Expert Commentary

Coconspirator's Civil Testimony Convicts Arsonist

Criminals should never trust other criminals. This was shown to be the case in State of Connecticut v. Azevedo, 178 Conn. App. 671 (Dec. 19, 2017), where the Connecticut Court of Appeal was called on to reverse an arson conviction.


Claims Practices
January 2018

Arson is a serious crime that often injures or kills the innocent. Whether set to defraud an insurer or just in spite, it cannot be allowed to succeed without serious punishment. When committing a serious crime like arson, it is best to have no coconspirators or witnesses. There is no honor among thieves. Amanda Azevedo found out why when statements made by her coconspirator to police officers and in a deposition at a civil trial guaranteed her conviction.

Facts of the Case

Azevedo was convicted of the crimes of arson in the first degree, attempt to commit insurance fraud, attempt to commit larceny in the first degree, conspiracy to commit arson in the first degree, conspiracy to commit insurance fraud, and conspiracy to commit larceny in the first degree in connection with an arson that destroyed her home. She appealed her conviction.

Azevedo claimed that certain out-of-court statements that D, her coconspirator, had made to an insurance company fire investigator and to two police officers and certain testimony that D had given in a deposition in a related civil action should not have been admitted into evidence because they constituted inadmissible hearsay and violated her Sixth Amendment right to confrontation.

D had told the investigator about the defendant’s actions and whereabouts on the morning of the fire and testified similarly in the deposition. After a memorial service for the defendant's late husband, D asked to speak to the police officers privately and told them that the defendant was responsible for setting her house on fire and how she set the fire, that he was present while items were being removed from the defendant’s home prior to the fire, and that there was a video of the items being removed.

The trial court determined on the basis of D's deposition testimony and statements to the investigator that the state had established by a fair preponderance of the evidence that there was an existence of a conspiracy between D and the defendant and, therefore, that D's deposition testimony and statements to the investigator were admissible under the Connecticut Code of Evidence as statements of a coconspirator in furtherance of a conspiracy. The trial court further determined that D's statements to the police officers inculpated both himself and the defendant and, thus, were admissible as dual inculpatory statements.

The Appellate Court Decision

The defendant could not prevail on her claim that the trial court improperly admitted into evidence D's deposition testimony and statements to the investigator as statements of a coconspirator in furtherance of a conspiracy. Although that court admitted D's statements and deposition testimony for their substantive use, the statements were not admitted to prove their contents but as verbal acts in furtherance of a conspiracy. Therefore, because the statements and testimony were not testimonial in nature, the defendant's right of confrontation was not implicated. Moreover, in light of the extrinsic evidence of the conspiracy presented by the state, which included evidence of discrepancies concerning the defendant's activities and whereabouts on the morning of the fire, and showing D's presence at the defendant's home days prior to the fire when the defendant's belongings were removed from the home and that D wanted the defendant's husband to receive the insurance proceeds from the fire, it was not clearly erroneous for the trial court to conclude that the state had proven the existence of a conspiracy between D and the defendant by a fair preponderance of the evidence. This allowed the jury to consider D's deposition testimony and statements as evidence of the continuing conspiracy.

The trial court properly characterized D's statements to the police officers as dual inculpatory statements. D's statements to the police officers reasonably could be characterized as inculpating both himself and the defendant, as D reasonably understood that his statements were against his penal interest in that they implicated him in the conspiracy to commit insurance fraud. D was unavailable to testify at the defendant's trial in that he would have invoked his Fifth Amendment right against self-incrimination had he been called to testify. His statements presented sufficient indicia of reliability. Moreover, given the substantial amount of admissible evidence adduced at trial that supported the defendant's conviction, any possible error in the court's admission of D's statements to the officers as dual inculpatory statements was harmless beyond a reasonable doubt.

"In Connecticut, an out-of-court statement offered to prove the truth of the matter asserted is hearsay.… If such a statement is offered for a purpose other than establishing the truth of the matters contained in the statement, it is not hearsay." (Citation omitted.) State v. Esposito, 223 Conn. 299, 315, 613 A.2d 242 (1992). 

The defendant bears the responsibility of demonstrating that her claim is indeed a violation of a fundamental constitutional right. She failed.

Conclusion

Azevedo made two serious errors: she attempted arson for profit without the knowledge or skill to do the crime successfully, and she trusted a coconspirator who divulged the scheme to the police, an insurance investigator, and in a civil deposition. The evidence from the coconspirator was not presented as evidence of the crime or to prove the truth of the matter asserted but was presented as an admission of the crime by the coconspirator, which allowed the jury to understand how Azevedo was responsible for the crime. Thanks to a wise Connecticut court, she remains in jail.


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