250 Conn. 807 | Conn. | 1999
Lead Opinion
Opinion
The defendant, Jermaine Woods, was convicted of murder in violation of General Statutes § 53a-54a (a)
We decline to review the defendant’s first claim because it was not preserved properly at trial, and the defendant may not prevail on that claim under either the plain error doctrine or State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We conclude that the defendant’s second claim is meritless and, therefore, affirm the judgment of conviction.
The jury reasonably could have found the following facts. In the early morning hours of November 5, 1994, the defendant and the victim, Jahmal Hall, began arguing in the vicinity of North Main and East Farm Streets in Waterbury.
At trial, the defendant claimed that he had shot Hall in self-defense. He testified that, on the night in question, he had been drinking and dancing at clubs with
William Henry Reid also testified for the defense. Reid stated that he had seen the defendant and Hall arguing on the night of the murder. Reid stated that a group of four or five individuals, all the same size as or larger than the defendant, had approached the defendant and Hall. According to Reid, those individuals had surrounded the defendant and began clutching and grabbing at him. Reid testified that he had heard a gunshot and had seen the defendant run to his car.
I
The defendant’s first claim on appeal is that the trial court improperly permitted the prosecutor to comment, during closing arguments, on the defendant’s failure to call an attorney (1993 attorney) who had represented him in 1993 to testify with respect to the defendant’s diminished mental capacity. The defendant claims that the prosecutor’s comment improperly allowed the jury to draw an adverse inference that the 1993 attorney’s
The following additional facts are relevant to the disposition of the defendant’s first claim. In support of the defendant’s claim that he acted in self-defense, the defendant presented evidence of his diminished mental capacity. Gregory St. John, an attorney who had represented the defendant in juvenile court on various matters from 1986 through 1990, testified that the defendant had been difficult to represent because the defendant was “slow.” In St. John’s opinion, it required a great amount of time and effort to explain matters to the defendant. St. John testified that he had never requested a competency evaluation for the defendant because he did not believe such an exam was necessary. Rosita Saucier, a guidance counselor with Waterbury Adult Education, also testified that the defendant did poorly on a 1993 standardized test of adult basic education.
On cross-examination, the defendant testified that, when facing criminal charges in 1993, he had been represented by counsel. During the court’s charging conference; see Practice Book § 42-19; the prosecutor requested permission to comment, during closing arguments, on the defendant’s failure to call the 1993 attorney to testify about the defendant’s diminished mental capacity. The defendant’s attorney objected on relevancy grounds, but the trial court granted the prosecutor’s request.
“And we have had, in my submission, no evidence from any kind of professional whatsoever that the defendant was unable to form the intent to kill.” The defendant did not object to the prosecutor’s reference to the 1993 attorney at this point or request any curative instruction from the trial court.
First, we decline to address the defendant’s claim that the prosecutor’s comment was improper because it had not been established that the requirements of
The plain error doctrine of Practice Book § 60-5 requires a defendant to demonstrate “that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.” State v. Day, 233 Conn. 813, 849, 661 A.2d 539 (1995). “We repeatedly have observed that plain error is not even implicated unless the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) Id.
The prosecutor’s comment does not constitute plain error. The prosecutor did not ask the jury to draw an adverse inference based on the absence of testimony from the 1993 attorney and, therefore, Secondino was not implicated. See State v. Malave, 250 Conn. 723, 739, 737 A.2d 442 (1999). As we stated in Malave: “So long as counsel does not directly exhort the jury to draw an adverse inference by virtue of the witness’ absence, the argument does not fall within the Secondino rule . . . .” Id. The prosecutor’s comment in this case merely highlighted the weakness of St. John’s testimony, which related only to the years 1986 through 1990, in support of the defense of diminished mental capacity in 1994, the year that the crime in this case occurred. It was a proper comment on the weight of that evidence. Cf. State v. Magnotti, 198 Conn. 209, 220, 502 A.2d 404 (1985) (asking “ ‘[w]hat about the [defense’s case’ ” was “a comment ... on the overall quality of the defendant’s evidence and [did not call] specific attention to the [defendant’s] failure ... to testify”). Commenting on the weight of the evidence
We also do not reach the defendant’s claim that the prosecutor’s comment violated the defendant’s attorney-client privilege and right to counsel. Although the defendant did not object to the prosecutor’s closing arguments on these grounds at trial, he now contends that the claimed violations of the attorney-client privilege and right to counsel are reviewable under State v. Golding, supra, 213 Conn. 239-40. We disagree.
In Golding, we held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) Id. The first two requirements involve a determination of whether the claim is reviewable; the second two requirements involve a determination of whether the defendant may prevail.
The defendant is not entitled to a review of his claim under Golding because it is not of constitutional magnitude. While the defendant claims that the prosecutor’s comment violated his constitutional right to counsel, “merely placing a constitutional tag on a nonconstitutional claim does not make it so.” (Internal quotation marks omitted.) State v. McIntyre, 242 Conn. 318, 329, 699 A.2d 911 (1997). During her argument, the prosecutor merely suggested that there were no witnesses,
Furthermore, we have held that “[w]e will not afford Golding review to claims of prosecutorial misconduct [in closing argument] where the record does not disclose a pattern of misconduct . . . that was so blatantly egregious that it infringed on the defendant’s right to a fair trial.” (Internal quotation marks omitted.) State v. Williams, 231 Conn. 235, 246, 645 A.2d 999 (1994). “[C]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line . . . .” (Internal quotation marks omitted.) Id. Therefore, “we must review the comments complained of in the context of the entire trial. . . . [T]he burden is on the defendant to demonstrate that the remarks were so prejudicial that he was deprived of a fair trial and the entire proceedings were tainted.” (Citations omitted.) State v. Robinson, 227 Conn. 711, 746, 631 A.2d 288 (1993). In this case, the prosecutor mentioned the 1993 attorney only once, as one possible witness to the defendant’s mental capacity in 1993. Even if we assume that the prosecutor’s comment was improper, it was not so egregious as to infringe upon the defendant’s right to a fair trial.
Finally, we note that, prior to making her comment, the state’s attorney sought and received permission from the trial court. This permitted judicial review and
We conclude that the prosecutor’s comment during closing arguments did not improperly urge the jury to draw an adverse inference with respect to the absence of testimony from the 1993 attorney. Thus, the defendant’s claim is not reviewable under the plain error doctrine. We also conclude that the defendant’s claim that the comment violated his attorney-client privilege and right to counsel is not entitled to review under Golding.
II
The defendant also claims that the trial court’s instructions on self-defense were improper.
The defendant claims that the trial court improperly failed to give his requested instruction pertaining to the defense of mistake of fact.
An instruction on the defense of mistake of fact is required only when evidence supporting it is placed
Moreover, the trial court’s charge adequately instructed the jury that it was required to consider the defendant’s subjective belief that he was in danger. The charge did not purport to require the defendant’s subjective belief to be correct, but only reasonable. The court instructed the jury that “[t]he statute on self-defense focuses on the person claiming self-defense. It focuses on what he reasonably believed under the circumstances and presents a question of fact for the jury. In other words, what is important is what the defendant reasonably believed under the circumstances in this case. . . . Self-defense thus requires the jury to measure the justifiability of the defendant’s actions from a subjective perspective, that is, what the defendant reasonably believed under the circumstances presented in this case, and on the basis of what the defendant perceived the circumstances to be.” The trial court properly instructed the jury to focus on the defendant’s subjective belief that he was in danger. The jury,
The judgment is affirmed.
In this opinion CALLAHAN, C. J., and BORDEN, PALMER, PETERS and MENT, Js., concurred.
General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .”
General Statutes § 51-199 (b) provides in relevant part: “The following matters shall be taken directly to the Supreme Court ... (3) an appeal in any criminal action involving a conviction for a capital felony, class A felony, or other felony, including any persistent offender status, for which the maximum sentence which may be imposed exceeds twenty years . . . .”
This area was a popular spot for people to socialize after the surrounding bars and clubs closed for the night, and there were approximately 100 people in the area on the night of Hall’s murder.
The following colloquy developed at the charging conference:
“[Cara Eschuk (Assistant State’s Attorney)] . . . You will recall that I indicated that if the court was going to . . . give the diminished capacity charge, that I would wish to make reference to certain witnesses or potential witnesses who were not called. Your Honor requested that I obtain the information on which I based that remark and I believe Your Honor was handed a copy of the excerpt which makes reference to the fact that the defendant was in trouble in 1993 and was at that time working with an attorney. . . .
“The Court: You wish to argue that point?
“Ms. Eschuk: Yes, Your Honor. Since that is very similar to a Secondino matter and the state did not request the court to charge Secondino, I just thought that I would put the court on notice on that matter.
“The Court: Well, the record reveals that you asked the defendant on cross-examination if he worked with an attorney on that occasion, and his answer is yes. . . . Attorney Kennedy, do you wish to be heard?
“[Jayne F. Kennedy (Defense Counsel)] ... I don’t think it’s an appropriate argument to be made. The state could have called his other attorney in rebuttal or attempted to. . . . [I]t wasn’t relevant. We presented evidence sufficient to get a charge of diminished capacity and arguing what we didn’t present, I don’t think is appropriate.
“The Court: Thank you. Attorney Eschuk, I’ll allow . . . you to point out to the jury the defendant’s response to your question and I’ll allow you to argue that no such attorney, of course, appeared in this case.
“Ms. Eschuk: Thank you, Your Honor.
“The Court: I caution you as to the implications of all that, however.
“Ms. Eschuk: I don’t propose to take the matter much further than that, Your Honor.”
Secondino permitted trial courts to give instructions, known as Secondino or missing witness instructions, to the jury that it could draw an adverse inference from a party’s failure to call a witness to testify at trial where the witness is available and naturally would be produced by that party. Secondino v. New Haven, supra, 147 Conn. 675. The jury would be instructed that it could draw an inference that the witness’ testimony would be unfavorable to the party failing to call the witness. Counsel also were permitted to argue such an inference to the jury with the permission of the trial court. See State v. Daniels, 180 Conn. 101, 113, 429 A.2d 813 (1980). We recently abandoned the Secondino rule in criminal trials. State v. Malave, 250 Conn. 722, 738, 737 A.2d 442 (1999). We, therefore, need not address the defendant’s additional claim that we should use our supervisory powers to abandon the Secondino rule in this case.
Under Secondino, a missing witness instruction or argument was appropriate only if the missing witness was both available and a witness whom the party naturally would have produced. E.g., State v. Shashaty, 205 Conn. 39, 43, 529 A.2d 1308 (1987), cert. denied, 484 U.S. 1027, 108 S. Ct. 753, 98 L. Ed. 2d 766 (1988).
The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall epjoy the right ... to have the assistance of counsel for his defense.” The sixth amendment right to counsel is made applicable to the states through the fourteenth amendment due process clause. See generally Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1962).
Similarly, the constitution of Connecticut, article first, § 8, provides in relevant part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel . . . .”
The court’s instruction covering the defendant’s claim of self-defense provides in relevant part: “The statute on self-defense focuses on the person claiming self-defense. It focuses on what he reasonably believed under the circumstances and presents a question of fact for the jury. In other words, what is important is what the defendant reasonably believed under the circumstances in this case. The test for the degree of force in self-defense is a subjective-objective test, meaning it has some subjective aspects and some objective aspects. Self-defense thus requires the jury to measure the justifiability of the defendant’s actions from a subjective perspective, that is, what the defendant reasonably believed under the circumstances presented in this case, and on the basis of what the defendant perceived the circumstances to be. [General Statutes §] 53a-19 (a) requires, however, that the defendant’s belief must have been reasonable and not irrational or unreasonable under the circumstances. That is, would areasonable person in the defendant’s circumstances have reached that belief? That is the objective aspect of the test. It is both a question of what his belief was and whether it was reasonable. In this case, if you find proven beyond a reasonable doubt that the persons the defendant claimed were surrounding him on the street immediately before the shot was fired were not using or about to use deadly, physical force or to inflict great bodily harm upon him, and if you further find proven beyond a reasonable doubt that the defendant had no reasonable belief that those persons were using or about to use deadly, physical force or about to inflict great bodily harm upon him, then . . . you would, under those conditions, reject the defense of self-defense.”
The defendant submitted a written request to charge that included the following language: “In judging the danger to himself, however, the defendant is not required to act with infallible judgment. Ordinarily one exercising the right of self-defense is required to act instantly and without time to deliberate and investigate. Under such circumstances, of course, it’s possible, often possible, to mistake an actual threat when none in fact existed.”
Dissenting Opinion
dissenting. In the present case, the trial court permitted the prosecutor in his closing argument to urge the jury to draw an adverse inference from the accused’s decision not to call as a witness an attorney who had previously represented him. In my view, this ruling violated the defendant’s right to counsel under both the federal constitution and our state constitution.
On November 5, 1994, the defendant, Jermaine Woods, was responsible for a fatal shooting. On trial for murder, the defendant argued that — because of his diminished mental capacity — he had believed that he was acting in self-defense. The majority explains that “Gregory St. John, an attorney who had represented the defendant . . . from 1986 through 1990, testified [on direct examination by defense counsel] that the defendant had been difficult to represent because the defendant was ‘slow.’ In St. John’s opinion, it required a great amount of time and effort to explain matters to the defendant.”
In its closing argument to the jury, the state emphasized that St. John had not interacted with the defendant
“Th[e] constitutional right to . . . effective assistance of counsel is one of those ‘fundamental principles of liberty and justice which he at the base of all our civil and political institutions.’
The threads of “the right to communicate effectively with counsel in the preparation of one’s defense”
In State v. Toste, 178 Conn. 626, 424 A.2d 293 (1979), this court considered facts that are less egregious than those that are presently before us. The defendant in Tosté argued that the trial court erred by admitting the testimony of a psychologist who had “examined the defendant pursuant to a defense motion but was called to testify as a state’s witness.” Id., 627-28. More specifically, “[t]he defendant contended] that the admission of [the psychologist’s] testimony violated the attorney-client privilege and, thus, the defendant’s sixth amendment right to the assistance of counsel.” (Emphasis added.) Id., 628. The court adopted this argument, concluding that “[t]he court’s admission of [the psychologist’s] testimony as a state’s witness was in error.” Id.
If it violates the right to counsel to admit into evidence the adverse testimony of a psychologist retained to assist defense counsel in preparing his case, then it follows a fortiori that it must violate the right to counsel to permit the state to urge the jury to infer that the
The majority attempts to justify its refusal to review the defendant’s claim with the argument that he did not properly object at trial. This is simply untrue. The defendant’s trial counsel made a timely objection that was clear and unambiguous, albeit not phrased in the terminology of constitutional discourse.
Even if I were mistaken in my belief that the defendant’s argument adequately is preserved, we would nevertheless be obligated to reach the defendant’s claim under Golding, which sets forth the rules that govern our review of unpreserved arguments. State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The majority claims that Golding review is inappropriate because the defendant’s claim is “not of constitutional magnitude.” Since both the federal constitution and our state constitution explicitly protect the right to counsel, the majority’s argument is unavailing.
For these reasons, I would reverse the trial court’s judgment and order a new trial. Accordingly, I dissent.
For the text of these constitutional provisions, see footnotes 3 and 4 of this dissent.
In the brief that he submitted to this court, the defendant also emphasized the following evidence: “Rosita Saucier, a guidance counselor with Waterbury Adult Education, also testified to [the defendant’s] level of function, as measured by his grade equivalent scores on the standardized Test of Adult Basic Education. . . . These scores were abysmal. For example, in 1993, a year before the incident at issue here, [the defendant] tested out at a 3.4 (third grade-fourth month) vocabulary level.”
The sixth amendment to the United States constitution provides in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense.”
Article first, § 8, of the Connecticut constitution provides in pertinent part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel . . . .”
“When the customary right to counsel was formally incorporated into the Connecticut constitution in 1818, the advice and services of counsel were regarded as crucial to a criminal defendant.... More contemporary developments suggest that this state’s commitment to securing the right to counsel has not diminished since 1818. Not only was Connecticut the first state to adopt the public defender system; State v. Hudson, 154 Conn. 631, 635, 228 A.2d 132 (1967); but the right to counsel was secured to criminal defendants in this state long before the mandate of Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 [(1962) (holding that the fourteenth amendment incorporated the sixth amendment right to counsel)] .... Spring v. Constantino, 168 Conn. 563, 566-67 n.2, 362 A.2d 871 (1975). The United States Supreme Court has turned to the historical experience of Connecticut in expanding the right to counsel under the federal constitution. Faretta v. California, 422 U.S. 806, 827, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); Powell v. Alabama, [287 U.S. 45, 62-63, 53 S. Ct. 55, 77 L. Ed. 158 (1932)].” (Citation omitted; internal quotation marks omitted.) State v.
Washington v. Meachum, supra, 238 Conn. 731.
As the United States Supreme Court emphasized just last year, the attorney-client privilege “is one of the oldest recognized privileges for confidential communications.” Swidler & Berlin v. United States, 524 U.S. 399, 118 S. Ct. 2081, 2084, 141 L. Ed. 2d 379 (1998). “It is important not to weaken the privilege . . . because, as the United States Supreme Court has explained, even the threat of disclosure would have a detrimental effect on attorneys’ ability to advocate for their clients while preserving their ethical duty of confidentiality. Hickman v. Taylor, 329 U.S. 495, 511, 67 S. Ct. 385, 91 L. Ed. 451 (1947) (where threat of disclosure . . . ‘the interests of the clients and the cause of justice [are] poorly served’).” Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., 249 Conn. 36, 48-49, 730 A.2d 51 (1999). Connecticut, in particular, “has a long-standing, strong public policy of
To make the same point without metaphor, it is impossible to “communicate effectively with counsel” unless you are shielded by the protection of the attorney-client privilege, which “was designed, in large part, to encourage full disclosure by a client to his or her attorney so as to facilitate effective legal representation. State v. Cascone, 195 Conn. 183, 188, 487 A.2d 186 (1985).” (Emphasis added.) Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., 249 Conn. 36, 48, 730 A.2d 51 (1999).
It is apparent that the threat of such an argument would have a chilling effect on the defendant’s “right to communicate effectively with counsel in the preparation of [his] defense.” Washington v. Meachum, supra, 238 Conn. 731. Although a defendant may have access to a person with a law degree, he justifiably will be afraid of communicating effectively with that person if such communication may later be used against him.
The defendant’s trial counsel asserted the following argument: “I don’t think it’s an appropriate argument to be made. The state could have called [the defendant’s] other attorney in rebuttal or attempted to [do so], ... [I]t wasn’t relevant. We presented evidence sufficient to get a charge of diminished capacity, and arguing what we didn’t present I don’t think is appropriate.”
The majority also invokes this court’s policy of declining to “afford Golding review to claims of prosecutorial misconduct . . . where the record does not disclose a pattern of misconduct . . . that was so blatantly