State v. Tropiano

Citation262 A.2d 147,158 Conn. 412
CourtSupreme Court of Connecticut
Decision Date24 September 1969
PartiesSTATE of Connecticut v. Ralph TROPIANO.

Ira B. Grudberg, New Haven, with whom, on the brief, was Howard A. Jacobs, New Haven, for appellant (defendant).

David B. Salzman, Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty., and Richard P. Sperandeo, Asst. State's Atty., for appellee (state).

Before KING, C.J., and ALCORN, HOUSE, GRILLO and RUBINOW, JJ.

ALCORN, Associate Justice.

The defendant was convicted by a jury of the crime of conspiracy in violation of General Statutes § 54-197 and has appealed from the judgment rendered on the verdict and from the denial of his motions to set aside the verdict and for judgment in accordance with his motion for a directed verdict. The information on which he was tried alleged, in substance, that between September 1, 1963, and February 20, 1964, he conspired with Anthony F. Dibella, Pasquale Guglielmo, Alfred J. Amaio and Paul Licari to offer money to police officers to secure protection for illegal gambling and liquor activities. We have previously sustained the conviction of DiBella and Amaio for their part in the same conspiracy, the nature of which has been summarized in the opinion in that case. State v. DiBella, 157 Conn. 330, 254 A.2d 477. We shall confine our factual recital in the present case to matters pertinent to the defendant's participation in the conspiracy and the various errors assigned in the proceedings which terminated in the verdict of the jury.

Among the thirty-five assignments of error are thirteen which attack findings made by the court. In passing upon the latter we are confronted with a variety of errors assigned in five distinct findings. In advance of the trial to the jury, the defendant made a motion to suppress evidence, a motion to dismiss or quash the information, a motion to quash or strike the amended information, and a motion to sequester witnesses. In disposing of each of these motions, the court, sitting without a jury, made separate findings of fact which can be corrected only as provided in Practice Book § 628. Following the appeal, the court made a finding as required by Practice Book § 635 which can be corrected as provided in § 628 so far as that section is applicable. Practice Book § 636. This requires consideration of whether the finding relating to the jury trial includes the material facts concerning which 'there was evidence upon the basis of which the jury could reasonably find a certain fact proven, and the appellant claimed to have proved it.' Maltbie, Conn.App.Proc. § 160, p. 198. We have examined the assignments of error addressed to the five separate findings in the light of these principles and conclude that no corrections material to our decision are required.

The remaining assignments of error are prolix and confusing. By a repetitious admixture of attacks on rulings on evidence, on the charge of the court and on rulings on various motions, the defendant claims essentially, as set forth in his brief, that that court erred in refusing to direct a verdict of not guilty; that there was a fatal variance between the information and the proof; that the court erred in failing to charge the jury that acts and statements of witnesses not made in the presence of the defendant could not be used against him; that the court erred in admitting hearsay declarations of coconspirators, in limiting cross-examination of state's witnesses, in denying the defendant's motion to sequester witnesses, and in refusing to charge as requested; and that the defendant was illegally arrested on a warrant issued without probable cause supported by oath or affirmation.

I

After the state and the defense had rested, the defendant moved for a directed verdict on the ground that the evidence was insufficient to prove the defendant's guilt beyond a reasonable doubt. The court denied the motion, and that denial is assigned as error. After the jury had returned a verdict of guilty, the defendant moved to set aside the verdict and for judgment in accordance with his motion for a directed verdict. This motion also was denied, and that denial is assigned as error.

The correctness of the court's ruling on each motion must be tested by the evidence printed in the appendices to the briefs. State v. Mortoro, 157 Conn. 392, 393, 254 A.2d 574; State v. Gyuro, 156 Conn. 391, 397, 242 A.2d 734, cert. denied, 393 U.S. 937, 89 S.Ct. 301, 21 L.Ed.2d 274. It was the state's burden to prove that the defendant did some act which actually was in furtherance of the purposes of the gneral conspiracy and that, when he did it, he had a guilty intent and knew that what he was doing was a part of a general scheme to commit some of the unlawful acts alleged in the information. State v. Hayes, 127 Conn. 543, 563, 18 A.2d 895.

From the evidence before them the jury could reasonably have concluded that a gambling operation, involving men from New Haven, had been in the planning stage for about a year prior to September 17, 1963. On that date, Guglielmo approached Francis Reynolds, a detective in the West Hartford police department, with an offer of between $10,000 and $12,000 for police protection of the operation. Thereafter DiBella entered the picture, and extensive discussion followed for a considerable period of time with the objective of arranging for protection of illegal operations in New Haven as well as in West Hartford by enlisting the aid of Stephen P. Ahern, a sergeant in the New Haven police department. On January 30, 1964, DiBella informed Reynolds that the payoffs would be made from the defendant, who was the 'top man', to DiBella, to Reynolds and from his to Ahern. After discussing the division of the payments, DiBella went to a telephone and on his return said: 'Come on, we are going to New Haven.' Reynolds and DiBella then drove to a restaurant in New Haven where they met Licari and the defendant, and DiBella introduced Reynolds as the man he had been 'talking about the deal with.' Licari and DiBella then left Reynolds and the defendant alone in a booth at the restaurant, and the defendant told Reynolds: 'The only thing I want from Ahern are the crap games. Horses can come later.'

Reynolds asked the defendant how much Ahern was to get, and the defendant said: 'Quote a figure.' Reynolds quoted $475 to $500 a week, and the defendant voiced approval of the amount suggested. The defendant said that he wanted the crap games operated every night of the week otherwise they would 'get cold and the people would go to Bridgeport.' Following this conversation, Licari and DiBella returned to the booth, and, after discussion concerning Licari, who was going to run the crap games, DiBella and Reynolds went home.

From the evidence recited the jury could properly conclude that the defendant's own conduct clearly identified him as an active participant in an illegal conspiracy. State v. Hayes, supra. The court did not err in refusing to direct a verdict of not guilty or in denying the motion to set aside the verdict.

At the conclusion of the evidence, the defendant moved to strike certain of the testimony of Guglielmo, Reynolds and Ahern because the state had not offered independent evidence of the conspiracy and the defendant's connection with it sufficient to make the testimony admissible. Recitation of further facts is unnecessary since it is apparent that the court did not err in denying the motion.

II

The claim made in the brief that the proof at the trial was at fatal variance with the information is not specifically assigned as error and consequently is not properly raised. Practice Book § 651. Argument on the point insinuates itself into the case through the errors assigned in the denial of the motions to direct and to set aside the verdict, and through an assignment that the court erred in refusing eleven requests to charge, four of which related to the distinction to be drawn between a single conspiracy and several conspiracies. The purport of the argument is that the court should have charged that the state was required to prove a single conspiracy in order to convict the defendant and that a conviction could not be had if the jury concluded that the several defendants engaged in separate conspiracies even though one conspirator engaged in all of them.

The amended information charged the defendant with conspiring with the other named persons to offer money to police officers to influence their conduct so that illegal gambling and liquor operations could be conducted in Hartford, New Haven and other counties and specified ten overt acts in furtherance of that conspiracy. The finding is that the state offered evidence to prove and claimed to have proved nine of the overt acts alleged. The defendant does not contend otherwise but asserts that the state's claims of proof established five separate conspiracies. In an endeavor to support this claim, the defendant utilizes overt acts which, in actuality, are individual facets of the single conspiracy charged.

The defendant makes no claim that he offered to prove, or proved, multiple conspiracies. Instead, he contends that 'based upon the State's evidence' the court committed error in refusing his requests to charge concerning the state's burden of proving the single conspiracy alleged. We have examined the charge on this phase of the case and conclude that it was adapted to the issues and adequate for the guidance of the jury. Berniere v. Kripps, 157 Conn. 356, 358, 254 A.2d 496; Lopes v. Connecticut Light & Power Co., 145 Conn. 313, 315, 142 A.2d 135.

III

Detective Reynolds had immediately reported to his superiors at police headquarters the proposition made to him on September 17, 1963, by Guglielmo. Thereafter, meetings which he had with the conspirators were under the surveillance of the West Hartford police, and tape recordings were made of telephone conversations which he had with...

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