State v. McFarlane

868 A.2d 130, 88 Conn. App. 161, 2005 Conn. App. LEXIS 111
CourtConnecticut Appellate Court
DecidedMarch 22, 2005
DocketAC 25159
StatusPublished
Cited by19 cases

This text of 868 A.2d 130 (State v. McFarlane) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. McFarlane, 868 A.2d 130, 88 Conn. App. 161, 2005 Conn. App. LEXIS 111 (Colo. Ct. App. 2005).

Opinion

Opinion

HENNESSY, J.

The defendant, Lorenzo McFarlane, appeals from the judgment of conviction, rendered after a jury trial, of larceny in the first degree in violation of General Statutes §§ 53a-122 (a) (2) and 53a-119, burglary in the third degree in violation of General Statutes § 53a-103 (a), and conspiracy to commit the crimes of larceny in the first degree and burglary in the third degree in violation of General Statutes §§ 53a-48, 53a-[163]*163122 (a) (2) and 53a-103 (a). On appeal, the defendant claims that (1) the trial court improperly admitted evidence of uncharged misconduct, (2) the court improperly charged the jury under Pinkerton v. United States, 328 U.S. 640, 647-48, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946), and (3) there was insufficient evidence to support the conviction. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On July 31, 2001, the defendant, James Samperi, James Zulawski, Julie DiDonato and Ralphella DiPalma met and discussed breaking into the Emptees Redemption Center (Emptees) in Orange. After the discussion concluded, at approximately 12:30 a.m., the defendant, Samperi and Zulawski drove to Emptees in Samperi’s car. There, the defendant acted as a lookout while Samperi and Zulawski removed the hinges from the front door of Emptees, went inside and seized the safe and strongbox and returned to the car.1 Subsequently, the defendant was present when the safe was forced open, and he received a one-third shar e of the approximately $19,000 it contained. Further facts will be set forth as necessary.

I

The defendant first claims that the court improperly admitted evidence of uncharged misconduct. Specifically, the defendant objected to the admission of evidence of his participation in burglaries at the KB Toy store in the Westfarms Mall in Farmington on December 9, 2001, the B. Dalton Bookstore at the Westfield Shoppingtown Connecticut Post Mall in Milford on December 24, 2001, and the Life Uniform Store at the Westfield Shoppingtown Mall in Enfield on January 27, 2002. The defendant argues that those alleged incidents were not similar enough to the Emptees burglary at issue in this [164]*164case to be considered signature type conduct and, as such, were inadmissible. The defendant further argues that the uncharged misconduct evidence was more prejudicial than probative and that it should not have been admitted. We disagree.

“The admission of evidence of . . . uncharged misconduct is a decision properly within the discretion of the trial court. . . . [E]very reasonable presumption should be given in favor of the trial court’s ruling. . . . [T]he trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done. ... To be admissible under the Connecticut Code of Evidence, the uncharged misconduct must be relevant ... to one of the exceptions ... to the general bar against uncharged misconduct. ... If it is relevant to one of the exceptions, then its probative value . . . must be greater than its prejudicial effect. . . . Section 4-5 (b) [of the Connecticut Code of Evidence] specifies that uncharged misconduct may be admissible to prove, inter alia, intent, identity, malice, motive, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal activity, or an element of the crime, or to corroborate crucial prosecution testimony.” (Internal quotation marks omitted.) State v. Holliday, 85 Conn. App. 242, 249, 856 A.2d 1041, cert. denied, 271 Conn. 945, 861 A.2d 1178 (2004).

Here, the evidence was relevant to intent. In State v. Amaral, 179 Conn. 239, 425 A.2d 1293 (1979), our Supreme Court stated: “Under a charge of possession with intent to sell, the fact that in the past the defendant had been a seller of the drug would tend to characterize the nature of his possession of the drug at the time of the alleged offense.” Id., 244-45. Similar to the situation in Amaral, here, the fact that the defendant previously had served as a lookout for the other codefendants in similar burglaries made it more likely that he was serv[165]*165ing as a lookout during the crimes at issue and was not an innocent bystander as he claimed.

The defendant argues that because the Emptees burglary involved a freestanding building and the uncharged misconduct evidence involved burglaries at malls, the evidence was too dissimilar, and should not have been admitted. “The high degree of similarity required for admissibility on the issue of identity is not required for misconduct evidence to be admissible on the issue of intent.” State v. Henry, 41 Conn. App. 169, 178, 674 A.2d 862 (1996); see also State v. Faria, 47 Conn. App. 159, 172, 703 A.2d 1149 (1997) (lesser degree of similarity required when other misconduct evidence used to show motive, intent), cert. denied, 243 Conn. 965, 707 A.2d 1266 (1998). Here, the same individuals had the same roles in burglaries of businesses throughout the state over approximately a six month period. Despite the fact that the subsequent burglaries occurred at malls and not at freestanding businesses, they bore a sufficient similarity to the charged crimes to be admissible on the issue of the defendant’s intent.

The evidence also was more probative than prejudicial. The defendant argues that the similarity of the crimes made the uncharged misconduct more prejudicial than probative because the jury would be more likely to view the misconduct as propensity evidence. That argument was disposed of in cases such as State v. Amaral, supra, 179 Conn. 244, in which our Supreme Court determined that the mere fact that the uncharged misconduct and the charged crime are similar does not make the uncharged misconduct evidence overly prejudicial. The defendant’s theory that he was present at the scene but was unaware that a burglary was going to take place made evidence that tended to show his intent highly probative. Although some prejudice naturally flows from such evidence, that evidence was not of the variety that would shock the jury or inflame its [166]*166passions. Moreover, any prejudice was minimized by the court’s limiting instruction to the jury on the proper use of the misconduct evidence.2 See State v. Anderson, 86 Conn. App. 854, 870, 864 A.2d 35 (2005) (juiy presumed to follow court’s instructions absent clear evidence to contrary). The court did not abuse its discretion when it admitted the evidence of the defendant’s uncharged misconduct.3

II

The defendant next argues that the court improperly instructed the jury that it could find him guilty on the basis of a theory of conspiratorial liability under Pinkerton v. United States, supra, 328 U.S. 647-48. The defendant argues that his role in the burglary was so attenuated and remote that to apply the Pinkerton rationale would be unfair. We disagree.

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Cite This Page — Counsel Stack

Bluebook (online)
868 A.2d 130, 88 Conn. App. 161, 2005 Conn. App. LEXIS 111, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mcfarlane-connappct-2005.