State v. Wargo, (AC 18126)

• Decision Date: 15 June 1999
• Docket Number: (AC 18126)
• Citation: 53 Conn. App. 747,731 A.2d 768
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. LANCE WARGO

53 Conn. App. 747

731 A.2d 768

STATE OF CONNECTICUT v. LANCE WARGO

(AC 18126)

Appellate Court of Connecticut.

Argued December 16, 1998.

Officially released June 15, 1999.

Foti, Lavery and Spear, JS. F. Mac Buckley, with whom was Moira L. Buckley, for the appellant (defendant).

Mitchell S. Brody, assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Joan K. Alexander, supervisory assistant state's attorney, for the appellee (state).

Opinion

SPEAR, J.

The defendant, Lance Wargo, appeals from the judgment of conviction, rendered after a jury trial, of one count of murder in violation of General Statutes § 53a-54a,¹ two counts of arson in the first degree in violation of General Statutes § 53a-111 (a) (1),² one count of tampering with evidence in violation of General Statutes § 53a-155 (a) (1)³ and two counts of risk of injury to a child in violation of General Statutes (Rev. to 1993) § 53-21.⁴ He claims that the trial court improperly (1) permitted a witness to testify about statements reflecting the victim's state of mind, (2) admitted the hearsay statements of the defendant's children under the excited utterance exception, (3) allowed expert testimony regarding causes of death, (4) allowed a witness to testify to prior bad acts by the defendant, (5) denied his posttrial motion for a mistrial, which was based on statements made by the prosecutor during closing argument, (6) refused to charge the jury that the state must prove that the victim's death was caused by criminal means and (7) denied his motion for judgment of acquittal, which was based on a claim of insufficient evidence to convict. We affirm the judgment of conviction.

The jury reasonably could have found the following facts. On November 19, 1994, at approximately 3:19 a.m., Ronald McClain and Sheila McClain, neighbors who lived across the street from the defendant, awoke to screams from the defendant's children. Ronald McClain observed an orange glow coming from the left side of the Wargos' house. He also observed the defendant's two children on the roof of the front porch, a ladder against the front porch and the defendant standing at the bottom of the ladder. McClain called 911 and went downstairs to let the Wargos into his home. The children were screaming that their house was on fire and that they could not find their mother. The defendant stated that his wife was in the house, that he could not get her out and that he did not know if she had come home. The children remained at the McClain home while the defendant and Ronald McClain returned to the burning house. The defendant again stated that he did not know if his wife had come home that evening.

The firefighters arrived a few minutes later and found the defendant outside the house, confused and attempting to put water on the fire with a garden hose. The defendant told the firefighters that he did not know his wife's whereabouts. Later, the defendant, while he pointed to the den, told fireman Frederick Telke, "Yes, she's in here, she's in here." When asked if he was sure, the defendant walked to the driveway and pointed to his wife's car. Firefighters entered the home and approached the den, where the fire was concentrated, but were unable to remain due to the high temperatures, heavy smoke and unstable floor. The body of the victim, Wendy Wargo, the defendant's wife, was later found in this area. Firefighters also entered the second floor of the house and found only smoke damage. They did not hear any smoke detector alarms.

Several hours later, Officer Gerald Allain of the Plymouth police department questioned the defendant. The defendant stated that the victim smoked cigarettes and that he recalled the smoke alarms going off. He stated that the thick smoke forced him to his knees as he took the children to the porch roof.

On November 19, 1994, the defendant gave a signed, written statement to the police. He indicated that the victim slept on the couch because their marriage was "on the rocks." That same day, the defendant told the victim's uncle, James Castiola, that he knew what had happened. He stated that the victim had come home, and had lain down on the couch, which was covered by approximately fifty videotapes. While on the couch, the victim had lit a cigarette and had fallen asleep. The defendant told Castiola that the fire had been accelerated by the videotapes, which cannot be put out when they catch fire.

State Trooper Kevin McGurk was assigned to determine the cause and origin of the fire. He examined the Wargo home the following morning and determined that the fire originated in the den. McGurk discovered a pour pattern leading up to the area of origin, which indicated that an accelerant had been used. On the basis of his observations, McGurk concluded that the fire had been intentionally set. Other officers executed a search warrant on the Wargo home and retrieved an empty bottle of bleach from the basement and a can of acetone from the storage shed. Joseph Cristino, a forensic analysis engineer, examined the two smoke detectors retrieved from the Wargo home. The battery had been disconnected from the first floor smoke detector, but the second floor smoke detector was operational at the time of the fire.

A notebook also was seized from the defendant's bedroom dresser. The parties stipulated that the notes contained therein were written in the defendant's handwriting. The defendant was a member of the fire brigade at work and had received training in chemical fires and hazardous materials. The defendant was familiar with spontaneous combustion caused by the combination of alkalies and acids. The defendant admitted writing various phrases in the notebook, such as "lock box in shed," "tool box," "acetone," "alcohol clorox," "aim foil," "dry run," "rope kds drs," "straps," "pillow," "oil in can," "rid of stuff," "glvs," "hat," "shirt," "cigs," and "Idr." The defendant stated that these abbreviations could have been a camping list, but that he did not know why he wrote these abbreviations.

Additional facts will be discussed in the context of the defendant's specific claims.

I

The defendant first claims that the trial court improperly allowed, over objection, a witness to testify as to statements made by the victim reflecting her state of mind. We disagree.

Certain additional facts are necessary to our resolution of this claim. Over the defendant's objection, Irene Ellis, a friend of the victim, testified regarding statements the victim made after a prior domestic dispute. The state offered this testimony to rebut the defendant's claim of marital reconciliation and to establish the victim's state of mind. The trial court instructed the jury that this testimony could be considered only with respect to the state of mind of the victim regarding the subject of reconciliation. Ellis testified that the victim was proceeding with a divorce and was not going to reconcile with the defendant. She also testified that the victim's biggest fear stemmed from the fact that, if one of the victim's children had not awoken one night during a domestic altercation, she would have been killed.⁵

The defendant claims that this testimony was not relevant and was more prejudicial than probative. In addition, he claims that the admission of this testimony violated his right to confront witnesses against him as guaranteed by the United States and Connecticut constitutions.

"[R]obing garden variety claims [of an evidentiary nature] in the majestic garb of constitutional claims does not make such claims constitutional in nature.... State v. Hansen, 39 Conn. App. 384, 390, 666 A.2d 421, cert. denied, 235 Conn. 928, 667 A.2d 554 (1995).... Putting a constitutional tag on a nonconstitutional claim will no more change its essential character than calling a bull a cow will change its gender. State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982)." (Citations omitted; internal quotation marks omitted.) State v. Jones, 46 Conn. App. 640, 646, 700 A.2d 710, cert. denied, 243 Conn. 941, 704 A.2d 797 (1997).

"The trial court's ruling on the admissibility of evidence is entitled to great deference. State v. Castonguay, 218 Conn. 486, 497, 590 A.2d 901 (1991); State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985). [T]he trial court has broad discretion in ruling on the admissibility... of evidence.... The trial court's ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion.... We will make every reasonable presumption in favor of upholding the trial court's ruling, and only upset it for a manifest abuse of discretion.... State v. Coleman, 241 Conn. 784, 789, 699 A.2d 91 (1997). Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. State v. Alvarez, 216 Conn. 301, 306, 579 A.2d 515 (1990)... State v. Beliveau, 237 Conn. 576, 592, 678 A.2d 924 (1996); State v. Colton, 227 Conn. 231, 260, 630 A.2d 577 (1993), on appeal after remand, 234 Conn. 683, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996).... State v. Hines, 243 Conn. 796, 801, 709 A.2d 522 (1998)." (Internal quotation marks omitted.) State v. Smith, 49 Conn. App. 252, 257-58, 714 A.2d 1243, cert. denied, 247 Conn. 914, 722 A.2d 809 (1998).

The victim's state of mind was relevant to the defendant's motive to commit the crimes alleged. "We have stated that the presence or absence of motive ... is a circumstance to be weighed with other evidence for the jury to consider." (Internal quotation marks omitted.) State v. Pinnock, 220 Conn. 765, 790, 601 A.2d 521 (1992). "The role motive plays in any particular case necessarily varies with the strength of the other evidence in the case. The other evidence may be such as to justify a conviction without any motive being shown. It may be so...