State v. Ward

• Citation: 172 Conn. 163,374 A.2d 168
• Court: Supreme Court of Connecticut
• Decision Date: 28 December 1976
• Parties: STATE of Connecticut v. Robert R. WARD.

Page 168

374 A.2d 168

172 Conn. 163

STATE of Connecticut v. Robert R. WARD.

Supreme Court of Connecticut.

Argued Oct. 12, 1976.

Decided Dec. 28, 1976.

Donald F. Zezima, Stamford, with whom, on the brief, were Lawrence A. Christiano and Mark F. Katz, Stamford, for appellant (defendant).

Donald A. Browne, State's Atty., for appellee (state).

Before HOUSE, C. J., and LOISELLE, BOGDANSKI, LONGO and BARBER, JJ.

LONGO, Associate Justice.

The defendant was charged with wrongfully appropriating and converting $88.25 in collected tolls to his own use while acting as a toll collection supervisor for the state of Connecticut, in violation of then General Statutes § 53-354. ¹ He was tried by a jury of twelve and found guilty, whereupon he was sentenced to pay a fine of $2000 and to be incarcerated for a term of one year. The defendant appealed from the judgment, assigning error in the admission of certain evidence and in several segments of the charge to the jury; in the denial of his motions to dismiss and to set aside the verdict; in the court's failure to find certain facts and in its finding of one fact without evidence.

Evidence was presented at the trial from which the jury reasonably could have found the following facts: On November 25, 1970, the date of the alleged crime, the defendant Robert R. Ward, was employed as a supervisor of the Greenwich toll station. The Greenwich toll plaza consisted of sixteen lanes, including automatic and manual lanes, with two lanes, numbers seven and eight, equipped for both manual and automatic collection. The number of automobiles passing through lanes seven and eight was measured by two devices; the first was a loop buried in the roadway which counted vehicles and the second was a visible rubber treadle which counted axles. The treadle count was automatically printed by machines on paper in the administration building. The count from the loop registered in the individual toll booths and was transcribed by hand, at the end of each day, onto the tops of the printed sheets produced by the treadle machine. Coins deposited in the automatic toll collection equipment proceeded through a counting mechanism and into an individual locked vault for each lane. Only supervisors had access to the locked audit room and, though the large vault was customarily unlocked, the small coin vaults kept therein were automatically locked. There were four keys to the small coin vaults, three of which were in the possession of the toll station's superintendent and two cashiers. The fourth key had disappeared sometime prior to November, 1970, and was never found. The automatic collection equipment was able to record automobiles passing through a lane without paying a toll. Partial toll payments registered as full violations and the toll collection procedure included the addition of loose change which missed the collection basket and was found on the pavement near the basket. On November 27, 1970, Robert Strong, a service technician, examined lanes seven and eight and found that two pencils had been jammed in the automatic vehicle counting mechanism to prevent the vehicle counter from registering. An audit by state auditor Everett Whitmore revealed that a minimum amount of $88.25 was missing from the toll receipts for lanes seven and eight on November 25, 1970. The report also disclosed that there were substantial discrepancies between the treadle and loop counts of vehicles on various days involving all the toll lanes.

On November 27, 1970, the two pencils which had been removed from the vehicle counting machines for lanes seven and eight were turned over to superintendent Anthony Stramiello who determined that the machines had stopped counting between 3 and 4 p. m. on November 25, 1970, when the defendant was on duty. A police investigation was then initiated. On April 6, 1971, Detective Corporal Robert Geoghan of the Connecticut state police interviewed the defendant at the Greenwich toll plaza. The defendant denied any knowledge of the pencils which had been jammed in the counting machines. In response to questioning the defendant admitted that he had purchased an eighteen-foot power boat for cash in 1969 and that he was able to live above the level dictated by his income from the state because he and his wife gambled and he hustled prostitutes.

It is from the admission of this evidence that the defendant's first substantial assignment of error arises. The defendant renews in this court his objection made at trial that the admission of testimony by Detective Geoghan relating statements by the defendant concerning his extra income were inadmissible on the ground that they were irrelevant. When asked to describe his conversation with the defendant, Detective Geoghan testified, over the defendant's objection: "He was asked if it wasn't a fact that he purchased a four thousand dollar, 18-foot power boat in 1969, and paid cash for it. He said he did; that his wife hit the policy play numbers. He said his wife also helps him with extra income. And he said he also hustles prostitutes on the side." Detective Geoghan testified further, over the defendant's objection, that the defendant had said that he owned two automobiles and a home with a mortgage. We agree with the defendant that the above testimony was irrelevant and prejudicial to the defendant and should not have been admitted into evidence.

The information in the present case charged the defendant with embezzling $88.25 on or about November 25, 1970. The first test of the admissibility of any evidence is whether it is relevant. Our decisions have emphasized the principle that the court must be allowed wide discretion in ruling on the relevancy of evidence. State v. Evans, 165 Conn. 61, 64, 327 A.2d 576; State v. Lombardo, 163 Conn. 241, 243, 304 A.2d 36; Johnson v. Newell, 160 Conn. 269, 276, 277, 278 A.2d 776; State v. Carnegie, 158 Conn. 264, 273, 259 A.2d 628. "Unless excluded by some rule or principle of law, any fact may be proved which logically tends to aid the trier in the determination of the issue." Federated Department Stores, Inc. v. Board of Tax Review, 162 Conn. 77, 82, 291 A.2d 715, 718. In order logically to advance the resolution of an issue by the trier of fact, however, proffered evidence must render the existence of a material fact in the case more certain or more probable than it would have been without the evidence. Federated Department Stores, Inc. v. Board of Tax Review, supra; State v. Belanger, 148 Conn. 57, 167 A.2d 245; see McCormick, Evidence (2d Ed.) § 185. We fail to see how evidence that the defendant had paid $4000 cash for a power boat in 1969 logically increases the probability that he embezzled $88.25 in 1970. While evidence of sudden affluence may be relevant when it appears at or subsequent to the time of the alleged crime of embezzlement; Hansberry v. United States, 295 F.2d 800 (9th Cir.); evidence of affluence before the time of the alleged embezzlement does not bear any probative relationship to the subsequent crime. See annot., 91 A.L.R.2d 1046, 1049, § 3, and cases cited therein. It appears from the transcript of the trial that the state suspected the defendant of having taken, over a period of time preceding November, 1970, significantly more than the $88.25 alleged in the information. ² This suspicion cannot alter the fact that the state only charged the defendant with taking $88.25 on or about November 25, 1970, and was faced with the task of establishing that proposition beyond a reasonable doubt, and no other. Evidence can be relevant only if it tends to establish a fact in issue. State v. Lombardo, supra; Federated Department Stores, Inc. v. Board of Tax Review, supra. The question whether the...