State v. Sivri

• Decision Date: 22 October 1997
• Docket Number: No. 16346,16346
• Citation: State v. Sivri, 700 A.2d 96, 46 Conn.App. 578 (Conn. App. 1997)
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Tevfik SIVRI.

Page 96

700 A.2d 96

46 Conn.App. 578

STATE of Connecticut v. Tevfik SIVRI.

No. 16346.

Appellate Court of Connecticut.

Argued March 5, 1997.

Decided Sept. 9, 1997.

Certification Denied Oct. 22, 1997.

Pamela S. Nagy, Special Assistant Public Defender, for appellant (defendant).

Frederick W. Fawcett, Assistant State's Attorney, with whom, on the brief, were Donald A. Browne, State's Attorney, and Jonathan C. Benedict, Assistant State's Attorney, for appellee (State).

Before EDWARD Y. O'CONNELL, C.J., and LAVERY and DOWNEY, JJ.

EDWARD Y. O'CONNELL, Chief Judge.

The defendant appeals ¹ from his conviction, following a jury trial, of murder in violation of General Statutes § 53a-54a. Our Supreme Court reversed a previous murder conviction and remanded the case for a new trial. State v. Sivri, 231 Conn. 115, 646 A.2d 169 (1994) (Sivri I ).

The defendant claims that the trial court improperly (1) admitted evidence of the victim's family life, (2) admitted evidence of handguns and ammunition found in the defendant's brother's room, (3) concluded there was sufficient evidence of intent to kill, (4) commented to the jury in its lesser included offense instruction, and (5) took no action concerning improper closing argument by the state's attorney. We affirm the trial court's judgment.

Sivri I, supra, 231 Conn. at 117-24, 646 A.2d 169, details the facts that the jury reasonably could have found from the evidence adduced at the defendant's first trial. We will not repeat all of the facts here; instead, we present the following summary. The victim, Carla Almeida, worked for a business known as Andre's Massage, which furnished employees to perform house call massage services at homes and hotels. On April 18, 1988, the victim went to the defendant's home in the course of her employment and was never seen again. On the basis of the circumstantial evidence detailed in Sivri I, the jury convicted the defendant of murder. Sivri I was reversed because of the trial court's failure to instruct the jury on lesser included offenses of homicide. Id., at 140, 646 A.2d 169.

The jury in the present case could reasonably have found all the same facts relied on in Sivri I plus the following facts. On July 28, 1992, John Stoffan discovered a skull and portions of small bones on his thirty-seven acre property located along the Monroe Turnpike. Detective Rudy D'Ambrosio, along with other Monroe police officers, responded to Stoffan's call and found fifteen pieces of skeletal remains on the ground under pine branches. The remains were those of a female of European origin between twenty and thirty years of age who had been dead more than one year but less than five years. A hole over the eye socket resulted from an object entering the skull and a hole in the back of the skull was caused by an object leaving the skull. These two holes are consistent with a gunshot that entered the front of the skull and exited the rear. The wound was fatal, causing the victim to die instantly or within a few minutes. Four points of comparison of the skull's lower jaw matched the victim's 1985 dental records.

In addition, during the search of the defendant's home three days after the disappearance of the victim, Officer Joseph Quartiero seized the following items from the bedroom of the defendant's brother, Revfik Sivri: (1) a loaded 6 Sauer 9 millimeter pistol; (2) a loaded snub-nose .38 caliber revolver; (3) .45 caliber ammunition; (4) other calibers of ammunition in a desk drawer; (5) the frame and parts of an AMT back-up; and (6) the frame of a Colt .45 caliber automatic pistol. Additional facts are included in the analyses of individual issues.

I

The defendant claims that the trial court improperly denied his motion in limine to exclude evidence of the victim's relationship with her young son, her parents and her boyfriend. He argues that this evidence was irrelevant to the issue of guilt and was introduced solely to personalize the victim to the jury and, thus, was an improper plea for sympathy.

The defendant contends that the evidentiary basis for admitting this evidence at the first trial no longer existed. At the earlier trial, the evidence was introduced in an effort to show that because of her family ties the victim was unlikely to have just wandered off. Because the victim's body had been discovered before the commencement of the second trial, the defendant claims that evidence of her family ties was no longer relevant.

The state claims that the purpose of the evidence was to show not only that the victim was dead, but that she was murdered on April 18, 1988, at the defendant's residence in Trumbull. Because the victim's remains were found in another town four years after her disappearance, the state still had the burden of proving where and when she died. Accordingly, evidence that she was not the type of person who would leave her family and wander off was still relevant.

Admissible evidence need not be conclusive as to the fact that the offerer is seeking to prove. All that is required is that the proffered evidence tends to support a relevant fact. State v. Miller, 202 Conn. 463, 482, 522 A.2d 249 (1987). Evidence of the victim's family life together with other circumstantial evidence reasonably could be found by the jury to support the state's claim that the victim died on April 18, 1988, at the defendant's home.

The trial court has broad discretion in ruling on relevancy issues. State v. Santiago, 224 Conn. 325, 326, 618 A.2d 32 (1992). We will not disturb a trial court's discretionary ruling unless a clear abuse of discretion is shown. State v. Bember, 183 Conn. 394, 408, 439 A.2d 387 (1981). We are not persuaded that the denial of the defendant's motion in limine was an abuse of the trial court's discretion.

The defendant also argues that, even if the family ties evidence was relevant, it should have been excluded because its prejudicial effect outweighed its probative value. State v. DeMatteo, 186 Conn. 696, 702-03, 443 A.2d 915 (1982). "Prejudice is not measured by the significance of the evidence which is relevant but by the impact of that which is extraneous." Id., at 703, 443 A.2d 915. The evidence at issue was not extraneous but, as we have held, was relevant and tended to prove an issue at trial. Applying this standard, we determine that the court's ruling was proper.

Furthermore, the trial court gave an appropriate cautionary jury instruction. ² Unless there is a clear indication to the contrary, a jury is presumed to follow the court's instructions. State v. Negron, 221 Conn. 315, 331, 603 A.2d 1138 (1992). Additionally, when a claimed error does not involve a constitutional issue, the burden is on the defendant to demonstrate that it is more probable than not that improper action of the court affected the result. State v. Willis, 221 Conn. 518, 525, 605 A.2d 1359 (1992). The defendant has not sustained this burden.

II

The defendant next complains that the trial court abused its discretion by admitting evidence that several large caliber handguns and ammunition were found in his home. The trial court allowed Quartiero to testify concerning his participation in a search of the defendant's home and his finding guns and ammunition in the bedroom of the defendant's brother. In addition, the trial court permitted the admission into evidence of photographs of the guns.

The defendant argues that the admission of this evidence was improper because it allowed evidence and testimony concerning seized articles that tended to indicate criminal propensity when those articles were not connected to the commission of the crime charged. State v. Mozell, 36 Conn.App. 672, 677, 652 A.2d 1060 (1995). The defendant argues further that the admission of such evidence is analogous to "other crimes" evidence and would lead the jury to view the defendant and perhaps his family as violent and prone to criminal activities. The defendant contends that the trial court allowed the jury to guess, surmise and speculate that the guns in the defendant's brother's room were those used in the victim's homicide. He claims that the sheer proximity of the guns to the defendant created the unjustified conclusion that the defendant, having the means to commit the crime, must have done so.

The defendant relies on State v. Ferraro, 160 Conn. 42, 46, 273 A.2d 694 (1970), which held that evidence of the discovery of pistols, ammunition and a ski mask in the defendants' apartment permitted speculation that the defendants used those items to attack the victims. The court in Ferraro simply found that there was an insufficient connection between the paraphernalia found in the apartment and that used in perpetrating the crime. Id.

The state argues in the present case that there was a sufficient nexus between the guns, the defendant and the crime. The purpose of this evidence was to show that the defendant had the means to commit the murder. "Evidence indicating that an accused possessed an article with which the particular crime charged may have been accomplished is generally relevant to show that the accused had the means to commit the crime." State v. Villafane, 171 Conn. 644, 675, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S.Ct. 1137, 51 L.Ed.2d 558 (1977). The state does not have to connect a weapon directly to the defendant and the crime. It is necessary only that the weapon be suitable for the commission of the offense. People v. Free, 112 Ill.App.3d 449, 461, 68 Ill.Dec. 81, 445 N.E.2d 529, cert. denied, 464 U.S. 865, 104 S.Ct. 514, 78 L.Ed.2d 701 (1983).

In State v. Villafane, supra, 171 Conn. at 675-76, 372 A.2d 82, the Supreme Court found that evidence of the defendant's possession of a handgun one day after the shooting permitted the jury to infer that the defendant possessed the gun the day earlier. Here, the search of the defendant's home only three days after the disappearance of the victim revealed several guns and...