Summary
distinguishing factually inconsistent verdicts from verdicts "based on a legal impossibility [e.g., conviction of one defendant and acquittal of the other in a joint trial of two alleged co-conspirators]"
Summary of this case from State v. ArroyoOpinion
The defendant was charged in one count with the crime of larceny in the third degree and in a second count with the crime of conspiracy to commit larceny in the first degree, but was convicted only of the conspiracy charge. There was evidence that the defendant and one L had agreed to commit larceny and that they had, in fact, committed an overt act in furtherance of that agreement. On the defendant's appeal to this court, he claimed that the verdicts were factually inconsistent arguing that since he was acquitted on the larceny count, the jury had to have concluded that he lacked the intent necessary for larceny and, perforce, the intent necessary for conspiracy to commit larceny. The trial court, however, could not assume that his acquittal on the larceny charge was predicated on the jury's finding of an absence of intent and, even had the acquittal been so grounded, that fact would not have precluded the jury from finding that, as to the conspiracy charge, the defendant had the requisite intent to commit larceny at the time of the agreement. Accordingly the trial court did not err in refusing to render a judgment of acquittal on the conspiracy charge.
Argued June 12, 1979
Decision released August 21, 1979
Information in two counts charging the defendant with the crimes of larceny in the first degree and conspiracy to commit larceny in the first degree, brought to the Superior Court in Hartford County and tried to the jury before Daly, J.; verdict and judgment of guilty of conspiracy to commit larceny in the first degree and appeal by the defendant. No error.
Daniel J. Hagearty, for the appellant (defendant).
Bernard D. Gaffney, assistant state's attorney, with whom, on the brief, was George D. Stoughton, state's attorney, for the appellee (state).
The defendant was charged in a substituted information in two counts. The first count charged larceny in the first degree, in violation of General Statutes 53a-122 (a)(2), 53a-119 (3) and 53a-121 (b), and the second count charged conspiracy to commit larceny in the first degree, in violation of General Statutes 53a-122 (a)(2), 53a-121 (b) and 53a-48. On a trial to the jury, he was found not guilty of larceny in the first degree and guilty of conspiracy to commit larceny in the first degree. The trial court denied the defendant's motion to set aside the verdict, and rendered a judgment of guilty on the conspiracy count.
Although the defendant's motion was improperly entitled "Motion to Set Aside verdict," we have construed it as a motion for acquittal. See Practice Book, 1963, 2310, 762 (now Practice Book, 1978, 899, 3164).
On appeal, the defendant claims that the trial court erred in refusing to enter a judgment of acquittal for basically two reasons: (1) the evidence was insufficient to support the verdict of guilty on the conspiracy count in light of the verdict of not guilty on the larceny count; and (2) evidence concerning certain banking transactions and statements of an alleged co-conspirator, Michael Lally, were improperly admitted into evidence.
The assignment of error directed to the court's charge to the jury is not briefed and is therefore deemed abandoned. Healy v. White, 173 Conn. 438, 441, 378 A.2d 540 (1977).
A brief summary of the evidence which the jury could reasonably have believed is necessary as background for our disposition of the defendant's first claim. On January 19, 1976, Michael Lally opened a checking account at the Newington branch of the Connecticut Bank and Trust Company under the business name of Promotions Unlimited and deposited fifty dollars. Between that date and February 18, 1976, when the account was closed, twelve checks Were written against the account totaling $9552.89. No deposits were made in the account other than the initial deposit. In January, 1976, the defendant and Lally rented a portion of an upholstery shop on South Main Street in New Britain. They remained there for four days after which the landlord told them to vacate the premises because the check they had given him for the rent was returned for insufficient funds. On various dates in January 1976 and early February 1976, sales representatives from the A-Copy Corporation, the Smith-Corona, Marchant Corporation, the Allied Cash Register Company and the Burroughs Corporation were solicited by either Lally or the defendant concerning the purchase of certain office equipment. Sales representatives of three of these companies met with the defendant and Lally at the upholstery shop and the representative of a fourth company met them both at another New Britain location. At three of these meetings the defendant and Lally agreed to purchase certain office equipment, including a photocopy machine, an adding machine, and a cash register. At two meetings with the Burroughs representative, the defendant, who was present without Lally, informed the representative that Lally had decided to buy three calculators. One of the calculators was left with the defendant and the other two were delivered to the South Main Street address a few days later. Although the Promotions Unlimited checks used to pay for all the purchases from each of the four companies bore only Lally's signature, the defendant was present with Lally at three meetings with the various sales representatives at which he and Lally, either orally or by their conduct, represented that they were partners in Promotions Unlimited. None of the items that were eventually delivered, which had a total value in excess of $5000, was paid for by Lally or the defendant; nor were they recovered by the companies that sold them.
I
This brief outline of the facts presented to the jury more than adequately demonstrates that there was sufficient evidence to support the guilty verdict on the conspiracy count. The crime of conspiracy is committed when an agreement is made between two or more persons to engage in conduct constituting a crime and one of the persons performs an overt act in furtherance of the agreement. See State v. Ortiz, 169 Conn. 642, 645, 363 A.2d 1091 (1975). Although some of the evidence against the defendant was circumstantial, we have said that there is no distinction between circumstantial and direct evidence so far as probative force is concerned. See State v. Cari, 163 Conn. 174, 179, 303 A.2d 7 (1972); 30 Am.Jur.2d, Evidence 1091. Moreover, in a conspiracy prosecution "[t]he existence of a formal agreement between the parties need not be proved; it is sufficient to show that they are `knowingly engaged in a mutual plan to do a forbidden act.'" State v. Ortiz, supra. See also State v. Marra, 174 Conn. 338, 344, 387 A.2d 550 (1978). The thrust of the defendant's argument is, however, that the jury's verdict acquitting him on the larceny count created a bar to a conviction of conspiracy to commit larceny. He argues that the verdict of acquittal indicates that he did not have the requisite intent to commit larceny and that, because such an intent is an essential element of the crime of conspiracy to commit larceny, we must find error. We disagree.
The general rule, to which we subscribe, was set forth by Judge Learned Hand in Steckler v. United States, 7 F.2d 59 (2d Cir. 1925), and was confirmed by Justice Holmes in Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932). The defendant in Dunn had been indicted on three counts. He was found guilty by the jury on only one count, which, logically, would have required a finding of guilty on the other two. On appeal, the government offered an elaborate explanation of the possible reasoning of the jury in an effort to support the consistency of the verdicts. Justice Holmes declined to adopt the government's theory and answered instead: "Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment." Id., 393. He went on to state: "That the verdict may have been the result of compromise, or of a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters." Id., 394. This principle of judicial review enjoys vitality in the federal courts; see, e.g., Hamling v. United States, 418 U.S. 87, 101, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); United States v. Dotterweich, 320 U.S. 277, 279, 64 S.Ct. 134, 88 L.Ed. 48 (1943); United States v. West, 549 F.2d 545 (8th Cir. 1977); United States v. Fuiman, 546 F.2d 1155 (5th Cir. 1977); United States v. Miller, 546 F.2d 320 (9th Cir. 1976); United States v. Serlin, 538 F.2d 737 (7th Cir. 1976); United States v. Zane, 495 F.2d 683 (2d Cir. 1974); United States v. Handel, 464 F.2d 679 (2d Cir.), cert. denied, 409 U.S. 984, 93 S.Ct. 326, 34 L.Ed.2d 249 (1972); United States v. Catalano, 439 F.2d 1100 (2d Cir.), cert. denied, 404 U.S. 825, 92 S.Ct. 56, 30 L.Ed.2d 53 (1971); United States v. Carbone, 378 F.2d 420 (2d Cir.), cert. denied, 389 U.S. 914, 88 S.Ct. 242, 19 L.Ed.2d 262 (1967); has been adopted by the majority of state courts; see, generally, notes, 18 A.L.R.3d 259; 16 A.L.R.3d 866; 22 A.L.R.3d 717; 76 Am.Jur.2d, Trial 1136; and was recognized by this court in State v. Whiteside, 148 Conn. 208, 169 A.2d 260, cert. denied, 368 U.S. 830, 82 S.Ct. 52, 7 L.Ed.2d 33 (1961), State v. Manning, 162 Conn. 112, 291 A.2d 750 (1971), and State v. Bent on, 161 Conn. 404, 411, 288 A.2d 411 (1971). This is a salutary rule that "recognizes the sanctity of the jury's deliberations and the strong policy against probing into its logic or reasoning, which would open the door to interminable speculation." United States v. Zane, supra, 690; see note, 18 A.L.R.3d 259, 270.
It should be pointed out that we are not confronted with an argument that the verdicts are inconsistent as a matter of law, as we would be where the verdicts are based on a legal impossibility (e.g., conviction of one defendant and acquittal of the other in a joint trial of two alleged co-conspirators). See State v. Keating, 151 Conn. 592, 595-96, 200 A.2d 724 (1964), cert. denied, 379 U.S. 963, 85 S.Ct. 654, 13 L.Ed.2d 557 (1965). Instead, the defendant claims that the verdicts are factually inconsistent because the acquittal on the larceny count reflected the jury's conclusion that the defendant lacked the specific intent necessary to commit larceny.
See Nigro v. United States, 117 F.2d 624 (8th Cir. 1941); State v. Smith, 117 Ark. 384, 175 S.W. 392 (1915). Prosecution of one co-conspirator, however, has been held not to be barred where the single other co-conspirator has not been apprehended. See Rosenthal v. United States, 45 F.2d 1000 (8th Cir. 1930).
Although it is true that the state must prove the same criminal intent in a conspiracy prosecution as it would in a prosecution for the underlying offense; see Ingram v. United States, 360 U.S. 672, 678, 79 S.Ct. 1314, 3 L.Ed.2d 1503 (1959); 72 Harv. L. Rev. 920, 939 (1959); we see no reason to ascribe to the jury's verdict of not guilty on the larceny count a conclusion that the defendant did not possess the requisite intent to commit larceny. Conspiracy to commit larceny and larceny are two distinct crimes, each with different elements. Pinkerton v. United States, 328 U.S. 640, 643, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946); see State v. Johnson, 162 Conn. 215, 219, 292 A.2d 903 (1972). There is no reason to assume that the jury, by their verdict on the larceny count, concluded that one element (intent) was lacking in proof and not another. Even if that were the jury's conclusion, however, it would be limited in effect to the time at which the crime of larceny would have been committed and would not preclude a finding that the defendant intended to commit larceny at the earlier time at which the agreement was made. The gravamen of the crime of conspiracy is the unlawful combination and an act done in pursuance thereof, not the accomplishment of the objective of the conspiracy. State v. Devine, 149 Conn. 640, 647, 183 A.2d 612, cert. denied, 371 U.S. 930, 83 S.Ct. 303, 9 L.Ed.2d 237 (1962); see State v. DiBella, 157 Conn. 330, 337, 254 A.2d 477 (1968). Hence, our review of the sufficiency of the evidence is directed only to the time at which the crime of conspiracy was alleged to have been committed, and is not affected by the defendant's later state of mind. See 1 Wharton, Criminal Law and Procedure (12th Ed.) 63. It has been said that where the underlying offense and the conspiracy contain different elements, or where the conduct charged occurred at different times or in different places, or involved different property or different victims, a rational basis exists to explain apparently inconsistent verdicts. 4 Wharton, Criminal Procedure 575; 76 Am.Jur.2d, Trial 1158. The evidence summarized above demonstrates that this reasoning is particularly applicable here.
Finally, it would be anomalous indeed for this court to upset a guilty verdict on one count that may reflect the jury's lenity on the ground that it is somehow inconsistent with an acquittal on another count. It was the jury's prerogative to act as they did and it is essential to the preservation of the right to a trial by jury that their conclusions be respected. See Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 76 L.Ed. 356 (1932), quoting Steckler v. United States, 7 F.2d 59, 60 (2d Cir. 1925).
II
We take up the claim that the court erred in allowing into evidence testimony regarding banking transactions and certain statements of Lally, the alleged co-conspirator. We do not decide this claim on the merits inasmuch as the defendant has failed to follow our established rules of practice. Section 3060F (c)(3) of the 1978 Practice Book required the appellant to include in his brief a summary of the evidence introduced; the ground for its introduction; the objection and the ground on which it is based; the ruling of the court; and any exception that was taken. See State v. Roberson, 173 Conn. 97, 101, 376 A.2d 1089 (1977); Maciejewska v. Lombard Bros., Inc., 171 Conn. 35, 37, 368 A.2d 206 (1976). The defendant has presented us with no reason to disregard this rule, and our review of the record discloses none.