State v. Caballero , 172 Conn. App. 556 ( 2017 )

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STATE OF CONNECTICUT v. ELVIN R. CABALLERO
(AC 37810)
Sheldon, Beach and Pellegrino, Js.
Argued January 17—officially released April 25, 2017
(Appeal from Superior Court, judicial district of
Litchfield, Danaher, J.)
Sean P. Barrett, assigned counsel, with whom, on
the brief, was Peter G. Billings, assigned counsel, for
the appellant (defendant).
Timothy F. Costello, assistant state’s attorney, with
whom, on the brief, were David S. Shepack, state’s
attorney, and David R. Shannon, senior assistant state’s
attorney, for the appellee (state).
Opinion
PELLEGRINO, J. The defendant, Elvin R. Caballero,
appeals from the judgment of conviction, rendered after
a jury trial, of one count of conspiracy to commit lar-
ceny in the third degree in violation of General Statutes
§§ 53a-48 and 53a-124, one count of larceny in the third
degree as an accessory in violation of General Statutes
§§ 53a-8 and 53a-124, and nine counts of forgery in the
first degree in violation of General Statutes § 53a-138
(a) (1). The defendant contends that the court abused
its discretion in failing to grant his motion for a bill of
particulars, which left him without adequate notice that
he was facing conviction under subdivision (3) of § 53a-
124 (a) as to the counts of conspiracy to commit larceny
in the third degree and larceny in the third degree as
an accessory, and thereby deprived him of his constitu-
tional rights. We affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. On or about April 21, 2011, the defendant traveled
to the West Cornwall post office. Upon entering the
post office, the defendant asked the only postal clerk
working that day, Jenna Bascetta-Brown, if he could
fill out an application for a United States passport. Bas-
cetta-Brown left the front desk for approximately fif-
teen to thirty seconds to retrieve the application. While
she was temporarily out of sight, the defendant reached
over the counter, opened an unlocked drawer, and
removed a block of blank United States Postal Money
Orders (money orders). Bascetta-Brown returned with
the passport application, but the defendant left the post
office without filling out the form.
The defendant later contacted his friend, Jonathan
Perez, who lived in New Jersey. Perez, in turn, contacted
Emily Guzman, who also resided in New Jersey, and
told her that if she would help the defendant ‘‘cash
some checks,’’ the defendant could pay her money in
return. The defendant, Perez, and Guzman inscribed
the blank stolen money orders using a home printer to
make them look as though they had been processed by
the post office. Each money order was imprinted to
show a value of $388.
On April 22, 2011, the defendant, Perez, and Guzman
traveled from New Jersey to Connecticut in a rental
car in order to cash the money orders. They appeared
at nine different post office locations throughout the
state, including New Haven, Branford, East Haven, Mil-
ford, Bridgeport, and West Haven. At each location,
Perez filled out the ‘‘from’’ section of the money order
using a fake name and address. Guzman wrote the ‘‘to’’
section using her own name and address, and wrote
‘‘child support’’ on the memo line. Guzman then entered
the post office, presented the money order and her
photo identification, and cashed the money order for
the inscribed sum of $388. Afterward, the defendant
kept $300 for himself, and Guzman and Perez alternated
keeping the remaining $88 from each cashed money
order.
Later that week, Bascetta-Brown noticed that a stack
of thirty blank money orders was missing from the
West Cornwall post office. She contacted United States
Postal Inspector Jason Bourdeau and reported the miss-
ing money orders, along with a description of the defen-
dant.1 Bourdeau was able to trace the unique serial
numbers from the money orders through the Federal
Reserve Bank check image retrieval database and
access images for each missing money order. The
images revealed Guzman’s name and address, so Bour-
deau was able to locate Guzman and interview her in
New Jersey. Both Guzman and Bascetta-Brown were
able to identify the defendant from a photographic
array.
The following procedural history is also relevant to
the defendant’s appeal. On July 29, 2013, the state filed
a short form information charging the defendant with
one count of larceny in the second degree in violation
of General Statutes § 53a-123 and one count of forgery
in the first degree in violation of § 53a-138. On Decem-
ber 18, 2013, the defendant filed a motion for a bill of
particulars and a motion requesting the essential facts
underlying the charges.2 He requested, inter alia, that
the state provide him with ‘‘[a]ll of the offenses [with
which] [he] is charged and their statutory citations,’’
‘‘which specific prohibited conduct, in the language of
the statute, the defendant is alleged to have committed,’’
and ‘‘[t]he alleged act or acts of the defendant which
allegedly constitute the commission of the offense or
offenses.’’
On January 17, 2014, the state filed a substitute short
form information charging the defendant with one
count of conspiracy to commit larceny in the third
degree in violation of §§ 53a-48 and 53a-124, one count
of larceny in the third degree as an accessory in viola-
tion of §§ 53a-8 and 53a-124, and nine counts of forgery
in the first degree in violation of § 53a-138 (a) (1). The
substitute short form information did not specify which
subdivision of § 53a-124 (a) the defendant was being
charged with in regard to the charges of conspiracy to
commit larceny in the third degree and larceny in the
third degree as an accessory.3
Upon filing the substitute short form information, the
prosecutor made the following statement in open court:
‘‘We’re reducing the charge to larceny in the third
degree, so it’s between over $2000 and under $10,000.
. . . [The defendant] was charged with larceny in the
second degree, he defrauded a public community, he
stole thirty—the facts of the case [are] that this started
with the theft of thirty money orders that can be worth
up to $1000 each. I downgraded that larceny charge to
third degree to make this case as quick and efficient
as I can.’’ The defendant then reiterated his request for
a bill of particulars, and the court, Ginocchio, J., stated
that the motion would be heard on the defendant’s next
court date.
The defendant’s next court appearance was on Febru-
ary 6, 2014, at which time the defendant asked the court,
Danaher, J., to address his previously filed motion for
a bill of particulars and request for essential facts.4
The prosecutor stated that he would file a long form
information by the following Monday. The court, after
noting that the prosecutor would be providing the
defendant with a long form information, stated: ‘‘I’m
not going to grant or deny your motion right now, what
I’m going to do is wait and see if that—what you think,
after you’ve seen that, if that answers your questions.’’
The court also advised the defendant that he would
have a right to reassert his motion at his next court
appearance if he was not satisfied with the long form
information.
The state filed a long form information on February
10, 2014, which contained a scrivener’s error.5 It filed
an amended long form information on March 7, 2014, to
correct that error. The amended long form information
charged the defendant with one count of conspiracy to
commit larceny in the third degree in violation of §§ 53a-
48 and 53a-124, one count of larceny in the third degree
as an accessory in violation of §§ 53a-8 and 53a-124,
and nine counts of forgery in the first degree in violation
of § 53a-138 (a) (1).
The amended long form information did not specify
which subdivision of § 53a-124 (a) underlay the charges
of conspiracy to commit larceny in the third degree
or larceny in the third degree as an accessory. It did,
however, disclose the factual allegations that the state
sought to prove for each charge. After the state filed
the amended long form information, the defendant
addressed the court and stated his concerns. He primar-
ily objected to the fact that the long form information
did not state ‘‘where [the] money was stolen from’’ and
that because the factual allegations regarding the timing
of his actions stated ‘‘April, 2011’’ that ‘‘it ha[d] no date.’’
The defendant also asked the state to show him ‘‘where
you get the larceny three—third degree larceny with
blank money orders.’’ Judge Danaher noted that the
defendant had already raised these issues in his motion
for a bill of particulars and his request for essential
facts, and stated that the court would rule on his motion.
On March 10, 2014, the trial court, Danaher, J., issued
a memorandum of decision in which it addressed sev-
eral of the defendant’s outstanding motions, including
his motion for a bill of particulars and request for essen-
tial facts. As to those motions, the court stated: ‘‘On
February 10, 2014, the state filed a long form [informa-
tion] including, inter alia, the information required by
Practice Book § 41-21. No further action on this motion
is required.’’
Subsequently, on March 19, 2014, the court, Danaher,
J., held a pretrial hearing. The court stated that it
wanted to confirm under which subsections of the vari-
ous statutes set forth in the amended long form informa-
tion the state was proceeding. The court asked the state
if it would be proceeding under § 53a-124 (a) (3) on the
charge of conspiracy to commit larceny in the third
degree, to which the prosecutor responded, ‘‘Yes, Your
Honor. That is the subsection the state [is] proceeding
under.’’ The defendant never filed a further motion for
a bill of particulars.
The defendant’s trial began on May 28, 2014, more
than two months after the pretrial hearing held on
March 19, 2014. Prior to the commencement of his trial,
the court, Danaher, J., provided a draft copy of its
preliminary jury instructions to the state and the defen-
dant in which the court proposed instructing the jury
under subdivision (3) of § 53a-124 (a) on both the charge
of conspiracy to commit larceny in the third degree and
the charge of larceny in the third degree as an accessory.
Neither party objected to the proposed instructions.
At the close of the state’s case, the defendant moved
for a judgment of acquittal. He argued that the state
had failed to prove that the larceny or forgeries had
occurred in the Litchfield judicial district, and argued
that the theft of blank postal money orders only
amounted to larceny in the sixth degree. The defendant
conceded, however, that he was ‘‘being charged for [a]
government instrument’’ and asserted that the postal
money orders were not government instruments but
were, instead, ‘‘commercial.’’ The court, Ginocchio, J.,
denied the defendant’s motion for judgment of acquittal.
Following deliberations, the jury found the defendant
guilty on all counts. The court, Danaher, J., sentenced
the defendant to a total effective sentence of fifteen
years incarceration, execution suspended after four
years, followed by five years of probation, all of which
would be served consecutively to any other state or
federal sentences. This appeal followed. Additional
facts will be set forth as necessary.
We first set forth the applicable legal principles and
standard of review. ‘‘A motion for a bill of particulars
is addressed to the sound discretion of the trial court.
. . . [A]n abuse of discretion in the denial of a motion
for a bill of particulars can be premised only upon a
clear and specific showing of prejudice to the defense.
. . . The defendant has the burden of showing why the
additional particulars were necessary to the preparation
of his defense . . . .
‘‘The sixth amendment to the United States constitu-
tion and article first, § 8, of the Connecticut constitution
guarantee a criminal defendant the right to be informed
of the nature and cause of the charges against him with
sufficient precision to enable him to meet them at trial.
. . . [That] the offense should be described with suffi-
cient definiteness and particularity to apprise the
accused of the nature of the charge so he can prepare
to meet it at his trial . . . are principles of constitu-
tional law [that] are inveterate and sacrosanct.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Vumback, 263 Conn. 215, 221–22, 819 A.2d 250 (2003).
Our Supreme Court has, on numerous occasions,
adverted to sources extrinsic to the specific count or
information to determine whether the defendant was
sufficiently apprised of the offense charged in reviewing
the denial of a motion for a bill of particulars. State v.
Spigarolo, 210 Conn. 359, 384, 556 A.2d 112, cert. denied,
493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989);
see also State v. Vumback, supra, 263 Conn. 228; State
v. Kyles, 221 Conn. 643, 654, 607 A.2d 355 (1992). For
example, in State v. Beaulieu, 164 Conn. 620, 624, 325
A.2d 263 (1973), the court permitted the state’s attorney,
following a motion by the defendant for a bill of particu-
lars, to ‘‘read into the record a detailed statement of
the facts claimed to constitute the crime charged
. . . .’’ The court then denied the motion for a bill of
particulars. Id. On appeal, our Supreme Court reasoned
that when ‘‘a defendant is fairly informed of the charges
against him so that he may prepare a proper defense,
a bill of particulars is unnecessary and may properly
be denied.’’ Id., 625. The court emphasized that the
‘‘information [was] read into the record by the state’s
attorney in advance of the trial’’; id., 626; in determining
that the defendant was ‘‘fairly apprised’’ of the precise
charges against him. Id., 625. In light of the foregoing,
the court concluded that the trial court did not abuse its
discretion in denying the defendant’s motion. Id., 626.
In the present case, the defendant contends that the
court’s failure to grant his motion for a bill of particulars
caused him to lack constitutionally sufficient notice
that he was being charged under subdivision (3) of
§ 53a-124 on the charges of conspiracy to commit lar-
ceny in the third degree and larceny in the third degree
as an accessory. As in Beaulieu, however, the prosecu-
tor in this case gave the defendant sufficient notice by
means of his oral statement on the record at the March
19, 2014 pretrial hearing. The prosecutor affirmed that
the state was proceeding under subdivision (3), and
the pretrial hearing took place more than two months
before the commencement of the defendant’s trial. In
addition, the defendant failed to renew his motion for
a bill of particulars after the state filed the amended
long form information on March 7, 2014, and he did not
object to the court’s proposed jury instructions that
were given to him before his trial, which clearly stated
that the state needed to prove his guilt beyond a reason-
able doubt under subdivision (3) of § 53a-124 (a) for
the charges of conspiracy to commit larceny in the third
degree and larceny in the third degree as an accessory.
Thus, the defendant was fully apprised of the charges
against him prior to the commencement of his trial. If
the defendant had believed he was not given sufficient
notice of the charges, he could have renewed his motion
for a bill of particulars and could have objected to the
court’s proposed jury instructions before his trial. He
failed to make use of either of these procedural safe-
guards.
Furthermore, the defendant has not demonstrated,
as he must, that he was prejudiced by the court’s failure
to grant his motion for a bill of particulars. ‘‘[A] defen-
dant can gain nothing from [the claim that the pleadings
are insufficient] without showing that he was in fact
prejudiced in his defense on the merits and that substan-
tial injustice was done to him because of the language
of the information. . . . To establish prejudice, the
defendant must show that the information was neces-
sary to his defense, and not merely that the preparation
of his defense was made more burdensome or difficult
by the failure to provide the information.’’ (Citations
omitted; emphasis added; internal quotation marks
omitted.) State v. Vumback, supra, 263 Conn. 227–28.
The defendant claims that the ambiguity in the state’s
information hindered his ability to prepare his defense
because he did not know which subdivision of § 53a-
124 (a) the state was proceeding under for the charges
of conspiracy to commit larceny in the third degree and
larceny in the third degree as an accessory. The defense
presented by the defendant at trial, however, centered
on the notion that the defendant was not involved in
stealing the money orders or cashing the money orders.
In addition, the defendant conceded during his argu-
ment on his motion for a judgment of acquittal that he
was being charged with theft of a public instrument.
Accordingly, the resolution of any alleged ambiguity in
the charges set forth in the information and proffer by
the state was not necessary for the defendant to prepare
the defense used at trial. We therefore cannot conclude
that the court improperly failed to grant the defendant’s
motion for a bill of particulars.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Bascetta-Brown had remembered the defendant’s visit to the West Corn-
wall post office because he had acted suspiciously, and because she had
not recognized him, whereas most of her customers at the small, rural post
office were regulars whom she knew on a first name basis. She told Bourdeau
that the defendant had ‘‘silver teeth’’ and that his visit had left her with a
‘‘funny feeling.’’
2
The defendant elected to represent himself throughout the trial process.
It was not until his sentencing hearing that he was represented by counsel.
3
General Statutes § 53a-124 (a) provides in relevant part: ‘‘A person is
guilty of larceny in the third degree when he commits larceny, as defined
in section 53a-119, and: (1) The property consists of a motor vehicle, the
value of which is ten thousand dollars or less; (2) the value of the property
or service exceeds two thousand dollars; (3) the property consists of a
public record, writing or instrument kept, held or deposited according to
law with or in the keeping of any public office or public servant; or (4) the
property consists of a sample, culture, microorganism, specimen, record,
recording, document, drawing or any other article, material, device or sub-
stance which constitutes, represents, evidences, reflects or records a secret
scientific or technical process, invention or formula or any phase or part
thereof. . . .’’
4
The defendant thereafter conceded that both filings were, in substance,
requests for a bill of particulars.
5
The long form information filed on February 10, 2014, mistakenly charged
the defendant with conspiracy to commit larceny in the third degree and
larceny in the third degree as an accessory under § 53a-123, as opposed to
§ 53a-124.