State v. Raffone ( 2016 )

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STATE OF CONNECTICUT v. PASQUALE RAFFONE
(AC 37518)
DiPentima, C. J., and Gruendel and Harper, Js.
Argued December 10, 2015—officially released March 1, 2016
(Appeal from Superior Court, judicial district of
Fairfield, Devlin, J.)
Pasquale Raffone, self-represented, the appellant
(defendant).
James M. Ralls, assistant state’s attorney, with
whom, on the brief, were John C. Smriga, state’s attor-
ney, and Tatiana A. Messina, assistant state’s attorney,
for the appellee (state).
Opinion
DiPENTIMA, C. J. The defendant, Pasquale Raffone,
appeals from the judgment of the trial court, following
an in rem proceeding, ordering the forfeiture of his
motor vehicle pursuant to General Statutes § 54-33g.
On appeal he raises a number of claims, most of which
are not reviewable. We affirm the judgment of the
trial court.
The following facts and procedural history are rele-
vant to this appeal. On May 19, 2012, the defendant was
arrested and charged with larceny in the fifth degree
in violation of General Statutes § 53a-125a and improper
use of an operator’s license in violation of General Stat-
utes § 14-147 (a).1 The state commenced an in rem pro-
ceeding against the defendant.2 The state sought to have
the defendant’s motor vehicle, a red 2002 Ford F-250
pickup truck, adjudicated a nuisance and ordered for-
feited. A hearing was held on August 6, 2014, and August
7, 2014, during which the following evidence was pre-
sented to the court.
On May 19, 2012, Luis Gonzalez, an employee of The
Home Depot in Fairfield, stopped the defendant for
leaving the store with two skylight windows without
paying for them. During a conversation with Gonzalez,
the defendant acknowledged that he possessed a red
truck and admitted to a prior theft from the store involv-
ing ceiling grids. Gonzalez also recalled an incident in
2011 where the defendant had attempted, unsuccess-
fully, to return some windows. During that incident,
Gonzalez had observed the defendant place the win-
dows in a red truck before driving away.
The Fairfield Police Department arrived at the store
and Gonzalez informed the responding officer that the
defendant had stated that his identification was in his
truck. Lance Newkirchen, a patrol officer with the Fair-
field Police Department, testified that the defendant
later admitted to stealing the skylight windows, but that
this was the only time he had engaged in this type of
conduct. Newkirchen further testified that the truck
was searched to complete an inventory as a result of
its being towed. During his search of the truck, Newk-
irchen found a black leather binder on the front seat
that contained some ‘‘old receipts.’’ Newkirchen also
stated that he was responsible for having the defen-
dant’s truck towed because he believed it had been
used in the commission of a crime.
Edward Weihe, a Fairfield police sergeant, testified
he received permission from the defendant to enter the
vehicle to retrieve the defendant’s identification. After
opening the door, he detected a ‘‘strong odor of mari-
juana.’’ The truck was searched by Weihe and a police
canine but no contraband was found aside from some
leafy residue on the floor of the cab. Weihe testified he
‘‘deduced’’ that the defendant had planned to use the
truck to transport the windows that the defendant had
attempted to steal.
After hearing argument from the parties, the court
issued an oral decision. It found that Gonzalez had
observed the defendant take the skylight windows from
the store, provide a fraudulent receipt to the cashier
and proceed past the last point of sale. The court found
that this conduct amounted to a larceny. It then con-
cluded ‘‘some kind of vehicle’’ was necessary to remove
the items from the store. Specifically, the court stated:
‘‘So, in terms of my conclusions of law, I find that the
evidence does show that the defendant did commit the
crime of larceny, that he was lawfully arrested by the
Fairfield Police Department based on the complaint of
[The] Home Depot and that the truck, the Ford F-250
pickup truck, red in color, was lawfully seized. I further
find that the truck was intended [to be] use[d] to com-
plete this crime of larceny. Larceny involves the perma-
nent retention of the property from the owner [with
the intent] to permanently retain it. You can’t leave it
in the parking lot. You’ve got to take it someplace else
to sell it or use it or whatever or [fraudulently] return
it and I find that the truck would be an integral part of
that scheme. And so I do find that the truck was a
nuisance under the in rem statute.’’3 The court ordered
that the truck be turned over to the Fairfield Police
Department. This appeal followed.
On appeal, the defendant claims that the state failed
to comply with a discovery order from July or August,
2012. The state counters that the record is inadequate
to review this claim because the defendant failed to file
any transcripts from 2012, and the court file does not
contain a motion filed in that time period. Additionally,
the state argued that there is nothing in the record that
such an order was entered by the court.
As the appellant, the self-represented defendant4 bore
the burden of providing this court with an adequate
record. Diaz v. Manchester Memorial Hospital, 161
Conn. App. 787, 797 n.7, A.3d (2015); Practice
Book § 61-10. He failed to sustain this burden. In the
absence of an adequate record, we can engage only in
speculation and conjecture, which have no place in
appellate review. Passalugo v. Guida-Seibert Dairy
Co., 149 Conn. App. 478, 483–84, 91 A.3d 475 (2014);
see also State v. Adams, 117 Conn. App. 747, 754, 982
A.2d 187 (2009).
The defendant next claims that the court improperly
denied him the right to call witnesses on his behalf.
Specifically, he argues that the court refused to review
his subpoenas made on July 1, 2014. The state argues
that the defendant failed to indicate where the record
reflects that he filed an application in writing for sub-
poenas as required by Practice Book § 7-19. We agree
with the state that the record is inadequate and there-
fore decline to review this claim.
The defendant next claims that the witnesses were
sequestered improperly. Specifically, he argues that
‘‘[a]fter each witness testified they were allowed to join
the witnesses who had not yet testified out in the hall.’’
The state counters that the record ‘‘does not substanti-
ate this claim’’ because there was no testimony as to
the specifics regarding the sequestration of witnesses.
It further argues that this claim is unreviewable because
the defendant failed to raise an objection before the
trial court regarding the sequestration of the witnesses.
We agree with the state that this claim is not reviewable
on appeal as a result of an inadequate record and the
fact that it was not raised before the trial court. See
Practice Book § 60-5; State v. Jackson, 150 Conn. App.
323, 339, 90 A.3d 1031, cert. denied, 312 Conn. 919, 94
A.3d 641 (2014).
The defendant next claims that ‘‘[d]uring the trial
improper testimony was allowed.’’ Essentially, he con-
tends that the court should not have credited the testi-
mony of Gonzalez because it was contradictory to prior
statements and given under false pretenses. The state
responds that this argument amounts to a challenge of
the court’s credibility determination with respect to the
testimony of Gonzalez, and, therefore, not subject to
appellate review. We agree with the state.
Our Supreme Court has stated: ‘‘[W]e may not substi-
tute our judgment for that of the trial court when it
comes to evaluating the credibility of a witness. . . .
It is the exclusive province of the trier of fact to weigh
conflicting testimony and make determinations of credi-
bility, crediting some, all or none of any given witness’
testimony. . . . Questions of whether to believe or to
disbelieve a competent witness are beyond our review.
As a reviewing court, we may not retry the case or pass
on the credibility of witnesses. . . . We must defer to
the trier of fact’s assessment of the credibility of the
witnesses that is made on the basis of its firsthand
observation of their conduct, demeanor and attitude.’’
(Emphasis added; internal quotation marks omitted.)
State v. Andrews, 313 Conn. 266, 323, 96 A.3d 1199
(2014). We decline, therefore, to review this claim
regarding the credibility of Gonzalez.
The defendant next argues that Gonzalez violated
General Statutes § 53a-119a5 by asking the defendant
to provide more information than his name and address
and by detaining and questioning the defendant without
reasonable grounds. He further contends that the court
improperly prevented him from cross-examining Gon-
zalez regarding this statute. The state responds, inter
alia, that § 53a-119a was not violated, that this claim is
not reviewable on appeal because it was not raised in
the trial court and that the defendant’s questioning of
Gonzalez regarding this statute was irrelevant to this
proceeding. We agree with the state’s arguments.
The defendant next claims his property was seized
improperly in the absence of a search and seizure war-
rant. He further argues that no probable cause existed
to search the truck.6 The state counters that no warrant
was required to search the truck because there was
probable cause to do so.7 Additionally, as the state main-
tains, there was probable cause to seize the vehicle as
an instrumentality of the crime of larceny.8 Finally, the
state correctly points out that property seized in con-
nection with an arrest, rather than a warrant, falls within
§ 54-33g. See State v. One 1977 Buick Automobile, 196
Conn. 471, 477–79, 493 A.2d 874 (1985). For these rea-
sons, we reject the defendant’s claim.9
Last, the defendant claims that the court should not
have credited the testimony of Newkirchen because it
was hearsay, false testimony, and not confirmed by
other evidence. The state responds that we should not
review this claim challenging the credibility of Newk-
irchen. We agree. As discussed previously, it is solely
the province of the trier of fact, and not an appellate
court, to decide credibility issues. State v. Andrews,
supra, 313 Conn. 323. We therefore decline to review
this claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant subsequently pleaded nolo contendere to the larceny
charge. See State v. Raffone, Superior Court, judicial district of Fairfield,
Docket No. CR-12-0265030-S (October 17, 2014); see also Raffone v. Home
Depot, Inc., Superior Court, judicial district of Fairfield, Docket No. CV-14-
5030086-S (June 4, 2015).
2
‘‘General Statutes § 54-33g provides for a civil action in rem for the
condemnation and forfeiture of the [property] which was used in the viola-
tion of the law. . . . In such an action the guilt or innocence of the owner
of the [property] is not in issue. The only issue is whether the [property]
was used in violation of law.’’ (Emphasis in original; internal quotation
marks omitted.) State v. Connelly, 194 Conn. 589, 592, 483 A.2d 1085 (1984);
see also State v. One 1981 BMW Automobile, 5 Conn. App. 540, 542–43, 500
A.2d 961 (1985).
3
Although the court noted the defendant’s ‘‘pattern’’ of conduct, it specifi-
cally noted that it was not ‘‘finding the forfeiture based on that [prior]
conduct,’’ but that it was restricting it to the incident on May 19, 2012.
4
‘‘[I]t is the established policy of the Connecticut courts to be solicitous
of [self-represented] litigants and when it does not interfere with the rights
of other parties to construe the rules of practice liberally in favor of the
[self-represented] party . . . we are also aware that [a]lthough we allow
[self-represented] litigants some latitude, the right of self-representation
provides no attendant license not to comply with relevant rules of procedural
and substantive law.’’ (Internal quotation marks omitted.) Darin v. Cais,
161 Conn. App. 475, 481, A.3d (2015); see also Tonghini v. Tonghini,
152 Conn. App. 231, 240, 98 A.3d 93 (2014) (fact that defendant was self-
represented could not excuse or cure inadequate record).
5
General Statutes § 53a-119a (a) provides: ‘‘Any owner, authorized agent
or authorized employee of a retail mercantile establishment, who observes
any person concealing or attempting to conceal goods displayed for sale
therein, or the ownership of such goods, or transporting such goods from
such premises without payment therefor, may question such person as to
his name and address and, if such owner, agent or employee has reasonable
grounds to believe that the person so questioned was then attempting to
commit or was committing larceny of such goods on the premises of such
establishment, may detain such person for a time sufficient to summon a
police officer to the premises. Any person so questioned by such owner,
authorized agent or authorized employee pursuant to the provisions of this
section shall promptly identify himself by name and address. No other
information shall be required of such person until a police officer has taken
him into custody. For the purposes of this subsection, ‘reasonable grounds’
shall include knowledge that a person has concealed unpurchased merchan-
dise of such establishment while on the premises or has altered or removed
identifying labels on such merchandise while on the premises or is leaving
such premises with such unpurchased or concealed or altered merchandise
in his possession.’’
6
We note that the defendant has cited no case law in support of this
claim. ‘‘It is well settled that [w]e are not required to review claims that are
inadequately briefed. . . . We consistently have held that [a]nalysis, rather
than mere abstract assertion, is required in order to avoid abandoning an
issue by failure to brief the issue properly. . . . [F]or this court judiciously
and efficiently to consider claims of error raised on appeal . . . the parties
must clearly and fully set forth their arguments in their briefs. We do not
reverse the judgment of a trial court on the basis of challenges to its rulings
that have not been adequately briefed. . . . The parties may not merely
cite a legal principle without analyzing the relationship between the facts
of the case and the law cited. . . . [A]ssignments of error which are merely
mentioned but not briefed beyond a statement of the claim will be deemed
abandoned and will not be reviewed by this court.’’ (Internal quotation
marks omitted.) Araujo v. Araujo, 158 Conn. App. 429, 430–31, 119 A.3d 22
(2015); see also State v. Adams, supra, 117 Conn. App. 753–54.
7
The defendant consented to the entry of his truck by police officers to
retrieve his identification. At that time, the strong odor of marijuana was
detected. The state also correctly argues that the ‘‘police may seize, tow
and conduct an inventory search of vehicles without a warrant when the
driver is arrested. South Dakota v. Opperman, 428 U.S. 364 [96 S. Ct. 3092,
49 L. Ed. 2d 1000] (1976).’’
8
See State v. Thomas, 98 Conn. App. 542, 551–52, 909 A.2d 969 (2006),
cert. denied, 281 Conn. 910, 916 A.2d 53 (2007) (recognized exceptions to
warrant requirement for search and seizure include [1] where there is proba-
ble cause that motor vehicle contains contraband or evidence pertaining to
crime, [2] plain view doctrine and [3] search incident to lawful arrest).
9
We also note that the text of § 54-33g (a) provides in relevant part that
‘‘[w]hen any property believed to be possessed, controlled, designed or
intended for use . . . as a means for committing any criminal offense . . .
has been seized as a result of a lawful arrest or lawful search, which the
state claims to be a nuisance and desires to have destroyed or disposed of
in accordance with the provisions of this section, [the prosecutor] may
petition the court not later than ninety days after the seizure, in the nature
of a proceeding in rem, to order forfeiture of such property.’’ (Emphasis
added.) Thus, the statute itself does not contain a requirement that the
seizure be done pursuant to a warrant, but only that the seizure must be
the result of a lawful arrest or search.