STATE v. ALBERT KALIL, SC 19016

Judicial District of New London

 

      Criminal; Whether Other Misconduct Evidence Admissible to Prove Intent and to “Complete the Story of the Crime;” Whether Public Act Increasing Value of Property Taken for Commission of Second Degree Larceny Applied Retroactively.  A few hours after a burglary at a Stonington residence was reported, Rhode Island police officer Raymond Driscoll observed two men, later identified as the defendant and Joseph Cote, engaging in suspicious behavior outside a Rhode Island home.  When the men saw Driscoll, they got into their vehicle and drove away.  Driscoll later stopped the men, and they were arrested after a search of their vehicle yielded evidence connected to the Stonington burglary.  The defendant and Cote were charged with burglary and larceny in the second degree and they were tried jointly.  At trial, the trial court allowed Driscoll to testify as to his observations of the men prior to stopping them, concluding that such evidence was admissible as proof of their intent and to “complete the story” of the Stonington crime by placing it in the context of nearby and nearly contemporaneous happenings.  The defendant and Cote were convicted and they appealed.  On appeal, the defendant argued, among other things, that the admission of Driscoll’s testimony was improper because its prejudicial effect far outweighed its probative value.  The Appellate Court (136 Conn. App. 454) disagreed and affirmed the defendant’s convictions.  It found that Driscoll’s observations of the defendant were close in time to the Stonington burglary, which made it more likely that the defendant’s presence at the Stonington property was not innocent.  It therefore held that it was not an abuse of discretion to admit Driscoll’s testimony to show that the defendant had the requisite intent to commit a burglary in Connecticut.  The Appellate Court also determined that, while some damage to the defendant’s case naturally flowed from Driscoll’s testimony, that evidence was not unduly prejudicial to the defendant.  Moreover, it noted that the trial court minimized any potential undue prejudice caused by the other misconduct evidence by giving the jury detailed instructions on the role the evidence was to play in its deliberations and by repeating its admonition to the jury in its final instructions.  In this appeal, the Supreme Court will determine whether the Appellate Court properly upheld the admission of Driscoll’s testimony on the grounds that the evidence was admissible to prove intent and to “complete the story of the charged crime” and on the ground that its prejudicial effect did not outweigh its probative value.  It will also decide whether Public Acts 2009, No. 09-138, which amended the second degree larceny statute after the defendant’s arrest but prior to his conviction, applied retroactively here.  The amended larceny statute increased the value of property required to be taken for the commission of the crime and, under the amended statute, the value of the property taken from the Stonington home would no longer qualify for a charge of second degree larceny, but, instead, would qualify as third degree larceny.