State v. PierceState v. Pierce
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- Dupont
*518 Opinion
DUPONT, J.The defendant, Jeffrey Pierce, appeals from the judgment of conviction, rendered after a jury trial, of kidnapping in the second degree in violation of
The defendant claims that the court improperly (1) found that the evidence was sufficient to prove that the defendant had committed the offense of kidnapping in the second degree for a sexual purpose within the meaning of
The jury reasonably could have found the following facts. OnAugust 11,1998, the victim drove her Plymouth Voyager minivan to the Shaw’s Supermarket in Newington to purchase groceries. The victim was alone and spent approximately one-half hour inside the store. The victim then returned to her vehicle, loaded her groceries and got in the driver’s seat. The defendant was hiding in the backseat of the vehicle4 and, upon the victim’s entry into the vehicle, placed a knife to her side. The knife’s blade was five to six inches in length and was beveled.
The defendant told the victim to “do as I say and you will not be hurt.” The defendant ordered the victim to drive to Glastonbury and gave her specific directions to follow. The defendant directed the victim to a park on a dirt road in East Hartford. The road was blocked by a gate and the victim stopped the vehicle. The defendant ordered the victim to accompany him into a wooded area. The victim refused and told the defendant that she did “not feel like getting harmed or raped by [the defendant].” The defendant stated that he did not intend to harm the victim, but he did not want the victim to see which way he would be going in the wooded area to aid in his escape. The victim suggested that she would look away while the defendant fled into the wooded area. The defendant “seemed satisfied with that,” and the victim did not turn around until she was certain that the defendant was gone.
The victim then drove to the Newington police department and reported the incident. The victim described *520the man who perpetrated the crime as having shoulder length, dirty blond hair and wearing a baseball cap, blue jeans and a shirt. A detective prepared a composite sketch drawing based on the victim’s description. Thereafter, flyers were printed based on the composite sketch drawing. The flyers were shown to members of the Newington police department, including Officer Jeannine M. Candéis and her partner, Officer Timothy A. Walsh, who both recognized the sketch as depicting the defendant. They then went to a motel in Newington, where they believed the defendant was currently living.
The officers interviewed the defendant and he gave them a full statement in which he confessed. He signed the statement, and his version of the events matched that given by the victim. The defendant also gave the officers a baseball cap that he had been wearing during the event, and the officers took a picture of the defendant wearing the hat. The next day, the victim returned to the Newington police department and was shown a photographic lineup consisting of eight photographs, including the defendant. The victim recognized the defendant and pointed him out as the man that she had described three days earlier. Additional facts will be set forth where necessary to address the issues on appeal.
I
The defendant first claims that the court abused its discretion when it required him to register as a sex offender pursuant to
Before reaching this issue as originally briefed by the parties, we address the supplementary issues we raised after oral arguments in this court. We requested that the parties file simultaneous supplemental briefs addressing the following issues:
“Is§ 54-254 (a) a sentence enhancement statute?
*521“A. If it is a sentence enhancement statute, what is the proper procedure to be followed? See Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
“B. If it is not a sentence enhancement statute, must the court hold an evidentiary hearing before finding that the defendant has committed a felony for a sexual purpose, and what is the standard of proof to be applied at the hearing?”
The state claims in its supplemental brief that the supplemental issues are “unpreserved and [therefore have been] waived” by the defendant because they were not raised at trial and were not originally briefed. The state further asserts that it “does not concede review-ability of the supplemental issues or consent to their consideration by this court.” We would not have asked for supplemental briefs had we believed the issues were not reviewable, nor do we need the consent of the parties to review issues we deem relevant.
The case of State v. Velasco, 253 Conn. 210, 751 A.2d 800 (2000), is relevant to the state’s position that the supplemental issues should not be reviewed. In Velasco, the defendant did not object at trial to the court’s determination, as opposed to a determination by the jury, that he had used a firearm in the commission of the underlying felony with which he had been charged. Id., 218 n.9. In the present case, the defendant did not object to the court’s application of
We also review the claim in the present case pursuant to the plain error doctrine as outlined in Velasco. The application and interpretation of
Our analysis of
“The seriousness of the harm that sex offenders’ actions cause to society and the perception, supported by some data, that such offenders have a greater probability of recidivism than other offenders have recently combined to prompt the enactment of numerous laws across the country directed specifically toward persons convicted of crimes involving sexual conduct.” Doe v. *523Pataki, 120 F.3d 1263, 1266 (2d Cir. 1997). Chapter 969 of the General Statutes, entitled “Registration of Sexual Offenders,” is such an enactment. See
Connecticut’s version of Megan’s Law imposes a registration requirement on specified sex offenders who are convicted on or after January 1, 1995.
The specific question we first must answer is whether, within the teachings of Apprendi v. New Jersey, supra, 530 U.S. 466,
We conclude, after a review consonant with the doctrine of plain error, that
Many of the questions raised in our analysis of the statute are of first impression in this state. This case involves one section of the Connecticut Megan’s Law that applies to those who are not convicted of sexual offense crimes, but with crimes found to have been committed for a sexual purpose. The statute itself does not address the question of what evidence a court may consider in making such a finding. Nor does the statute state whether a hearing must be held and, if so, the particular quantum of proof necessary for such a finding, or whether, if after such a finding, the requirement of registration is discretionary with the court.
The state invoked
The court ruled, “on the basis of the evidence presented at trial, that the defendant’s purpose in his actions with regard to the first count of the information, that is, kidnapping in the second degree, his objective was to sexually assault the victim . . . when he forced her at knifepoint to drive to a secluded area, I believe in East Hartford, off a main road and onto a dirt road, which led to apparently nowhere. My recollection is, there was a barrier at the end of the road.
“And ... as I recall, [the victim] was directed to bring the car to a stop and ordered out of the car, still at knifepoint, and to accompany the defendant to a wooded area.
“As the court already noted, the defendant’s claim that he merely attempted to, in doing so, directing her into the wooded area, that he merely was attempting to make easier his escape and the victim’s detection in what direction he was traveling.
“That claim is entirely implausible. It’s the court’s finding that the crime committed, that is, the kidnapping in the second degree, was committed for sexual purposes, pursuant to
It is thus clear that the court found that the “sexual purpose” of the crime was based on the evidence alone, although the court had relied on the presentence investigation report in determining the appropriate sentence *526for the defendant.7 The definition of “sexual purpose” as used in
Although the court did not rely on the presentence investigation report in finding that the defendant had committed kidnapping in the second degree with a sexual purpose, we note that such reliance would have been proper.
We now turn to our analysis of Apprendi v. New Jersey, supra, 530 U.S. 466, to substantiate our conclusion that
There is a difference between a “sentencing factor” and a “sentencing enhancement.” In Apprendi, the defendant pleaded guilty to the unlawful possession of a firearm for an unlawful purpose. Id., 469-70. Another New Jersey statute provided for an increased sentence if the purpose for the offense was a “racial bias.” Id., 468- 69. The trial court, after a hearing, found by a preponderance of the evidence that the hate crime enhancement applied even though the defendant was not charged with violating the hate crime statute. Id., 469- 71. The United States Supreme Court held that the “hate bias” statute that provided for an increase in penalty for the crime by two years was a sentence enhancement statute, not a sentencing factor statute, and that, therefore, a jury should have decided the question with the quantum of proof being that of beyond a reasonable doubt. Id., 476.
It is useful to also discuss another United States Supreme Court case, McMillan v. Pennsylvania, 477 U.S. 79, 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1990). McMillan involved a statute that required a mandatory minimum sentence if a trial court found by a preponderance of the evidence that the defendant “visibly possessed a firearm” during the course of an offense, but gave the court no discretion to impose a lesser sentence for the *528underlying felony. Id., 81-82. The United States Supreme Court held that there was no denial of the defendant’s right to a jury trial and deemed the statute to be one dealing with a sentencing factor. Id., 91. Because the statute was a sentencing consideration only, due process was satisfied by the court’s finding by a preponderance of the evidence of “visible possession.” Id., 91-92.
The state claims that
The case of State v. Kelly, supra, 256 Conn. 90-91, clearly establishes that Connecticut’s Megan’s Law, as to registration, was enacted by the legislature as a regulatory measure, not a punitive one, and was not intended as punishment. See also State v. Misiorski, 250 Conn. 280, 290-92, 738 A.2d 595 (1999). The case of State v. Velasco, supra, 253 Conn. 210, decided just prior to Apprendi, concludes, as did the United States Supreme Court in Apprendi, that a separate statute that requires an additional term added to a sentence, if a fact (e.g., the use of a firearm) was found, is a sentence enhancement statute. Velasco concludes that a jury finding must be made if the separate statute is really an enhancement statute. A finding made by the trial court, even if beyond a reasonable doubt, is not good enough. Id., 228-29.
In addition to the lack of legislative intent to increase punishment by registration, as found in Kelly, we determine that Apprendi and Velasco differ from the present *529case in that the statutes being interpreted in the latter cases would have an immediate impact on the defendant. The registration of the defendant as a sex offender takes place after conviction, but does not affect the term of the sentence to be imposed and is not required to be effective until “release into the community . . . .”
In this case, we are not dealing with a sentencing factor or a sentencing enhancement, but with a finding to be made after conviction that has no effect until after a defendant’s sentence has been served. We are concerned with the constitutionally appropriate consequences of a conviction after the serving of a sentence. See Doe v. Dept. of Public Safety ex rel. Lee, supra, 271 F.3d 38.
A violation of
*530There are consequences that follow the conviction of all felonies, apart from sexual offender types of crimes, such as the inability to obtain or to keep certain jobs, to own a gun, to vote, to sit on a jury, the removal from judicial office or disbarment from the practice of law. Most criminal convictions result in adverse consequences. State v. John, 210 Conn. 652, 694, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989).
Having determined that
In Doe, the United States Court of Appeals for the Second Circuit held that the plaintiff in that case was entitled to summary judgment on his claim that under
*531The plaintiff in Doe had been convicted of an offense that subjected him to the registration and notification requirements of
Using the “stigma plus” test as outlined in Paul v. Davis, supra, 424 U.S. 693, the Doe court concluded that the dissemination of the registration information was sufficiently derogatory, allegedly falsely derogatory, and that a burden was imposed on the plaintiff not imposed on other citizens and was an alteration of his status. That combination, the “stigmaplus,” ensured him the procedural protections of due process. Doe established that the plaintiff is entitled to an opportunity for a hearing consistent with due process principles to determine whether he is particularly likely to be dangerous before being included on a publicly disseminated registry, although Doe does not decide the exact form of due process.
“The registration duties imposed by Connecticut’s sex offender law are extensive and onerous. With a few exceptions, a person who is required to register because he or she was convicted ... of a felony with a sexual purpose must verify his or her address annually for ten years. . . . Whenever any registrant changes his or her address, he or she must notify the Commissioner of *532Public Safety within five days.” (Citations omitted.) Doe v. Dept. of Public Safety ex rel. Lee, supra, 271 F.3d 57. Other onerous requirements relate to providing blood samples and photographs. Id. The failure to abide by any of these obligations can be punishable by a five year prison term. Id. These obligations easily satisfy the “plus” factor of Paul v. Davis, supra, 424 U.S. 693. Furthermore, these duties are a change of a person’s status under the state law.
On the basis of Doe and the other cases cited herein, we conclude that the defendant is entitled to a hearing because he satisfies the “stigma plus” test. Although we are dealing with the registration component of the statute, as opposed to its disclosure component, disclosure cannot occur without registration having first been ordered. Both disclosure and notification should be treated in the same manner as far as due process is concerned.
Because registration as a person convicted of an offense committed for a “sexual purpose” is not an element of the underlying crime, nor does it increase the penalty for that crime, the hearing is to be conducted by the court and the fact is to be found by a fair preponderance of the evidence. See McMillan v. Pennsylvania, supra, 477 U.S. 79.
II
The defendant’s next claim is that the court improperly instructed the jury concerning reasonable doubt. A portion of the court’s charge with respect to reasonable doubt stated: “Now, keep in mind that the state of Connecticut does not desire the conviction of an innocent person, or any person who is presented on evidence where there’s reasonable doubt. The state does not wish to have an innocent person punished or to have a person acquitted who has been proven guilty as provided by law. . . . But keep in mind, those mies of law are made to protect the innocent and not those whose guilt has been established beyond a reasonable doubt.” The defendant claims that these two instructions violated his state and federal rights to due process, and his rights to a fair trial under the constitution of the United States and the constitution of Connecticut. We do not agree.
The standard of review of juiy instructions is well settled. This court shall make an inquiry to determine whether it is reasonably possible that the court’s instmctions misled the jury. See State v. Anderson, 65 Conn. App. 672, 685, 783 A.2d 517 (2001). “In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instmctions, 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 instmctions 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 *534that no injustice will result. . . . State v. Delvalle, 250 Conn. 466, 470, 736 A.2d 125 (1999). 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. . . . State v. Denby, 235 Conn. 477, 485, 668 A.2d 682 (1995).” (Internal quotation marks omitted.) State v. Respass, 256 Conn. 164, 182, 770 A.2d 471, cert. denied, 534 U.S. 1002, 122 S. Ct. 478, 151 L. Ed. 2d 392 (2001).
The language questioned by the defendant has been held not to be a constitutional violation and the defendant “faces a wall of recent Supreme Court decisions rejecting challenges to very similar instructions.” State v. Robinson, 56 Conn. App. 794, 804, 746 A.2d 210, cert. denied, 253 Conn. 904, 753 A.2d 938 (2000); see also State v. Copas, 252 Conn. 318, 347, 746 A.2d 761 (2000); State v. Watson, 251 Conn. 220, 227-28, 740 A.2d 832 (1999).
The defendant argues that this case is different because he objected immediately following the charge to the jury. The fact that the objection was timely made, on the facts of this case, is irrelevant, and the same standard of review applies whether we analyze the charge as unpreserved under State v. Golding, supra, 213 Conn. 239-40, or as preserved at trial. State v. Madagoski, 59 Conn. App. 394, 402, 757 A.2d 47 (2000), cert. denied, 255 Conn. 924, 767 A.2d 100 (2001).
The defendant also argues that our Supreme Court has directed trial courts to refrain from using the “laws are designed to protect the innocent” language contained in the charge to the jury in State v. Schiappa, 248 Conn. 132, 168, 728 A.2d 466 (en banc), cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999). The defendant is correct, but the decision in Schiappa was released on March 23, 1999, and the charge to the jury in the present case was given on March 2, 1999. *535Despite the admonishment by the court in Schiappa, our Supreme Court found that there was no constitutional violation when the “laws are designed to protect the innocent” language was utilized. Id., 168. We can find no reason to distinguish the long line of precedent in which it has been found that similar language does not violate the defendant’s constitutional rights and, therefore, decline to do so.
Ill
The defendant next claims that the court improperly marshaled the evidence by impliedly finding an element of the crime. The court, during its marshaling of the evidence, stated that the victim had identified “the defendant as the person who broke into her vehicle and abducted her and drove her to East Hartford at knifepoint.” The defendant objects to the word “abduct” because it is an element of the crime contained in kidnapping in the second degree pursuant to
“A trial court often has not only the right, but also the duty to comment on the evidence.... To avoid the danger of improper influence on the jury, a recitation of the evidence should not be so drawn as to direct the attention of the jury too prominently to the facts in the testimony on one side of the case, while sinking out of view, or passing lightly over, portions of the testimony on the other side, which deserves equal attention. . . . In marshaling the evidence, the court must be careful not to imply any favor or criticism of either side.” (Citation omitted; internal quotation marks omitted.) State v. Davis, 255 Conn. 782, 797, 772 A.2d 559 (2001). The nature of the court’s comments depends on the particular facts present in the case being tried. Id., 799.
The court was fulfilling its duty to marshal the evidence. When the court used the word “abducted,” it was presenting the victim’s version of events. The court *536also gave the defendant’s view when it stated: “The defendant’s version of what happened [was] mainly that no crime or crimes were committed by him.”9 The court’s summary of the state’s case consisted entirely of the statement concerning the victim’s testimony that previously was cited. The court then added: “So, you have conflicting versions regarding not only the events, but I suppose the identity and whether or not any crime was committed.” The court’s marshaling of the evidence was an accurate portrayal of the evidence as it was presented during the short trial. The jury was presented with two different versions of events and was asked to determine if the state had proven its case beyond a reasonable doubt. The court did not improperly marshal the evidence.
IV
The defendant’s final claim is that the court, after a hearing, improperly denied the defendant’s motion to suppress his confession to the police. The defendant argues that he was under custodial interrogation because he was on probation and was not given his Miranda10 warnings when he gave a confession to the police.
The following additional facts are relevant to this claim and were presented at the suppression hearing. When Officer Candéis and Officer Walsh recognized the composite drawing of the alleged perpetrator as the defendant, they went to his last known residence, a motel. Candéis testified that she told the defendant that he could ask them to leave at any time during the interview and that the defendant would not be placed *537under arrest. During the interview, the defendant was seated approximately six feet to ten feet away from Candéis, and Walsh stood in the doorway. It is admitted that at no time did Candéis advise the defendant of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Both officers testified that the defendant did not appear intoxicated, and they could not recall seeing any empty alcoholic beverage containers in the room. At that time, the defendant confessed to the events and signed a statement.
At the suppression hearing, the defendant claimed that he was an alcoholic and that before the visit from the officers he had consumed six or seven forty-ounce bottles of malt liquor beer and one-half pint of hard liquor. The defendant claimed that he did not remember any of the questioning by the officers. The defendant claimed that he was made aware of the confession the following morning when his roommate informed him of the events from the previous evening. The defendant did not produce any additional witnesses from the previous evening, including his former roommate, to verify that he had indeed been drinking heavily. At no time during the suppression hearing was there any mention of the defendant’s probationary status. Following the presentation of evidence, the court stated that the defendant’s testimony that he was intoxicated was not credible and that he “was not in custody” at the time he was questioned by the police officers.
On appeal, the defendant claims that he was on probation at the time of his confession and, therefore, that he was in the custody of the department of correction. The defendant argues, therefore, that he was entitled to be advised of his rights under Miranda v. Arizona, supra, 384 U.S. 436.
The state argues that this claim is unpreserved and should not be reviewed. Nevertheless, the defendant *538seeks review of Ms claim under the precepts of State v. Golding, supra, 213 Conn. 239-40. The defendant is not entitled to review under Golding because there is no record to substantiate Ms claimed probationary status, and he therefore fails to meet the first prong of Golding. See State v. Downey, 45 Conn. App. 148, 157-59, 694 A.2d 1367, cert. denied, 242 Conn. 909, 697 A.2d 367 (1997).
The judgment of conviction is affirmed and we reverse oMy as to the requirement that the defendant register as a sexual offender and the case is remanded for a hearing for the sole and specific purpose of determining whether the defendant committed the offense of kidnapping in the second degree in violation of § 54-94 “for a sexual purpose” as provided in § 54-254 (a).
In tMs opimon the other judges concurred.
Notes
The victim testified that she accidentally had left the vehicle’s sliding door unlocked because it has to be locked manually, and she had forgotten to lock the vehicle manually after someone else had driven it on the previous day.
“While it is the general practice of this court not to review claims not distinctly raised at trial, we may, in the interests of justice, notice plain error not brought to the trial court’s attention.” State v. Luca, 19 Conn. App. 668, 670, 563 A.2d 752 (1989).
Doe v. Dept, of Public Safety ex rel. Lee, supra, 271 F.3d 38, requires a hearing before there can be public disclosure of the registration required by Connecticut’s Megan’s Law. Doe does not concern the registration requirement itself, and we are concerned in the present case only with the registration of the defendant as an offender who committed a felony for a sexual purpose rather than with the possible public disclosure following his release into the community after his prison term has been completed.
The court stated to the defendant prior to sentencing that “[i]t’s the court’s belief that you intended to sexually attack [the victim] .... [T]he contents of the presentence report paint a picture of [the defendant] that is about as deplorable as any that I have ever had occasion to read. And I have reviewed dozens and dozens of presentence reports during my career as a jurist. You are a sexual deviate. . . . [T]he report is replete with your antisocial behavior.”
The defendant testified that he had received a ride voluntarily from the victim and that no crime had been committed. The defendant also stated that an argument ensued between him and the victim when she requested money from him for gasoline and that, motivated by revenge, she fabricated the story.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).