State v. Cote

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 STATE OF CONNECTICUT v. JOSEPH COTE
(SC 19053)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,
Espinosa and Vertefeuille, Js.
Argued March 27—officially released November 25, 2014

Neal Cone, senior assistant public defender, for the
appellant (defendant).
Michele C. Lukban, senior assistant state’s attorney,
with whom, on the brief, was Peter A. McShane, state’s
attorney, for the appellee (state).
 Opinion

ZARELLA, J. The defendant, Joseph Cote, appeals
from the judgment of the Appellate Court affirming the
judgment of conviction, rendered after a jury trial, of
one count of burglary in the third degree in violation
of General Statutes § 53a-103 (a)1 and one count of
larceny in the second degree in violation of General
Statutes (Rev. to 2009) § 53a-123 (a).2 The defendant
claims that Public Acts 2009, No. 09-138, § 2 (P.A. 09-
138),3 which amended the second degree larceny statute
after the defendant committed the crime but before his
conviction by increasing the value of property stolen
necessary to constitute the offense, applied retroac-
tively. The defendant also claims that, if certain
uncharged misconduct evidence concerning his activi-
ties in another location was admissible, any probative
value of the evidence was greatly outweighed by its
prejudicial effect, and, therefore, admission of the evi-
dence was harmful error. We affirm the judgment of
the Appellate Court.
The following relevant facts, which the jury reason-
ably could have found, are set forth in the Appellate
Court’s opinion. ‘‘At approximately 10 a.m., on January
27, 2009, Judith Stanton left her home located at 677
Pequot Trail in [the town of] Stonington (Stonington
property). When Stanton returned to her home at
approximately noon, she realized that the telephone
was no longer on the wall, the liquor cabinet was open
and drawers had been opened in every room upstairs.
Her jewelry box had been ‘torn apart,’ and pocket
watches that were on display in a cabinet were missing.
Jewelry, several $2 bills, a federal note and six $100
bills were [also] missing from the property.
‘‘Lucinda Wesson, a neighbor who lived directly
across the street from the Stonington property, noticed
a car she did not recognize parked on her street the
morning of January 27, 2009. It was a dark-colored Saab
convertible with . . . Massachusetts license plate[s].
At that time, no one was in or near the car. Sometime
later, Wesson went to the other side of her home, where
she again saw the car because it was stationed outside
her property. At this time, the passenger’s side door
was open, and a man was wandering in the middle of
the street, appearing as if he were looking for some-
thing. The person driving the car said, ‘[g]et back into
the car,’ and the parties then left. Both of the individuals
had a ‘very thick Massachusetts accent.’ From her
standpoint in her home, she believed the individual
outside of the vehicle was approximately six feet tall,
and she apprised police that he was of Italian descent,
with black hair, between forty and fifty years old,
weighing approximately 200 pounds and wearing a red
sweatshirt type jacket.
‘‘An investigation at the Stonington property revealed
that force had been used to open the rear door. An area
of weather stripping that ran down the exterior of the
door had been manipulated or moved. The damage was
consistent with forced entry into the house. There were
footprints in the snow outside the Stonington property
that ran from the front of the home to the back door;
however, the police were not able to get foot impres-
sions. The Stonington police filed a report with the
National Crime Information Center detailing the inci-
dent.
‘‘On January 27, 2009, at approximately 1:45 p.m.,
Raymond Driscoll, the police chief in Richmond, Rhode
Island, drove past the home of an acquaintance located
on 122 Kingston Road in Richmond. The homeowner’s
truck was not on the property; however, there was a
black Saab convertible with Massachusetts license
plates parked in the yard. Driscoll observed two men
standing in front of the garage door looking into the
garage through a window. He then observed one of the
men looking through a door at the front step next to
the garage. This man was ‘alternately looking over his
shoulder between looking into the house.’ One of the
men noticed that Driscoll was watching, and both men
quickly walked to the Saab and drove away.
‘‘Driscoll followed the vehicle, which entered an
abandoned gasoline station parking lot. While Driscoll
was calling for additional police support, the operator
of the vehicle got out of the car and walked over to
him. Driscoll asked the operator for his license and
registration, which he retrieved. The license identified
the operator of the vehicle as the defendant, and his
passenger was identified as [Albert] Kalil. The defen-
dant volunteered that he and Kalil were on their way
from a casino and had gotten lost. The defendant stated
that they had stopped at the house to ask for directions
and that they were running out of gasoline. Driscoll
asked the defendant to turn the vehicle on, and Driscoll
observed that the vehicle had more than one quarter
of a tank of gasoline remaining.
‘‘Kalil was wearing a ‘sweatshirt type jacket’ and had
a pair of bloodstained white athletic socks in his jacket
pockets. There was also a cut on Kalil’s hand. When
asked why he had socks in his jacket pocket, Kalil
responded that he had ‘bad feet.’ Kalil stated that he
and the defendant had been at [a] casino and that he
had won $100. When asked why he was at the property
located at 122 Kingston Road, Kalil stated that he and
the defendant were lost and running out of gasoline
and had stopped to ask for directions. When asked how
they could be running out of gasoline when there were
four gasoline stations within one and one-quarter miles
of where they were located, Kalil responded that he
did not know. When asked why they chose 122 Kingston
Road to stop and ask for directions when there were
no cars in the driveway, Kalil responded that he did
not know.
‘‘After obtaining the defendant’s consent, Driscoll
searched the vehicle, finding some articles of clothing
in the backseat, a pair of black gloves on the center
console and a screwdriver, pry bar and a hatchet/ham-
mer in the trunk. When the additional police support
arrived, Driscoll went back to the house and noticed
two sets of footprints in the snow leading from the
front of the home to the back of the home and back to
the front. He could see where an individual had stopped
on the back step and presumably looked into the house
through the back door. There did not appear to be any
entry into the house.
‘‘Driscoll placed Kalil in the backseat of an officer’s
cruiser and asked the defendant to follow him to the
police station. Driscoll drove into the parking area
behind the station, and the defendant drove to the front
of the station. After parking, Driscoll went to the front
of the police station, and the defendant ‘was standing
on the sidewalk in front of the Saab . . . right in front
of a row of small shrubbery that’s in front of the police
station.’ Driscoll again obtained consent to search the
defendant’s vehicle, and he seized the hatchet/hammer,
screwdriver and pry bar. When looking through the
interior of the vehicle, the police seized a costume jew-
elry gemstone. The gemstone was approximately one-
quarter inch by one-quarter inch in size and blue or
green in color. It was found between the driver’s seat
and the passenger’s seat in the Saab.
‘‘The Richmond police later recovered a bag in the
bushes in front of the Saab parked in the police depart-
ment parking lot. Inside the bag were various types of
jewelry, including pocket watches, rings and bracelets.
The bag contained approximately fifty pieces of jewelry.
The bag also had a piece of jewelry with gemstones
that matched the gemstone found inside the vehicle.
‘‘The Stonington police were notified that the Rich-
mond [P]olice [D]epartment had found individuals and
goods that were consistent with the Stonington bur-
glary. Stanton viewed the jewelry obtained by the Rich-
mond [P]olice [D]epartment and identified it as her
property. The defendant and Kalil thereafter were
arrested by the Stonington police and charged with
burglary in the third degree and larceny in the sec-
ond degree.
‘‘The jury found the defendant guilty of [the offenses
charged]. The defendant was sentenced on August 5,
2010, to six years imprisonment on the larceny count
and five years on the burglary count, to be served con-
currently, for a total effective sentence of six years.’’
(Footnotes omitted.) State v. Cote, 136 Conn. App. 427,
429–33, 46 A.3d 256 (2012).
The defendant appealed from the judgment of convic-
tion to the Appellate Court,4 which rejected his claim
that P.A. 09-138, § 2, which amended the second degree
larceny statute by increasing the value of property sto-
len necessary to constitute the offense, applied retroac-
tively.5 Id., 441. We then granted the defendant’s petition
for certification to appeal from the Appellate Court’s
judgment.6 State v. Cote, 307 Conn. 922, 55 A.3d 567
(2012). We also granted the defendant’s subsequent
motion for permission to add a second certified issue,
namely, whether ‘‘the Appellate Court properly
affirm[ed] the trial court’s decision admitting the testi-
mony of a Rhode Island police officer on grounds that
the evidence was admissible for proof of intent and to
‘complete the story of the charged crime’ and that [its]
prejudicial effect did not outweigh [its] probative
value?’’ State v. Cote, 308 Conn. 913, 61 A.3d 1100 (2013).
We conclude that P.A. 09-138, § 2, did not apply retroac-
tively. We also reject the defendant’s evidentiary claim
and, therefore, affirm the judgment of the Appellate
Court.
I
The defendant first claims that the Appellate Court
improperly concluded that P.A. 09-138, § 2, did not apply
retroactively because it is a curative act intended to
remedy a defect in an existing statute,7 or, in the alterna-
tive, because it is an ameliorative provision intended
to correct nearly three decades of legislative inaction.8
The state responds that the defendant’s claim that P.A.
09-138, § 2, is a curative act is not properly before this
court and that adoption of the amelioration doctrine
would impermissibly invade the province of the legisla-
ture. We agree with the state.
The following additional facts are relevant to our
resolution of this claim. In his brief to the Appellate
Court, the defendant articulated the first issue as
whether the trial court improperly declined to apply
P.A. 09-138, § 2, retroactively to reduce the sentence in
his case in light of its ameliorative provisions.9 See State
v. Cote, Conn. Appellate Court Records & Briefs, March
Term, 2012, Defendant’s Brief p. 5. In his reply brief,
however, the defendant additionally claimed that the
trial court should have applied P.A. 09-138, § 2, retroac-
tively because it is a curative act. See id., Defendant’s
Reply Brief p. 10. As a consequence, the state contended
during oral argument before the Appellate Court that
the defendant’s assertion that P.A. 09-138, § 2, is a cura-
tive act was an entirely new claim that the defendant
had raised improperly for the first time in his reply brief.
The Appellate Court agreed and declined to address that
claim. State v. Cote, supra, 136 Conn. App. 436 n.11.
The Appellate Court cited the well established principle
that ‘‘[o]ur practice requires an appellant to raise claims
of error in his original brief, so that the issue as framed
by him can be fully responded to by the appellee in its
brief, and so that [the court] can have the full benefit
of that written argument. Although the function of the
appellant’s reply brief is to respond to the arguments
and authority presented in the appellee’s brief, that
function does not include raising an entirely new claim
of error.’’ (Internal quotation marks omitted.) Id., quot-
ing Grimm v. Grimm, 276 Conn. 377, 394 n.19, 886 A.2d
391 (2005), cert. denied, 547 U.S. 1148, 126 S. Ct. 2296,
164 L. Ed. 2d 815 (2006).
The defendant nonetheless raised the issue again in
his petition for certification to appeal. In the first ques-
tion presented for review, the defendant asked this
court to consider whether P.A. 09-138, § 2, is an amelio-
rative act that should be applied retroactively. The
defendant specifically asked: ‘‘Did the Appellate Court
err by refusing to reconsider the so-called ‘amelioration
doctrine’ whereby changes to statutes reducing their
penalties apply retroactively to those not yet sentenced,
especially since [this] court has stated it is an open
question under Connecticut law?’’ In the second ques-
tion presented for review, the defendant asked the court
to consider whether the act is curative, making specific
reference to the fact that he had used the term ‘‘cura-
tive’’ for the first time in his reply brief to the Appellate
Court. The defendant specifically asked: ‘‘Did the Appel-
late Court err by refusing to review the defendant’s
claim that [P.A. 09-138 is] a curative statute, and thus
meant to apply backwards in recognition of the law
being defectively stated previously, because he first
used the term curative in his reply brief, but after he
had stated in his initial brief with supporting argument
that the history of [P.A. 09-138] shows it was meant to
remedy dollar values in the larceny statutes having been
unintentionally lowered by [twenty-seven] years of
inflation?’’ (Internal quotation marks omitted.) There-
after, we did not grant certification on the second ques-
tion but, rather, limited certification to the following
question: ‘‘Did the Appellate Court properly determine
that [P.A. 09-138] did not apply retroactively?’’ State v.
Cote, supra, 307 Conn. 922.
Although the certified question is phrased more con-
cisely than either of the first two questions presented by
the defendant, there can be no doubt that the certified
question is based on the defendant’s first question refer-
ring to the amelioration doctrine because it was the
only issue with respect to the retroactive application
of P.A. 09-138, § 2, that the Appellate Court decided.
The Appellate Court did not consider whether P.A. 09-
138, § 2, is a curative act because the issue had not
been timely raised, a fact that the defendant recognized
when he asked in his second question: ‘‘Did the Appel-
late Court err by refusing to review the defendant’s
claim that [P.A. 09-138 is] a curative statute . . . ?’’
(Emphasis added; internal quotation marks omitted.)
Thus, because the question on which we granted certifi-
cation asks if the Appellate Court properly ‘‘deter-
mine[d]’’ that P.A. 09-138, § 2, did not apply retroac-
tively; State v. Cote, supra, 307 Conn. 922; and, in view
of our refusal to grant certification on the issue of
whether the Appellate Court improperly declined to
review his claim that P.A. 09-138, § 2, applied retroac-
tively because it is a curative act, we will not review
that claim because it is beyond the scope of the certi-
fied question.10
We further conclude, on the basis of our reasoning
in Kalil, the companion case in which we addressed
the amelioration doctrine at length in response to all
of the same arguments the defendant makes in the
present case; see State v. Kalil, 314 Conn. , ,
A.3d (2014); that the Appellate Court properly
determined that P.A. 09-138, § 2, was not intended to
be an ameliorative act that applied retroactively.
Accordingly, the defendant’s claim regarding the retro-
active application of P.A. 09-138, § 2, has no merit.
II
The defendant next claims that, if the uncharged mis-
conduct evidence of his alleged Rhode Island activities
was admissible, its probative value was greatly out-
weighed by its prejudicial effect, and, therefore, admis-
sion of the evidence was harmful error. The state argues
that the evidence was admissible to prove the defen-
dant’s intent to commit the crimes with which he was
charged and that its probative value outweighed its
prejudicial effect. We agree with the state.
The following additional facts are relevant to our
resolution of this claim and are set forth in the Appellate
Court’s opinion in State v. Kalil, 136 Conn. App. 454,
46 A.3d 272 (2012). ‘‘Prior to trial, defense counsel filed
a motion in limine to bar Driscoll’s testimony about
any observations that he made prior to stopping [Kalil
and] the defendant . . . in Rhode Island on January
27, 2009. Counsel argued that allowing Driscoll to testify
as to the nature of the incident he observed would be
extremely prejudicial to the defendant, as the defendant
was not charged for that incident, and it was separate
from the charges in Connecticut. The state, in turn,
argued that the testimony would complete the story of
the Stonington burglary and demonstrate the defen-
dant’s intent to commit [that] burglary. The court deter-
mined that the testimony was admissible to complete
the story . . . [and also] was relevant to the defen-
dant’s intent. The court therefore denied the motion
in limine.
‘‘After Driscoll testified as to his observations of the
defendant prior to stopping the Saab, the court gave a
limiting instruction . . . directing the jury to consider
such testimony only if it determined that the conduct
occurred and that it supported the issue of intent or
completing the story.11 Similarly, during its charge to
the jury after closing arguments, the court again
instructed the jury that it could consider this portion
of Driscoll’s testimony only if it concluded that it dem-
onstrated the defendant’s intent during the Stonington
burglary or if it completed the story of the Stonington
burglary.’’12 (Citation omitted; footnote altered.) Id.,
461–62.
As previously discussed, although the defendant and
Kalil were tried together, they filed separate appeals
with the Appellate Court, which affirmed the trial
court’s judgments in their respective cases. Id., 483;
State v. Cote, supra, 136 Conn. App. 453. Both the defen-
dant and Kalil then appealed to this court. The defen-
dant did not claim initially that admission of the other
misconduct evidence was improper.13 Kalil, however,
had made such a claim, and, following its rejection by
the Appellate Court, he renewed the claim on appeal
to this court. Thereafter, we granted the defendant’s
motion seeking permission to add the claim of whether
the Appellate Court properly determined that the trial
court did not abuse its discretion in admitting evidence
of other misconduct by the defendant in Rhode Island.
We conclude, on the basis of our reasoning in Kalil,
in which we addressed the same issue and responded
to all of the same arguments made by the defendant in
the present case; see State v. Kalil, supra, 314 Conn.
; that the probative value of the evidence of the
defendant’s misconduct in Rhode Island outweighed its
prejudicial effect. Accordingly, the defendant’s claim
has no merit.
The judgment of the Appellate Court is affirmed.
In this opinion ROGERS, C. J., and PALMER, McDON-
ALD, ESPINOSA and VERTEFEUILLE, Js., concurred.
1
General Statutes § 53a-103 (a) provides: ‘‘A person is guilty of burglary
in the third degree when he enters or remains unlawfully in a building with
intent to commit a crime therein.’’
2
General Statutes (Rev. to 2009) § 53a-123 (a) provides in relevant part:
‘‘A person is guilty of larceny in the second degree when he commits larceny,
as defined in section 53a-119, and . . . (2) the value of the property . . .
exceeds five thousand dollars . . . .’’
3
Section 2 of P.A. 09-138, entitled ‘‘An Act concerning Larceny,’’ increased
the value required for an offense constituting larceny in the second degree
as follows: ‘‘(a) A person is guilty of larceny in the second degree when he
commits larceny, as defined in section 53a-119, and . . . (2) the value of
the property . . . exceeds ten thousand dollars . . . .’’ P.A. 09-138, § 2,
codified at General Statutes (Supp. 2010) § 53a-123 (a) (2). Thus, under the
statutory scheme at the time of the defendant’s conviction, the value of the
property taken would have qualified for a charge of larceny in the third
degree; see General Statutes (Supp. 2010) § 53a-124 (a) (2); a class D felony
with a maximum sentence of five years; see General Statutes (Supp. 2010)
§ 53a-124 (c); General Statutes § 53a-35a (8); rather than a class C felony
with a maximum sentence of ten years under the statute in effect at the
time the crime was committed. See General Statutes (Rev. to 2009) § 53a-
123 (c); General Statutes § 53a-35a (7).
4
The defendant and Kalil were tried together but filed separate appeals
with the Appellate Court.
5
The defendant’s other two claims were that ‘‘there was insufficient evi-
dence to warrant the conviction of [third degree] burglary and . . . the trial
court erred in not granting the defendant’s renewed motion to sever the trials
of the defendant and . . . Kalil.’’ State v. Cote, supra, 136 Conn. App. 429.
6
Our granting of the defendant’s petition for certification to appeal from
the judgment of the Appellate Court was limited to the following issue: ‘‘Did
the Appellate Court properly determine that [P.A. 09-138] did not apply
retroactively?’’ State v. Cote, 307 Conn. 922, 55 A.3d 567 (2012).
 7
‘‘A curative act is a statute passed to cure defects in prior law, or to
validate legal proceedings, instruments, or acts of public and private adminis-
trative authorities. In the absence of such an act the statute would be void
for want of conformity with existing legal requirements.’’ 2 N. Singer & J.
Singer, Sutherland Statutes and Statutory Construction (7th Ed. 2009)
§ 41:11, p. 503. Thus, statutory amendments that cure defects in their provi-
sions are applied retroactively.
8
‘‘The amelioration doctrine provides that amendments to statutes that
lessen their penalties are applied retroactively . . . . State v. Graham, 56
Conn. App. 507, 511, 743 A.2d 1158 (2000); see also Castonguay v. Commis-
sioner of Correction, 300 Conn. 649, 663, 16 A.3d 676 (2011) (when [the]
[l]egislature has amended [a] statute to mitigate [the] penalty for a crime,
[the] new law applies to cases in which [the] defendant committed [the]
crime before [the] amendment, but was sentenced after [the] amendment),
citing In re Estrada, 63 Cal. 2d 740, 745–46, 408 P.2d 948, 48 Cal. Rptr. 172
(1965).’’ (Internal quotation marks omitted.) State v. Kalil, 314 Conn. ,
, A.3d (2014).
9
The defendant’s first argument was entitled: ‘‘The General Assembly by
[P.A.] 09-138 increased the dollar value threshold differentiating larceny
second degree from larceny third degree and the trial court erred by refusing
to apply the ameliorative change to the defendant’s case.’’ State v. Cote,
Conn. Appellate Court Records & Briefs, March Term, 2012, Defendant’s
Brief p. 5.
10
Our decision not to review this claim applies to the defendant’s related
arguments under article first, § 9, of the Connecticut constitution, which
provides in relevant part that ‘‘[n]o person shall be . . . punished, except
in cases clearly warranted by law,’’ because his arguments are premised on
the notion that the legislature believed that an amendment to the larceny
statute was necessary because the statute was defective.
11
‘‘The court [gave] the following . . . limiting instruction: The evidence
offered by the state of alleged subsequent acts of misconduct by the [defen-
dant] at [the Rhode Island property] is not being admitted to prove the bad
character of . . . the [defendant] or . . . the defendant’s tendency to com-
mit a criminal act. This evidence is being admitted to show or establish the
existence of . . . the defendant’s intent on the charges of burglary and/or
larceny, which is a necessary element of each of those crimes.
‘‘It is also being offered to place in . . . context the events alleged to
have occurred on the date in question. You may not consider such evidence
as establishing a predisposition on the part of [the] defendant to commit
the crimes charged or to demonstrate a criminal propensity. You may con-
sider such evidence if you conclude that such conduct occurred and further
find that it logically, rationally, and conclusively supports the issues for
which it is being offered by the state, but only as it may bear on the issue
of intent or placing the events of the date in context.
‘‘On the other hand, if you do not conclude that such conduct occurred,
or, even if you do, if you find that it didn’t logically, rationally, and conclu-
sively assist on the issue of . . . intent or placing into context the alleged
events that occurred on the date in question, you may not consider the
testimony for any purpose . . . .’’ (Internal quotation marks omitted.) State
v. Kalil, supra, 136 Conn. App. 462 n.7.
12
‘‘The court . . . [charged the jury after closing arguments as follows]:
Any testimony or evidence which I identified as being limited to a purpose,
you will consider only as it relates to the limits for which it was allowed,
and you will not consider such testimony and evidence in finding any other
facts as to any other issue.
‘‘For example, the state offered evidence of the alleged act by . . . the
[defendant], which occurred shortly after the act alleged to have occurred
at the [Stonington property] . . . . The evidence offered by the state of
subsequent acts of alleged misconduct by the [defendant] at or near [the
Rhode Island property] was not admitted to prove the bad character of . . .
the [defendant] or . . . the defendant’s tendency to commit criminal acts.
This evidence was admitted solely to show or establish the existence of
. . . the defendant’s intent on the charges contained in [the] information
of burglary and/or larceny, which is a necessary element of each of these
crimes. It was also offered to place into context . . . the events alleged to
have occurred on the date in question.
‘‘You may not consider such evidence as establishing a predisposition on
the part of [the] defendant to commit the crimes charged or to demonstrate
a criminal propensity. You may consider such evidence if you conclude that
such conduct occurred and further find that it logically, rationally, and
conclusively supports the issues for which it is being offered by the state,
but only as it may bear on the issue of intent or placing the events of the
date . . . into context.
‘‘On the other hand, if you do not conclude that such conduct occurred,
or, even if you do, if you find that it doesn’t logically, rationally, and conclu-
sively assist on the issue of intent or placing into context the events alleged
to have occurred on the date in question, you may not consider this testimony
for any purpose.’’ (Internal quotation marks omitted.) State v. Kalil, supra,
136 Conn. 462–63 n.8.
13
The defendant raised three claims in the Appellate Court. The claims
were: (1) P.A. 09-138, § 2, applied retroactively to his case; (2) there was
insufficient evidence to sustain his burglary conviction; and (3) the trial
court improperly denied the defendant’s motion to sever the trials of the
defendant and Kalil. State v. Cote, supra, 136 Conn. App. 429.