State v. Sergi

• Decision Date: 20 May 1986
• Docket Number: No. 2221,2221
• Citation: 7 Conn.App. 445,509 A.2d 56
• Parties: STATE of Connecticut v. Mark SERGI.
• Court: Connecticut Court of Appeals

Page 56

509 A.2d 56

7 Conn.App. 445

STATE of Connecticut v. Mark SERGI.

No. 2221.

Appellate Court of Connecticut.

Argued Dec. 12, 1985.

Decided May 20, 1986.

Barbara Goren, Sp. Public Defender, for appellant (defendant).

Roland D. Fasano, Asst. State's Atty., with whom, on brief, was Arnold Markle, State's Atty., for appellee (state).

Before HULL, BORDEN and DALY, JJ.

HULL, Judge.

The defendant was charged with robbery in the first degree in violation of General Statutes § 53a-134(a)(1) and (3) ¹ and larceny in the first degree in violation of General Statutes (Rev. to 1979) § 53a-122(a)(2). ² After a trial to a jury, he was convicted of both charges and was sentenced to ten to twenty years imprisonment for the robbery conviction and five to ten years imprisonment for the larceny conviction. The defendant appeals from the judgment of conviction claiming that the trial court erred (1) in imposing consecutive sentences on each conviction, (2) in charging the jury on how to evaluate the credibility of an accomplice's testimony, (3) in denying his motion in limine to prevent the state from introducing evidence of his prior felony convictions, and (4) in admitting testimony that he had a shotgun in his house. He also asserts that he was denied effective assistance of counsel. We find no error.

The jury could reasonably have found the following facts. In September of 1980, Joseph Fappiano was employed as a cook at Valentino's restaurant on Whitney Avenue in Hamden. His duties included closing the restaurant at night and taking home the restaurant's proceeds for future deposit. On September 7, 1980, Fappiano finished closing at approximately 1:30 a.m., and then left with Bill Purgatore, a waiter who worked at the restaurant. Purgatore went to his car at the front of the restaurant while Fappiano entered his car parked at the rear of the restaurant. After getting into his car, Fappiano placed a bag containing the restaurant proceeds on his front passenger seat. He then discovered that something was wrong with one of his tires. He did not stop to fix it, however, because Purgatore had already left and the parking lot was very dark. Rather, Fappiano left the parking lot, assuming he could reach home. Fappiano drove for a short time but was forced to stop when the tire deteriorated. After Fappiano stopped, a car owned and driven by Mark Reamer, pulled in front of his car. Inside that car were Reamer, Frank Wager, the defendant and another individual. Wager, a former employee at the restaurant, had occasionally stayed with Fappiano while he closed the restaurant. The defendant and the other man got out. Either the defendant or the other man went over to the driver's side of Fappiano's car. Fappiano rolled his window down and the individual then pulled an object from his belt, grabbed Fappiano, and hit him several times on various parts of his head, causing profuse bleeding. The man who had not injured Fappiano went to the passenger side of the car and grabbed the bag containing the restaurant's proceeds. The defendant and the other man then ran back to the car with the money and fled.

The defendant first claims that the trial court, by imposing consecutive sentences for his convictions of robbery and larceny, violated his constitutional right not to be punished twice for the same offense. In support of this claim, the defendant argues that robbery in the first degree and larceny in the first degree both constitute the offense of larceny with the only distinction being that robbery in the first degree is aggravated by the amount of force used, while larceny in the first degree is aggravated by the amount of property taken. Because the offenses are legally the same, the defendant contends, the trial court could not, consistent with the double jeopardy clause of the fifth amendment, impose consecutive sentences for his convictions of both.

The defendant acknowledges that this claim was not raised below but asserts that it is, nevertheless, reviewable under the fundamental rights-fair trial exception established by State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). While the state does not argue that this claim is not reviewable under Evans, we hold that it is not. See State v. Cosby, 6 Conn.App. 164, 166, 504 A.2d 1071 (1986) (state's concession of reviewability under Evans not binding on this court).

Appellate review under Evans of a claim of error not raised below is appropriate only where "the record adequately supports a claim that a defendant has clearly been deprived of a fundamental constitutional right and a fair trial." State v. Torrence, 196 Conn. 430, 435, 493 A.2d 865 (1985). The defendant's double jeopardy claim certainly implicates a fundamental constitutional right. "The prohibition of double jeopardy prevents not only multiple trials, but also multiple punishments for the same offense in a single trial. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977)." State v. Devino, 195 Conn. 70, 73, 485 A.2d 1302 (1985). The defendant's claim that larceny in the first degree and robbery in the first degree constitute the same offense has been definitively and recently rejected by our Supreme Court in State v. Boucino, 199 Conn. 207, 224, 506 A.2d 125 (1986). The defendant in Boucino, as the defendant in this case, contended that sentencing on both his conviction for robbery in the first degree and his conviction for larceny in the first degree violated his double jeopardy right to be free from multiple punishment for the same offense. Applying the test established by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), our Supreme Court determined that because each offense requires proof of a fact which the other does not, the two offenses are not the same offenses for double jeopardy purposes. State v. Boucino, supra, 224. ³ Accordingly, the record does not adequately support the defendant's contention that he has clearly been deprived of his fifth amendment right, and we therefore decline to review this claim of error.

The defendant's second claim is that the trial court erred by failing to instruct the jury on the proper standard to apply when evaluating the credibility of accomplice testimony. At the defendant's trial, Mark Reamer, the owner and driver of the car involved in the robbery, testified and implicated the defendant. He also testified that he had participated in the crime unwittingly, and that he had pleaded guilty to aiding a robbery and had received a suspended sentence. While the trial court instructed the jury that Reamer's testimony should be "carefully scrutinized with a view to ... evaluating [his] interest or bias," it did not, the defendant claims, tell the jury to consider Reamer's status as a "self-confessed criminal." ⁴ It is this omission that the defendant claims constituted error.

The defendant's argument is without merit. While the court did not charge in the exact language suggested by the defendant, it did point out that Reamer had pleaded guilty to aiding robbery, that he had received payment for giving information to the police, and that there had been testimony that he had admitted his participation in the crime. The essence of the defendant's claim, therefore, is that the trial court did not use the words "self-confessed criminal" and did not properly emphasize the witness' status. While the trial court does have the duty " 'to caution the jury to scrutinize carefully [accomplice] testimony' "; State v. Shindell, 195 Conn. 128, 142, 486 A.2d 637 (1985), quoting State v. Ferrara, 176 Conn. 508, 512, 408 A.2d 265 (1979); there are no magic words it must use in doing so. State v. Colton, 174 Conn. 135, 141, 384 A.2d 343 (1977). Here, the point that must be included in a trial court's instruction on accomplice testimony, namely, that the jury should closely scrutinize the testimony to determine whether or not it is reliable, was fully covered. "Failure to charge precisely as proposed by a defendant is not error where the point is fairly covered in the charge." State v. Colton, supra, 141.

The defendant's third claim is that the trial court erred in denying his motion in limine through which he sought to obtain a ruling prohibiting the state from impeaching him with three prior convictions. ⁵ The defendant did not testify and the evidence, therefore, was not admitted. He argues, however, that the ruling was harmful because it deterred him from exercising his constitutional right to testify.

While a defendant in a criminal case does enjoy a constitutional right to testify; State v. Harrell, 199 Conn. 255, 263, 506 A.2d 1041 (1986); "it has been recognized that [this right] does not carry with it a right to prohibit impeachment by prior convictions." Id. Accordingly, under General Statutes § 52-145(b), as interpreted by our Supreme Court, the state may for impeachment purposes introduce evidence showing that a defendant has been convicted of a crime if the maximum permissible penalty for that crime is imprisonment for more than one year. State v. Braswell, 194 Conn. 297, 307, 481 A.2d 413 (1984), cert. denied, --- U.S. ----, 105 S.Ct. 793, 83 L.Ed.2d 786 (1985). Such evidence is not automatically admissible, however. The trial court must first determine that the prejudicial effect of its admission will not far outweigh its probative value. Id., 307, 481 A.2d 413.

The determination of whether to admit prior convictions is within the discretion of the trial court, and its decision will be overturned on appeal only where the defendant shows that an abuse of discretion occurred. State v. Binet, 192 Conn. 618, 624, 473 A.2d 1200 (1984). An appellate court should consider three factors when determining whether the trial court abused its discretion in deciding to admit prior conviction testimony: (1) the prejudice the defendant would have suffered by admission of the...