State v. Paige, 18495.

CourtSupreme Court of Connecticut
Citation304 Conn. 426,40 A.3d 279
Decision Date17 April 2012
Docket NumberNo. 18495.,18495.
PartiesSTATE of Connecticut v. Sheri PAIGE.

304 Conn. 426
40 A.3d 279

STATE of Connecticut
Sheri PAIGE.

No. 18495.

Supreme Court of Connecticut.

Argued Feb. 2, 2012.Decided April 17, 2012.

[40 A.3d 280]

Alexander H. Schwartz, Southport, for the appellant (defendant).

Marjorie Allen Dauster, senior assistant state's attorney, with whom, on the brief, were Kevin T. Kane, chief state's attorney, John H. Malone, senior assistant state's attorney, and Maura K. Coyne, assistant state's attorney, for the appellee (state).



[304 Conn. 429] Following a jury trial, the defendant, Sheri Paige, then an attorney, was convicted of nine charges relating to the theft of assets from an elderly client, including one count of perjury in violation of General Statutes § 53a–156.1 The defendant appealed

[40 A.3d 281]

from the judgment of conviction to the Appellate Court, challenging the sufficiency of the evidence and the propriety of the jury instruction on the perjury charge. State v. Paige, 115 Conn.App. 717, 720, 727 n. 4, 974 A.2d 782 (2009). The Appellate Court concluded that there was insufficient evidence to convict the defendant on two of the larceny counts, but affirmed the judgment in all other respects. Id., at 752, 974 A.2d 782. With respect to the perjury instruction, although the defendant had submitted a request to charge the jury that it must decide whether a particular statement at issue was material and the state had conceded that it was improper for the trial court to have instructed the jury that the state had [304 Conn. 430] proven this element as a matter of law, the Appellate Court determined that the defendant had waived her right to challenge the instruction that was given. Id., at 746, 974 A.2d 782. This court thereafter granted the defendant's petition for certification to appeal limited to the issue of whether “the Appellate Court properly determine [d] that the defendant [had] waived any challenge to the jury instruction regarding the materiality of the defendant's testimony at a deposition....” State v. Paige, 294 Conn. 911, 983 A.2d 275 (2009). We conclude that the defendant did not waive her right to challenge the instruction and, therefore, we reverse the judgment in part.

The Appellate Court's opinion sets forth in substantial detail the facts that the jury reasonably could have found to support the various charges of which the defendant was convicted. See State v. Paige, supra, 115 Conn.App. at 720–27, 974 A.2d 782. For purposes of the issue in the present case, we briefly summarize those facts. In 1999, Kriemhilde Byxbee, then a widow and eighty-four years of age, lived alone in her home in Stamford. Byxbee had suffered a stroke and was unable to care for herself but did not want to leave her home. Following the stroke, she had increased difficulty understanding what was going on around her. Beverly Cogswell and Heidi Hemingway, both of whom had been cleaning Byxbee's house for many years prior to the death of Byxbee's husband in 1997, thereafter assumed additional duties that enabled Byxbee to remain in her home. In April, 1999, Cogswell and Hemingway asked the defendant, with whom Hemingway had had prior legal dealings, to come to Byxbee's house to discuss having Byxbee execute a living will. The defendant met with Byxbee at her home and subsequently prepared a living will, which Byxbee signed.

After that meeting, the defendant asked Hemingway about Byxbee's assets. Learning that Byxbee owned [304 Conn. 431] two properties in addition to her home and did not have any children, the defendant advised Hemingway that Byxbee should execute a will so that Hemingway could “get something out of ... Byxbee for ... services rendered.” The defendant arranged for another attorney to come to Byxbee's home to draft a new will, which Byxbee executed. The new will made Hemingway and Cogswell the sole beneficiaries of Byxbee's estate.

The defendant thereafter concocted various schemes whereby, with the aid of Hemingway and Cogswell, they would deplete Byxbee's assets, without Byxbee's

[40 A.3d 282]

knowledge, purportedly to avoid estate taxes. The defendant directed Cogswell and Hemingway to trick Byxbee into writing checks to various individuals who later would cash the checks and give the money to Hemingway or Cogswell. At the defendant's instruction, Byxbee's money market account was closed and approximately $200,000 of those funds was distributed to Hemingway, Cogswell and the defendant. The defendant also arranged for Byxbee to purchase a $400,000 life insurance policy, despite Byxbee's refusal to purchase such a policy. The defendant established the Kriemhilde Byxbee life insurance trust (Byxbee trust), naming herself as trustee, to receive the proceeds of the insurance policy. In the last year of Byxbee's life, the defendant facilitated the sale of the three properties Byxbee owned, including the sale of Byxbee's residence, furniture and personal effects after Byxbee had been moved into an assisted living facility following a period of hospitalization. The proceeds from those sales were distributed in part to the defendant, Hemingway and Cogswell, either directly or through family members, and in part to either Byxbee's bank account or the Byxbee trust.

After Byxbee died on September 27, 2000, the defendant persuaded Cogswell and Hemingway that the insurance company would resist paying out the [304 Conn. 432] $400,000 policy on Byxbee's life and that they should hire her to represent them in collecting on it in exchange for 25 percent of the proceeds recovered from the policy. Shortly thereafter, the insurance company paid out the policy and returned the premium. The defendant then wrote checks from the Byxbee trust payable to the bank that held the mortgage on the defendant's house in amounts corresponding to the legal fees charged by the defendant and the 25 percent contingency fee for recovery of the insurance policy proceeds and premium.

Subsequently, Hemingway learned from the defendant that the Byxbee trust account had been nearly depleted. In November, 2001, Hemingway and Cogswell filed an application for a prejudgment remedy against the defendant seeking to recover the funds she had taken from the Byxbee trust account. The accompanying complaint alleged larceny, conspiracy, conversion, legal malpractice, breach of a fiduciary duty, tortious interference with an expectancy or inheritance, breach of contract, and violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42–110a et seq. Cogswell v. Paige, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–01–0186822S, 2003 WL 21297606 (May 22, 2003) (34 Conn. L. Rptr. 683).

The record reveals the following additional facts and procedural history. During trial in the civil litigation, the defendant proffered a letter, dated a few weeks prior to receipt of payment on the life insurance policy, purportedly from the insurance company stating its intention to rescind the policy due to Byxbee's failure to “fully disclose material medical conditions on her insurance application.” The trial court, D'Andrea, J., found that the letter was fraudulent, prepared by or at the direction of the defendant for the purpose of attempting to justify the 25 percent contingency fee she had received. Id. The court ultimately denied the [304 Conn. 433] application for a prejudgment remedy on the ground that Cogswell and Hemingway were complicit in the defendant's criminal schemes to defraud Byxbee and stated its intention to refer the matter to both the state's attorney's office and the statewide grievance committee. Id.

Thereafter, the defendant was charged in the present criminal case with, inter alia, five counts of larceny in the first

[40 A.3d 283]

degree and one count of larceny in the second degree. The state also charged the defendant with three counts of perjury relating to statements made during or in connection with the civil litigation (counts one, two and three of the substitute information). Count two alleged that the defendant knowingly had testified falsely in a deposition about the source of the letter from the insurance company purporting to rescind the policy on Byxbee's life. After the close of the state's case, the defendant moved for a directed verdict on various counts. On March 9, 2006, the trial court, Holden, J., granted the defendant's motion for a judgment of acquittal on counts one and three, but denied the defendant's motion on count two and the other counts.

At the close of trial, the court instructed the jury with respect to count two that the state must prove specific elements to meet its burden of establishing that the defendant had committed perjury, one being that the statement made by the defendant was material. The court then stated: “[T]hat is a matter of law. The test of materiality is whether the false statement testimony was capable of influencing or had the potential to influence the fact finder in deciding the issues.... [A]s a matter of law I will tell you that it was material, so at least you don't have to concern yourself when you get to that element; it's a matter of law, the testimony was material, and that it was capable of influencing or had the potential to influence the fact finder.” Later, when [304 Conn. 434] restating the elements of perjury, the court again instructed the jury that “whether or not the testimony was material, [that is] not for your consideration. That you will find as a matter of law.”

The jury returned a verdict of guilty on nine of the ten counts that were submitted to it, including count two alleging perjury. See footnote 1 of this opinion. After trial, the defendant filed another motion for a verdict of acquittal on count two and two other counts charging larceny in the first degree, as well as a motion for a new trial, both of which the court denied. The trial court thereafter rendered judgment in accordance with...

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