211 Conn. 101 | Conn. | 1989
The defendant, Lee Gary, was found guilty by a jury of larceny in the second degree in violation of General Statutes § 53a-123 (a) (3).
The jury could reasonably have found the following facts. In the early morning of August 29, 1986, the defendant accosted the victim, Rosemary Furman, as she walked a short distance from a friend’s house to her sister’s house in New Haven. Furman recognized the defendant from previously having seen him in the neighborhood. The defendant asked Furman if she would have sex with him for money. Furman refused.
On the night of the incident, Furman’s two nieces, April and Kimberly, observed Furman running down the street. In addition, Kimberly observed that Fur-man was chasing the defendant. After the defendant had evaded Furman’s pursuit, Furman went to the New Haven police station where she identified the defendant’s mug shot. A week or two after the incident, the defendant spoke to Furman’s niece, April, apologized for taking the watch, and said that he would not have done so had he known that Furman was her aunt. According to April, the defendant’s sister was present when the defendant apologized. The defendant repeated this statement to April during a telephone conversation approximately one month later.
On June 4, 1987, the state filed a substitute information charging the defendant with the crimes of robbery in the third degree in violation of General Statutes § 53a-136 (a),
The record discloses that on the first day of trial, August 4,1987, following Furman’s testimony concerning the theft of the watch, the state’s attorney asked her whether she had had any conversations with the defendant subsequent to the incident. Upon Furman’s affirmative response, the defendant objected on the ground that any conversations between Furman and the defendant after the date of the incident were irrelevant. The trial court excused the jury to permit the state to present an offer of proof. With the jury out of the courtroom, Furman stated that after the defendant had pleaded guilty in June, 1987, he had called her several times from jail and asked her to drop the charges and not to respond to á subpoena. The trial court overruled the defendant’s objection and recalled the jury to the courtroom.
After the jury returned, the following exchange took place between the state’s attorney and Furman:
“Q. Ms. Furman, subsequent to August twenty nine, nineteen eighty six have you had the opportunity to have conversations with the defendant, Mr. Gary?
“A. Yes.
“Q. Have you had telephone conversations with him?
“Q. And how did those occur?
“A. The last time that we came to court he had pleaded guilty and said he took the watch and they gave him six years.”
The defendant immediately objected to Furman’s statement. The trial court forthwith instructed the jury: “At this point, the injury [sic] will disregard what was just said.” On the defendant’s request, the trial court excused the jury, stating that “[y]ou just have to bear with us. This is usual, this is normally [sic] in a criminal case. There are things that have to be resolved in your absence.” After the jury left the courtroom, the defendant moved for a mistrial on the grounds that Fur-man’s statement irreparably prejudiced the jury, and that any curative instructions by the trial court would be futile. The court denied the defendant’s motion, stating that Furman’s statement was “volunteered” and nonresponsive to the state’s attorney’s question. Defense counsel excepted to the court’s denial of his motion, and then asked the court how it intended to “handle” the situation. The trial court stated that it would reinstruct the jury upon its return to “totally disregard” Furman’s statement. The court also admonished Furman to answer only the questions asked of her, and to refrain from referring to any plea of guilty or any term of incarceration.
Upon the jury’s return, the trial court gave the following instructions: “Let me again make it clear to you, as the jury, there was a question asked of this witness before you were excused from the courtroom. She really did not respond to the specific question, but then she made a statement about her opinion or conclusions about some other course of conduct relating to this defendant. I have already told you that you are to totally disregard her response to the last question. And
After the state had concluded its case on August 5, 1987, it withdrew the robbery count. The only witness presented by the defendant was the deputy warden of the Whalley Avenue Correctional Center in New Haven. He testified that each inmate is permitted only ten minutes a day in which to make telephone calls to the outside. The jury found the defendant guilty of larceny in the second degree. On August 14,1987, the trial court sentenced him to ten years imprisonment, execution of the sentence suspended after seven years, followed by three years probation. Thereafter, the defendant filed a motion for a new trial on the ground that he was denied a fair trial because of Furman’s disclosure of the prior guilty plea. The trial court denied the defendant’s motion at a hearing on August 28, 1987.
I
The defendant first claims that the trial court erred in denying his motion for a mistrial after Furman remarked that the defendant had pleaded guilty to the offense for which he was on trial. He argues that Fur-man’s statement violated Practice Book § 718 as well as the right against self-incrimination and the presumption of innocence underlying § 718. He further argues that the remark so prejudiced the jury that he could no longer receive a fair trial. Finally, he asserts that even if the prejudicial effect of such a remark could be cured by subsequent instructions, the trial court’s instructions in this case were inadequate. We are not persuaded.
The defendant first argues that the trial court’s denial of his motion for a mistrial violated the mandate of Practice Book § 718. We disagree. Practice Book § 718 provides: “No evidence of the court proceedings at which a plea of guilty or nolo contendere was entered, where such plea is not accepted by the judicial authority or is later withdrawn pursuant to Sec. 719, shall be received at the trial of the case.”
We find more persuasive the decisions requiring a case-by-case analysis. Consequently, we decline to adopt a per se rule requiring the trial court to grant a motion for a mistrial whenever a witness improperly refers to a defendant’s withdrawn guilty plea in the jury’s presence. A per se mistrial requirement would be inconsistent with the well established principle that the trial court has wide discretion in determining whether a mistrial is appropriate. State v. Smith, supra, 548; State v. Ubaldi, supra, 562. The discretion accorded the trial court derives from the practical consideration that the trial court is in a far better position than a reviewing court to ascertain whether incidents occurring at trial warrant a mistrial. Further, an automatic mistrial requirement gives short shrift to the principle that, absent contrary evidence, jurors are presumed to follow the trial court’s instructions. State v. Boscarino, 204 Conn. 714, 724, 529 A.2d 1260 (1987); State v. Williams, 204 Conn. 523, 534, 529 A.2d 653 (1987); State v. Rouleau, 204 Conn. 240, 254, 528
Further, under the narrow circumstances of the present case, we conclude that the trial court did not abuse its discretion in denying the defendant’s motion for a mistrial. As noted above, this is not a case in which the trial court admitted the defendant’s guilty plea as evidence. Cf. Kercheval v. United States, 274 U.S. 220, 225, 47 S. Ct. 582, 71 L. Ed. 1009 (1927); United States
For the reasons discussed above, we reject the defendant’s argument that the trial court’s second
Moreover, we are satisfied that the admissible evidence of the defendant’s guilt was so overwhelming that the reference to the prior plea was harmless beyond a reasonable doubt. Cambridge v. Duckworth, supra, 532; United States v. Tesack, supra; United States v. Doamarel, supra, 264; State v. Simonson, supra, 457; Standen v. State, supra, 720. Furman posi
II
The defendant next claims that the trial court inadequately instructed the jury on the crime of larceny in the second degree. The defendant did not distinctly raise this claim at the trial; Practice Book § 852; but argues that it is reviewable under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), because it implicates his due process right not to be convicted except upon proof beyond a reasonable doubt of each element necessary to constitute the crime charged. See State v. Gabriel, 192 Conn. 405, 413, 473 A.2d 300 (1984).
A claim of error in jury instructions must be reviewed in the context of the charge as a whole. State v. Quintana, 209 Conn. 34, 47, 547 A.2d 534 (1988). “ ‘The charge must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict.’ ” Id. An error of constitutional dimension in jury instructions requires reversal if it is reasonably possible that the jury was misled. Id., 50.
Based upon our review of the record, we are persuaded that the defendant’s claim is utterly meritless. The record demonstrates that the trial court through
There is no error.
In this opinion the other justices concurred.
General Statutes § 53a-123 (a) (3) provides: “A person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-119 and ... (3) the property, regardless of its nature or value, is taken from the person of another.”
General Statutes § 53a-119 provides in relevant part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains ■or withholds such property from an owner.”
General Statutes § 53a-136 (a) provides: “A person is guilty of robbery in the third degree when he commits robbery.” Robbery is defined in General Statutes § 53a-133 as follows: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”
See footnote 1, supra.
In State v. Carta, 90 Conn. 79, 83, 96 A. 411 (1916), we held that evidence of a withdrawn plea of guilty was admissible “as showing conduct on the part of the accused which was inconsistent with his claim of innocence before the jury.” We agree with the defendant and the state that in light of Practice Book § 718, Carta is no longer valid. See Kercheval v. United States, 274 U.S. 220, 47 S. Ct. 582, 71 L. Ed. 1009 (1927).
The defendant relies on a number of cases from other jurisdictions for the proposition that evidence of a withdrawn guilty plea violates the right
We disagree with the defendant’s argument that, under Bruton v. United States, 391 U.S. 123,135, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), the trial court should have declared a mistrial. In Bruton, the United States Supreme Court considered whether a codefendant’s confession admitted in a joint trial violated the defendant’s sixth amendment rights, even though the trial court instructed the jury that it could not use the codefendant’s confession as evidence of the defendant’s guilt. The court held that “because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner’s guilt, admission of [the codefendant’s] confession in this joint trial violated petitioner’s right of cross-examination secured by the Confrontation Clause of the Sixth Amendment.” Id., 126. In the present case, however, the trial court did not admit Furman’s inadvertent reference to the defendant’s guilty plea for any purpose, but struck it immediately.
Although during the state’s offer of proof Furman referred to the defendant’s guilty plea, the defendant did not object to her specific reference to the plea, or call the trial court’s or the state’s attention to her statement. The question asked by the state’s attorney when the witness was testifying before the jury concerning how her telephone conversation with the defendant had occurred was not objected to by the defendant apparently because the response concerning the defendant’s guilty plea was not anticipated.
We note that after trial, the defendant moved for a new trial on the same grounds as asserted in his motion for a mistrial. The trial court denied the motion for a new trial.