191 Conn. 412 | Conn. | 1983
A jury found the defendant, Raymond T. DelVecchio, Jr., guilty of two counts of arson in the first degree in violation of General Statutes § 53a-lll (a) (1) and of two counts of criminal mischief in the first degree in violation of General Statutes § 53a-115 (a) (l).
Those claims made by the defendant which warrant discussion are (1) whether the trial court erred in its instructions on proof beyond a reasonable doubt; (2) whether the court erred in allowing the state to prove the corpus delicti through the statements of the defendant; and (3) whether the court erred in permitting the state to introduce inculpatory statements of the defendant from tape recordings made during an undercover police investigation.
The evidence before the jury included the following: The defendant and Fay Dorso were married in July, 1976. They separated four months later, at which time the defendant moved out of their apartment at 12 High Street, a three story building in Derby. He had told her that if she went through with the divorce, he would burn down the apartment. On July 16,1978, while the first floor was occupied by one James Maloney and his family, the building was damaged by a fire.
On June 27,1978, the residence of Charles LaRowe and his family at 21 Derby Avenue in Derby was extensively damaged by fire. His residence was about seventy-five feet away from that of the defendant with whom he had a prior disagreement which resulted in the summoning of police.
From April, 1972, to October, 1978, the defendant was employed as a truck driver with an oil company in Derby known as Petrol Plus. He was terminated by Petrol Plus because of his arrest for stealing gasoline from the terminal of Petrol Plus’ supplier. On February
After her separation from the defendant, Fay Dorso moved to 7 Maple Street, Seymour. Ivy Poulin and Roberta Poulin also lived at that address. While attempting to contact Fay, the defendant spoke on the telephone with Roberta Poulin several times and eventually arranged to take her to the racetrack. When they went to the racetrack, the defendant met her at her car which she parked in a public lot across the street from Rudy’s Pub in Seymour. During the day of July 22, 1980, the defendant called Roberta Poulin at her place of employment and told her that her friend Tom Rider had called and harassed the defendant’s mother. He told her that she “would have to put a stop to it or else.” At about eleven o’clock that night a police officer came to her home to report that her car had been badly damaged in the public parking lot across from Rudy’s Pub. She accompanied the officer to this parking lot where she customarily parked. When she had parked her car there for the night, the windows were “up tight” and the doors locked. When she arrived with the officer, she found the passenger window broken, mpst of the inside burned, the dashboard, including the dials, ruined and the roof “entirely burned” on the inside. She said “[everything was just sort of melted and blackened.” Poulin also noticed “a lot of broken green glass” on the front seat on the passenger side although she had not left any green bottle or green glass on the seat when she came home from work that day.
We take up first the defendant’s claim that the court erred in its instructions on the state’s burden of proving his guilt beyond a reasonable doubt. During its instructions on reasonable doubt, the court made reference to defense counsel’s argument to the jury about reasonable doubt and a football field.
“Reasonable doubt is not guilt beyond any doubt. You don’t have to go a hundred yards for a guilty finding.
The defendant duly excepted to this instruction at the trial. Pointing to the central importance of instructions on the concept of reasonable doubt in a criminal trial, he argues that it effectively lightened the state’s burden of proof. Additionally, he claims that, although it followed an accurate statement of law,
It is fundamental that proof of guilt in a criminal case must be beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); United States v. Pine, 609 F.2d 106, 107 (3d Cir. 1979); State v. Mason, 186 Conn. 574, 585, 442 A.2d 1335 (1982); State v. Kurvin, 186 Conn. 555, 558, 442 A.2d 1327 (1982); State v. Smith, 183 Conn. 17, 27-28, 438 A.2d 1165 (1981). The United States Supreme Court has held that “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, supra, 364. “The [reasonable doubt concept] provides concrete substance for the presumption of innocence— that bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of the administration of our criminal law.’ ” (Citation omitted.) In re Winship, supra, 363. “At the same time, by impressing upon the factfinder the need to reach a subjective state of near certitude of the guilt of the accused, the [reasonable doubt] standard symbolizes the significance that our society attaches to the criminal sanction and thus to liberty itself.” Jackson v. Virginia, 443 U.S. 307, 315, 99 S. Ct. 2781, 61 L. Ed. 2d 560, reh. denied, 444 U.S. 890, 100 S. Ct. 195, 62 L. Ed. 2d 126 (1979).
Long ago, the United States Supreme Court said: “Attempts to explain the term ‘reasonable doubt’ do not usually result in making it any clearer to the minds of the jury.” Miles v. United States, 103 U.S. 304, 312, 26 L. Ed. 481 (1881). More recently, Judge Bazelon aptly observed that “[¡judicial attempts to clarify the meaning of the phrase ‘reasonable doubt’ by explanation, elaboration or illustration . . . more often than not tend to confuse or mislead.” United States v. Pinkney, 551 F.2d 1241, 1244 (D.C. Cir. 1976);
In determining the effect of the challenged instructions on the validity of the defendant’s conviction, we acknowledge the established proposition “that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973); State v. Johnson, 188 Conn. 515, 527, 450 A.2d 361 (1982); State v. Hines, 187 Conn. 199, 206, 445 A.2d 314 (1982). An erroneous instruction, even of constitutional dimension, is harmless if, when viewed in the context of the whole charge, there is no reasonable possibility that the jury were misled. See State v. Carrione, supra, 685; State v. Hines, supra, 209.
The state argues here that, for two reasons, any such error would be harmless beyond a reasonable doubt. First, it claims that the not guilty verdicts on three informations make it clear that the jury fully under
First, as we must and as the state urges, we have examined the whole charge carefully. We cannot say that such an examination discloses that this flaw in “the heart of the matter”; Commonwealth v. Wood, 380 Mass. 545, 548, 404 N.E.2d 1223 (1980);
The state’s claim that the jury must have understood the reasonable doubt concept because it acquitted the defendant on three informations lacks merit. “The precise determination of what a jury decided and why can be particularly difficult”; United States v. Standefer, 610 F.2d 1076, 1095 (3d Cir. 1979); here it would be mere speculation. The state, in argument, admitted that a jury could erroneously acquit a criminal defendant although that is not so with a conviction. See
The second reason why the state argues that this error was harmless was because there was overwhelming evidence of the defendant’s guilt. Here it relies on United States v. Hasting, 461 U.S. 499,103 S. Ct. 1974, 76 L. Ed. 2d 96 (1983). The state appears to argue that we need no longer determine in cases such as this whether it is reasonably possible that the jury were misled; see State v. Carrione, 188 Conn. 681, 453 A.2d 1137 (1982); but rather claims that we must review the whole record in every case to determine whether there is overwhelming evidence of guilt. In rejecting this claim, we do not believe that Hasting mandates any new constitutional analysis in our determining whether reversible error occurs in such cases.
In Hasting, the defendants were convicted of serious moral offenses after the trial court denied their motion for a mistrial when their attorney objected during the government’s summation to the jury that that argument violated their fifth amendment rights under Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106, reh. denied, 381 U.S. 957, 85 S. Ct. 1797, 14 L. Ed. 2d 730 (1965). The Circuit Court of Appeals reversed and remanded for retrial. United States v. Hastings, 660 F.2d 301 (7th Cir. 1981). In doing so, it declined to apply the harmless error doctrine analysis of Chapmans. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied, 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 (1967), stating that to do so “would impermissibly compromise the clear constitutional violation of the defendants’ Fifth Amendment
The second claim raised by the defendant is that the trial court erred in permitting the state “to prove the essential elements of the corpus delicti through the statements of the defendant.” This claim is premised on the following facts: Prior to trial, the defendant filed a motion for a bill of particulars and a request for essential facts pursuant to Practice Book §§ 831 and 625, respectively. On December 17,1980, a hearing was held on both motions. At that hearing, the state objected to both motions on the same grounds. The state claimed that because it had furnished the defendant with both a long form information and the arrest warrant affidavit for each of the counts with which the defendant had been charged, granting the motions would only supply the defendant with information he already had. In addition, it claimed that these documents “set forth sufficient information to prep the defense.” The court, Kulawiz, J., denied the motions “based on the premises that [the defendant’s counsel] has [the informations and affidavits] . . . .’’It also stated that the request for essential facts was denied “[w]ith the understanding as set forth on the record [that] the State is limited to the affidavit concerning the manner in which the fire started.”
The defendant claims, therefore, that the state’s proof was to be limited, not only by the individual informations, but also by the following affidavits: The affidavit concerning the High Street fire stated, inter alia, that the fire was “ignited by [an] incendiary device which in all probability was a firecracker and an accel
The defendant’s claim on appeal is that his out of court statements that were taped by the undercover police officer were inadmissible because the state had not previously introduced sufficient independent, corroborative evidence of the corpus delicti of each of the crimes with which he was charged. We disagree. Parsing the defendant’s claim, we find two questions presented: First, must the state introduce evidence of the corpus delicti prior to the introduction of the defendant’s admissions and, second, does the fact that the court limited the state’s case in terms of the manner in which the crimes were committed affect the nature of what constitutes the corpus delicti of a particular crime.
In regard to the first issue, i.e., must the state introduce independent evidence prior to the defendant’s admissions, we agree with the defendant that this is ordinarily the better procedure. See C.J.S., Criminal Law § 1046. It is not, however, an absolute prerequisite to introducing the defendant’s admissions. See, e.g., State v. Washelesky, 81 Conn. 22, 29-30, 70 A. 62 (1908) (“The law fixes no rule as to the order of this [corpus delicti] proof.”). As we recently stated in State v. Anonymous (83-FG), 190 Conn. 715, 724-25, 463 A.2d 533 (1983): “It is not unusual to admit an exhibit into evidence before its relationship to the issues of a case
We must also reject the defendant’s claim that the fact that the court limited the state’s case as to the manner in which the crimes were committed affected, in any way, the state’s burden regarding the proof of the corpus delicti. This is because the purpose served by a bill of particulars (or, in this case, the long form information and affidavit) bears no relationship to the purpose served by the corpus delicti doctrine.
Pursuant to the corpus delicti doctrine in Connecticut, a defendant cannot be convicted solely on the basis of his confession; rather, there must be "independent evidence tending to establish the corpus delicti . . . .” State v. Grant, 177 Conn. 140, 144, 411 A.2d 917 (1979); see also State v. Ruth, 181 Conn. 187, 198, 435 A.2d 3 (1980); State v. Tillman, supra. In Tillman, we overruled prior case law and adopted the definition of cor
The purpose of a bill of particulars (or, in this case, the long form information and affidavit) is entirely distinct from the issue of the veracity of a defendant’s confession. “The function of the bill of particulars under Connecticut practice is to enable the defendant to obtain a more precise statement of the offense charged in the information in order to prepare a defense.” State v. Troynack, 174 Conn. 89, 96, 384 A.2d 326 (1977); see also State v. Roque, 190 Conn. 143, 152, 460 A.2d 26 (1983). This information, in turn, allows a defendant to prepare adequately his defense and avoid prejudicial surprise. Id. Clearly, these concerns are totally unrelated to the veracity of a defendant’s confession or statements. Therefore, regardless of the specificity of the long form information and affidavit in this case (or a bill of particulars, had the state been required to file one), this would not have affected the elements of the
We conclude that, given the definitions of the corpus delicti of arson and of criminal mischief as set out above, as well as the evidence which we have already set out, the state produced sufficient independent evidence tending to prove the corpus delicti of each crime to justify the admission of and reliance upon the defendant’s statements. See State v. Grant, supra.
We next take up the defendant’s claim that the trial court erred in allowing the state to introduce into evidence inculpatory statements contained on tape recordings that were made during an undercover police investigation. He presses three separate arguments as to why this evidence should have been excluded. First, he claims that the recording of his statements violated his fourth amendment rights. Second, he claims that the use of the tape recordings at the trial compelled him to give evidence against himself in violation of his fifth amendment right against self-incrimination and in violation of article first, § 8 of the Connecticut constitution.
The constitutional claims lend themselves to summary treatment. In United States v. White, 401 U.S. 745, 91 S. Ct. 1122, 28 L. Ed. 2d 453, reh. denied, 402 U.S. 990, 91 S. Ct. 1643, 29 L. Ed. 2d 156 (1971), the United States Supreme Court said: “[A] police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with the defendant and without otherwise violating the latter’s Fourth Amendment rights. Hoffa v. United States, 385 U.S [293, 300-303, 87 S. Ct. 408, 17 L. Ed. 2d 374 (1966), reh. denied, 386 U.S. 940, 87 S. Ct. 970, 17 L. Ed. 2d 880 (1967)].
On his self-incrimination claim, the defendant argues essentially that he was “prodded” into making these statements and that they were not made voluntarily. Such an argument was rejected in Andresen v. Maryland, 427 U.S. 463, 475, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976), and in Hoffa v. United Stales, supra, 303-304. In Andresen, the court, drawing on Hoffa,
His final claim is on the matter of playing all of the tapes for the jury rather than just those portions he contends were relevant to the crimes charged.
It is unnecessary to discuss the remaining claims of error.
There is error, the judgment is set aside and the case is remanded for a new trial.
In this opinion the other judges concurred.
The defendant was charged in seven separate informations. Two of the informations each charged a single count of arson in the first degree. Two
The jury returned not guilty verdicts on the remaining three informations. One charged a count of arson in the second degree, one charged a count of arson in the third degree and one charged two counts of larceny in the second degree.
The court granted the defendant’s motion to consolidate all seven informations for trial.
Fay Dorso testified that, although at that time she resided with her parents, she still had “belongings” at 12 High Street.
This incident involved the threatened use of a firearm.
In its brief the state contended that the claimed erroneous instruction was “completely induced” by the defendant. In oral argument before us, the state withdrew this claim of inducement.
After stating that the state had the burden of proving the defendant guilty beyond a reasonable doubt, the court said:
“A reasonable doubt is not such a doubt as may be raised by one questioning for the sake of raising a doubt. It is not a surmise. It is not a guess. It is not a conjecture. It is not hesitation springing from feelings of sympathy or pity for the accused, or for any other person or persons who in any way may be affected by your verdict. A reasonable doubt is one founded upon the evidence, one which grows out of the evidence, or want of evidence in this case and is one for which you can, in your own minds, conscientiously give a reason.
“If the facts you may find proven, or the evidence you may deem credible are consistent with, or may reasonably be explained by any other basis than the accused is not guilty, then you must render a verdict in his favor.
“As I have said, the State must prove its case, as I have defined that to you, that is, beyond a reasonable doubt. This does not mean that the State must prove guilt beyond absolute certainty. Absolute certainty is not required. If it were, many crimes would go unpunished and guilty persons in many cases would go free.
“The State is as much concerned in having an innocent person acquitted as having a guilty person punished, but when the presumption of innocence has been overcome, or removed by evidence proving beyond a reasonable doubt that the accused person is guilty of the crime charged, then it is the sworn duty of the jury to enforce the law and to render such a verdict as the evidence warrants. . . .”
Of the use of examples in jury instructions it has been said that “the jury is likely to give undue weight to examples, since they are easier to comprehend, and it may simply compare the defendant’s conduct with the example.” People v. Shepherd, 63 Mich. App. 316, 322, 234 N.W.2d 502 (1975).
In Commonwealth s. Wood, 380 Mass. 545, 548-49, 404 N.E.2d 1223 (1980), the court said that “[t]he improper instructions here lie at the core of the judge’s definition of reasonable doubt and cannot be described as doubtful ‘embellishments’; Commonwealth v. Therrien, 371 Mass. 203, 207, 355 N.E.2d 913 (1976); on a distinct and correct definition constituting ‘the heart of the matter.’ Id.”
The Seventh Circuit took this position even “[d]espite the magnitude of the crimes committed and the clear evidence of guilt . . . .” United States v. Hastings, 660 F.2d 301, 303 (7th Cir. 1981).
Because of our disposition of this claim, it is unnecessary to address the state’s claim that the court’s ruling only affected one of the crimes with which the defendant was charged.
The Connecticut constitution, article first, § 8, provides: “No person shall be compelled to give evidence against himself . . .
In Hoffa v. United States, 385 U.S. 293, 87 S. Ct. 408, 17 L. Ed. 2d 374 (1966), reh. denied, 386 U.S. 940, 87 S. Ct. 970, 17 L. Ed. 2d 880 (1967), the defendant asserted that the admission into evidence of incriminating statements he made to a paid police informer violated the fourth, fifth and sixth amendments. The Supreme Court rejected each of these claims. See also United States v. Gray, 565 F.2d 881, 890 (5th Cir. 1978).
In Hoffa v. United States, 385 U.S. 293, 87 S. Ct. 408, 17 L. Ed. 2d 374 (1966), reh. denied, 386 U.S. 940, 87 S. Ct. 970,17 L. Ed. 2d 374 (1967), the United States Supreme Court said: “Neither this court nor any member of it has ever expressed the view that the Fourth Amendment protects a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.” Hoffa v. United States, supra, 302. In United States v. White, 401 U.S. 745, 749, 91 S. Ct. 1182, 28 L. Ed. 2d 453, reh. denied, 402 U.S. 990, 91 S. Ct. 1643, 29 L. Ed. 2d 156 (1971), the United States Supreme Court referred to this language with approval.
In making this claim, he argues that the transcripts (which were exhibits in the trial court) are 124 pages in length and that no more than 20 pages of the transcript contain statements of his that are related to the crimes charged.
In asking us to review this claim, the defendant also has not followed our rules of practice in presenting it for appellate review by setting it out in his brief in the manner required by Practice Book § 3060F.
We, therefore, need not reach the defendant’s claim that the tapes, as admitted, were “unduly prejudicial,” presenting him as a Nazi supporter, a racist, etc. We, however, point out that had the defendant made the objection he now makes for the first time on appeal, i.e., that the court excise those portions containing his remarks about Nazism, as well as ethnic and racial remarks, rather than the general objection to the tapes, the court could have ruled on precisely the issue he now raises. If this were done on retrial, then the trial court would be properly presented with the issue and then can determine if its prejudicial tendency outweighs its probative value. State v. Ouellette, 190 Conn. 84, 94, 459 A.2d 1005 (1983); State v. Marquez, 160 Conn. 47, 52, 273 A.2d 689 (1970). A proper objection at that time will facilitate a ruling that puts this delicate issue in its proper context.