State v. Shindell

• Decision Date: 29 January 1985
• Citation: 195 Conn. 128,486 A.2d 637
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Sydney SHINDELL.

Page 637

486 A.2d 637

195 Conn. 128

STATE of Connecticut v. Sydney SHINDELL.

Supreme Court of Connecticut.

Argued Nov. 6, 1984.

Decided Jan. 29, 1985.

Ira B. Grudberg, New Haven, with whom were Alice Miskimin, Stamford, and, on brief, Karen F. Tross, New Haven, and Richard Emanuel, Bridgeport, for appellant (defendant).

Julia D. Dewey, Asst. State's Atty., with whom, on brief, were Arnold Markle, State's Atty., Mary Galvin, Asst. State's Atty., and Anthony Chavez, law student intern, for appellee (state).

Before PETERS, C.J., and PARSKEY, SHEA, DANNEHY and SANTANIELLO, JJ.

PARSKEY, Associate Justice.

The defendant, Sydney Shindell, was charged with two counts of arson in the second degree, in violation of General Statutes §§ 53a-112(a)(1)(B) and (a)(2) ¹ and 53a-8, ² and two matching conspiracy counts, in violation of General Statutes § 53a-48. ³ The four counts related to two fires, one on November 23, 1974, and the other on November 29, 1974, both of which occurred at 36-38 Ann Street in New Haven. The jury returned verdicts of guilty on all four counts, and the defendant was sentenced to imprisonment for an effective term of not less than six nor more than fourteen years and was fined $10,000. The defendant appeals the judgment of conviction on four grounds, claiming error in the admission of evidence of other crimes and misconduct of the defendant; error in the exclusion of evidence and comment concerning the absence of an unavailable witness; improper restriction of the defendant's cross-examination of a witness; and erroneous jury instructions regarding accomplice testimony. We find no error.

The jury might reasonably have found the following facts: In October, 1973, the defendant, a landlord in New Haven, met Peter Cappola through a real estate broker and sold him an apartment building at 24-36 Nash Street. The property was located in the Hill section of New Haven, which was at that time a depressed area of the city. Pleased with Cappola's management of the Nash Street building, the defendant wrote to him in December, 1973, offering to sell five additional properties, all located in the Hill area, as a package deal. On January 31, 1984, Cappola and the defendant closed the sale.

The terms of the sale agreement were as follows: The purchase price for the five properties, a complex of buildings located at Columbus Avenue and West Street, and separate buildings on Redfield Street, Cedar Street, Hallock Street, and Ann Street, was $299,000. Cappola made a down payment of $12,500 and the defendant retained a mortgage interest of $286,500. The agreement also contained a "windfall profits clause" which provided that if any of the buildings were sold, taken by condemnation, or destroyed, the buyer and seller would share equally in any sale, condemnation or insurance proceeds in excess of the purchase price.

In June, 1974, there was an accidental fire at the Cedar Street property. Cappola called the defendant to notify him of the fire and, at the defendant's invitation, drove to his home with a copy of the insurance policy covering the Cedar Street building. The defendant was impressed with the extent of the policy's coverage in that it protected against vandalism and theft in addition to fire damage. The following morning, Cappola, the defendant and Edward Halprin, an appraiser who had worked for the defendant previously, inspected the Cedar Street property for damage. ⁴

Dissatisfied with the extent of damage caused by the fire, the defendant directed Cappola to meet him at Cedar Street the next day and to bring with him one of his workers and a steel bar. Cappola arrived at the property accompanied by Scott Perrin, the superintendent of another building owned by Cappola, and the three men proceeded to destroy the building's interior. The defendant filed insurance claims for fire and vandalism damage to the Cedar Street property, engaging Edward Halprin as appraiser. The insurance company paid $58,190 on the claims. The defendant received approximately $29,000 of this sum as full payment on his mortgage, a portion of the award went to pay Halprin for his fee, and the remaining $28,000 was split between the defendant and Cappola, pursuant to the windfall profits clause.

During this same period, Cappola told the defendant that he was experiencing maintenance problems and finding it difficult to collect rents on the Columbus and West complex. The two decided that the complex should be burned to collect insurance, and Cappola told Perrin to set fire to the buildings. On June 30, 1974, the building at 438 Columbus Avenue burned. On August 22, 1974, Perrin set fire to 105 West Street at Cappola's request, after Cappola had raised the insurance coverage on the building from $60,000 to $90,000, as suggested by the defendant. The defendant handled the insurance claims on these fires, on which a total of approximately $125,000 was paid by the insurance company. Again, the insurance proceeds were first applied to pay the appraiser's fee and to satisfy the defendant's mortgage on the property, and the remaining sum was shared by Cappola and the defendant.

On September 11, 1974, with the defendant's encouragement, Cappola and Perrin brought containers of gasoline to 434 Columbus Avenue, planning to burn that building as well. This attempt was thwarted, however, when Perrin and Cappola encountered the police upon their arrival at the property. After a very brief period of questioning, the two men departed, no fire having been set.

In addition to filing insurance claims for fire damage to the buildings, the defendant and Cappola submitted false claims for vandalism, theft and loss of rents on the Hallock Street, Ann Street and the Columbus Avenue and West Street properties. To process these claims, the defendant contacted the appraiser, wrote up and typed the claim forms, and participated in providing statements to an independent insurance adjuster regarding the alleged vandalism losses.

On November 4, 1974, the insurance company cancelled the policies covering the properties sold by the defendant to Cappola. Two days later, Cappola applied for new coverage by a different insurance company on the Ann Street, Hallock Street and Cedar Street buildings through a new insurance agent. The agent issued binders, providing temporary insurance coverage pending the issuance of a policy by the company, that same day. By letter dated November 8, 1974, the defendant requested the agent to raise the amount of the binder's coverage on the Ann Street building from $97,000 to $112,000.

Because coverage under the binder was only effective for thirty days, Cappola and the defendant decided to arrange for a fire on Ann Street as soon as possible. Cappola hired Anthony Cordone, a plumber who had performed repairs on Cappola's properties, to set fire to the Ann Street building. With Cappola's aid and instruction, Cordone lit a fire at 36-38 Ann Street on November 23, 1974. A day or two later, Cappola told Cordone that he and the defendant had inspected the building and found that the damage was insufficient. The defendant sent his workmen to board up the Ann Street building to hamper firefighting efforts, and Cordone set a second fire on the property on November 29, 1974. The second fire gutted the Ann Street building. The defendant mailed a notice of the loss to the insurance company the next day, and subsequently filed fire and vandalism claims with Edward Halprin's assistance. Upon the insurance company's failure to pay the claims, the defendant composed and mailed letters, signed by Cappola, to the state insurance department and the governor requesting an investigation of the delay in processing and settling the claims.

I

The defendant claims that the trial court erred in admitting evidence of other crimes and misconduct in which he allegedly took part. He argues that evidence relating to arsons, attempted arson, vandalism and fraudulent insurance claims concerning properties other than 36-38 Ann Street amounted to an impermissible attack on his character in violation of his constitutional rights to due process and a fair trial. We disagree.

"Evidence of other misconduct, although not ordinarily admissible to prove the bad character or criminal tendencies or the accused, 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, 187 Conn. 348, 352, 446 A.2d 382 (1982); or an element of the crime charged. 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). Still another use to which such evidence may be put is "[t]o prove the existence of a larger continuing plan, scheme, or conspiracy, of which the present crime on trial is a part. This will be relevant as showing motive, and hence the doing of the criminal act, the identity of the actor, and his intention, where any of these is in dispute." McCormick, Evidence (2d Ed.) § 190, pp. 448-49. ⁵

We have adopted a two-pronged analysis to determine the propriety of admitting evidence of other crimes or misconduct. "First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. Second, the probative value of such evidence must outweigh the prejudicial effect of the other crime evidence." State v. Braman, supra, 676, 469 A.2d 760.

The trial court admitted evidence of other arsons, vandalism and false insurance claims as relevant to the defendant's motive, intent and involvement in a common plan or scheme. The defendant concedes that "evidence concerning the earlier fires, and attempted arson, at the Columbus and West complex might have been sufficiently similar to clear the initial relevancy hurdle." He argues, however, that the alleged instances of vandalism and false insurance claims had very little in common with the arsons for which the defendant was...