2 Conn. App. 617 | Conn. App. Ct. | 1984
The jury found the defendant guilty of assault in the second degree in violation of General Statutes § 53a-60a, of threatening in violation of General Statutes § 53a-62, and of reckless endangerment in the first degree in violation of General Statutes § 53a-63. From the judgment rendered on the verdict, he has appealed, claiming error in the charge to the jury on the defense of the use of justifiable force and in the trial court’s comments on the evidence. The defendant also claims error in the denial of his motion for a view of the premises.
Despite conflicting testimony, the jury might reasonably have found the following facts: The victim, a former employee of a diner owned by the defendant, loaned the defendant $2000. Sometime thereafter, a
The defendant’s first and second claims of error arise from the trial court’s instructions to the jury. The transcript discloses that after the court delivered its charge, the defendant took exception on several grounds including the court's failure to charge on the justifiable use of physical force pursuant to General Statutes §§ 53a-20 and 53a-21 and the court’s comments on the evidence. The court reconvened the jury and gave a supplemental charge. The defendant neither reasserted his objection to the initial charge nor objected to the supplemental charge as insufficient to cure the errors initially claimed. The defendant’s attorney contends that he began to except to the supplemental charge but was cut off in mid-sentence by the trial court. Our review of the transcript reveals that this “exception” did not comply with our rules of practice. Practice Book § 315 states that “ ‘[cjounsel taking the exception shall state distinctly the matter objected to and the ground of the objection.’ ” (Emphasis added.) Giglio v. Hamilton Heights, Inc., 1 Conn. App. 165, 167, 469 A.2d 416 (1984). “The purpose of requiring an attorney to except is not merely formal. An exception serves the important function of alerting the trial court to error while there is time to correct it without ordering a retrial. . . . [T]he defendant’s failure to except to the supple
The court “shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or an exception has been taken immediately after the charge is delivered by the party appealing.” Practice Book § 854; see also Practice Book §§ 3060F (c) (1) and (2); 3063. Because claims not distinctly raised at trial are considered waived; State v. Miller, 186 Conn. 654, 658, 443 A.2d 906 (1982); State v. Evans, 165 Conn. 61, 65-66, 327 A.2d 576 (1973); such claims will be reviewed on appeal “[ojnly in most exceptional circumstances.” State v. Evans, supra, 69; State v. Fullwood, 193 Conn. 238, 259, 476 A.2d 550 (1984); State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982); see State v. Packard, 184 Conn. 258, 281, 439 A.2d 983 (1981). Claims of error not brought to the attention of the trial court will be reviewed only if either a new constitutional right not readily foreseeable has arisen between the time of trial and appeal or if the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial. State v. Evans, supra, 70. The defendant argues that the second exceptional circumstance exists as to both claims of error in the present case.
He contends that the charge on §§ 53a-20 and 53a-21 was contradictory and misleading and so confused the jury as to deprive him of his constitutional right to a fair trial. The court’s instruction as to § 53a-20 closely followed the language of that statute: “A person in possession or control of premises is ‘justified’ in using ‘rea
In considering a charge, critical dissection is not required. The charge as a whole must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict. State v. Reid, 193 Conn. 646, 660, 480 A.2d 463 (1984). In this case, we find that the court’s instructions, taken as a whole, fairly and adequately presented the case in such a way that injustice was not done to either party under the established rules of law. See State v. Harden, 175 Conn. 315, 322, 398 A.2d 1169 (1978). The defendant’s claim under State v. Evans, supra, is consequently without foundation. “The Evans rule is designed to protect fundamental constitutional rights. It deals with substance, not labels. Putting a constitutional tag on a nonconstitutional claim will no more change its essential character than call
The defendant’s second claim of error is that in its charge the trial court commented only on evidence unfavorable to the defendant and failed to comment on evidence unfavorable to the state. As with his objection to the charge on the law, the defendant argues that the court deprived him of his constitutional right to a fair trial. After the defendant excepted to the court’s initial charge, the court reconvened the jury and admonished them to “apply the law as I have given it to you to the facts that you find. That is your job, to find the facts. And again, if I have omitted anything . . . you are the ones who will supply the omission and correct the error.” Again, the defendant, thereafter, neither reasserted his objection to the initial charge nor objected to the supplemental charge.
The Evans bypass, which would allow us to consider the merits of the defendant’s argument where the record adequately supports a claim that a litigant has clearly been deprived of a fundamental right and a fair trial, does not apply to this claim. We have examined the record and find that the court’s review of the evidence was not so unbalanced as to cause such deprivation.
While a trial court is not licensed to engage in an “ 'argumentative presentation of the claims of one side’ ”-,Bruneau v. Quick, 187 Conn. 617, 628, 447 A.2d 742 (1982); the remarks to which the defendant has called our attention do not rise to that level. We find that any misstatements were not significant and were presumptively cured by the court’s admonition that it
The defendant’s final claim of error is that the court abused its discretion in denying his motion to allow the jury to view the premises. The apparent purpose of this motion was to test the credibility of the witnesses. A view of the premises will be allowed if the view is “ ‘necessary or important in order to obtain a clearer understanding of the issues and to apply the evidence properly.’ ” (Citations omitted.) O’Connor v. Dory Corporation, 174 Conn. 65, 71, 381 A.2d 559 (1977). This decision rests within the sound discretion of the trial court. Id., 72. In this case, the court found that the diagram to which the defendant had access, in conjunction with the testimony, was sufficient to provide the jurors with a clear picture of the premises. There was nothing in the circumstances surrounding the court’s denial of the motion to indicate an abuse of discretion. LaVoie v. Marshall, 141 Conn. 681, 687, 109 A.2d 508 (1954).
There is no error.
The defendant’s preliminary statement of issues raises eight claims of error; however, at oral argument the defendant’s counsel withdrew all but the three claims considered by this court.