39 Conn. App. 657 | Conn. App. Ct. | 1995
This matter is before us on remand from our Supreme Court. State v. Lemoine, 233 Conn. 502, 659 A.2d 1194 (1995). The defendant originally appealed to this court from the judgment of conviction, rendered after a jury trial, of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (B),
Our Supreme Court granted the state’s petition for certification. State v. Lemoine, 230 Conn. 909, 644 A.2d 920 (1994).
“The jury could reasonably have found the following facts. On June 20, 1991, the victim, his mother, the defendant, Barbara Tirado and her daughter went to a lake. The victim was eight years old at the time. After staying at the lake, they drove to the home of the defendant’s mother, then to the home of his sister and then to Tirado’s home located on Maple Street in Meriden. The victim’s father later joined the group and the adults all began drinking. The victim fell asleep on the couch in Tirado’s home wearing his pants, shirt and underpants. The victim’s father was asleep on a chair near the couch and the victim’s mother was asleep in another room. The victim awoke to find the defendant placing his hands between the victim’s legs on the outside of the victim’s pants. The defendant was attempting to pull down the victim’s pants. The defendant was behind the victim on the couch and the victim was facing away from the defendant. The defendant told him to be quiet. The victim took off his pants while the defendant continued to touch the outside of the underpants between the legs and then the defendant cut the victim’s underpants.
“The victim’s mother ran into the living room to wake the victim’s father. In the meantime, the defendant, who was wearing only a tee shirt, ran down the stairs and out the backdoor. Tirado caught the defendant outside and asked him ‘why he did it’ and the defendant responded that he was sorry and the drugs made him do it. Tirado brought the defendant back upstairs. The victim’s father and the defendant then fought while the victim’s mother took off the victim’s underpants and dressed him.
“Officers Michael Merrigan, Mark Masse and Grant Treiber of the Meriden police department arrived at the scene in uniform shortly thereafter. Merrigan approached the father and was informed by him about the events that occurred at Tirado’s home. Masse and Treiber approached the defendant’s vehicle and asked him to exit it. As they attempted to open the door of the defendant’s vehicle and take the keys, the defendant hit Treiber in the face and drove the vehicle in reverse. The officers at that point were hanging onto the doors of the vehicle. The truck veered to the right and almost hit a building on Maple Street. Treiber fell off the side of the truck and Masse hit a door attached to the building with sufficient force to break a hole in the door.
“At the crime scene, Robert Pocobello, a Meriden police detective, seized a pair of scissors and underpants. He discovered the scissors on a coffee table near the couch and the underpants on the couch. Pocobello processed the scissors for fingerprints. The processing revealed the presence of fingerprints that were not clear enough to be identified.
“Ted Standish, another Meriden police detective, employed by the department’s sexual assault unit, interviewed the victim on June 21, 1991. The victim stated that after arriving at Tirado’s home, she told him to sleep on the couch, where the defendant was already sleeping. The victim further told Standish that he awoke when the defendant placed his hands on the victim’s ‘dinky’
“The defendant disputed the facts. He testified on his own behalf that he, the victim, Tirado and the victim’s mother arrived at Tirado’s home after they had spent the day at the lake. The defendant also testified that he left Tirado’s at 11 p.m., just after the victim’s father arrived, returned at around 4:30 or 5 a.m., and found Tirado and the victim’s father drinking and the victim asleep on the couch. The defendant also stated that he fell asleep on the couch, ‘opposite the victim’ and awoke to find the victim’s father with his hand in the pocket
In the only issue remaining to be resolved, the defendant asserts that the trial court improperly instructed the jury with respect to the law governing the crime of risk of injury to a child. We are unpersuaded. The defendant concedes that this issue was not properly preserved for review in the trial court, but seeks review under the well established principles of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We will not again set out the four prongs of Golding that the defendant must satisfy in order to show entitlement to review. Id., 239-40.
The following additional facts are necessary to the resolution of this appeal. In the third count of the long form information, the state charged the defendant with the crime of risk of injury to a child and alleged that “in the City of Meriden, on or about the 21st day of June, 1991, at or about 5:30 a.m, the said Kenneth Lemoine, Jr. did wilfully or unlawfully perform an act likely to impair the health or morals of a child, to wit: [D.N.], a minor, under the age of sixteen years, by caus
The defendant asserts that the trial court, in its jury instructions, failed to limit explicitly the jury’s inquiry to the specific acts alleged by the state in the third count of the information. The defendant claims that this failure unconstitutionally “enlarged” the crime with which the defendant had been charged. The trial court’s instruction regarding the third count of the information, however, is not an instruction that implicates a constitutional violation as enumerated in our enlargement case law. The defendant’s mere assertion that the jury instruction must be subjected to an enlargement analysis does not automatically mandate such an analysis. See State v. Webb, 37 Conn. App. 722, 730, 657 A.2d 711, cert. denied, 234 Conn. 915, 660 A.2d 357 (1995) (“ ‘[rjobing garden variety claims of improper jury instructions concerning evidentiary matters in the majestic garb of constitutional claims does not make such claims constitutional in nature’ ”). Our enlargement cases involve claims that the trial court expanded the state’s information by instructing the jury on statutory or factual alternatives not charged in the information. See, e.g., State v. Scognamiglio, 202 Conn. 18, 519 A.2d 607 (1987) (statutory alternative); State v. Marra,
Here, the trial court correctly set forth the elements of the crime of risk of injury, and did not expand the information by instructing the jury on a statutory or factual alternative not charged in the information. An unconstitutional enlargement is therefore not in issue. The instruction involved here is not the kind of instruction that we consider in the context of the test for enlargement to determine whether a constitutional violation exists that clearly deprived the defendant of a fair trial.
Although we conclude that no unconstitutional enlargement exists here, we will review the charge as a whole to determine if the charge deprived the defendant of a fair trial. “In reviewing a constitutional challenge to the trial court’s instructions, we must consider
“A jury instruction is constitutionally adequate if it provides the jurors with a clear understanding of the elements of the crime charged, and affords them proper guidance for their determination of whether those elements were present. . . . State v. Usry, 205 Conn. 298, 316, 533 A.2d 212 (1987); State v. Sinclair, 197 Conn. 574, 581, 500 A.2d 539 (1985); see State v. Wood, 208 Conn. 125, 132, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988). An instruction that fails to satisfy these requirements would violate the defendant’s right to due process of law as guaranteed by the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. State v. Anderson, 212 Conn. 31, 36, 561 A.2d 897 (1989); State v. Foster, 202 Conn. 520, 537, 522 A.2d 277 (1987); State v. Fleming, [supra, 198 Conn. 269-70]. . . . State v. Avila, supra, 223 Conn. 602-603.
Here, the defendant was charged in the state’s long form information in nine separate counts. See id., 512-13. “After the close of evidence and immediately after the final arguments of counsel, the trial court instructed the jury as to the law applicable to all of the charges against the defendant. The court first instructed the jury on the general principles of law applicable to the case, such as reasonable doubt, direct evidence, circumstantial evidence and other principles typically contained in all criminal jury instructions. The court then instructed the jury accurately as to the elements the state must prove as to each crime charged in the information in order to convict the defendant.” Id., 513.
We conclude that, in its charge to the jury, the trial court was not constitutionally obligated to articulate that the jury was limited in its consideration of the third count to the specific acts alleged by the state in its long form information. We are not persuaded that it was reasonably possible that the jury was misled by the trial court’s failure to do so. “Moreover, the information, which the jury had with it during its deliberations,
“In assessing whether a jury reasonably could have been misled by the court’s instructions ... it is always proper to consider whether the issues in the case are complicated.” Id., 514-15. “In the present appeal, although the defendant was charged with nine separate counts in the information, the evidence related to those charges was not complicated and the charges arose from three separate and distinct incidents. The first three counts against the defendant all related to the minor victim and concerned the incident involving sexual conduct at Tirado’s apartment. The two counts of reckless endangerment arose from the collision of the defendant’s truck with the victim’s father’s van at the comer of Maple Street and Main Street in Meriden. The assault counts involved only the police officers. The three incidents were not similar. Moreover, the final arguments of counsel, delivered immediately prior to the court’s instructions, thoroughly reviewed the testimony elicited from the witnesses.” Id., 515-16.
“We conclude that the court’s jury instructions, when examined as a whole and in the context of the entire trial, achieved their purpose of assisting the jury in applying the law. See State v. Sumner, supra, 178 Conn. 170-71. . . . We also conclude that it was not reasonably possible that the jury was misled by the trial court’s instructions and that no injustice to the defendant resulted by reason of the court’s instructions. See Amato v. Sawicki, 159 Conn. 490, 494, 271 A.2d 80 (1970). There was, therefore, no due process violation under either the state or the federal constitution.” State v. Lemoine, supra, 233 Conn. 516.
The judgment is affirmed.
In this opinion the other judges concurred.
General Statutes § 53a-72a (a) provides in pertinent part: “A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact . . . (B) by the threat of use of force against such other person or against a third person, which reasonably causes such other person to fear physical injury to himself or herself or a third person . . .
General Statutes § 53-21 provides: “Any person who wilfully 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 (Rev. to 1991) § 53a-167c (a) provides in pertinent part: “A person is guilty of assault of a peace officer, fireman, employee of an emergency medical service organization or employee of the department of correction when, with intent to prevent a reasonably identifiable peace officer, fireman or employee of an emergency medical service organization, as defined in section 53a-3, or employee of the department of correction from performing his duty, and while such peace officer, fireman or employee is acting in the performance of his duties, (1) he causes physical injury to such peace officer, fireman or employee . . .
The grant of certification was limited to the following issues:
“1. Did the Appellate Court properly conclude that the trial court had a constitutional obligation to refer to the facts relating to each charge in its jury instructions?
“2. Did the Appellate Court correctly order a new trial because the trial*660 court did not relate the facts to each crime charged?” State v. Lemoine, supra, 230 Conn. 909.
In its opinion remanding this matter to us, our Supreme Court states: “Because the Appellate Court agreed with the defendant’s second claim, it did not reach the defendant’s first and third claims.” State v. Lemoine, supra, 233 Conn. 505 n.4. We did, however, in our first opinion, resolve both issues one and two, leaving unresolved only issue three. State v. Lemoine, supra, 33 Conn. App. 747-54.
The victim testified that his underwear was left in Tirado’s bedroom. The victim’s mother testified that she did not remember where the underwear was left.
“Standish testified that the victim pointed to his penis when he used the word ‘dinky.’ ” State v. Lemoine, supra, 33 Conn. App. 747 n.6.
“The first two conditions [of Golding] are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself.” State v. Graham, 33 Conn. App. 432, 442, 636 A.2d 852, cert. denied, 229 Conn. 906, 640 A.2d 117 (1994).