State v. BeebeState v. Beebe
- Reporters:
- , ,
- Before:
- Borden
Opinion
The defendant, Derek Richard Beebe, appeals from the judgment of conviction, rendered after a jury trial, of two counts of attempt to commit robbery
in the first degree in violation of
The defendant was charged by way of an amended long form information with attempt to commit robbery in the first degree in violation of
On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. On the afternoon of September 10, 2007, the defendant was gathered with a group of acquaintances at the Xtra Mart convenience store in Somers, which was located directly across the street from the China City Restaurant. While the defendant was at the Xtra Mart store, one of his acquaintances, namely, Jesse Morse, observed the defendant pull up his shirt and display a black gun tucked into his waistband. The defendant and other members of the group, including Morse, then proceeded to the Mill Pond parking area a short distance away. While at the parking area, Morse witnessed the defendant grab a pair of sunglasses and a hooded sweatshirt from another person’s vehicle, put those items on, and walk toward the China City Restaurant.
Ling Jing Yang was working in the China City Restaurant on the afternoon of September 10, 2007, when the defendant, dressed in dark clothes and sunglasses, entered and placed an order for food. Yang turned around to calculate his order, and when she tinned back to face the defendant, he lifted up his shirt, displayed the gun in his waistband and said, “give me money.” Yang then loudly called for her husband, Kevin Wu, who was in the back of the restaurant. Wu opened the back door of the restaurant and observed a man wearing dark clothes running away.
Jason Ramsey, another acquaintance of the defendant, was in the Mill Pond parking area when he witnessed the defendant run through the back of a field, hop a fence, enter the parking area and state that “he needed a ride to get out of there.” The defendant and Ramsey got into Ramsey’s truck and drove away. As they proceeded up the road, the defendant told Ramsey that he had tried to rob the China City Restaurant “and that the lady had screamed so loud . . . that he just ran out.” The defendant also showed Ramsey a black gun that he had wrapped up in a T-shirt. Ramsey then dropped the defendant off at a Mend’s house and drove straight home to drop his truck off because he “was scared to drive [his] truck back down to the Mill Pond [parking area] because . . . people had seen [him and the defendant] drive away together.”
Later that day, the defendant met with his friend, Erica L. Dollak. Dollak subsequently gave a statement to the police, admitted as substantive evidence pursuant to State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), which described the encounter she had with the defendant following the incident at the China City Restaurant. Dollak described the defendant’s demeanor as “very scared,” although “[h]e was pretty sure . . . that he wouldn’t be recognized because he was wearing sunglasses, a baseball hat and a hooded sweatshirt.” The defendant told Dollak that he went into the restaurant wearing that disguise but left because of a “bloodcurdling scream” let out from the woman working in the restaurant. Following the loud scream, the defendant “ran out of there” and proceeded to the Mill Pond parking area. Additional facts will be set forth as necessary.
I
The defendant first raises an unpreserved constitutional challenge to the court’s jury instructions. Specifically, he claims that the court improperly instructed the jury that its findings with respect to the defendant’s guilt or innocence should not be influenced by the potential punishment that may flow from a guilty verdict. 5 The defendant argues, in essence, that by instructing the jury as to the irrelevance of punishment, the court “undermined the state’s burden imposed by the due process guarantees of the federal and state constitutions of proving him guilty beyond reasonable doubt.” Conceding that he did not preserve this claim at trial, the defendant now seeks to prevail pursuant to the doctrine set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). 6 Our careful review of the record, however, reveals that the defendant implicitly waived his instructional error claim; therefore, his claim fails to satisfy Golding’s third prong. See State v.Kitchens, 299 Conn. 447, 467, 10 A.3d942 (2011).
The following additional facts are relevant to our resolution of the defendant’s claim. On the evening of June 30, 2009, the court sent an e-mail to both parties that included a working draft of its final charge. The draft included the irrelevance of punishment instruction that is now challenged on appeal. On the morning of July 1, 2009, the court indicated to the parties that it wanted to have a charging conference on the record and asked whether the prosecutor and defense counsel had received the electronic draft of the final charge. Both responded in the affirmative. Later that day, at the charging conference, the court indicated that it was going to make two changes to the draft charge, both of which were unrelated to the irrelevance of punishment instruction.
7
The next day, the court noted on the record that that morning it had again reviewed the proposed final charge with counsel for both parties. Following closing arguments that day, the court issued its instructions to the jury, which included an irrelevance of punishment instruction that was a virtual verbatim reproduction of the draft instruction provided to the parties. At the conclusion of its charge, the court inquired of defense counsel whether he had any objections or other comments concerning the instructions, to which he answered in the negative.
“It is well established in Connecticut that unpreserved claims of improper jury instructions are reviewable under Golding unless they have been . . . implicitly waived.” Id., 468. As our Supreme Court explained in Kitchens, “Connecticut courts have deemed a claim of instructional error implicitly waived when the defense failed to take exception to, and acquiesced in, the jury instructions following one or more opportunities to review them.” Id., 480. Accordingly, “when the trial court provides counsel with a copy of the proposed jury instructions, allows a meaningful opportunity for their review, solicits comments from counsel regarding changes or modifications and counsel affirmatively accepts the instructions proposed or given, the defendant may be deemed to have knowledge of any potential flaws therein and to have waived implicitly the constitutional right to challenge the instructions on direct appeal.” Id., 482-83. In State v. Mungroo, 299 Conn. 667, 676, 11 A.3d 132 (2011), our Supreme Court elaborated on its holding in Kitchens, emphasizing that the “opportunity for meaningful review and discussion can give rise to a determination that a defendant has implicitly waived his or her constitutional right to challenge the instructions on direct appeal. . . . Actual discussion of the instruction later challenged is not required.” (Citation omitted; emphasis in original.)
In the present case, we conclude, consistent with our Supreme Court’s recent waiver jurisprudence; see, e.g., id., 667;
State
v.
Akande,
299 Conn. 551, 11 A.3d 140 (2011);
State
v.
Kitchens,
supra, 299 Conn. 447; that the defendant implicitly waived his instructional error
claim. The underlying record illustrates that the court provided defense counsel with a copy of the draft jury charge and afforded counsel multiple opportunities to review and to raise objections to the language set forth in the instructions before the instructions were delivered to the jury. See
State
v.
Akande,
supra, 561 (defense counsel’s review of supplemental instruction overnight “in a deliberate manner without undue time constraints” provided meaningful opportunity to review proposed instructions). During the charging conference, the court solicited comments from defense counsel regarding modifications to the proposed instructions and, absent objections unrelated to the irrelevance of punishment instruction, counsel affirmatively accepted the instructions now challenged on appeal. “In sum, defense counsel had meaningful and multiple opportunities to review the
II
The defendant next claims that the evidence was insufficient to support his conviction of attempt to commit robbery while using or threatening the use of a dangerous instrument in violation of
As set forth previously, the court merged the defendant’s attempted robbery conviction in violation of
In
State
v.
Longo,
106 Conn. App. 701, 943 A.2d 488 (2008), this court was presented with a similar sufficiency of the evidence challenge directed at the merger of a conviction under two subdivisions of the same statute. Although
Longo
involved convictions for operating a motor vehicle while under the influence of intoxicating liquor, its reasoning is instructive. In
Longo,
the defendant was charged with and convicted of driving under the influence in violation of
We conclude that this rationale applies with equal force to the present circumstances. It is undisputed that the court merged the defendant’s attempted robbery conviction in violation of
One final comment. The plaintiff contends that our Supreme Court’s holding in State v. Chicano, 216 Conn. 699, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991), warrants a different conclusion. In Chicano, our Supreme Court determined that the defendant’s double jeopardy rights in that case were violated by his conviction of, and sentencing for, both felony murder and manslaughter in the first degree, inasmuch as the latter crime is a lesser included offense of the former crime. Id., 721. The court, thereafter, addressed the issue of the appropriate form of the remand when a trial court has imposed multiple punishments for the same crime. Id., 721-22. Specifically, the court examined whether both the sentence and the conviction for the lesser offense should be vacated, or if only the sentence should be vacated with the convictions being combined into a compound offense. Id., 722-24. Consistent with the approach of the United States Court of Appeals for the Second Circuit, our Supreme Court concluded that the proper procedure when a court has imposed multiple punishments for the same offense is to vacate the additional sentence only and to combine the conviction of the two offenses into a compound offense. Id., 725. Accordingly, the court noted that if the conviction on the greater offense is “later invalidated for any reason and the defect at issue does not affect the [conviction]” on the lesser included offense, the conviction on the lesser included offense “would be resuscitated . . . .” Id.
The judgment is affirmed.
In this opinion the other judges concurred.
Notes
The defendant takes issue with a portion of the court’s final charge to the jury, in which it instructed: “Now, you should not be concerned in any way with the punishment to be imposed in this case in the event of a guilty verdict. That is a matter exclusively within my province under the limitations and restrictions imposed upon me by the law. You are to find the accused guilty or not guilty uninfluenced by the probable punishment or consequences that would follow a conviction.”
Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.
Specifically, the court modified the instructions to reflect the state’s filing of a substitute information and to include a consciousness of guilt instruction.