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State v. Richardson

Supreme Court of Connecticut

May 1, 1990

STATE of Connecticut
v.
David R. RICHARDSON.

Argued Feb. 7, 1990.

Page 183

B. Paul Kaplan, Plainfield, with whom was Michael J. Cartier, for appellant (defendant).

Lawrence J. Tytla, Asst. State's Atty., with whom, on the brief, was C. Robert Satti, Sr., State's Atty., for appellee (state).

Before PETERS, C.J., and SHEA, CALLAHAN, COVELLO and HULL, JJ.

[214 Conn. 753] CALLAHAN, Associate Justice.

The defendant, David R. Richardson, was charged in an amended information with the crime of arson in the first degree in violation of General Statutes § 53a-111(a)(1). [1] He was found guilty by a jury. The charge arose out of an incendiary fire that caused damage to the Tally-Ho Mall, a small business building located on route 2 in the town of Preston. The defendant was the manager of a furniture store called the Water Bedroom Store located in the west end of the mall. Although a corporation, the store was essentially a family-run business, all of its stock being owned [214 Conn. 754] by the defendant's wife, Laura Richardson, and the defendant's father, George Richardson. The fire occurred in the early morning hours of February 1, 1988, while another tenant of the mall, Jon Watts, was alleged by the state to have been asleep on a couch in a small office he rented at the east end of the mall. [2] There was evidence that the fire started in an attic area over the Water Bedroom Store. The attic could be reached by a trap door in the ceiling of the store.

The fire was discovered by a neighbor, Joyce Girard. From her porch, Girard noticed smoke coming from the mall at approximately 2:30 a.m. [3] After seeing the smoke, Girard awakened her husband and sent him to arouse Watts, whose truck was parked outside his office at the mall. She then called the fire department. Keith Girard was able to arouse Watts only after shouting and banging on the door and window of Watts' office for what he said was a period of four or five minutes. After arousing Watts, Girard assisted him in removing some computer equipment from the building.

I

The defendant first claims that he is entitled to a new trial because the state, in its closing argument, having commented on facts not in evidence deprived him of his right to a fair trial and an impartial jury. The scenario that led to the defendant's claim can be summarized as follows. There was evidence that two or three months prior to February 1, 1988, the defendant had installed an autodialer on the telephone in the Water Bedroom Store. The autodialer was activated [214 Conn. 755] when a beam emanating from any of three sensors in the store was broken. Once a beam was broken, a person authorized to be in the store, such as an employee, had a short interval to enter a code into a key pad signaling an authorized entry. The autodialer would then place a call to the defendant's answering service which in turn would notify the defendant of the authorized

Page 184

entry. If the code was not entered, the autodialer would, according to the evidence, dial the defendant's answering service, which in turn would contact the defendant via his pager to notify him of an unauthorized entry into the store.

On the morning of the fire, the autodialer placed six calls to the defendant's answering service in a short period of time, commencing at 2:25 a.m. and ceasing at 2:37 a.m. [4] The defendant was notified of the calls through his pager. The telephone company maintained a record of these calls because a telephone call from Preston, where the defendant's store was located, to the defendant's answering service in Putnam, was a toll call. The bill for these calls showing the calling number, the number called, and the time that the calls were made, was submitted into evidence at the trial by the defendant. There was no definitive evidence presented at the trial, however, as to exactly how the autodialer functioned. [5] In particular, no explicit testimony was offered concerning whether the autodialer dialed the defendant's answering service only once when a sensor[214 Conn. 756] beam was broken or whether a single unauthorized intrusion into a sensor beam caused the autodialer to call continuously for a period of time or until reset. The evidence was uncontroverted, however, that although the defendant had been at his Preston store earlier in the evening he was not at the store when the fire was discovered or when the calls were placed by the autodialer. [6]

In his closing argument, in rebuttal of the defendant's final argument, the prosecutor expressed his belief to the jury that the autodialer, once activated by a single breach of a sensor beam, continued dialing. At the close of arguments, the defendant alerted the trial court to the absence of any evidentiary foundation for the state's remarks and requested a specific curative instruction pointing out to the jury the lack of a basis in the evidence supporting the state's argument. The trial court denied the defendant's request for such an instruction. Prior thereto the court reflected that it was its impression that the defendant himself had argued "some things" that were not in evidence. The court noted, however, that the jurors would be instructed that they were to make up their own minds from what they recalled the evidence to be and not from what either counsel said in argument. The defendant took an exception to the court's ruling. Thereafter, the court instructed the jury that its determination of the facts was to be adduced from the evidence and not the arguments[214 Conn. 757] of counsel. [7] Subsequently, no objection was voiced or exception taken by either the state or the defendant to the trial court's charge. "[I]n the absence of a fair indication to the contrary, [the jury] is presumed to have followed the instructions of the court." State v. Glenn, 194 Conn. 483, 497, 481 A.2d 741 (1984); State v. Washington, 182 Conn. 419, 429, 438 A.2d 1144 (1980); State v. Barber, 173 Conn. 153, 156-57, 376 A.2d 1108 (1977).

Page 185

After the defendant's conviction, he moved for a new trial. The trial court denied his motion. On appeal, the defendant claims that the trial court erred when it denied his motion and that he is entitled to a new trial because of the failure of the court to deliver a specific curative instruction explicitly calling the jury's attention to the lack of an evidentiary foundation for the state's remarks pertaining to the operation of the autodialer. He argues that the misstatement of the evidence by the prosecutor resulted in catastrophic damage to his defense because it destroyed his attempt to cast suspicion on Watts as the perpetrator of the arson. He contends that if the jury had determined that the autodialer required a separate intrusion each time that it dialed, it may have believed that Watts was in the Water Bedroom Store setting the fire during the period of time that he could not be aroused by Keith Girard. [8] The defendant postulates that if he could have generated suspicion concerning Watts' activities between [214 Conn. 758] 2:25 a.m. when the first call was dialed and 2:37 a.m. when the last call was dialed, it may have created a reasonable doubt concerning his own culpability for the fire. He argues that the state's remarks, without a specific curative instruction, detracted from his attempt to implicate Watts to the extent that he was deprived of due process and that he is entitled to a new trial. We disagree.

A thorough review of the transcript reveals that the modus operandi of the autodialer, the subject of the state's disputed argument, has taken on an importance on appeal that it does not appear to have had at trial. It is only on appeal that the propensities of the autodialer have attained their status as the crucial element of the defendant's case. [9] Whether the autodialer dialed only once when activated or continued to dial once activated was not a central issue at trial. In fact, as is evidenced by this appeal, that particular aspect of the operation of the autodialer was never the subject, at trial, of an explanation by witnesses for either the state or the defendant.

Further, the prosecutor's remarks do not appear to interfere appreciably with the defendant's attempt to point the finger of suspicion at Watts. As disclosed by the evidence, Watts was alone in the mall at 2:25 a.m. when the autodialer went into operation and the defendant was elsewhere. That fact, coupled with Girard's testimony that he could not awaken Watts for four or five minutes, would seem adequate to have [214 Conn. 759] made the defendant's point, if the point was to be made, that Watts might have ...


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