200 Conn. 268 | Conn. | 1986
After a trial to the jury, the defendant Charles F. O’Neill was found guilty of the crime of arson in the first degree in violation of General Statutes § 53a-lll (a) (l).
On appeal, the defendant claims that the trial court erred: (1) in admitting “prejudicial evidence concerning unsubstantiated allegations” of prior bad acts by him and in other evidentiary rulings concerning that evidence;
The jury could reasonably have found the following facts: On Sunday morning, February 21, 1982, at 1:20 a.m., a Waterbury police officer was dispatched by car radio to a fire at a house owned by the victim, a former girlfriend of the defendant, located at 51 Edgewood Avenue in Waterbury. Upon his arrival, he observed not only that smoke and steam were coming from the front of the house, but that the fire had been put out by the victim’s son, Steven, with a garden hose. He observed fire damage to the front porch and the aluminum siding. He smelled what he believed to be gasoline, the aroma of which got stronger as he walked nearer to the house. As a result of his investigation in the area, he came upon a truck about 100 yards up Edgewood Avenue on a corner. Under the truck he found a plastic container which had some fluid in it that smelled of gasoline. This truck was later identified to be owned and used by the defendant in his business of servicing and handling fire extinguishers for customers such as factories, shops, stores, schools and convalescent homes.
The defendant testified concerning his background in this area. Much of his time in his four years in the United States Air Force was spent in the fire prevention field. Prior to establishing his own business, he had spent time in Kansas where he sold, serviced and installed fire equipment and later did similar work for approximately five years for a fire equipment company in Las Vegas. He has attended seminars and given demonstrations involving fire.
The defendant and the victim had dated intermittently from about October, 1980, to October 10,1981, at which time their relationship ended. The relationship had been a stormy one, yet the defendant professed his love for her and had asked her to marry him. She refused, and after their October 10,1981
The trial court admitted evidence of several acts of alleged vandalism against the victim or her family that had occurred before October 10,1981. These acts allegedly occurred when the victim and the defendant had had disagreements at various times during the course of their relationship. The acts involved were that two electric meters were taken from her home around Easter of 1981, paint was thrown onto the car of her teenage son, Chris, around July 4,1981, and air was let out of two of the tires on Chris’ car around Labor Day, 1981.
I
We turn first to the defendant’s claim concerning the alleged acts of prior misconduct. The trial court told the jury that it was admitting this evidence for the purpose of motive and identity. The defendant claims that the trial court initially erred in admitting this evidence without first determining by clear and convincing evidence that he had committed these acts. This evidence was, he argues, highly prejudicial because the prosecutor used it to convey to the jury that he had a bad character, the propensity to commit vandalistic acts “such as the said fire” and that he was the type of person to retaliate. He argues that such use of acts of prior misconduct is “clearly forbidden.” He maintains that his main defense, the lack of the intent required for the crime charged, was clearly harmed by the admission and use of such evidence. This is true, he asserts, because if the jury were to have found that he did commit these prior acts, it would be more likely to consider the fire as part of a consistent, intentional and premeditated scheme to harass the victim and her family rather than as an uncontrolled, unintentional, spontaneous act done by him while he was on an alcoholic “binge.” The harmfulness of this evidence was compounded, the defendant continues, by other evidentiary rulings. The first is that he was prohibited from rebutting prior mis
As already noted, the trial court admitted the prior acts for the limited purposes of their consideration by the jury on the questions of motive and identity. In addition, whether the defendant had acknowledged committing these acts was a question properly left to the jury. “ ‘As a general rule, evidence of guilt of other crimes is inadmissible to prove that a defendant is guilty of the crime charged against him. State v. Harris, 147 Conn. 589, 599, 164 A.2d 399 [1960].’ State v. Fredericks, 149 Conn. 121, 124, 176 A.2d 581 (1961); McCormick, Evidence (2d Ed. 1972) § 190; 1 Wharton, Criminal Evidence (13th Ed.) § 170. The rationale of this rule is to guard against its use merely to show an evil disposition of an accused, and especially the predisposition to commit the crime with which he is now charged. See State v. Williams, 190 Conn. 104, 108, 459 A.2d 510 (1983); State v. Howard, 187 Conn. 681, 684, 447 A.2d 1167 (1982); State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982); State v. Barlow, 177 Conn. 391, 393, 418 A.2d 46 (1979); 1 Wigmore, Evidence (3d Ed.) §§ 215-18. Evidence of other misconduct, however, ‘may be allowed for the purpose of proving many different things, such as intent, identity, malice, motive or a system of criminal activity’; State v. Ibraimov, supra; or an element of the crime. State v. Falby, 187 Conn. 6, 23, 444 A.2d 213 (1982).” State v. Braman, 191 Conn. 670, 675-76, 469 A.2d 760 (1983); State v. Ryan, 182 Conn. 335, 337, 438 A.2d 107 (1980). Despite its prejudicial character, evidence of such misconduct may be admissible if the prior acts
The trial court admitted this evidence after a full hearing in the absence of the jury. At that time, the victim was examined at length by the state and not at all by the defense. The court recognized that the state’s claim here encompassed, inter alia, that the defendant struck out against the victim in return for her treatment of him over the stormy course of their association. It perceived the relevance of this evidence on motive and identity. There is no question that motive may be probative of the identity of a perpetrator. See, e.g., State v. Green, 232 Kan. 116, 121, 652 P.2d 697 (1983); McCormick, Evidence (3d Ed. 1984) § 190, p. 562. It is true that the court did not state, as the defendant claims it should have, that, in admitting that evidence, it had first determined “by clear and convincing evidence that the defendant committed the acts.” The short answer to that is that it was not required to do so with reference to this evidence nor does the defend
There is no merit to the defendant’s claim that the prosecutor used this evidence to convey to the jury that the defendant had a bad character and a propensity to commit vandalistic acts such as the fire in question and that he was a person to retaliate. The defendant specifically points to certain language used by the prosecutor in his closing argument to the jury such as: “[The defendant was] the scorned lover, scorned boyfriend [who] finally acted on his statement that he didn’t get mad, he got even . . . .” The defendant did not object to this argument at trial nor did he request curative instructions. “We have held on a number of occasions that where a criminal defendant does not object and take exception to allegedly prejudicial remarks of the state’s attorney, either at the time they were made or at the close of argument, he waives his right to press the claimed error on appeal.” State v. Tyler-Barcomb, 197 Conn. 666, 673, 500 A.2d 1324 (1985).
Likewise, we reject the defendant’s argument that the admission and use of the prior misconduct evidence so undermined his “main defense” of the lack of the requisite mens rea due to his intoxication that even if he had started the fire while on a “binge” as an unintentional, uncontrolled and spontaneous act, the evi
As a subissue of his overall argument on the admission and use of the prior misconduct evidence, the defendant also claims error in two evidentiary rulings. First, he claims error in the exclusion of testimony of Eleanor McNamara, a defense witness, who allegedly would have testified that the victim had made statements to her concerning the vandalizing of her electric meters that were inconsistent with the victim’s testimony at the trial. We cannot conclude that the trial court erred in the exercise of its discretion in excluding this extrinsic evidence. See State v. Crane, 169 Conn. 242, 245, 362 A.2d 843 (1975); State v. Wilson, 158 Conn. 321, 324, 260 A.2d 571 (1969); McCormick, Evidence (3d Ed. 1984) § 36; 81 Am. Jur. 2d, Witnesses §§ 474-76.
Error is also claimed because the trial court allowed the state, over objection, to cross-examine the defendant as to whether anyone, including the police, had ever questioned him concerning the prior acts of vandalism or whether he was responsible for them. The defendant’s counsel objected, saying that there had been nothing on his direct examination about that, that it was “totally irrelevant,” that it created a “side issue” and was not material. The ruling was not error because the transcript discloses that defense counsel had explored this matter on his direct examination.
II
The defendant also claims that the trial court erred in failing to instruct the jury, as requested, on the lesser
Not only do we decline to modify our lesser included offense rule as urged by the defendant, but we reject his “editing” claim.* ***
Ill
Next, the defendant claims that the trial court erred in giving the “Chip Smith” charge under the special circumstances of this case. The key circumstance the defendant advances here is that it was given, not only on the third day of deliberations but in a case where a lesser included instruction was erroneously refused, thus greatly weakening his crucial factual claims concerning the effect of his intoxication. Here he argues that the “only real factual issue” in the case involved his intoxication. Given, as it was, on the third day of deliberations, it was coercive and undermined the position of the conscientious dissenting juror.
“The ‘Chip Smith’ charge has been so consistently upheld by this court that the defendant does not challenge it directly. See State v. Stankowski, 184 Conn. 121, 145-46, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981), and cases cited therein.” State v. Avcollie, 188 Conn. 626, 641, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S. Ct. 2088, 77 L. Ed. 2d 299 (1983); State v. Jones, 193 Conn. 70,
The jury wrote a note to the trial court, signed by its foreperson, which simply said: “The jury cannot reach a unanimous verdict.” There was no indication then or thereafter of the nature or number of the division of the jury. See Brasfield v. United States, 272 U.S. 448, 47 S. Ct. 135, 71 L. Ed. 345 (1926). Initially, we point out that the trial judge clearly and articulately instructed the jury just prior to the “Chip Smith” charge
The charge itself was not at all coercive or prejudicial as claimed. “While a defendant is not entitled to an instruction that a jury may ‘hang’ . . . he is entitled
The “Chip Smith” instruction was timely given, and it accurately set out the jurors’ duty and, even without the instructions immediately preceding it, was not erroneous as argued in the “special circumstances” of this case. There was no constitutional violation of the defendant’s rights as claimed.
Finally, the defendant claims that because of an alleged unconstitutional statutory scheme involving mandatory minimum sentences, the trial court imposed a sentence which was unconstitutional because it was not proportional to the crime. Invoking both the United States and Connecticut constitutions, he asserts that the sentence imposed was unconstitutional because it violated his rights to equal protection of the laws, due process and against cruel and unusual punishment.
Certain background circumstances are necessary to put this equal protection claim in context. At the time of sentencing in 1982, the defendant argued that the requirement that arson in the first degree required a mandatory nonsuspendible minimum sentence of ten years rendered the sentencing scheme unconstitutional. Although he urged the trial court to impose a sentence of ten years suspended after five, the trial court refused to do so indicating that, in its view, the statutory scheme afforded it no discretion but to impose the mandatory nonsuspendible minimum sentence of ten years, which it did.
About three weeks prior to oral argument in this case, we handed down our decision in State v. Jenkins, 198 Conn. 671, 504 A.2d 1053 (1986). In Jenkins, the defendant had been convicted of kidnapping in the first degree without a firearm, General Statutes § 53a-92 (a) (2) (C). At his sentencing, Jenkins asked the trial court to consider suspending part of the ten year minimum sentence prescribed for his conviction under General Statutes § 53a-92. State v. Jenkins, supra, 673. The defendant acknowledged that General Statutes §§ 53a-92, 53a-28 and 53a-29 prohibited suspension of sentences for Class A felonies. Asking the trial court to read these statutes together with General Statutes § 53a-92a, governing kidnapping in the first degree with a firearm, he maintained that, because § 53a-92a permits suspension of the sentence after one year, an ambiguity existed between the statutes. The defendant’s counsel, therefore, asked that the court consider suspending Jenkins’ sentence after seven years. State v. Jenkins, supra. While agreeing with the defendant that there was some ambiguity between the relevant statutes, we found the record clear that the trial court felt constrained to impose a mandatory sentence and that it could not suspend any portion of it. In Jenkins, unlike this case, we had to “deal with legislative error that mistakenly assigns a lesser penalty to a greater crime.” Id., 677. A literal reading of the statutes in that case persuaded us that Jenkins was required to be given a mandatory minimum sentence that
Conscious of the legislative prerogative and the desire to avoid a constitutional confrontation, as well as recognizing that Jenkins’ sentence needed further review, we acknowledged that “[t]he legislature, cognizant of the constitutional guarantees of equal protection, must be deemed to have sought to attain a rational and sensible result that avoids placing a statute in constitutional jeopardy.” Id., 679. Applying that theorem in Jenkins, we stated: “It is not rational and sensible to impose a lesser term of mandatory imprisonment on one convicted of kidnapping with the use of a firearm than on one convicted for a similar crime not involving a firearm.” (Emphasis added.) Id., 679-80.
The defendant claims that Jenkins is dispositive of this issue in this case. We agree. At oral argument, the state conceded that Jenkins applied and that it could not distinguish it “morally or legally.” In conceding
We point out that, as in Dupree, the classification of crimes is for the legislature. State v. Dupree, supra, 665; State v. Rao, 171 Conn. 600, 603, 370 A.2d 1310 (1976); State v. Robbins, 257 N.W.2d 63, 67 (Iowa 1977). It is the general rule that while the legislature has wide power to prescribe the nature, character and extent of defined offenses, its power to fix penalties is, however, subject to constitutional proscription. People v. Bradley, 79 Ill. 2d 410, 417, 403 N.E.2d 1029 (1980); People v. Dixon, 400 Ill. 449, 453, 81 N.E.2d 257 (1948); Commonwealth v. Jackson, 369 Mass. 904, 909, 344 N.E.2d 166 (1976); State v. Moore, 286 N.W.2d 274, 278 (N.D. 1979), cert. denied, 446 U.S. 943, 100 S. Ct. 2170, 64 L. Ed. 2d 799 (1980); State ex rel. Cogar v. Kidd, 160 W. Va. 331, 371, 376, 234 S.E.2d 899 (1977); see Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 469, 67 S. Ct. 374, 91 L. Ed. 422 (1947). Whether a penalty is proportional to a certain offense is a legislative question which courts cannot change unless that legislative determination is unconstitutional. Clifton v. State, 176 Ind. App. 395, 397, 375 N.E.2d 1126 (1978). The legislature is entitled to establish more severe penalties for acts which it believes have greater impact and graver consequences. Sheriff, Clark County v. Williams, 96 Nev. 22, 24, 604 P.2d 800 (1980).
We know that it is not the prerogative of courts in this area lightly to “launch an inquiry to resolve a debate which has already been settled in the legislative forum.” Commonwealth v. Leis, 355 Mass. 189, 202, 243 N.E.2d 898 (1969) (Kirk, J., concurring). It
There is error, the judgment is set aside and the case is remanded only for resentencing in accordance with this opinion.
In this opinion the other justices concurred.
General Statutes § 53a-lll (a) (1) provides in relevant part: “arson in the first degree: class A felony, (a) A person is guilty of arson in the first degree when, with intent to destroy or damage á building, as defined in section 53a-100, he starts a fire or causes an explosion, and (1) the building is inhabited or occupied or the person has reason to believe the building may be inhabited or occupied . . . .”
At oral argument, the defendant’s counsel stated that he was withdrawing a claim of prosecutorial misconduct in the state’s closing argument as a distinct assignment of error, but that he was, nevertheless, going to use the claimed misconduct in the argument to show prejudice insofar as that argument contravened the basis upon which the court had admitted the prior acts of claimed misconduct.
At oral argument, the defendant was given permission to file an amended statement of issues so as to incorporate in this claim of error the principles of our recent decision in State v. Jenkins, 198 Conn. 671, 504 A.2d 1053 (1986). The defendant has done so and has also filed a memorandum setting out his claims as to the applicability of Jenkins.
The evidence was conflicting, inter alia, concerning whether it was the victim or the defendant who decided to end their relationship on October 10, 1981.
On this nonconstitutional evidentiary claim, the defendant refers to State v. Guthridge, 164 Conn. 145, 156, 318 A.2d 87 (1972), cert. denied, 410 U.S. 988, 93 S. Ct. 1519, 36 L. Ed. 2d 186 (1973), for support. That case is clearly inapposite. In Guthridge, we said that the state satisfied its burden of showing by clear and convincing evidence that an in-court identification was independent of a prior one-on-one showing of the defendant that was claimed to be fundamentally unfair. That is hardly this case.
General Statutes § 53a-113 provides in part: “(a) A person is guilty of arson in the third degree if he recklessly causes destruction or damage to a building, as defined in section 53a-100, of his own or of another by intentionally starting a fire or causing an explosion.”
General Statutes § 53a-114 provides in part: “(a) A person is guilty of reckless burning if he intentionally starts a fire or causes an explosion, whether on his own property or another’s, and thereby recklessly places a building, as defined in section 53a-100, of another in danger of destruction or damage.”
The substitute information was the following:
“Paul E. Murray, Assistant State’s Attorney for the Judicial District of Waterbury accuses CHARLES F. O’NEILL, 1417 E. Main Street, Waterbury, Ct. of ARSON in the First Degree and charges that at the Town or City of Waterbury on or about the 21st day of February, 1982, at approxi
Our rejection of the defendant’s “editing” claims makes unnecessary any extended discussion of the defendant’s claim that either arson in the third degree in violation of General Statutes § 53a-113 or reckless burning in violation of General Statutes § 53a-114 are lesser included offenses of arson in the first degree in this case. In any event, arson in the third degree
In his brief and in oral argument before us, the defendant’s counsel referred to the dissenting juror. At oral argument, he acknowledged that the record does not support any claim that there was one dissenting juror when the “Chip Smith” charge was given.
The defendant, referring to State v. Peary, 176 Conn. 170, 183, 405 A.2d 626 (1978), cert. denied, 441 U.S. 966, 99 S. Ct. 2417, 60 L. Ed. 2d 1072 (1979), argues that a “fundamental right” is involved when an issue is raised concerning a coercive jury instruction. Alleging that giving the challenged instruction violated both the United States and Connecticut constitutions, he claims that the burden is on the state to prove the alleged violation harmless beyond a reasonable doubt. Peary is not authority for moving the burden to the state. Peary involved the “Chip Smith” charge, to which the objection on appeal was not made at trial. Id. Despite a failure to object, in Peary we considered the objection “because a fundamental right is involved and review may be made on the record” and for that proposition cited two cases, i.e., State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973), and a post-H/raws case which in turn relied on Evans for the issue reviewed. See State v. Chesney, 166 Conn. 630, 639, 353 A.2d 783, cert. denied, 419 U.S. 1004, 95 S. Ct. 324, 42 L. Ed. 2d 280 (1974).
Immediately prior to the “Chip Smith” charge, the trial court charged the jury as follows:
“[Tjhe court feels that this matter has been well tried and you have heard the evidence in the matter and although this is not three complete days, but this is the third day of deliberations, that the court is of the opinion that it should give you additional instructions regarding this matter, to see whether or not it is within your reach to arrive at a verdict in this matter.
“So, with this thought in mind, the court wishes to state to you, at the outset, that the additional instructions are not to be construed by you as to be coercive in any manner or to compel you to arrive at a verdict, the instructions are designed to aid you in considering your own positions, individually and weighing your individual positions against the collective positions or the positions of other members of the jury and after having
“The court’s instructions that I shall give you now is only to provide you with additional information so that you may return to your deliberations and see whether or not you can arrive at a verdict.”
13 The “Chip Smith” instruction given was the following:
“Along these lines, the court would like to state the following to you: although the verdict to which each of you agrees must express his or her own conclusion and not a mere acquiescence in the conclusion of your fellow jurors, yet in order to bring your six minds to a unanimous result, you should consider the questions you have to decide, not only carefully, but also with due regard and deference to the opinions of eaeh other.
“In conferring together, you ought to pay proper respect to each other’s opinion and listen with an open mind to each other’s argument. If much the larger number of you reach a certain conclusion, a dissenting juror or jurors should consider whether his opinion or her opinion is a reasonable one, when the evidence does not lend to a similar result in the minds of so many of you who are equally honest and equally intelligent with yourself, who have heard the same evidence with the same attention, with equal desire to arrive at the truth and under the same sanctions of the same oath. If the majority of you are for one decision, the minority ought seriously to ask themselves whether they may not reasonably or ought not to doubt their own conclusions when it is not concurred in by most of those with whom they are associated and they may well distrust the weight or sufficiency of the evidence upon which they rely when it fails to bring the minds of their fellow jurors to the same conclusions that you hold.
“I have stated this to you in order to get you to further consider in your deliberations the opinions of your fellow jurors. This is all.
“I am going to ask you to return to the jury room and see if you can arrive at a verdict. All right. You may return to the jury room.”
Because we dispose of this claim on equal protection grounds, we need not discuss the tenuous branch of this claim that asserts that the sentence imposed constituted cruel and unusual punishment; see Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983); nor need we discuss the defendant’s due process claim.
At that time, the trial court indicated that, were the mandatory nonsuspendible minimum sentence not required, it did not know what sentence it would impose upon the defendant.
To avoid the “constitutional quagmire” that would otherwise face us in Jenkins, we held that General Statutes § 53a-92a (b) had “created an irreconcilable conflict in the statutes governing mandatory minimum sentences for kidnapping in the first degree” and we were careful to state that we also held that “until the legislature takes corrective action, the sentencing provision of § 53a-92a (b) governs all prosecutions for kidnapping in the first degree.” State v. Jenkins, 198 Conn. 671, 680, 504 A.2d 1053 (1986). We held, accordingly, that the trial court erred “in refusing to exercise the discretion conferred upon it by § 53a-92a (b) to consider suspension of the defendant’s sentence of imprisonment after one year.” Id.