State v. Spillane

255 Conn. 746

770 A.2d 898

STATE OF CONNECTICUT v. ROBERT W. SPILLANE

(SC 16215)

Supreme Court of Connecticut.

Argued October 26, 2000.

Officially released April 24, 2001.

Borden, Norcott, Palmer, Sullivan and Vertefeuille, Js.¹ James M. Ralls, assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Rachel Baird, former assistant state's attorney, for the appellant (state).

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

Opinion

SULLIVAN, J.

The defendant, Robert W. Spillane, was convicted, following a jury trial, of the crime of larceny in the third degree in violation of General Statutes § 53a-124 (a).² The defendant appealed to the Appellate Court, claiming "that the trial court improperly (1) denied his motion for acquittal at the end of the state's case-inchief, (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-118³ 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 claim[ed] 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." State v. Spillane, 54 Conn. App. 201, 203, 737 A.2d 479 (1999). The Appellate Court determined that the trial court improperly omitted the definition of the term "appropriate" set forth in § 53a-118 (a) (4) (B) from its instruction to the jury on the elements of larceny. Id., 218-19. The Appellate Court also found that it was reasonably possible that the jury was misled by the trial court's instruction and, therefore, ordered a new trial.<sup>4</sup> Id., 220, 229. We granted the state's petition for certification to appeal, limited to the following issues: (1) "Did the Appellate Court properly conclude that the trial court's instructions regarding `appropriate' were constitutionally inadequate?" and (2) "If the answer to the first question is `yes' was the error harmful?" State v. Spillane, 251 Conn. 914, 740 A.2d 866 (1999). Although we agree that the trial court should have defined for the jury the term "appropriate," we find the improper instruction to have been harmless, and we therefore reverse the judgment of the Appellate Court.

The jury reasonably could have found the following facts. The defendant operated Walnut Street Services, Inc., a towing company in Hartford. Walnut Street Services, Inc., was authorized by various area businesses, including Mechanics' Savings Bank on Farmington Avenue in Hartford, to tow unauthorized vehicles from their lots during nonbusiness hours.

Around midnight, on April 27, 1996, Webster Lewis parked his car on the street in front of Mechanics' Savings Bank and entered the apartment of his girlfriend, Andrea Gudealm. When Lewis exited the building, he discovered his car was missing. Gudealm called the police from a nearby pay telephone, and the police gave her the telephone numbers of several tow companies. Upon calling the tow companies, Gudealm located Lewis' car at Walnut Street Services, Inc. The following afternoon, Lewis proceeded to Walnut Street Services, Inc., and paid the defendant's wife, Cheryl Spillane, $148 to retrieve his vehicle. Lewis found his glove compartment open, papers scattered around the car and tools missing from the back of the car. Lewis then called the police, and larceny charges were brought against the defendant.

The defendant was tried on two counts of larceny in the third degree in violation of § 53a-124 for the wrongful taking of Lewis' car and his tools respectively, as well as on one count of risk of injury to a child in violation of General Statutes (Rev. to 1995) § 53-21, as amended by No. 95-142, § 1, of the 1995 Public Acts⁵ and one count of reckless endangerment in the second degree in violation of General Statutes § 53a-64⁶ for an incident that occurred on October 1, 1996. At the close of the state's case, the trial court granted the defendant's motion for judgment of acquittal of the charge of larceny in the third degree with respect to the tools, and the trial continued on the remaining charges of larceny in the third degree stemming from the taking of Lewis' vehicle on April 27, 1996, as well as risk of injury to a child and reckless endangerment in the second degree, both stemming from the October 1, 1996 incident.

Much of the trial testimony addressed where Lewis' car had been parked when it was towed. If it had been parked in the Mechanics' Savings Bank parking lot, Walnut Street Services, Inc., rightfully towed the vehicle. If, however, it had been parked on the street, as the state claimed, then Walnut Street Services, Inc., wrongfully towed the vehicle.⁷ In accordance with Lewis' testimony, the jury found the tow to have been wrongful and, on March 20, 1997, found the defendant guilty of larceny in the third degree. The defendant was found not guilty of the charges of reckless endangerment in the second degree and risk of injury to a child. The defendant was sentenced on May 2, 1997, to a two year suspended sentence and three years probation. He was also ordered to pay Lewis restitution in the amount of $200, participate in an anger management program, and donate $1000 to the Hartford police department outreach program. Additional facts will be set forth as necessary.

I JURY INSTRUCTIONS

The state argues that the trial court's instruction to the jury regarding "the intent to ... appropriate" element of larceny was proper. Section 53a-119 sets forth two different types of intent that may be established to prove larceny: "when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner...." (Emphasis added.) Either intent to deprive or intent to appropriate must be found to convict a defendant of larceny. The state proceeded on a theory that the defendant here intended to appropriate Lewis' vehicle.

The first count of the state's information charged the defendant with larceny in the third degree in that the defendant, "with intent to appropriate a motor vehicle to himself, wrongfully took, obtained and withheld that motor vehicle from the owner." (Emphasis added.) Furthermore, during the trial the state emphasized to the court that it was proceeding under the statutory provision where the defendant acts "with intent to appropriate a motor vehicle to himself." The state then recited the definition of "appropriate" set forth in § 53a-118 (a) (4) (B): "`to dispose of the property for the benefit of oneself or a third person.'"

Reflecting the specificity of the state's charge, the trial court instructed the jury in relevant part: "Our statute defines larceny as follows: A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself ... he wrongfully takes, obtains or withholds the property from an owner. Each of the following elements must be proved by the state beyond a reasonable doubt. First, that the defendant wrongfully took, obtained or withheld property from an owner. And second, that at the time the defendant obtained the property, he intended to appropriate that property to himself or a third person.... The state must prove to you beyond a reasonable doubt that first, [the defendant] wrongfully took, obtained or withheld property from the owner and at the time he did that, he intended to appropriate the same to himself or a third person." (Emphasis added.) In so instructing, the trial court declined to offer the jury the instructions suggested by the defendant.⁸ See State v. Leroy, 232 Conn. 1, 7, 653 A.2d 161 (1995) ("improper jury instruction as to an essential element of the crime charged may result in the violation of the defendant's due process right to a fair trial, and thus require the reversal of a conviction based upon that instruction"). The trial court properly rejected the instruction suggested by the defendant because much of the defendant's suggested instruction addressed the "deprive" prong of the intent element, rather than the "appropriate" prong on which the state was proceeding. See State v. Faust, 237 Conn. 454, 473, 678 A.2d 910 (1996).

In addition to declining to deliver the defendant's entire requested jury instruction, the trial court refrained from stating to the jury the statutory definition of "appropriate." General Statutes § 53a-118 (a) (4) defines "appropriate" as follows: "(A) to exercise control over it, or to aid a third person to exercise control over it, permanently or for so extended a period or under such circumstances as to acquire the major portion of its economic value or benefit, or (B) to dispose of the property for the benefit of oneself or a third person." The state was relying on the latter definition, as it emphasized at trial.⁹ The defendant contends, however, that if the state meant to proceed only under the "dispose of prong of the definition of "appropriate," the trial court should have read at least that specific section of the statutory definition to the jury. The state argues that, because the jury was not provided with the definition contained in § 53a-118 (a) (4), it may be presumed that the jury relied on a commonsense or dictionary understanding of the term. Such a definition, the state contends, would be the same for all intents and purposes as the statutory definition.

Although a trial court is not necessarily obligated to instruct the jury as to a statutory...