State v. Raffone

• Court: Supreme Court of Connecticut
• Citation: 285 A.2d 323,161 Conn. 117
• Decision Date: 20 April 1971
• Parties: STATE of Connecticut v. James RAFFONE, Sr., et al.

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285 A.2d 323 161 Conn. 117 STATE of Connecticut
v.
James RAFFONE, Sr., et al. Supreme Court of Connecticut. April 20, 1971.

[161 Conn. 118]

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Gilbert H. Winnick, New Haven, for appellants (named defendant and others).

Edwin F. Raffile, Jr., New Haven, for appellant (defendant Arcangelo). ¹

Jerrold H. Barnett, Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty., Richard P. Sperandeo, David B. Salzman, Robert K. Walsh, Dennis F. Gaffney and John J. Kelly, Asst. State's Attys., for appellee (state).

Before [161 Conn. 117] ALCORN, C.J., and HOUSE, THIM, RYAN and SHAPIRO, JJ.

[161 Conn. 118] THIM, Associate Justice.

This case concerns the theft of a semitrailer loaded with tires and antifreeze from the Sears, Roebuck and Company store in Hamden, and the theft of a truck and plumbing supplies from Allied Distributors, also in Hamden. The thefts [161 Conn. 119] occurred in November, 1966. Fourteen days after the Sears theft, and three days after the Allied theft, the three defendants, James Raffone, Sr., James Raffone, Jr., and James Arcangelo, were arrested in Milford by the Hamden police. Each was charged with two counts of larceny under General Statutes § 53-63. Following a trial, the jury returned a verdict finding each of the three defendants guilty on two counts of larceny under § 53-63-one count each for the theft from Sears and one count each for the theft from Allied. James Arcangelo moved for 'Judgment Notwithstanding The Verdict Or In The Alternative To Set Aside The Verdict.' The motion was denied, and judgment was rendered on the verdict. From that judgment the defendant Arcangelo has appealed, claiming as error: the denial of his motion to set aside the verdict; the court's refusal to give certain charges; the giving of certain charges by the court; the refusal of the court to find certain material and supported facts; the finding by the court of certain facts without evidence; the court's admission into evidence of specified testimony and exhibits; the overruling of certain exceptions to the charge; the court's refusal to find certain material facts relevant to the motion to suppress; the finding of certain evidence in relation to the motion to suppress; the reaching of certain conclusions in regard to the motion to suppress; and the overruling of certain claims of law on the motion to suppress.

After the trial, but before the hearing on appeal, the defendant Arcangelo died. This presents a somewhat unusual situation. After the hearing, at which counsel conceded that Arcangelo's appeal was moot, we were apprised of the ruling in

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Durham v. United States, 401 U.S. 481, 91 S.Ct. 858, 28 [161 Conn. 120] L.Ed.2d 200. Since the issue concerning the proper disposition of an appeal by a defendant who dies while that appeal is pending was neither briefed nor argued before us, we decline either affirmatively to adopt or reject the majority rule there enunciated. Rather, due to the death of Arcangelo, the appeal, as to him, is dismissed as moot, as conceded by counsel.

This result creates another unusual situation. The state and the defendants stipulated that the outcome of Arcangelo's appeal would be conclusive as to all three defendants. Clearly, this was not the intention of the parties to the stipulation which recites that its purpose was to consolidate the appeals and submit but one record on appeal. Were this stipulation to be followed literally, its effect would be to purport to require this court to affirm an improper conviction of another defendant because the selected appellant was properly convicted, or reverse a proper conviction of another defendant because the designated appellant was improperly convicted. Since the record is complete as to both Raffones, and since counsel has fully briefed their contentions, we consider the merits of their appeals as they have been presented.

Since one of the issues is the denial of a motion to set aside the verdict, in order to avoid unnecessary duplication we will recite the evidence as found in the appendices to the briefs, rather than as found in the finding, although we will consider the appropriate finding where required by the issues raised. See State v. Tropiano, 158 Conn. 412, 416, 262 A.2d 147, cert. denied, 398 U.S. 949, 90 S.Ct. 1866, 26 L.Ed.2d 288; State v. Mortoro,157 Conn. 392, 393, 254 A.2d 574; State v. Gyuro, 156 Conn. 391, 397, 242 A.2d 734, cert. denied, 393 U.S. 937, 89 S.Ct. [161 Conn. 121] 301, 21 L.Ed.2d 274. As regards the motion to set aside the verdict, the evidence must be given the construction most favorable to sustaining the jury's verdict; Tucker v. Halay, 156 Conn. 633, 634, 242 A.2d 730; Petrizzo v. Commercial Contractors Corporation, 152 Conn. 491, 499, 208 A.2d 748; but the verdict must be set aside if the evidence was insufficient to justify the jury in finding guilt beyond a reasonable doubt. State v. Kelsey, 160 Conn. 551, 553, 274 A.2d 151; State v. McGinnis, 158 Conn. 124, 129, 256 A.2d 241.

The basic facts are substantially uncontested. On November 9, 1966, the Sears store in Hamden reported the theft of a number of snow tires and a number of cases of antifreeze. The stolen merchandise had been stored in a semitrailer which was parked against the rear of the store. The merchandise was stolen by taking the entire semitrailer. The semitrailer was found in Hartford. On November 23, 1966, Allied discovered that a truck and a quantity of copper tubing and plumbing supplies were missing. On November 26, 1966, acting on telephone information, a Hamden police captain apprehended James Raffone, Sr., James Raffone, Jr., and James Arcangelo as they were pulling into the front of the Milford Auto Wrecking Company. James Raffone, Sr., was driving a Standard Motor Freight, Inc., truck, and James Raffone, Jr., and James Arcangelo were passengers in the truck. The three men left the truck and began to walk away. The men were then stopped by the police, returned to the truck, and there arrested and advised of their constitutional rights. The police captain asked James Raffone, Sr., to open the back of the truck and he did so. In the truck were approximately twenty Sears tires, copper tubing, [161 Conn. 122] gutters, tools, lead ingots and leaders. The three men and the truck were then taken to the Milford police department. The three mem were questioned separately by the police. A search warrant was obtained for a garage owned by Mrs. Mary DeLucia, Arcangelo's mother-in-law. At the request of the police, after a telephone call to him, Arcangelo arrived home and the police then opened the garage, which was not locked.

We look first at the ruling on the motion to suppress. The defendants claim that all of the evidence seized in this case was obtained in violation of their rights

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because it was seized without a search warrant, and because the arrests were not lawful. A police captain testified that on November 26, 1966, he received telephone information that Raffone, Sr., was operating a Standard truck in the vicinity of Milford, and that the truck...