13 Conn. App. 667 | Conn. App. Ct. | 1988
The defendant was convicted after a trial to the court. He appeals from the judgment rendered.
The defendant raises two issues on appeal: (1) that his conviction of risk of injury to a minor caused him
The defendant was tried on a four count information charging him: (1) with risk of injury to a minor in violation of General Statutes § 53-21;
I
The trial court heard testimony that the victim was a ten year old female child at the time of the trial in April of 1986. On the morning of August 30,1985, the victim was at home alone in her mother’s apartment. The defendant, an acquaintance of the victim’s mother,
The trial court found from the evidence that the defendant unlawfully caused a child under sixteen years of age to be placed in a situation that was likely to injure her health, that he committed an act likely to injure her health and that he was guilty of risk of injury. The trial court also found from the testimony of the neighbor and from the hospital records introduced into evidence that there was an intent to cause physical injury and that physical injury was caused. It, therefore, found the defendant guilty of assault in the third degree. The trial court further found from the testimony of the victim that she was restrained, and from the neighbor’s testimony that she was trying to get the victim out of the apartment and that the defendant held the victim
Subsequently, the defendant moved the trial court to articulate its findings pertaining to the risk of injury charge. The defendant posed four questions by which he sought to determine whether he had committed an act likely to injure the health of the victim, whether he had caused or permitted a child under sixteen years of age to be placed in a situation likely to injure her health, and what he had done in each instance. The court responded affirmatively and referred to pages in the transcript containing the victim’s testimony about the various assaults on her person and the restraint of her person, and to testimony by the neighbor and a policeman describing the restraint of the victim and the marks visible on the person of the victim.
The defendant acknowledges that he did not raise the issue of double jeopardy before or at trial by way of a motion to dismiss or consolidate. Nevertheless, he asserts that this claim is reviewable under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). A claim that a conviction violates a defendant’s right not to be punished twice for the same offense as guaranteed by the double jeopardy clause involves a fundamental right which is wholly reviewable on the record. State v. McCall, 187 Conn. 73, 89-90, 444 A.2d 896 (1982).
In any double jeopardy analysis, the first issue to be resolved is whether the acts involved arise out of the “same act or transaction.” If this issue is answered
With respect to the claim that risk of injury to a minor, as charged, is a lesser included offense of assault in the third degree, State v. Trujillo, 12 Conn. App. 320, 334-36, 531 A.2d 142 (1987), is dispositive. In Trujillo, the defendant was charged with assault in the second degree, in violation of General Statutes § 53a-60, and risk of injury to a minor in violation of General Statutes § 53-21. Although the defendant in this case was charged with assault in the third degree, the distinction is not important for this purpose because both assault in the second degree as charged in Trujillo and assault in the third degree as charged here require proof of intent to cause injury to another and proof of injury to another. The analysis in Trujillo is therefore apposite. Even if the assault charge and the risk of injury charge arose out of the same act, a fact which is not conceded by the state, the elements of the two charges are distinct and dissimilar and are not the same offense for double jeopardy purposes. State v. Trujillo,
We apply a similar analysis with respect to the claim that risk of injury to a minor, as charged, is a lesser included offense of unlawful restraint in the first degree. To convict the defendant of risk of injury to a minor, as charged, the state was required to prove that the defendant did acts likely to impair the health of a child under the age of sixteen. To convict the defendant of unlawful restraint in the first degree as charged, the state was required to prove that the defendant restrained the victim under circumstances which exposed her to a substantial risk of physical injury and that the defendant entertained the specific intent to restrain the victim. General Statutes § 53a-91 (1). It is apparent that each of these offenses, as charged, required proof of elements which the other did not require.
We find no error as to the double jeopardy claim.
II
The defendant did not raise his claim in the trial court that his waiver of his right to a trial by jury was invalid on the grounds that it was not knowingly and voluntarily made. He asserts that this claim is reviewable under State v. Evans, supra. He also argues on appeal that his waiver was invalid because the trial court did not follow the procedure set forth in General Statutes § 54-82 (b) and Practice Book § 839.
We agree that a claim of an ineffective waiver of the right to a trial by jury implicates a fundamental constitutional right. State v. Marino, 190 Conn. 639, 642, 462 A.2d 1021 (1983). Accordingly, we review the record to determine whether the defendant has been deprived of this right. We do not consider the defendant’s claim as it implicates our rules of practice and statutes. Devi
The record indicates that on October 9, 1985, the defendant was arraigned on the four charges on which he was ultimately tried. He was represented by counsel, and through counsel not guilty pleas were entered and a jury trial was elected. Pursuant to an agreement with the state’s attorney, the defendant again appeared in court on January 9, 1986, and entered pleas of nolo contendere to a substituted information which charged him with assault in the third degree, unlawful restraint in the second degree, and interfering with a police officer. The defendant was again represented by counsel, a partner of the attorney who had been present at his arraignment.
At this proceeding, the court canvassed the defendant in a manner consistent with such a plea, asking whether he understood that he was giving up his right not to incriminate himself and whether he knew he was giving up his right to a trial by the court or by a jury. The defendant responded in the affirmative. Moreover, the record indicates that notwithstanding reservations of his defense attorney, the defendant insisted on entering the plea so that the matter would be resolved.
Subsequently, the defendant changed his mind and decided that he wished to withdraw his pleas of nolo contendere. On March 25, 1986, the defendant again appeared in court. The attorney who represented the
“The Court: Now, for the record, sir, I’m going to ask the clerk to put you to plea on those four charges all over again today and you’ll be allowed to answer not guilty or guilty and I’ll ask your counsel for your election to be tried by Court or jury. Put him to plea on that.
“The Clerk: To the charge of risk of injury in violation of 53a-21; how do you plea?
“The Defendant: Not guilty.
“The Clerk: Assault in the third degree in violation of § 53a-61 on August 30, 1985; how do you plea?
“The Defendant: Not guilty.
“The Clerk: Unlawful restraint in the first degree in violation of 53a-95 on August 30th, 1985; how do you plea?
“The Defendant: Not guilty.
“The Clerk: Interfering with an officer, 53a-167a (a) on March 30th, 1985; how do you plea?
“The Defendant: Not guilty.
“The Court: Election, counselor?
“Mr. Johnson: Court trial, your Honor.
“The Court: Court or jury?
“Mr. Johnson: Court.”
Waiver of a person’s right to a trial to a jury “must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and the likely consequences.” Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970); State v. Reed, 174 Conn. 287, 293, 386 A.2d 243 (1978). Moreover, every reasonable presumption against such a waiver
Personal interrogation of the defendant by the court is not an indispensible prerequisite to a valid waiver under the federal constitution. See State v. Marino, supra; State v. Crump, supra, 502. The real issue is whether the election was in fact intelligently and voluntarily made and whether the record so demonstrates. State v. Shockley, supra, 710. An appellate court can look to many factors when evaluating whether a record indicates a defendant’s waiver was knowingly and voluntarily made. For example, in one recent case our Supreme Court found that “the trial court’s express mention of waiver of the right to trial [rather than right to trial by court or jury], combined with the defendant’s prior election for a jury trial, his experience with criminal proceedings and apparently adequate representation by counsel, satisfy the constitutional requirement.” (Emphasis in original.) State v. Badgett, 200 Conn. 412, 420, 512 A.2d 160 (1986).
After close examination of the record, we are not presented with a picture of a defendant “bewildered by court processes strange and unfamiliar to him . . . .” Smith v. Grady, 312 U.S. 329, 334, 61 S. Ct. 572, 85 L. Ed. 859 (1941); State v. Shockley, supra. Rather, we see a defendant who actively participated in the decision making process with defense counsel, even to the point of disagreement concerning his pleas of nolo contendere in January. When he changed his mind concerning his pleas, he took it upon himself to retain new counsel and the court allowed him to withdraw his prior pleas. In each of his three court appearances, which
There is no error.
In this opinion the other judges concurred.
“[General Statutes] Sec. 53-21. injury or risk of injury to, or impairing morals OF, children. Any person who willfully or'unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”
General Statutes § 53a-61 (a) provides in pertinent part: “A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person ....”■
General Statutes § 53a-95 (a) provides: “A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose the latter to a substantial risk of physical injury.”
The discussion between the court, the defendant and defendant’s counsel.
“Mr. Mirsky: Mr. Davis is of age. I have spoken with him and he wants his Honor to know he moves to withdraw prior pleas and elections, he’s going to plead nolo contendere to three misdemeanors. I want it on the record. I don’t often do it, in other words, this plea is voluntary on his part, of course and let him make the decision and gave him certain of my views and have given him certain of my opinions. I want it for the record and I do this, because I’m practicing the defense of law and I don’t often do this, maybe I should give him the best trial 1, as a defense counsel can do. He wants to conclude it. So, therefore, I mentioned if he were to go to plea,
“The Court: Prior pleas and election withdrawn. May be put to plea.
“Mr. Sedensky: The State’s filing a substitute information, your Honor, Unlawful Restraint, second degree, Assault, third and Interfering with a Police Officer.
“Mr. Mirsky: Your Honor, he pleads nolo contendere. My understanding, your Honor, these are the three misdemeanors and you still want a P.S.I. I explained to him and we will put the arrangement that was made between the parties on the record and do this again. I want to make sure it is voluntary and ask him the questions and never let it be said I pushed him in this case. There are certain cases I do push.
“Thank you sir.”
The court canvassed the defendant as follows:
“The Court: Pleading nolo, you are giving up the right to a trial by a judge or jury, giving up your right to confront your accusers, giving up your right to present evidence on your own behalf, giving up the right not to be compelled to incriminate yourself in any way or testify if there was a trial. You are giving up your right to remain silent and your right to take an appeal if you were found guilty at the end of a trial. When you plead guilty you give up or waive those rights, do you understand that?
“The Accused: Yes.
“The Court: Has anyone forced or threatened you in any way to cause you to plead guilty to the substituted — or plead nolo contendere to the substituted misdemeanor charges?
“The Accused: No.
“The Court: Are you doing that freely and voluntarily and is it your decision to enter the pleas at this time, subsequent to discussions with your attorney, Mr. Mirsky and overall consideration of your situation in light of the cases?
“The Accused: Yes.”