Dominic Badaracco Trial
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Transcript of Dominic Badaracco Trial
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1NO.CR12-0263152-S : SUPERIOR COURT
STATE OF CONNECTICUT : JUDICIAL DISTRICT OF FAIRFIELD
v. : AT BRIDGEPORT
DOMINIC BADARACCO : JUNE 28, 2013
JURY INSTRUCTIONS
INTRODUCTION
Members of the jury, you have heard the evidence presented in
this case. It now becomes my duty to instruct you as to the law which
is to be applied to the facts in this case.
READING PREPARED MATERIAL
During these instructions, I will, for the most part, be reading
from prepared material. I do this so that I do not inadvertently give you
an incorrect instruction. So if I lose eye contact with you from time to
time, please bear with me.
FUNCTION OF COURT AND JURY
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It is exclusively the function of the court to state the rules of law
which govern the case, with instructions as to how you are to apply
them. It is your obligation to accept the law as I state it. You must
follow all of my instructions and not single out some and ignore others;
they are all equally important.
You are the sole judges of the facts. It is your duty to find the
facts. You are to recollect and weigh the evidence and form your own
conclusions as to what the ultimate facts are. You may not go outside
the evidence to find the facts. This means that you may not resort to
guesswork, conjecture or suspicion, and you must not be influenced by
any personal likes or dislikes, opinions, prejudices, or sympathy.
The actions of the court during the trial in ruling on motions or
objections by counsel, or in comments to counsel or in questions to
witnesses, or in setting forth the law in these instructions are not to be
taken by you as any indication of the court's opinion as to how you
should determine the issues of fact. If the court has expressed or
intimated any opinion as to the facts, you are not bound by that
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opinion. What the verdict shall be is your sole and exclusive duty and
responsibility.
If I refer to any of the evidence in this charge, and I may do so, it
will be simply for the purposes of illustration and clarification, and you
are not to understand that I intend to emphasize any evidence I
mention or to limit your consideration to that evidence alone. If I omit
reference to any evidence, you will supply it from your recollection. If I
incorrectly state any of the evidence, you will correct my error,
because it is your province to review the evidence and determine the
facts established by it.
PRESUMPTION OF INNOCENCE
In this case, as in all criminal prosecutions, the defendant is
presumed innocent unless or until proven guilty beyond a reasonable
doubt.
That means that at the moment when he was presented before
you for trial, he stood before you free of any bias, prejudice or burden
arising from his position as the accused; that nothing you might know
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or guess about his past should be considered by you at all. Insofar as
you are concerned, he was then innocent and he remains innocent,
until such time as the evidence and matters produced here in the
course of this trial satisfy you beyond a reasonable doubt that he is
guilty.
BURDEN OF PROOF
The burden to prove the defendant guilty of the crime with which
he is charged is upon the state. The defendant does not have to prove
his innocence. This means that the state must prove beyond a
reasonable doubt each and every element necessary to constitute the
crime charged. Whether the burden of proof resting upon the state is
sustained, depends not on the number of witnesses, nor on the
quantity of the testimony, but on the nature and quality of the
testimony.
Please bear in mind that one witness' testimony, however, is
sufficient to convict if you believe it beyond a reasonable doubt and if
it establishes either standing alone or together with any other
testimony, all the elements of the crime beyond a reasonable doubt.
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REASONABLE DOUBT
The state can sustain the burden resting on it only if the evidence
before you establishes the existence of every element of the crimes
charged beyond a reasonable doubt.
What does that mean: Beyond a reasonable doubt?
Now the phrase "reasonable doubt" has no technical or unusual
meaning. You can arrive at the real meaning of it by emphasizing the
word "reasonable." A reasonable doubt means a doubt based upon
reason and common sense. It is a doubt which is something more than
a guess or surmise. It is not a conjecture or a fanciful doubt, or a
doubt raised by one who questions simply for the sake of argument. It
is not hesitation springing from feelings of sympathy or pity for the
accused or members of his family or other persons who might in any
way be affected by your verdict. A reasonable doubt, in other words, is
a real doubt, an honest doubt, a doubt which has its foundation in the
evidence or lack of evidence. It is one for which you can, in your own
mind, conscientiously give a reason.
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Reasonable doubt is the kind of doubt upon which reasonable
persons like yourselves, in the more serious and important affairs in
your own lives, would hesitate to act.
Now, of course, absolute certainty in the affairs of life is almost
never attainable, and the law does not require absolute certainty on
the part of the jury before you return a verdict of guilty. The state
does not have to prove guilt beyond all doubt, or to a mathematical or
absolute certainty.
What the law does require, however, is that after hearing all the
evidence, if there something in that evidence or lack of evidence which
leaves in the minds of the jury, as reasonable men and women, a
reasonable doubt about the guilt of the accused, then the accused
must be given the benefit of that doubt and acquitted.
Proof beyond a reasonable doubt is proof which precludes every
reasonable hypothesis except guilt, is consistent with guilt and is
inconsistent with any other reasonable conclusion. You must, however,
distinguish between a reasonable hypothesis and a possible
hypothesis. A mere possible hypothesis of innocence will not suffice.
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However, if you can, in reason, reconcile all of the facts proved with
any reasonable theory consistent with the innocence of the accused,
then you cannot find him guilty. On the other hand, if you find that the
proven facts do establish the guilt of the accused beyond a reasonable
doubt, then the proper verdict would be guilty.
EVIDENCE
The evidence from which you are to decide what the facts are
consists of:
(1) the sworn testimony of witnesses, both on direct
and cross- examination, regardless of who called the witness;
(2) the exhibits that have been received into evidence;
and
(3) any stipulations, that is, facts to which the lawyers
have agreed.
In reaching your verdict, you should consider all the testimony
and exhibits received into evidence. Certain things are not evidence
and you may not consider them in deciding what the facts are. These
include:
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(1) Arguments and statements by lawyers. The
lawyers are not witnesses. What they have said in their closing
arguments and at other times is intended to help you interpret the
evidence, but it is not evidence. If the facts as you remember them
differ from the way the lawyers have stated them, your memory of
them controls.
(2) Questions and objections by lawyers. Attorneys
have a duty to their clients to object when they believe a question is
improper under the rules of evidence. You should not be influenced by
the objection or the court's ruling on it. In addition, where I have
sustained an objection to a question, you should not speculate as to
what the answer might have been.
(3) Testimony that has been limited, excluded or
stricken. Some testimony and exhibits may have been stricken or
received for limited purposes; where I have given a limiting instruction,
you must follow it.
(4) Anything you may have seen or heard when the
court was not in session. You are to decide the case solely on the
evidence received at trial.
(5) The document called the information that you will
have with you at the time of deliberation. It is merely the formal
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manner of accusing a person of a crime in order to bring him to trial.
You must not consider the information as any evidence of the guilt of
the defendant, or draw any inference of guilt because he has been
charged with a crime.
STIPULATIONS
In this case a stipulation between the parties was introduced to
authenticate and permit the admission into evidence of (1) telephone
records and (2) bank records from Webster Bank. A stipulation is an
agreement between the parties concerning some fact, which you as
the jury are bound to accept as fact during your deliberations. A
stipulation by itself does not, however, establish proof of the element
of the crime beyond a reasonable doubt. .
The stipulations do not include the credibility or the weight you
may give to the exhibits. As with all admitted evidence, the weight of
such evidence is for you to decide.
CIRCUMSTANTIAL AND DIRECT EVIDENCE
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There are, generally speaking, two types of evidence: direct
evidence and circumstantial evidence. I am now going to discuss the
difference between direct and circumstantial evidence.
Direct evidence of an event is the testimony by an eye witness
about what the witness personally saw or heard or did.
Circumstantial evidence is evidence involving inferences
reasonably drawn from proven facts.
I am going to give you a simple example of the difference
between direct and circumstantial evidence. Assume that it is a
December night, around 11:30 p.m., and you are preparing to go to
bed. You look out the window and see that it is snowing. You wake up
the next morning and come into court and testify that at approximately
11:30 p.m. the night before it was snowing in the area of your house.
This is direct evidence of the fact that it snowed at 11:30 the night
before. You saw it snow and you came in and testified to that fact.
Now assume that it is another December night, the weather is
clear and there is no snow on the ground. You go to bed and when you
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wake up the next morning you look out the window and see snow on
the ground and footprints across your front lawn. You come into court
that morning and testify to those facts. The evidence that the night
before there was no snow on the ground and the next morning there
was snow on the ground and footprints in the snow across your front
lawn is direct evidence, your eye witness observation, of those facts.
That direct evidence is itself circumstantial evidence of the fact that
sometime during the night while you were sleeping it snowed, and that
sometime thereafter someone walked across your front lawn.
In deciding this case, you may consider both direct and
circumstantial evidence. The law permits you to give equal weight to
both.
There is no reason to be prejudiced against circumstantial
evidence simply because it is circumstantial evidence. You make
decisions on the basis of circumstantial evidence in the everyday
affairs of life. There is no reason why decisions on circumstantial
evidence should not be made in the courtroom. In fact, proof by
circumstantial evidence may be as conclusive as would be the
testimony of witnesses speaking on the basis of their own observation.
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In passing upon the guilt of an accused person on the basis of
circumstantial evidence, you must be satisfied, first, that certain facts
or circumstances exist; and second, that those facts or circumstances
do beyond a reasonable doubt, lead you to conclude that the crime
was committed by the accused.
Unless the existence of those facts or circumstances leads you,
as reasonable men and women, to only one conclusion, namely, that
the accused is guilty, then, of course, you would not be justified in
finding him guilty.
INFERENCES
You may draw reasonable inferences from the established facts in
this case. The inferences which you draw, however, must not be from
a guess upon the evidence, but they must be from a fact or facts which
the evidence has established. In drawing inferences from established
facts, you should use your reason and common sense. The inferences
which you draw must be logical and reasonable, and any facts,
whether inferred or proven directly, which are essential to proof of an
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element of the crimes charged must be proved beyond a reasonable
doubt.
CREDIBILITY
I now want to discuss the subject of credibility by which I mean
believability of testimony. You have observed the witnesses. The
credibility, the believability, of the witnesses and the weight to be
given to their testimony are matters entirely within your hands. It is
for you alone to determine their credibility. Whether or not you find a
fact proven is not to be determined by the number of witnesses
testifying for or against it. It is the quality, not the quantity, of
testimony which should be controlling. Nor is it necessarily so that
because a witness testifies to a fact and no one contradicts it you are
bound to accept that fact as true. The credibility of the witness and
the truth of the fact is for you to determine.
You may believe all, some or none of any witnesss testimony. In
making that determination, you may consider the following factors: (1)
was the witness able to see, hear or know the things about which the
witness testified; (2) how well was the witness able to recall and
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describe those things; (3) what was the witnesss manner while
testifying; (4) did the witness have an interest in the outcome of the
case or any bias or prejudice concerning any party or matter involved
in the case; (5) how reasonable was the witnesss testimony
considered in light of all the evidence in the case; and (6) was the
witnesss testimony contradicted by what the witness has said or did at
another time or by testimony of other witnesses or by other evidence
that you do believe.
ACCEPTING TRUTH OF TESTIMONY
With each witness, you should consider his or her ability to
observe facts correctly, recall them, and relate them to you truly and
accurately. You should, in short, size up the witnesses and make your
own judgment as to their credibility and decide what portion -- all,
some or none -- of any particular witness' you will believe based on
these principles. You should harmonize the evidence as far as it can
reasonably be done. You should use all your experience, your
knowledge of human nature and of the motives that influence and
control human conduct, and you test the evidence against that
knowledge.
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In short, you should bring to bear upon the testimony of the
witnesses the same considerations and use the same sound judgment
you apply to questions of truth and veracity as they present
themselves to you in everyday life.
You are entitled to accept any testimony which you believe to be
true, and to reject, either wholly or in part, the testimony of any
witness you believe has testified untruthfully or erroneously. The
credit that you will give to the testimony offered is, as I have told you,
something which you alone must determine. Where a witness testifies
inaccurately, you should keep that in mind and scrutinize the whole
testimony of that witness. The significance you attach to it may vary
more or less with the particular fact as to which the inaccuracy existed
or with the surrounding circumstances. You should bear in mind that
people sometimes forget things. On the other hand, if a witness has
intentionally testified falsely, you should carefully consider whether
you should rely on any of the witnesss testimony. You may reject the
testimony, but you are not required to do so. It is up to you to accept
or reject all or any part of any witness' testimony. If you find that a
witness has been inaccurate in one respect, remember it in judging the
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rest of his testimony. Give to it that weight which your own mind leads
you to think it ought to have, and which you would attach to it in the
ordinary affairs of life, where someone came to you in a matter and
you found that in some particular he was inaccurate.
INCONSISTENT STATEMENTS
Evidence has been presented that a witness, Robert Brunetti,
made statements outside of court that are inconsistent with his trial
testimony. You should consider this evidence only as it relates to the
credibility of the witnesss testimony, not as substantive evidence. In
other words, consider such evidence as you would any other evidence
of inconsistent conduct in determining the weight to be given to the
testimony of the witness in court.
IMPEACHMENT WHELAN RULE
In evidence as states exhibit 14, is a prior statement of Ronald
Richter in the form of a recorded telephone call with Robert Brunetti.
To the extent, if at all, you find such statement inconsistent with the
Ronald Richters trial testimony; you may give such inconsistency the
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weight to which you feel it is entitled in determining the witness's
credibility here in court. You may also use such statement for the truth
of its content and find facts from it.
TESTIMONY OF POLICE / COURT OFFICIALS
As you will remember, there was testimony here from an
inspector with the Division of Criminal Justice and a judge. The
testimony of an inspector or judge is entitled to no special or exclusive
sanctity merely because it comes from a person with that position.
Like a police officer, an inspector or judge who takes the witness stand
subjects his testimony to the same tests that any other witness does.
You should not automatically believe or disbelieve them merely
because of their positions. You should weigh and balance their
testimony just as carefully as you would weigh the testimony of any
other witness.
EXPERT TESTIMONY
I am going to talk for a moment about opinion evidence, expert
testimony.
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In this case, two witnesses took the stand and stated to you not
merely what they knew as facts, but they gave opinions as experts.
These were:
Dr. Bloch ENT physician
Richard Seman -- Appraiser
No matter what may be the expertise of a particular witness who
states to you an opinion upon a fact in a case that opinion is subject to
review by you. It is in no way binding upon you. It is for you to
consider along with the other circumstances in the case, and using
your best judgment, to determine whether or not you will give any
weight to it, and if so, what weight you will give to it.
In weighing and considering the testimony of an expert you
should apply to him/her the same considerations of credibility that you
apply to any other witness. In deciding the weight to be accorded to
the testimony of an expert witness, you should also consider his/her
education, experience, ability in the particular field of knowledge and
any other material facts of the sort developed in the course of the
testimony. You should consider the proof, or lack of proof, and the
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completeness, or lack of completeness, of any facts considered by the
expert in forming his/her opinion or reaching his/her conclusion. You
should recall the testimony of the expert witness in the case in the
light of the principles that I have just stated to you.
DEFENDANT NOT TESTIFYING
As you know, the defendant, Dominic Badaracco, did not testify in
this case. In a criminal trial, the individual charged with the crime is
under no duty to testify on his own behalf. You may draw no
unfavorable inference from the defendant's decision not to testify.
The law does not compel a defendant to take the witness stand
and testify and no presumption of guilt may be raised from the fact
that a defendant decides not to testify. You must not permit such fact
to weigh in the slightest degree against the defendant, nor should it
enter into your discussions or deliberations.
A defendant is not required to establish his innocence, because
as I told you earlier, he is presumed innocent. He does not have to
produce any evidence whatsoever if he does not choose to do so and
you can not hold it against him in any way.
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As I have already told you, the burden is on the state to prove the
defendant guilty beyond a reasonable doubt. If the state fails, a
defendant has the right to rely on that failure and, of right must be
found not guilty.
COUNT ONE
BRIBERY
( 53a-147)
[Read bribery count]
The defendant is charged in count one with bribery. As relevant
here, the statute defining this offense reads in pertinent part as
follows:
a person is guilty of bribery if he offers a public servant any
benefit as consideration for the recipient's decision, opinion or
recommendation as a public servant.
The essence of the crime of bribery is the voluntary giving, or
offering to give, something of monetary value to a public servant to
influence the performance of official duty.
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For you to find the defendant guilty of this charge, the state must
prove the following elements beyond a reasonable doubt:
Element 1 - Benefit
The first element is that the defendant offered a benefit.
"Benefit" means a monetary advantage, or anything regarded by the
beneficiary as a monetary advantage, including benefit to any person
or entity in whose welfare the beneficiary is interested. In this case,
the state alleges the benefit to be money.
Element 2 - To public servant
The second element is that at the time that the benefit was
offered, the person who was to receive that benefit was a public
servant. A "public servant" is an officer or employee of government or
a quasi-public agency, elected or appointed, and any person
participating as adviser, consultant or otherwise, paid or unpaid, in
performing a governmental function. In this case, the state alleges the
public servant to be Superior Court Judge Robert Brunetti.
Element 3 - For consideration
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The third element is that the offered benefit was consideration for
the recipient's decision, opinion or recommendation as a public
servant. The state need not, however, show that the public servant
could actually have rendered the decision, opinion or recommendation
requested. Similarly, the state need not show that the public servant
officially took any action in response to the offer of a benefit.
In this case, the state alleges that the benefit was offered for
Judge Brunettis help in connection with a grand jury investigation.
Conclusion
In summary, the state must prove beyond a reasonable doubt
that 1) the defendant offered a benefit, 2) to a public servant, and 3) in
consideration for the recipient's decision, opinion or recommendation
as a public servant.
If you unanimously find that the state has proved beyond a
reasonable doubt each of the elements of the crime of bribery, then
you shall find the defendant guilty. On the other hand, if you
unanimously find that the state has failed to prove beyond a
reasonable doubt any of the elements, you shall then find the
defendant not guilty.
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CONCLUDING REMARKS
Shortly, you will retire for your deliberations. You should not
begin to deliberate until you have received the Information and
exhibits and you should only deliberate in the jury room when all of the
jurors are present.
When you do retire and deliberate, please be mindful of the
following points.
IRRELEVANCE OF PUNISHMENT
You should not be concerned in any way with the punishment to
be imposed in this case in the event of a conviction. That is a matter
exclusively within the province of the court under the limitations and
restrictions imposed by statute. You are to find the fact of guilt or
innocence of the accused uninfluenced by the probable punishment or
consequences which follow conviction.
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Nor should you, the jury, be influenced by any sympathy for the
accused, or any other person who might be affected by your decision.
DUTIES UPON RETIRING
In conclusion, I impress upon you that you are duty bound as
jurors to apply the law as I outlined it; to determine the facts on the
basis of the evidence as it has been presented; and then to render a
verdict fairly, uprightly and without any prejudice. When you reach a
verdict, it must be unanimous. That is, for each count all six of you
must agree on the verdict.
Each of you takes into the deliberation room your individual
experience and wisdom. Your task is to pool that experience and
wisdom. You do that by giving your views and listening to the views of
others. Despite that, in the last analysis, it is your individual duty to
make up your own mind, and to decide this case upon the basis of your
own individual judgment and conscience.
The defendant justly relies upon you to carefully consider his
claims, to carefully consider all of the evidence and to find him not
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Likewise, if you wish to make a request to hear any of the
testimony again, as you have a right to, put that request in writing.
Please try to be as specific as possible.
When you have reached a verdict, inform the marshal simply that
you have reached a verdict, but do not tell him what your verdict is or
put it in writing. You will be asked to return to the courtroom to
announce your verdict. Your foreperson will announce your verdict
orally and the rest of the panel will be asked whether that is your
verdict.
With that, the six regular members of the jury may retire to the
jury room. The two alternates should remain here.
EXCUSE ALTERNATES
Thank you for your attendance. You have served an extremely
important function. Do not discuss the substance of the case or
speculate on the deliberations until you know that a verdict has been
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returned. While it is unusual, alternate jurors are sometimes called
upon to take the place of a juror during deliberations.
EXHIBITS
Counsel should review all exhibits with the clerk and then
stipulate that all exhibits are in order so that they may be brought into
jury room.
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