State v. Servello

59 Conn. App. 362

757 A.2d 36

STATE OF CONNECTICUT v. JAMES C. SERVELLO

(AC 18884)

Appellate Court of Connecticut.

Argued May 8, 2000.

Officially released August 15, 2000.

Schaller, Spear and Pellegrino, Js. Jon L. Schoenhorn, with whom, on the brief, was Jeanne M. Zulick, for the appellant (defendant).

Harry Weller, senior assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Rosita M. Creamer, senior assistant state's attorney, for the appellee (state).

Opinion

SCHALLER, J.

The defendant, James C. Servello, appeals from a judgment of conviction, rendered following a jury trial, of attempt to commit arson in the second degree in violation of General Statutes §§ 53a-49¹ and 53a-112 (a) (2).² The defendant claims that (1) the trial court improperly denied his motion for a judgment of acquittal because the evidence was insufficient to support the jury's verdict of guilty of attempt to commit arson in the second degree, (2) the trial court improperly allowed the state to offer details of his prior arson conviction and other bad acts after ruling to exclude them, and (3) the prosecutor's offer of evidence contrary to the court's order violated his right to a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In 1992, David Shepack, assistant state's attorney, prosecuted the defendant for arson in the first degree, arson in the second degree, arson in the third degree, criminal mischief, two counts of tampering with a witness and conspiracy to commit arson. The defendant pleaded guilty under the Alford doctrine³ to arson in the third degree and criminal mischief in the first degree, and was ultimately sentenced to thirteen years in prison to be served at the Osborn Correctional Institution (Osborn). The defendant was incarcerated throughout the events that are the subject of this appeal.

Following his sentencing, the defendant filed a petition for sentence review. The defendant submitted to the sentence review division an unsigned letter purported to be on the stationery of his defense counsel, stating that his sentence was to be for a term of six years suspended after four years. After reviewing the letter, Shepack informed the sentence review division that he believed that the document was fraudulent. The defendant later stated that Shepack had gone "beyond the scope of his functions as a prosecutor" in communicating his belief to the sentence review division.

In 1996, Donald Anderson, an inmate at Osborn, reported to William Grady, the supervisor of an intelligence unit at Osborn, that the defendant had asked him if he knew of anyone who could set fire to the Litchfield County courthouse, and to a prosecutor's house and car. Anderson's report was eventually communicated to the state police major crime squad in Litchfield. Trooper Deborah Schutt was assigned to investigate the defendant. Schutt met with Anderson and asked that he wear a tape recorder. Schutt told Anderson that she would assign an undercover trooper, Clifford Labbe, Jr., to pose as "Cliff DeMarco," a fictitious friend of Anderson with ties to the Mafia. Anderson then was to notify the defendant that he knew of someone willing to carry out his wishes. Timothy McIntosh, the administrative captain overseeing the prison facility, arranged for Labbe, posing as DeMarco, to be added to the defendant's visiting list. Labbe visited the defendant on three occasions.

Taped recordings of the defendant's conversations with Anderson indicate that the defendant wanted the courthouse burned down, and that he wanted "someone from the outside" to set fire to the courthouse. The defendant stated that he needed only three days notice to locate the necessary funds. The defendant further stated that he would have Mary Jane Prescott, his girlfriend, deliver payment. Finally, the defendant stated that he would obtain Shepack's license plate number for use in locating Shepack's home.

During Labbe's first visit with the defendant on September 4, 1996, the defendant stated that he wanted Labbe to set fire to the courthouse and Shepack's car and residence. The defendant told Labbe that Prescott had control of his money and that she needed a power of attorney to retrieve the money from a safety deposit box. Labbe told the defendant that he required $5000 in advance and $5000 upon completion of the task, provided the defendant with his pager number and suggested that Prescott meet him at the Danbury Fair Mall to facilitate payment.

Labbe met with the defendant for the second time on October 2, 1996. During the meeting, Labbe stated that Prescott had not contacted him. The defendant responded that Prescott had paged him several times, but the pager number was not working. The defendant further stated that he had not given Prescott a power of attorney to access the safe deposit box. Prescott apparently was having difficulties accessing the safe deposit box because she had no key, but the defendant told Labbe that the issue had been resolved. The conversation concluded with the defendant's assuring Labbe that he would have his money in a few days and stating that he was trying to obtain Shepack's address. The defendant then changed his instruction, stating that he wanted to pay Labbe all the money in advance. The defendant requested that, instead of burning Shepack's property, he wanted Shepack's house and car spray painted. Furthermore, Prescott contacted Labbe after the second visit and stated that "things hadn't panned out yet and that [he] needed to contact" the defendant.

During Labbe's third and final visit with the defendant on November 14, 1996, the defendant told Labbe to set fire to the courthouse, but stated that "he was having problems with a court injunction on his assets." There was, in fact, no injunction in place and the defendant had access to $19,000. The defendant was concerned by rumors that Anderson was recording conversations and was troubled by Anderson's early release.

During the trial, the state presented evidence as to the defendant's available assets, including bank statements, information about a safe deposit box and information pertaining to the defendant's investments. The documents indicated that the defendant had access to funds during the period in which his meetings with Labbe occurred. The documents also indicated that Prescott had a meeting scheduled with a locksmith on October 16, 1996, to have the safe deposit box lock drilled.

The jury heard recordings of conversations between the defendant and Prescott on August 25, September 1 and September 11, 1996. The transcript of a conversation between the defendant and Prescott on October 12, 1996, was admitted into evidence. In that conversation, the defendant instructed Prescott to page Labbe, whom he identified as an investigator he had hired, that she pretend that she had tried to contact him previously, and that she tell Labbe that "whatever you and [the defendant] discuss[ed] has not developed yet ... [t]here [are] complications." The conversations further indicated that the defendant told Prescott to contact Labbe and inform him that the plan could not go forward.

Correspondence seized included a note providing Labbe's alias and pager number and a note stating, "Cliff [Labbe] said to call him when you get things all set." A third note stated that "[o]f the things you and [the defendant] discussed, zero with a line thorough it, developed."

McIntosh, acting as notary public for the prison facility, notarized two documents for the defendant. One document gave power of attorney to Prescott, and a second allowed Prescott access to a safe deposit box. One of the documents restricted Prescott's authority to "open and enter [the defendant's] box to remove two titles for two automobiles ... copy them front and back, and place back into [the defendant's] box the originals," and that "this draft/document shall be solely permitted for this one transaction only."

At the conclusion of the state's case, the defendant filed a motion for judgment of acquittal, which was denied. The jury found the defendant guilty of criminal attempt to commit arson in the second degree. On May 14, 1998, the defendant filed a motion for judgment of acquittal, which also was denied. Thereafter, the defendant pleaded guilty on a part B information to the charge of being a persistent serious felony offender. Additional facts will be discussed as necessary where relevant to the issues in this case.

I

The defendant claims first that the trial court improperly denied his motion for judgment of acquittal because the evidence was insufficient to support the jury's verdict of guilty of attempt to commit arson in the second degree. We disagree. Specifically, the defendant claims that the evidence was insufficient to prove (1) that he had the requisite specific intent to have Labbe actually carry out the arson of the Litchfield courthouse and (2) that he committed a substantial step toward the commission of the crime. Both claims are without merit.

"When reviewing sufficiency of the evidence claims, we employ a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict. . . . Second, we determine whether, from that evidence and all the reasonable inferences which it yields, a [trier of fact] could reasonably have concluded that the defendant was guilty beyond a reasonable doubt. . . . In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.... The issue is whether the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt." (Citations omitted; internal quotation marks omitted.) State v. Walton, 34 Conn. App. 223, 229, 641 A.2d 391, cert. denied, 230 Conn. 902, 644 A.2d 916 (1994).

With...