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State v. D'Amato

Appellate Court of Connecticut

March 8, 2016

STATE OF CONNECTICUT
v.
MICHAEL A. D'AMATO

         Argued December 1, 2015.

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[Copyrighted Material Omitted]

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          Substitute information charging the defendant with the crimes of larceny in the second degree and tampering with physical evidence, brought to the Superior Court in the judicial district of New Haven, geographical area number twenty-three, and tried to the jury before B. Fischer, J.; verdict and judgment of guilty, from which the defendant appealed to this court.

          SYLLABUS

         Convicted, after a jury trial, of the crimes of larceny in the second degree and tampering with physical evidence, the defendant appealed to this court. The defendant's conviction stemmed from his theft of seized money from a police department evidence box while he was employed as a police officer at the department. S, the police officer who had seized the money during an arrest, sealed it in plastic evidence bags and put the bags in the evidence box, which was located in an evidence closet. S's supervisor, D, saw S enter the closet with the money, but did not see S put the money in the evidence box. During the trial, outside the presence of the jury, defense counsel conducted a voir dire of S, who had been subpoenaed by the state, as to whether he would invoke his fifth amendment privilege against self-incrimination and refuse to answer questions if he was called to testify. S replied that he would invoke the privilege. Defense counsel did not request that S invoke his privilege in the presence of the jury, and the trial court did not order him to do so. On appeal to this court, held :

         1. The defendant could not prevail on his unpreserved claim that the trial court violated his constitutional right to present a defense by failing to require, sua sponte, S to invoke his fifth amendment privilege against self-incrimination in the presence of the jury: the record revealed that the defendant was able to present a defense that could have raised a reasonable doubt as to his guilt, as the testimony of other witnesses established that S was the officer responsible for putting the seized money in the evidence box, that S was the last person to have lawful custody of the money, and that no one actually saw S put the money in the evidence box; furthermore, the defendant's constitutional right to present a defense did not include the absolute right to call S as a witness for the sole purpose of having him invoke his privilege against self-incrimination in the presence of the jury, when his only reason for doing so would have been to induce an inference that S had stolen the seized money based on his invocation of the privilege; moreover, during closing argument defense counsel specifically raised the possibility that S did not put the money in the evidence box, but she did not include S on her witness list, move that S be required to invoke his privilege in the presence of the jury, or request that the court instruct the jury on third-party culpability; accordingly, under such circumstances, the defendant could not establish a constitutional violation that had deprived him of a fair trial.

         2. This court found unavailing the defendant's claim that the prosecutor engaged in impropriety during his rebuttal argument to the jury by commenting as to what S's testimony would have been had he testified: the prosecutor's comments were not improper, as they constituted a fair response to defense counsel's comments regarding S during her closing argument, they were not framed as a hypothetical, and they did not comment on S's absence from the trial; furthermore, the defendant waived his right to challenge the court's failure to include a neutralizing instruction as to S's unavailability, the defendant having failed to propose such an instruction.

         3. The trial court did not violate the defendant's constitutional rights by not permitting him to question a witness as to a prior inconsistent statement made by D regarding D's questioning of S about the seized money immediately after it was discovered missing, as that court properly determined that the evidence was inadmissible hearsay; the relevant section of the code of evidence (§ 6-10) regarding prior inconsistent statements of witness was not applicable here because the defendant did not present the court with a statement that was inconsistent with D's prior testimony, and, therefore, the court did not abuse its discretion by not permitting the defendant from eliciting hearsay testimony from the witness.

         Mark Rademacher, assistant public defender, for the appellant (defendant).

         Nancy L. Chupak, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Kevin Shay, senior assistant state's attorney, for the appellee (state).

         Gruendel, Alvord and Prescott, Js. ALVORD, J. In this opinion the other judges concurred.

          OPINION

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          [163 Conn.App. 538] ALVORD, J.

          The defendant, Michael A. D'Amato, appeals from the trial court's judgment of conviction, rendered after a jury trial, of larceny in the second degree by defrauding a public community in violation of General Statutes § § 53a-119 (6) (C)[1] and 53a-123 (a) (4),[2] and tampering with physical evidence in violation of General Statutes § 53a-155 (a) (1).[3] On appeal, the defendant

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claims that the trial court (1) improperly " denie[d] [the defendant] his right to present a defense when the court prevent[ed] [a witness] from invoking his fifth amendment right in front of the jury" ; (2) improperly allowed the prosecutor to state to " the jury what [the privileged witness'] testimony would have been and . . . fail[ed] to tell the jury not to draw any inference from [the witness'] absence from the trial" ; and (3) " wrongly prevent[ed] impeachment of [East Haven police Sergeant Gary] DePalma, a key state's witness, who said [the privileged witness] put the [163 Conn.App. 539] money in the mailbox." [4] We affirm the judgment of the trial court.

         The following facts, which the jury reasonably could have found, and procedural history are relevant to this appeal. On March 12, 2011, East Haven police Officer Dennis Spaulding arrested three suspects and seized drugs and more than $1300 in cash from their car. At the East Haven Police Department (department), Spaulding counted the money in front of his supervisor, DePalma. DePalma signed the department's evidence log and ensured that the seized money was properly recorded. According to DePalma, the money was placed in two plastic evidence bags. DePalma testified that he then watched Spaulding go into the department's evidence closet. Because of his positioning, he could not actually see Spaulding place the sealed bags in the evidence box, but he heard the evidence box open and close. The closet was located off of an evidence processing room, an area to which several officers had access. The locked closet was approximately six feet by six feet in dimension. The key for the closet was kept behind the duty supervisor's desk. Inside the closet was the evidence box, which was an old United States Post Office mailbox. Evidence was placed in a drawer at the top of the evidence box. Once the drawer was closed, the evidence dropped to the bottom of the evidence box and was retrieved by unlocking the bottom door.[5]

          [163 Conn.App. 540] On March 17, 2011, five days after Spaulding seized the money, Sergeant George Kammerer, the department's evidence officer, went to retrieve evidence from the evidence box and discovered that the money was missing. Kammerer testified that he and another officer conducted a thorough search of the evidence closet, but they could not find the money. The state police were called in to investigate.

         Within a few days after the money was discovered missing, East Haven police Captain Henry Butler III and East Haven

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police Commissioner Fred Brow tested the lock[6] on the evidence box. Butler testified that they pulled on the lower door of the evidence box, and even though it was locked, " it open[ed] a little bit, enough [that] I could stick my hand halfway in there . . . ." He also testified that he believed it would not be possible for a person to squeeze their entire hand into the evidence box nor could they reach to the bottom of the box.

         There were several surveillance cameras in the department, but none had a clear shot of the evidence box. The cameras took still pictures eight seconds apart and did not record continuous video.[7] The state police [163 Conn.App. 541] reviewed footage of who entered and exited the closet during the five days from when the money was seized to when it was discovered missing. The investigation focused on the defendant, who at the time was a detective with the department.

         The still shots from the surveillance cameras showed the defendant in the vicinity of the evidence closet on the morning of March 14, 2011. During that time, the closet door is seen opening and closing. The still shots do not actually show the defendant entering or exiting the closet, but they showed him leaving the area with something under his arm. Based on the still shots presented to the jury, it was not perfectly clear what the defendant was holding, but the state suggested that part of the item or items was colored red.[8] The

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state argued [163 Conn.App. 542] that this was the evidence bags containing the seized money. Four months after the theft was reported, the defendant was interviewed by state police. Initially, he did not recall being in the evidence closet, but after being shown still pictures he admitted that he may have been in there but could not remember exactly why. The defendant was arrested and charged with the theft of the missing money.

         Prior to the trial, the state included Spaulding on its witness list, but it was informed by his counsel that he would be invoking his fifth amendment privilege against self-incrimination. The state subpoenaed Spaulding, and during the trial but outside the presence of the jury, Spaulding stated that he would invoke his fifth amendment right if he was required to testify. After the time of the alleged theft and prior to the commencement of the trial, Spaulding had been charged and convicted of federal crimes for civil rights violations and the obstruction of justice in relation to his conduct as an East Haven police officer. Spaulding's counsel informed the court that he had advised Spaulding not to testify because he intended to appeal his conviction. Defense counsel conducted a voir dire of Spaulding, asking whether he would invoke his privilege against ...


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