunis and Ierardi tried to put out the fire, the flames seemed to get larger and Ierardi, fearing that the car would explode and endanger both himself and Kiaunis, kicked the door shut. Neither Baker nor the defendant appeared to do anything to put out the fire.

The intervention of Kiaunis and Ierardi led to a conflict with the defendant and Baker, which resulted in blows and obscenities being exchanged. Shortly afterward, the police and fire department arrived. Baker and the defendant identified themselves as police officers and made a complaint, which resulted in the arrest of Kiaunis and Ierardi. Fire Marshall Charles E. Raubeson examined the car and concluded that the fire had been intentionally set. Later that same morning the defendant and Baker went to West Haven police headquarters to make a statement in connection with the arrests of Kiaunis and Ierardi. Both men told Officer Albert R. Lindblom of the West Haven police department their version of the incident and he wrote it down in statement form. Baker and the defendant both signed the statement.

I

The defendant's first claim is that the trial court erred in permitting the statement, which he contends was signed by Baker and only "witnessed" by him, to be introduced into evidence in violation of his right to confront his accusers. The trial court found that the statement was admissible at the defendant's trial because the defendant had adopted it as his own. The trial court, when ruling on the admissibility of the evidence, stated: "It really is immaterial as to where on the paper the signatures appear, since the testimony of the officer is that both men fully adopted the statement as theirs, their own, and then signed at the bottom. Even if they hadn't signed, I think the statement could come in. He has adopted it, according to the testimony here, and I am going to allow it." We agree with the trial court.

"When a party's conduct indicates that the party assents to or adopts a statement made by another person, the statement is admissible against the party." Tait & LaPlante, Handbook of Connecticut Evidence (1976) § 11.5(d)(6). " 'Where hearsay accusations are sought to be introduced as evidence against a defendant in a criminal proceeding on grounds that the hearsay was "adopted" by the defendant ... the trial court must first determine that the asserted adoptive admission be manifested by conduct or statements which are unequivocal, positive, and definite in nature, clearly showing that in fact defendant intended to adopt the hearsay statements as his own.' (Emphasis in original.) State Village of New Hope v. Duplessie, 304 Minn. 417, 425, 231 N.W.2d 548 (1975)." State v. Morrill, 197 Conn. 507, 537, 498 A.2d 76 (1985).

Officer Lindblom testified that Baker and the defendant came to police headquarters, at his request, to make a statement concerning the arrest of Kiaunis and Ierardi. He testified further that, "I wrote out the statement myself as Baker told me the story. Baker and Moye both were relating the story as I was writing.... I asked both of them to read it, to make sure that this was what they told me. They both read it, and they both signed it." The defendant verbally indicated to Lindblom that he agreed with it. In the introductory part of the statement the name of James Baker appeared, and, at the bottom of the statement, it said, "Signed by James Baker." Where the defendant signed the statement, the print on the form indicated that he was signing as a witness. Lindblom testified that the defendant's signature appeared on the statement because "[h]e agreed with it, and like I said, he gave me some of the words to put into it." He also testified that "[m]ore or less this is a joint statement. They both contributed to what was put into the statement." "I asked them both, before they signed it, to read it and make sure that everything that they wanted in there was in there before they signed it, and that was the condition that they signed it."

The facts clearly support the trial court's determination that the defendant intended to adopt, as his own, the statement made at West Haven police headquarters and the trial court properly admitted it into evidence as an adoptive admission.

II

The defendant's second claim is that the trial court erred in denying his motion for a mistrial. The initial basis for his claim is a remark made by the trial court when it overruled an objection to the admission of evidence offered by the state. In giving a reason for its ruling, the trial court said, "There is a charge of conspiracy here, counsel. The conspiracy has been established at least on a prima facie basis, at least in the opinion of this Court, and that permits this to come in...." There is no claim on appeal that the evidentiary ruling was incorrect. The defendant does claim, however, that it was improper for the trial court to rule upon the defendant's objection in the manner it did, in the presence of the jury, and that it denied him a fair trial.

The defendant did not make contemporaneous motions for a mistrial, to strike the remark or for a curative instruction. It was not until about forty-five minutes later in the trial, after another witness had testified, that the defendant made a motion for a mistrial based on the remark of the trial court. The trial court denied the defendant's motion but offered to include a curative instruction in its charge and invited the defendant to submit one. He did not do so. Further, the defendant did not take an exception to that portion of the charge which contained the trial court's curative instruction.

" 'The trial court has a wide discretion in passing on motions for mistrial.' State v. Savage, 161 Conn. 445, 449, 290 A.2d 221 [1971]." State v. Brown, 169 Conn. 692, 703, 364 A.2d 186 (1975). " 'The general principle is that a mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial.' State v. Turcio, 178 Conn. 116, 143, 422 A.2d 749 (1979)." State v. Gooch, 186 Conn. 17, 25, 438 A.2d 867 (1982). The narrow issue on appeal is whether the trial court abused its discretion. State v. Vass, 191 Conn. 604, 613, 469 A.2d 767 (1983). "[W]e have consistently recognized that a careful, cautionary instruction given by the trial court is a relevant factor to be considered in determining whether the denial of such a motion constituted an abuse of the trial court's broad discretion. See State v. Ruiz, 171 Conn. 264, 274, 368 A.2d 222 [1976]; State v. Savage, supra,...