State v. Siano

• Decision Date: 25 January 1990
• Docket Number: No. 6799,6799
• Citation: 567 A.2d 1231,20 Conn.App. 369
• Parties: STATE of Connecticut v. James J. SIANO.
• Court: Connecticut Court of Appeals

Page 1231

567 A.2d 1231

20 Conn.App. 369

STATE of Connecticut v. James J. SIANO.

No. 6799.

Appellate Court of Connecticut.

Argued Oct. 18, 1989.

Decided Dec. 19, 1989.

Certification Granted Jan. 25, 1990.

John S. Pinney, with whom was Thomas E. Gaffey, Bloomfield, for appellant (defendant).

John O'Meara, Deputy Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., Warren Gower, Asst. State's Atty., Paul Gaetano, Deputy Asst. State's Atty., and Michael E. O'Hare, Sp. Asst. State's Atty., for appellee (state).

Before DALY, NORCOTT and FOTI, JJ.

NORCOTT, Judge.

The defendant appeals from the jury verdict convicting him of burglary in the second degree in violation of General Statutes § 53a-102 and larceny in the second degree in violation of General Statutes § 53a-123. He claims that the trial court erred (1) in failing to require the state to produce the criminal history of one of its witnesses, Carmine Sarno, or, in the alternative, in failing to strike his testimony, and (2) in failing to instruct the jury on the issue of credibility of an accomplice witness. We find no error.

I

The following facts are relevant to the first issue of this appeal. At trial, the state called Carmine Sarno as a witness. Sarno testified that on the evening of May 25, 1986, he picked up the defendant at his home in Springfield, Massachusetts, and the two drove Enfield, looking for a house to burglarize. Sarno stated that, at the defendant's suggestion, they selected a house on Lois Lane, the home of Joanne and Albert Kneiss.

Sarno said that at approximately 8 p.m. he parked his vehicle on the street behind the targeted house. Sarno and the defendant then entered the Kneisses' backyard and unsuccessfully attempted to pry open sliding glass doors leading into the house. They eventually were able to enter through a kitchen window. The Kneisses were not at home at that time.

According to Sarno's testimony, the defendant went upstairs to search for items to steal while Sarno searched the first floor. Sarno eventually met the defendant upstairs where they discovered a personal computer; the defendant suggested that they take it, and Sarno agreed. Sarno took the computer from the house and put it in his car.

Sarno then returned to the house to help the defendant collect additional items. When they left the house, the defendant was carrying a pillowcase full of jewelry and various other items.

On direct examination by the state, Sarno testified that he had pleaded guilty to this and other Connecticut burglaries. He testified that he had been incarcerated as a result of those pleas, but had been released early. Sarno also testified that he was waiting to be sentenced for other burglaries in Massachusetts and that the Massachusetts prosecutors had made no promises to him.

At the conclusion of this testimony, the defendant moved, pursuant to Practice Book § 744, for disclosure of Sarno's record of felony convictions and of any pending felony and misdemeanor charges. He also moved, in the alternative, that Sarno's testimony be stricken. The court denied both motions, and the defendant excepted. The state, in response to the defendant's expressed concerns, moved to reopen direct testimony to elicit more specific information from the witness about his criminal history. The court allowed this questioning.

During this additional direct examination, Sarno testified that he had no Massachusetts felony convictions but that there were eighty to ninety burglary charges pending against him in Massachusetts at the time of his testimony. During cross-examination, defense counsel questioned Sarno extensively about his criminal history and his motive for testifying.

The defendant claims that it was error for the trial court to deny his request, made at the close of direct examination, for disclosure of Sarno's criminal history pursuant to Practice Book § 744. He argues that because this information was readily available to the state, the trial court erred in ruling that the state had revealed "all it knew" about Sarno's record. The defendant asserts that he should not be required to rely upon the testimony of a witness whom he intends to impeach to provide reliable information about his criminal record. The state counters this argument by asserting that it complied with § 744 by eliciting from the witness information about his own criminal history. ¹ It contends that it disclosed all the information that was known, and it does not bear the burden of obtaining more information for the defendant.

The trial court, after repeatedly asking the state's attorney if he had disclosed all that he knew about Sarno's record of felony convictions and pending charges, accepted the state's affirmative response and ruled that the state had complied with Practice Book § 744. We find no error.

Legal conclusions made by the trial court must stand unless they are legally and logically inconsistent with the facts. State v. Williamson, 10 Conn.App. 532, 537, 524 A.2d 655, cert. denied, 204 Conn. 801, 525 A.2d 965 (1987). This court may reject a factual determination by the trial court only if it is clearly erroneous. Id.; see also Cook v. Nye, 9 Conn.App. 221, 225, 518 A.2d 77 (1986).

The trial court first made the legal conclusion that the state's attorney was required to disclose the records of felony convictions and pending charges of the state's witness that were known to the state. This conclusion is supported by the plain language of Practice Book § 744.

Practice Book § 744 requires that "[a]fter a witness called by the state has testified on direct examination, the prosecuting authority shall disclose any record of felony convictions of the witness known to the prosecuting authority and any record of felony or misdemeanor charges pending against the witness known to the prosecuting authority." ² (Emphasis added.) This language plainly requires that the prosecutor release all such information in his possession. Indeed, the state has an affirmative duty to disclose, but that duty is not unlimited. There is no authority that would require him to procure further information for the defendant. ³

The court then made the factual finding as to whether the prosecutor had revealed all of the information known to him or whether he had failed to comply with § 744 by withholding information. After the defendant moved for disclosure, the trial court asked the state's attorney: "Mr. Gaetano, are you saying that's all that's been testified to and that's all you know? Is that correct?" The state responded affirmatively, and the court instructed defense counsel: "You have to take [the state's attorney] at his word. If you have other information that there are other charges pending against the witness somewhere else or other convictions ... that's another thing." The defendant offered no "other information," and the court ruled that the prosecuting authority, while under an obligation to disclose the records of his witnesses of which he is aware, is not under any obligation to obtain information for the defendant.

The court then, as a point of emphasis, asked the state's attorney, "Mr. Gaetano, as an officer of the court, as the state's attorney's office, has the state's attorney's office turned over--has it disclosed the record of felony convictions of this witness known to it and any pending felony or misdemeanor crimes known to you?" The state responded, "Yes, Your Honor. The state has brought that out on direct examination, and will be willing to be more specific in further inquiry." After reiterating the question and receiving the same answer, the court overruled the defendant's motion to strike and also implicitly found that the state's attorney had complied with § 744 by revealing all that he knew about his witness' criminal record. This colloquy between the court and the state's attorney makes it clear that the trial court's finding that the state revealed all that was within its knowledge was factually supported by the evidence. That ruling, therefore, is not clearly erroneous. See Cook v. Nye, supra.

In his attempt to prove that the state had access to more information than it provided regarding Sarno's criminal history, the defendant asks this court to take judicial notice of the transcript from the sentencing proceedings of Sarno on his Connecticut charges. The defendant, however, never brought this information to the attention of the trial court, even after having been prompted by the court.

As a general rule, this court will not take judicial notice of facts that were not available to the trial court at the time of trial. State v. McCarthy, 197 Conn. 247, 249 n. 2, 496 A.2d 513 (1985). "The true concept of what is judicially known is that it is something which is already in the court's possession or, at any rate, is so accessible that it is unnecessary and therefore time wasting to require evidence of it.... Judicial notice, therefore, in its appropriate field, meets the objective of establishing facts to which the offer of evidence would normally be directed." (Citation omitted.) State v. Tomanelli, 153 Conn. 365, 368, 216 A.2d 625 (1966).

This is not an appropriate case for judicial notice. The transcript that the defendant seeks to have judicially noticed was never made available to or brought to the attention of the trial court. Compare Cioffoletti v. Planning & Zoning Commission, 209 Conn. 544, 552 A.2d 796 (1989) (where reviewing court took judicial notice of documents in Superior Court file); Scott v. Scott, 190 Conn. 784, 462 A.2d 1054 (1983) (where reviewing court took judicial notice of facts which were in the Superior Court record for that same case); Farm Bureau Mutual Auto Ins. Co. v. Kohn Bros. Tobacco Co., 141 Conn. 539, 107 A.2d 406 (1954) (judicial notice taken of another court's file because file was referred to in stipulated facts). Further, it does not contain the type of information that is...