State v. Spillane, (AC 17194)

• Court: Appellate Court of Connecticut
• Writing for the Court: HEALEY, J.
• Citation: 737 A.2d 479,54 Conn. App. 201
• Parties: STATE OF CONNECTICUT v. ROBERT W. SPILLANE
• Docket Number: (AC 17194)
• Decision Date: 13 July 1999

54 Conn. App. 201
737 A.2d 479

STATE OF CONNECTICUT
v.
ROBERT W. SPILLANE

(AC 17194)

Appellate Court of Connecticut.

Argued January 21, 1999.

Officially released July 13, 1999.

Schaller, Spear and Healey, Js.

54 Conn. App. 202

Joel M. Ellis, with whom, on the brief, was Donald E. Weisman, for the appellant (defendant)

James M. Ralls, assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Rachel Baird, assistant state's attorney, for the appellee (state).

Opinion

HEALEY, J.

The defendant, Robert W. Spillane, was charged in a long form information with four offenses. The first two counts stemmed from the defendant's allegedly illegal towing of the victim's automobile. The third and fourth counts, which are not involved in this appeal, arose from a separate towing incident in which the defendant allegedly towed another automobile illegally while a child was in the backseat. The first count charged that on April 27, 1996, on Farmington Avenue in Hartford, the defendant committed the offense of larceny in the third degree in violation of General Statutes § 53a-124¹ "when [he], with intent to appropriate a motor vehicle to himself, wrongfully obtained and withheld the motor vehicle from its owner." The second count charged that on or about April 27, 1996, on Farmington Avenue in Hartford, the defendant committed

54 Conn. App. 203

the offense of larceny in the third degree in violation of § 53a-124 when he, "with intent to deprive another of property, specifically tools, wrongfully took, obtained and withheld such tools from the owner."

All four counts were tried together.² At the end of the state's case-in-chief, the defendant moved for a judgment of acquittal on all four counts. The trial court granted that motion only as to the second count. Pursuant to an amended information, the defendant presented his evidence as to the three remaining counts. After both parties rested, the defendant again moved for a judgment of acquittal on the remaining three counts, and the court denied that motion. The jury rendered a verdict of guilty on the first count and not guilty on the third and fourth counts. This appeal followed.

On appeal, the defendant claims that the trial court improperly (1) denied his motion for acquittal at the end of the state's case-in-chief, (2) denied his motion for acquittal at the conclusion of all of the evidence, (3) omitted from its final jury instructions the definition of "to deprive" or "to appropriate" as set out in General Statutes § 53a-118 and thus failed to instruct the jury about all of the necessary elements of larceny, (4) denied his motion to strike the testimony of the complaining witness, Webster Lewis, (5) refused to instruct the jury concerning the destruction of certain police tapes and (6) refused to give a missing witness instruction for the state's failure to call the wife of the complaining witness to testify. He also claims for the first time on appeal that the prosecutor's "improper" argument deprived him of his due process right to a fair trial under the United States and Connecticut constitutions.

54 Conn. App. 204

The jury reasonably could have found the following facts. On April 26, 1996, at some time between 10 and 11 p.m., Lewis kept an appointment to pick up an accident report at the state police department barracks on Washington Street in Hartford. He then picked up his girlfriend, Andrea Gudealm, at her apartment at 210 Farmington Avenue in Hartford and both went to a grocery store at about midnight. When they returned, Lewis parked his 1982 Datsun 280 ZX on Farmington Avenue in front of Gudealm's apartment house "where [he] always park[s]." Both went inside Gudealm's apartment for a while. When Lewis left to go home, he could not find his car. Gudealm called the police from a pay telephone to see if the car was towed. The police informed her that they had not towed Lewis' car and they gave her the telephone number of several towing companies. Upon calling Walnut Street Services, Inc. (Walnut Services), personnel of that establishment said that they had Lewis' car. They said that Lewis could not pick up the car until that afternoon

On the afternoon of April 27, 1996, Lewis went to Walnut Services where he spoke to the defendant's wife, Cheryl Spillane. She told him that he could not have his car unless he paid the fees, approximately $148, in exact change. Lewis obtained that exact amount and paid it to Cheryl Spillane.³ When he retrieved his car at the Walnut Services yard, Lewis found the driver's door open and he maintained that he had left it locked. He claimed that the glove compartment was open, that his papers were scattered and that some of the tools he had in the back of the car were missing. Lewis remonstrated with Cheryl Spillane about these matters. Apparently unsatisfied, Lewis called his place of business on

54 Conn. App. 205

Edward Street in Hartford and instructed them to call the police. He then returned to his shop and Hartford police officer Albert DiStefano arrived at about 12:30 p.m. in his cruiser. DiStefano drove Lewis to Farmington Avenue where Lewis pointed out where he had parked his car before it was towed. Lewis and DiStefano then returned to Walnut Services so that DiStefano could continue his investigation. DiStefano asked Cheryl Spillane to contact the defendant on the telephone so that "hopefully, maybe [we] could rectify the problem."

DiStefano, a fifteen year member of the Hartford police department, had dealt with the defendant "numerous times" over the years. Cheryl Spillane contacted her husband who spoke to DiStefano who asked if he would come to the tow yard to see if "we could work this problem out." The defendant was uncooperative and did not come. As a result of his investigation, DiStefano prepared an application, in affidavit form, for an arrest warrant charging the defendant with larceny in the third degree in violation of § 53a-124.⁴ This application was offered by the defendant in his case and became a full exhibit without objection.⁵ This exhibit contained the statement "that on April 27, 1996, the undersigned [DiStefano] received from Webster Lewis... a complaint of larceny against the accused [Robert] Spillane who owns Walnut Street Services, Inc., of 240 Walnut Street, [Hartford], CT."

I

The defendant first claims that the trial court improperly denied his motions for judgment of acquittal after

54 Conn. App. 206

the state's case-in-chief and after all of the evidence because the evidence was insufficient to sustain the larceny conviction on the first count. The state counters that the defendant failed to provide an adequate record to review as to the evidence in the state's case-in-chief. The defendant claims that that evidence is insufficient because there is no evidence that the defendant or one of his employees drove the tow truck that towed the Lewis car. The defendant further claims that there was no proof that the defendant owned Walnut Services. We disagree

The reviewability of the defendant's case-in-chief sufficiency claim is barred because of the "waiver rule" applied in such cases as State v. Rutan, 194 Conn. 438, 440, 479 A.2d 1209 (1984). We agree with the state that in the defendant's election, after the denial of his motion for judgment of acquittal at the end of the state's casein-chief, to proceed and put on his own evidence, he waived his right to appellate review of the sufficiency of the evidence at end of the state's case-in-chief. This is particularly so, the state argues, because Spillane affirmatively proceeded to put on his own evidence, including evidence that he actually towed the Lewis car, and, therefore, pursuant to the waiver rule in State v. Rutan, supra, 440, "appellate review encompasses the evidence in toto." See State v. Gilbert, 52 Conn. App. 531, 533 n.2, 727 A.2d 747 (1999). Under Rutan, by deciding to produce his own evidence, the defendant runs the risk that his case will fill an evidentiary gap in the state's case. Although Rutan has been criticized, it nevertheless remains the law. See, e.g., State v. Simino, 200 Conn. 113, 118 n.5, 509 A.2d 1039 (1986); State v. Lizzi, 199 Conn. 462, 464-65, 508 A.2d 16 (1986); State v. Duhan, 194 Conn. 347, 382, 481 A.2d 48 (1984); State v. Garrett, 42 Conn. App. 507, 514 n.6, 681 A.2d 362, cert. denied, 239 Conn. 928, 929, 683 A.2d 397 (1996).

54 Conn. App. 207

The defendant, however, asks us to make an exception to the rule in Rutan and to rule that where the defendant goes forward and does not fill in any evidentiary gaps in the state's case, then the Rutan waiver rule should not apply. The defendant provided no authority for that claim, and we have found no such authority. We need not answer the defendant's claim of no waiver "if the defendant adds nothing to the state's case" because he did add to the state's case as we point out. We will apply Rutan in this case on the sufficiency issue and review the evidence in toto

"Our Supreme Court has stated: In reviewing [a] sufficiency [of evidence] claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Radzvilowicz, 47 Conn. App. 1, 16, 703 A.2d 767, cert. denied, 243 Conn. 955, 704 A.2d 806 (1997).

"The evidence must be construed in a light most favorable to sustaining the jury's verdict. State v. Carter, [196 Conn. 36, 44, 490 A.2d 1000 (1985)]. It is within the province of the jury to draw reasonable and logical inferences from the facts proven. Id.; State v. Williams, 169 Conn. 322, 336, 363 A.2d 72 (1975). The jury may draw reasonable inferences based on other inferences...