204 Conn. 240 | Conn. | 1987
After a trial to the jury, the defendant, Louis Rouleau, was found guilty of one count of each of the following crimes: aiding robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (2) and SSa-S;
On appeal, the defendant’s sole claim is that the trial court erred in its instructions to the jury on the defense of duress. General Statutes § 53a-14.
A fundamental element of due process is the right of a defendant charged with a crime to establish a defense. Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967); State v. Miller, 186 Conn. 654, 660, 443 A.2d 906 (1982). This fundamental constitutional right includes proper jury instructions on the burden of proof on the defense of duress so that the jury may ascertain whether, under all the circumstances, the state has met its burden of proving beyond a reasonable doubt that the crimes charged were not committed under duress. “Duress . . . [is a ] recognized [defense] to [a] criminal [charge] because [it] . . . implicate^] the volitional aspect of criminality.” State v. Pierson, 201 Conn. 211, 217, 514 A.2d 724 (1986); see State v. Miller, supra, 660-61. The state’s burden of proof beyond a reasonable doubt encompasses, in an appropriate case, a burden of disproving duress beyond a reasonable doubt. See General Statutes § 53a-12 (a); see also State v. Pierson, supra; State v. Fuller, 199 Conn. 273, 278, 506 A.2d 556 (1986); State v. Miller, supra. We note that the state does not claim that an instruction on duress should not have been given; indeed, the trial judge himself decided that there was evidence that justified such an instruction.
It was now approximately 1:45 a.m. on April 14, 1985. The victim, who was a prostitute, left her Water
After the two women had joined Atherton in the front of the van, Atherton stopped the van and got in the back.
The defendant drove the van for some time until Atherton told him to stop. When he did so, they were in a secluded wooded area in Thomaston. Atherton and Perugini then took the victim out of the van, leaving the defendant alone in the van. At that time, the plastic bag was still over the victim’s head and her hands were still tied. The victim was walked by Atherton and Perugini through some bushes, over some gravel, over railroad tracks into more gravel and then to “clear ground.” In the clearing, the bag was removed from her head and Atherton pointed a gun at her.
After the shots had been fired at her, the victim attempted to run into a nearby river but came back out because the water was too deep and she couldn’t swim because her hands were still tied. The two men then tried to choke her with some wire but she prevented them from doing so. One of them then struck her on the head with a “boulder,” cutting her. They also beat her with a board with nails in it cutting her buttocks. She then picked up a “large stick” and a rock and started chasing the two men. She did not know at that time where the van was. The defendant then saw her chasing after them. The two men got in the van and, with the defendant driving, left the scene but not before the victim struck the van with the stick she had picked up.
Thereafter, the victim walked to a nearby house from which the owner called the Thomaston police. Later that day, the victim went with the Thomaston police to the area of the attack. The police found a white plastic bag with a Pathmark label and the victim identified it as the one that had been placed over her head. Approximately two days later, the Thomaston police were contacted by Atherton’s wife. The police thereafter obtained a search warrant for Atherton’s van. After a further investigation, the police arrested the defendant, Atherton, Edwards, Perugini, Moss and Zeller.
The defendant testified as the sole witness for the defense. He stated that “[he] didn’t participate in any of [the] crimes.” Although admitting that he was in the
Certain general principles will be useful in our discussion of the specifics of the defendant’s claim. “Duress . . . excuses a crime when another’s unlawful threat of death or serious bodily injury reasonably causes the defendant to do a criminal act in a situation in which there was no other opportunity to avoid the threatened danger.” United States v. Michelson, 559 F.2d 567, 569 (9th Cir. 1977); see also United States v. McClain, 531 F.2d 431, 438 (9th Cir. 1976), cert. denied, 429 U.S. 835, 97 S. Ct. 102, 50 L. Ed. 2d 101 (1977). “The ration
General Statutes § 53a-14 provides that “it shall be a defense that the defendant engaged in the proscribed conduct because he was coerced by the use or threatened imminent use of physical force upon him or a third person, which force or threatened force a person of reasonable firmness in his situation would have been unable to resist. The defense of duress . . . shall not be available to a person who intentionally or recklessly places himself in a situation in which it is probable that he will be subjected to duress.” (Emphasis added.) Because § 53a-14 declares that duress “shall be a defense” and not an affirmative defense, we look to § 53a-12 to determine the allocation of the burden of proof.
We turn to the challenged instruction on duress
The state maintains that, viewing the charge as a whole, the trial court did not omit or misstate the burden and standard of proof in a manner harmful to the defendant. In arguing for the analysis of the charge as a whole, the state disagrees that “this isolated misstatement” requires, as the defendant claims, the reversal of four convictions. It also argues that there is nothing in the record to support the claim that the alleged omissions and misstatements combined to confuse the jury. The state maintains that to construe the language referring to the defendant’s need to prove this defense “against all five counts” imposes an “entirely unreasonable interpretation” on the trial court’s language “contrary to its plain meaning, and contrary to common sense.” The state also challenges the defendant’s claim that the trial court erred in failing to instruct the jury that it had to find him not guilty if it found that the state had not disproved the duress defense beyond a reasonable doubt. It asserts that there is no merit to that claim because the trial court charged the jury at least four times that it must find the defendant not guilty if it found the state had not proven each essential element of each crime charged beyond a reasonable doubt.
“ ‘ “The test to be applied to any part of a charge is whether the charge considered as a whole presents the case to the jury so that no injustice will result.” State v. Mullings, 166 Conn. 268, 275, 348 A.2d 645 [1974]; Siladi v. McNamara, 164 Conn. 510, 515, 325 A.2d 277 [1973].’ State v. Roy, 173 Conn. 35, 40, 376 A.2d 391 (1977).” State v. Stepney, 191 Conn. 233, 247,
Turning to the claimed errors, we conclude, not only from the instruction on duress itself but also from a
As a matter of due process, the state bore the burden of disproving duress beyond a reasonable doubt. Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975); Commonwealth v. Robinson, supra, 200-201, 206. The jury, however, was not instructed that the standard of proof beyond a reasonable doubt which was the burden that rested on the state throughout also applied to the defense of duress. The trial court not only omitted this instruction but misstated the allocation of the burden on that statutory defense. This analysis is not a critical dissection of the charge nor an assessment of it in “artificial isolation” from the charge as a whole.
The state claims that the overall charge renders any such error harmless. We do not agree. It is true that
The necessity for correct instructions on the burden of proof on the defense of duress becomes especially significant when it is realized that, in a proper case, duress is a defense to what would otherwise be a crime. See United States v. Bailey, supra, 409-11; United States v. Agard, 605 F.2d 665 (2d Cir. 1979); Commonwealth v. Thurber, 383 Mass. 328, 418 N.E.2d 1253 (1981); Commonwealth v. Santiago, 462 Pa. 216, 340 A.2d 440 (1975); see 1 W. LaFave & A. Scott, Substantive Criminal Law § 5.3; R. Perkins, Criminal Law (2d Ed. 1957) p. 949 et seq. In a word, the defendant was
In addition, it was error to charge that the defense need be proved as against all the counts of the information. It was especially inappropriate to do so in this case where, on the evidence before the jury, certain of the crimes charged were not only in different temporal contexts but also involved different participants. It follows from this that a proper instruction could have permitted a finding of duress as to certain of the crimes charged and not others. Moreover, nowhere in its instructions on duress, or elsewhere in the charge, did the court instruct that the defendant was required to be found not guilty if the state did not disprove it beyond a reasonable doubt. At most, the trial court’s instructions on duress conveyed to the jury a confusing and imprecise notion that the oft-repeated standard of proof beyond a reasonable doubt that was the state’s burden might possibly apply to the defense of duress. Under relevant legal principles, the charge on duress was harmfully erroneous. In State v. Fuller, supra, 280, we said that the trial court’s instructions “did not relate duress to intent or explain to the jury that duress
In the constitutional context of this case, in considering, as we must, the jury charge “from the standpoint of its effect on the jury in guiding them to a proper verdict”; State v. Bell, 153 Conn. 540, 544, 219 A.2d 218 (1966); the next issue is whether it is reasonably possible that the jury was misled by the charge. State v. Cobb, 199 Conn. 322, 325, 507 A.2d 457 (1986); State v. Williams, supra, 269. It is clear that the charge was not “ ‘accurate in law, adapted to the issues and adequate to guide the jury in reaching a correct verdict.’ ” State v. Williams, supra; State v. McDermott, 190 Conn. 20, 25, 458 A.2d 689 (1983). It follows from what we have already said that it is reasonably possible that the jury was misled by the charge. A new trial is required.
Our order of a new trial, however, does not end our inquiry. The issue now arises as to which of the four crimes, of which the defendant was found guilty, a new trial is required. The defendant argues that he is entitled to a new trial on all four crimes of which he
No new trial, however, is ordered on the crime of conspiracy to commit robbery in the first degree. General Statutes §§ 53a-185, 53a-48. A close review of the evidence at the trial demonstrates that the harmful error in the trial court’s instructions could not have tainted this conviction because there was no evidence before the jury which, if credited, would support a finding that the defendant had been subjected to duress at the time of the commission of the crime of conspiracy to commit robbery. We say this recognizing, as we did in Fuller, that “ ‘[a] defendant is “entitled to have instructions presented relating to any theory of defense for which there is any foundation in the evidence, no matter how weak or incredible . . . ” State v. Fuller, supra, 278. There was no evidence of duress, either
“ ‘To establish the crime of conspiracy under Section 53a-48 of the General Statutes, the state must show that there was an agreement between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. The state must also show intent on the part of the accused that conduct constituting a crime be performed.’ State v. Ortiz, 169 Conn. 642, 645, 363 A.2d 1091 (1975). The conspiracy may be proved through circumstantial evidence. State v. Hayes, 127 Conn. 543, 554, 18 A.2d 895 (1941).” State v. DeMatteo, 186 Conn. 696, 707, 443 A.2d 915 (1982); State v. Beccia, 199 Conn. 1, 3, 505 A.2d 683 (1986). “ ‘The gravamen of the crime of conspiracy is the unlawful combination and an act done in pursuance thereof, not the accomplishment of the objective of the conspiracy. State v. Devine, 149 Conn. 640, 647, 183 A.2d 612, cert. denied, 371 U.S. 930, 83 S. Ct. 303, 9 L. Ed. 2d 237 (1962).” State v. Stevens, 178 Conn. 649, 655, 425 A.2d 104 (1979). “On appeal, this court construes the evidence in the manner most favorable to sustaining the conviction. State v. Gunning, 183 Conn. 299, 309, 439 A.2d 339 (1981).” State v. DeMatteo, supra. It is apparent from the evidence we have set out above that the jury could reasonably have found that there existed between the defendant and his associates a mutual agreement or plan to commit robbery in the first degree, which was followed by an overt act in furtherance of the conspiracy, in violation of General Statutes §§ 53a-134, 53a-48.
The defendant’s version of events, including his denial of any participation in the conspiracy to commit robbery, does not require a contrary conclusion.
There is error in part, the judgment is set aside as to the first, fourth and fifth counts of the substitute information and the case is remanded for a new trial on those counts. There is no error on the second count of the substitute information.
In this opinion the other justices concurred.
General Statutes § 53a-134 (a) (2) provides: “(a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon.”
General Statutes § 53a-8 provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender. ’ ’
General Statutes § 53a-134 provides in part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime; or (2) is armed with a deadly weapon; or (3) uses or threatens the use of a dangerous instrument; or (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.”
General Statutes § 53a-48 provides: “(a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.
“(b) It shall be a defense to a charge of conspiracy that the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under
General Statutes § 53a-92 provides in part: “(a) A person is guilty of kidnapping in the first degree when he abducts another person and when: (1) His intent is to compel a third person to pay or deliver money or property as ransom, or to engage in other particular conduct or to refrain from engaging in particular conduct; or (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually; or (B) accomplish or advance the commission of a felony; or (C) terrorize him or a third person; or (D) interfere with the performance of a government function.”
The jury found the defendant not guilty of one count charging the crime of sexual assault in the first degree with a deadly weapon in violation of General Statutes § 53a-70a.
General Statutes § 53a-14, entitled “Duress as defense,” provides: “In any prosecution for an offense, it shall be a defense that the defendant engaged in the proscribed conduct because he was coerced by the use or threatened imminent use of physical force upon him or a third person, which force or threatened force a person of reasonable firmness in his situation would have been unable to resist. The defense of duress as defined in this section shall not be available to a person who intentionally or recklessly places himself in a situation in which it is probable that he will be subjected to duress.”
The plastic Pathmark bag, through which she could only see shadows, remained on her head the entire time that the victim was in the van. There was a hole in the bag where her assailants “had ripped it so [she] could breathe in the bag.”
There was evidence before the jury that the victim was kept in the van until “about daybreak” which was the time at which the van stopped in Thomaston and the victim was taken out of it by Atherton and Perugini. At that time, it was “light enough for [the victim] to see.”
The victim testified that Atherton came into the back of the van and sexually assaulted her after the other three males had done so. The jury found the defendant not guilty of the crime of sexual assault in the first degree.
She later identified both Atherton and Perugini for the police.
At the defendant’s trial, Zeller testified for the state and the defendant testified in his own behalf. None of the remaining four who had been arrested testified at the trial.
In United States v. Bailey, 444 U.S. 394, 100 S. Ct. 624, 62 L. Ed. 2d 375 (1980), the court noted that “[m]odern cases have tended to blur the distinction between duress and necessity.”
Contrary to the dictum contained in State v. Rosado, 178 Conn. 704, 708, 425 A.2d 108 (1979), the following defenses are not affirmative
The trial court’s instructions included the following: “Now, we also have a statute that provides that in any prosecution for an offense, it shall be a defense that the defendant engaged in the proscribed conduct because he was coerced by the use of threatened imminent use of force upon him, which force or threatened force a person of reasonable firmness in this situation would have been unable to resist.
“The defense of duress as defined in this section shall not be available to a person who intentionally or recklessly places himself in a situation in which it is probable that he will be subjected to duress.
“Now, in this case, if the defendant has proved this defense of duress and he proves it against all five counts, it is a defense that he was coerced by the use of threatened imminent use of force upon him, which force or threatened force a person of reasonable firmness in his situation would have been unable to resist.
“The defense of duress as defined is not available to a person who intentionally or recklessly places himself in a situation in which it is probable that he will be subjected to duress.”
There is no claim that, during its jury instructions, the trial court referred to the defense of duress other than in the challenged instructions. Our examination of the entire charge confirms this fact.
According to the judgment file, these crimes were the first, fourth and fifth counts of the substitute information. The jury found the defendant not guilty of the third count which charged the crime of sexual assault in the first degree with a deadly weapon in violation of General Statutes § 53a-70a.