State v. Sewell
| Citation | 38 Conn.App. 20,658 A.2d 598 |
| Decision Date | 10 July 1995 |
| Docket Number | No. 12199,12199 |
| Court | Appellate Court of Connecticut |
| Parties | STATE of Connecticut v. James H. SEWELL. |
James J. Ruane, with whom, on the brief, was Nancy A. DeRose, Bridgeport, for appellant (defendant).
Leon F. Dalbec, Jr., Asst. State's Atty., with whom, on the brief, were Eugene Callahan State's Atty., and Robert Katz, Sr. Asst. State's Atty., for appellee (State).
Before EDWARD Y. O'CONNELL, LAVERY and FREDERICK A. FREEDMAN, JJ.
The defendant appeals from the judgment of conviction, after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134, 1 assault in the first degree in violation of General Statutes § 53a-59, 2 burglary in the second degree in violation of General Statutes § 53a-102, 3 and larceny in the fourth degree in violation of General Statutes § 53a-125. 4
The defendant claims that (1) there was insufficient evidence of serious injury to sustain the robbery and assault convictions, (2) the trial court improperly instructed the jury on the unanimous verdict requirement in the robbery and burglary counts, and (3) the trial court improperly admitted evidence that the defendant wanted to consult his attorney before agreeing to a polygraph examination. 5 We affirm the judgment of the trial court.
The jury could reasonably have found the following facts. On August 11, 1991, the female victim was employed in Wilton as a home health care worker for a ninety-one year old woman. About 11:30 p.m., the victim heard a knock at the kitchen door, and, thinking it was the elderly woman's grandson, she opened the door. It was not the grandson, but a stranger, later identified as the defendant, who asked to use the telephone. When the victim directed him to a nearby pay phone, he stepped inside the door and asked where the money was kept. The defendant was holding a baseball bat in his right hand and a knife in his left. When the victim responded that she did not know where the money was kept, the defendant kicked her in the abdomen and, using his left hand, which held the knife, struck her in the face, knocking her to the floor. As she lay on the floor, he hit her head with the baseball bat. She was very dizzy and experienced pain in her head and abdomen. The victim is not sure whether she was rendered unconscious, but there is a period of time for which she cannot account. While the victim was on the kitchen floor, the defendant took about $600 from her purse.
The victim crawled to the kitchen telephone, in an attempt to summon help, but found that the phone cord had been cut. The elderly woman's grandson arrived and found the victim in a fetal position on the kitchen floor complaining that her head felt as though it were going to explode.
An ambulance transported the victim to a hospital where she remained for eight days, three of them in the intensive care unit. Hospital records showed that during her stay she suffered numerous pseudoseizures including six on the day she was admitted.
The procedural genesis of the second and third claims is included with the analyses of those issues.
The defendant argues that the evidence was insufficient to sustain a conviction on the robbery and assault counts, and, therefore, that the trial court improperly failed to grant his motion for a judgment of acquittal on those counts. Proof that the victim suffered a serious physical injury is an element of both crimes. Serious physical injury is defined as "physical injury which creates a substantial risk of death, or which causes ... serious impairment of health or serious loss or impairment of the function of any bodily organ." General Statutes § 53a-3(4).
Whether a victim has suffered a serious physical injury is a question of fact for the jury. State v. Rumore, 28 Conn.App. 402, 414, 613 A.2d 1328, cert. denied, 224 Conn. 906, 615 A.2d 1049 (1992). On appeal, our courts accord great deference to the jury's factual conclusions. State v. Sivri, 231 Conn. 115, 134, 646 A.2d 169 (1994).
The jury could reasonably have inferred that the victim was rendered unconscious by the blow to her head. This court has previously addressed the issue of whether unconsciousness constitutes serious physical injury. In State v. Rumore, supra, 28 Conn.App. at 415, 613 A.2d 1328, we held that "[t]he jury could properly interpret the evidence to prove that the victim's brain was not functioning at a cognitive level when she was unconscious and, thus, was impaired." Accordingly, we cannot say as a matter of law that the jury in the present case could not reasonably have found that the victim suffered a serious physical injury. State v. Miller, 202 Conn. 463, 489, 522 A.2d 249 (1987).
The trial court properly refused to direct a judgment of acquittal on the robbery in the first degree and assault in the first degree counts.
The defendant next contends that the trial court improperly failed to give a specific unanimity instruction in connection with the burglary and robbery charges.
The trial court instructed the jury that it could find the defendant guilty of burglary in the second degree if it found that the defendant had entered or remained unlawfully on the premises. 6 The defendant complains that the court did not specifically instruct the jury that it had to unanimously agree either that the defendant entered the dwelling unlawfully or that he remained in the dwelling unlawfully.
The trial court also instructed the jury that it could find the defendant guilty of robbery in the first degree if it found that, in the course of commission of the robbery, the defendant had caused serious physical injury to the victim or used or threatened the use of a dangerous instrument. 7 The defendant complains that the trial court did not specifically instruct the jury that it had to agree unanimously as to whether the defendant (1) threatened the victim with the knife, (2) hit her with the baseball bat, or (3) inflicted serious injury on her.
The trial court instructed the jury that its verdicts must be unanimous but gave no further instructions on unanimity. The defendant did not request a unanimity instruction or take exception to the charge as given. Because these claims were not preserved the defendant seeks review under the doctrine of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). 8
State v. Nixon, 32 Conn.App. 224, 244, 630 A.2d 74 (1993), quoting State v. Famiglietti, supra, 219 Conn. at 619-20, 595 A.2d 306.
"In the present case, the jury instructions are devoid of any indication that the trial court expressly sanctioned a nonunanimous verdict...." State v. Nixon, supra, 32 Conn.App. at 244, 630 A.2d 74. Although the court did not give a specific unanimity instruction in either the burglary or the robbery instructions, "we cannot interpret the court's silence as sanctioning a nonunanimous verdict." Id., at 245, 630 A.2d 74.
(Citations omitted; emphasis in original; internal quotation marks omitted) State v. Nixon, supra, 32 Conn.App. at 245, 630 A.2d 74.
Further analysis of this claim is not warranted.
In his final claim, the defendant argues that the trial court improperly admitted into evidence the fact that the defendant invoked his right to counsel regarding a proffered polygraphic examination. On direct examination, a police officer testified that, "I asked [the defendant] if he was willing to consent to a polygraph test, at which time he requested to speak to an attorney." 9
The defendant did not object to this testimony, nor did he ask the court to give a limiting or cautionary instruction. The following day, in the jury's absence, the court admonished counsel not to pursue the polygraph area further. The defendant still did not seek a limiting and cautionary instruction, nor did he request that the testimony be stricken.
The defendant seeks review of this unpreserved claim under the Golding doctrine. 10 We focus on the second Golding prong to determine whether the claim is of constitutional magnitude. The defendant framed this claim in terms of the admissibility of evidence of a response to a request to take a polygraph test. Review of Connecticut polygraph cases indicates that such claims do not implicate a defendant's constitutional rights. Instead, the cases are concerned with the admissibility of the evidence due to questions concerning its reliability. State v. Duntz, 223 Conn. 207, 238, 613 A.2d 224 (1992); State v. Plourde, 208 Conn. 455, 471, 545 A.2d 1071 (1988), cert. denied, 488 U.S. 1034, 109 S.Ct. 847, 102 L.Ed.2d 979 (1988); State v. Miller, 202 Conn. 463, 485-86, 522 A.2d 249 (1987); State v. Mitchell, 169 Conn. 161, 169, 362 A.2d 808 (1975). Thus, because this is an evidentiary and not a...
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