Opinion
Thе defendant, Gary Hall, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (4) and 53a-49 (a) (2). On appeal, the defendant claims that (1) the evidence was insufficient to establish a conviction of attempt to commit robbery in the first degree, (2) the court improperly instructed the jury that theft of services may be the factual predicate for attempt to commit robbery in the first degree, (3) the court violated the defendant’s rights to confrontation and cross-examination by excluding evidence that the state’s key witness falsely testified regarding a witness to the crime, (4) the court improperly prohibited defense counsel from calling its investigator as a witness to impeach a state witness and (5) the court improperly instructed the jury on proof beyond a reasonable doubt. We affirm the judgment of the trial court.
The jury reasonably could have found the following facts. At approximately 2:33 a.m. on August 10, 1998, the victim, a taxicab driver, went to pick up a fare. His dispatch computer indicated that two individuals were to be picked up at Eastern Circle in New Haven with an intended destination on Ward Street in New Haven. When the victim arrived at Eastern Circle, three individuals were there, including the defendant. The victim, in accordance with his usual practice for fares picked up after midnight, took $10 from the defendant as “cash in advance.” At the direction of his passengers, he then drove them to two locations at which one of the passengers apparently would attempt to purchase drugs by
As he approached Eastern Circle, the victim checked the taxicab’s meter, which indicated a fare of “around twenty-three, twenty-four dollars.” He then slowed the vehicle and asked for the rest of his fare. The defendant, who was sitting on the passenger side of the backseat, reached behind him for a gun. The defendant took the gun and pointed it at the victim through the two or three inch gap between the roof of the taxicab and the protective glass shield that separates the front seat and backseat of the taxicab. The defendаnt said to the victim, “I’ve got your money.”
The victim, believing that he was being robbed, pushed a button raising the shield completely, drove at a high rate of speed in search of a police officer and alerted the taxicab company’s dispatcher by pressing an alarm button. Meanwhile, the passengers were yelling and banging on the glass shield. One passenger broke the passenger side window. The victim decided to drive to the police station; however, as the taxicab slowed to enter a highway, the passengers exited the taxicab and ran away. A police investigation, which included questioning of the person who lived at the address to where the cab had been called, led to the defendant’s arrest. The victim identified the defendant in a photographic array one week after the incident and in court at trial.
I
The defendant first claims that the evidence adduced at trial was insufficient to establish a conviction for attempt to commit robbery in the first degree, and therefore violates the fourteenth amendment to the United States constitution and articlе first, § 8, of the constitution of Connecticut. Specifically, he claims that (1) the evidence did not establish an intent to steal and (2) proof of a larcenous fare evasion, even though accompanied by threat of force or intimidation, does not establish attempt to commit robbery.
“We employ a well established standard of review when a defendant challenges a trial court’s finding of guilt on the ground of insufficient evidence. In reviewing [a] sufficiency [of the evidence] claim, we apply a [two part] test. First, we construe the evidence in the light most favorable to sustaining the [finding of guilt]. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded
“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 proрerty or to engage in other conduct which aids in the commission of the larceny.” General Statutes § 53a-133. Robbeiy in the first degree requires that, in the commission of a robbery, the defendant display or threaten the use of what he represents to be a firearm. General Statutes § 53a-134.
“For a conviction of attempted robbery, the state must prove that the defendant possessed the requisite mental state and took a substantial step toward committing a robbery.
The defendant argues that he did not attempt to take the victim’s property because he did not demand any money from the victim; rather, he refused to pay the victim money that he owed him. He argues that the weight of the testimony supports the finding that the defendant’s intent was to evade paying the fare and, therefore, the state failed to prove that he intended to steal money from the victim.
“It is well established that [t]he question of intent is purely a question of fact. . . . The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged. . . . Because it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, a person’s state of mind is usually proven by circumstantial evidence. . . . Intent may be and usually is inferred from conduct. . . . [W]hether such an inference should be drawn is properly a question for the [finder of fact] to decide.” (Internal quotation marks omitted.) State v. Dumas,
Viewing the evidence in the light most favorable to sustaining the verdict, we conclude that the jury reasonably could have found that the defendant had the requisite intent to commit robbery in the first degree. On the basis of the evidence presented, the jury reasonably
II
The defendant next claims that the court improperly charged the jury on the offense of attempt to commit robbery in the first degree. Specifically, the defendant argues that the charge was improper because it instructed the jury that it could find the defendant guilty even if its basis for so finding was the defendant’s refusal to pay the taxicab fare. The defendant claims that a conviction for attempt to commit robbery in the first degree cannot stand on the basis of a refusal to pay a debt, even if the refusal is by threat or intimidation. Therefore, he claims, the instructions allowed the jury to find the defendant guilty on an inadequate theory of liability. We disagreе.
The record is adеquate for review, and the defendant’s claim is of constitutional magnitude. See State v. Chapman,
“The standard of review for constitutional claims of improper jury instructions is well settled. In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificiаl isolation from the overall charge. . . . The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. ... As long as [the instructions] are cor
The instruction in this case permitted the jury to consider facts that would constitute a larceny, specifically, theft of services, in determining whether the defendant had attempted to commit a robbery. The defendant argues that the threatened use of force to commit a larceny by theft of services, however, does not establish the crime of robbery in the first degree because fare evasion is not a property for the purposеs of the robbery statutes. He contends that the General Statutes specifically provide for “theft of services” separate from the general definition of larceny and that “theft of services” is not a larceny, the commission of which may be the basis of a robbery. We disagree.
“Our analysis is governed by well established principles of statutory construction. Statutory construction is a question of law and, therefore, our review is plenary. . . . [0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing thе same general subject matter. . . .
“When the statute in question is one of a criminal nature, we are guided by additional tenets of statutory construction. First, it is axiomatic that we must refrain from imposing criminal liability where the legislature has not expressly so intended. . . . Second, [criminal statutes are not to be read more broadly than their
“The rule of strict construction, however, does not require that the most narrow, technical and exact meaning be given to the language of a statute in frustration of an obvious legislative intent. . . . Common sense should be applied to the language of a penal statute, particularly if otherwise absurdity or frustration of the evident design of the legislature results.” (Internal quotation marks omitted.) State v. Albert,
The resolution of the defendant’s claim turns on whether a larceny by theft of services constitutes a larceny as defined by the robbery statutes. We conclude that the statutory language is clear and unambiguous.
The statute defining larceny provides in relevant part that a person commits a 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-119. The legislature further defined the term, providing that “[l]arceny includes, but is not limited to . . . [t]heft of serviсes.” General Statutes § 53a-119 (7).
Ill
The defendant next claims that the court violated his rights under the sixth and fourteenth amendments to the United States constitution because it (1) limited cross-examination of the state’s key witness, the victim, as collateral and (2) did not permit the defendant to introduce extrinsic evidence to impeaсh the victim on a matter that the court improperly deemed collateral.
The following additional facts are necessary for our resolution of the defendant’s claim. At trial and at a prior evidеntiary hearing, the victim testified that an Amtrak truck driver had observed the defendant and his companions exit and rim from the victim’s taxicab. The truck driver drove into a nearby gas station and, before police arrived, spoke with the victim and told him in what direction he saw the defendant run. When the police arrived, however, the truck driver was gone. Although the victim testified on cross-examination that he told the police about that witness, there was no mention of the truck driver in the police report. The victim also testified that he informed the state’s attorney about that witness. Consequently, the defendant argued to the court that the victim perjured himself, having concocted the story of the witness to bolster his story about where the defendant ran. The defendant sought to call the state’s attorney as a witness, or, alternatively,
When cross-examination of the victim resumed, defense counsel asked questions about where and when the victim told the state’s attorney about the truck driver. The court sustained the state’s objections, ruling that the matter was a collateral issue. Thereafter, the state called as a witness a police officer who had responded to the incident and who testified that the victim did not tell him about the truck driver. The defendant again sought to elicit testimony as to when and where the victim told the state’s attorney about the witness, this time arguing thаt the state had opened the door. The court deemed the matter collateral and disallowed the questioning.
“The sixth amendment to the [United States] constitution guarantees the right of an accused in a criminal prosecution to confront the witnesses against him. . . . The primary interest secured by confrontation is the right to cross-examination . . . and an important function of cross-examination is the exposure of a witness’ motivation in testifying. . . . Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. . . . However, [t]he [confrontation [c]lause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. . . . Every reasonable presumрtion should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion. ... If the constitutional standard has been met, then we must nonetheless examine
“In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the jury facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. . . . In determining whether a defendant’s right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by оther questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial. . . . Although it is axiomatic that the scope of cross-examination generally rests within the discretion of the trial court, [t]he denial of all meaningful cross-examination into a legitimate area of inquiry fails to comport with constitutional standards under the confrontation clause.” (Citations omitted; internal quotation marks omitted.) State v. Santiago,
Although the defendant argues that his line of questioning would have elicited information that would aid the jury in assessing the credibility of the victim, we conclude that in light of the overall cross-examination, the defendant’s counsel had ample opportunity to cross-examine the victim. Defense counsel's thorough cross-examination elicited testimony that pointed out that the victim could not recall at trial which police officer he told about the witness when he was sure at the evidentiary hearing that it was Officer Ralph Consiglio. The victim further testified that he changed his testimony to say that it might not have been Officer Consiglio after learning that the police report contained no
Having determined that the constitutional standard was satisfied, the defendant does not satisfy his further burden of showing that the restriction on cross-examination was an abuse of discretion. See State v. McKnight,
“The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. . . . Evidence is considered relevant when it tends to establish the existence of a material fact or to corroborate other direct evidence in the case. . . . Furthermore, relevant evidеnce has a logical tendency to aid the trier in the determination of an issue. ... A witness may not be impeached by contradicting his or her testimony as to collateral matters, that is, matters that are not directly relevant and material to the merits of the case.” (Citations omitted; internal quotation marks omitted.)
Here, defense counsel wanted to pursue a line of questioning regarding where and when, if ever, the victim told the state’s attorney about the truck driver. Because defense counsel already established that the victim had told the state’s attorney some time before the evidentiary hearing, the court was well within its discretion to restrict defense counsel’s inquiry on that subject.
Under the circumstances of this case, we conclude that the court did not infringe on the defendant’s right to cross-examine the victim. The cоurt did not violate the defendant’s right to confrontation, and the court did not abuse its discretion in precluding cross-examination regarding when the victim told the state’s attorney about the witness.
IV
The defendant next claims that the court improperly prohibited defense counsel from calling the defense investigator to impeach the state’s witness, Saghir “Sammy” Ahmed, thereby violating the defendant’s sixth and fourteenth amendment rights to present a defense and to confrontation. We disagree.
The following additional facts are necessary for our disposition of the defendant’s claim. The state called as a witness Ahmed, the Metro Cab dispatcher on duty on the night of the incident. The victim had called Ahmed while the defendant was still in the taxicab, and Ahmed called the police. Three weeks prior to trial, Ahmed had sat with a defensе investigator and reviewed the tape of the radio call. On cross-examination of Ahmed, the defense counsel asked if he recalled saying to the investigator that this was a “fare evasion” after hearing the tape. Ahmed replied that he did not recall.
“As a general rule, extrinsic evidence of a prior inconsistent statement may not be admitted to impeach the testimony of a witness on a collateral matter. . . . Thus, on cross-examination, a witness’ answer regarding a collateral matter is conclusive and cannot be contradicted later by extrinsic evidence. . . . Extrinsic evidence of a prior inconsistent statement may be admitted, however, to impeach a witness’ testimony on a noncollateral matter. ... A matter is not collateral if it is relevant to a material issue in the case apart from its tendency to contradict the witness. . . . The determination of whether a matter is relevant to a material issue or is collateral generally rests within the sound discretion of the trial court.” (Citations omitted; internal quotation marks omitted.) State v. Francis,
We conclude that the exclusion of extrinsic evidence, the defense investigator’s proffered testimony that Ahmed had stated that “this was a fare evasion,” was not an abuse of discretion. Ahmed’s characterization of the attempted robbery is collateral. Clearly, Ahmed heard a distress call as a crime was being committed and called the police. The court was able to assess the testimony concerning the nature of the communications made on the night of the offense and the circumstances surrounding those communications, and to compare that evidence with the proffered evidence that Ahmed’s statement was inconsistent, material and subject to impeachment by extrinsic evidence. The court had evidence before it that Ahmed had not told police it was a “fare evasion” case, that he was unsure if he had referred to the events as such and that his characterization of those events three weeks prior to trial was not material to the case. The attempt to impeach Ahmed’s credibility by extrinsic evidence would have been improper.
Moreover, the court was in the best position to determine, in light of all of the evidence proffered, whether there was a substantial inconsistency in his testimony. The court’s evidentiary rulings are given great deference precisely because the court is in the best position to hear and assess the entire testimony in the context of the entire trial. The court did not abuse its discretion in disallowing the proffered testimony. It cannot be sаid that Ahmed’s statement was inconsistent in a substantial way or that his opinion as to what transpired in the taxicab was material.
V
The defendant finally claims that the jury instruction defining proof beyond a reasonable doubt diluted the
We must first address the standard of review. “A defendant in a criminal case is entitled to a clear and unequivocal charge by the court that his guilt must be proved beyond a reasonable doubt. . . . When reviewing [a] challenged jury instruction ... we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a wholе, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper. . . . [I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled. . . .
“In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to bе considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” State v. Rodriguez, 63
The defendant first takes issue with the jury’s charge that reasonable doubt is a “real doubt,” an “honest doubt.” He argues that those terms are synonymous with “genuine” rather than “reasonable” and, because the court used those terms twice, the instruction required a greater amount of doubt, thereby diluting the state’s burden of proof. We disagree.
Connecticut courts repeatedly have rejected constitutional challenges to instructional languаge that reasonable doubt is “a real doubt, an honest doubt, a doubt which has its foundation in the evidence or lack of evidence.” See, e.g., State v. Lemoine,
The defendant next takes issue with the language, “it is [a doubt] for which you can, in your own mind, conscientiously give a reason.” He contends that this language required the jury to have a moral reason to find a doubt, as the term “conscientious” can be defined
The defendant’s reliance on Cage is misplaced. “In Cage v. Louisiana, [supra,
In State v. Gomez,
In this case, as in Gomez, the jury charge as a whole clearly defined the proof beyond a reasonable doubt standard. See also State v. Montgomery, supra,
The defendant next argues that the language “a mere hypothesis of innocence will not suffice” was in error. The defendant correctly concedes that our courts repeatedly have upheld language that “a mere possible hypothesis of innocence will not suffice.” See, e.g., State v. Godfrey,
“Proof beyond a reasonable doubt requires that the evidence exclude every reasonable hypothesis of inno
After reviewing the instructions as a whole, we conclude that the court’s failure to include the adjective “possible” when stating that “a mere hypothesis will not suffice,” did not mislead the jury. We so conclude in light of the court’s clear instruction regarding the distinction between a reasonable doubt and a mere possible hypothesis: “Proof beyond a reasonable doubt is proof which excludes every reasonable hypothesis except guilt. Proof beyond a reasonable doubt is consistent with guilt and is consistent with guilt and is inconsistent with any other reasonable conclusion. You must, however, distinguish between a reasonable hypothesis and a possible hypothesis. Proof of guilt must exclude every reasonable supposition of innocence. A mere hypothesis of innocence will not suffice.”
Finally, the defendant points to the instruction: “If you can, in reason, reconcile all of the facts proven with any reasonable theory consistent with the innocence of the accused, then you cannot find him guilty. On the other hand, if you find that the proven facts do establish the guilty of the accused beyond a reasonable doubt, then the proper verdict would be guilty.” The defendant does not contend that this language in itself diluted the state’s burden of proof, as our Supreme Court has upheld similar language in State v. Griffin,
The judgment is affirmed.
In this opinion the other judges concurred.
Notes
The victim testified that he was not sure exactly what the defendant said. He testified that it was “let me give you money or give me money, something like that.” Two police officers who spoke with the victim shortly after the incident testified that the defendant said, “I have your money,” and, ‘Tve got your money,” respectively.
The defendant also was charged with criminal contempt in violation of General Statutes § 51-33a to which he pleaded guilty and was sentenced to thirty days imprisonment to run consecutively to the sentence for the conviction of attempt to commit robbery in the first degreе.
See part II.
General Statutes § 53a-49 (a) provides in relevant part: “A person is guilty of an attempt to commit a crime if, acting with 1he kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”
General Statutes § 53a-119 (7) provides in relevant part: “Theft of services. A person is guilty of theft of services when ...(B) (i) with intent to obtain . . . taxi or any other public transportation service without payment of the lawful charge therefor or to avoid payment of the lawful charge for such transportation service which has been rendered to him, he obtains such service or avoids payment therefor by force, intimidatiоn, stealth, deception or mechanical tampering, or by unjustifiable failure or refusal to pay . . . .”
Although the defendant claims that he was not permitted to present extrinsic evidence to impeach the victim’s testimony, his argument is limited to a discussion of whether the court properly limited cross-examination of the victim. His brief does not address whether he should have been allowed
The court instructed in relevant part: “What does beyond a reasonable doubt mean? It has no technical or unusual meaning. You may arrive at the real meaning of this term beyond a reasonable doubt by emphasizing the word reasonable. A reasonable doubt means doubt based upon reason and common sense. It is a doubt which is something more than a guess or a surmise. It is not a conjecture or a fanciful doubt or a doubt raised by one who questions simply for the sake of argument. It is not hesitation springing from feelings of sympathy or pity for the accused or members of his family or sympathy or pity for any other persons who might, in any way, be affected by your verdict. A reasonable doubt is a real doubt, an honest doubt, a doubt which has its foundation in the evidence or in the lack of evidence. ...”