State of Connecticut v. Alexandros Savvidis (2012)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR ACQUITTAL

On August 1, 2010, the defendant was charged by way of a misdemeanor summons for Breach of the Peace in the 2nd degree.   On August 31, 2010, the defendant, in court, made a sworn application for the Accelerated Rehabilitation program and subsequently was deemed to be ineligible by Probation, based upon a prior use of the program.

On September 15, 2011 the state filed a Substitute Information adding one count of Perjury, alleged to have occurred on August 31, 2010.   On September 21, 2011, the State filed a two-count Long Form Information charging Breach of Peace in violation of CGS Section 53a–181(a)(5) alleged to have occurred on August 1, 2010, and Perjury in violation of CGS Section 53a–156 alleged to have occurred on August 31, 2010.   On October 17, 2011, the State filed a three-count Long Form Information charging Breach of Peace in violation of CGS Section 53a–181(a)(5) alleged to have occurred on August 1, 2010, Sexual Assault 4th inviolation of CGS Section 53a–73a(2) alleged to have occurred on August 1, 2010, and Perjury in violation of CGS Section 53a–156 alleged to have occurred on August 31, 2010.

On February 29, 2012, the defendant elected a court trial on the Perjury charge.   The Perjury charge was severed from the remaining charges, on which the defendant elects to be tried by a jury.

At the April 10, 2012 court trial on the Perjury charge the state presented the following evidence:

A transcript of the August 31, 2010 court hearing wherein the defendant filed his application for the Accelerated Rehabilitation Program and responded under oath to the Court's canvas regarding same was introduced as State's Exhibit 1.

The balance of the evidence presented in the State's case in chief is reflected in the following excerpt from the transcript of the proceedings:

Ms. Venita Anderson, Intake Assessment and Referral Specialist of 17 Belden Avenue Norwalk, Connecticut, having first been duly sworn, was examined and testified as follows:

THE CLERK:  State your name and affiliation for the record.

WITNESS:  Venita Anderson.   Adult Probation, IAR assistant.

THE CLERK:  Thank you.

THE COURT:  Thank you, very much.

DIRECT EXAMINATION BY ATTY. PECO:

Q Good afternoon, Ms. Anderson.

A Hello.

Q How long have you been with probation?

A September of this year it'll be 25 years.

Q And what sort of training have you had with probation?

A As far as?

Q Did you get training in the beginning of your job?

A Yes.

Q And how long was that for?

A As far as running record checks, we get certified every two years.

Q And were you trained in regards to the procedures for Accelerated Rehabilitation?

A Yes.

Q And when were you trained for that?

A It's just overall as we go along we get training on it.

Q What are your current duties?

A I sign people up for probation, I run record checks, I enter our information into the computer.

Q Can you briefly describe what Accelerated Rehabilitation is?

A It's for people or offenders who have not used a program before, have no convictions.

Q And what is the procedure for applying for that program?

A They—they come into court, they fill out the application, they get sworn in by the Judge, and they pay the application fee.

Q And then after that do they meet with probation?

A They meet with us, show us a copy of the receipt.

Q And at some point did the—did Alexandros Savvidis do that?   Did he come to probation—

A Yes.

Q—for an Accelerated Rehabilitation?

Do you know when that was?

A I—just from when he was in court on the paperwork that I have.

ATTY. PECO:  I'm going to ask that this be marked as State's exhibit 2 for identification.   I'm going to show it to counsel.

ATTY. MCKIRDY:  No objection, Your Honor.

THE COURT:  Okay. It can be marked as a full exhibit then.

And for the record, it's a one-page document entitled Application for Accelerated Pretrial Rehabilitation dated August 31st, of 2010.

ATTY. PECO:  I'm going to ask that this be marked as State's exhibit 3 for identification.

I'm showing it to counsel.

ATTY. MCKIRDY:  No objection, Your Honor.

THE COURT:  Okay. It may be marked as State's exhibit 3, full.

And for the record, it's a one-page form entitled Judicial District of Norwalk Accelerated Rehabilitation Eligibility Investigation.

And the top part is filled in and the bottom part is not filled in.

ATTY. PECO:  I'm going to show the exhibits to the witness, exhibit 2 and exhibit 3.

DIRECT EXAMINATION BY ATTY. PECO:

Q Ms. Anderson, you said that Mr. Savvidis came to your office with those forms, are those the forms that he came to your office with?

A Yes.

Q Or—I'm sorry.   Where did you receive the forms from?

A Either—most likely they came from the Clerk's Office, they were given to us.

Q But those are the—are those the forms that you reviewed in connection with Mr. Savvidis applying for Accelerated Rehabilitation?

A Yes.

Q And what is the date of birth on that?

A October 29th, 1949.

Q And the social security number?

A The last four digits are 2856.

Q And when someone comes to your office to apply for Accelerated Rehabilitation, how do you verify that the person you're speaking with is the person that you have the form for?

A We just go by the receipt that they give us and we match it up with our paperwork.

Q And so did he give you a receipt?

A I would have to check.   I'm not sure if we had a receipt for this one.

Q Would you have that with you?

A I can check.   Yes, we do have a receipt.

Q What, if anything, did you find when you did the record check?

A That he previously used AR.

Q And by AR what do you mean?

A Accelerated Rehabilitation.

Q When did he use it?

A Back in 1991.

Q And do you know how long he was in the program for?

A Two years.

Q And do you know if it resulted in a dismissal?

A Yes.

ATTY. PECO:  Thank you.   I have nothing further.

CROSS EXAMINATION BY ATTY. MCKIRDY:

Q Ms. Anderson, I believe you testified on direct that you've been with the Department of Adult Probation for 25 years?

A It will be, yes.

Q Okay. And so you've been processing AR applications for that 25 years, is that fair to say?

A More so, yes.

Q Okay. Has it ever happened that you get AR applicants who are ineligible because they've already used the program and they don't even know it?

A I can't say.   I mean, I just run the record check.   So I don't know.

ATTY. MCKIRDY:  All right.   Nothing further.   Thank you.

THE COURT:  Thank you.

ATTY. PECO:  Your Honor, the State rests

At the conclusion of the State's case, the defendant moved for a Judgment of Acquittal, claiming the State failed to present evidence sufficient to establish all the elements necessary to establish the crime of Perjury.

The statute defining perjury provides in pertinent part as follows:

a person is guilty of perjury if, in any official proceeding, he intentionally, under oath, swears to a material statement which he does not believe to be true.

In order for a defendant to be found guilty of Perjury, the State must prove three elements beyond a reasonable doubt.

The first element is that the testimony was given at an official proceeding under oath.   An “official proceeding ” includes any proceeding held before any judicial official authorized to take evidence under oath.   The defendant must have, in the presence of an officer authorized to administer an oath, unequivocally taken upon himself the obligation of an oath.   This element is established by the transcript of the defendant's August 31, 2010 hearing on his application for Accelerated Rehabilitation.

The second element is that the defendant intentionally swore to the truth of the statement knowing or believing the statement to be false.   The testimony must have been intentionally and deliberately given falsely and not through inadvertence or by mistake;  that is, it was the defendant's specific intent to deceive, and the defendant made the statements knowing or believing that they were false.

Specific intent is the intent to achieve a specific result.   A person acts “intentionally ” with respect to a result when his conscious objective is to cause such result.   What a person's intention was is usually a matter to be determined by inference.   No person is able to testify that he looked into another's mind and saw therein a certain knowledge or a certain purpose or intention to do harm to another.   Because direct evidence of the defendant's state of mind is rarely available, intent is generally proved by circumstantial evidence.   The only way a fact finder can ordinarily determine what a person's intention was at any given time is by determining what the person's conduct was and what the circumstances were surrounding that conduct and from that infer what his intention was.

To draw such an inference is the proper function of the fact finder, provided of course that the inference drawn complies with the legal standards for inferences.   The inference is not a necessary one.   The fact finder is not required to infer a particular intent from the defendant's conduct or statements, but it is an inference that may be drawn if it is found to be reasonable and logical.   The burden of proving intent beyond a reasonable doubt is on the state.

A person acts “knowingly ” with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists.   An act is done knowingly if done voluntarily and purposely, and not because of mistake, inadvertence or accident.

As with intent, ordinarily knowledge can be established only through an inference from other proven facts and circumstances.   The inference may be drawn if the circumstances are such that a reasonable person of honest intention, in the situation of the defendant, would have concluded that his statement was false.   The determinative question is whether the circumstances in the particular case form a basis for a sound inference as to the knowledge of the defendant in the transaction under inquiry.

The essence of circumstantial evidence is the determination of a material issue of fact by drawing inferences from facts found to be admitted or proved.   Circumstantial evidence is indirect evidence, that is, proof of a chain of facts from the fact finder could logically and reasonably infer that another fact or set of facts exists even though it has not been proved directly.   The fact finder may draw reasonable inferences from facts found proven.   The inferences drawn from such facts must be reasonable and logical and not the result of speculation or conjecture.   In the drawing of inferences as to any of the essential elements of the crime which the State has the burden of proving beyond a reasonable doubt not only must the inference be reasonable and logical, but the cumulative impact of the evidence must be such as to convince the fact finder that the element has been proven beyond a reasonable doubt.   Before deciding that a fact has been proven by circumstantial evidence, all the evidence must be considered in light of reason, experience and common sense.

When considering evidence regarding a perjury charge, the truth or falsity of the defendant's testimony cannot be proved solely on the basis of the uncorroborated testimony of a single witness, even if the fact finder find that witness's testimony to be credible.   Rather, there is a requirement of corroborated proof through independent and material facts and circumstances supplementing the testimony of the single witness.   This requirement in perjury cases is a somewhat unique exception to the general principle of our justice system which provides that the value of evidence is measured by quality not quantity.   The corroborative testimony must be of such a character that, when taken in connection with all the other testimony, the falsity of the testimony is established beyond a reasonable doubt.

This second element requires that the state prove both that the defendant made a statement that was untrue in fact, by way of corroborated independent proof supplementing the testimony of any witness or other evidence, and that the defendant believed that it was false.

With respect to the falsity prong of element 2, the evidence presented consisted only of the testimony of Ms. Anderson, an experienced member of the Probation Department for almost a quarter of a century, who ran a record check on the defendant.   The results of her record check indicated that the defendant, who according to the birth date provided on the eligibility investigation form admitted into evidence as State's Exhibit 3, was approximately 60 years of age at the time of his application, and had previously used the program almost 20 years prior.   The bottom of this form, which would indicate what records were checked, whether the defendant was eligible or not eligible for Accelerated Rehabilitation, and the reasons for the determination has no data entered.   Although the court finds Ms. Anderson's testimony to be credible, her testimony alone is insufficient to establish the falsity of the defendant's testimony, as the requisite independent corroboration of the principal evidence of falsity is lacking.   See State v. Iassogna, 95 Conn.App. 780 (2006).

The second prong of Element 2, which includes the defendant's specific intent to deceive, as opposed to inadvertence, accident or mistake, and the defendant's knowledge or belief that his testimony was false, would necessarily be determined by way of inference, as there was no direct evidence on these sub-elements.   As noted earlier, in order to find a fact or facts proven by circumstantial evidence, all of the evidence must be considered in light of reason, experience and common sense.   Obviously the part of the experience of any jurist working on a daily basis in a busy, metropolitan criminal court includes encountering countless individuals of all ages, with varying educational and cultural backgrounds, who, after previously being sworn in the first stage of the application, and having testified under oath that they had neither used the program previously nor been convicted of a crime, are deemed to be ineligible for Accelerated Rehabilitation at the second stage of the process, due to prior participation in the program, or a prior conviction.   Frequently, the triggering causes of ineligibility, other criminal convictions or prior use of the program, occurred within a much shorter span than the nineteen years in this case, and few of the applicants are in the more advanced age range of this defendant, who also is a native of Greece.  [See Exhibit 3.] Without some evidence that would indicate that this defendant's education, understanding, memory or ability to comprehend legal proceedings is somehow superior to the countless other ineligible applicants, it does not comport with reason, experience and common sense to infer any more sinister intent or belief on his part, as opposed to simple inadvertence or mistake.   Based upon the limited evidence presented in this case, any inferences drawn as to the defendant's intent to deceive or his knowledge or belief of the falsity of his statements would be the result of mere speculation or conjecture.   Although the State argues that belief of falsity may be inferred by proof of the falsity itself, such an inference may only be made in appropriate circumstances.   See State v. Fantasia, 5 Conn.App. 552 (1985).

Such an inference would be inappropriate in this case, as without any independent corroboration of the principal evidence of falsity provided by Ms. Anderson's testimony, the State has failed to meet its burden to prove the falsity itself.

The third element is that the statement made by the defendant was a statement material to the proceedings.   The test of materiality is whether the statement was capable of influencing or had the potential to influence the fact finder in deciding the issues.   The United States Supreme Court has addressed the issue of materiality as follows:  “Deciding whether a statement is ‘material’ requires the determination of at least two subsidiary questions ․ (a) ‘what statement was made?’ and (b) ‘what decision was the agency trying to make?’   United States v. Gaudin, 515 U.S. 506, 512 (1995).   The ultimate question is whether the statement was material to the decision in this case—whether to grant or deny the defendant the privilege of participating in the Accelerated Rehabilitation program.   Pursuant to statute, that decision is within the discretion of the court, considering the serious nature of the crime charged and the likelihood of whether the defendant will offend in the future.   See CGS Section 54–56e(b).  In accordance with the procedures uniformly applied throughout the criminal courts in the State of Connecticut, the decision making stage in the Accelerated Rehabilitation application process only occurs after a finding of eligibility by the Probation department.   As there was no direct evidence regarding the materiality element, this element would necessarily need to be determined by inference, again considering all of the evidence in the light of reason, experience and common sense.   Ms. Anderson described the application process, which involves coming into court, filling out the application, being sworn by the Judge paying the application fee, and meeting with Probation.   Probation then runs the eligibility check and reports the result to the court.   In accordance with the procedures uniformly applied in the criminal courts throughout the State of Connecticut the decision making stage only occurs after a finding of eligibility by the Probation department.   If the individual is deemed ineligible, there is no decision to be made by the court, unless the applicant sought to continue the application process.   There was no evidence presented in this case of what, if anything, transpired after Probation's finding of ineligibility for the Accelerated Rehabilitation program.

Although not listed as a specific element of this crime, the issue of identity is an issue in every criminal case.   The State must prove beyond a reasonable doubt that the defendant was the individual who committed the crime.   In this regard, although there was testimony that when Ms. Anderson met with the applicant, she verified who he was by matching a “receipt” with her paperwork, and testimony regarding a date of birth of October 29, 1949, and a Social Security number ending in 2856, there was no identification of the defendant as the individual who met with Ms. Anderson, nor any evidence that either the date of birth or the Social Security number were connected with the defendant present in court.   Nor was there any identification of the defendant as the individual who took the oath and provided the sworn testimony contained in State's Exhibit 1. [Note:  State's Exhibit 2 is the written application purportedly signed by the defendant and provided to Ms. Anderson, but the defendant is not charged with False Statement in the 2nd degree.]

A motion for judgment of acquittal must be granted if the evidence would not reasonably permit a guilty finding.  Practice Book § 42–40.   In ruling on a motion for judgment of acquittal, the trial court must determine whether a rational trier of fact could find the crime proven beyond a reasonable doubt.   State v. Kirker, 47 Conn.App. 612, 619, cert. denied, 244 Conn. 914 (1998);  State v. Delarosa, 16 Conn.App. 18, 33, (1988).   A determination of whether the evidence could reasonably support a finding of guilt beyond a reasonable doubt does not require this court to “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.'  ․ Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime charged to be proven beyond a reasonable doubt.   This standard establishes the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.”  State v. Sirimanochanh, 26 Conn.App. 625, 640 (1992), rev'd on other grounds, 224 Conn. 656 (1993).

In any criminal case, the burden to prove the defendant guilty of the crime with which he is charged is upon the State.   This means that the State must prove beyond a reasonable doubt each and every element necessary to constitute the crime charged.   The State must prove every element necessary to constitute the crime charged.   If one element of the crime charged is lacking, the fact finder must find the defendant not guilty of that crime.

Viewing the evidence in the light most favorable to the prosecution, the court finds that there is insufficient evidence on two of the essential elements of the crime of perjury, as well as insufficient evidence on the issue of identity from which a rational fact finder could conclude that the essential elements of the crime charged had been proven beyond a reasonable doubt.   Accordingly the defendant's Motion for Judgment of Acquittal is granted.

Dennis, J.

Dennis, Maureen D., J.