Appendix — Orsini v. Connecticut

Supreme Court brief1982

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APPENDIX A

SUPREME COURT

STATE OF CONNECTICUT v. CHESTER ORSINI

PETERS, HEALEY, PARSKEY, SHEA and F.

HENNESSY, Js.

Argued March 4-decision released June l,

1982

Convicted of the crimes of larceny in

the second degree, of conspiracy to commit

larceny in the second degree and of being

a persistent felony offender, the defend-

ant appealed. Held:

1. The defendant was not deprived of

any constitutional right by the trial

court's refusal to allow his attorney, on

cross-examination of two of the state's

witnesses, to inquire as to acts of prior

misconduct on their part; more, the defend-

ant having failed to except to that refu-

sal at trial, it was not further review-

able by this Court.

2. The defendant's failure to re-

quest a change of venue before trial pre-

cluded any review of his claim of improper

venue.

3. The redundant wording of the

count of the information which charged

the defendant with conspiracy did not

nullify his conviction of that offense

since he failed to seek a correction of

the defect and since the trial court tho-

roughly explained the elements necessary

for a conspiracy conviction in its charge

to the jury.

4. The trial court did not err in

charging the jury that, with respect to

a four day discrepancy between the date

of the larceny alleged in the information

and the date alleged in the bill of parti-

culars, it could find the defendant guilty

if the evidence proved that he had commit-

ted the crime within the “general area" of

those two dates.

5. The trial court's instruction to

the jury that "[y]Jou will have to decide

whether you believe the state's witnesses

as to the commission of these crimes...

or whether you believe the testimony of

the defendant's witnesses as to the de-

fendant's innocence. ... ,” when read in

the context of the entire charge, could

not reasonably have resulted in a dilution

of the state's burden of proof.

6. There was nothing in the record

to indicate that the defendant was deprived

of a fundamental constitutional right as

a result of his conviction of being a per-

sistent felony offender.

Information charging the defendant

with three counts of larceny and three

counts of conspiracy to commit larceny,

brought to the Superior Court in the judi-

cial district of Middlesex and tried to

the jury before Naruk, J.; verdfct and

judgmen* of guilty of larceny in the

second degree under the first count and

conspiracy to commit larceny in the fourth

degree under the sixth count; the court

found the defendant guilty of being a per-

sistent felony offender; from the judgment

rendered the defendant appealed to this

court. No error.

John R. Williams, for the appellant

(defendant).

Robert E. Beach, Jr., special assi#t-

ant state's attorney, for the appellee

(state).

SHEA, J. The defendant was convicted

of larceny in the second degree in viola-

tion of General Statutes §53a-123(a)(2) and

also of conspiracy to commit larceny in the

second degree in violation of General Sta-

tutes §53a-48 after a jury trial. Ina

later proceeding he was also found guilty

of being a persistent felony offender in

violation of General Statutes §53a-40(b).

In his appeal from the judgment the de-

fendant claims (1) that his right of cross-

examination was unconstitutionally in-

fringed by rulings which sustained objec-

tions to his questions concerning the prior

misconduct of two witnesses for the state;

(2) that his convictions are invalid be-

cause of improper venue; (3) that his con-

viction of conspiracy is a nullity because

of a defect in the wording of that count of

the information; (4) that two comments made

by the trial judge in the course of the

charge to the jury were improper and pre-

judicial; (5) that his conviction as a

persistent felony offender under the second

part of the information, in accordance \

the procedure set forth in Practice Book

§619, is vitiated by the fact that the

previous felony relied upon was a viola-

tion of General Statutes §53-29, which pro-

hibits anyone from assisting in procuring

an abortion and, the defendant maintains,

was implicitly declared unconstitutional

in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705,

35 L.Ed.2d 147 (1973). See Abele v.

Markle, 369 F.Supp. 807 ‘(D.Conn. 1973);

State v. Menillo, 168 Conn. 266, 362 A.2d

962, vacated, 423 U.S. 9, 96 S.Ct. 170, 46

L.Ed.2d 152 (1975), on remand, 171 Conn.

141, 368 A.2d 136 (1976); and (6) that his

trial attorney was so inept that the de-

fendant was deprived of the effective

assistance of counsel. We find no error

sufficient to warrant a new trial and we

affirm the judgment.

Although no claim that the evidence

was insufficient to support the findings

of guilty has been raised, a brief summary

of the facts which might reasonably have

been found in support of the verdicts fur-

nishes a useful background for evaluation

of the defendant's claims. In late Decen-

ber one Morris Ashcroft and two companions

broke into a home in Westbrook and removed

fat the trial the defendant was represent-

ed by a different attorney from the one

who represented him on this appeal,

several antique guns from a chest in the

basement. Through an intermediary,

Ashcroft met the defendant at a gas

station in Westbrook and sold him the guns

for $300, informing him that they were

stolen and narrating the circumstances of

the burglary.

Several days afterward Ashcroft re-

entered the same house in Westbrook and

took some more guns. He telephoned the

defendant and arranged to meet him at a

store in Westbrook, telling him he had

stolen some other guns from the same place.

When they met, the defendant purchased

these guns for $500.

A week or two later Ashcroft, this

time with one companion, stole some rifles

as well as other items from the Westbrook

residence, The defendant met Ashcroft at

a restaurant in Meriden as a result of a

telephone conversation and he bought the

rifles for $800. At this meeting Ashcroft

signed a receipt indicating a price of

$2500 for the rifles. There was testimony

that all of the stolen guns, which were

2rhe guns previously stolen were presum-

ably pistols.

admitted in evidence at the trial, had a

value of $13,295.

During oral argument the defendant

focused mainly upon the rulings of the

court made during the cross-examination of

two witnesses for the prosecution who had

participated with Ashcroft in burglarizing

the house in Westbrook. Each of them was

asked whether he had broken into any other

houses in the Westbrook area with Ashcroft

and objections by the state were sustained.

No exceptions to the rulings were taken as

required by Practice Book §288. Faced with

this obstacle to review of the rulinys, the

defendant argues that precluding him from

this inguiry into the prior misconduct of

these witnesses was an error of constitu-

tional dimension falling within the excep-

tion created by State v. Evans, 165 Conn.

61, 327 A.2d 576 (1973), for such situa-

tions.

The defendant relies upon the holding

of Davis v. Alaska, 415 U.S. 308, 94 S.Ct.

1105, 39 L.Ed.2d 347 (1974), that undue

restriction upon cross-examination of pro-

secution witnesses for bias or interest,

particularly with respect to bargains made

concerning the disposition of criminal

charges against those witnesses, violates

the constitutional rights of confrontation.

See State v. Annunziato, 174 Conn. 376,

279, 287 A.2da 566 (1978). That principle

is wholly inapplicable to the questions

which are the subject of the rulings

challenged here. Not only do these in-

quiries make no reference to pending

criminal charges against the witnesses,

whether formally presented or at some pre-

liminary stage, but no claim of such a

purpose was made at trial. Facially the

questions appeared to be designed to attack

the character of the witnesses by proof of

prior specific acts of misconduct other

than felony convictions in violation of

the general prohibition against such evi-

dence. State v. Zdanis, 173 Conn. 189,

191, 377 A.2da 277 (1977); State v. Martin,

170 Conn. 161, 167, 365 A.2d 104 (1976);

Richmond v. Norwich, 96 Conn. 582, 597,

115 A.1l (1921); Verdi v. Donahue, 91

Conn. 448, 454, 99 A. 1041 (1917). The

exception, which allows, in the discretion

of the trial court, proof of particular

acts having a special significance upon the

issue of veracity, cannot be said to

require the admission of evidence that a

witness has engaged in an unrelated burg-

lary at some time in the past. Vogel v.

Sylvester, 148 Conn. 666, 675, 174 A.2d 122

(1961); Shailer v. Bullock, 78 Conn. 65,

69 (1905). The exclusion of such evidence,

therefore, does not deprive the defendant

of any constitutional right and the ruling’

is not further reviewable because of the

absence of any exceptions. Practice Book

§288. The defendant was not inhibited by

these rulings from exploring the motiva-

tions of the witnesses for testifying in

relation to the disposition of any pending

criminal charges, inquiries which were in

fact vigorously pursued at trial without

restriction.

, io

The claim of improper venue has also

been raised for the first time in this

appeal rather than in the trial court. ?

3the defendant claimed that venue was im-

proper because the bill of particulars

alleged that the larceny charged in the

first count of the information occurred in

Meriden, which is situated within the

county of New Haven. Each of the six counts

10a

Venue requirements are created for the

convenience of the litigants and may be

waived by failure to assert the statutory

privilege in timely fasion. 77 Am.Jur.2d,

Venue §45. Subject matter jurisdiction,

which cannot be conferred upon the court

by the parties, must be distinguished from

venue. Ibid.; Fine v. Wencke, 117 Conn.

of the original information stated that

the place of the crime was Westbrook in

Middlesex County. The evidence was that

the guns were stolen from a house in

Westbrook and were delivered to the de-

fendant in Meriden as a result of meet-

ings with the defendant in Westbrook.

General Statutes §54-77 (Rev. to 1977)

provided in part that "when theft is

committed in one county or judicial dis-

trict and the property stolen is carried

into another county or judicial district,

the offender may be tried in either

county or judicial district." The defend-

ant concedes that he could have been tried

in either New Haven County or Middlesex

County, but maintains that once the bill

of particulars was filed indicating that

the larceny charged in the first count

had occurred in Meriden, that amendment

to the information required that the trial

of that count be held in New Haven County.

Our view that this claim involves neither

jurisdiction nor a violation of a funda-

mental constitutional right makes it un-

necessary to consider its merits further.

lla

683, 684, 169 A.58 (1933); Mower y. State

Department of Health, 108 Conn. 74, 77, 142

A.473 (1928). Practice Book §§809 and 810

provide that a request for transfer of

prosecution must be made before trial or

shall otherwise be deemed to be waived.

General Statutes §54-ld expressly provides

that "[a] criminal cause shall not fail on

the ground that it has been submitted to a

session of improper venue."

Recognizing the necessity of convert-

ing his statutory venue privilege into a

constitutional right for the purpose of

obtaining appellate review of the venue

error claimed, the defendant, during oral

argument, though not in his brief, ad-

vanced the proposition that venue in a

criminal case invokes the fundamental right

of trial by jury which is not waivable

except at the express election of the de-

fendant personally in open court. See

Roseman v. United States, 364 F.2d 18, 27

(9th Cir. 1966), cert. denied, 386 U.S.

918, 87 S.Ct. 880, 17 L.Ed.2d 789 (1967);

Hawkins v. United States, 385 A.2d 744,

747 (D.C. App. 1978); Russell v. State,

342 So.2d 96, 97 (Fla. App. 1977). The

basis for this position is that at common

12a

law a jury must generally have come from

the vicinage or neighborhood where the

crime occurred, a rule emanating from the

character of the ancient jury as a body of

people from the immediate area of the crime

having some acquaintance with the persons

and events involved who could rely upon

their previous knowledge in reaching a

verdict. 47 Am.Jur.2d, Jury §25. This

conception of jurors as being informed

about a case prior to trial is, of course,

at variance with our present view that a

verdict must be based solely upon the evi-

dence presented at trial. United States

v. Howard, 506 F.2d 865, 867 (5th Cir.

1975); Sta.e v. McCall, 187 Conn. 73,

A.2d (1982). Even if the defendant

were entitled to a jury composed of jurors

from New Haven County rather than from

Middlesex County, as he contends, we are

not convinced that this privilege, which

is wholly statutory in origin, is so fun-

damental that it may not be waived without

the full panoply of safeguards applicable

to a plea of guilty or an election of a

trial without a jury. We are not aware

larticle VI of the United States Constitu-

13a

of any authority supporting this claim of

the defendant and we are not inclined to

begin a parade of precedent in that direc-

tion. We conclude that the failure to re-

quest a change of venue before trial pre-

cludes any review of the defendant's claim

of improper venue on its merits.

III

The defect in the wording of the in-

formation which is claimed to nullify his

conviction of conspiracy was raised in the

trial court by the defendant during his

argument of a motion for acquittal? at the

close of the evidence presented by the

state. The sixth count of the information,

charging the crime of conspiracy upon which

a guilty verdict was rendered, alleged that

the defendant "did combine, conspire, con-

federate and agree with [others] to commit

the crime of conspiracy to Commit Larceny

tion provides in part that “the accused

shall enjoy the right to a speedy and

public trial by an impartial jury of the

State and district wherein the crime shall

have been committed...."

The defendant erroneously referred to this

motion as a motion to dismiss. See Prac-

tice Book §§ 815, 884.

l4a .

in the Second Degree...in violation of

Sections 53a-48(a) and 53a-123(a) (2) of

the Penal Code." As the defendant main-

tains, there is no such crime as a conspi-

racy to conspire to commit some offense.

Although a motion for a bill of particulars

was addressed to this count before trial

seeking “the exact date, time and place"

of the alleged conspiracy and a response

thereto was filed, no pretrial motion was

made pointing to this defect in the wording

of the information as required. Practice

Book §809(1). The failure to raise a de-

fect in the information before trial by a

motion to dismiss upon that ground consti-

tutes a waiver thereof. Practice Book

§§890(1), 810, 815(2). It does not appear

that the defendant sought any correction

of the information when he called the defi-

ciency to the att ition of the trial court

in arguing for an acquittal. In denying

his motion the court noted that "there is

a sort of redundancy..." in the wording of

this count but concluded that the statu-

tory references made clear which crime was

charged and that there had been no surprise

or prejudice. Practice Book §625 implicit-

ly allows an information to charge an

15a

offense by referring only to the statute

which has been violated, but requires the

prosecutor to amend it by a statement of

the essential facts constituting the crime

upon the written request of a defendant.

No such request was made in this case, and,

as previously mentioned, the motion for a

bill of particulars sought only the time

and place of the conspiracy.

In instructing the jury upon this

count of the information the trial court

did read the information without comment

upon the error in wording which had been

observed. The court summarized this count,

however, as charging the defendant “with

having committed the crime of conspiracy

to commit larceny in the second degree..."

and thoroughly explained the elements

necessary for a conviction. No error is

claimed in this portion of the charge.

We conclude that the defect in the inform-

ation was waived by the failure of the de-

fendant to seek a correction of it and

that, in any event, he was not prejudiced

because the crime of which he was con-

victed was adequately explained in the

charge.

l6a

The errors claimed in the charge to

the jury are the instructions on (1) the

significance of the date of the crime as

alleged in the information and (2) the

choice to be made in deciding whether to

believe the witnesses for the prosecution

or those for the defense.

The first count of the information

alleged that the defendant committed lar-

ceny in the first degree “on or about the

3rd day of January, 1975...." The bill

of particulars, filed in response to a

motion of the defendant, specified that

"on or about January 7, 1975..." the

defendant had purchased some antique guns

in Meriden knowing that they had been

stolen. The trial court noted this dis-

crepancy between the dates of the crime as

alleged in the information and in the bill

of particulars and instructed the jury as

follows: “Now, as far as the date of the

crime is concerned, as to these two dates,

--the law does recognize that if the evi-

dence proves the crime within that general

area, so there is no element of surprise,

17a

so it is on the particular date that is

given, it really doesn't matter whether it

is the specific date that is given. Sol

would suggest to you that you not overem-

phasize these two dates." No exception

was taken to this portion of the charge

as required by Practice Book §854.

Once again the defendant seeks review

of a claimed error despite his failure to

preserve it in the trial court for present-

ation on appeal. He claims that his con-

stitutional right "to be informed of the

nature and cause of the accusation" as

provided by the Sixth Amendment of the

Constitution of the United States was in-

fringed by the court's instructions. It

is essential that an information comply

with this requirement in order that a de-

fendant may be able to prepare for trial

and, after judgment, be able to plead that

record in bar of a further prosecution for

the same offense. Wong Tai v. United

States, 273 U.S. 77, 80, 47 S.Ct. 300, 71

L.Ed. 545 (1927). The defendant's claim

is, therefore, reviewable to determine

whether this constitutional right of his

was violated. State v. Evans, supra. Our

18a

first observation is that the import of

the language used by the trial court is

not entirely clear. A fair construction

would be that the jury might find the

defendant guilty if he committed the crime

charged at any time within the “general

area" of the two dates, encompassing the

period January 3 to January 7 and perhaps

extending for some reasonable period beyond

these limits.

"It is a well-established rule in this

state that ‘it is not essential in a cri-

minal prosecution that the crime be proved

to have been committed on the precise date

alleged, it being competent ordinarily for

the prosecution to prove the commission of

the crime charged at any time prior to the

date of the complaint and within the period

fixed by the Statute of Limitations.’

State v. Lorusso, 151 Conn. 189, 191, 195

A.2d 429 [1963]." State v. Ramos, 176

Conn. 275, 276-77, 407 A.2d 952 (1978).

Time is not usually an essential element of

an Offense. Ibid.; State v. Hauck, 172

Conn. 140, 150, 374 A.2d 150 (1976).

Where the lack of a sufficiently definite

date is deemed to implicate the right to

know the nature of the charge made, actual

19a

prejudice in the preparation or presenta-

tion of the defense has been found. In

the cases cited by the defendant for this

proposition, however, the time alleged has

been far more indefinite than the expanded

time period sanctioned by the trial court

here. United States v. Parente, 449 F.

Supp. 905, 914 (D.Conn. 1978); Common-

wealth v. Devlin, 333 A.2d 888, 892 (Pa.

1975). The defense in this case was not

that the sale of the guns to the defendant

had not taken place but that the defendant

was not aware that the guns were stolen.

The defendant has not pointed out how he

was prejudiced in making his defense by

the challenged instruction. We are not

dealing with an erroneous charge upon an

essential element of an offense. See

Sandstrom v. Montana, 442 U.S. 510, 99 S.

Ct. 2450, 61 L.Ed.2d 39 (1979); State v. _

Rose, 169 Conn. 683, 688, 363 A.2d 1077

(1975). The broadening of the time period

alleged for the commission of the crime

which the trial court effectively permitted

had no adverse impact upon the defendant

sufficient to constitute a deprivation of

his constitutional right "to be informed of

the nature and cause of the accusation...."

20a

The defendant did take exception to

the portion of the charge relating to the

comparative credibility of the prosecution

and defense witnesses, though not very

clearly.°® In its summary near the end of

the charge, the court advised the jury

that they must decide whether the state

had proved all the elements of the crimes

involved beyond a reasonable doubt. Then

followed the challenged instruction: "You

will have to decide whether you believe the

state's witnesses as to the commission of

rhe colloguy concerning the defendant's

exception to the charge was as follows:

"MR. ZACCAGNINO: Yes, Your Honor, Just

one thing I want to ask Your Honor, you

could think about, Your Honor charged, in

the last statement you made just before

ee started to tell them about the deli-

ations, were in this context, ‘If you

believe the state's witnesses, you'--some-

thing about ‘'guilty'--you went on to say,

‘Or you can believe the defendant's wit-

nesses that tended to prove his innocence. '

That might give the opinion that we have to

prove that. And we don't have to [do] any-

thing, if they haven't made out a prima

facie case.

"THE COURT: I think, considering the

whole charge, in that context, that was

Clear in the beginning.

"MR. ZACCAGNINO: I thought I would bring

2la

these crimes, and the participation of the

accused, or whether you believe the testi-

mony of the defendant's witnesses as to the

defendant's innocence. In essence, it is

as simple as that." Instructions similar

to these have been termed “comparative

credibility" charges and have been widely

criticized. United States v. Pine, 609

F.2d 106, 108 (3d Cir. 1979); United

States v. Brown, 582 F.2d 197, 201-202

(2d Cir.), cert. denied, 439 U.S. 915, 99

S.Ct. 289, 58 L.Ed.2d 262 (1978); United

States v. Guest, 514 F.2d 777, 780 (lst

Cir. 1975). The flaw in such a charge is

that it invites the jury to treat the

matter of proof as a "fair fight" between

the prosecution and the defense rather

than as one weighted in favor of the

latter by the necessity of proving guilty

beyond a reasonable doubt. United States

v. Oguendo, 490 F.2d 161, 166 (5th Cir.

1974) (Gee, J., concurring).

The question before us is not whether

that out.

"THE COURT: The problem was balancing

of the testimony."

22a

this single statement, viewed in isolation

from the rest of the charge, can reason-

ably be regarded as diluting the burden of

proof resting upon the state, but whether

in the context of the entire charge it can

be said to have had that result. A

charge cannot be critically dismembered

but must be read as a whole. State v.

Crawford, 172 Conn. 65, 69, 372 A.2d 154

(1976). We have frequently in recent years

faced a similar problem in analyzing the

effect of the instruction that a person is

"presumed" to intend the natural conse-

quences of his acts, which was disapproved

in Sandstrom v. Montana, supra, as poten-

tially shifting the burden of proof on the

issue of intent to the defendant. See,

e.g., State v. Cosgrove, 186 Conn. 476,

481, 442 A.2d 1320 (1982). Our approach

has been to examine the entire charge to

determine whether there is any reasonable

basis for concluding that the objectionable

portion might have had such effect. Ibid.

A similar analysis has been applied to the

problem created by a “comparative credibi-

lity" instruction. United States v. Pine,

supra; United States v. Brown, supra.

23a

Here the trial judge repeatedly stressed

that the state had the burden of proving

each element of the crimes charged beyond

a@ reasonable doubt. He also advised the

jury that the defendant was not obliged to

prove his innocence and that no inference

could be drawn from his failure to testify.

In the context of the entire charge, which

occupies forty pages of the appendix to

the defendant's brief, the isolated state-

ment under fire cannot reasonably be said

to have had any potential for lessening the

burden of the state or imposing a burden

upon the defendant. United States v.

Brown, supra, 202.

The defendant claims next that his

conviction as a persistent felony offender

is invalid because the earlier offense re-

lied upon is based upon a statute subse-

quently declared unconstitutional. Al-

though no such issue was raised in the trial

court, it does involve a violation of a

constitutional right reviewable upon the

trial record. See State v. Evans, supra.

The second part of the information charged

that the defendant was a persistent felony

24a

offender in violation of General Statutes

§53a-40(b) by virtue of his conviction on

December 10, 1965 for aiding and abetting

an abortion in violation of General Sta-

tutes §53-29. See United States ex rel.

Orsini v. Reincke, 286 F.Supp. 974 (D.

Conn.), aff'd, 397 F.2d 977 (2d Cir. 1968);

State v. Orsini, 155 Conn. 367, 232 A.2d

907 (1967). The effect of a conviction as

a persistent felony offender is to allow

the imposition of a greater term of impri-

sonment than would otherwise be authorized

for the crime committed. General Statutes

§53a-40(f). °

We accept the basis premise advanced

by the defendant that a conviction which

has been procured in violation of consti-

tutional rights cannot be used to increase

the punishment which would ordinarily be

permissible. Baldasar v. Illinois, 446

U.S. 222, 100 S.ct. 1585, 64 L.Ed.2d 169,

reh. denied, 447 U.S. 930, 100 S.Ct. 3030,

65 L.Ed.2d 1125 (1980); United States y.

Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.

Ed.2d 592 (1972); Burgett v. Texas, 389

U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319

(1967); cf. Lewis v. United States, 445

25a

U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198

(1980). The question remains whether the

defendant's former conviction for aiding

and abetting an abortion in violation of

General Statutes §53-29 was invalid.

The decision in Roe v. Wade, supra,

striking down in its entirety a Texas

abortion statute similar to General Sta-

tutes §53-29 was initially thought to

invalidate that statute wholly and to

render it a nullity. Abele v. Markle, 369

F.Supp. 807, 809 (D.Conn. 1973); State v.

Menillo, 168 Conn. 266, 269, 362 A.2d 962,

vacated, 423 U.S. 9, 96 S.Ct. 170, 48 L.

Ed.2d 152 (1975), on remand, 171 Conn.

141, 368 A.2d 136 (1976); State v. Sulman,

165 Conn. 556, 558, 339 A.2d 62 (1973).

That view of the effect of Roe v. Wade

subsequently proved to be unwarranted,

when the United States Supreme Court in

Connecticut v. Menillo, 423 U.S. 9, 96 S.

Ct. 170, 46 L.Ed.2d 152 (1975), corrected

the misleading impression that the broad

language of the Roe opinion had created by

circumscribing its effect more precisely.

In remanding for further consideration the

court stated expressly that "prosecutions

for abortions conducted by nonphysicians

26a

infringe upon no realm of personal privacy

secured by the Constitution against state

interference." Connecticut v. Menillo,

supra, 11. Upon our reconsideration of

the case it was held that the conviction

of the nonphysician abortionist involved

should be upheld. State v. Menillo, 171

Conn. 141, 368 A.2d 136 (1976).

The defendant maintains that the

record is silent upon whether the person

whom he was found guilty in 1965 of aiding

to commit an abortion was a physician.

The facts stated in the opinion of this

court affirming that conviction contain no

suggestion that any physician participated

in the abortion and imply the contrary.

The abortion was performed by the defend-

ant's brother in a motel room with an in-

plement described as a "shoehorn device"

while the defendant fed the woman some

pills. State v. Orsini, supra, 370. In

those cases where the use of an earlier

conviction has been prohibited, there has

been some indication in the record, e.g.,

the absence of a notation of the appear-

ance of counsel, which raised a presumption

that a constitutional right had been vio-

lated. Burgett v. Texas, supra, 114-15.

27a

We may infer from the failure of the de-

fendant to raise the issue below in a

trial which took place about one year after

the clarification of the effect of Roe vy. |

Wade, supra, by the opinion in Connecticut

v. Menillo, supra, that there was no ground

for attacking his prior conviction upon the

basis now proposed. In any event our re-

view of claims not seasonably brought to

the attention of the trial court is limit-

ed, even when constitutional considera-

tions are involved, to those instances

where the record clearly demonstrates a

deprivation of a fundamental constitu-

tional right. State v. Evans, supra. The

record contains no indication of such a

situation in this case.

The final claim of the defendant is

that he did not receive the effective

assistance of counsei at trial. As he

recognizes in his brief, we are reluctant

to resolve this kind of claim upon a

direct appeal rather than after a habeas

corpus proceeding where facts and circum-

stances often not disclosed by a trial

transcript can be fully developed and the

28a

lawyer who represented the defendant at

trial can be heard from. State v. Mason,

186 Conn. 574, 578-80, 442 A.2d 1335

(1982); State v. Just, Conn. (43 Conn.

L.J., No. 7, pp. 19, 29) (1981); State v.

Barber, 173 Conn. 153, 154-55, 376 A.2d

1108 (1977). Our review of the deficien-

cies of trial counsel claimed here indi-

cates no malfeasance so egregious that we

would be warranted in deviating from our

usual practice.

There is no error.

In this opinion the other judges

concurred,

NO. 9389

STATE OF CONNECTICUT : SUPREME COURT

vs. : STATE OF CONNECTICUT

CHESTER ORSINI : JUNE 4, 1982

MOTION TO REARGUE

Pursuant to Sections 31lll, et seq., |

of the Practice Book, the defendant res-

spectfully moves to reargue the appeal in

this case, for the following reasons:

1. Among the grounds raised on the

appeal, and the Fifth ground discussed by

this Court in its opinion filed June l,

1982, was the defendant's claim “that his

conviction as a persistent felony offender

is invalid because the earlier offense re-

lied upon is based upon a statute subse-

quently declared unconstitutional." 187

Conn. at 277.

2. In finding no error on that

issue, this Court relied heavily upon a

belief that the facts recited in this

Court's opinion in the earlier case, State

v. Orsini, 155 Conn. 367, 232 A.2d 907

(1967), “contain no suggestion that any

physician participated in the abortion and

imply the contrary. The abortion was per-

formed by the defendant's brother in a

motel room...."

3. This Court's belief, quoted above,

was mistaken. The opinion of the Court,

232 A.2d at 909, expressly states that the

abortion was performed by Anthony Salvatore.

The Court's opinion contains no suggestion

that Mr. Salvatore was in any way related

to the defendant and in fact he was not

related to the defendant. He most empha-

tically was not the defendant's brother.

Moreover, although the opinion is entirely

silent as to whether or not Salvatore was

a physician, the opinion states that

Salvatore was originally contacted in

Trenton, New Jersey and that in New Jersey

he was known as "Dr. Walker". The impli-

cation is that he was a physician.

4. The opinion of the Court in the

present case further states, at page 279,

that the “abortion was performed...with an

implement described as a ‘shoehorn device’

eee" To the extent that the quotation

implies the use of implements other than

standard medical ones, it appears to be

somewhat misleading. It is apparent from

a reading of Chief Justice King's opinion

for the Court that the woman upon whom the

abortion was performed attempted at trial

to describe in obviously a lay fashion the

instruments used. The opinion states that

she testified to the effect that "Salvatore

inserted a sort of shoehorn device in her

vagina and then a sort of long cue-tip

instrument with medication on it." It was

never suggested that the abortion had been

performed with a shoehorn.

5. It is respectfully submitted that

the erroneous factual recitations con-

tained in this Court's opinion at page 279

form a material part of the basis for the

Court's ruling and should be corrected.

Upon such a correction, it is further sub-

mitted, the Court's holding on that claim

should be reconsidered and the appeal

should be sustained on that ground.

TEE DEFENDANT-APPELLANT

"JOHN R. WILLIAMS ~~

His Attorney

Service certified per P.B.

NO. 9389

STATE OF CONNECTICUT : SUPREME COURT

vs. : STATE OF CONNECTICUT

CHESTER ORSINI : JUNE 16, 1982

ORDER

The Defendant's Motion to Reargue

having been presented to the court, it is

hereby ORDERED DENIED.

BY THE COURT,

Donald H. Dowling

Chief Clerk

SUPREME COURT OF CONNECTICUT

DONALD H. DOWLING DRAWER N, STATION A

REPORTER OF HARTFORD 06106

JUDICIAL DECISIONS

16 June 1982

John R. Williams, Jr., Esq.

265 Church St.

New Haven, CT 06510

Robert E. Beach, Jr., Esq.

Special Assistant State's Attorney

100 South Turnpike Rd.

P.O. Box 5000

Wallingford, CT 06492

Re: State of Connecticut v. Chester Orsini,

onn.

Gentlemen: [John]

Please be advised that the court this

date denied the defendant's motion to re-

argue in the above~entitled matter.

The court did, however, suo motu,

amend its opinion by substituting for the

third sentence in the first full para-

graph of 187 Conn. 279, the following:

The abortion was performed by a per-

son who used the name of "Dr. Walker" as

an alias in a motel room with an implement

described as a “shoehorn device" while the

defendant fed the woman some pills.

Very truly yours,

Donald H. Dowling

APPENDIX TO

BRIEF OF THE DEFENDANT

THE COURT: As you know, ladies and

gentlemen, we have now come to that part

of the trial where it becomes my duty to

instruct you as to the law which you are

to apply in arriving at your verdict.

In the trial of this case, as in the

trial of all jury cases, you and I have

separate functions to perform. It is my

duty to state the rules of law involved in

the decision cf this case, and yours to

find the facts. Insofar as I state the

law tc you, what I say to you is binding

upon you, and you understand if what I

state to you differs from what counsel

stated in argument, you will dismiss from

your minds what they or either one of them

may have said. You will also dismiss any

of your own personal notions as to what

you think the law is or ought to be. As

I told you before, the simple reason for

this is that what I say is taken down by

the court reporter, and if I make a mis-

take, that mistake is subject to correc-

tion by an appellate court. If you apply

some different rule of the law, different

than what I state to you, we will never

know whether the rule you applied was the

correct one or not, because of the secrecy

of the jury deliberations, and that mis-

take, if any is made, is never subject to

correction.

Now, counsel have commented, during

the course of their arguments, on the

question of objections and rulings on evi-

dence, and I instructed you during the

course of the trial, that where I sustain-

ed an objection to evidence or ordered evi-

dence stricken, that you would disregard

that evidence and treat it as having not

been in the case, and I would just remind

you again of my earlier comments to you.

I also want to remind you of some-

thing else that you were told at the out-

set of this case, and that is that in this

case there are two separate counts now --

there originally were six -- which are

joined together as a matter of convenience.

That is to say, because they arise out of

the same series of transactions, involving

the same witnesses, they were put together

in the same information, to be tried at

the same time, rather than have separate

trials. That is strictly a matter of con-

venience, and as far as the two counts

that are remaining in this case are con-

cerned, you will treat them separately,

and you will consider the evidence as to

the two of them in accordance with the in-

structions I give you, but at all times

you must remember that the general rules

that I give you apply to both counts, and

the same considerations should be taken

into account equally as to both counts in

the application of these rules.

Now, the performance of my duty, of

course, requires that I state to you the

rules of law lying at the foundation of

the various claims of the State and this

defendant. These rules, when applied to

the facts which you will find, will lead

you to your ultimate verdict.

Now, it may also require that I

point out to you the legal effect of

certain facts or certain evidence or

suggest to you certain considerations

which you should bear in mind in consider-

ing the evidence. Now, when I assume to

do either of these things, you will care-

fully heed what I say. Now, I do not

intend to go into the facts extensively in

this case. My chief concern with the

facts in the case will be to refer to them

only in an attempt to make clear to you

the application of the rules of law to

this case. That is to say, where I am dis-

cussing a particular rule of law that may

deal with a particular piece of evidence,

I will refer, perhaps, to that piece of

evidence, but I don't mean by that to ex-

clude anything else that is to be consi-

dered here. If I refer to certain evidence

or certain facts in the case which you may

find to be proven, or which you may infer,

and not to others, you are not to think

that I mean thereby to particularly em-

phasize the particular facts I speak of

or to limit your consideration to them as

contrasted to the facts I do not refer to.

If I overlook any evidence in the case,

you will supply it from your own recollec-

tion. If I incorrectly state any evidence,

you wiil correct my error, for, after all,

it is your obligation to make the proper

deductions or inferences from it, and to

determine the facts. And what counsel or

I may say to you as to the facts, except

as I have already pointed out, should have

weight with you only insofar as you approve

it in your own minds.

Now, there are two types of evidence

from which you may find the truth as to

the facts in most cases, including this

case, and that is direct evidence and cir-

cumstantial evidence. Direct evidence is

the testimony of one who asserts actual

knowledge of the facts, such as an eye wit-

ness. Circumstantial evidence is proof of

a chain of facts and circumstances indi-

cating the guilt or innocence of the

accused. Now, the law makes no distinc-

tion between the weight to be given to

either direct or circumstantial evidence,

nor is any greater degree or extent of

proof required of circumstantial evidence

than on direct evidence. You should

weigh all of the evidence in the case and

arrive at your conclusions by the direct

or circumstantial evidence. In other

words, one has no greater weight than the

other.

Next I want to point out to you that

in this case, as in all criminal cases,

the accused is presumed to be innocent

until he is proven guilty. That means that

at the moment when this defendant was

presented for trial before you, nothing

that you knew or might surmise or guess

about his past should be considered by

you at all; that his slate was wiped

clean at that moment in time; that he stood

before you free from any bias, prejudice,

or burden arising from his position as the

accused; and that so far as you were con-

cerned, he then was innocent, and that he

continues innocent until such time as the

evidence and the matters produced here in

the orderly conduct of the trial, satisfy

you that he is guilty. Up to the moment

when you are so satisfied, from what has

taken place here in court before you --

that is, to show that he is guilty -- so

far as you are concerned, he is innocent

of these crimes with which he is charged,

or with any one of them,

The State does not desire the convic-

tion of innocent persons or of any person

of whose guilty there is a reasonable

doubt, based upon the evidence presented.

The State has as much interest in having

an innocent person acquitted as in having

a guilty person punished. But for the

safety and well-being of our society and

the protection of the lives of the citi-

zens, the State is concerned in seeking

the conviction of persons who have been

proven, beyond a reasonable doubt, to be

guilty of such crimes as are charged in

this information. It is the sworn duty of

courts and jurors to safeguard the rights

of persons charged with crime by respect-

ing the presumption of innocence which the

law imputes to every person so charged.

But the law is made to protect society and

innocent persons, and it is not made to

protect those legally found to be guilty.

If and when the presumption of innocence

has been overcome by evidence proving,

beyond a reasonable doubt, that the accused

person is guilty of the crime charged, then

it is the sworn duty of the jury to en-

force the law and to render a verdict of

guilty.

The burden, then, is upon the State

to prove the accused guilty of the crime

or crimes with which he is charged. He

does not have to prove his innocence. That

means the State must prove every element

necessary to constitute that particular

crime or crimes, as I shall explain these

elements to you a little later on concern-

these two counts. It is not enough for

the State to prove only part of those ele-

ments, for if proof of even one of them is

; lacking, you must find the accused not

guilty.

As I shall later charge you, under

the information in this case, the accused

may be found guilty of either of two

crimes, or of both, and you must remember,

as respects any one of them, the State

must prove every element necessary to its

commission. The State can sustain its

burden of proof resting upon it only if

the evidence before you establishes the

existence of every element constituting

such crime, beyond a reasonable doubt.

Now, needless to say, the fact the

accused has been arrested and charged with

the commission of a crime and placed on

trial before you is not to be held in any

way against him or to be treated as evi-

dence. Therefore, the information, which

you will have in the jury room with you,

is only to be considered as a list of

charges -- not as evidence in the case, as

such,

Now, as I said a moment ago, before

you can return a verdict of guilty, the

State must prove every essential element

of the crime or crimes charged beyond a

reasonable doubt. Now, this phrase "rea-

sonable doubt” has no technical or unusual

meaning. You get the real meaning of the

phrase if you emphasize the word "reason-

able". A reasonable doubt is a doubt for

which a valid reason can be assigned. It

is a doubt which is something more than a

mere guess or surmise. A reasonable doubt

is not such a doubt as is raised by one who

questions simply for the sake of argument.

It is not a doubt suggested by the inge-

nuity of counsel which is not supported by

the evidence. A reasonable doubt is a

real doubt, an honest doubt -- that is, a

doubt which has its foundation in the evi-

dence offered in the case or in the lack of

evidence that has been offered in the case.

Absolute certainty in the affairs of life

is almost never attained, and the law does

not require absolute certainty on the part

of a jury before it returns a verdict of

guilty. In other words, ladies and gentle-

men, the law does not require one hundred

10e

percent proof of guilt. What the law does

require, however, is that if, after hear-

ing all of the evidence, there is something

in that evidence or in the lack of evidence

which leaves in your minds, as the jury

and as reasonable men and women, a reason-

able doubt of the guilt of the accused,

then the accused must be given the benefit

of that doubt and acquitted.

Now, it necessarily follows from that

that if any fact or any element points

equally two ways, one towards innocence

and the other towards guilt, then it must

be given that direction which tends to-

wards innocence. In other words, it is

incumbent upon the State to negative every

hypothesis not, in itself, unreasonable or

improbable, which is consistent with the

innocence of the accused. If you can, in

- Feason, reconcile all of the facts proven

with any reasonable thecery consistent with

the innocence of the accused, then, of

course, yOu cannot find him guilty.

Now, in performing your function, one

of the things which you have to do is to

pass upon the credibility of the various

witnesses who have appeared here before

lle

you. In passing on the credibility of

each of the witnesses, there are certain

considerations which you may well keep in

mind. One of these is the appearance

which the witness made when he was on the

stand. Did he appear to be telling the

truth? Did he appear to be honest? Did

he appear to be intelligent -- that is to

say, did he appear to be a person who

could have observed accurately what he was

telling you about at the time of the occur-

rence, who could be likely to have remem-

bered it accurately, and who is capable of

repeating it to you accurately here during

the course of his testimony? Another con-

sideration for you to have in mind with

regard to each witness is the question of

whether the story that he has told is

Plausible. Does it ring true or are there

inconsistencies in it? How does it fit

with other evidence in the case which you

believe and other facts which you find to

have been proved? In short, does the

testimony which was given by the parti-

cular witness whose credibility you are

considering seem to you to be plausible?

In this connection, you may also bear in

mind that if you should find that any wit-

l2e

ness has been deliberately falsifying

on any one material point in his testi-

mony, you are privileged to take that fact

into consideration in determining whether

he has falsified on other points. Simply

because you find that a witness has not

repeated one fact accurately to you, it

does not necessarily follow that he is

wrong on every other point. A witness may

be honestly mistaken on one element of his

testimony and be entirely accurate and

correct on other points. A witness may

further be deliberately falsifying on one

point and yet be entirely truthful on all

other points. But if you find any witness

has deliberately lied on one material

fact, it is only natural that you should

be suspicious of his testimony on all

subjects, and under those circumstances

you are entitled, if you wish to do so, to

disbelieve his entire testimony. Whether

you so disbelieve him or not, lies in your

own sound judgment.

Now, I want to take a moment here

also to say something about what, in the

law, we call prior inconsistent statements.

During the course of the trial, as you may

recall, there was some testimony with

l3e

respect to Mr. Lunt and Mr. Ashcroft having

given prior statements to the police before

their testifying here on the witness stand.

With regard to Mr. Lunt, there was an

issue made with respect -- concerning his

statement as to Mr. Orsini's description

and whether or not there were rifles, as

opposed to pistols, included at the time

of Mr. Ashcroft's first visit to Mr.

Cestaro's gas station. In Ashcroft's

statement there was some claim of incon-

sistency with respect to the number of

pistols that he had taken on his first

visit, and then there was also a claim by

the State concerning the statement that

Mr, Cestaro signed at the State's Attor-

ney's Office as to whether or not he knew

that the guns were stolen.

Now, these three different statements

were used in the course of this trial to

prove what we call prior inconsistent

statements. Now, a prior inconsistent

statement is a statement that was made

outside of the courtroom and it is allowed

to be used in the trial not for the truth

of what was said outside of the courtroom,

but as a way of evaluating the truth of

what is said on the witness stand. In

l4e

other words, it is just a yardstick to

measure the testimony you hear on the wit-

ness stand against. And those statements,

when they were referred to and came in to

the evidence in this case, were limited

strictly to the question of the truth of

what was said on the witness stand. And

they are to be used by you only in deter-

mining the truth of what was said on the

witness stand and not the truth or vera-

city of what was said outside of the court-

room.

Now, another question you may well

ask yourselves in passing on the credibi-

lity of any witness is if they or that

witness has any bias or interest in the

outcome of the case, and if so, whether he

has permitted that bias or interest to

color his testimony. Counsel made -- both

counsel made reference to this type of

thing during the trial and in the course

of their final arguments. Defense counsel

referred to the witness, Leonard

Carpentiere's possible subsequent arrest or

lack of the same. The State's Attorney

made reference to Mr. Cestaro's relation-

ship to Mr. Orsini, because he was married

15e

to some cousin of Mr. Orsini's. Now,

these matters were brought out to show

possible bias or interest on the part of a

particular witness. Now, it, of course,

does not follow simply from the fact that

a witness does have a bias or does have an

interest in the outcome of the case, that

his testimony is to be disbelieved. There

are many people who, no matter what their

interest in the outcome of the case might

be, would not testify falsely. On the

other hand, a jury should always bear in

mind that if a witness has a decided bias

or has an interest in the outcome of the

case, that that bias or interest suggests

somewhat of a temptation to shade his own

testimony in accordance with his bias or

to sway him to advance his own interests.

It may even be that his bias or interest

has so operated on his mind that he has

come to believe what he wants to believe,

and that, therefore, he may testify false-

ly without at the time consciously realiz-

ing that his testimony _s false.

It is therefore obvious that if it

should appear, as respects to any witness

who it is claimed, in testifying, that he

l6e

has some bias or some interest in the out-

come of the case, that fact is one that

the jury should take into consideration in

weighing his testimony.

Incidentally, I referred to Mr.

Cestaro and Mr. Carpentiere -- it is pos-

sible there are other claims of bias, as

I think about it, in the trial, and I

don't mean to limit your consideration to

only those two witnesses. You would apply

this test to all the witnesses who testi-

fied, if you find it applicable.

Now, no fact, of course, is to be

determined merely by the number of wit-

nesses testifying for or against it. It

is the quality -- not the quantity -- of

the testimony which controls under our

law.

In this particular case, there has

been testimony from various police offi-

cers or members of the Federal Bureau of

Investigation, who testified in their

official capacity. Under our law, the

testimony of a police officer or law en-

forcement officer is entitled to no spe-

cial sanctity or credence merely because

it comes from a police officer or law en-

forcement officer. A police officer who

1l7e

takes the witness stand subjects his

testimony to the same tests as any other

witness, and you should not add or detract

from his testimony merely because he is a

police officer or a law enforcement offi-

cer. You should apply the same tests to

his testimony as you would apply to that

of any other witness.

Now, under our law, an accused person

is under no obligation to become a witness

in his own behalf, because, under our law,

an accused person does not need to prove

his innocence. It is for the State to

prove him guilty. Therefore, you are not

to consider the failure of the accused to

testify as any suggestion of his guilt or

to draw any inference against him because

of his electing to exercise his Consti-

tutional right not to testify.

Now, there is another point on cre-

dibility here that I wish to bring out.

There was also testimony that a witness,

Michael Lunt, nad been guilty of burglary

on January 13, 1975. Now, we have a sta-

tute in Connecticut which provides that,

"No person shall be disqualified as a wit-

ness because of conviction of a crime, but

18e

that such conviction may be shown to

affect his credibility." The fact that a

witness was convicted of a crime does not

disqualify him as a witness, and it should

not be considered in that light by you.

At common law, persons who had been

convicted of infamous crimes were not

qualified, as witnesses. As a matter of

fact, at common law it really wasn't a

problem because we hung them all for felo-

nies and we did not have to worry about

them coming back to testify.

But at common law, it was not much of

a problem. So the Legislature passed sta-

tutes, and the statute which I have quoted

in part to you has been construed by our

courts to have as its purpose to make per-

sons who have been convicted of infamous

crimes competent witnesses.

It was not the intention of the Le-.

gislature to make such persons entitled to

full credit, however. An infamous crime,

broadly speaking, is one inyolving morale

turpitude, the punishment for which may be

imprisonment in the State Prison or the

State Correctional Institution, as it now

is called. The theory of the law is that

certain crimes, and specifically crimes of

19e

the type that I mentioned, burglary,

involve traits of character that would

affect a person's general credibility.

Consequently, the fact of the conviction

is merely one of the facts for you to take

into consideration, along with any other

material fact, in determining the credibi-

lity of the witness that is being attacked

by the introduction of the record. So

what I am saying to you is in evaluating

the testimony of Mr. Lunt, you will apply

all the other tests to his testimony with

respect to his credibility, and you may,

if you wish to do so, consider the fact

that he had a prior felony conviction for

burglary.

Now, as I am sure you will recall,

we had testimony here also from Morris

Ashcroft as to his participation in the

various breaks and in the alleged conspi-

racy involving Mr. Orsini and in the sale

of rifles to Mr. Orsini. Now, by his

testimony, Mr. Ashcroft has, in effect,

indicated himself to be both a co-conspi-

rator of the conspiracy in the gas sta-

tion, if you find there is such, and also

is an accomplice in the sale of the rifles

to Mr. Orsini. Now, it used to be, ina

20e

criminal case, a jury could never use the

testimony of an accomplice or a co-conspi-

rator unless it was supported or corro-

borated by other testimony in the case.

That, however, is not the rule in the

State today. It no longer is absolutely

necessary that the testimony of an accom-

plice or of a co-cnspirator be corrobo-

rated before it is accepted as true by

you, the jurors. However, in weighing the

testimony of an accomplice or co-conspi-

rator, it must be borne in mind that his

is testimony of a self-convicted criminal,

and everything else being equal, you

would not believe the testimony of a man

who has committed a crime involving moral

turpitude as readily as you would that of

a man of good character. And the amount

of the moral turpitude involved in the

participation of the witness in the crime

should be weighed as another factor in

your consideration.

For those reasons, the law now is

that the jury must look with particular

care at the testimony of an accomplice and

scrutinize it very carefully before they

accept it. Indeed, in most cases it would

be unadvisable to rely on the testimony of

2le

an accomplice, and if the jury does re-

quire corroboration, the amount of corro-

boration which it requires, rests entirely

in your sound judgment as the jurors in

the case.

Now, the first count in this case

charges that at the town of Westbrook,

Connecticut, on or about the 3rd day of

January, 1975, the defendant, Chester

Orsini, did commit the crime of larceny in

the first degree in violation of Section

53a-122(a) (2) of the Penal Code.

That information has been supplement-

ed by an answer to a motion for a bill of

particulars, which I have been requested

to send in with the information to the

jury room. That, apparently, is perfectly

agreeable, and the purpose for the request

is that there is a discrepancy between the

date on the first count in the information,

which is January 3, 1975, and the date

given in the bill of particulars, which

amplifies the information, and the date

given there is January 7, 1975.

Now, as far as the date of the crime

is concerned, as to these two dates, --

the law does recognize that if the evidence

proves the crime within that general area,

22e

so that there is no element of surprise,

so it is on the particular date that is

given, it really doesn't matter whether

it is the specific date that is given. So

I would suggest to you that you not over-

emphasize these two dates,

There was another thing that I think

Mr. Zaccagnino was also talking about, and

that was the date on the receipt. Now,

that could be a different question -- that

could be a question of credibility, and so

forth, and the jury may take that into

account. But what I am saying to you is

to point to you how the question exists of

a difference between the third and the

seventh, or even the seventeenth, but you

might consider the seventeenth with regard

to other testimony in this case in decid-

ing the issues, and so on,

As I just told you a moment ago, the

first count charges that the defendant

committed the crime of larceny in the

first degree. Now, larceny means theft

or stealing. However, our statute also

provides that a person is guilty of lar-

ceny by receiving stolen property. If he

receives, retains, or disposes of stolen

property, knowing that it has probably been

23e

stolen or believing that it has probably

been stolen. Thus the State must prove

that the guns recovered from Mr. Grosso's

store from Stamford are the same guns sold

by Mr. Ashcroft to Mr. Orsini, and these

guns had been previously stolen by Mr.

Ashcroft from the home of Joseph Burger of

Westbrook. Unless you are satisfied be-

yond a reasonable doubt that the rifles

out into evidence here are the same ones

that were stolen from the Burger home, you

couldn't find the defendant guilty. Now,

evidence has been presented through testi-

mony of Morris Ashcroft, David Evers, who

was the fellow who worked on some of these

rifles, Leonard Carpentiere, and Grace

Strom, that these were in the Burger resi-

dence and that they had been stolen from

his Westbrook home some time during late

December or early January, 1975.

Now, I do not believe that you should

have much difficulty with this point

since, as I understand it, the question of

the property being stolen is not seriously

being contested by the defendant It is

left to the State to prove, but they are

not really raising an issue with regard to

it, other than which particular break. Is

24e

that a fair statement, Mr. Zaccagnino?

MR. ZACCAGNINO: Yes, Your Honor.

THE COURT: Alright. Now, I said to

you that the statute refers to someone who

receives, retains, or disposes of pro-

perty. The State must also prove, in

addition to the fact that the property

was stolen, that the defendant received,

retained, or disposed of the stolen pro-

perty. Now, the connecting word "or" is

used in that statute, so the evidence upon

this element of the crime would be suffi-

cient if it were proved that the defendant

received or retained or disposed of the

property. Now, as I understand it from

our discussion, there is no claim here

that the “retained” or "disposed" section

of the statute are applicable. That this

is a question of receipt of stolen goods.

Not of disposing of them or retaining

them. Is that-a fair statement?

MR. ZACCAGNINO: That's correct.

MR. HURNEY: That's correct.

THE COURT: Let me just tell you,

counsel have agreed to it rather than go

through into that which is not applicable

-- in other words, it is entirely possible

to accumulate property legitimately and

25e

then find out it is stolen. We are not

concerned with that. That is, we are not

concerned with retaining. Receiving means

to acquire possession, control or title or

to lend on the security of the property.

Even though a person may have paid for the

property, he is guilty of receiving if the

other provisions of the statute are proven,

and I will go into those in just a minute.

In addition to proving that the pro-

perty was stolen and that the defendant

received it, the State must also have

proved that at the time of receiving the

property, the defendant had the required

guilty intention or state of mind. It

must be proved that the defendant knew or

believed that the property had probably

been stolen, and he need not have know-

ledge or certainty that it was stolen

_property if he knew or believed that more

probable than not it had been stolen, that

would have been sufficient to constitute a

violation of the law. It would not be

enough for you to conclude that the de-

fendant exercised poor judgment when he

acguired the property or that he was care-

less and should have suspected that the

property was stolen, under the circum-

—

26e

stances. Negligence, no matter how great,

is not enough to constitute the crime of

receiving stolen property. There must

have been an actual belief in the defend-

ant's mind that the property was probably

stolen. On the other hand, it need not be

proven that he knew with absolute certain-

ty that it was stolen property.

Now, on those points of knowledge,

there is evidence in Mr. Ashcroft's testi-

mony about the meeting in Meriden -- the

giving of the receipt you may recall at

that point. The discussion about Mr.

Burger's health, and also statements made

-at the prior meetings at the Exxon gas

station in Westbrook. What I am referring

to here is that Mr. Ashcroft testified

that each time that he met with Mr.. Orsini,

that he told him very specifically that

the guns were stolen and where they were

stolen from. Now what we are dealing with

here, essentially, is the purchase of guns

in Meriden, These would be the rifles

alleged to have been stolen in the third

break. And this is all we are concerned

with, under this first count, at this

moment,

27e

Now, there is evidence, through

Ashcroft, of direct knowledge. There is

also a claim, I gather, by the State, of

indirect knowledge, in the sense that he

should have known. The defendant, in turn,

has produced evidence here, through the

testimony of Mr. Bassett and Mr. Cestaro

and Mr. Syne, and I believe the witness

today was Lawrence -- Mr, Lawrence --

about the fact that these guns were

publicly displayed in his auto body shop

garage business on Broad Street -- North

Broad Street in Meriden.

Now, they are offering this evidence

as a basis for you to infer that because

the property was publicly displayed, there

was no knowledge that the property was

stolen.

Now, if you conclude that the defend-

ant is guilty of larceny, you must go on

to consider the value of the property in-

volved, because the degree of the crime

and the applicable penalty depends on the

value of the property. The statute pro-

vides that value means the market value of

the property or services at the time and

place of the crime or, if such cannot be

satisfactorily ascertained, the cost of

28e

replacement of the property or services

within a reasonable time after the crime.

Market value, therefore, means price which

the property would have sold for in ordi-

nary transactions between willing buyers

and sellers, at the time and place of the

crime. It means the price which the thief

would have had to pay for the property if

he had bought it, rather than the price

the owner would have had to pay to replace

the goods,

Now, in this case, evidence has been

presented that the items claimed to have

been stolen from Mr. Burger and sold to Mr.

Orsini were valued at exactly the sum of

two thousand dollars, according to the tape

which I have from the clerk, who added

these figures up this morning. Now, I

believe these figures to be accurate, and

I presume you both checked these gentle-

men?

MR, ZACCAGNINO: I don't have to.

THE COURT: Why don't you take a look

at it and make sure that tape comes up

with the right total.

MR. HURNEY: We have copies.

THE COURT: It is important, so I

think you ought to check it, I will conti-

29e

nue on a little bit about the value while

you can check it.

The value which the property may have

had to the owner is not important. Neither

it is of any significance that the alleged

thief did not realize the value of what

was stolen or what he intended to steal,

or if he intended to steal something of

less value than the price which the pro-

perty would sell for. Market value is con-

trolling if it can be ascertained.

Now, with respect to this, I want to

point out to you that both Mr. Ashcroft

and Mr. Carpentiere testified that they

took the rifles on the third trip. Now,

for you to find the accused guilty in this

situation, you would have to believe that

these rifles that were sold to Mr. Orsini

were the rifles that were taken on the

third break at the Burger house. Further,

you would have to ascertain the value,

and I will explain to you in a moment the

importance of that value.

In essence, as I said to you earlier,

the degree of larceny is determined by the

value of the property either stolen or

received as stolen goods. In this case

30e

the defendant is charged with larceny in

the first degree, based on the claim that

the value of the guns taken exceeded two

thousand dollars.

Now, do you both agree that all of

the exhibits entered, which we discussed,

that would go into the jury room, total

only two thousand dollars?

MR. ZACCAGNINO: Yes, Your Honor. So

they don't exceed two thousand.

THE COURT: Mr. Hurney?

MR, HURNEY: Yes sir.

THE COURT: Now, that takes care of

the problem, because for larceny in the

first degree, the State must prove the

value of the goods exceeds two thousand

dollars. In other words, you have got to

have at least two thousand dollars and

one cent, and if you accept Mr. Wheat's

appraisal as being accurate in every

respect and credible, the most that this

could total is two thousand dollars. So

with respect to the charge of larceny in

the first degree, I am now instructing

you, as a matter of law, that you must

return a verdict of not guilty on the

first count charging larceny in the first

3le

degree. However, the charge of larceny in

the first degree encompasses amounts in a

lesser degree. Therefore, you should go

on to consider what the value of the pro-

perty was, even though it was two thousand

dollars or less. If you conclude that the

value of the property is greater than five

hundred dollars but did not exceed two

thousand dollars, and if you find the de-

fendant guilty in these respects, you would

find him guilty of larceny in the second

degree.

Now, I tell you this because the

testimony also was, I believe, that in

this sense there was eight hundred

dollars paid. So really, the only credi-

ble evidence that you have to ascertain

a value on this first count, which is the

sale in Meriden, allegedly, on the rifles

after the third break -- they are the only

two figures you have to consider here --

that is, Mr. Wheat's testimony of two

thousand dollars, or the figure of eight

hundred dollars, which was allegedly paid

by Mr. Orsini to Mr. Ashcroft. If you

accept either of those figures, then you

have larceny in the second degree. But if

32e. :

you don't accept either of those figures

-- and you have a right to choose who to

believe or disbelieve -- and if you dis-

believe both of these witnesses as to the

value, then you go on to another statute

that we have, assuming all the other

factors of receiving stolen property are

proven -- if you conclude that the value

of the property was either unproved --

let me put it this way -- if you conclude

it was unproved -- if you don't accept

either of the figures, your verdict will

be that the defendant is guilty of larceny

in the fourth degree,

Now, the reason for that is the law

says that if a value is not proved, it

will be presumed to be under $50.

So what your choice is here, on the

first count, is first, whether the de-

fendant was guilty of larceny in the

second degree. And then you jump down,

if you don't accept the figure of either

$2000 or $800, because the charge of lar-

ceny in the second degree is bracketed

between $500 and $2,000 -- if you don't

believe him guilty of that, then you go

down to fourth degree larceny, assuming,

now, that all the other elements of the

33e

crime are proven, as I have indicated to

you. Obviously, if you find that the

other elements of the crime, in terms of

receiving, and so on -- the knowledge that

the property was stolen, and so forth --

have not been met, then you return a ver-

dict of not guilty and don't go on to con-

sider the other factors at all.

What I am talking about here is with

respect to this, value only comes into

play if you find all the other things

existed. If you find that a sale had

occurred, that the property was stolen,

that Mr. Orsini knew or should have known

it was stolen -- then you have the ques-

tion of the gradation of the crime. If

you find no crime was committed and no

question of gradation -- as I say, you

just return a verdict of not guilty.

Now, as I indicated to you earlier,

the defendant is also charged in the sixth

court, with the crime of conspiracy. Now,

let me read that whole thing to you. It

says, “And the State's -- the said State's

Attorney further accuses the said Chester

Orsini, at the town of Westbrook, Connect-

icut, On or about the twelfth day of De-

cember, 1974, of committing the crime of

34e

conspiracy, and charges that the said

Chester Orsini did combine, conspire,

confederate and agree with Morris

Ashcroft and Thomas Cestaro to commit the

crime of conspiracy to commit larceny in

the second degree, and in furtherance of

said conspiracy, the aforesaid property,

to wit: Antique guns, in violation of

Section 53a-48(a) and 53a-123(a) (2) of the

Penal Code."

Now, in this sixth count of the in-

formation, as I indicated, the accused is,

in effect, charged with having committed

the crime of conspiracy to commit a larce-

ny in the second degree. It is charged

that the accused did, with intent that

conduct constituting a larceny in the

second degree be performed, agree with

Morris Ashcroft and Thomas Cestaro to

engage in or cause the performance of a

larceny in the second degree, and speci-

fically, in this situation, it would be a

larceny by receiving stolen goods. That

is to say, the conspiracy would be for the

sale of stolen goods worth more than $500,

on December 12, 1974, in the town of West-

brook.

35e

Now, you may remember again, on the

second degree larceny, I told you before

that breaks down into a. category of more

than $500 and $2,000. A ceiling of $2000,

so to speak. And this is the type of lar-

ceny that it is claimed that the defend-

ants conspired to commit.

Now, this charge, in effect, involves

the two meetings between the parties at

Cestaro's Exxon Station only. Now, there

were two meetings, in the testimony, if

you believe it. The first was between Mr.

Ashcroft and Cestaro. Mr. Ashcroft testi-

fied that he came in with the guns, and

specifically, the pistols, at that time,

in the blue duffel bag, and said he wanted

to sell and dispose of them and Mr. Cestaro

indicated that he didn't want to buy them

but he knew somebody that might, and they

went into the bay there and talked busi-

ness with Cestaro. Now this is Mr.

Ashcroft's testimony -- Mr. Cestaro refutes

some of that. But, in essence, what I am

talking about is at this meeting between

Ashcroft and Cestaro, and the second one

is the one that allegedly occurred between

Ashcroft, Cestaro, and the defendant,

36e

Orsini, where he came to the station and

discussed this and where he went off later

on, according to one of the witnesses, in

his car with Ashcroft.

Now, Section 53a-48(a) of our statutes

reads as follows: "A person is guilty of

conspiracy when, with intent that conduct

constituting a crime be performed, he

agrees with one or more persons to engage

in or cause the performance of such con-

duct, and any one of them commits an overt

act in pursuance of such conspiracy."

So, under this statute, to constitute

the crime of conspiracy, there must be a

corrupt agreement between two or more in-

dividuals. Now, we have a rather unusual

situation in this case, and I want to tell

you now that for you to find conspiracy,

there must be an agreement between three

or more individuals. And -- in effect,

you must find an agreement between Mr,

Cestaro, Mr. Ashcroft, and Mr. Orsini,

and the reason for that is simply this,

that there are certain crimes, and the one

I always offer as the illustration is the

crime of adultery could only be committed

-- and you can't even commit that very

well anymore under our Penal Code -- I

37e

don't knw what you call some of it now --

but the crime of adultery obviously, by

it's very definition, requires two people

to commit the crime. So the law, in

effect, was that you could not have a con-

spiracy to commit any adultery because just

the very fact of committing the adultery

constituted -- it required two people, and

the conspiracy or the agreement to commit

the adultery was merged in the adultery

itself, and it was one crime. This is

also true of the crime of receiving

stolen property. If it only involves the

seller of the stolen property, if you

will, and the receiver of the stolen pro-

perty. In that situation, the conspiracy

would merge into the crime of larceny,

itself, at the time of sale. But now,

what we have here is the entrance of an

intermediary, if you accept the State's

version of the case. And as soon as you

have that situation, then it is possible

for all three parties to be guilty of con-

Spiracy. But it must be three parties.

You must have an additional person over

and beyond the ones necessary to commit

the crime. Now as we saw the other day,

in researching this, the case of adultery

being used as an illustration, this is

38e

sometimes known as the legitimate excep-

tion to the merger of the crime -- I do

want to point out to you that the situa-

tion, in respect to the conspiracies, be-

cause of this crime being larceny, then we

have got to have larceny in the -- excuse

me -- you have got to find conspiracy

between the three individuals.

I knew it was that bad -- I knew it

was bad, but I didn't know it was that bad.

Now, you must also find, one, that

there was a corrupt agreement between three

or more individuals, but you, secondly,

must find that it was entered into with a

criminal intent to do an unlawful act,

either as a means to accomplish something

or as an end, in and of itself. Following

-- there is a third fact that -- there

must be an overt act to complete the sub-

ject of the agreement. In other words,

you not only have the agreement -- you

must have an overt act to carry the agree-

ment out. So the full element of the

crime of conspiracy is the corrupt agree-

ment, and in this situation it must be

between three or more individuals. This

requires involvement of three or more per-

vee

39e

sons because, as I told you, there cannot

be a conspiracy only between the seller

and the buyer of stolen goods. Therefore,

the first thing you must decide is, did

the accused form an agreement with both

Morris Ashcroft and Thomas Cestaro to buy

the guns which Morris Ashcroft had stolen

in the first burglary of the Burger home

when they all knew or should have known

that the guns had been stolen by Ashcroft?

Now, let me enlarge a little bit on

this matter of the agreement. For three

or more persons to be guilty of crime of

conspiracy, it is not necessary that there

should be a formal agreement among them.

It need not be in writing. It need not be

in any expressed form. It is not neces-

sary for the State to prove that there

was a formal or expressed agreement among

them. It is sufficient if there is a

meeting of the minds -- that is, if the

parties understand each other, whether

they express themselves in so many words

or not,

Now, stated somewhat differently, it

is ample if the parties reach an under-

standing that they should work together

40e

with a single design for the attainment of

a common purpose. One does not become’ a

member of a conspiracy simply because he

knows that a combination for unlawful pur-

poses has been formed by a group of per-

sons and does nothing about it, that is,

unless the law imposes a duty on him to do

something about it, and he deliberately

refrains, in order to aid the conspiracy,

from doing that which the law requires of

him,

Only such person, who is a party to

the agreement, or who knowingly does an

act in furtherance of the common design,

is liable as a conspirator. Before you

bring in a verdict of guilty against this

defendant on this charge in the sixth

count, you must be satisfied beyond a

reasonable doubt, in the first place, that

he knowingly participated in the unlawful

agreement, and this is the unlawful agree-

ment charged in that sixth count of the

information.

The mere knowledge, acquiescence or

approval of an unlawful act, without

cooperation or agreement to cooperate, is

not sufficient to constitute one a party

to a conspiracy to commit the act. It

4le

requires more than proof of mere passive

cognizance of a crime on the part of an

accused to sustain a charge of conspiracy

to commit it. !

A partner is not responsible for the

criminal act of his co-partners, done

without his knowledge and consent, for

there can be no partnership in crime. A

person is not liable for the act of

another merely because he is present when

it is committed.

Now, this just makes common sense,

because you know what you are saying here

is the fact you happen to be there when

there is an agreement to commit a crime or

crimes does not mean you are participating

in the crime. But just to illustrate, if

you were a customer in the bank when the

bank was held up, the fact you happened to

be there wouldn't make you a party to any

agreement to rob the bank by your presence.

However, to become a conspirator does not

require one to have direct communication

with all other conspirators. It is not

necessary that each conspirator be ac-

quainted with all the others or even know

their names. It is ample if he has come

to an understanding with at least one of

42e

the others and has come to an understand-

ing with that one to further an unlawful

purpose or to perform an unlawful act.

Now, to stretch your credibility a

little bit, I want to go back again to

what it would mean if you were the custo-

mer in the bank and people came in to rob

the bank, and you pulled a gun and said,

"I'm with you,” you are part of the con-

spiracy at that point, even though it was

all worked out. And as soon as you make

the move -- the move of pulling the gun,

that is the overt act, you are in trouble,

even though you might not have known who

the other people were, and you might not

have participated in the original plan,

and begin to carry it out. In other

words, it is not essential that the con-

spirator know what the complete planned

conspiracy is in all its detail. It is

enough if he knows a conspiracy exists or

that he is creating one, and that he is

joining with at least one other person in

an agreement to commit a crime,

Therefore, in order to sustain a

conviction of this accused on the charge

containing this information, the first

43e

element which the State must prove, beyond

a reasonable doubt is this. It must prove

that this accused entered into an agree-

ment with at least the other two persons

named in the information, that is, Mr.

Cestaro and Mr. Ashcroft -- to buy stolen

property.

Now, to turn to the second element of

this crime of conspiracy, which the State

must prove beyond a reasonable doubt be-

fore the accused may be found guilty of

this charge, the State must prove that the

accused entered into an agreement to com-

mit a crime with the intent that acts

necessary to further the commission of

that crime be performed. In other words,

the State must prove this accused was

actuated by criminal intent. The accused

may not be found guilty of this charge

unless you find that the State has proven,

beyond a reasonable doubt, that the ac-

cused had a specific intent to violate a

law when he entered into the agreement to

which I have referred,

In other words, you really have to

mean it, in this charge, to commit a crime.

The old joke, about, “Someday I am going

to rob a bank," but you don't mean it, is

44e

still a joke, The day you get together

on this and take a step in that direction,

then you have a violation of the law.

Now, what a person's purpose or in-

tention has been is necessarily very

largely a matter of inference. A person

may take the stand and testify directly as

to what his or her purpose or intention

was, and that testimony you can believe or

not, according to whether or not it war-

rants belief, depending upon the testi-

mony. But no witness can be expected to

come here and testify that he looked into

another person's mind and saw therein a

certain purpose or intention. The only

way in which a jury can determine what a

person's purpose or intention was, at any

given time, aside from that person's own

testimony, is by determining what that

person's conduct was and what the circum-

stances were surrounding that conduct, and

from those infer what his purpose or in-

tention was.

To draw such an inference is not only

the privilege but also the duty of a jury,

provided, of course, the inference drawn

is a reasonable one. Now, you will recall

45e

what I said about circumstantial evidence

at the beginning of this charge. In this

case, therefore, it will be part of your

duty to draw all reasonable inferences

from the conduct of the accused, in light

of the surrounding circumstances, as to

what the purpose or intention was in the

accused's mind at the time he entered into

that agreement, if he did.

Here, again, you have contradictory

evidence, You have contradictory evi-

dence by two of the alleged co-conspira-

tors -- Mr. Gestaro and Mr. Ashcroft, Mr,

Ashcroft testified that he entered into

this agreement. He used Cestaro as inter-

mediary for selling stolen goods to

Orsini, and he told Orsini that the guns

were stolen, and he told Cestaro that the

guns were stolen. Now, on the other hand,

the other alleged co-conspirator Mr.

Cestaro, has taken the witness stand and

says, "Not so. I did not know that the

guns were stolen." So you have to decide

which of them you will believe in this

Situation. Now, they had taken the stand

directly to testify as to what their own

intention was. I do want to point out to

you that, as I mentioned earlier, you can-

46e

not draw any inference from the fact that

Mr. Orsini has elected not to testify.

You may not consider that as a basis for

an inference, in other words, on the

situation, What I am talking about here

now, is, however, you can consider his

other acts at that meeting at the Exxon

Station in Westbrook in determining what

his intention was, and in entering into

any agreement here. So that the inference

as to his conduct is permissible, The

inference from his failure to testify is

not.

Concerning criminal intent, there is

a general principle of law which applies in .

nearly every criminal case, and certainly

applies in this case, that in order to be

guilty of a crime, an accused must have a

criminal intent or guilty knowledge, This

means before an accused should be found

guilty of a crime, it must appear and be

found, beyond a reasonable doubt, that in

doing the acts complained of, the accused

had a guilty mind, or, as it is sometimes

stated, an intention to do evil, If, in

doing the acts complained of, that accused

has not that intent, he is not guilty of

~he crime,

47e

For instance, if an accused is

honestly mistaken as to the existence of

certain facts; if, without gross negli-

gence on his part, he honestly believes

that certain facts existed, and, if, in

the light of those facts which he believes

to exist, the act charged against him would

appear to be entirely moral, then the act

with which he is charged is not a crime,

even though it would be immoral in the

light of the true facts, There, you see,

the act charged is not a crime because the

accused committing the act has no evil

intent, |

In other words, what it amounts to

is that you can innocently agree to buy

what is stolen merchandise -- receive

stolen merchandise if you don't know that

you are committing an illegal act. That

is -- you have to have the evil intent to

be guilty under this situation,

In the same way, if the accused has

done the act charged accidentally, without

gross negligence, the act is not a crime

because it was not done with evil intent,

For instance, if, in this case, you should

find that this accused did some act which

48e

really assisted some other in accomplish-

ing an unlawful act, but in doing it, be-

cause of his ignorance of the existence of

some material fact, he did not realize that

the doing of the act was in aid of any

crime, then the doing of that act would not

make him guilty of the charge because it

was done without any evil intent.

Evil intent here is a little differ-

ent than evil intent I was talking about

earlier, although essentially it is the

same. This deals with commission of an

overt act , and even there it says the

overt act must be committed with evil

intent,

What I have said about matters of

fact or mistakes of fact excusing a person

from crime because it removes from the

crime the element of guilty intent does

not apply to mistakes of law. As you

probably have heard many times, ignorance

of the law excuses no one, If a person

does an act which, in the light of the

facts as he knows them to exist, is evil or

immoral, and is recognized by him to be

such, it makes no difference that he is

ignorant of the fact that the act is ex-

pressly prohibited by law or is unlawful.

49e

The reason for this rule is obvious,

In most cases it would be impossible to

prove that an accused did or did not know

that the law expressly forbade the act with

which he is charged with -- or which he is

charged with committing. Public policy,

therefore, demands that we proceed on the

presumption that everyone knows the law;

and, therefore, the law is that no one may

escape punishnent for crime simply by

saying that he was ignorant of the fact

that the law forbade the doing of the act.

The evil purpose, that is, criminal in-

tent, essential to make it a crime need

not be an intention to break the law, It

is sufficient if it is simply an inten-

tion to do the thing which the law, in

reality, does forbid.

Now, essentially, what this boils

down to, is the question of credibility

-- whom you believe, and whether or not

Mr, Orsini knew that the guns were stolen

because Ashcroft told him, or whether he,

in effect, bought them thinking, if you

find he had, that he was getting them

from somebody who had gotten them from his

grandfather's estate,

Now, there is a third element in the

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crime of conspiracy, and this third ele-

ment requires that the State must prove

that one of the co-conspirators did an

overt act within this State in furtherance

of the conspiracy. Let me put it this way.

In order to sustain a conviction of this

accused on this charge contained in the

information, the State must prove that

at least one of the co-conspirators --

and it makes no difference whether all of

the conspirators were charged or not, did

an overt act within this State to further

the purpose of the conspiracy.

An overt act is an open act done in

pursuance of and a manifestation of a

design or intent, and the act must be

something that goes further than merely

to make preparations in a general way.

It must be an act directly tending to

carry out the actor's unlawful intent.

You will note that this third ele-

ment does not require an overt act by each

conspirator, The third element is esta-

blished if the State proves that any of

the conspirators performed such overt act,

but the act must be something outside of

the act of agreeing. It must be something

done by at least one co-conspirator after

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the agreement has been formed, and it must

be an act done to further the purpose or

purposes of an illegal agreement.

If the act furthers the conspiracy

and helps carry it out, it makes no dif-

ference that it is not, in and of itself,

criminal. But even if it is criminal, and

intended to be criminal by the overt

actor, it cannot be held against the other

co-conspirators if it was not intended to

further their general purpose, but was

secretly intended to further only the

actor's own personal purposes.

In essence here -- let me just say

if you find there was an agreement between

these three people, then it doesn't matter

whether the agreement started out with an

agreement between Mr. Ashcroft and Mr.

Cestaro, and then Mr. Orsini came into it

later. If any one of the three of them

did anything to carry out that conspiracy,

in other words, the State's Attorney re-

ferred to Mr. Cestaro's telephone call to

Mr. Orsini -- then there is even testi-

mony -- I think it was by either Mr. Lunt

or Mr. Hazuka -- at the moment I don't

recall which -- about Ashcroft meeting in

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the car with Mr. Orsini to drive away to

get the guns. If they left to get those

guns, and that was the purpose of leaving,

that is a sufficient overt act, in and of

itself, right there. If this is what they

went for, even though they may never have

gotten them or never successfully com-

pleted the transfer. But what it says

here is that you must do something to

carry out the plan which you intended into

originally. That some affirmative action

must be taken.

It is, of course, very rarely that

the State is able to prove that persons

charged with conspiracy entered into an

expressed agreement that they would unite

to accomplish an unlawful purpose. The

proof of an unlawful conspiracy is not

often made by direct, open, and positive

evidence of an agreement. More generally,

and more naturally, proof of the agreement

is made by showing a repetition of acts of

a character conducive to show a mutual

purpose.

In a conspiracy, it is seldom true

that any one act, taken by itslef, can be

detected as tending to proof an unlawful

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agreement. But, when it is seen in con-

nection with other acts, its true nature

may be discovered, and as this species of

proof is multiplied, a strong case of un-

lawful agreement may be established.

To put it another way, the unlawful

agreement may be proved by circumstantial

evidence, that is, by proof of the sepa-

rate acts of the members of the conspira-

cy, and of the circumstances, from which

the existence of the illegal agreement may

be inferred.

Before you should bring in a verdict

of guilty against this accused on the

sixth count on the information, you must

be satisfied, beyond a reasonable doubt,

that he participated in the unlawful

agreement charged. If you find that the

various acts of the parties were committed

in such a manner and under such circum-

stances that you conclude there from, be-

yond a reasonable doubt, that those acts

were done as a result of a previous agree-

ment or understanding among the three, and

were done in concert, then you have found

an unlawful agreement existed among the

parties who participated in those acts.

S4e

As I indicated earlier, it is not

necessary that the crime which was the

objective of the conspiracy was carried

out successfully. Since conspiracy, in

and of itself is a crime, if any overt

act is done to carry out’ the conspiracy,

separate from the crime which is the

objective of the conspiracy. To use it

again, in the terms of the bank I just

talked about, an agreement to rob a bank

and doing an act to carry that agreement

out is a crime, even though separate and

Gistinct from the actual robbing of the

bank. It can be a crime without the bank

ever having been robbed, because the

agreement, itself, is illegal, and that

constitutes a separate and distinct

crime. So, you see, we are not concerned

about whether or not a substantive crime

did occur or go on to talk about the sub-

stantive crime which was the subject of

the conspiracy, at this point in the

charge. However, in this case we have

something a little different. In this

case, in the sixth count, Mr. Orsini is

charged with larceny -- conspiracy to

commit larceny in the second degree. Lar-

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ceny in the second degree, as I haye

already indicated to you, involves receiv-

ing stolen property of a value in excess

of $500. At the time of this agreement,

if you found that such agreement existed,

it becomes important to find the value of

the property that was involved, because,

as I have indicated to you earlier, it

determines the grade of the larceny that

is involved.

Now, there is no evidence as to which

pistols were transferred at the time to

Mr. Orsini, if any. The only evidence

concerning value in this connection was

Mr. Ashcroft's testimony that he got $300.

I think we are all agreed on that. So lI

am telling you, again, that you cannot

return a verdict ot larceny in the second

degree, because the only evidence of value

is under the legal limit of $500. So you

would have to return a verdict, if you

find you should return a verdict on this,

of larceny in the third degree, which is

the limit between $50 and $500.

Now, it is possible that you could

find an agreement, that is to say a conspi-

racy -- an illegal agreement to receive

stolen goods. It is possible you might not

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believe Mr. Ashcroft as to the $300. If

that happens -- if you find a conspiracy

and the subject of the conspiracy to be

-- to receive s*olen goods, but you don't

believe Ashcroft as to the $300, then you

have to come in with a verdict of larceny

in the fourth degree, which is the law I

told you about earlier, where no value is

proven. I hope that makes sense to you.

But if you think of it in terms of it has

got to be over $2,000, but under $2,000 is

larceny in the first degree -- or second

degree. $2,090 is the breaking point.

Now, it says in express of, so it was not

proven on first degree because it was

$2,000 or less. That became larceny in

the second degree. Then the next breaking

point is $500. And after $500 or less --

where it is $50 to $500, you get into

larceny in the third degree. If it is $50

or the amount is not proven, then it is

larceny in the fourth degree. So the

choice you can come up with here is either

a conspiracy to commit larceny in the

third degree or the fourth degree.

Now, in other words, what I am saying,

if you find that all three of the alleged

co-conspirators have been proven to have

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participated in a conspiracy to commit

larceny in the third degree, you will

find the defendant guilty of the conspi-

racy to commit larceny in the third

degree. If you find the conspiracy occur

red, but you don't accept the testimony

as to value, you will find him guilty of

a conspiracy to commit larceny in the

fourth degree. As I said, if you do not

find any conspiracy, you don't go through

all these mental gymnastics, because if

there is no conspircy, it makes no differ-

ence what the degree of larceny, because

you return the verdict of not guilty.

Now, that sort of pretty much sums

up the specific crimes, and in a moment I

will be through. In other words, you will

have to decide, on the basis of all the

evidence presented before you, whether the

State has proved, beyond a reasonable

doubt, all of the elements of the crimes

with which the accused is charged, as I

have explainec those elements to you. You

will have to decide whether you believe

the State's witnesses as to the commissic¢

of these crimes, and the participation of

the accused, or whether you believe the

testimony of the defendant's witnesses 45

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to the defendant's innocence, In essence,

it is as simple as that. If you find that

the accused committed any one of the

crimes I have instructed you on, then your

verdict will be guilty as to such crime.

If you find he did not commit such crime,

you will of course find him not guilty of

such crime. As I told you before, I am

directing the verdict on the highest de-

gree in the -- both of those counts, and

you have to then consider the lesser de-

gree, and what I am saying applies to this

lesser degree.

Your verdict, I am sure you know,

must be a unanimous one, which you will

report orally through your foreman or fore-

lady, as the case may be, when told to do

so by the Court. ,

Let me just go into this a moment.

What you will have to do is render an oral

verdict by my direction of not guilty of

larceny in the first degree on the first

count. You will then consider whether or

not you consider larceny in the second

degree or larceny in the fourth degree or

whatever. And the same is true of conspi-

racy to commit larceny in the second de-

gree, in the sixth count, You will return

59e

a verdict of not guilty of conspiracy to

commit larceny in the second degree, You

then go on to consider whether or not the

other degrees which I indicated, are met,

and if you do return a verdict in each

instance of guilty, you go on to say

guilty of whatever lesser degree that you

find. Obviously if you return a verdict

of not guilty this is what you say and

you don't have to say any more,

I am sure that you must know that the

verdict must be a unanimous one which you

will report orally. You, of course, are

sworn to decide this case strictly on the

evidence, without any prejudice or without

any sympathy and without any fear, and

without giving any consideration to any

penalty which may or may not be imposed

by the Court in the event of a conviction.

The penalty is a question of law for the

judge, if there is to be one, and is of no

concern to you, as jurors,

When you retire to the jury room, you

should first elect a foreman, and then

proceed with your deliberations in accord-

ance with the instructions I have given,

When you are ready to present the verdict,

there is a switch which you put on and it

60e

puts the light on and the sheriff will

know you have reached a verdict and will

notify us.

You will have the information and

the exhibits in the jury room with you,

together with the bill of particulars I

referred to before. You may use them in

any way which may assist you in your deli-

berations. Now, there is one other thing

that I have to do at this time, Mr.

Rearick, I believe you are very fortunate.

Under our old procedure, the alternate

did not even sit with the jury -- was a

separate kind of thing, but we have moved

up at least so that you can sit in the

jury box with the jurors, but unfortuna-

tely, the law has never changed as to

allow you to participate in the jury's

deliberations. So at this point I am

going to excuse you from further service

in this case and thank you for your par-

ticipation in the case. I wish I could

allow you to go in and deliberate with

your fellow jurors, but unfortunately the

law does not permit that. So I will now

ask the six of you to retire, and ina

minute the sheriff will bring in the

‘p

6le

exhibits, and so forth, to you and you may

proceed with your deliberations, and Mr.

Rearick has to be excused from further

duty in this case, You may be excused,

(Tr. pp. 574-629)

Defense counsel noted only one excep-

tion to the charge:

MR. ZACCAGNINO: Yes, Your Honor.

Just one thing I want to ask Your Honor,

you could think about, Your Honor charged,

in the last statement you made just before

you started to tell them about the deli-

berations, were in this context, "If you

believe the State's witnesses, you" --

somehing about “guilty” -- you went on to

say, “Or you can believe the defendant's

witnesses that tended to prove his inno-

cence," That might give the opinion that

we have to prove that. And we don't have

to prove anything, if they haven't made

out a prima facie case,

THE COURT: I think, considering the

whole charge, in that context, that was

clear in the beginning.

MR. ZACCAGNINO: I thought I would

bring that out,

THE COURT: The problem was balancing

of the testimony.

62e

MR, HURNEY: Just an exception to

Your Honor's failure to charge on my re-

quest to charge.

THE COURT: I didn't -- I am sorry to

put you to sleep. I don't know if I dis-

turbed you, but your snoring disturbed me,

MR. HURNEY: I am sorry.

THE COURT: Don't let it happen

again. If you need a break tell me so,

Don't do that again, ever,

(Tr. pp. 629-630)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.