DocketNumber: File No. 951
Citation Numbers: 437 A.2d 145, 37 Conn. Super. Ct. 796
Judges: DALY, J.
Filed Date: 10/2/1981
Status: Precedential
Modified Date: 5/4/2017
The defendant was convicted after a jury trial of larceny in the third degree in violation of General Statutes
The jury could readily have found the following factual situation: On June 25, 1979, the defendant and her daughter, Tammy, age 15 years, were in the Sage-Allen store in East Hartford. Security officer Donna Maulucci observed the defendant and her daughter remove five items of clothing from a store display rack and enter a fitting room. Maulucci observed the defendant roll up four items of clothing and place them in her daughter's purse. The daughter left the *Page 798 fitting room carrying her purse while the defendant returned one item of clothing to the rack. The security officer checked the fitting room thereafter but found only four empty hangers. She followed the defendant out of the store across the street to a parking lot, where she saw the daughter seated in a car. Maulucci then seized the four items of clothing from the rear seat of the motor vehicle. These were the same articles which had been placed inside the daughter's pocketbook in the fitting room. The price tags which were affixed to these garments revealed amounts of $24, $12.99, $18.50 and $11.99, for a total of $67.48. Both the defendant and her daughter returned to the store where the defendant was arrested by an East Hartford police officer.
The following issues were raised by the defendant:
1. Did the court err in allowing price tags attached to items of clothing to be admitted as evidence of the element of value?
2. Did the court err in allowing a witness to testify as to the element of value when her testimony was based solely on her reading of the price tags?
3. Was the evidence sufficient to establish a value greater than $50, when the only evidence in support thereof was the price tags?
4. Did the court err in instructing the jury on larceny in the fourth degree as a lesser included offense?
5. Did the trial court err in failing to conduct the motion to suppress evidence hearing outside the presence of the jury?
The first three issues concern the admissibility of the price tags on the four items of clothing as establishing the market value of the goods. The defendant contends that the trial court erred in allowing the tags to be admitted into evidence along with *Page 799
the items of clothing. Specifically, the defendant claims that the tags were hearsay and that their admission denied her constitutional right to confront the witness against her in violation of the
In State v. Gyuro,
The defendant's chief reliance is on the case State v. Coleman,
Our consideration of current retail merchandising practices constrains us to reject the majority opinion in Coleman and to follow the reasoning set forth in the minority opinion. "In this day and age, items bought at retail are customarily purchased at the price shown on the price tags attached to the merchandise. Although the price listed on the tags was not necessarily conclusive evidence of the market value of the merchandise in this case, it was at least substantial evidence on which a jury could reasonably rely in determining that the market value of the goods stolen was in fact that which was shown on the price tag." Id., 555 (dissenting opinion).
The weight of authority supports the view that the terms market value and selling price are synonymous; State v. Gyuro, supra; Connecticut Savings Bank v. New Haven,
The defendant's arguments against the admissibility of these tags are without merit. We are unpersuaded by the argument that such tags are technically excludable as hearsay unless qualified under the business records exception; State v. Coleman, supra; Lauder v. State,
The defendant's claim that she was denied her right to confrontation is also groundless, since the admissibility of the price tags does not prevent her from presenting rebutting evidence on the issue of value. State v. Tomanelli, supra, 369 (judicially noted facts are not conclusive, but may be rebutted). The *Page 802
defendant had the right to contend that the price tags did not necessarily reflect the market value of the goods, but it would be incumbent upon her to present evidence to support this contention. State v. Coleman, supra, 556 (dissenting opinion); People v. Cook,
The court below did err, however, in allowing the security guard to testify about the value of the stolen goods. Although the general rule is that any evidence which is relevant to prove value is admissible; State v. Gyuro, Supra; it is implicit that only competent evidence is actually admissible. 52A C.J.S., Larceny 118, p. 617. Therefore, a witness who testifies as to value must be qualified to do so on the basis of his own personal knowledge or experience; he may not merely transmit information which he receives from outside sources in the field. Burn v. Metropolitan Lumber Co.,
In order to support a conviction for larceny in the third degree,3 the state had to offer competent *Page 803
evidence that the value of the articles taken exceeded $50. State v. Beatham, Appellate Session of the Superior Court, Docket No. 279 (1977). The defendant claims that the evidence in this case was insufficient to support her conviction. "``When a jury verdict is challenged on the ground that the evidence is insufficient to sustain the verdict, the issue is whether the jury could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt....'" State v. Festo,
In the present case, the court erred by allowing the jury to consider both competent and incompetent evidence on the issue of value. This error is harmless, however, where the facts contained in the improperly admitted testimony are established by other evidence. Anonymous v. Norton,
The defendant claims that the trial court erred in charging the jury on the lesser included offense of larceny in the fourth degree when no such request to charge was made. A defendant is entitled to an instruction on a lesser offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested either by the state or by the defendant; (2) it is impossible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser offense; (3) the evidence introduced by the state or the defendant, or a combination of their proofs, justifies *Page 804
conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser. State v. Tinsley,
Since the record indicates that neither party requested a charge on larceny in the fourth degree and since there appears to have been no dispute about whether the value of the goods exceeded $50, the charge should not have been given, as the state concedes. We agree with the claim of the state, however, that the error was harmless in view of the verdict finding the defendant guilty of larceny in the third degree.
For an erroneous portion of a charge to be reversible error, the court must consider the whole charge and determine, in appeals not involving a constitutional question, if it is reasonably probable that the jury were misled; and, in appeals involving a constitutional question, if it is reasonably possible that the jury were misled. State v. Rose,
The defendant claims that under Practice Book 8134 a separate evidentiary hearing is required *Page 805 when a motion to suppress evidence is made. This claim is incorrect. Though 813 requires the judicial authority to whom the case has been assigned for trial to hear all motions which require an evidentiary hearing, nowhere does it mandate a separate evidentiary hearing.
Obviously, the better and more prudent procedure is for the court to determine questions as to the admissibility of evidence in the jury's absence, if for no other reason than that such a procedure obviates any risk that the jury may hear evidence which the court ultimately determines to be inadmissible. State v. Panella,
When a defendant claims that the court below made an erroneous ruling, he bears the burden of establishing that the claimed error was harmful. State v. Pepe,
There is no error.
In this opinion SHEA and BIELUCH, Js., concurred.
State v. King , 164 N.J. Super. 330 ( 1978 )
State v. Long , 130 N.W.2d 663 ( 1964 )
Anonymous v. Norton , 168 Conn. 421 ( 1975 )
Burn v. Metropolitan Lumber Co. , 94 Conn. 1 ( 1919 )
Lauder v. State , 233 Md. 142 ( 1963 )
State v. Panella , 168 Conn. 532 ( 1975 )
State v. McDonald , 251 N.W.2d 705 ( 1977 )
State v. Pepe , 176 Conn. 75 ( 1978 )
State v. Milano , 94 N.J. Super. 337 ( 1967 )
State v. Baker , 182 Conn. 52 ( 1980 )
People v. Irrizari , 5 N.Y.2d 142 ( 1959 )
Connecticut Savings Bank v. City of New Haven , 131 Conn. 575 ( 1945 )
State v. L'HEUREUX , 166 Conn. 312 ( 1974 )
State v. Rose , 169 Conn. 683 ( 1975 )
State v. Festo , 181 Conn. 254 ( 1980 )
State v. Tinsley , 181 Conn. 388 ( 1980 )