State v. O'Neill

• Citation: 200 Conn. 268,511 A.2d 321
• Court: Supreme Court of Connecticut
• Decision Date: 24 June 1986
• Parties: STATE of Connecticut v. Charles F. O'NEILL.

Page 321

511 A.2d 321

200 Conn. 268

STATE of Connecticut v. Charles F. O'NEILL.

Supreme Court of Connecticut.

Argued March 12, 1986.

Decided June 24, 1986.

Francis T. Mandanici, with whom, on brief, was Timothy C. Moynahan, for appellant (defendant).

F. Patrick O'Sullivan, Sp. Asst. State's Atty., with whom, on brief, was John A. Connelly, State's Atty., for appellee (state).

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

ARTHUR H. HEALEY, Associate Justice.

After a trial to the jury, the defendant Charles F. O'Neill was found guilty of the crime of arson in the first degree in violation of General Statutes § 53a-111(a)(1). ¹ This appeal followed.

On appeal, the defendant claims that the trial court erred: (1) in admitting "prejudicial evidence concerning unsubstantiated allegations" of prior bad acts by him and in other evidentiary rulings concerning that evidence; ² (2) in failing to instruct the jury as requested on lesser included offenses; (3) in giving a "Chip Smith" instruction ( State v. Smith, 49 Conn. 376 (1881)); and (4) in imposing, pursuant to a statutory scheme involving mandatory sentences, an unconstitutional sentence which was not proportional to the crime and which violated his constitutional right to the equal protection of the laws. ³

The jury could reasonably have found the following facts: On Sunday morning, February 21, 1982, at 1:20 a.m., a Waterbury police officer was dispatched by car radio to a fire at a house owned by the victim, a former girlfriend of the defendant, located at 51 Edgewood Avenue in Waterbury. Upon his arrival, he observed not only that smoke and steam were coming from the front of the house, but that the fire had been put out by the victim's son, Steven, with a garden hose. He observed fire damage to the front porch and the aluminum siding. He smelled what he believed to be gasoline, the aroma of which got stronger as he walked nearer to the house. As a result of his investigation in the area, he came upon a truck about 100 yards up Edgewood Avenue on a corner. Under the truck he found a plastic container which had some fluid in it that smelled of gasoline. This truck was later identified to be owned and used by the defendant in his business of servicing and handling fire extinguishers for customers such as factories, shops, stores, schools and convalescent homes.

The defendant testified concerning his background in this area. Much of his time in his four years in the United States Air Force was spent in the fire prevention field. Prior to establishing his own business, he had spent time in Kansas where he sold, serviced and installed fire equipment and later did similar work for approximately five years for a fire equipment company in Las Vegas. He has attended seminars and given demonstrations involving fire.

At the time of the fire, the victim, her son Steven, her daughter Lori and two other persons were on the second floor of 51 Edgewood Avenue, and a tenant was on the first floor. Lori, who was sleeping on a living room couch, awakened upon hearing a "loud boom," saw a bright light and "orange flames" and yelled that there was a fire. Steven then went down, hooked up a garden hose and put out the fire in "a matter of minutes." The fire department and additional police came to the scene. Captain Nicholas Russo, the Waterbury deputy fire marshal, noted a "strong smell of gasoline vapors" at the scene. In his opinion, the fire started on the front porch by the use of an accelerant and "human hands [had] set the fire." A detective at the scene smelled what appeared to be gasoline in the front area of the house.

The defendant and the victim had dated intermittently from about October, 1980, to October 10, 1981, at which time their relationship ended. The relationship had been a stormy one, yet the defendant professed his love for her and had asked her to marry him. She refused, and after their October 10, 1981 ⁴ dispute, she never saw the defendant again.

The trial court admitted evidence of several acts of alleged vandalism against the victim or her family that had occurred before October 10, 1981. These acts allegedly occurred when the victim and the defendant had had disagreements at various times during the course of their relationship. The acts involved were that two electric meters were taken from her home around Easter of 1981, paint was thrown onto the car of her teenage son, Chris, around July 4, 1981, and air was let out of two of the tires on Chris' car around Labor Day, 1981. The victim maintained that she and the defendant had had disagreements concerning Chris, that the defendant was jealous of the affection she showed for her son and that she did not show the defendant any affection, nor did she love him. She testified that after Labor Day, 1981, upon asking him if he did these things: "[i]n a joking way, he said, 'yes, I did,' and he started to laugh." The evidence was conflicting on whether the defendant "admitted" these acts as well as whether the defendant had ever told her that "he never gets mad, but [that he] just gets even."

I

We turn first to the defendant's claim concerning the alleged acts of prior misconduct. The trial court told the jury that it was admitting this evidence for the purpose of motive and identity. The defendant claims that the trial court initially erred in admitting this evidence without first determining by clear and convincing evidence that he had committed these acts. This evidence was, he argues, highly prejudicial because the prosecutor used it to convey to the jury that he had a bad character, the propensity to commit vandalistic acts "such as the said fire" and that he was the type of person to retaliate. He argues that such use of acts of prior misconduct is "clearly forbidden." He maintains that his main defense, the lack of the intent required for the crime charged, was clearly harmed by the admission and use of such evidence. This is true, he asserts, because if the jury were to have found that he did commit these prior acts, it would be more likely to consider the fire as part of a consistent, intentional and premeditated scheme to harass the victim and her family rather than as an uncontrolled, unintentional, spontaneous act done by him while he was on an alcoholic "binge." The harmfulness of this evidence was compounded, the defendant continues, by other evidentiary rulings. The first is that he was prohibited from rebutting prior misconduct evidence by testimony from a defense witness about a claimed inconsistency in the victim's testimony about who vandalized her electric meters. He also claims error in the court allowing the state during its cross-examination of the defendant to ask whether anyone, including the police, had ever questioned him or accused him of this prior vandalism.

As already noted, the trial court admitted the prior acts for the limited purposes of their consideration by the jury on the questions of motive and identity. In addition, whether the defendant had acknowledged committing these acts was a question properly left to the jury. " 'As a general rule, evidence of guilt of other crimes is inadmissible to prove that a defendant is guilty of the crime charged against him. State v. Harris, 147 Conn. 589, 599, 164 A.2d 399 [1960].' State v. Fredericks, 149 Conn. 121, 124, 176 A.2d 581 (1961); McCormick, Evidence (2d Ed.1972) § 190; 1 Wharton, Criminal Evidence (13th Ed.) § 170. The rationale of this rule is to guard against its use merely to show an evil disposition of an accused, and especially the predisposition to commit the crime with which he is now charged. See State v. Williams, 190 Conn. 104, 108, 459 A.2d 510 (1983); State v. Howard, 187 Conn. 681, 684, 447 A.2d 1167 (1982); State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982); State v. Barlow, 177 Conn. 391, 393, 418 A.2d 46 (1979); 1 Wigmore, Evidence (3d Ed.) §§ 215-18. Evidence of other misconduct, however, 'may be allowed for the purpose of proving many different things, such as intent, identity, malice, motive or a system of criminal activity'; State v. Ibraimov, supra; or an element of the crime. State v. Falby, 187 Conn. 6, 23, 444 A.2d 213 (1982)." State v. Braman, 191 Conn. 670, 675-76, 469 A.2d 760 (1983); State v. Ryan, 182 Conn. 335, 337, 438 A.2d 107 (1980). Despite its prejudicial character, evidence of such misconduct may be admissible if the prior acts are relevant and material to such matters as motive and identity; State v. Johnson, 190 Conn. 541, 548, 461 A.2d 981 (1983); and the trial judge determines, in his judicial discretion, that the probative value outweighs the prejudicial tendency. State v. Johnson, supra; State v. Asherman, 193 Conn. 695, 728, 478 A.2d 227 (1984), cert. denied, --- U.S. ----, 105 S.Ct. 1749, 84 L.Ed.2d 2d 814 (1985); State v. Barlow, 177 Conn. 391, 394, 418 A.2d 46 (1979). "Because of the difficulties inherent in this balancing process, the trial court's decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done." State v. Johnson, supra, 190 Conn. 548-49, 461 A.2d 981; State v. Turcio, 178 Conn. 116, 129, 422 A.2d 749 (1979), cert. denied, 444 U.S. 1013, 100 S.Ct. 661, 62 L.Ed.2d 642 (1980). On our review, therefore, "every reasonable presumption should be given in favor of the trial court's ruling." State v. Ryan, supra, 182 Conn. 339, 438 A.2d 107; State v. Barlow, supra, 177 Conn. 394, 418 A.2d 46.

The trial court admitted this evidence after a full hearing in the absence of the jury. At that time, the victim was examined at length by the state and not at all by the defense. The court recognized that the state's claim here encompassed, inter alia, that the defendant struck out against the victim in return for her treatment of him over the stormy course of their association. It perceived the relevance of this evidence on motive and identity. There is no question...