State v. CarpenterState v. Carpenter
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The defendant appeals from the judgment of conviction rendered after a jury trial. The charges against the defendant arose out of six burglaries committed in Stamford between late January and early March, 1986, and are contained in two informations, alleging seventeen separate crimes. The first information is based on the following six incidents: (1) burglary in the third degree in violation of
Four other charges arose out of this last incident and are the subject of the second information. The defendant was apprehended in a motor vehicle on March 3, 1986, while in possession of one of the twelve stolen weapons. He was charged with stealing a firearm in violation of
The state moved to consolidate the informations because the crimes were similar and the two informations were connected. The court, Bingham, J., granted the state’s motion, and, subsequently, the defendant was tried before a jury of six. The defendant moved for acquittal on the two counts of altering an identification mark on a weapon in violation of General Stat
The defendant claims that the trial court erred (1) in failing to comply with the requirements of
The jury could reasonably have found certain relevant facts. During the winter of 1986, the defendant and his accomplice, Larry Briscoe, engaged in a series of burglaries in the Stamford area. All burglaries took place in the early morning hours, and involved small family businesses. All of the burglarized stores had steel gates with padlocks to secure their entrances, and a set of bolt cutters were used for the illegal entries. The burglaries spanned a period of a little over one month. The stolen items consisted primarily of cash, usually coins, cigarettes, lottery tickets and liquor, and most of the break-ins involved vandalism. The pair’s final break-in before their arrest was of Moss’ Gun and Tackle Shop. Briscoe testified that a few days earlier he had gone into the gun shop to purchase a firing pin for his weapon, and noticed that the shop could be easily burglarized. On March 1,1986, the defendant and Briscoe used bolt cutters to open the steel gate that blocked the entrance to the store above, as well as to the gun shop. They took twelve guns valued at over $4000. That evening, the defendant stopped at the home of a friend, and sold him two of the guns he had just taken.
On March 3, 1986, the defendant asked another friend for a ride home. En route, they were stopped by police who had a warrant for the defendant’s arrest.
In his first claim of error, the defendant alleges that the trial court erred in failing to instruct the jury properly pursuant to
Our analysis of the defendant’s claim “necessarily involves three stages of inquiry. ‘ “[1] Is the defendant entitled to raise this claim when he did not raise it at trial? [2] If this claim is properly here, was the instruction given by the trial court erroneous? [3] If the instruction was in error, was the error harmless?” ’ State v. Cobb, 199 Conn. 322, 324, 507 A.2d 457 (1986), quoting State v. Sinclair, 197 Conn. 574, 582, 500 A.2d 539 (1985).” State v. Thurman, 10 Conn. App. 302, 305, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987).
The defendant’s challenge to the trial court’s failure to include the statutorily mandated instruction is twofold. First, he claims that such failure resulted in a due process violation implicating the fairness of his trial. In addition, he alleges that the omission of the instruction violated his rights under
Despite the state’s argument to the contrary, the defendant’s claim is also reviewable and properly before this court under the plain error doctrine. See id., 308-10, and cases cited therein; see also State v. Thompson, supra, 494. “The provisions of
The trial court instructed the jury: “Now, the fact that [the defendant] has not testified in this case has no significance whatsoever so far as your determination of the case is concerned and you may not consider that fact in any way in your deliberations. The burden
We must now determine whether the error was harmless. Cases that have utilized a harmless error analysis are those in which a “no unfavorable inference” instruction was given, but which did not follow the exact wording of the statute. State v. Thurman, supra, 310 and n.6. In those cases, minor deviations from the precise language provided in the statute that did not change the substantive meaning of the statute were held to be harmless error. Id.
The court stated that “no significance whatsoever” could be ascribed to the defendant’s failure to testify and that the jury “may not consider that fact in any way in your deliberations.” We must determine whether that charge conveyed the substantive meaning of the statute and whether there was a reasonable possibility that the jury was misled by it.
In State v. Cobb, supra, the Supreme Court held that the trial court’s charge to the jury, that it could draw “no inference” from the defendant’s failure to testify, was harmless error in that there was no reasonable possibility that the jury was misled and that the charge was sufficient to convey the substantive meaning of
In State v. Cobb, supra, the court stated that a “no inference” charge would preclude a jury from drawing an unfavorable inference because “ ‘[a]n instruction prohibiting any inference would also preclude an unfavorable inference.’ State v. Marra, 195
We further conclude that there was no reasonable possibility that the jury was misled by the court’s charge. The meaning of the term “significance” is commonly understood, and the court emphasized that the jury could not consider “[the defendant’s failure to testify] in any way in your deliberations.”
The error of the trial court in not following the prescribed statutory language was, therefore, harmless in the context of this case.
The defendant next claims that the trial court failed to instruct the jury adequately concerning the danger and harm of convicting the defendant solely on the uncorroborated testimony of a self-confessed accomplice. Although the defendant did not request an instruction on the subject or object or except to the charge as given, he claims review under the plain error doctrine.
The court here instructed the jury to consider the fact that the defendant had an accomplice. Although the testimony of an accomplice may require heightened scrutiny, there is no rule of law that such testimony requires corroboration before there may be a conviction, as the defendant claims. See State v. Shindell, 195 Conn. 128, 141-43, 486 A.2d 637 (1985). The defendant has not established that his claim meets the standard for review under the plain error doctrine.
The defendant next claims that the trial court failed to admonish the jury properly concerning a prior criminal conviction of the defendant and to consider the evidence relating to each charge separately. Again, although the defendant concedes that he failed to request a charge or except to the charge as given, he claims that this court may review these claims under State v. Evans, supra. The defendant has essentially reiterated the same claims in his assertion that the trial court erred in granting the state’s motion for joinder of the two informations. We will address those claims in relation to that issue, infra.
The defendant’s next set of claims relates to the sufficiency of the evidence. The defendant first claims that all of the “firearm” counts must be dismissed because the state failed to prove that the firearms in question were capable of discharging a shot.
The two informations charged the defendant with four separate crimes involving a weapon. Two charges involved
The defendant principally relies upon
“ ‘The issue of sufficiency of evidence and its appropriate standard of review have been analyzed countless times by both this court and our Supreme Court.’ State v. Iovieno, 14 Conn. App. 710, 712-13, 543 A.2d 766 (1988). ‘ “The issue is whether the jury could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.” State v. Bember, 183 Conn. 394, 397, 439 A.2d 387 (1981).’ ” State v. Ruth, 16 Conn. App. 148, 153, 547 A.2d 548 (1988), cert. denied, 209 Conn. 827, 552 A.2d 434 (1989).
Operability of the firearms was an essential element of the crimes charged under
There was ample evidence from which the jury could infer that operability was proven beyond a reasonable doubt. State v. Pina, 185 Conn. 473, 477, 440 A.2d 962 (1981). Briscoe testified that one of the weapons had been fired by him at a cemetery. The mother of a purchaser of two of the guns testified that her son asked her to buy bullets for the guns and, when she refused, that the guns remained in the household, unused, until they were seized by the police. Furthermore, the weapons were entered as full exhibits and made available to the jurors for examination. We hold, therefore, that there was sufficient evidence for the jury to find beyond a reasonable doubt that the weapons were operable.
In his next claim, the defendant contends that there was insufficient evidence demonstrating that the defendant entered or remained at Jesus’ Grocery Store without permission. In connection with this incident, the defendant was charged with burglary in the third degree, in violation of
The defendant supports his contention that there was insufficient evidence demonstrating that he entered Jesus’ Grocery Store without permission by the fact that the store owner did not specifically testify that the defendant did not have permission to enter the store. The defendant’s claim ignores the substantial evidence from which the jury could infer that the owner did not give the defendant permission to enter the store.
At trial, the owner of Jesus’ Grocery Store testified that he had left the store locked and barred with a steel gate the night before the burglary. The padlocks that secured the steel gate had been cut and the gate had been raised. Money had been taken from the cash register, and money that had been concealed in the freezer
The defendant’s next claim relates to the trial court’s granting of the state’s motion for joinder pursuant to
“The judicial authority may . . . order that two or more indictments or informations or both, whether against the same defendant or different defendants, be tried together.”
“Substantial prejudice does not necessarily result from a denial of severance even where evidence of one offense would not have been admissible at a separate trial involving the second offense. A trial court will not have manifestly abused its discretion in denying severance if the state’s orderly presentation of evidence has prevented confusion of the jury and has enabled the jury to consider the evidence relevant to each charge separately and distinctly.” State v. Pollitt, 205 Conn. 61, 68, 530 A.2d 155 (1987).
In State v. Banta, we adopted factors derived from those federal decisions that have considered the issue of whether a trial court should have ordered a separate trial when the analogous federal crime of being a felon in possession of a firearm; see 18 U.S.C. app. § 1202;
The record in this case leads us to conclude that any prejudicial effect on the defendant by the joinder of the two informations was minimal. The defendant’s conviction was presented to the jury, by a stipulation of the parties, through the presentment of a copy of the defendant’s conviction for robbery in the first degree. The court ruled that the prior felony could not be put into evidence until the end of the trial in order to avoid possible confusion. The defendant did not object to the introduction of the evidence of conviction or request a limiting instruction. The state did not use the defendant’s prior conviction for dramatic or inflammatory effect and the case was such that the jury is unlikely to have been swayed by passions.
Furthermore, our review of the transcript reveals that the state’s evidence was straightforward in nature, was not complex and was presented in an orderly manner. We do not agree that the possibility for jury confusion existed. See State v. Cruz, 18 Conn. App. 482, 487, 559 A.2d 231 (1989). Finally, the evidence against the defendant was neither sparse nor unconvincing. We conclude that the trial court gave adequate consideration to the potential for prejudice caused by the joinder of the two informations, and that the defendant has failed to meet his heavy burden of demonstrating that substantial prejudice resulted from the joinder.
The defendant’s last claim is that the trial court abused its discretion in sentencing the defendant because it used inflexible sentencing guidelines. The court stated that it did not believe in concurrent sentences, and, with one exception, it gave the defendant consecutive sentences for the crimes for which he was
There is error in part, the judgment as to the second count of stealing a firearm in violation of
In this opinion the other judges concurred.
Notes
For the first time on appeal the state contends that the trial court imposed an illegal sentence for criminal possession of a firearm because the defendant was sentenced to one year imprisonment when the minimum sentence provided by
The state conceded the rectitude of the defendant’s claim of double jeopardy and requested this court to vacate the judgment of conviction on the second count of stealing a firearm in violation of
The state concedes that the defendant was illegally sentenced for his conviction on the fourth count of the first information of larceny in the fifth degree for the unlawful taking of goods from Stone’s Variety Store on February 8, 1986. The trial court sentenced the defendant to one year for this misdemeanor. Larceny in the fifth degree is a class B misdemeanor.