199 Conn. 30 | Conn. | 1986
After a trial to a jury, the defendant, Mickey Williams, was convicted of the crimes of burglary in the third degree, in violation of General Statutes § SSa-lOS,
At approximately 1 a.m. on July 19, 1979, Arlene Taiyebain was sitting in front of her apartment building, located across the street from Feinson’s Men’s and Boy’s Store (Feinson’s) in Danbury. Immediately after she heard an unusual noise, she saw a black man dressed in white clothing running through the store, grabbing merchandise off the apparel racks. Taiyebain immediately called the police. She then saw the man, whom she recognized as a person she had seen before, leave the store carry
Soon thereafter an officer of the Danbury police department arrived at the scene. He observed the store’s rear door shattered and a black man, wearing a white “t-shirt” and light tan pants, leaving the scene on foot carrying clothing. The officer followed the man down an alley but was unable to catch him because the alley became impassable for his cruiser. Several other police officers saw a black man in a white “t-shirt” running through alleys behind the store, and enter an alley behind a restaurant. The officers searched the alley until they noticed the defendant’s foot protruding from a garbage dumpster. The officer originally on the scene immediately identified the defendant as the man he had seen in close proximity to the shattered back door at Feinson’s. At the scene Taiyebain also positively identified the defendant as the man she had seen in the store and whom she had seen previously. The defendant was taken into custody and two bundles of clothing bearing Feinson’s labels and price tags were subsequently found in nearby alleys. The clothes were later examined by the store’s owner and manager and determined to have a market value of $1150 for one pile and $1295 for the other.
The defendant was charged in a substitute information with burglary in the third degree, General Statutes § 53a-103, and larceny in the first degree, General Statutes (Rev. to 1981) § 53a-122. The court granted the defendant’s request to proceed to trial pro se, and ordered a public defender to be available in the courtroom for consultation during the proceedings as standby counsel. At trial the defendant presented a defense of alibi and misidentification. He claimed that
I
The defendant first claims that the trial court’s instructions to the jury on the elements required for a conviction of burglary in the third degree violated his constitutional rights by relieving the state of its burden of proving the requisite specific intent in violation of Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). Although the defendant took no exception to the instruction he now challenges, we will review his claim under the “exceptional circumstances’’ rule of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). See State v. Amarillo, 198 Conn. 285, 299 n.9, 501 A.2d 1195 (1986); State v. Fernandez, 198 Conn. 1, 18, 501 A.2d 1195 (1985); State v. Shine, 193 Conn. 632, 644 n.11, 479 A.2d 218 (1984).
The defendant levels his constitutional attack on the following language in the court’s instruction on the specific intent necessary for the crime of burglary: “Burglary is an intrusionary crime. In other words, regardless of the nature of the intrusion it must be proven that the defendant has entered the building unlawfully and . . . that he did so with the intention of committing a crime therein. Intent is used and [sic] established if at all by circumstantial evidence. In addition in this case if you find the evidence in accordance with what the state offered you must find the intent
The due process clause of the fourteenth amendment to the United States constitution “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). On the basis of this principle, a trial court is prohibited from incorporating evidentiary presumptions in its jury instructions that have the effect of relieving the state of its burden of proving every essential element of the crime. Francis v. Franklin, 471 U.S. 307, 313, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985); Sandstrom v. Montana, supra, 520-24; Patterson v. New York, 432 U.S. 197, 210, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977). In Sandstrom v. Montana, supra, 517, the United States Supreme Court held that a jury instruction that “the law presumes that a person intends the ordinary consequences of his voluntary acts” violated the defendant’s due process rights because a reasonable juror could have interpreted it as a conclusive or burden-
“The threshold inquiry in ascertaining the constitutional analysis applicable to this kind of jury instruction is to determine the nature of the presumption it describes. See Ulster County Court v. Allen, [442 U.S. 140, 157-63, 99 S. Ct. 2213, 60 L. Ed. 2d 777 (1979)]. That determination requires careful attention to the words actually spoken to the jury, see [id.], at 157-159, n. 16, for whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction.” Sandstrom v. Montana, supra, 514; see State v. Vasquez, 182 Conn. 242, 247, 438 A.2d 424 (1980). Sandstrom does not invalidate, for example, the use of an “entirely permissive inference or presumption, which allows—but does not require—the trier of fact
The challenged sentence in this case was clearly cast in mandatory language. It instructed the jurors that they “must find the intent would infer from conduct, ” if they found “evidence in accordance with what the state offered . . . .” (Emphasis added.) Although these words are garbled, the defendant claims that they convey precisely the same message as the language held unconstitutional in Sandstrom v. Montana. A reasonable juror could easily have viewed such language as mandatory, requiring him conclusively to presume an essential element of the offense of burglary, intent to commit a crime within the building, upon proof of the defendant’s unlawful entry or presence in the building. In this way the instructions “undermine[d] the fact-finder’s responsibilty at trial, based on evidence
The inappropriate language, however, did not stand alone. Id., 328 (Powell, J., dissenting). In reviewing instructions to the jury we examine the charge as a whole and will not sever one portion and analyze it in isolation from the rest. Cupp v. Naughten, 414 U.S. 141, 147, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973); State v. Truppi, 182 Conn. 449, 458, 438 A.2d 712 (1980), cert. denied, 451 U.S. 941, 101 S. Ct. 2024, 68 L. Ed. 2d 329 (1981). We have carefully examined the whole charge and have concluded that additional language, not present in the Sandstrom v. Montana charge, was sufficient to rectify the improper use of the word “must” and to prevent the jury from unconstitutionally relieving the state of its burden of persuasion on the element of intent. See State v. Amarillo, supra, 303; State v. Asherman, 193 Conn. 695, 734, 478 A.2d 227 (1984); State v. Vitale, 190 Conn. 219, 221 n.1, 460 A.2d 961 (1983); Crawford v. Warden, 189 Conn. 374, 380-82, 456 A.2d 312 (1983).
During its general instructions, the court repeatedly informed the jury that the defendant was presumed innocent until proven guilty by the state on each charge. In each instance the court instructed the jury that the state had the burden of proving “each and every element” of the crimes beyond a reasonable doubt. These instructions regarding the presumption of innocence and requirement of proof beyond a reasonable doubt were also repeated at the conclusion of the charge. These general instructions, however, do not vitiate the possible erroneous interpretation of the challenged language. “[GJeneral instructions on the State’s burden
Although general instructions on the burden of proof and presumption of innocence do not alone dispel the possibility of an unconstitutional interpretation of the challenged language, such instructions may be considered in light of the entire charge to determine whether the jury could have interpreted the presumption involved as mandatory or permissive. State v. Stankowski, 184 Conn. 121, 152, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981). In this case, the balance of the court’s instructions, considered in tandem with the court’s general instructions, eliminated the possibility that any reasonable juror could have interpreted the instructions as mandating that the defendant’s criminal intent be inferred from his conduct.
The trial court carefully instructed the jury, after it had used the challenged language, that a guilty verdict required a finding that the defendant had entered or remained unlawfully in a building and that he had done so with the intent to commit a crime therein. Immediately prior to the challenged sentence the court noted that “intent is used and established if at all by circumstantial evidence.” (Emphasis added.) The trial court had previously instructed the jury that they were the sole arbiter of the facts and explained the concept
A reasonable juror, considering the instructions in their entirety, would have concluded that the defendant’s intent to commit a crime in Feinson’s was a question of fact and that such intent was a mental state which must be proven, if at all, by circumstantial evidence. See State v. Harrison, 178 Conn. 689, 695, 425 A.2d 111 (1979). A reasonable juror could not have interpreted the instructions as creating a mandatory conclusive presumption on the crucial element of intent. Because the charge read as a whole clearly
II
The defendant next claims that the trial court’s reinstruction on the value element of the larceny charge was so incomplete and misleading that it violated due process and deprived him of a fair trial. In its initial instructions the trial court highlighted the testimony concerning the value of the stolen property and accurately instructed the jury as to the value requirements for the various degrees of larceny. During its deliberations the jury sought clarification of the court’s instructions on larceny, asking the court: “[I]s the jury allowed to question the ‘fair market value of the clothes’ which were taken or do we have to go by the testimony given?” In response, the court provided the following supplemental instruction: “With respect to the first part of the question, the jury is free to question any evidence which was offered. The jury may accept any part of the testimony of any witness or may disregard part of it or disbelieve part of it or all of it or it may believe all of it. It is for you to determine whether or
Although the defendant failed to except to the reinstruction on value, we review this claim under the “exceptional circumstances” doctrine of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), because the defendant claims that the effect of the objectionable clause was to invite a jury verdict predicated upon speculation and conjecture thus resulting in a fundamental due process violation. In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). Such a claim does necessitate review for the limited purpose of determining whether a fundamental constitutional right has been infringed. State v. Leecan, 198 Conn. 517, 538, 504 A.2d 480 (1986); State v. Hinckley, 198 Conn 77, 86-87, 502 A.2d 388 (1985).
In evaluating a claim that a supplemental charge is erroneous we must examine both the main and supplemental charge as a whole to determine whether the jury could reasonably have been misled. State v. Reed, 174 Conn. 287, 308, 386 A.2d 243 (1978). We must recognize, however, that “[a] supplemental charge . . . enjoy[s] special prominence in the minds of the jurors” because it is fresher in their minds when they resume deliberation. Arroyo v. Jones, 685 F.2d 35, 39 (2d Cir.), cert. denied, 459 U.S. 1048, 103 S. Ct. 468, 74 L. Ed. 2d 617 (1982); see Bollenbach v. United States, 326 U.S. 607, 611-12, 66 S. Ct. 402, 90 L. Ed. 350 (1946).
In the court’s original instructions the jury was correctly instructed that it was to determine the facts
The essence of the jury’s question, which prompted the supplemental instruction, was whether it was bound by the testimony of the witnesses produced by the state as to the fair market value of the clothing. Theirs was the only testimony on this subject, and, if fully accepted by the jury, would have resulted in a conviction of first degree larceny based upon a finding that the value of the stolen property exceeded $2000. The court correctly instructed the jury that it was not bound by their testimony in responding that “you do not have to go by the testimony given.” Evidence regarding value “is to aid the trier to arrive at [its] own conclusion which is to be reached by weighing the opinions of the experts in light of all the circumstances in evidence bearing on value and [its] own general knowledge going to establish it.” Bridgeport Hydraulics Co. v. Stratford, 139 Conn. 388, 397-98, 94 A.2d 1 (1953). Although the court’s particular language was not a model of precision, it was not misleading in light of the earlier instruc
Ill
The defendant’s remaining claim of error is that the trial court denied him assistance of counsel at his sen
“Mr. Williams: I would like to have him be appointed back as my Public Defender. I would like him appointed back as my Public Defender.
“The Court: As far as appointing him right now, no. As far as appointing him as your Public Defender at this point, I will not do it.
“You said that you did not want him as your counsel. Even then I made him available for consultation. You made the decision and I concluded my [sic] saying that if you are not happy with the outcome, it was too late to indicate your regrets.
“I will not appoint Mr. Thim as Public Defender. He was removed at your request. I will, however, as I said, let you consult with him. He may be available to you for that purpose.
“Mr. Williams: Is it possible that another Public Defender can represent me?
“The Court: Not at this stage of the proceedings, no.”
The defendant represented himself at sentencing and was sentenced to a term of imprisonment of not less than two nor more than five years on each count, such sentences to be served consecutively.
The state does not dispute that the defendant had a state and federal constitutional right to assistance of counsel during the sentencing hearing. In Consiglio v. Warden, 153 Conn. 673, 676, 220 A.2d 269 (1966), we held that “the sentencing process is a critical stage of a criminal trial.” See Gagnon v. Scarpelli, 411 U.S. 778, 781, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973); McConnell v. Rhay, 393 U.S. 2, 3-4, 89 S. Ct. 32, 21 L. Ed. 2d 2 (1968); Townsend v. Burke, 334 U.S. 736, 740, 68 S. Ct. 1252, 92 L. Ed. 1690 (1948). The state
The defendant does concede that absent an indication to the contrary, a trial court is entitled to rely on a presumption that a defendant’s election to represent himself continues through sentencing. “A competent election by the defendant to represent himself and to decline the assistance of counsel once made before the court carries forward through all further proceedings in that case unless appointment of counsel for subsequent proceedings is expressly requested by the defendant or there are circumstances which suggest that the waiver was limited to a particular stage of the proceedings.” (Emphasis added.) Arnold v. United States, 414 F.2d 1056, 1059 (9th Cir. 1969); see Panagos v. United States, 324 F.2d 764, 765 (10th Cir. 1963); Davis v. United States, 226 F.2d 834, 840 (8th Cir. 1955), cert. denied, 351 U.S. 912, 76 S. Ct. 702, 100 L. Ed. 1446 (1956). The defendant asserts, however, that because his voluntary waiver of counsel at the outset of the trial was not intended to extend through the sentencing procedure, and because he clearly asserted his desire for counsel at sentencing, the court unconstitutionally refused to appoint him counsel.
The record here does not establish that the defendant was informed by the court that his initial waiver of counsel would extend to sentencing. In fact, the trial court’s comment in reference to the standby counsel, “I will not allow him to participate unless you request him to be your attorney,” implied that the court would reappoint Thim to represent the defendant if the defendant requested it. Nor is there any indication on the record that supports a conclusion that the defendant intended to waive counsel at sentencing. The defendant explained to the court that he wished “to represent myself in this trial.” (Emphasis added.) The
There is no error in the judgments convicting the defendant of burglary in the third degree and larceny in the second degree.
There is error in the denial of the defendant’s request for counsel at the sentencing proceeding.
The sentence imposed is vacated and the case remanded for resentencing.
In this opinion the other judges concurred.
“[General Statutes] Sec. 53a-103. burglary in the third degree: class d felony, (a) A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein.”
“[General Statutes (Rev. to 1981)] Sec. 53a-123. larceny in the second degree: class d felony, (a) A person is guilty of larceny in the second degree when: (1) The property consists of a motor vehicle, (2) the value of the property or service exceeds five hundred dollars, or (3) the property, regardless of its nature or value, is taken from the person of another.”
After the defendant’s brief was filed in this case, the state filed a motion for rectification with the trial court, seeking alterations in the portions of the transcript of the jury instructions pertaining to intent. After a hearing the court, Moraghan, J., granted the state's motion and ordered that corrected transcript pages be prepared. On April 29,1985, the defendant filed a motion for review with this court claiming that the trial court’s wholesale changes were unsupported by the record below. We granted the motion to review, but denied the relief requested therein without prejudice to renewal at a full hearing. The court also ordered the defendant to file a supplemental brief addressing only those new issues raised by the trial court’s revision of the transcript. Based on a careful re-examination of the record and transcript from the hearing on the motion for articulation and the papers filed with the motion for review, we decide today to address the issues on appeal on the basis of the original transcript. We therefore disregard all corrections made in the transcript by the trial court. See Papallo v. Meriden Savings Bank, 128 Conn. 289, 291, 22 A.2d 637 (1941). It is, therefore, unnecessary to consider the defendant’s additional claims, raised in his supplemental brief, based solely on the “corrected” transcript.
“A mandatory presumption may be either conclusive or rebuttable. A conclusive presumption removes the presumed element from the case once the State has proven the predicate facts giving rise to the presumption. A rebuttable presumption does not remove the presumed element from the case but nevertheless requires the jury to find the presumed element unless the defendant persuades the jury that such a finding is unwarranted. See Sandstrom v. Montana, 442 U.S. 510, 517-18 [99 S. Ct. 2450, 2455-56, 61 L. Ed. 2d 39] (1979).” Francis v. Franklin, 471 U.S. 307, 314 n.2, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985).
We agree with the defendant and the state that the challenged instruction here, because it neither used the word “presume” nor explicitly addressed the burden of proof, could not have been interpreted as burden-shifting, but only as a conclusive presumption.
We see no merit in the defendant’s claim raised in his supplemental brief that “the absence of an accurate transcript [for our review] deprives him of his right to a meaningful appeal under the due process clauses of the state and federal constitutions.” See Cole v. United States, 478 A.2d 277, 281 (D.C. 1984). The isolated passages in the transcript, which may have resulted from stenographic errors, have been adequately reconstructed favorably to the claim raised by the defendant.
In support of Ms position the defendant inappropriately relies on State v. Saracino, 178 Conn. 416, 423 A.2d 102 (1979) (per curiam). In Saracino we held that a jury’s determination of value for a charge of larceny in the first degree was a product of speculation and conjecture because there was insufficient evidence presented by the state to support the jury’s conclusion that the defendant had received stolen property valued in excess of $2000. Id., 420. In the present case the state clearly presented evidence sufficient to justify the jury’s verdict of guilty of larceny in the second degree.